DOMINICAN REPUBLIC - ANTI-DUMPING MEASURES ON CORRUGATED STEEL BARS REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 27 July 2023
Document codes: WT/DS605/R
Complainant: Costa Rica
Respondent: Dominican
Third parties: Canada, China, EU, India, Japan, Mexico, Russia, U.S.
Dispute stage: Panel
Agreements cited: Art. 2.1, 2.2, 2.2.1, 2.4, 3.1, 3.2, 3.4, 3.5, 3.7, 5.1, 5.3, 5.8, 6.1, 6.1.3, 6.2, 6.4, 6.5, 6.5.1, 6.7, 6.9, 9.1, 9.3, 12.1.1, Annex 1  Anti-dumpingArt. VI, VI:2(a)  GATT 1994

DOMINICAN REPUBLIC - ANTI-DUMPING MEASURES ON
CORRUGATED STEEL BARS
REPORT OF THE PANEL
BCI redacted, as indicated [[***]]

BCI deleted, as indicated [[***]]

TABLE OF 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, DSR 2003:V, p. 1727
Argentina – Textiles and
Apparel
Appellate Body Report, Argentina – Measures Affecting Imports of Footwear,
Textiles, Apparel and Other Items, and Corr.1, adopted
22 April 1998, DSR 1998:III, p. 1003
Australia – Apples Appellate Body Report, Australia – Measures Affecting the Importation of
Apples from New Zealand, , adopted 17 December 2010,
DSR 2010:V, p. 2175
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut,
, adopted 20 March 1997, DSR 1997:I, p. 167
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,
DSR 2004:VI, p. 2739
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, DSR 2003:VI, p. 2613
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 , DSR
2003:VII, p. 2701
EC – Bananas III Appellate Body Report, European Communities – Regime for the
Importation, Sale and Distribution of Bananas, , adopted
25 September 1997, DSR 1997:II, p. 591
EC – Selected Customs
Matters
Appellate Body Report, European Communities – Selected Customs Matters,
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R,
adopted 28 July 2011, DSR 2011:VII, p. 3995
EC – Fasteners (China) Panel Report, European Communities – Definitive Anti-Dumping Measures on
Certain Iron or Steel Fasteners from China, WT/DS397/R and Corr.1, adopted
28 July 2011, as modified by Appellate Body Report WT/DS397/AB/R, DSR
2011:VIII, p. 4289
EC – Fasteners (China)
(Article 21.5 – China)
Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China – Recourse to
Article 21.5 of the DSU by China, WT/DS397/AB/RW and Add.1, adopted
12 February 2016, DSR 2016:I, p. 7
EC – Hormones Appellate Body Report, European Communities – Measures Concerning Meat
and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted
13 February 1998, DSR 1998:I, p. 135
EC – Bed Linen Panel Report, European Communities – Anti-Dumping Duties on Imports of
Cotton-Type Bed Linen from India, WT/DS141/R, adopted 12 March 2001, as
modified by Appellate Body Report WT/DS141/AB/R, DSR 2001:VI, p. 2077
EC – Bed Linen
(Article 21.5 – India)
Panel Report, European Communities – Anti-Dumping Duties on Imports of
Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSU by
India, WT/DS141/RW, adopted 24 April 2003, as modified by Appellate Body
Report WT/DS141/AB/RW, DSR 2003:IV, p. 1269
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumping Measure on Farmed
Salmon from Norway, WT/DS337/R, adopted 15 January 2008, and Corr.1,
DSR 2008:I, p. 3
EC and certain member
States – Large Civil Aircraft
Appellate Body Report, European Communities and Certain Member States –
Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted 1
June 2011, DSR 2011:I, p. 7
China – X-Ray Equipment Panel Report, China – Definitive Anti-Dumping Duties on X-Ray Security
Inspection Equipment from the European Union, WT/DS425/R and Add.1,
adopted 24 April 2013, DSR 2013:III, p. 659

BCI deleted, as indicated [[***]]

Short Title Full Case Title and Citation
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, DSR 2014:VII, p. 2655
China – GOES Appellate Body Report, China – Countervailing and Anti-Dumping Duties on
Grain Oriented Flat-Rolled Electrical Steel from the United States,
WT/DS414/AB/R, adopted 16 November 2012, DSR 2012:XII, p. 6251
China – 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, DSR 2017:IV,
p. 1961
China – Broiler Products Panel Report, China – Anti-Dumping and Countervailing Duty Measures on
Broiler Products from the United States, WT/DS427/R and Add.1, adopted
25 September 2013, DSR 2013:IV, p. 1041
China – Broiler Products
(Article 21.5 – US)
Panel Report, China – Anti-Dumping and Countervailing Duty Measures on
Broiler Products from the United States – Recourse to Article 21.5 of the DSU
by the United States, WT/DS427/RW and Add.1, adopted 28 February 2018,
DSR 2018:II, p. 839
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, DSR 2015:IX, p. 4573
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, DSR 2015:IX, p. 4789
Korea – Stainless Steel Bars Panel Report, Korea – Sunset Review of Anti-Dumping Duties on Stainless
Steel Bars, WT/DS553/R and Add.1, circulated to WTO Members
30 November 2020, appealed 22 January 2021
Korea – Certain Paper Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from
Indonesia, WT/DS312/R, adopted 28 November 2005, DSR 2005:XXII,
p. 10637
Korea – Certain Paper
(Article 21.5 – Indonesia)
Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from
Indonesia – Recourse to Article 21.5 of the DSU by Indonesia, WT/DS312/RW,
adopted 22 October 2007, DSR 2007:VIII, p. 3369
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of
Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000,
DSR 2000:I, p. 3
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,
DSR 2019:XI, p. 5637
Korea – Pneumatic Valves
(Japan)
Panel Report, Korea – Anti-Dumping Duties on Pneumatic Valves from Japan,
WT/DS504/R and Add.1, adopted 30 September 2019, as modified by
Appellate Body Report WT/DS504/AB/R, DSR 2019:XI, p. 5935
Egypt – Steel Rebar Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar from
Turkey, WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, p. 2667
US – Ripe Olives from Spain Panel Report, United States – Anti-Dumping and Countervailing Duties on Ripe
Olives from Spain, WT/DS577/R and Add.1, adopted 20 December 2021
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain
Corrosion-Resistant Carbon Steel Flat Products from Germany,
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX,
p. 3779
US – Carbon Steel (India) Appellate Body Report, United States – Countervailing Measures on Certain
Hot-Rolled Carbon Steel Flat Products from India, WT/DS436/AB/R, adopted
19 December 2014, DSR 2014:V, p. 1727

BCI deleted, as indicated [[***]]

Short Title Full Case Title and Citation
US – Stainless Steel (Korea) Panel Report, United States – Anti-Dumping Measures on Stainless Steel Plate
in Coils and Stainless Steel Sheet and Strip from Korea, WT/DS179/R,
adopted 1 February 2001, DSR 2001:IV, p. 1295
US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on Certain
Hot-Rolled Steel Products from Japan, WT/DS184/AB/R, adopted
23 August 2001, DSR 2001:X, p. 4697
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of Woven
Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997,
and Corr.1, DSR 1997:I, p. 323
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application of
Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009,
DSR 2009:III, p. 1291
US – Lamb Appellate Body Report, United States – Safeguard Measures on Imports of
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia,
WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX,
p. 4051
US – Oil Country Tubular
Goods Sunset Reviews
Appellate Body Report, United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R,
adopted 17 December 2004, DSR 2004:VII, p. 3257
US – Wheat Gluten Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Wheat Gluten from the European Communities, WT/DS166/AB/R,
adopted 19 January 2001, DSR 2001:II, p. 717
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, DSR 2004:V, p. 1937
US – Softwood Lumber VI Panel Report, United States – Investigation of the International Trade
Commission in Softwood Lumber from Canada, WT/DS277/R, adopted
26 April 2004, DSR 2004:VI, p. 2485
US – Softwood Lumber V
(Article 21.5 – Canada)
Appellate Body Report, United States – Final Dumping Determination on
Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by
Canada, WT/DS264/AB/RW, adopted 1 September 2006, DSR 2006:XII,
p. 5087
US – Countervailing Measures
(China)
Appellate Body Report, United States – Countervailing Duty Measures on
Certain Products from China, WT/DS437/AB/R, adopted 16 January 2015,
DSR 2015:I, p. 7
US – Countervailing and
Anti-Dumping Measures
(China)
Appellate Body Report, United States – Countervailing and Anti-Dumping
Measures on Certain Products from China, WT/DS449/AB/R and Corr.1,
adopted 22 July 2014, DSR 2014:VIII, p. 3027
US – Coated Paper
(Indonesia)
Panel Report, United States – Anti-Dumping and Countervailing Measures on
Certain Coated Paper from Indonesia, WT/DS491/R and Add.1, adopted
22 January 2018, DSR 2018:I, p. 273
US – Zeroing (Japan)
(Article 21.5 – Japan)
Appellate Body Report, United States – Measures Relating to Zeroing and
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan,
WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, p. 3441
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Certain Steel Products, WT/DS248/AB/R, WT/DS249/AB/R,
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R,
WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003, DSR
2003:VII, p. 3117
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding
Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998,
DSR 1998:IX, p. 3767
Guatemala – Cement II Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey
Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000,
DSR 2000:XI, p. 5295
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical and
Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998,
DSR 1998:I, p. 9

BCI deleted, as indicated [[***]]

Short Title Full Case Title and Citation
Japan – Alcoholic Beverages
II
Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R,
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I,
p. 97
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, DSR 2007:VII, p. 2805
Morocco – Hot-Rolled Steel
(Turkey)
Panel Report, Morocco – Anti-dumping Measures on Certain Hot-Rolled Steel
from Turkey, WT/DS513/R and Add.1, adopted 8 January 2020; appeal
withdrawn by Morocco as reflected in Appellate Body Report WT/DS513/AB/R
Morocco – Definitive AD
Measures on Exercise Books
(Tunisia)
Panel Report, Morocco – Definitive Anti-Dumping Measures on School Exercise
Books from Tunisia, WT/DS578/R and Add.1, circulated to WTO Members
27 July 2021, appealed 28 July 2021
Mexico – Corn Syrup Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn
Syrup (HFCS) from the United States, WT/DS132/R, adopted
24 February 2000, and Corr.1, DSR 2000:III, p. 1345
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,
DSR 2001:XIII, p. 6675
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, DSR 2007:IV, p. 1207
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 18 January 2021, appealed 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, DSR 2018:III, p. 1167
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, DSR 2018:III, p. 1329
Thailand – H-Beams Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes
and Sections of Iron or Non-Alloy Steel and H-Beams from Poland,
WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 2701
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,
DSR 2001:VII, p. 2741
EU – Biodiesel (Argentina) Panel Report, European Union – Anti-Dumping Measures on Biodiesel from
Argentina, WT/DS473/R and Add.1, adopted 26 October 2016, as modified by
Appellate Body Report WT/DS473/AB/R, DSR 2016:VI, p. 3077
EU – Biodiesel (Indonesia) Panel Report, European Union – Anti-Dumping Measures on Biodiesel from
Indonesia, WT/DS480/R and Add.1, adopted 28 February 2018, DSR 2018:II,
p. 605
EU – Footwear (China) Panel Report, European Union – Anti-Dumping Measures on Certain Footwear
from China, WT/DS405/R, adopted 22 February 2012, DSR 2012:IX, p. 4585
EU – Cost Adjustment
Methodologies II (Russia)
Panel Report, European Union – Cost Adjustment Methodologies and Certain
Anti-Dumping Measures on Imports from Russia (Second Complaint),
WT/DS494/R and Add.1, circulated to WTO Members 24 July 2020, appealed
28 August 2020

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EXHIBITS REFERRED TO IN THIS REPORT
Exhibit Short title
(if any)
Description/Long title
CRI-1 Resolution on the appeal for
reconsideration
CDC, Resolution No. CDC-RD-AD-001-2020 ruling on the appeal
for reconsideration filed by ArcelorMittal Costa Rica, S.A. against
Resolution No. CDC-RD-AD-007-2019 providing for the
application of definitive anti-dumping duties on imports of
corrugated or deformed steel bars or rods for the reinforcement
of concrete originating in the Republic of Costa Rica
(17 March 2020)
CRI-2 Final determination CDC, Resolution No. CDC-RD-AD-007-2019 providing for the
application of definitive anti-dumping duties on imports of
corrugated or deformed steel bars or rods for the reinforcement
of concrete originating in the Republic of Costa Rica
(27 December 2019)
CRI-3 Final Technical Report CDC, Final technical report on the anti-dumping investigation
into imports of corrugated or deformed steel bars or rods for the
reinforcement of concrete originating in the Republic of
Costa Rica (public version) (20 December 20109)
CRI-4 Essential Facts Report CDC, Essential facts report on the anti-dumping investigation
into imports of corrugated or deformed steel bars or rods for the
reinforcement of concrete originating in the Republic of
Costa Rica (public version) (30 October 2019)
CRI-5 Resolution initiating the
investigation
CDC, Resolution No. CDC-RD-AD-001-2018 providing for the
initiation of the investigation into the alleged existence of
dumping in respect of exports of corrugated or deformed steel
bars or rods for the reinforcement of concrete originating in the
Republic of Costa Rica (30 July 2018)
CRI-6 Initial Technical Report CDC, Initial technical report on the anti-dumping investigation
into corrugated or deformed steel bars or rods for the
reinforcement of concrete originating in the Republic of
Costa Rica (public version) (20 July 2018)
CRI-7 Minutes of the verification
visit
CDC, Minutes of the verification visit of the anti-dumping
investigation into corrugated or deformed steel bars or rods for
the reinforcement of concrete originating in the Republic of
Costa Rica
CRI-8 Resolution
No. CDC-RD-AD-003-2018
CDC, Resolution No. CDC-RD-AD-003-2018 declaring
information submitted by Gerdau Metaldom, S.A. confidential in
the anti-dumping investigation into corrugated or deformed
steel bars or rods for the reinforcement of concrete originating
in the Republic of Costa Rica (31 October 2018)
CRI-9 Resolution
No. CDC-RD-AD-005-2019
CDC, Resolution No. CDC-RD-AD-005-2019 declaring
information submitted by Gerdau Metaldom, S.A. confidential in
the anti-dumping investigation into corrugated or deformed
steel bars or rods for the reinforcement of concrete originating
in the Republic of Costa Rica (29 October 2019)
CRI-10 ArcelorMittal's position on
the Essential Facts Report
Letter dated 11 November 2019 from ArcelorMittal to the CDC in
reference to its position with respect to the Essential Facts
Report of 30 October 2019 on the anti-dumping investigation
into imports of corrugated or deformed steel bars or rods for the
reinforcement of concrete originating in the Republic of
Costa Rica
CRI-11 Minutes of the verification
visit to ArcelorMittal
CDC, Minutes of the verification visit of the anti-dumping
investigation into imports of corrugated or deformed steel bars
or rods for the reinforcement of concrete originating in the
Republic of Costa Rica (21 November 2018)
CRI-14 (BCI) Contract dated
1 November 2016
Contract for maquila services for exporting 12,000 MT of
deformed rods (1 November 2016)
CRI-15 (BCI) Invoice No. W37441 dated 13 December 2016
CRI-17 Letter from the CDC
(22 November 2018)
Letter from the CDC to ArcelorMittal (22 November 2018)
CRI-18 ArcelorMittal's arguments
dated 8 February 2019
ArcelorMittal's arguments on the absence of dumping, injury
and a causal link (8 February 2019)
CRI-22 (BCI) Table E-3: sales of corrugated steel rods in Costa Rica
CRI-23 (BCI) Excel sheet with the "MD" calculation
CRI-25 Definition of "información" Real Academia Española, definition of "información"
https://dle.rae.es/informaci%C3%B3n
(accessed 12 December 2022)

BCI deleted, as indicated [[***]]

Exhibit Short title
(if any)
Description/Long title
DOM-1 Resolution
No. CDC-RD-AD-001-2018
CDC, Public Notice of Resolution No. CDC-RD-AD-001-2018
ruling on the application for the initiation of an anti-dumping
investigation into imports of corrugated or deformed steel rods
and bars for the reinforcement of concrete originating in the
Republic of Costa Rica (30 July 2018)
DOM-2 (BCI) Essential Facts Report
(confidential version)
CDC, Essential facts report on the anti-dumping investigation
into imports of corrugated or deformed steel bars or rods for the
reinforcement of concrete originating in the Republic of
Costa Rica (confidential version) (30 October 2019)
DOM-3 (BCI) Final Technical Report
(confidential version)
CDC, Final technical report on the anti-dumping investigation
into imports of corrugated or deformed steel bars or rods for the
reinforcement of concrete originating in the Republic of
Costa Rica (confidential version) (20 December 2019)
DOM-4 CDC, Anti-dumping questionnaire for exporters
DOM-5 (BCI) ArcelorMittal's anti-dumping
questionnaire
ArcelorMittal, anti-dumping questionnaire for exporters
(30 October 2018)
DOM-6 (BCI) ArcelorMittal's anti-dumping
questionnaire, annex D-3
ArcelorMittal, anti-dumping questionnaire, annex D-3
(30 October 2018)
DOM-7 (BCI) ArcelorMittal's position on
the Essential Facts Report
ArcelorMittal's position on the Essential Facts Report of
30 October 2019 (15 November 2019)
DOM-8 (BCI) ArcelorMittal, section F, production costs
DOM-11 (BCI) Application for initiation of
the investigation
(7 May 2018)
Gerdau Metaldom, Application for initiation of an investigation to
the Regulatory Commission on Unfair Trade Practices and
Safeguard Measures (7 May 2018)
DOM-12 Letter from the CDC to
Gerdau Metaldom
(24 May 2018)
Letter from the CDC to Gerdau Metaldom in reference to the
application for initiation of the investigation (24 May 2018)
DOM-14 (BCI) Letter from the CDC to
Gerdau Metaldom
(4 June 2018)
Letter from the CDC to Gerdau Metaldom in reference to the
application for an investigation (4 June 2018)
DOM-15 (BCI) Letter from Gerdau
Metaldom to the CDC
(7 June 2018)
Gerdau Metaldom, First submission to the CDC in reference to
its letter of 4 June 2018 (7 June 2018)
DOM-16 (BCI) Letter from Gerdau
Metaldom to the CDC
(11 June 2018)
Gerdau Metaldom, Second submission to the CDC in reference
to its letter of 4 June 2018 (11 June 2018)
DOM-17 Comments by ArcelorMittal
(30 October 2018)
ArcelorMittal, Annex 23 - Comments on the application, injury
and causality, 30 October 2018
DOM-18 Letter from the CDC No. 697 to ArcelorMittal regarding the
verification visit (2 November 2018)
DOM-21 (BCI) Sales invoices in Costa Rica
DOM-25 Letter of notice of the visit to Gerdau Metaldom
(15 October 2018)
DOM-30 Documentary evidence related to the CDC informing the parties
of relevant laws and regulations on confidential treatment

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ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
ADC Apparent domestic consumption
Anti-Dumping Agreement Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994
ArcelorMittal ArcelorMittal Costa Rica, S.A.
BCI Business confidential information
CDC Regulatory Commission on Unfair Trade Practices and Safeguard Measures
of the Dominican Republic
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
GATT 1994 General Agreement on Tariffs and Trade 1994
Gerdau Metaldom Gerdau Metaldom, S.A.
POI Period of investigation
Vienna Convention Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969,
UN document A/CONF.39/27
WTO World Trade Organization

BCI deleted, as indicated [[***]]

1 INTRODUCTION
1.1 Complaint by Costa Rica
1.1. On 23 July 2021, Costa Rica requested consultations with the Dominican Republic pursuant to
Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes
(DSU), Article 17 of the Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994 (Anti -Dumping Agreement), and Article XXII 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 20 September 2021 but failed to resolve the dispute.
1.2 Establishment and composition of the Panel
1.3. On 1 5 November 2021, Costa Rica requested the establishment of a panel pursuant to
Articles 4.7 and 6 of the DSU, Article 17.4 of the Anti-Dumping Agreement, and Article XXIII of the
GATT 1994, with the standard terms of reference .2 Based on this request, in accordance with
Article 6 of the DSU, the Dispute Settlement Body (DSB) established a panel at its meeting of
20 December 2021.3
1.4. The Panel's terms of reference are:
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 Costa Rica in document
WT/DS605/2 and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements.4
1.5. On 28 March 2022, Costa Rica requested the Director-General to determine the composition of
the Panel, pursuant to Article 8.7 of the DSU . On 8 April 2022, the Director -General accordingly
composed the Panel as follows:
Chairperson: Mr Guillermo VALLES GALMÉS
Members: Ms María Valeria RAITERI
Mr Marco César SARAIVA DA FONSECA
1.6. Canada, China, the European Union, India, Japan, Mexico, the Russian Federation, and the
United States notified their interest in participating in the Panel proceedings as third parties.
1.3 Panel proceedings
1.7. After consultation with the parties, the Panel adopted its Working Procedures5 and a timetable
on 12 May 2022. Additional Working Procedures concerning Business Confidential Information (BCI)
were adopted on 17 May 2022.6 The Panel revised its timetable during the panel proceedings in the
light of subsequent developments.7
1.8. Costa Rica submitted its first written submission on 10 June 2022 and the Dominican Republic
submitted its first written submission on 29 July 2022. The Panel held a first substantive meeting
with the parties on 13 and 14 September 2022. A session with the third parties took p lace on
14 September 2022. The parties submitted their second written submissions on 26 October 2022.

1 Request for consultations by Costa Rica, WT/DS605/1-G/ADP/D139/1-G/L/1393 (Costa Rica's
consultations request).
2 Request for the establishment of a panel by Costa Rica, WT/DS605/2 (Costa Rica's panel request).
3 DSB, Minutes of the meeting held on 20 December 2021, WT/DSB/M/459, para. 5.4.
4 Constitution note of the Panel, WT/DS605/3.
5 Working Procedures of the Panel (Annex A-1).
6 Additional Working Procedures of the Panel Concerning Business Confidential Information (Annex A-2).
7 The timetable was updated and revised on 23 November 2022 and 7 February 2023.

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1.9. The second substantive meeting of the Panel with the parties was held on 22 and
23 November 2022. As a result of force majeure, Mr Marco César Saraiva da Fonseca, was unable
to attend the meeting in person, but he participated virtually through the Cisco Webex platform.
1.10. On 7 February 2023, the Panel issued the descriptive part of its Report to the parties . The
Panel issued its Interim Report to the parties on 5 May 2023. The Panel issued its Final Report to
the parties on 26 June 2023.
2 FACTUAL ASPECTS: THE MEASURES AT ISSUE
2.1. This dispute concerns anti -dumping measures imposed by the Dominican Republic on the
importation of corrugated or deformed steel bars or rods for the reinforcement of concrete
originating in the Republic of Costa Rica following the investigation by the Regulatory Commission
on Unfair Trade Practices and Safeguard Measures of the Dominican Republic (CDC) . Costa Rica's
panel request refers in particular to the following:
a. Initial Technical Report No. CDC-RD/AD/2018-001, of 20 July 2018, whereby the
Authority examined the application for an anti -dumping investigation by the
Dominican company, Gerdau Metaldom, S.A. (Gerdau Metaldom).
b. Resolution No. CDC-AD-001-2018, of 3 0 July 2018, providing for the initiation of the
investigation into the alleged existence of dumping in respect of exports of corrugated or
deformed steel rods or bars for the reinforcement of concrete originating in the
Republic of Costa Rica.
c. Report on the investigation's essential facts, of 30 October 2019.
d. Final Technical Report, of 20 December 2019, for the anti-dumping investigation against
imports of the Costa Rican product.
e. Resolution No. CDC-RD-AD-007-2019, of 27 December 2019, providing for the application
of definitive anti-dumping duties on imports of corrugated or deformed steel bars or rods
for the reinforcement of concrete originating in the Republic of Costa Rica.
f. Resolution No. CDC-RD-AD-001-2020, of 1 7 March 2020, ruling on the appeal for
reconsideration filed against Resolution No. CDC-RD-AD-007-2019, of 27 December 2019.
g. Any other resolution, instrument, report or determination issued in the anti -dumping
investigation or in relation thereto.
2.2. In addition to the aforementioned measures, Costa Rica is challenging any other measures that
extend, replace, amend, implement, expand, enforce or otherwise maintain the measures described
above.
3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATION
3.1. Costa Rica requests that the Panel find the Dominican Republic's anti -dumping measures are
inconsistent with Articles 2.1, 2.2.1, 2.4, 3.1, 3.2, 3.4, 3.5, 3.7, 5.3, 5.8, 6.1.3, 6.4, 6.5, 6.7 and 9.3
of the Anti-Dumping Agreement and Annex I thereto, as well as Article VI:2 of the GATT 1994.
3.2. Costa Rica submits that, having demonstrated the infringement of the Anti -Dumping
Agreement and the GATT 1994, the measures at issue constitute a case of nullification or impairment
on the basis of Article 3.8 of the DSU.
3.3. Costa Rica further requests the Panel, pursuant to Article 19.1 of the DSU, to recommend that
the Dominican Republic bring the anti-dumping measures into conformity with its obligations under
the Anti-Dumping Agreement and the GATT 1994.8

8 Costa Rica's first written submission, paras. 298-300; and second written submission, paras. 315-317.

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3.4. The Dominican Republic requ ests that the Panel reject each of the claims submitted by
Costa Rica in this dispute.9
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 25 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 the United States, Japan, Mexico, and the European Union are reflected in
their executive summaries, provided in accordance with paragraph 28 of the Working Procedures
adopted by the Panel (see Annexes C-1 to C -4). C anada made an oral statement during the
third-party session, which it also submitted in writing. China, India, and the Russian Federation did
not provide the Panel with a third -party submission and did not make an oral statement at the
third-party session of the first substantive meeting with the Panel.
6 INTERIM REVIEW
6.1. On 5 May 2023, the Panel issued its interim report to the parties. On 22 May 2023, Costa Rica
and the Dominican Republic submitted their written requests for review. On 5 June 2023, the parties
submitted comments on the other parties' written requests for review.
6.2. The parties' requests made at the interim review stage as well as the Panel's discussion and
disposition of those requests are set out in Annex A-3.
7 FINDINGS
7.1 Introduction
7.1. This dispute concerns the imposition by the Dominican Republic of anti -dumping duties on
imports of corrugated or deformed steel bars and rods for concrete reinforcement originating in
Costa Rica. On 20 December 2019, the CDC issued a final determination regarding the investigation
into the existence of dumping practices, and on 2 7 December 2019, the CDC provided for the
application of definitive anti -dumping measures.10 The CDC applied an anti -dumping duty of 15%
ad valorem on imports of corrugated or deformed steel bars and rods for concrete reinforcement
originating in Costa Rica under tariff subheadings 7214.10.00, 7214.20.00, 7214.30.00, 7214.91.00
and 7214.99.00.11
7.2. We begin our review with Costa Rica's claims concerning the calculation of the margin of
dumping. In section 7.3 , we analyse the claims under Articles 2.1 and 2.4 of the Anti -Dumping
Agreement regarding the inclusion i n the dumping calculation of certain export sales that were
invoiced prior to the period of investigation (POI) but that entered the Dominican Republic during
the POI. In section 7.4 , we assess Costa Rica's claims under Article 2.2.1 of the Anti -Dumping
Agreement regarding the CDC's examination and the costs it selected to determine whether the
sales were made in the ordinary course of trade.
7.3. In section 7.5 , we examine Costa Rica's claims under Articles 3.1, 3.2, 3.4, 3.5 and 3.7 of the
Anti-Dumping Agreement regarding the CDC's examination of the existence of a threat of injury and
the existence of a causal relationship between the dumped imports and the threat of injury to the
domestic industry of the Dominican Republic.
7.4. In sections 7.6 and 7.7 , we evaluate Costa Rica's claims under Articles 5.3 and 5.8 of the
Anti-Dumping Agreement concerning the initiation of the investigation.

9 Dominican Republic's first witten submission, para. 736; and second written submission, para. 335.
10 Final determination (Exhibit CRI-2).

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7.5. We then consider Costa Rica's claims under Article 6 of the Anti -Dumping Agreement. I n
section 7.8 , we analyse whether, inconsistent ly with Article 6.1.3, the CDC failed to provide the
exporter under investigation (ArcelorMittal Costa Rica S.A. (ArcelorMittal) with the full text of the
written application for the initiation of the investigation . In section 7.9 , we consider Costa Rica's
claim that the CDC acted inconsistently with Article 6.4 by failing to provide timely opportunities for
all interested parties to see all information that is relevant to the presentation of their cases and to
prepare presentations on the basis of this information . In section 7.10 , we analyse Costa Rica's
claims concerning the confidential treatment that the CD C afforded to certain information under
Article 6.5. In section 7.11 , we consider Costa Rica's claim under Article 6.7 of the Anti -Dumping
Agreement and Annex I thereto regarding the information to be verified and any further information
which needed to be provided.
7.6. Lastly, in section 7.12 , we analyse Costa Rica's conseque ntial claims that the CDC acted
inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994, as
it failed to satisfy all the requirements stipulated in the Anti -Dumping Agreement and the
GATT 1994.
7.2 General principles regarding treaty interpretation, standard of review and burden of
proof
7.2.1 Treaty interpretation
7.7. Article 3.2 of the DSU provides that the dispute settlement system of the WTO serves to
"clarify" the existing provisions of the covered agreements "in accordance with customary rules of
interpretation of public international law".12
7.8. Article 17.6(ii) of the Anti-Dumping Agreement also requires panels to "interpret the relevant
provisions of the Agreement in accordance with customary rules of interpretation of public
international law".
7.9. It is generally accepted that the principles codified in Articles 31 and 32 of the
Vienna Convention on the Law of Treaties (Vienna Convention) are such customary rules.13
7.2.2 Standard of review
7.10. Article 11 of the DSU sets out a general standard of review for panels, providing, in relevant
part, that:
[A] panel should make an objective assessment of the matter before it, including an
objective assessment of the facts of the case and the applicability of and conformity
with the relevant covered agreements[.]
7.11. Furthermore, in matters related to claims under the Anti-Dumping Agreement, Article 17.6 of
that Agreement provides that:
(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 rele vant provision of the Agreement admits of more than one permissible

12 We further note that Article 3.2 of the DSU stipulates that "[r]ecommendations and rulings of the DSB
cannot add to or diminish the rights and obligations provided in the covered agreements".
13 See, e.g. Appellate Body Report, Japan - Alcoholic Beverages II, p. 10.

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interpretation, the panel shall find the authorities' measure to be in conformity with
the Agreement if it rests upon one of those permissible interpretations.14
7.12. Pursuant to these provisio ns, a panel reviewing an investigating authority's determination
must not conduct a de novo review of the evidence nor substitute its judgement for that of the
investigating authority.
7.2.3 Burden of proof
7.13. The DSU does not contain any specific rules governing how the burden of proof is allocated in
WTO dispute settlement proceedings . We agree that, in WTO dispute settlement, "the burden of
proof rests upon the party … who asserts the affirmative of a particular claim or defence" .15 Lastly,
it is Costa Rica that is required "to establish a prima facie case of inconsistency with [the] provision
[invoked] before the burden of showing consistency with that provision is taken on by the defending
party".16 A prima facie case is one which, in the absence of effective re futation by the defending
party, requires a panel, as a matter of law, to rule in favour of the complaining party.17
7.3 Costa Rica's claims under Articles 2.1 and 2.4 of the Anti -Dumping Agreement: the
calculation of the export price
7.3.1 Introduction
7.14. When initiat ing the investigation on 3 0 July 2018, the CDC set the POI to determine the
margin of dumping as from 1 May 2017 to 30 April 2018.18 For the purposes of the determination of
dumping, the CDC calculated the export price on the basis of the information provi ded by the
exporter, ArcelorMittal, on sales made to the Dominican Republic .19 ArcelorMittal submitted
information on nine exports to the Dominican Republic . Two of the exports - the sales shipped on
the vessels, the Thorco Logic and the Suzie Q - were invoiced at dates prior to the start of the
dumping investigation period, although they entered the Dominican Republic on dates within that
period.20 The CDC calculated the export price on the basis of the information submitted by
ArcelorMittal, including the sales shipped on the vessels, the Thorco Logic and the Suzie Q, "by virtue
of the fact that the dates of entry into the Dominican Republic are within the dumping period."21
7.15. Costa Rica claims that, by including exports invoiced prior to the POI in its calculation of the
margin of dumping, the CDC acted inconsistently with Articles 2.1 and 2.4 of the Anti -Dumping
Agreement. With regard to Article 2.1, Costa Rica first submits that the inclusion of export sales
made prior to the POI implies that the CDC failed to determine "current" dumping, which must be
established in the light of Article 2.1.22 Second, Costa Rica claims that, by including export sales that
were invoiced prior to the POI, the export price used by the CDC was not "comparable" to the normal
value used by the CDC and that the CDC therefore failed to comply with the requirements of
Article 2.1.23

14 Article 1.2 of the DSU and Appendix 2 thereto identify Article 17.6 of the Anti-Dumping Agreement as
one of the "special or additional rules and procedures" which prevail over the DSU "[t]o the extent that there is
a difference" between those provisions and the provisions of the DSU.
15 Appellate Body Report, US – Wool Shirts and Blouses, p. 14.
16 Appellate Body Report, EC – Hormones, para. 104.
17 Appellate Body Report, EC – Hormones, para. 104.
18 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 17.
19 See ArcelorMittal's anti-dumping questionnaire (30 October 2018) (Exhibit DOM-5 (BCI)), section D,
"Ventas de exportación del PI a la República Dominicana" (Export sales of the product under investigation to
the Dominican Republic); and ArcelorMittal's anti-dumping questionnaire, annex D-3 (Exhibit DOM-6 (BCI)).
20 As indicated in ArcelorMittal's anti-dumping questionnaire, annex D-3 (Exhibit DOM-6 (BCI)), the
exports shipped on the vessel, the Thorco Logic, were invoiced on 31 March 2017, while the exports shipped on
the vessel, the Suzie Q, were invoiced on 27 April 2017. ArcelorMittal indicated that the Thorco Logic shipment
was made on 17 May 2017, and states that the Suzie Q entered the Dominican Republic "during the POI"
without specifying the exact date. ArcelorMittal explained that the criterion used to define the exports that
were included "was the entry of [its] sales into the Dominican Republic, in the POI defined by the CDC for the
dumping determination". (ArcelorMittal's anti-dumping questionnaire (Exhibit DOM-5 (BCI)), p. 29).
21 Essential Facts Report (confidential version) (Exhibit DOM-2 (BCI)), para. 124.
22 Costa Rica's second written submission, paras. 17-20.
23 Costa Rica's second written submission, paras. 10-16.

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7.16. Costa Rica also submits a number of claims where it states that the CDC failed to comply with
the provisions of Article 2.4 by including exports invoiced prior to the POI in its calculation of the
margin of dumping. In this regard, Costa Rica claims, in particular, that the CDC: (a) failed to make
a "fair" comparison for the purposes of the first sentence of Article 2.4 24; (b) failed to make a
comparison in respect of sales made at as nearly as possible the same time, inconsistently with the
second sentence of Article 2.4 25; and (c) failed to make due allowance for differences which affect
price comparability, as stipulated in the third sentence of Article 2.4.26
7.17. The Dominican Republic responds that Costa Rica's claims under Article 2.1 are devoid of any
legal basis as nothing in this pro vision prevents the authorities from taking the date of entry into
the country as a relevant criterion for identifying which sales are considered in the determination of
dumping.27 Moreover, the Dominican Republic does not agree that the sales invoiced for export on
dates prior to the POI are considered sales that do not reflect "current" or "actual" dumping under
Article 2.1.28
7.18. The Dominican Republic also submits that the Costa Rica's claim finds no legal basis in
Article 2.4, as Article 2.4 refers to adjustments for differences which affect price comparability and
does not directly regulate the determination of the export price .29 The Dominican Republic argues
that Costa Rica's claim concerns adjustments and, in any event, disagrees that an alleged increas e
in the cost of production during the POI is one of the differences affecting price comparability that
would have required an adjustment .30 Lastly, the Dominican Republic claims that the exporter,
ArcelorMittal, never submitted the data needed to make a f air comparison, which the CDC should
allegedly have made.31
7.19. As set out below, we conclude that the CDC acted inconsistent ly with Article 2.4, and we
exercise judicial economy with regard to Costa Rica's claims under Article 2.1 and to certain
additional claims under Article 2.4.
7.20. We now turn to the claims under Article 2.4. First, we set out the applicable requirements of
Article 2.4 (section 7.3.2 ), before applying that standard to the facts of this case to assess whether
the CDC acted inconsistently with Article 2.4, and we conclude that it did (section 7.3.3 ). Lastly, we
exercise judicial economy under Article 2.1 and in respect of certain additional claims brought by
Costa Rica under Article 2.4 (section 7.3.4 ).
7.3.2 The applicable requirements of Article 2.4 of the Anti-Dumping Agreement
7.21. The relevant part of Article 2.4 provides that:
A fair comparison shall be made between the export price and the normal value . This
comparison shall be made at the same level of trad e, normally at the ex-factory level,
and in respect of sales made at as nearly as possible the same time . Due allowance
shall be made in each case, on its merits, for differences which affect price
comparability, including differences in conditions and ter ms of sale, taxation, levels of
trade, quantities, physical characteristics, and any other differences which are also
demonstrated to affect price comparability. … The authorities shall indicate to the
parties in question what information is necessary to ensure a fair comparison and shall
not impose an unreasonable burden of proof on those parties.32
7.22. Article 2.4 requires the investigating authorities to make a "fair comparison" between the
export price and the normal value when determining dumping and when calculating the dumping
margin. T he word " equitativo" ("fair") means that something has the quality of " equidad"

24 Costa Rica's second written submission, paras. 37-41.
25 Costa Rica's second written submission, paras. 29-36.
26 Costa Rica's second written submission, paras. 42-47.
27 Dominican Republic's first written submission, para. 107.
28 Dominican Republic's first written submission, paras. 108-110.
29 Dominican Republic's first written submission, paras. 90, 125 and 133-134.
30 Dominican Republic's first written submission, para. 132.
31 Dominican Republic's first written submission, para. 135.
32 Fn omitted.

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mind that moves one to give everyone their due").33 Article 2.4 sets forth certain requirements that
must be complied with in order to ensure that the comparison is fair .34 The second sentence of
Article 2.4 provides that the comparison should be made "at the same level of trade" and "with
respect to sales made at as nearly as possible the same time" . The third sentence of Article 2.4
requires that investigating authorities make "[d]ue allowance ... in each case, on its merits, for
differences which affect price comparability".
7.23. We understand that the relevant differences are the differences in the characteristics of the
compared transactions that have an impact, or are likely to have an impact, on the price of the
transactions, as already mentioned. Moreover, when it is established that the comparison between
the export price and the normal value is made "in respect of sales made at as nearly as possible the
same time", we consider that the date of sales may have an impact on the comparability of export
and home market transactions.
7.24. The requirement to make due allowance for differences which affect price comparability means
that the authority must evaluate the differences identified. The last sentence of Article 2.4 requires
that investigating authorities indicate to the parties in question what informa tion is necessary to
ensure a fair comparison . Investigating authorities must thus indicate what information they will
need in order to make a fair comparison. In addition, we recall that the last sentence of Article 2.4
requires that investigating authori ties "not impose an unreasonable burden of proof on those
parties".
7.25. We understand that exporters, for their part, bear the burden of substantiating, as
constructively as possible, their requests for adjustments under Article 2.4.
7.26. Lastly, we agree that the existence of one of the differences listed in Article 2.4 does not
automatically mean that price comparability has been affected, as there may be situations when
those differences do not have an impact on price comparability.
7.3.3 Whether the Dominican Republic acted inconsistently with Article 2.4 of the
Anti-Dumping Agreement
7.27. 7.27. In the light of the parties' arguments, we consider that in order to resolve Costa Rica's
claim under Article 2.4, we need to examine the following issues: (a) the applicability of Article 2.4
to Costa Rica's claim; and (b) whether the CDC made a comparison "in respect of sales made at as
nearly as possible the same time", consistent with Article 2.4, when it included exports invoiced prior
to the POI in its calculation of the export price.
7.3.3.1 The applicability of Article 2.4 to Costa Rica's claim
7.28. Costa Rica considers that, by expressly providing in the second sentence of Article 2.4 that
the comparison between the export price and the normal value be made "in respect of sales made
at as nearly as possible the same time", "[the] reference to 'sales' in the plural, which are the 'basis'
for the comparison, confirms that Article 2.4 does indeed regulate the establishment of the
components of the comparison as it refers to t he individual transactions that form the basis of the
two elements to be compared" .35 For Costa Rica, the second sentence therefore "seeks to ensure
that the sales used, on the one hand, to calculate the export price and, on the other hand, to
calculate the normal value have been made at as nearly as possible the same time".36
7.29. The Dominican Republic argues that Costa Rica has not identified a legal basis for its claim
under Article 2.4 because its argument "actually refers to the exclusion of two export tra nsactions
from the export price" .37 The Dominican Republic therefore considers that Costa Rica's claim does
not refer to the comparison, but rather to the establishment of the export price. In this regard, the
Dominican Republic is of the view that Article 2.4 "does not refer to the determination of the normal

33 Diccionario de la Real Academia Española, definition of "equidad" ("fairness"),
https://dle.rae.es/equidad (accessed 19 April 2023), definition No. 5.
34 Panel Report, Pakistan — BOPP Film (UAE), appealed 22 February 2021, para. 7.197.
35 Costa Rica's opening statement at the second meeting of the Panel, para. 13.
36 Costa Rica's opening statement at the second meeting of the Panel, para. 13.
37 Dominican Republic's first written submission, para. 125.

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value and the export price, but only to the nature of the comparison once both have been
established".38 Moreover, the Dominican Republic claims that the determination of the normal value
and the expo rt price is regulated by other sub -paragraphs of Article 2, referring specifically to
Article 2.3 as the provision governing the determination of the export price.39 Given that Costa Rica
did not make any claim under Article 2.3, the Dominican Republic considers that "[t]he argument of
Costa Rica in favour of the exclusion of certain export prices from the determination of the export
price is therefore erroneous and has no legal basis in Article 2.4".40
7.30. The Dominican Republic has cited the Egypt - Steel Rebar41 and EU - Footwear (China) panel
reports to support its argument that Article 2.4 does not refer to the establishment of the export
price and that "[n]othing in [this provision] suggests that the fair comparison requirement provides
guidance with respe ct to the determination of the component elements of the comparison to be
made".42
7.31. First, we observe that, while Article 2.3 addresses the establishment of the export price, it is
limited in scope, applying to the limited situations described in that article, namely "[i]n cases where
there is no export price or where it appears to the authorities concerned that the export price is
unreliable because of association or a compensatory arrangement between the exporter and the
importer or a third party". In these cases, the authority may take measures to construct the export
price on the basis of the price at which the imported products are first resold to an independent
buyer, or if the products are not resold to an independent buyer, or not resold in the condit ion as
imported, on such reasonable basis as the authorities may determine. In this regard, we do not see
how Article 2.3 can adequately address all of the issues that may arise in relation to the export price
used in a comparison to determine a margin of dumping.
7.32. Contrary to the Dominican Republic's argument, as discussed below, we consider the issue of
whether an authority makes a fair comparison under Article 2.4 to be directly related to the issue of
the individual sales selected to establish the normal value and the export price. In other words, the
Dominican Republic's argument does not address the nature of the issue raised by Costa Rica's
claim. That is, Costa Rica's arguments are not limited to the components of the comparison, but
rather they also refer to the CDC's comparison of export sales transactions to domestic sales
transactions in Costa Rica's home market . I n particular, the CDC selected the set of export
transactions that would form the basis of the representative average export price . The CDC also
requested information on domestic transactions and used these as the basis for the normal value
for comparison purposes and to establish a margin of dumping . C osta Rica has also submitted
arguments as to why the CDC's calculation was biased and therefore not "fair".43
7.33. In the light of the foregoing, we reject the Dominican Republic's argument that Costa Rica
has not identified a legal basis for its claim under Article 2.4, and, as a result, we will now consider
whether Costa Rica has established its claim that the CDC acted inconsistently with Article 2.4 by
including exports invoiced prior to the POI in its calculation of the export price.
7.3.3.2 Whether the CDC made a comparison in respect of sales made at as nearly as
possible the same time.
7.34. We begin our evaluation with Costa Rica's claim under the second sentence of Article 2.4 that
the CDC did not made a comparison "in respect of sales made at as nearly as possible the same
time".

38 Dominican Republic's second written submission, para. 14.
39 Dominican Republic's first written submission, paras. 90, 125 and 133-134.
40 Dominican Republic's first written submission, para. 125.
41 Dominican Republic's response to Panel question No. 70, para. 13 (referring to Panel Report,
Egypt - Steel Rebar, paras. 7.333-7.335).
42 Dominican Republic's first written submission, para. 133 (citing Panel Report, EU — Footwear (China),
para. 7.263).
43 Costa Rica argues that in cases where the cost of the feedstock is increasing and this cost has a
significant effect on the price of the end product, using a POI for the export price that predates the normal
value POI tends to make an affirmative determination of dumping, as well as a higher margin, more likely. This
is because the export price in the earlier POI will tend to be lower (reflecting the lower cost of the feedstock)
than the normal value in the later POI. (Costa Rica's second written submission, para. 40).

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7.35. Costa Rica's claim is based on its argument that the CDC used tw o different periods to
establish the export price and the normal value. Owing to this inconsistency, Costa Rica states that
the CDC failed in its duty to make a comparison between the export price and the normal value "in
respect of sales made at as nearly as possible the same time" . In particular, Costa Rica considers
that the requirement to make the comparison "in respect of sales made at as nearly as possible the
same time" makes it clear that the benchmark that an authority must take into account for
comparison purposes is the date of sale .44 In this regard, Costa Rica indicates that the
second sentence of Article 2.4 refers to the dates of sale as close "as possible" ("más" in the Spanish
version of the Agreement), and considers that "[t]he use of the t erm 'más' is an express indication
that the greatest degree of temporal proximity is required".45
7.36. Costa Rica also considers that "[t]he date of sale is the date when the material terms of the
sale are established" .46 Costa Rica bases its argument on footno te 8 of the
Anti-Dumping Agreement, which stipulates that "[n]ormally, the date of sale would be the date of
contract, purchase order, order confirmation, or invoice, whichever establishes the material terms
of sale" . W hile footnote 8 refers to the "date o f sale" in Article 2.4.1, which regulates the
circumstances of the comparison mentioned in Article 2.4 when this requires a conversion of
currencies, Costa Rica considers that footnote 8 forms an integral part of Article 2 and provides
context for understanding the concept of "sales made" in Article 2.4.47 Costa Rica considers the use
of the word "[n]ormally" ("[p]or regla general" in the Spanish version) precisely to indicate that the
provisions of the footnote are generally applicable.48
7.37. Costa Rica has submitted to this Panel the contract dated 1 November 201649 and the invoice
dated 13 December 201650 that concern the bars exported to the Dominican Republic on the vessel,
the Thorco Logic . C osta Rica argues that the material terms of sale were set out in those
two contracts, which demonstrates that the material terms for the sale transported on the vessel,
the Thorco Logic, were established "no later than December 2016".51 Moreover, Costa Rica argues
that the material terms of the sale tran sported on the vessel, the Suzie Q, "were set in the sales
invoice, which is from 2 7 April 2017".52 Costa Rica therefore maintains that the material terms for
the sales transported in the vessels, the Thorco Logic and the Suzie Q, "were set prior to the POI".53
Costa Rica also submits that ArcelorMittal provided this information to the CDC during the
investigation specifically to point out that the sales in the two cases were agreed and made prior to
the beginning of the POI, but that the CDC failed to take this information into account.54

44 Costa Rica's second written submission, para. 29.
45 Costa Rica's opening statement at the second meeting of the Panel, para. 16.
46 Costa Rica's second written submission, para. 30.
47 Costa Rica claims that "if the negotiators had wanted to limit the scope of application of the footnote,
they would have used other language, such as, for example, 'for the purposes of this sub-paragraph', similar to
the language used in footnote 11". Costa Rica continues to argue that "even if footnote 8 were only directly
applicable under Article 2.4.1, it would constitute context for the purposes of interpreting the second sentence
of Article 2.4". (Costa Rica's opening statement at the second meeting of the Panel, para. 14; and
second written submission, para. 31.
48 Costa Rica's second written submission, para. 31.
49 Contract dated 1 November 2016 (Exhibit CRI-14 (BCI)).
50 Invoice No. W37441 dated 13 December 2016 (Exhibit CRI-15 (BCI)).
51 In particular, Costa Rica argues that:
"[T]he contract dated 1 November establishes, among other things [[***]]".
(Costa Rica's second written submission, para. 32; contract dated 1 November 2016
(Exhibit CRI-14 (BCI))).
Costa Rica also argues that "[[***]]". (Costa Rica's second written submission, para. 32;
invoice No. W37441 dated 13 December 2016 (Exhibit CRI-15 (BCI))).
52 Costa Rica's second written submission, para. 32. See also Costa Rica's opening statement at the
second meeting of the Panel, para. 15.
53 Costa Rica's opening statement at the second meeting of the Panel, para. 15.
54 Costa Rica's first written submission, para. 36; and comments on the Dominican Republic's response
to Panel question No. 69, para. 2. Costa Rica maintains that the Dominican Republic has failed to provide any
evidence that rebuts the claim that the material terms of the Thorco Logic and Suzie Q sales were set in
December 2016 and on 27 April 2017, respectively. (Costa Rica's second written submission, para. 34; and
opening statement at the second meeting of the Panel, para. 15).

BCI deleted, as indicated [[***]]

7.38. In contrast, to determine the normal value, Costa Rica argues that the CDC used the invoice
dates as a benchmark, and the invoices used were issued between 2 May 2017 and 30 April 2018.55
Costa Rica thus submits that the difference between the date of sale of the exports on the
Thorco Logic, and the first sale used to calculate the normal value "is at least five months" .
Costa Rica maintains that this is "a significant difference" and that t he sales made in
December 2016, on the one hand, and in May 2017, on the other, are not "sales made at as nearly
as possible the same time" within the meaning of Article 2.4 . Costa Rica states that "[i]f the CDC
defined the POI as starting on 1 May 2017, and used invoices for sales made in Costa Rica from
2 May, the export sales made at as nearly as possible the same time would be those made on 2 May
or possibly 1 May 2017".56 Costa Rica thus notes that "even in the case of the sale [of exports ]
shipped on the Suzie Q, these are not sales made at as nearly as possible the same time".57
7.39. The Dominican Republic disagrees with Costa Rica's interpretation of Article 2.4 that the CDC
failed to comply with its duty to make the dumping calculation by means of a fair comparison of the
export price and the normal value, pursuant to Article 2.4 of the Anti-Dumping Agreement.
7.40. In this connection, the Dominican Republic maintains that "[nothing in] Articles 2.1 or 2.4 …
require[s] an investigating authority to use the date of the contract or of an invoice, let alone an
invoice issued prior to the entry into the country of the importing market, to determine which
transactions must be included (or not) in its dumping analysis".58 The Dominican Republic disagrees
with Costa Ri ca's interpretation that the reference to "sales" in Article 2.4 expressly refers to the
"date of sale" and that it prohibits an authority from basing the export price calculation on the entry
date of the export transaction. The Dominican Republic considers the second sentence of Article 2.4
to refer to "sales made" in a general sense, i.e. to export sales and normal value sales made at the
same time, and in no way indicates the use of a specific date of sale.59 The Dominican Republic also
points out that Article 2.1 refers to the product under investigation as "introduced into the commerce
of another country at less than its normal value".60
7.41. Moreover, the Dominican Republic rejects Costa Rica's argument that the reference to the
"date of sale" in footnote 8 of Article 2.4.1 applies to the interpretation of Article 2.4 . F or the
Dominican Republic, the reference to the "date of sale" is understood in the context of Article 2.4.1
in relation to the determination of the exchange rate in view of exchange rate vol atility, but it is
neither relevant nor applicable to the broader term "sales" in Article 2.4 .61 The Dominican Republic
also disagrees that the use of the phrase "[ p]or regla general " in the Spanish version of the
Agreement (usually translated as "as a general rule" in English) establishes that footnote 8 is a rule
of general application. Rather, the Dominican Republic argues that this footnote "[r]efers to what
would 'normally' (as in the English version of the Agreement) be the case … and not to what is t he
general rule".62 The Dominican Republic considers it "significant" that footnote 8 does not appear in
Article 2.4 when the term "sales" occurs and maintains that "[i]f the drafters had wanted Article 2.4
to be applied more generally, they would not have placed the footnote [just after] the term 'date of
sale' in Article 2.4.1" .63 The Dominican Republic also highlights that in the context of a currency
conversion, "footnote 8 still provides a large degree of flexibility and does not impose a specific
criterion, giving the authority the option of using several points in time for the purposes of carrying
out the currency conversion".64

55 Costa Rica's response to Panel question No. 5; table E-3: sales of corrugated steel bars in Costa Rica
(Exhibit CRI-22 (BCI)); and Costa Rica's second written submission, para. 36. See also Costa Rica's
first written submission, paras. 50-52 and 63.
56 Costa Rica's second written submission, para. 36.
57 Costa Rica's second written submission, para. 36. See also Costa Rica's first written submission
para. 63.
58 Dominican Republic's first written submission, para. 75. See also Dominican Republic's first written
submission, paras. 81, 89, 107, 113 and 125; and second written submission, para. 14.
59 Dominican Republic's first written submission, para. 130.
60 Emphasis added.
61 Dominican Republic's first written submission, para. 130; second written submission, paras. 27-32;
and responses to questions No. 8, paras. 17-19; No. 71, paras. 16-20; and No. 72, paras. 21-24.
62 Dominican Republic's second written submission, para. 31.
63 Dominican Republic's second written submission, para. 29; and response to Panel question No. 8,
para. 17.
64 Dominican Republic's second written submission, para. 30.

BCI deleted, as indicated [[***]]

7.42. With respect to the investigation, the Dominican Republic alleges that the criterion used by
the CDC to include the transactions in the calculation of the export price was compatible with, and
also reflects, the text of Article 2.1. In particular, the Dominican Republic expects that the CDC duly
complied with Articles 2.1 and 2.4 when: (a) it established a POI of 12 months; (b) this period was
"close" to the date of initiation ; and (c) it includes all of the sales that entered the country during
this POI for the purposes of its dumping determination "using a reasonable and systematically
applied criterion" .65 On this lat ter point, the Dominican Republic is of the view that "the CDC's
approach was consistent and reasonable", as the CDC "used the same period for both domestic
market and export sales" .66 In deciding which sales are within the POI, the Dominican Republic
maintains that "[w]hat matters is that a consistent and reasonable approach is taken to avoid the
risk of distortion in the analysis".67
7.43. The Dominican Republic also emphasized that the CDC only chose to use the exact data
provided by ArcelorMittal, including t he Thorco Logic and Suzie Q sales, which demonstrates that
ArcelorMittal recognized the date of entry of the merchandise as a determinative criterion.68
7.44. We note in section 7.3.2 above that the first sentence of Article 2.4 requires the investigating
authority to ensure that the comparison between the export price and the normal value is "fair" .
Among other meanings, the term "fair" implies a lack of bias . A rticle 2.4 establishes certain
requirements that must be met to ensure that the comparison is fair. First, the authority must ensure
that the comparison is fair by making the comparison in respect of sales made at as nearly as
possible the same time, as required by the second sentence of Article 2.4. In addition, the authority
must consider differences, if any, which affect comparability, particularly elements that have an
impact on the price of transactions.
7.45. We do not agree with the Dominican Republic's statements that the CDC "used the same
period for both domestic market and export sales" 69, or that the CDC used a "reasonable" or
"systematically applied" criterion in the manner in which it decided which export sales and which
domestic sales belonged to the POI. As we explain below, we disagree with the Dominican Republic's
argument that the CDC complied with its duty to make the comparison between the export price
and the normal value "in respect of sales made at as nearly as possible the same time", in accordance
with the second sentence of Article 2.4.
7.46. As regards the facts on the record, in the anti -dumping questionnaire sent to ArcelorMittal,
the CDC requested, inter alia , "specific information on all export sales of the [product under
investigation] to the Dominican Republic during the POI".70 ArcelorMittal reported nine shipments to
the Dominican Republic of the product under investigation71 and explained that the criterion used to
include these shipments "was the entry of [the company's] sales to [the] Dominican Republic, in the
POI defined by the CDC for the dumping calculation".72
7.47. The parties do not disagree that the export sale shipped on the vessel, the Thorco Logic, was
invoiced for export on 3 1 March 2017, one month before the start of the POI, and was introduced
into the Dominican Republic on 1 7 May 2017. Similarly, the export sale shipped on the vessel, the
Suzie Q, was invoiced for export on 2 7 April 2017, three days before the start of the POI, and

65 Dominican Republic's second written submission, para. 11. See also Dominican Republic's first written
submission, paras. 112 and 125-126.
66 Dominican Republic's first written submission, para. 126.
67 Dominican Republic's first written submission, para. 89.
68 Dominican Republic's first written submission, para. 126; and second written submission,
paras. 12 and 21.
69 Dominican Republic's first written submission, para. 126.
70 CDC, Anti-dumping questionnaire for exporters (Exhibit DOM-4), p. 14. In this regard, it indicated
that "information is requested on imports ... falling exclusively within the POI, i.e. from 1 January 2015 to
31 December 2017 and a more recent period from 1 January to 30 April 2018". However, the parties agree
that the POI relating to the dumping determination was from 1 May 2017 to 30 April 2018. (CDC,
Anti-dumping questionnaire for exporters, (Exhibit DOM-4), p. 14; Dominican Republic's response to
Panel question No. 1, paras. 2-3.)
71 ArcelorMittal included the information requested on these exports in table D-3 in line with the format
requested. ArcelorMittal's anti-dumping questionnaire (Exhibit DOM-5 (BCI)), p. 28.
72 ArcelorMittal's anti-dumping questionnaire, (Exhibit DOM-5 (BCI)), p. 29.

BCI deleted, as indicated [[***]]

introduced into the Dominican Republic during the POI .73 These two shipments were therefore
invoiced for export before the start of the POI chosen by the CDC.
7.48. The parties also agree that, in establishing the information that would form the basis for
defining the normal value in the investigation, the CDC considered sales with invoices issued between
2 May 2017 and 20 April 2018.74
7.49. Although the Dominican Republic emphasizes that the CDC used the exact data provided by
ArcelorMittal in its questionnaire response, it also emerges from the record that ArcelorMittal
indicated to the CDC in its comments of 1 1 November 2019 that there was "an inconsistency in
relation to the information that will serve as the basis for determining the export price".75
7.50. As regards the CDC's decision to include th e sales shipped on the Thorco Logic and the
Suzie Q, ArcelorMittal argued that the CDC "should establish for each of the import shipments the
date on which [ArcelorMittal] made the sale of the merchandise to the buyer, and not the date of
entry into the Do minican Republic" .76 ArcelorMittal also noted that the evidence on the record
showed that the two shipments were invoiced outside the POI . In addition, it submitted that the
price of the main feedstock used, billets, had increased steadily in 2017, as indi cated in the
information provided on 3 0 August 2019. I t also submitted a table reflecting the price of billets
purchased by the company for the period from January 2017 to April 2017. The prices increased
by 11.6%.77
7.51. From the record, it can be concluded that ArcelorMittal also argued that the evidence provided
established that the sale shipped on the vessel, the Thorco Logic, was agreed in late 2016 when the
price was lower than the price in effect from May 2017, and in relation to this, it argues that "an
objective and unbiased authority could not include in the export price determination sales that were
made and agreed at prices in force between late 2016 and early 2017, without carrying out a
comparison with the normal value for that same period" .78 In its comments, ArcelorMittal made
explicit reference to the fact that Article 2.4 of the Anti -Dumping Agreement requires that the
comparison be made between the export price and the normal value at as nearly as possible the
same time. It therefore warned that "[c]ontrary [to Article 2.4], [the CDC] proposes including sales
outside the [POI] on the basis that [the sales] entered the Dominican Republic during that period",
thereby violating "the order to make the comparison with the normal value at as nearly as possible
the same time []" .79 ArcelorMittal also claimed that these considerations also applied to the sales
shipped on the vessel, the Suzie Q, the sale of which was made in April 2017.80
7.52. In its comments, ArcelorMittal highlighted that on 7 February 2019 it had provided a
calculation of the margin of dumping in which the determination of the export price did not take into
account the exports shipped on the Thorco Logic and the Suzie Q, and that, as a result, "the CDC
had ample notice of [its] argument so t hat if the CDC's decision was to include [those exports] in
the analysis, it had sufficient time and opportunity to request sales prices in the Costa Rican market
on dates close to those exports so as to make a fair comparison".81

73 ArcelorMittal's anti-dumping questionnaire, annex D-3 (Exhibit DOM-6 (BCI)); ArcelorMittal's
anti-dumping questionnaire (Exhibit DOM-5 (BCI)), p. 29. ArcelorMittal stated that the Suzie Q entered the
Dominican Republic "during the POI", without specifying the exact date. (ArcelorMittal's anti-dumping
questionnaire, (Exhibit DOM-5 (BCI)), p. 29).
74 The home-market sales are reflected in table E-3 in ArcelorMittal's response to the anti-dumping
questionnaire, as documented in Exhibit CRI-22 (BCI). These data correspond to the data submitted by the
Dominican Republic in Exhibit DOM-22 (BCI).
75 ArcelorMittal's position on the Essential Facts Report (Exhibit DOM-7 (BCI)), p 5.
76 ArcelorMittal's position on the Essential Facts Report (Exhibit DOM-7 (BCI)), p 6. (emphasis added)
77 ArcelorMittal's position on the Essential Facts Report (Exhibit DOM-7 (BCI)), pp. 6-7.
78 ArcelorMittal's position on the Essential Facts Report (Exhibit DOM-7 (BCI)), p 7.
79 ArcelorMittal's position on the Essential Facts Report (Exhibit DOM-7 (BCI)), p 8.
80 ArcelorMittal's position on the Essential Facts Report (Exhibit DOM-7 (BCI)), p 8.
81 ArcelorMittal's position on the Essential Facts Report (Exhibit DOM-7 (BCI)), p 8.

BCI deleted, as indicated [[***]]

7.53. In its final resolution, the CDC rejected ArcelorMittal's arguments on the sales shipped on the
Thorco Logic and the Suzie Q, reiterating its position that "there is no contradiction of the criteria
used to select the transactions considered for the calculation of the export price".82
7.54. As mentioned above, the CDC was thus aware of ArcelorMittal's concerns regarding the
inclusion of the exports shipped on the Thorco Logic and the Suzie Q in the calculation of the export
price, and, in particular, of its concern about the existence of an inconsistency if a comparison with
the normal value of the same period was not made.
7.55. We are of the view that the CDC failed to comply with the obligation in the second sentence
of Article 2.4 to make a comparison between the exp ort price and the normal value " in respect of
sales made at as nearly as possible the same time", given that it considered sales made in different
periods, one to determine the normal value and another to determine the export price . We also
understand that to properly ensure that the comparison is based on sales made at as nearly as
possible the same time, the Investigating Authority, after having established the POI, should have
chosen the sales on the basis of the same criteria . T his means that as the no rmal value was
established on the basis of the invoice date, the export price should have followed the same
approach.83
7.56. On the other hand, we note that the CDC correctly considered, in the context of initiating the
investigation, the information on export prices based on when the exports were introduced into the
commerce of the importing country, taking into account that it did not have information from the
producer/exporter at that time . T his would have also applied in the subsequent stages of the
investigation had the exporting producer ArcelorMittal, which offered its export prices, not come
forward.84
7.57. The Dominican Republic argues that, having identified export sales by dates of entry into the
Dominican Republic, "there is no equivalent on the domestic sales (normal value) side for the 'time
of entry' into the importing country" .85 The Dominican Republic is therefore of the view that
"[i]nevitably, a different criterion would be used" .86 The Dominican Republic also highlights that it
was ArcelorMittal that used different criteria to complete its anti -dumping questionnaire without
considering this difference problematic. However, whatever reason ArcelorMittal could have had to
provide information on the sales shipped on the Thorco Logic and the Suzie Q, we do not consider
this exempts the CDC from its obligations relating to its determination of dumping under Article 2.4.
7.58. The Dominican Republic argues that there is no clear legal basis in the text of the
Anti-Dumping Agreement on the need fo r "parallelism" in the criteria applied to both sides of the
comparison. In this regard, the Dominican Republic disagrees that the reference to dates of sale "at
as nearly as possible the same time", and, in particular, the use of the term "as possible" ("más" in
the Spanish version of the Agreement) serves as an express indication that the comparison in
Article 2.4 requires a greater degree of temporal proximity .87 The Dominican Republic states that
"the English version of this sentence, which refers to sales made 'at as nearly as possible the same
time'", indicates "a certain degree of flexibility".88 According to the Dominican Republic, this flexibility
is what enables an authority to designate a POI in which all sales can be compared by means of an
average. The Dominican Republic therefore claims that the concept of comparing sales made at as
nearly as possible the same time "is relevant, in particular when dealing with a comparison between
the normal value and the export prices on a transaction -to-transaction basis".89 In contrast, the

82 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 128. The CDC confirmed the
decision to include the Thorco Logic and Suzie Q exports to calculate the export price in the final resolution and
in the resolution on the appeal for reconsideration filed by ArcelorMittal. (Final Resolution (Exhibit CRI-2),
para. 138; Resolution on the appeal for reconsideration (Exhibit CRI-1), para. 75: "the [CDC] is of the view
that the criterion of the date of the entry of the imports adopted by the CDC in its Final Technical Report was
appropriate in the context of the investigation conducted").
83 We note that the European Union and Japan agree with our interpretation. (European Union's
third-party submission, para. 20; and Japan's third-party response to Panel question No. 2, para. 3.)
84 Initial Technical Report, (Exhibit CRI-6), para. 71.
85 Dominican Republic's second written submission, para. 21.
86 Dominican Republic's second written submission, para. 21.
87 Dominican Republic's response to Panel question No. 73, para. 26.
88 Dominican Republic's response to Panel question No. 73, para. 26.
89 Dominican Republic's response to Panel question No. 73, para. 26.

BCI deleted, as indicated [[***]]

Dominican Republic claims that this temporal aspect of the comparison does not have a particular
role to play in the methodology of a comparison between the weighted average normal value and
the weighted average export price.90
7.59. We note that the Dominican Republic refers to the panel report in US - Stainless Steel
(Korea)91 in support of its argument that the requirements of the second sentence are not relevant
when making a comparison between the weighted average export price and the weighted average
domestic sales (normal value) . A ccording to the logic of its argument, the nature of the
average-to-average comparison methodology allows for the comparison of transactions from
different periods throughout the POI. The logical premise implies that the requirement to compare
sales made at as nearly as possible the same time is f ulfilled when the authorities compare sales
made during the POI, irrespective of any difference between the sales made at the start of the POI
or the end of the POI.92
7.60. This observation on the use of averages, however, does not support its argument . The fact
that Article 2.4 allows for an average -to-average comparison does not mean that Article 2.4 does
not establish requirements in terms of the particular sales considered and used to calculate the
averages. The premise of the Dominican Republic's argument cannot be reconciled with the text of
the provision. We also find no support for this argument in US - Stainless Steel (Korea), to which
the Dominican Republic refers and which expressly concluded that:
[W]e consider that, in the context of weighted average to weighted average
comparisons, the requirement that a comparison be made between sales made at as
nearly as possible the same time requires as a general matter that the periods on the
basis of which the weighted average normal value and the weighted ave rage export
price are calculated must be the same.93
7.61. As discussed above, the use of different criteria to determine the normal value and export
price resulted in different time periods . H owever, the use of the weighted average -to-weighted
average comparison methodology does not allow the Investigating Authority to use different criteria
to establish which sales will be considered within the POI in order to determine both the normal
value and the export price. Accepting otherwise would mean compromising the fair comparison for
the purposes of the margin of dumping calculation.
7.62. We now turn to consideration of the details of the export sales shipped on the Thorco Logic
and the Suzie Q. Costa Rica has raised various arguments on when the material terms of the sa le
shipped on the Thorco Logic were set. In this regard, it argues that this sale was made "at the latest
in December 2016"94, i.e. well before the POI . C osta Rica also refers to the contract dated
1 November 201695 and to an invoice dated 13 December 201696 that concern the bars exported to
the Dominican Republic. Costa Rica seeks to support the importance of considering these contracts
by referring to footnote 8 of Article 2.4.1.97 Costa Rica has indicated that the price of the feedstock,
billets, was substantially lower at the end of 2016.98 Costa Rica argues that, in cases where the cost
of the feedstock is increasing and this cost has a significant effect on the price of the end product,
using a POI for the export price that predates the normal value PO I tends to make an affirmative
determination of dumping, as well as a higher margin, more likely. It is thought that this is because
the export price in the earlier POI will tend to be lower (reflecting the lower cost of the feedstock)
than the normal value in the later POI .99 For its part, the Dominican Republic disputes the content

90 Dominican Republic's response to Panel question No. 73, para. 26.
91 Dominican Republic's response to Panel question No. 73, paras. 27-28 (referring to Panel Report,
92 Dominican Republic's response to Panel question No. 73, para. 27.
93 Panel Report, US — Stainless Steel (Korea), para. 6.121. (emphasis added)
94 Costa Rica's second written submission, para. 32. Costa Rica refers to the contract dated
1 November 2016 (Exhibit CRI-14 (BCI)) and to invoice No. W37441 dated 13 December 2016 (Exhibit CRI-15
(BCI)), as mentioned in para. 7.37. above.
95 Contract dated 1 November 2016 (Exhibit CRI-14 (BCI)).
96 Invoice No. W37441 dated 13 December 2016 (Exhibit CRI-15 (BCI)).
97 See para. 7.36. above.
98 See para. 7.50. above.
99 Costa Rica's second written submission, para. 40.

BCI deleted, as indicated [[***]]

of these contracts100, and also rejects Costa Rica's interpretation of the relevance of footnote 8 101,
asking why it would be appropriate in this case to use the date of contract instead of the date of
export or of invoice.102
7.63. In this regard, it is noted that, mindful of the responses of Costa Rica and the
Dominican Republic that there is no information on the use of the contract date both for domestic
sales in Costa Rica and for other export sales to the Dominican Republic, we are of the view that the
parties' arguments concerning the date on which the material terms of sale were established are not
a relevant element in the application of Article 2.4 in this dispute.
7.64. For the reasons set out above, we conclude that the Dominican Republic acted inconsistently
with the second sentence of Article 2.4 of the Anti -Dumping Agreement because the CDC failed to
make a comparison between the export price and the normal value "in re spect of sales made at as
nearly as possible the same time", in accordance with that provision.
7.3.4 Exercising judicial economy in respect of certain claims under Articles 2.1 and 2.4
of the Anti-Dumping Agreement
7.65. A panel may refrain from examining one or more claims, in accordance with the principle of
judicial economy, if it is established that the same measure at issue is inconsistent with any of the
provisions of the covered agreement and if findings under the additional claims are not necessary to
resolve the dispute.
7.66. In this dispute, Costa Rica has made multiple claims under Articles 2.1 and 2.4 to challenge
the same measure, related to the CDC's decision to include in the determination of the export price
the s ales shipped the Thorco Logic and the Suzie Q, and the impact of their inclusion on the
calculation of the margin of dumping. Costa Rica's claims argue that including information on those
sales, which does not correspond to the POI, affects the comparability of export prices and domestic
sales prices and, as a result, skews the determination of dumping.
7.67. Costa Rica has stated that should the Panel find that the CDC failed to comply with Article 2.4
because it did not use sales made as nearly as possible at t he same time, the Panel could exercise
judicial economy with respect to its argument that the comparison was not fair .103 Costa Rica also
confirmed that its claim on adjustments under the third sentence of Article 2.4 is presented as an
alternative and that the Panel does not have to address these arguments should it find that the CDC
failed to comply with Article 2.4 because it did not use sales made at as nearly as possible the same
time.104
7.68. Costa Rica has also noted that in the event that the Panel determi nes that the CDC failed to
comply with Article 2.4, judicial economy could be exercised with respect to its claim under
Article 2.1.105

100 The Dominican Republic claims, for example, that the contract dated 1 November 2016 in
Exhibit CRI-14 (BCI) relates to the transformation of billets into corrugated steel bars, and that it does not
include an agreement on the export price. It also claims that the price of billets indicated in the invoice in
Exhibit CRI-15 (BCI) was not part of the contract of 1 November 2016, and that it is not clear that the contract
was necessarily made at arm's length. (Dominican Republic's first written submission, para. 118.)
101 See para. 7.41. above.
102 Dominican Republic's first written submission, para. 117 ("Costa Rica fails to explain why it would be
appropriate in this case to use the date of contract instead of the date of export or of invoice").
103 Costa Rica is of the view that the second sentence of Article 2.4 refers to two parameters that must
be the same for the comparison to be fair, and that if an authority fails to comply with the second sentence, it
also fails to comply with the first sentence. Costa Rica holds that a comparison may not be fair owing to
circumstances not expressly stipulated in the second sentence. However, in this case, Costa Rica confirms that
its arguments under the first sentence of Article 2.4 relate solely to the dates of sale of the export sales and
the domestic sales. (Costa Rica's response to Panel question No. 68, para. 7).
104 Costa Rica's response to Panel question No. 68, para. 8.
105 Costa Rica considers that, while Article 2.4 refers to a fair comparison and Article 2.1 refers more
generally to "comparable" prices, if the prices used result in a comparison that is not fair, this would be the
basis for considering that the prices are not comparable. However, Costa Rica asserts that the comparability
referred to in Article 2.1 would be broader and could cover situations in which the price comparison does not
necessarily lack fairness. (Costa Rica's response to Panel question No. 66, paras. 4-5).

BCI deleted, as indicated [[***]]

7.69. In the light of the foregoing, we conclude that the Dominican Republic acted inconsistently
with the second sentence of A rticle 2.4, and we therefore exercise judicial economy in respect of
Costa Rica's other claims under Article 2.1, as well as under the first and third sentences of
Article 2.4.
7.3.5 Conclusion
7.70. For the reasons set forth above, we conclude that the Dominican Repu blic has acted
inconsistently with its obligations under Article 2.4 of the Anti -Dumping Agreement. In particular,
we conclude that the CDC failed to comply with the requirement in the second sentence of Article 2.4
to make the comparison between the export price and normal value "in respect of sales made at as
nearly as possible the same time", as it considered sales made in different periods, one to determine
the normal value and another to determine the export price . We exercise judicial economy with
respect to the other claims made by Costa Rica under Article 2.1 and under the first and
third sentences of Article 2.4.
7.4 Costa Rica's claims under Article 2.2.1 of the Anti-Dumping Agreement: cost test
7.4.1 Introduction
7.71. Before determining the normal value, the CDC assessed whether the exporting company,
ArcelorMittal, made sales of the like product in Costa Rica below cost for G60 S and W products of
diameters 3, 4, 6, and 8. The CDC determined that the identified below -cost sales accounted for
54% of total sales, and therefore, eliminated those sales from the normal value calculation.106
7.72. Before the final determination, ArcelorMittal requested the CDC that it perform its analysis of
the cost test on the basis of monthly per unit costs rather than the annual weighted average costs.
In particular, ArcelorMittal explained that the costs and sales prices of the product under
investigation in the Costa Rican market increased during the POI, and that the comparison between
a weighted average cost that did not reflect the actual costs incurred and associated with production,
and with sales on a transaction -by-transaction basis, skewed the analysis. 107 However, the CDC
reaffirmed its initial decision that the per unit costs of production provided by ArcelorMittal, in
annex F-4.1 of the exporter's questionnaire form, were appropriate for the purpose of conducting
the cost test.108
7.73. Costa Rica claims that the CDC's analysis is deficient in multiple respects. Firstly, Costa Rica
argues that Article 2.2.1 requires that the investigati ng authority, before excluding sales for not
being in the ordinary course of trade by reason of price, determine that such sales are made:
(a) within an extended period of time; (b) in substantial quantities; and (c) are at prices which do
not provide for the recovery of all costs within a reasonable period of time. According to Costa Rica,
there is no "indication" 109 in the final determination that the CDC concluded that below -cost sales
were made within an extended period of time or at prices which did not provide for the recovery of
all costs within a reasonable period of time.
7.74. Secondly, Costa Rica claims that the CDC violated Article 2.2.1 because the CDC failed to
properly consider whether prices were below per unit costs "at the time of sale " pursuant to the
second sentence of Article 2.2.1. In this regard, Costa Rica notes that the CDC chose to use an
annual weighted average cost in its comparison with prices by transaction, which resulted in the
exclusion of certain sales at the beginning o f the POI, even though these sales were made at

106 Essential Facts Report (confidential version) (Exhibit DOM-2 (BCI)), paras. 172-173; and Final
Technical Report (confidential version) (Exhibit DOM-3 (ICC)), paras. 207-208.
107 ArcelorMittal's position on the Essential Facts Report (Exhibit DOM-7 (BCI)), pp. 12-13.
108 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 193. See also the
resolution on the appeal for reconsideration (Exhibit CRI-1), paras. 92-95.
109 Costa Rica's second written submission, para. 57. In particular, Costa Rica argues that "the Final
Technical Report does not show that two of the three conditions set out in Article 2.2.1 were met".
(Costa Rica's second written submission, para. 65).

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above-cost prices at the time of sale. Costa Rica adduces that the CDC had monthly costs that would
have allowed it to determine whether the sales price was below per unit costs at the time of sale.110
7.75. The Dominican Republic responds that Costa Rica's claims are not supported by the facts on
the record and have no legal basis. In particular, the Dominican Republic notes that the CDC properly
determined that a significant number of the transactions available to it (54% of the total) were below
cost throughout the POI, and that the CDC correctly determined that these sales did not provide for
the recovery of the costs within a reasonable period of time on the basis of an average annual
cost.111 The Dominican Republic further argues that Article 2.2.1 does not require an investigating
authority to explicitly reflect in its final determination each step of the below -cost sales test
analysis.112 Lastly, the Dominican Republic maintains that there is no legal basis in Ar ticle 2.2.1 to
support Costa Rica's argument that the CDC was required to use monthly cost data rather than
annual cost data.113
7.76. We now turn to Costa Rica's claims under Article 2.2.1 of the Anti-Dumping Agreement. First,
we set out the applicable requireme nts of Article 2.2.1 (section 7.4.2 ). Second, we apply those
requirements to the facts of this case to assess whether the CDC acted inconsistently with
Article 2.2.1 in its use of an annual weighted average cost in the cost test (section 7.4.3.1 ). Third,
we consider Costa Rica's claim as to whether the CDC effectively deter mined that below-cost sales
were made within an extended period of time or at prices which did not provide for the recovery of
all costs within a reasonable period of time (section 7.4.3.2 ).
7.4.2 Requirements applicable to Article 2.2.1 of the Anti-Dumping Agreement
7.77. Article 2.2.1 provides that:
Sales of the like product in the domestic market of the exporting country or sales to a
third country at prices below per unit (fixed and variable) costs of production plus
administrative, selling and general costs may be treated as not being in the ordinary
course of trade by reason of price and may be disregarded in determining normal value
only if the authorities3 determine that such sales are made within an extended period
of time4 in substantial quantities5 and are at prices which do not provide for the recovery
of all costs within a reasonable period of time. If prices which are below per unit costs
at the time of sale a re above weighted average per unit costs for the period of
investigation, such prices shall be considered to provide for recovery of costs within a
reasonable period of time.

3 When in this Agreement the term "authorities" is used, it shall be interpreted as meaning
authorities at an appropriate senior level.
4 The extended period of time should normally be one year but shall in no case be less than
six months.
5 Sales below per unit costs are made in substantial quantities when the authorities establish that
the weighted average selling price of the transactions under consideration for the determination of
the normal value is below the weighted average per unit c osts, or that the volume of sales below
per unit costs represents not less than 20 per cent of the volume sold in transactions under
consideration for the determination of the normal value.
7.78. Article 2.2.1 establishes a methodology for determining whether be low-cost sales may be
treated as not being made in the ordinary course of trade. As explained in the first sentence, an
investigating authority is permitted to determine whether there are sales of the like product in the
domestic market of the exporting co untry at prices below per unit (fixed and variable) costs of

110 Costa Rica's first written submission, paras. 76-77.
111 Dominican Republic's first written submission, paras. 168-175; and second written submission,
para. 40.
112 Dominican Republic's second written submission, para. 48.
113 Dominican Republic's first written submission, paras. 186-187; and second written submission,
paras. 42-43.

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production plus administrative, selling, and general costs. Such below-cost sales may be treated as
not being in the ordinary course of trade and may be disregarded in determining normal value.
Before excluding these sales, the investigating authority must determine that such below-cost sales
are made: (a) "within an extended period of time"; (b) "in substantial quantities"; and (c) "at prices
which do not provide for the recovery of all costs within a reasonable period of time".
7.79. We consider that the three conditions set out in Article 2.2.1 are cumulative, so the
investigating authority must make an affirmative determination on each condition.
7.80. In relation to the first condition (if below -cost sales are made "within an extended period of
time"), the definition of "extended period of time" in footnote 4 of the Anti-Dumping Agreement is
that it should "normally be one year but shall in no case be less than six months". The authority can
therefore esta blish that below -cost sales are made "within an extended period of time" when
considering whether there are below-cost sales during the POI. Furthermore, the specific definition
in footnote 4 indicates that the authority does not need to determine the duration of the "extended
period" per se under the circumstances of a given investigation.
7.81. In relation to the second condition (if the below -cost sales are made "in substantial
quantities"), footnote 5 of the Anti -Dumping Agreement defines when below -cost sale s are
considered to have been made "in substantial quantities". This condition is met when the authority
establishes that the "the weighted average selling price of the transactions under consideration for
the determination of the normal value is below the weighted average per unit costs", or alternatively,
the authority may establish that the volume of sales below per unit costs "represents not less than
20 per cent of the volume sold" in transactions under consideration for the determination of the
normal value.
7.82. Lastly, in relation to the third condition, the authority must determine that sales were made
"at prices which do not provide for the recovery of all costs within a reasonable period of time" before
excluding sales not made in the ordinary course of trade from the determination of the normal value.
The Agreement does not define the phrase "reasonable period of time". However, the second
sentence of Article 2.2.1 defines the method for determining when it is appropriate to consider that
prices do pro vide for recovery of costs within a reasonable period of time. In this regard, that
provision states: "If prices which are below per unit costs at the time of sale are above weighted
average per unit costs for the [POI], such prices shall be considered to provide for recovery of costs
within a reasonable period of time". Therefore, if an authority determines that the circumstances
described in the second sentence of Article 2.2.1 apply, the authority must not exclude such sales
from the normal value determination.
7.4.3 Whether the Dominican Republic acted inconsistently with Article 2.2.1 of the
Anti-Dumping Agreement
7.83. Costa Rica's claims under Article 2.2.1 relate to two main issues, namely: (a) whether the
CDC's decision to conduct the cost test using an annual weighted average cost instead of using
monthly average costs is consistent with Article 2.2.1; and (b) whether it is clear from its
determination that the CDC "effectively" complied with the requirements of Article 2.2.1 that
below-cost sales had been made "within an extended period of time" and "at prices which [did] not
provide for the recovery of all costs within a reasonable period of time". We will address both of
these issues below.
7.4.3.1 Use of an annual weighted average cost in the cost test
7.84. Costa Rica claims that the CDC failed to properly consider whether prices were below per unit
costs "at the time of sale" pursuant to the second sentence of Article 2.2.1, as the CDC used an
annual weighted average cost instead of using monthly average costs.
7.85. In particular, as ArcelorMittal did in the investigation, Costa Rica refers to the information in
the file provided by ArcelorMittal, and refers to the information supplied by the applicant
Gerdau Metaldom. In this regard, Costa Rica adduces that such information s howed costs and,
consequently, domestic prices trending upwards, during the POI, so the CDC methodology
disregarded many transactions in the early part of the POI for reportedly being below the annual

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average cost.114 Costa Rica also states that excluding lower priced transactions resulted in a higher
normal value than would have been obtained if monthly average costs had been used.115 Moreover,
in Costa Rica's view, centring the comparison exercise around an annualized unit cost, as the CDC
did, does not ref lect the costs actually incurred on a monthly basis with the sales prices in each
transaction, and therefore such an exercise does not provide objective findings adjusted to the
circumstances at the time of sale.116 Above all, Costa Rica argues that the CDC had information on
monthly average costs that would have allowed it to properly determine whether prices were below
per unit costs at the time of sale.117
7.86. In short, for Costa Rica, the methodology used by the CDC disregarded a large number of
sales in the early part of the period when prices were lower, which meant that the normal value was
higher than it would have been had an analysis been performed using monthly per unit costs.
7.87. The Dominican Republic responds that Costa Rica's claim has no legal basis, emphasizing that
Article 2.2.1 does not set out a specific methodology for determining whether a particular sale is
made in the ordinary course of trade. The Dominican Republic also notes that, to the extent that the
costs relate to the period during which the sales at issue were made, Article 2.2.1 does not require
an authority to use daily, weekly, monthly or annual cost data. Therefore, according to the
Dominican Republic, Article 2.2.1 leaves it to an authority's discretion to determine whether sales
were made below cost, and in such circumstances, the Dominican Republic submits that the CDC's
examination was sufficient, as the CDC assessed prices in the light of the weighted costs for the
POI.118
7.88. During the investigation, ArcelorMittal first became aware of the outcome of the cost test in
the Essential Facts Report. In its comments of 11 September 2019, ArcelorMittal requested the CDC
that it revise its analysis of the cost test, basing the analysi s not on the annual costs that
ArcelorMittal submitted in annex F-4.1 of its response to the form, but on the monthly per unit costs.
ArcelorMittal explained that both the costs and the sales prices of the like product in the Costa Rican
market increased during the POI, with the result that the use of an annual weighted average cost
could not reflect the actual production costs incurred, therefore skewing the analysis.119 ArcelorMittal
explained the issue in the following terms:
[C]omparing a weighted average per unit cost, which does not reflect the actual costs
incurred on a monthly basis, with transaction-by-transaction sales prices, undoubtedly
creates a biased methodology, which will result in: (a) a higher volume of sales from
the first months of the period being rejected, as this annualized per unit cost is higher
than the actual cost incurred, and at the same time, the prices in those first months are
lower, given the lower cost of billets; and (b) fewer sales from the last few months being
rejected. However, the prices of the remaining sales are higher, because of the higher
billet prices.
Evidently, a comparison of an annualized per unit cost, with transaction-by-transaction
prices, when both prices and costs are increasing, is consistent with a methodology that
is neither objective nor unbiased.120

114 Costa Rica's first written submission, para. 76 (referring to ArcelorMittal's position on the Essential
Facts Report (Exhibit CRI-10), pp. 12-13 and 15; Final Technical Report (Exhibit CRI-3), table 5; and para. 351
(referring to the confidential version of the supplemental information form filed by the domestic industry on
11 September 2018, p. 2).
115 Costa Rica's first written submission, para. 76 (referring to ArcelorMittal's position on the Essential
Facts Report (Exhibit CRI-10), pp. 12-13 and 15).
116 Costa Rica's first written submission, para. 76 (referring to ArcelorMittal's position on the Essential
Facts Report (Exhibit CRI-10), pp. 12-13 and 15).
117 Costa Rica's second written submission, para. 59 (referring to ArcelorMittal's position on the Essential
Facts Report (Exhibit CRI-10), p. 15; and minutes of the verification visit (21 November 2018)
(Exhibit CRI-11), p. 6).
118 Dominican Republic's first written submission, paras. 148-149, 152 and 157-159; opening statement
at the first meeting of the Panel, para. 21; second written submission, paras. 41, 42 and 49; and opening
statement at the second meeting of the Panel, para. 21.
119 ArcelorMittal's position on the Essential Facts Report (Exhibit DOM-7 (BCI)), pp. 12-13.
120 ArcelorMittal's position on the Essential Facts Report (Exhibit DOM-7 (BCI)), p 13.

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7.89. ArcelorMittal offered to verify the monthly costs for the CDC on the basis of the full general
ledger already submitted. ArcelorMittal also provided, in annex 1 to its comments, the total monthly
per unit costs for the POI for the rod diameters in question.121
7.90. The CDC, for its part, explained that the average costs previously submitted by ArcelorMittal
in annex F-4.1 had been considered appropriate for the purpose of conducting the cost test. The
CDC therefore rejected ArcelorMittal's request to revise the cost test analysis.122
7.91. The Dominican Republic submits that it was reasonable for the CDC to base its cost test
analysis on the information that ArcelorMittal had provided regarding annual costs in annex F-4.1 of
its form. The Dominican Republic notes that the information had been verified by the CDC. It also
stated that the CDC explained why it was not "appropriate" to use the other EBITDA -COST
data provided by ArcelorMittal to perform the cost test. I n particular, the CDC indicated that the
EBITDA-COST data were not necessarily comparable to a total accounting cost, which included all
direct and indirect costs related to the manufactured product. Therefore, the CDC did not use the
sales data contained in annex E-3 to ArcelorMittal's form.123
7.92. The Dominican Republic considers it relevant to point out that ArcelorMittal contested the
CDC's methodology, and that ArcelorMittal only provided the CDC with data concerning monthly
non-EBITDA costs after becoming aware of the Essential Facts Report, i.e. more than one year after
the verification visit. The Dominican Republic maintains that it was not possible to carry out the
verification visit again, especially in the light of the issues that had arisen between ArcelorMittal and
a cost expert, which led to the cancellation of a second verification visit.124
7.93. The Dominican Republic also rejects the argument that there was anything in particular about
the circumstances that would have invalidated the decision to examine the prices in the light of the
weighted costs for the POI. The Dominican Republic considers that, in general, the use of an
annualized average is "entirely acceptable and even the norm" 125, and if costs increase during the
POI, it would not be surprising to see more below-cost sales in the early part of the period compared
to the latter part. The relevant question regarding the use of an annual cost average is not whether
there was a higher incidence of below -cost sales in the POI. Rather, the Dominican Republic
considers that what might be relevant is whether the domestic sales transactions were
predominantly made in a specific period rather than the entire POI. Only in that scenario might it be
necessary to create different periods to examine below -cost s ales. As such, according to the
Dominican Republic, it is the distribution and concentration of sales in general, not whether an
authority identifies more below -cost sales during a particular period of the POI. 126 However, the
Dominican Republic argues that this was not the situation that the CDC faced because sales of the
like product were not concentrated in a particular part of the period, rather the sales occurred
throughout the POI and their volume was relatively constant. Therefore, the Dominican Republic
considers that the use of an annual average was reasonable.127
7.94. Lastly, the Dominican Republic maintains that the billet cost data provided by ArcelorMittal in
its comments of 11 November 2019 "also did not immediately reveal an obvious difference in costs
that would have required the use of monthly cost data and comparisons".128

121 ArcelorMittal's position on the Essential Facts Report (Exhibit DOM-7 (ICC)), annex 1.
122 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 193. In response to the
application of definitive anti-dumping duties, ArcelorMittal filed an appeal for reconsideration, claiming that the
CDC's determination of below-cost sales was inconsistent with Article 2.2.1 of the Anti-Dumping Agreement. In
Resolution CDC-RD-AD-001-2020 of 17 March 2020, the CDC reaffirmed the decision that the average costs
submitted by ArcelorMittal in annex F-4.1 were appropriate for the purpose of conducting the cost test.
(Resolution on the appeal for reconsideration (Exhibit CRI-1), paras. 91-94).
123 Dominican Republic's comments on Costa Rica's response to Panel question No. 76, para. 20.
124 Dominican Republic's comments on Costa Rica's response to Panel question No. 76, para. 21.
125 Dominican Republic's response to Panel question No. 77, para. 35.
126 Dominican Republic's response to Panel question No. 77, paras. 35-36.
127 Dominican Republic's response to Panel question No. 77, para. 38. See also Dominican Republic's
opening statement at the first meeting of the Panel, para. 25; and second written submission, para. 51.
128 Dominican Republic's response to Panel question No. 77, para. 42; and comments on Costa Rica's
responses to Panel question No. 77, paras. 24 and 34

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7.95. Neither the fact that ArcelorMittal initially provided information on annual costs in annex F-4.1
or the fact that it only expressed concern about the CDC's analysis upon receipt of the Essential
Facts Report, are key to justifying the methodology used by the CDC. With regard to annex F-4.1,
ArcelorMittal provided costs for the POI and for certain previous years, in accordance with the
instructions for the anti-dumping form and the prescribed format for presenting the information in
table F-4.1. Annex F-4.1 of the form sent to ArcelorMittal specifically indicated that exporters should
provide their "total cost of production" for certain "financial years" and for the "POI". 129 The form
also indicates that "[t]he headings of the items in the table may be adapted to match the
nomenclature of your own cost accounting system; however, the same level of detail must be
retained".130 It was therefore not surprising that ArcelorMittal had submitted annual data.
7.96. With regard to the timing of ArcelorMittal's concerns, we consider that ArcelorMittal alerted
the CDC to its concerns when it first became aware of the results of the cost test in the Essential
Facts Report. At that time ArcelorMittal also provided the information on monthly costs and offered
to verify it with the information submitted previously.
7.97. We disagree with the Dominican Republic that the discretion under Article 2.2.1 is such that
it would have allowed the CDC to employ such a methodology.
7.98. The second sentence of Article 2.2.1 establishes that the authority must take two matters into
account: firstly, the authority must consider the prices in respect of the costs at the "time" of the
sale; and secondly, sequentially and if appropriate, the authority should compare the price with the
weighted average cost of the POI. The latter comparison with the annual weighted average
determines whether sales in the normal value calculation should be retained, even if the price of
such sales was low er than the costs "at the time of sale". If the initial comparison of the price to
costs at the time of sale shows that the price was above costs at the time of sale, the sale would
not be considered below cost and there would be no need to compare the pri ce against the annual
weighted average price. This is consistent with the first sentence of Article 2.2.1, which allows the
investigating authority to exclude from the normal value calculation sales that are at "prices below
per unit costs", provided that such sales meet the conditions of Article 2.2.1. In fact, any
determination of whether sales had been made at prices which did not provide for the recovery of
all costs within a reasonable time would be meaningless if prices and costs were not initially
compared at the time of sale.
7.99. Based on the foregoing, we consider that an investigating authority is required to use a
methodology that reasonably allows it to identify sales that are above costs "at the time of sale" so
as not to unduly exclude them from th e margin of dumping calculation. Therefore, in general, it
would be reasonable to use a methodology that takes into account the costs at the time of sale
determined on a basis other than the annual weighted average per unit cost. This is intended to
avoid the risk of excluding sales from the margin of dumping determination that were not in fact
below cost at the time of sale. We consider that the risk could be particularly high in circumstances
when production costs increase significantly during the POI. Ho wever, the parties 131 (and some
third parties132 to this dispute) have acknowledged that, in certain circumstances, the use of an
annual weighted average as a basis of comparison may be appropriate. In this regard, in situations
where costs, as well as prices, are relatively stable, an approach comparing transaction prices to an
average over the whole POI would not distort the analysis of whether transactions are below cost.
7.100. In the underlying investigation, we consider that the CDC was aware that production costs
had increased significantly during the POI. In view of this, the CDC, acting as an unbiased
investigating authority, should have considered the possibility of distort ion in its analysis based on
using the annual weighted average for the POI.

129 CDC, Anti-dumping questionnaire for exporters (Exhibit DOM-4), p. 40
130 CDC, Anti-dumping questionnaire for exporters (Exhibit DOM-4), pp. 25 and 40. (emphasis omitted)
131 In this regard, the Dominican Republic noted that a particularly unusual change in costs could arise
during part of the POI, which may exceptionally require the POI to be divided into two or more periods for the
purposes of a below-cost sales test. (Dominican Republic's opening statement at the second meeting of the
Panel, para. 22; and response to Panel question No. 77, paras. 37-40.)
132 United States' third-party response to Panel question No. 5, para. 9; European Union's third-party
submission, para. 25; and European Union's third-party response to Panel question No. 5, para. 7.

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7.101. First, we note that ArcelorMittal informed the CDC that the prices of the main feedstock
(i.e. billets) increased during the POI, and that consequently the sales prices of the product under
investigation in the Costa Rican market also increased. While this was raised by the applicant in the
context of the arguments on price suppression, the CDC already had information from the applicant
(Gerdau Metaldom) regarding increasing int ernational billet prices during the POI. As explained in
the Final Technical Report, Gerdau Metaldom, on 11 September 2018 (i.e. before the completion of
the verification visit and the publication of the Essential Facts Report), noted the following:
The Applicant indicated that, given the increases in international billet prices during the
[POI, and] it being the main feedstock for the production of rods, its domestic prices
did not decrease but were suppressed considerably and that, as a result of Costa Rican
imports at dumped prices, the domestic industry could not afford to increase its prices
in line with the increase in its production cost.
In addition, the Applicant argued that: " as of December 2017, there is evidence of a
13% increase in domestic indu stry's prices when compared to December 2016;
however, a 31% increase in billet prices was noted throughout the same period.
Similarly, the price of billets in April 2018 compared to April 2017 increased by 26%,
however, the price of rods in the domestic i ndustry's domestic market only increased
by 4% during this same period."133
7.102. Therefore, at a stage prior to the end of the investigation, the CDC became aware of the
increase in the international billet price and the product price during the POI, and not whe n
ArcelorMittal expressed its concerns upon first learning of the results of the cost test in the Essential
Facts Report.
7.103. Second, we consider that the CDC's own analysis also made evident the risk of distortion in
the cost test as shown in Exhibit DOM -22, a confidential Excel file, which the Dominican Republic
maintains is a contemporaneous working paper used by the CDC to carry out the cost test.
Costa Rica, for its part, contends that the file has no corroborating indication that it was part of the
record of the investigation and, independently, is an ex post explanation, which the Panel should
disregard.134 We consider that the fact that the file was not on the record does not presuppose that
the Investigating Authority did not perform the analysis. As thi s document shows, the CDC
revised the sales prices of all transactions included in the information submitted by ArcelorMittal in
annex F-4.1. As corroborated by the Dominican Republic in response to questions from the Panel135,
a significant proportion of s ales of all investigated products were found to be below cost (and
therefore excluded from the normal value determination) in the early months of the POI as compared
to later months. 136 As confirmed by the Dominican Republic's own analysis, the bulk of the sales
volume of G60 was found to be below cost and excluded from the beginning of the POI: 91% was
excluded in May 2007; 92% in June 2007; 82% in July 2007; and 91% in August 2007. The
proportion of sales determined to be below cost began to decline over the course of the investigation
to a point where the percentages that were excluded as below cost were: 35% of sales in
January 2018; 34% in February 2018; 6% in March 2018; and 2% in April 2018. As also
acknowledged by the Dominican Republic, while the monthly sales volume during the POI fluctuated
to some extent, the sales volume was relatively constant and sales were not negligible in any month
during the POI.137
7.104. We note that there is a correlation between the trend reflected in Exhibit DOM-22, as
mentioned in the preceding paragraph regarding the decreasing percentage of below-cost sales, and
the monthly per unit billet cost data during the POI provided by ArcelorMittal in its comments of
11 November.138 As reflected in the data provided by ArcelorMittal, during the first six months of the

133 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), paras. 351-352 (citing the
confidential version of the supplemental information form filed by the domestic industry on
11 September 2018, p. 2-3). (footnotes omitted)
134 Costa Rica's second written submission, para. 70.
135 Dominican Republic's response to Panel question No. 77, paras. 31 and 32.
136 We note the Dominican Republic's comment that only sales of G60 of specific diameters were
considered in the cost test analysis because the product exported to the Dominican Republic was G60 S steel
bars or rods of diameters 3, 4, 6, and 8. (Essential Facts Report (Exhibit CRI-4), para. 116)
137 Dominican Republic's response to Panel question No. 77, para. 38.
138 ArcelorMittal's position on the Essential Facts Report (Exhibit DOM-7 (BCI)), p. 15.

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POI (from May 2017 to October 2017), monthly billet costs for the different diameters were lower
than the annualized cost reported in annex F-4.1.139 The costs in the latter months were above the
annualized cost. The information contained in Exhibit DOM-22 also confirms this trend. The fact that
such high proportions of sales were excluded in the initial months of the POI at least indicates to an
investigating authority that there may be possible bias in the below-cost sales analysis.
7.105. On the basis of the facts set out above, we conclude that the CDC had information on the
increasing trend in the costs of the main feedstock and in the prices of the like product. Furthermore,
the CDC's own analysis shows that the vast majority of sales in the first half of the POI were below
cost. In these circumstances, the use of an annual average cost was not appropriate, as it resulted
in the CDC's analysis, for the purpose of determining the normal value, failing to take into account
a significant number of sales made in the first few months of the POI that were not in fact below
cost. Such a result skewed the normal value estimate upwards. We therefore find that the CDC failed
to act in an unbiased and objective manner when determining whet her prices were below per unit
costs at the time of sale, before concluding that the sales were not made in the ordinary course of
trade by reason of price, in accordance with Article 2.2.1.
7.106. We therefore conclude that the Dominican Republic acted inconsistently with Article 2.2.1 of
the Anti -Dumping Agreement when the CDC performed its cost test analysis using an annual
weighted average cost. In particular, the CDC failed to properly consider whether prices were below
unit costs "at the time of sale" pursua nt to the second sentence of Article 2.2.1, before excluding
those sales from the normal value determination. Nor do we consider that the CDC explained why it
was appropriate, in the circumstances of the underlying investigation, to have performed its analysis
using an annual weighted average cost.
7.4.3.2 Whether the CDC failed to determine that below-cost sales were made "within an
extended period of time" and "at prices which do not provide for the recovery of
all costs within a reasonable period of time"
7.107. Costa Rica claims that the CDC's determination is inconsistent with Article 2.2.1 of the
Anti-Dumping Agreement because there is no evidence demonstrating that the CDC actually
"determine[d]" that below-cost sales were made "within an extended period" and "at pr ices which
did not allow for the recovery of all costs within a reasonable period of time". 140 Costa Rica argues
that the conditions set out in Article 2.2.1 are cumulative and must be met, the CDC should thus
have made affirmative determinations on these elements before excluding domestic sales from the
normal value calculation.141 However, Costa Rica notes, that these determinations do not appear in
the Final Technical Report, notably in section 5.5.1 on "Proof of Cost", nor in the final
determination.142
7.108. The Dominican Republic considers that Costa Rica's claim is "purely procedural" and, in any
event, invalid. In particular, the Dominican Republic argues that Article 2.2.1 does not require an
investigating authority to explicitly reflect in its final deter mination every step of the below -cost
sales test analysis, as long as it is clear that the authority took into consideration the conditions set
out in Article 2.2.1.143 The Dominican Republic nevertheless considers that the CDC took into
consideration the c onditions set out in Article 2.2.1, as evidenced, according to the
Dominican Republic144, in the Essential Facts Report145 and the Final Technical Report.146
7.109. As explained in section 7.3.4 above, a panel may refrain from examining one or more claims,
in accordance with the principle of judicial economy, if it is established that the same measure at

139 ArcelorMittal, section F, production costs (Exhibit DOM-8 (BCI)).
140 Costa Rica's second written submission, para. 57.
141 Costa Rica's first written submission, paras. 70-71.
142 Costa Rica's second written submission, para. 57.
143 European Union's second written submission, para. 39 (referring to Panel Report, EC — Salmon
(Norway), paras. 7.236 and 7.277).
144 Dominican Republic's first written submission, paras. 168-175.
145 Essential Facts Report (confidential version) (Exhibit DOM-2) (BCI), paras. 170-172 and table 6).
146 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), paras. 191, 193 and 207, and
tables 8 and 9.

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issue is inconsistent with any of the provisions of the covered agreemen t and if findings under the
additional claims are not necessary to resolve the dispute.
7.110. We have found above that the Dominican Republic failed to act consistently with Article 2.2.1
of the Anti -Dumping Agreement because of the manner in which the CDC performed its cost test
analysis using an annual weighted average cost. To the extent that this vitiates the determination
of the proportion of sales that were below cost, we do not consider that additional findings with
regard to this same analysis would assist in resolving the dispute. We therefore exercise judicial
economy with regard to the additional claims made by Costa Rica under the same article.
7.4.4 Conclusion
7.111. On the basis of the foregoing, we conclude that the Dominican Republic acted inconsistently
with Article 2.2.1 of the Anti -Dumping Agreement because, by using an annual weighted average
cost, the CDC failed to properly consider whether prices were lower than unit costs "at the time of
sale" in accordance with the second sentence of Article 2.2.1. We exercise judicial economy with
regard to Costa Rica's other claims under Article 2.2.1, as we do not consider that additional findings
are necessary.
7.5 Costa Rica's claims under Article 3 of the Anti-Dumping Agreement: determination of
threat of injury and causal relationship
7.5.1 Introduction
7.112. Costa Rica claims that the data on the record demonstrate that the domestic industry
indicators in the most recent part of the POI are generally positive and objectively substantiate an
improvement in the performance of t he domestic industry. In view of the positive trend in key
indicators, Costa Rica claims that an objective and unbiased determination by the Investigating
Authority would not have concluded that a change in circumstances which would create a situation
in which the dumping would cause injury was clearly foreseen and imminent. Costa Rica therefore
considers that there were no factual bases for determining, as the CDC did, the existence of a threat
of material injury.
7.113. In the light of this, Costa Rica has submitted a number of claims under Articles 3.1, 3.2, 3.4,
3.5 and 3.7 of the Anti-Dumping Agreement. Below, in section 7.5.2 , we first address Costa Rica's
claims under Articles 3.1 and 3.2 regarding the CDC's analysis of price undercutting, depression and
suppression during the injury POI. Then, in section 7.5.3 , we address C osta Rica's claims under
Articles 3.1 and 3.4 regarding the CDC's examination of the relevant economic factors and indices
having a bearing on the state of the domestic industry, while in section 7.5.4 , we address
Costa Rica's claims under Articles 3.1 and 3.7 of the Anti -Dumping Agreement with respect to the
CDC's determination regarding the existence of a threat of material injury. Lastly, in section 7.5.5 ,
we address Costa Rica's claims under Articles 3.1 and 3.5 regarding the CDC's causation analysis
and non-attribution analysis.
7.5.2 Costa Rica's claims under Art icles 3.1 and 3.2 of the Anti -Dumping Agreement:
consideration of the effect of dumped imports on prices
7.114. In its threat of injury analysis, the CDC examined "whether there was a significant price
undercutting by the dumped imports compared with the domestic industry ex-factory price" and
"whether those imports ha[d] served to depress or suppress the domestic industry price".147 In this
regard, the CDC determined that: (a) "Costa Rican imports ha[d] recorded high price undercutting
margins since 2016"148; (b) "domestic industry prices fell by 6% during the period 2015 -2017"149;
and (c) "[r]egarding the domestic industry price suppression analysis, … the average [sale] price [of
the product] had enabled the domestic industry to recover its production costs".150

147 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 330.
148 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 339.
149 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 344.
150 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 354.

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7.115. Costa Rica claims that the CDC's analysis of the effects of imports from Costa Rica on
domestic prices is inconsistent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement because it
was not based on an objective examination on the basis of positive eviden ce or an examination of
all relevant evidence.151
7.116. The Dominican Republic responds that Costa Rica's claims are unfounded.152 In addition, the
Dominican Republic claims that several of the arguments put forward by Costa Rica in its first written
submission do not relate to the claim presented in Costa Rica's panel request and are therefore
outside the Panel's terms of reference.153
7.117. We begin our analysis by examining the Dominican Republic's claim, which we reject, that
we do not have jurisdiction to examine cer tain arguments made by Costa Rica in its first written
submission (section 7.5.2.1 ). We then set out the applicable requirements of Articles 3.1 and 3.2
(section 7.5.2.2 ), and, on the basis of these, we consider whether the CDC's examination of:
(a) price undercutting (section 7.5.2.3 ); (b) price depression (section 7.5.2.4 ); and (c) price
suppression (section 7.5.2.5 ) is inconsistent with the requirements of Articles 3.1 and 3.2.
7.5.2.1 Dominican Republic's claim under Article 6.2 of the DSU
7.118. The Dominican Republic contends that several of the arguments put forward by Costa Rica
in its first written submission regarding Articles 3.1 and 3.2 do not relate to the claim made by
Costa Rica in its panel request. Therefore, according to the Dominican Republic, the claim referred
to in those arguments has not been submitted pursuant to Article 6.2 of the DSU and, as a result,
that claim and the arguments supporting it are not within the Panel's terms of reference.154
7.119. We note that, in paragraph 8 of Costa Rica's panel request, it is state d that the
challenged measures are inconsistent with Articles 3.1 and 3.2 of the Anti -Dumping Agreement
because, inter alia:
[T]he Investigating Authority's analysis of the effects of the imports under investigation
on prices in the domestic market for lik e products was not based on an objective
examination on the basis of positive evidence or an examination of all relevant evidence
before the authorities.
7.120. The Dominican Republic states that Costa Rica sets forth arguments in its first written
submission that concern a different claim to that presented in its panel request.155 According to the
Dominican Republic, the terms used by Costa Rica in its panel request indicate that its claim under
Articles 3.1 and 3.2 was "limited" to the lack of "objectivity" in th e CDC examination and to the
"positive nature or relevance" of the evidence taken into account in the consideration of the price
effects of the dumped imports.156 However, the Dominican Republic indicates that, in its first written
submission, rather than questioning the CDC's lack of "objectivity" or the "probative nature" of the
evidence considered, Costa Rica refers to at least two arguments that address a diffe rent claim to
that presented in the panel request, namely: (a) the "significant" nature of the price effects; and
(b) that the CDC failed to determine that the effects were caused by the dumped imports. 157
According to the Dominican Republic, the claim referred to in these arguments does not form part
of the Panel's terms of reference.158
7.121. For its part, Costa Rica considers that the Dominican Republic's argument is "flawed". In
particular, Costa Rica adduces that, in its panel request, it questioned the consistency of the CDC's
price undercutting analysis with Articles 3.1 and 3.2 of the Anti-Dumping Agreement. Furthermore,
Costa Rica maintains that the use of the phrase "inter alia" in paragraph 8 of the request "makes it

151 Costa Rica's first written submission, para. 79.
152 Dominican Republic's first written submission, para. 229.
153 Dominican Republic's first written submission, para. 197.
154 Dominican Republic's first written submission, para. 197.
155 Dominican Republic's first written submission, paras. 200 and 203.
156 Dominican Republic's first written submission, paras. 200 and 202.
157 Dominican Republic's first written submission, paras. 203-205.
158 Dominican Republic's first written submission, para. 200.

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clear that the reasons set out below a re illustrative and are not intended to limit the scope of the
complaint".159
7.122. We recall that Article 6.2 of the DSU provides, in relevant part, that:
The request for the establishment of a panel shall be made in writing. It shall indicate
whether consultations were held, identify the specific measures at issue and provide a
brief summary of the legal basis of the complaint sufficient to present the problem
clearly.
7.123. The requirements to "identify the specific measures" at issue and to "provide a brief summary
of the legal basis of the complaint sufficient to present the problem clearly" are central to establishing
a panel's jurisdiction.160 In fact, the legal basis of the complaint, together with the identification of
the measures at issue, forms the basis for a panel's terms of reference under Article 7.1 of the DSU.
7.124. To satisfy the requirement to "provide a brief summary of the legal basis of the complaint",
the panel request must set out the claims so as to "present the problem clearly".161 An assessment
of whether a claim is sufficiently set out in a panel request requires an examination of the text of
the request as a whole, and in certain cases, the statement of a claim may be inferred from such an
examination.162 As a minimum requirement, the panel request must "list the article(s) of the covered
agreement(s) claimed to have been violated". 163 At the same time, it is the claims, and not the
arguments, that must be clearly set out in the panel request. 164 Consequently, a complainant does
not need to include in a panel request the arguments supporting a claim, as these may be set out,
developed and/or progressively clarified in the submissions made over the course of the panel
proceedings.165 In any event, the question of whether a "brief summary" is "sufficient to present the
problem clearly" is to be assessed on a case-by-case basis, taking into consideration the nature and
scope of the provisions of the covered agreements alleged to have been violated.166
7.125. Having carefully considered the parties' arguments and the relevant language contained in
Costa Rica's panel request, we consider that Costa Rica has provided a brief summary of the legal
basis of the claim sufficient to meet the minimum requirements of Article 6.2 of the DSU with respect
to the claims made about the analysis of price undercutting by the dumped imports. First, it is clear
that Article 3.2 is explicitly cited in Costa Rica's pane l request. Therefore, Costa Rica's allegations
under Article 3.2 clearly fall within the Panel's terms of reference. It is also obvious that, in its
request, Costa Rica provided a brief explanation in which it questioned the CDC's analysis of "the
effects of the imports under investigation on prices in the domestic market for like products" 167,

159 Costa Rica's opening statement at the first meeting of the Panel, para. 16.
160 Appellate Body Report, EC and certain member States - Large Civil Aircraft, paras. 639-640
(referring to Appellate Body Reports, Guatemala - Cement I, paras. 72-73; US - Carbon Steel, para. 125;
US - Continued Zeroing, para. 160; US - Zeroing (Japan) (Article 21.5 - Japan), para. 107; Australia - Apples,
para. 416; and Brazil — Desiccated Coconut, p. 22). See also Panel Reports, US — Ripe Olives from Spain,
161 Panel Report, US — Ripe Olives from Spain, para. 7.191 (referring to Appellate Body Report,
162 Appellate Body Report, US — Countervailing and Anti-Dumping Measures (China), para. 4.33.
163 Appellate Body Report, US — Countervailing and Anti-Dumping Measures (China), para. 4.8
(referring to Appellate Body Reports, Korea - Dairy, paras. 123-124, in turn referring to Appellate Body
Reports, Brazil - Desiccated Coconut, p. 22; EC - Bananas III, paras. 145 and 147; India — Patents (US),
paras. 89 and 92-93; and US - Carbon Steel, para. 130).
164 We agree with the Appellate Body's statement in Korea - Dairy that a "claim" refers to a claim "that
the respondent party has violated, or nullified or impaired the benefits arising from, an identified provision of a
particular agreement"; and that "arguments", by contrast, are statements adduced by a complaining party "to
demonstrate that the responding party's measure does indeed infringe upon the identified treaty provision".
(Appellate Body Report, Korea - Dairy, para. 139).
165 See Panel Report, Thailand - H-Beams, para. 7.44; and the final Panel Report issued to the parties in
Colombia — Frozen Fries, para. 7.231. See also Appellate Body Report, Korea - Pneumatic Valves (Japan),
paras. 5.6 and 5.31.
166 Appellate Body Report, US — Countervailing Measures (China), para. 4.9.
167 For its part, Costa Rica asserts that the challenged measures violate Articles 3.1 and 3.2 "because,
inter alia, the investigating authority's analysis of the volume of the dumped imports was not based on an
objective examination on the basis of positive evidence or an examination of all relevant evidence before the
authorities". (Costa Rica's panel request, para. 7).

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arguing that it was not based on an "objective examination" on the basis of "positive evidence" or
an examination of all "relevant evidence".
7.126. In our view, the fact that the request refers generally to the text of Article 3.1 does not limit
Costa Rica's claim regarding the "objective nature" of the CDC's examination or the "positive nature
or relevance" of the evidence, as is argued by the Dominican Republic. As we see it, the assertions
made by Costa Rica in its first written submission with regard to the effect of the dumped imports
on prices constitute arguments in support of its claim of a violation of Article 3.2 and fall within the
scope of its claim under that provision. These arguments include that: (a) the CDC failed to consider
whether the undercutting was "significant"168; (b) the CDC did not consider whether the undercutting
was the effect of the dumped imports 169; (c) the CDC's price depression analysis does no t comply
with the requirement that an investigating authority must consider whether the effect of the imports
is otherwise to depress prices to a significant degree 170; and (d) in the price suppression analysis,
the CDC did not take into account Costa Rica's imports.171
7.127. For the reasons set out above, we reject the Dominican Republic's contention that the claim
referred to in these arguments has not been duly submitted to the Panel pursuant to Article 6.2 of
the DSU.
7.5.2.2 Applicable requirements of Articles 3.1 and 3.2 of the Anti-Dumping Agreement
7.128. We begin our analysis by recalling the applicable requirements of Articles 3.1 and 3.2 of the
Anti-Dumping Agreement. Article 3.1 is a general provision that provides as follows:
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.
7.129. The second sentence of Article 3.2 provides that:
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 otherw ise would have occurred, to a significant
degree.
7.130. With respect to the obligation under Article 3.1 to perform an objective examination based
on positive evidence, prior panels and the Appellate Body have found that the term "positive
evidence" relates to t he quality of the evidence that an investigating authority may rely upon to
make a determination, and requires the evidence to be "affirmative, objective, verifiable, and
credible".172 They have also found that the term "objective examination" requires that an
investigating authority's examination "conform to the dictates of the basic principles of good faith
and fundamental fairness", and be conducted "in an unbiased manner, without favouring the
interests of any interested party, or group of interested par ties, in the investigation". 173 We agree
with this interpretation and with the assertion that, in order to conduct an objective examination,

168 Costa Rica's first written submission, para. 93.
169 Costa Rica's first written submission, para. 94.
170 Costa Rica's first written submission, paras. 98-99.
171 Costa Rica's first written submission, para. 107.
172 Appellate Body Report, China - GOES, para. 126 (referring to Appellate Body Report,
173 Appellate Body Reports, US — Hot-Rolled Steel, para. 193; China - GOES, para. 126; Panel Report,
US — Ripe Olives from Spain, para. 7.209 ("[t]o be 'objective', an investigating authority's examination must
be impartial and supported by reasoning that is coherent and internally consistent"). See also Diccionario de la
Real Academia Española, definition of "objetivo" (objective) https://dle.rae.es/objetivo, meaning 2
("[d]esinteresado, desapasionado" (disinterested, dispassionate)).

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the authority must also take into account conflicting evidence and respond to competing plausible
explanations of that evidence in reaching its conclusions.174
7.131. The second sentence of Article 3.2 imposes on an investigating authority the obligation to
"consider" the effect of dumped imports on prices. We note that the ordinary meaning of the word
"consider" includes "look at attentively … think over" and thus does not impose an obligation on an
authority to make a definitive determination.175
7.132. Article 3.2 concerns three types of price effects that an investigating authority must consider:
(a) price undercutting; (b) price depression; and (c) price suppression.
7.133. First, with regard to price undercutting, Article 3.2 requires authorities to "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". Therefore, Article 3.2 requires a comparison between
the prices of the dumped imports and those of the domestic like product.176 We agree with the views
expressed above that the price undercutting analysis requires consid eration of price effects that
continue over time, and are not limited to an isolated instance.177
7.134. Second, Article 3.2 requires investigating authorities to consider "whether the effect of such
[dumped] imports is otherwise to depress prices to a significant degree or prevent price increases,
which otherwise would have occurred, to a significant degree". With respect to price depression, in
the context of Article 3.2, we consider that an authority must consider whether the prices of domestic
like products are being pushed down by the dumped imports. 178 Regarding price suppression, an
authority must also consider whether, in the absence of subject imports, prices "otherwise would
have" increased.179 Therefore, the consideration of price suppression is counterfactual in nature.
7.135. We note the Appellate Body's interpretation that, by asking "whether the effect of" the
dumped imports is significant price depression or suppression, the second sentence of Article 3.2
explicitly requires the investigating authorities to co nsider whether certain price effects are the
consequences of subject imports. 180 Article 3.2 thus links price depression and suppression to the
dumped imports and contemplates consideration of the relationship between the prices and the
imports.181 We agree with the notion that, in an analysis under the second sentence of Article 3.2,

174 See also, for example, Appellate Body Reports, US — Softwood Lumber VI (Article 21.5 - Canada),
175 Appellate Body Report, China - GOES, para. 130; and Panel Report, Pakistan - BOPP Film (UAE),
appealed on 22 February 2021, para. 7.262 (quoting Shorter Oxford English Dictionary, 6th edn, A. Stevenson
(ed.) (Oxford University Press, 2007), Vol. 1, p. 496; and Oxford Dictionaries online, definition of "consider",
https://www.oed.com/view/Entry/39593?redirectedFrom=consider#eid).
176 Appellate Body Reports, China - GOES, para. 136; and China — HP-SSST (Japan) / China — HP-SSST
(EU), para. 5.158; and Panel Report, Pakistan — BOPP Film (UAE), appealed on 22 February 2021,
para. 7.293.
177 See also Appellate Body Reports, China — HP-SSST (Japan) / China — HP-SSST (EU), para. 5.159,
reasoning that:
[A] proper reading of "price undercutting" under Article 3.2 suggests that the inquiry requires 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). An examination of such developments and trends includes assessing whether import and
domestic prices are moving in the same or contrary directions, and whether there has been a
sudden and substantial increase in the domestic prices.
178 We agree with Panel Report, Pakistan — BOPP Film (UAE), appealed on 22 February 2021,
para. 7.295 that "[t]he ordinary meaning of 'depress' includes '[t]o press down … to lower', while the ordinary
meaning of 'depression' includes '[t]he action of pressing down, or fact of being pressed down'" (fns omitted)
(referring to Oxford Dictionaries online, definition of "depress",
https://www.oed.com/view/Entry/50442?rskey=ThDTSn&result=2&isAdvanced=false#eid, v., meaning 2; and
Oxford Dictionaries online, definition of "depression",
https://www.oed.com/view/Entry/50451?redirectedFrom=depression#eid, n., meaning 1).
179 Appellate Body Report, China - GOES, para. 141.
180 Appellate Body Report, China - GOES, para. 136.
181 See, for example, Appellate Body Report, China - GOES, para. 136, in which it is noted that "an
investigating authority is required to consider whether a first variable — that is, subject imports — has
explanatory force for the occurrence of significant depression or suppression of a second variable — that is,
domestic prices". See also Appellate Body Reports, China — HP-SSST (Japan) / China — HP-SSST (EU),
para. 5.161.

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it is not sufficient for an investigating authority to confine its consideration to what is happening to
domestic prices for purposes of considering significant price depression or suppression.182
7.136. The investigating authority must consider whether the three types of price effects referred
to in the second sentence of Article 3.2 are "significant". We note that Article 3.2 does not set out a
minimum threshold for what qualifies as a "significant" increase; whether an increase is "significant"
will depend on the specific circumstances of the case.183
7.5.2.3 Whether the CDC's examination of price undercutting was consistent with
Articles 3.1 and 3.2
7.137. Costa Rica presents two arguments184 in support of its assertion that the CDC's consideration
of price undercutting was inconsistent with Articles 3.1 and 3.2. First, Costa Rica claims that "there
is no record that the CDC considered whether the undercutting was 'significant'". 185 Second,
Costa Rica argues that the CDC did not consider whether the price undercutting was "the effect of"
dumped imports, given that the lowest level of undercutting coincided with an increase in imports
from Costa Rica.186 We will now consider these arguments.
7.5.2.3.1 Whether the price undercutting was "significant"
7.138. Costa Rica claims that the CDC did not consider whether the price undercutting was
"significant", as required under Article 3.2.187
7.139. In response, the Dominican Republic states that the magnitude of the price u ndercutting
observed by the CDC was [[***]]. 188 The Dominican Republic contends that "[t]he CDC's reports
clearly considered the significance of the price undercutting margins" by noting that "imports from
Costa Rica have 'high … margins' of undercutting". 189 It argues that "[t]he CDC explicitly indicated
the significant magnitude … of the price undercutting margins". 190 The Dominican Republic also
considers that the margins were sufficient to support a finding of significance in the circumstances
of this case, i.e. in the light of "the fierce competition between imported and domestic products on
the market and their high degree of substitutability".191
7.140. Costa Rica claims that, although the CDC stated that the price undercutting margins were
"high", beyond this assertion, it did not provide reasons why it considered the alleged undercutting
to be "important", "notable" or "consequential" in the circumstances of the particular case.192
7.141. We recall that Article 3.2 does not provide a quantitative threshold for what qua lifies as
"significant" price depression. We note that, in addition to indicating in the overall conclusion of the
Final Technical Report that "Costa Rican imports [had] recorded high price undercutting margins of

182 Appellate Body Report, China - GOES, para. 138.
183 Appellate Body Reports, China — HP-SSST (Japan) / China — HP-SSST (EU), para. 5.161; and Panel
Report, Pakistan — BOPP Film (UAE), appealed on 22 February 2021, paras. 7.263 and 7.296.
184 In its first written submission, Costa Rica put forward an additional argument with respect to the
information contained in table 22 of the public version of the Final Technical Report (Exhibit CRI-3 (BCI)),
where the undercutting margins were presented as indices. We will not discuss this argument further in the
light of Costa Rica's confirmation that the confidential version of the Final Technical Report (Exhibit DOM-3
(BCI)) "addresses the concerns expressed by Costa Rica in paragraphs 89-92 of [its] first written submission,
without implying that Costa Rica's claim under Article 3.2 has been entirely resolved". (Costa Rica's response
185 Costa Rica's first written submission, para. 93.
186 Costa Rica's first written submission, para. 95; opening statement at the first meeting of the Panel,
para. 19; second written submission, para. 76; opening statement at the second meeting of the Panel,
paras. 32-34; and response to Panel question No. 82, paras. 27-30.
187 Costa Rica's first written submission, para. 93.
188 Dominican Republic's first written submission, para. 231 (referring to Final Technical Report
(Exhibit DOM-3 (BCI)), table 22 and paras. 339 and 517 (xii)).
189 Dominican Republic's first written submission, para. 235 (referring to Final Technical Report
(confidential version) (Exhibit DOM-3 (BCI)), para. 517 (xii)).
190 Dominican Republic's first written submission, para. 237.
191 Dominican Republic's first written submission, para. 240.
192 Costa Rica's first written submission, para. 93.

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up to [[***]]"193, the CDC emphasized the c ompetitive realities of the product under investigation
in its price effects analysis, noting in particular that "in the case of little-differentiated products such
as steel bars and rods, economic actors compete on the basis of prices". 194 Consideration of the
magnitude of the undercutting margins, together with information on competition in the domestic
market between imports and the domestic product, and on the nature of the product, is relevant in
assessing whether price undercutting is "significant".195
7.142. There is no indication on the record that, in the underlying investigation, ArcelorMittal
questioned the competitive dynamic or that Costa Rica questioned the existence of these conditions
in relation to the product under investigation. In our view, under the circumstances, the
acknowledgement that the undercutting margins were "high" (ranging from [[***]] in 2016 to
[[***]] at the end of the POI) was sufficient to support a finding of significance in the circumstances
of this case.
7.143. Therefore, in the light of the specific facts and circumstances of this case, we conclude that
the price undercutting was significant. We therefore find that the CDC considered whether there had
been "significant" price undercutting and thus did not act inconsistently with Article 3.2.
7.5.2.3.2 Whether the CDC considered whether price undercutting was "the effect of"
imports from Costa Rica
7.144. Costa Rica claims that the CDC also failed to comply with the obligation under Article 3.2 to
consider whether the alleged pr ice undercutting was "the effect of" the dumped imports, which is
considered to be an explicit requirement under the second sentence of Article 3.2.196
7.145. Costa Rica bases its argument on the fact that the prices of Costa Rican imports "increased
steadily during the POI", while the undercutting margin "decrease[d] considerably during the same
period".197 This is reflected in the CDC's determination that the magnitude of the price undercutting
that it observed was [[***]]. 198 The CDC also noted that the decline in the undercutting margin
"coincides with a downturn in the domestic industry's sales in the domestic market in 2017 and an
increase in Costa Rican imports in the same year".199
7.146. Costa Rica considers that the fact that the lowest level of undercutting coincid ed with an
increase in imports from Costa Rica "tend[ed] to disprove" rather than support the conclusion that
the alleged undercutting was the effect of the imports. 200 Costa Rica contends, however, that the
CDC did not consider this trend and therefore failed to explain the nature of the relationship between
the allegedly dumped imports and the domestic industry's prices.201
7.147. Costa Rica also claims that the CDC "failed to properly consider" whether the price
undercutting was the effect of imports from Costa R ica because it did not consider the prices of
imports from China and other countries that were "significantly lower" than those of Costa Rican
imports throughout the POI.202 Costa Rica claims that, by failing to take this into account, the CDC

193 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 517 (xii).
194 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 334.
195 In EC — Salmon (Norway), the panel observed that "[t]he significance of any such undercutting
would, in our view, be a question of the magnitude of such price difference, in light of other relevant
information concerning competition in the domestic market between the imports and the domestic product, the
nature of the product, and other factors". (Panel Report, EC — Salmon (Norway), para. 7.638. See also
Appellate Body Reports, China — HP-SSST (Japan) / China — HP-SSST (EU), para. 5.161).
196 Costa Rica's first written submission, para. 94.
197 Costa Rica's opening statement at the first meeting of the Panel, para. 19.
198 Dominican Republic's first written submission, para. 231.
199 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 339.
200 Costa Rica's first written submission, para. 95.
201 Costa Rica's first written submission, para. 93; opening statement at the first meeting of the Panel,
202 Costa Rica's second written submission, paras. 77-78. According to the Final Technical Report,
in 2016, the price of imports from China was [[***]], while the price of imports from Costa Rica was [[***]].
The volume of imports from China (34,065.48 tonnes) was more than 2.5 times the volume imported from
Costa Rica. Tables 41 and 42 of the Final Technical Report show that, in 2017, imports from Italy, Japan,
Mexico, Spain, Chinese Taipei and the United States entered at prices lower than those of imports from

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did not properly consider whether "it was Costa Rican imports that were having an effect on the
domestic industry's prices".203
7.148. The Dominican Republic contends that Costa Rica's argument has no legal basis and that the
undercutting analysis calls only for "an objective and factual examination of the prices of [the
dumped imports] in relation to the prices of domestic products" and does not require consideration
of whether the price undercutting was "the effect of" the dumped imports.204 The Dominican Republic
also contests that Article 3.2 requires a non-attribution analysis of other factors that may have had
an impact on pricing.205 Regardless of this, the Dominican Republic denies that an increase in import
prices over the course of the POI, coupled with a declining undercutting margin, somehow
contradicts the CDC's conclusions on price undercutting. 206 According to the Dominican Republic,
what matters is that the established undercutting margins were "significant" throughout the POI.
7.149. We recall that Article 3.2 requires an investigating authority to consider price effects
throughout the POI. Its assessment must be "a dynamic consideration" of two sets of prices, rather
than "a static snapshot " of the relationship between two prices (or averages). 207 Moreover, the
examination requires consideration of developments and trends, such as whether import and
domestic prices are moving in the same or contrary directions.208
7.150. In our view, the CDC's assess ment is based on the facts on the record and provides a
reasoned and adequate explanation, in compliance with the obligations applicable to a price
undercutting analysis. First, the record shows price undercutting by Costa Rica's imports in every
year of the review period, with undercutting margins of between [[***]] and [[***]]. Moreover, we
do not agree that the fact that Costa Rica's import prices "increased steadily during the POI"
contradicts the observations of significant undercutting. The record als o indicates increases in the
international price of the main feedstock, billets, with implications for production costs and the prices
of the final product, both for the domestic producer, Gerdau Metaldom, and for ArcelorMittal. 209 In
fact, prices increased for both the domestic and the dumped product. 210 However, this does not
negate the fact that prices of imports continued to undercut domestic prices.211
7.151. Moreover, we do not agree with Costa Rica that, in its examination of price undercutting, the
CDC should have carried out an additional assessment of the prices of imports from China and other
countries. Article 3.2 clearly highlights a link between the price of subject imports and that of like
domestic products by requiring that a comparison be made between the two.212 The consideration

Costa Rica, and that the total volume of these imports exceeded that of Costa Rican imports. (Final Technical
Report (confidential version) (Exhibit DOM-3 (BCI)), table 42).
203 Costa Rica's second written submission, para. 81.
204 Dominican Republic's second written submission, para. 72. See also Dominican Republic's
first written submission, para. 241.
205 Dominican Republic's opening statement at the second meeting of the Panel, para. 36.
206 The Dominican Republic maintains that "[t]he fact that the undercutting was higher when the
imports first entered the market is entirely consistent with an aggressive pricing strategy and the normal
response of producers, which may lead to some reduction of the undercutting margin". (Dominican Republic's
second written submission, para. 72).
207 Panel Report, China — Broiler Products (Article 21.5 - US), para. 7.98.
208 Appellate Body Reports, China — HP-SSST (Japan) / China — HP SSST (EU), para. 5.159.
209 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), paras. 121-122, 347
and 351-352.
210 The price of the domestic product increased in the period 2016-2017 ([[***]]) and in the period
January-April 2018 ([[***]]). The prices of imports from Costa Rica increased in the period 2016-2017
([[***]]) and in the period January-April 2018 ([[***]]). (Based on the information in Final Technical Report
(confidential version) (Exhibit DOM-3 (BCI)), table 22).
211 We note that the circumstances of the investigation before the CDC were quite different from those
addressed by the Appellate Body in China — HP-SSST (Japan) / China — HP-SSST (EU). In that investigation,
the Appellate Body expressed concern that the Chinese investigating authority had failed to explain how
significant underselling could be found to exist given that the price of the domestic like product had more than
doubled during the course of a single year, while the price of imports had fallen. These circumstances were not
present in the CDC investigation.
212 By contrast, in China – GOES, the Appellate Body considered that, by assessing "whether the effect
of" the subject imports is significant price depression or suppression, the second sentence of Article 3.2
specifically instructs an investigating authority to consider whether certain price effects are the consequences
of subject imports. Thus, an examination of price depression, by definition, calls for more than a simple
observation of a price decline, and also encompasses an analysis of what is pushing down the prices. In

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of prices under Article 3.2 serves as a basis for the causation determination under Article 3.5.
Article 3.5 requires an investigating authority to demonstrate that subject imports are causing injury
"through the effects of dumping". Therefore, it is in the context of the non -attribution requirement
of Article 3.5 that "an assessment must involve separating and distinguishing the injurious effects
of the other factors from the injurious effects of the dumped imports".213
7.152. Therefore, taking into account the circumstances of this case, we conclude that the CDC
considered that price undercutting was "the effect of" the dumped imports from Costa Rica, in
accordance with Article 3.2.
7.5.2.3.3 Conclusion
7.153. In the light of the above consider ations, we conclude that the Dominican Republic did not
act inconsistently with Articles 3.1 and 3.2 of the Anti-Dumping Agreement, as the CDC considered
whether price undercutting was "significant" and whether it was "the effect of" the dumped imports.
7.5.2.4 Whether the CDC's examination of price depression was inconsistent with
Articles 3.1 and 3.2
7.154. Costa Rica claims that the CDC's consideration of price depression was inconsistent with
Articles 3.1 and 3.2, first because there was no price depression, as the tr end throughout the POI
was for the domestic industry's prices to increase, including in the most recent period of the
investigation214; and second because the CDC did not consider whether price depression was "the
effect of" dumped imports, given that impor ts from China and other countries were entering at
"lower" prices than Costa Rican imports throughout the entire POI and accounted for a "significantly
larger volume" than those from Costa Rica.215 We will now consider these arguments.
7.5.2.4.1 Whether the trend throughout the POI demonstrated price depression
7.155. Costa Rica argues that the CDC's claim that "the domestic industry's prices during the period
2015-2017 were depressed by 6%"216 "does not reflect the trend for the period and, therefore, the
CDC's analysis does not meet the requirements under Article 3.2", in conjunction with Article 3.1.217
7.156. Costa Rica observes that the applicant, Gerdau Metaldom, acknowledged that in
"December 2017, there [was] evidence of a 13% increase in the domestic industry's prices when
compared to December 2016" and that the domestic industry's domestic market price "increased by
4% [between April 2017 and April 2018]". 218 Costa Rica emphasizes that, owing to the increases
during the period 2017-2018, the price in 2018 was almost back at the same level as in 2015.219
7.157. The Dominican Republic's response is that the CDC objectively and correctly concluded that
prices were lower in 2017 than in 2015 because prices were down 11.62% in 2017 compared with
2015. The Dominican Republic claims that "[i]n the context of a price effects analysis, it is common
practice to examine the price level close to the end of the POI and compare it with the price level at
the start of the injury POI". 220 According to the Dominican Republic, an end -point comparison is a
relevant and objective consideration that reflects price developments over time. 221 The
Dominican Republic also recognizes that it is important to examine trends. However, according to

addition, price suppression cannot be properly examined without a consideration of whether, in the absence of
subject imports, prices "otherwise would have" increased. (See Appellate Body Report, China - GOES,
paras. 136-138 and 141).
213 See Appellate Body Report, China - GOES, para. 151.
214 Costa Rica's first written submission, paras. 98 and 100-101; opening statement at the first meeting
of the Panel, para. 21; second written submission, para. 98; and opening statement at the second meeting of
the Panel, paras. 35-38.
215 Costa Rica's second written submission, para. 90.
216 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 344.
217 Costa Rica's second written submission, para. 85.
218 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 352.
219 Costa Rica's second written submission, para. 88; and first written submission, para. 100 (referring
to the Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), table 24).
220 Dominican Republic's first written submission, para. 247.
221 Dominican Republic's first written submission, para. 247.

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the Dominican Republic, the CDC was objective in its analysis an d recognized that prices increased
in 2017 and 2018; it considered that this increase was consistent with the rise in the prices of the
main feedstock in the production of corrugated steel rods. 222 The Dominican Republic states that
this "is exactly what Article 3.2 requires when it stipulates that the authority should 'consider' certain
factors".223
7.158. The Dominican Republic also indicates that "[i]t is important to note that the CDC used the
term 'depression' and not 'to depress prices'", since, according to the Dominican Republic, the CDC
"did not come to any conclusion as to whether the prices were depressed as a result of the dumped
imports".224 Lastly, the Dominican Republic claims that it is clear from section 6.3.3 of the Final
Technical Report that the CDC's conclusion "was [in relation to] 'price suppression'".225
7.159. As we have indicated, Article 3.2 of the Anti-Dumping Agreement requires the investigating
authority to consider whether the effect of the imports is "otherwise to depress prices to a significant
degree". We have found that this analysis "requires 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 duration of the POI".226
7.160. First, we observe t hat the CDC's analysis is contained in the section of the Final Technical
Report entitled "Price depression". 227 In this section, the CDC indicates that " [p]rice depression
occurs when the domestic industry's ex-factory selling price falls during the period of investigation",
and that "the domestic industry's prices during the period 2015-2017 were depressed by 6%".228 In
view of the foregoing, and contrary to what the Dominican Republic adduces, we consider that the
CDC did in fact determine the existence of price depression.229
7.161. As the Dominican Republic explained, the 6% depression mentioned by the CDC is an
"average for all years [in the period 2015 -2017]".230 The depression was [[***]] when comparing
the prices in 2015 and 2017 on an "end-point-to-end-point" basis.231 We observe that, based on the
information provided in table 24, the domestic industry's average ex -factory price fell 17.83% in
2016; rose by 7.02% in 2017; and subsequently increased by a further 11% when comparing the
average 2017 price with the average price in the period January-April 2018.232 In fact, the average
price in the period January-April 2018, which stood at DOP [[***]]/MT, had almost returned to the
2015 price of DOP [[***]]/MT.233

222 The Dominican Republic indicates that, in the context of the price suppression analysis, the CDC
observed that the domestic industry's ex-factory prices increased by [[***]] in the period January-April 2018,
which can be "explained by the increase in international billet prices during the same period and, therefore, in
the domestic industry's production costs". The Dominican Republic states that this observation is an integral
part of the CDC's examination of price effects, and the decrease in prices must be viewed in the context of the
CDC's findings as a whole. (Dominican Republic's first written submission, paras. 247-249 (referring to the
Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 347; and to the Essential Facts
223 Dominican Republic's opening statement at the second meeting of the Panel, para. 38.
224 Dominican Republic's response to Panel question No. 24, para. 44.
225 Dominican Republic's response to Panel question No. 24, para. 44.
226 Appellate Body Reports, China — HP-SSST (Japan) / China — HP SSST (EU), para. 5.160.
227 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), section 6.3.2.
228 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 344.
229 To clarify this point, we observe that the section of the Final Technical Report entitled "Findings on
the threat of injury", the CDC indicated, inter alia, the following:
While it is true that imports from other origins increased during the most recent period of the
investigation (January-April 2018), it is the dumped imports from Costa Rica with a dumping
margin of 15% that have depressed selling prices in the domestic market and, consequently,
adversely affected the domestic industry's economic and financial indicators.
(Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 361 (viii) (emphasis
added)).
230 Dominican Republic's response to Panel question No. 24, para. 40.
231 Dominican Republic's response to Panel question No. 24, para. 40.
232 Table 24 in the Final Technical Report indicates that the domestic industry's average ex-factory price
was DOP [[***]]/MT in 2015 and fell to DOP [[***]]/MT in 2016 before increasing to DOP [[***]]/MT in 2017
and DOP [[***]]/MT in the first four months of 2018. (Final Technical Report (confidential version)
(Exhibit DOM-3 (BCI)), table 24).
233 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), table 24.

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7.162. The CDC's analysis focuses on the differe nce in prices between 2015 and 2017. However,
we do not agree with the Dominican Republic that the CDC adequately considered price
developments throughout the entire POI. The Dominican Republic explains the methodology that it
used to determine the 6% depression.234 It also explains the [[***]] difference in the average prices
in 2015 and 2017. However, these explanations are not reflected in the relevant CDC determination.
The CDC mentioned only that the price of the rods in the domestic market rose [[***]] in the period
January-April 2018 relative to the period January -April 2017 as a result of the increase in the
international price of the main feedstock during the same period. 235 However, the CDC did not
explain the price's upward trend throughout the period 2016-2018 or the fact that the average price
at the end of the POI was almost the same as in 2015.
7.163. In order t o conduct an objective examination, the Investigating Authority should have
explained that there was a price decrease from 2015 to 2016 (of 17.83%); that prices increased in
the period from 2016 to 2017 (by [[***]]); and that they increased by a further [[***]] in the
period January-April 2018. In that respect, the domestic industry's price only fell during the period
2015-2016, as the price rose during the subsequent periods. The absence of such explanations,
together with the fact that the CDC only considered the end -point-to-end-point price change (from
2015 to 2017) and, consequently, did not analyse the trend throughout the entire period, leads the
Panel to conclude that the CDC's price depression analysis was not objective and, as such, is
inconsistent with Articles 3.1 and 3.2.
7.5.2.4.2 Whether the CDC's price depression examination considered "the effect of"
imports from Costa Rica
7.164. Costa Rica claims that the CDC's analysis is inconsistent with Articles 3.1 and 3.2 because
the CDC failed to consider prices of imports from other sources. Costa Rica reiterates the argument
set out above236 that imports from China and other sources entere d "at prices lower than imports
from Costa Rica throughout the entire POI", and that, in addition, imports from China and other
sources "accounted for a significantly larger volume than those from Costa Rica".237
7.165. Costa Rica argues that the CDC should have t aken this information into account when
considering whether the alleged price depression was the effect of imports from Costa Rica and that
this was "particularly important as the CDC refer red generally to 'the high elasticity of substitution
between imported and domestically-produced bars due to the product's homogeneity', which is an
acknowledgement that domestic bars could be supplanted by imported bars from sources other than
Costa Rica".238
7.166. We concluded above that the Dominican Republic acted inconsiste ntly with Articles 3.1
and 3.2 for other reasons239, and we therefore do not deem it necessary to examine this additional
argument by Costa Rica.
7.5.2.4.3 Conclusion
7.167. Based on the foregoing, we conclude that the Dominican Republic acted inconsistently with
Articles 3.1 and 3.2 of the Anti-Dumping Agreement, as the CDC failed to explain the upward price
trend throughout the entire POI and, therefore, failed to conduct an objective examination.
7.5.2.5 Whether the CDC's price suppression examination is inconsistent with Articles 3.1
and 3.2
7.168. Costa Rica claims that the CDC's consideration of price suppression was inconsistent with
Articles 3.1 and 3.2 because the CDC's assessment failed to demonstrate price suppression or to

234 Dominican Republic's response to Panel question No. 24, paras. 40-43.
235 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 352.
236 See para. 7.147. above.
237 Costa Rica's second written submission, para. 90.
238 Costa Rica's second written submission, para. 90 (quoting the Final Technical Report (confidential
239 See para. 7.163. above.

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consider whether the price suppression was "the effect of" dumped imports.240 We will now consider
these arguments.
7.5.2.5.1 Whether the CDC's analysis demonstrated price suppression that was "the
effect of" dumped imports
7.169. Costa Rica claims that the CDC failed to properly consider whether there was price
suppression and failed to establish that this alleged suppression was an effect of Costa Rica's
imports. Costa Rica also observes that the relevant section of the CDC's fina l determination refers
to the alleged profitability of the domestic industry, but the CDC does not state that the domestic
industry's prices would have been higher if it were not for the imports from Costa Rica. In addition,
Costa Rica underscores that the CDC's analysis does not refer to imports from Costa Rica or
demonstrate a relationship between imports from Costa Rica and the domestic industry's alleged
inability to increase the price. According to Costa Rica, the CDC's analysis is "incomplete" 241 and it
is "clear and evident that there is no analysis or evidence to substantiate the CDC's findings".242
7.170. The Dominican Republic's response is that the Final Technical Report shows that the CDC
considered the existence of price suppression based on positive evi dence and linked the price
suppression to the increase in imports from Costa Rica. The Dominican Republic maintains that the
CDC concluded that prices were suppressed by the dumped imports, given that its analysis showed
that the prices of like domestic pr oducts increased by less than costs and that the cost -price ratio
worsened significantly, precisely at the time when the dumped imports increased.243 In addition, the
Dominican Republic maintains that the cost-price squeeze "coincided" with the increase in imports,
including in the most recent period of the injury POI 244, "thus revealing the explanatory force of
dumped imports [for] price suppression".245
7.171. The Dominican Republic claims that the CDC's approach was "very relevant and standard
practice" for explaining the absence of a price increase. 246 Furthermore, the Dominican Republic is
of the view that no investigating authority includes dumped imports in the analysis of domestic
producer price developments. Consequently, according to the Dominican Republic, C osta Rica's
argument that table 24 makes no reference to dumped imports from Costa Rica is "irrelevant".247
7.172. The consideration of price suppression is contained in the section of the Final Technical
Report entitled "Price suppression".248 In its analysis, the CDC stated that price suppression was the
extent to which the increase in the cost of producing the investigated product could not be recovered
through the selling prices .249 As table 24 shows, the CDC compared the domestic industry's
average ex-factory pr ices with the average total cost for the years 2015 -2017 and for the
period January-April 2018, and concluded that costs as a percentage of the selling price was
[[***]]in 2015, [[***]] in 2016, [[***]] in 2017 and [[***]] in the most recent period of
January-April 2018.250 Based on this examination, the CDC concluded that it was clear that "the
domestic industry ha[d] not been able to properly take advantage of the rise in the average price",
given that " its profitability, in terms of the cost -price ratio, declined throughout the [POI]".251 The
CDC observed that "its average prices fell even though average costs increased".252
7.173. Thus, this section of the Final Technical Report does not contain any explanati on as to how
the CDC took into consideration that domestic price suppression and the decline in profitability

240 Costa Rica's first written submission, paras. 105-107; opening statement at the first meeting of the
Panel, para. 21; second written submission, paras. 98-101 and 103-104; and opening statement at the
second meeting of the Panel, paras. 40-42.
241 Costa Rica's first written submission, para. 107.
242 Costa Rica's first written submission, para. 105.
243 Dominican Republic's second written submission, paras. 80-81.
244 Dominican Republic's first written submission, para. 257.
245 Dominican Republic's opening statement at the second meeting of the Panel, paras. 39-40.
246 Dominican Republic's second written submission, para. 82.
247 Dominican Republic's first written submission, para. 257.
248 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), section 6.3.3.
249 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 350.
250 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), table 24.
251 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 355.
252 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 355.

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coincided with the significant increase in dumped imports from Costa Rica. The Dominican Republic
does not refute this, but instead argues that th e CDC's analysis should be viewed in the context of
its analysis elsewhere in the report. In particular, the Dominican Republic makes reference to
paragraphs 291, 292 and 297 of the section of the Final Technical Report entitled "Variation in the
volume of dumped imports".253 This section provides information on the volume of imports of the
investigated product in the period 2015-April 2018, including information on imports from Costa Rica
as a percentage of total imports.254 In addition, the CDC observed that imports from Costa Rica had
"increased considerably" as of 2016 and had risen by 156% in 2017.255 It also observed that imports
from Costa Rica "remain[ed] on an upward trend", with growth of 22% in the period
January-December 2018 compared with 2017. 256 The Dominican Republ ic claims that it was
"precisely in 2017 and the first four months of 2018" that prices did not keep up with costs, which
adversely affected profitability "as might be expected under normal circumstances", and as such, "it
is clear" that the CDC assessed t he effects of dumped imports in its examination of price
suppression.257
7.174. The Dominican Republic also refers to the section of the Final Technical Report in which the
CDC responds to the arguments put forward by ArcelorMittal concerning the CDC's threat of i njury
analysis258, in which the CDC stated the following:
Regarding [the claim] made by ArcelorMittal, the CDC reiterates that, when comparing
average prices to average total costs, it is observed that the domestic industry has not
been able to properly tak e advantage of the increase in average prices, because it s
profitability decline d throughout the period of investigation. This coincided with the
entry into the Dominican Republic of Costa Rican imports with a dumping margin of
15%, which is above what is considered to be de minimis (2% of the export price), and
in volumes totalling 37,634.02 during the dumping period, which is more than 3% of
the total volume of imports of steel bars and rods into the Dominican Republic, pursuant
to Article 5.8 of the Anti-Dumping Agreement.259
7.175. Costa Rica maintains that this paragraph mentions only a "coincidence" and does not
sufficiently demonstrate that the declines are an effect of the imports in the course of the POI. In
any case, Costa Rica contends that this reference contains no evidence of an analysis of trends
during the POI, nor does it explain why the entry of Costa Rican imports prevented the domestic
industry from raising its prices.260
7.176. However, after examining the CDC's determination as a whole, we reject Costa Rica's
argument that the CDC's assessment was insufficient. We note that Article 3.2 does not specify how
the investigating authority should conduct the price suppression analysis. Furthermore, we recall
that the investigating authority has a degree of discretion with regard to its analysis. That discretion
is guided by the principle set out in Article 3.1 that the determination of injury, including the
examination of price effects, must be based on an objective examination of positive evidence.261
7.177. The CDC's response to the concerns raised by ArcelorMittal in para graph 439 of the Final
Technical Report clearly forms part of the CDC's assessment of price suppression and identifies the
link between the aforementioned analysis and the increase in imports from Costa Rica. Additionally,
the observations in section 6.1.1 of the Final Technical Report regarding the injury analysis refer to
the change in volumes of dumped imports. I n our view , therefore, this section also provides a
reasoned explanation based on positive evidence of the link between dumped imports and the price
suppression analysis.

253 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), section 6.1.1.
254 See, for example, Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), tables 16
and 17, and para. 297 (vii).
255 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 291.
256 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 292.
257 Dominican Republic's response to Panel question No. 85, para. 61.
258 Dominican Republic's first written submission, para. 255.
259 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 439. (emphasis added)
260 Costa Rica's opening statement at the first meeting of the Panel, para. 23; and second written
submission, para. 103.
261 Our opinion is consistent with that expressed in Appellate Body Report, China — GOES, para. 152.

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7.178. Consequently, we conclude that the CDC's examination is not inconsistent with Articles 3.1
and 3.2, as the CDC's price suppression determination provides a reasoned explana tion based on
positive evidence that explains how dumped imports relate to the price suppression analysis.
7.5.2.5.2 Conclusion
7.179. For the reasons outlined above , we conclude that the Dominican Republic did not act
inconsistently with Articles 3.1 and 3.2 of the Anti-Dumping Agreement, as the CDC's price
suppression analysis properly considered there to be price suppression and established that the
suppression was a consequence of the effect of imports from Costa Rica.
7.5.3 Costa Rica's claims under Articles 3.1 and 3.4 of the Anti-Dumping Agreement
7.180. In this section, we address Costa Rica's arguments that the CDC acted inconsistently with
Articles 3.1 and 3.4 of the Anti -Dumping Agreement in the manner in which it examined economic
factors and indices, and in which it examined the impact of the imports on the domestic industry.262
7.181. Costa Rica acknowledges that the CDC examined the economic factors and indices listed in
Article 3.4 during the investigation. Insofar as the CDC included this analysis in its injury
determination, Costa Rica claims that this analysis should comply with the requirements of
Articles 3.1 and 3.4 of the Anti-Dumping Agreement.263
7.182. The Dominican Republic responds that Costa Rica's claims are without merit and that they
seek to have the Panel conduct a de novo review of the facts, which is contrary to the Panel's task
under Article 17.6 of the Anti-Dumping Agreement.264
7.183. We begin our analysis by recalling the applicable requirements of Articles 3.1 and 3.4 of the
Anti-Dumping Agreement (section 7.5.3.1 ), before addressing Costa Rica's arguments regarding
the CDC's evaluation of the economic factors and indices mentioned in Article 3.4 and of the impact
of the imports on the domestic industry (section 7.5.3.2 ).
7.5.3.1 The applicable requirements of Articles 3 .1 and 3.4 of the Anti -Dumping
Agreement in relation to the threat of injury analysis
7.184. Costa Rica bases its violation claims on Articles 3.1 and 3.4. We have already examined the
applicable requirements of Article 3.1 in section 7.5.2.2 above.265
7.185. Article 3.4 of the Anti -Dumping Agreement sets out the obligations related to the
examination of the impact of the dumped imports on the domestic industry and 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 utili zation of
capacity; factors affecting domestic prices; the magnitude of the margin of dumping;
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.
7.186. We agree with previous panels that the text of the Anti -Dumping Agreement requires
consideration of the factors listed in Article 3.4 in a threat of injury determination.266 We note that

262 Costa Rica's first written submission, para. 109.
263 Costa Rica's opening statement at the first meeting of the Panel, paras. 26-28.
264 Dominican Republic's first written submission, para.262; and second written submission, para. 89.
265 See in particular paras. 7.128. and 7.130. above.
266 Panel Report, Mexico — Corn Syrup, para. 7.127 ("consideration of the Article 3.4 factors in
examining the consequent impact of imports is required in a case involving threat of injury in order to make a
determination consistent with the requirements of Articles 3.1 and 3.7"). See also Panel Report, Mexico — Corn
Syrup, para. 7.131:

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such consideration is vital "in order to establish a background against which the investigating
authority can evaluate whether imminent further dumped imports will affect the industry's condition
in such a manner that material injury would occur in the absence of protective action".267 Thus, while
Article 3.7 sets out additional factors that must be considered in a threat of injury evaluation, it
"does not eliminate the obligation to consider the impact of dumped imports on the domestic industry
in accordance with the requirements of Article 3.4".268
7.187. We agree with previous panels that "the obligation to 'evaluat[e]' under Article 3.4 [requires]
an analysis and interpretation of the data relating to the economic factors and indices, and an
assessment of the 'role, relevance and relative weight of each factor in the particular
investigation'".269 Moreover, the analysis of the factors listed in Article 3.4 "could not take into
account only factors which support an affirmative determination, but would have to account for all
relevant factors, including those which detract from an affirmative determination, and explain why
the particular factors considered were deemed relevant".270 The examination under Article 3.4 must
also meet the requirements of Article 3.1.271
7.5.3.2 Whether the CDC's threat of injury determination complied with Articles 3.1
and 3.4 of the Anti-Dumping Agreement
7.5.3.2.1 The relevance of the Article 3.4 evaluation in a threat of injury determination
7.188. The Dominican Republic has raised the issue of whether ther e is a basis for considering
Costa Rica's arguments relating to Articles 3.1 and 3.4 since the CDC's determination consisted of a
determination of threat of injury.
7.189. The Dominican Republic acknowledges that an authority is required to consider the
Article 3.4 injury factors to determine a threat of injury, and notes that the CDC did explain
repeatedly that the Article 3.4 evaluation was part of its threat of injury determination under
Article 3.7.272 Nevertheless, the Dominican Republic argues that "it is not clear what exactly the CDC
did to violate Article 3.4, since the CDC did not make any determination of injury under
Article 3.4".273 In this regard, the Dominican Republic takes the view that Costa Rica is confusing
the different provisions of Articles 3.4 and 3.7.274 The Dominican Republic considers that the analysis
of the volume of the dumped imports, their effects on prices and their impact on the domestic
industry relates to the past and not the future, and provides, at most, a context for assessing the
likelihood of a further increase in imports at dumped prices. 275 For the Dominican Republic,

Article 3.7 requires a determination whether material injury would occur, Article 3.1 requires that
a determination of injury, including threat of injury, involve an examination of the impact of
imports, and Article 3.4 sets out the factors that must be considered, among other relevant
factors, in the examination of the impact of imports on the domestic industry. Thus, in our view,
the text of the AD Agreement requires consideration of the Article 3.4 factors in a threat
determination.
See also Panel Report, US — Coated Paper (Indonesia), para. 7.262.
267 Panel Reports, Mexico — Corn Syrup, para. 7.132; and US — Coated Paper (Indonesia), para. 7.262.
268 Panel Report, Mexico — Corn Syrup, para. 7.131. See also Panel Report, Thailand — H-Beams,
para 7.249 ("[the] positive movements in a number of factors would require a compelling explanation of why
and how, in light of such apparent positive trends, the domestic industry was, or remained, injured within the
meaning of the Agreement"); and Panel Report, China — Cellulose Pulp, para 7.129.
269 Panel Report, Pakistan — BOPP Film (UAE), appealed on 22 February 2021, para. 7.351 (quoting
Panel Report, EC — Bed Linen (Article 21.5 ‒ India), para. 6.162; and referring to Panel Report, Egypt — Steel
Rebar, paras. 7.43-7.44).
270 Panel Report, Mexico - Corn Syrup, para. 7.133.
271 Panel Report, Pakistan - BOPP Film (UAE), appealed on 22 February 2021, para. 7.366.
272 Dominican Republic's first written submission, para. 264; and response to Panel question No. 91,
paras. 75-76.
273 Dominican Republic's first written submission, para. 264.
274 The Dominican Republic notes, for instance, that Costa Rica's arguments that the CDC failed to
provide explanations regarding the elements relating to Article 3.7 and that the CDC never referred to the
Article 3.4 evaluation to find a threat of injury, are arguments that are not relevant to the assertion that the
CDC acted inconsistently with Articles 3.1 and 3.4 and that these arguments should instead form part of
Costa Rica's claim under Article 3.7 (Dominican Republic's first written submission, paras. 267-268).
275 Dominican Republic's response to Panel question No. 91, para. 90.

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Article 3.7 is determinative with regard to whether the investigating authority has established a
threat of injury.276
7.190. We do not agree with the Dominican Republic's assertion that there is no basis at all to
address Costa Rica's claim under Article 3.4 "given that the CDC did not make any determination of
injury under [that provision]".277 As we have noted278, in a case concerning the existence of a threat
of injury, the authority must consider the situation of the domestic industry in the light of the factors
listed in Article 3.4, in order to establish a background against which the investigating authority can
evaluate the impact of future dumped imports, as well as the specific threat factors.279 Therefore, in
our view, in the context of claims relating to a threat of injury determination, a panel must examine
whether the investigating authority acted consistently with the provisions of Article 3.4.
7.191. Accordingly, we will now assess Costa Rica's arguments regarding the CDC's analysis of the
economic factors and indices listed in Article 3.4. First, we will assess Costa Rica's arguments that
the CDC's analysis of certain factors (profits, cash flow, employment, and the loss of market share
allegedly attributable to Costa Rican imports) was not supported by an objective evaluation or based
on positive evidence.280 Second, we will assess Costa Rica's arguments that the CDC failed to assess
the positive performance of several domestic industry indicators and limited itself to examining the
economic factors and indices individually without considering "each one's role, relevance or relative
importance" and without considering them in a broader context.281
7.5.3.2.2 The examination of profits
7.192. Costa Rica claims that the CDC's assertion that "[t]he contractions in profits coincide with
the decline in sales on the domestic market and the decrease in the domestic industry's profit margin
owing to the entry into the country of Costa Rican imports at dumped prices" is not supp orted by
the information on the record.282
7.193. For its part, the Dominican Republic submits that, contrary to Costa Rica's assertion, there
is a correlation between the negative trend in the domestic industry's profits and the decline in other
factors, such as sales.283 In particular, the Dominican Republic notes that the CDC determined that
profits decreased in 2017 compared to 2016, while the volume and value of domestic sales declined
over the same period.284
7.194. Section 7.2 of the Final Technical Report contains t he CDC's profits analysis. 285
Paragraph 378 and table 27 in this section outline the trends in this factor. The CDC noted that: the
domestic industry's profits "contracted" in 2016 compared to 2015; "suffered a contraction" in 2017
in relation to 2016; and "decreased" in the period January -April 2018.286 The CDC concluded that
"[t]he contractions in profits coincide[d] with the decline in sales on the domestic market and the
decrease in the domestic industry's profit margin owing to the entry into the country of Costa Rican
imports at dumped prices".287

276 Dominican Republic's response to Panel question No. 91, para. 87.
277 Dominican Republic's first written submission, para. 264.
278 See para. 7.186. above.
279 Panel Reports, Mexico — Corn Syrup, para. 7.132; and US — Coated Paper (Indonesia), para. 7.262.
280 Costa Rica's first written submission, para. 118.
281 Costa Rica's first written submission, paras. 117 and 129.
282 Costa Rica's first written submission, para. 119 (quoting Final Technical Report (confidential version)
(Exhibit DOM-3 (BCI)), para. 378).
283 Dominican Republic's first written submission, para. 303.
284 Dominican Republic's first written submission, para. 303.
285 We note that the text of paragraph 378 in which the profits are analysed is devoted to the analysis of
profits "prior to the deduction of taxes". However, table 27 identifies the first row as "Net profit" and the
second as "Rate of change %". As we have noted, the figures on these rows do not coincide with those
mentioned in the accompanying text. In a response to the Panel, the Dominican Republic confirmed that "the
rates of change in the second row mistakenly refer to the rate of change in profits before interest and taxes".
(Dominican Republic's response to Panel question No. 26, para. 48). Without confirmation of this error,
however, it is impossible to infer what type of profits are being analysed by the Investigating Authority.
286 Final Technical Report (Exhibit CRI-3), para. 378.
287 Final Technical Report (Exhibit CRI-3), para. 378.

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7.195. We note that, in its analysis, the CDC did not contrast the profit figures with domestic sales
figures. The figures mentioned in the text of paragraph 378 of the Final Technical Report show a
steady decline in p rofits.288 In comparison, the figures in table 26 of the Final Technical Report in
the section on domestic sales show a combination of various movements. At the beginning of the
POI, the volume of sales increased while their value decreased. Subsequently, i n 2017, there is a
decline in both the volume and value of sales, followed by a sharp increase in the volume and value
of sales in the first four months of 2018 compared to the same period in 2017. 289 We see no
explanation as to how these movements in the v olume and value of sales actually "coincide" with
the profit contractions described by the CDC in section 7.2 of the Final Technical Report.
7.196. It is the task of a panel to assess whether the explanations provided by the investigating
authority are "reasoned and adequate" by testing the relationship between the evidence on which
the authority relied in drawing specific inferences, and the coherence of its reasoning.290 We do not
see how the CDC's reasoning in establishing that "[t]he contractions in profits coincide with the
decline in sales"291 is coherent in the light of the consistent trend in profits and the fluctuating trend
in sales.
7.197. The CDC also refers to the decrease in the "domestic industry's profit margin".292 Costa Rica
maintains that the CDC did not p rovide figures on this alleged decrease 293, and submits that the
relationship that the CDC established between the domestic industry's profits and the profit margin
constitutes a "circular assertion", since the profits are the main element used to calculate the profit
margin. Therefore, according to Costa Rica, the two concepts are directly related: in other words, if
profits fall, the profit margin also decreases.294
7.198. The Dominican Republic disagrees, arguing that "[i]t is clear that, on reading the CDC's
results in the context of the analysis as a whole, the reference to the 'profit margin' is a
cross-reference to the fall in the profit-cost ratio mentioned previously in the Final Technical Report
(paragraph 355), where the actual numbers are provided". Moreover, according to the
Dominican Republic, that "these two methods of examining the issue of profitability are closely linked
does not mean that they are irrelevant".295
7.199. We recall that the panel's review must be based on the explanations given by the authority
in its published report. The analysis of the "profit-cost" ratio to which the Dominican Republic refers
is a review of the trends in price in relation to cost and is included in the Final Technical Report in
the section on the CDC's revi ew of price suppression. Moreover, the CDC's evaluation of profits
makes no reference to this analysis. Rather, its examination of profits focuses on "the decrease in
the ... profit margin", a phrase not mentioned elsewhere in the Final Technical Report. T herefore,
the explanations provided by the Dominican Republic regarding the relevance of the analysis
contained in paragraph 355 of the Final Technical Report concerning the evaluation of profits
constitute an ex post explanation. Moreover, even if we consider the price trends in relation to cost
in the context of profits, we note that the decline in the first indicator is slight in 2016 compared to
2015, and more drastic in 2017 compared to 2016, while the reduction in profits is more significant
in the period 2015-2016 and less so in the period 2016-2017.
7.200. Furthermore, paragraph 355 of the Final Technical Report does not mention the dumped
imports and does not contrast the decreases observed in the profit -cost ratio with any trend in
imports from Costa Rica. Therefore, this paragraph provides no additional factual basis on which the
CDC could base its conclusion that "the decrease in the domestic industry's profit margin [was]

288 As such, the profits in 2016 and 2017 amounted to 77.64% and 69.42% of the level observed
in 2015. In the first four months of 2018, they amounted to 83.12% of the level in the same period in 2017.
289 As indicated in table 26 of the Final Technical Report, in 2016 the sales volume increased by 9.94%
in relation to 2015, while the value of sales decreased by 14.22%. In 2017, the volume and value of sales
decreased by 13.88% and 5.69%, respectively, in relation to 2016. During the most recent period of the POI,
the volume and value of sales increased by 15.4% and 34.83%, respectively.
290 Appellate Body Report, US — Softwood Lumber VI (Article 21.5 - Canada), para. 97.
291 Emphasis added.
292 Final Technical Report (Exhibit CRI-3), para. 378.
293 Costa Rica's first written submission, para. 119.
294 Costa Rica's first written submission, para. 119.
295 Dominican Republic's first written submission, para. 304.

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owing to the entry into the country of Costa Rican imports at dumped prices".296 On the basis of all
of the above, we do not consider that the CDC's examination of the profits could constitute a
reasoned and adequate explanation as to how the evidence on the record supported its examination
of this aspect of the investigation.
7.5.3.2.3 The examination of cash flow
7.201. Costa Rica disagrees with the CDC's assertion that "[t]he cash flow performance is
attributable to the fall in profits as a result of Costa Rica's dumping practices". 297 In particular,
Costa Rica submits that "the CDC does not indicate the basis for that assertion" and that "the
information on the record disproves that the contraction in profits has been a result of imports from
Costa Rica".298
7.202. The Dominican Republic responds that "the CDC explicitly determined a link between the
decline in the domestic industry 's profits and the significant increase in dumped imports from
Costa Rica".299
7.203. The cash flow analysis is set out in section 7.9 of the Final Technical Report. At the end of
its analysis in paragraph 389, the CDC concluded that "[t]h e cash flow performance [was]
attributable to the fall in profits as a result of Costa Rica's dumping practices, adversely affecting
the business value".300
7.204. However, we note that neither the text of paragraph 389 nor the Dominican Republic's
arguments indicate that the CDC contrasted cash flow trends with any other indicator to reach this
conclusion, or that the CDC had based its conclusion on positive evidence on the record.
7.205. The Dominican Republic notes that the CDC's conclusion is based "on the temporal
correlation between the decrease in the cash flow and the profits of the domestic industry and the
increase in dumped imports from Costa Rica", and that the record contains "[t]he relevant data for
cash flow, profits, and volumes and prices of imports".301 However, we note that a mere coincidence
between alleged dumping and the decrease in the domestic industry's cash flow (and/or profits)
does not in itself, or necessarily, prove that the decline in these economic factors was attributable
to this dumping.
7.206. Lastly, we note that the CDC's entire cash flow analysis is set out in a single paragraph that
consists of a description of the trend followed by the indicator during the POI and the conclusion
reached. The CDC does not attempt to contrast the cash flow trend with any other index and/or
factor, and, if anything, limits itself to attributing the trend in this factor to the fall in profits, without
any type of substantiation. In our view, the CDC's consideration does not constitute a reasoned and
adequate explanation as to how the evidence supports its conclusion regarding cash flow.
7.5.3.2.4 The examination of employment
7.207. Costa Rica submits that employment performance was "mixed or even stable, and not
negative as suggested by the CDC". 302 Specifically, Costa Rica notes that the CDC focused "on the
number of workers and not on total employment" and also highlights the fact that "the domestic
industry's productivity significantly improve[d] (53.4%) in the last four months of the [POI ]". 303
Costa Rica claims that the CDC was under the obligation to explain why the domestic industry was
in a state of vulnerability rather than on a path towards greater efficiency.304

296 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 378. (emphasis added)
297 Final Technical Report (Exhibit CRI-3), para. 389; and Costa Rica's first written submission,
para. 121.
298 Costa Rica's first written submission, para. 121.
299 Dominican Republic's first written submission, para. 309.
300 Final Technical Report (Exhibit CRI-3), para. 389.
301 Dominican Republic's response to Panel question No. 95, para. 117.
302 Costa Rica's first written submission, para. 122.
303 Costa Rica's first written submission, para. 122.
304 Costa Rica's first written submission, para. 122.

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7.208. In addition, Costa Rica disagrees with the CDC's conclusion that "the domestic industry had
been forced to reduce its workforce owing to the entry of imports at dumped prices, in order to
reduce its fixed costs and thereby lower its average cost".305 According to Costa Rica, this assertion
is not "accurate" because the domestic industry did not reduce the total number of employees.
Nor does Costa Rica consider that the CDC has provided any basis for characterizing labour costs
(particularly for direct labour, which was allegedly of concern to the CDC) as fixed costs. 306 Lastly,
Costa Rica considers that the fact that "the domestic industry has been forced to reduce its workforce
owing to the entry of imports at dumped prices" runs counter to the CDC's finding that the number
of workers employed in the production of the like product increased in 2016.307
7.209. The Dominican Republic responds that the CDC's conclusion "[wa ]s based on the temporal
correlation between the decrease in the data on employment, the increase in dumped imports from
Costa Rica and production costs". 308 The Dominican Republic also explains that "[t]he reduction in
sales, in revenue, in the ability to transfer costs to prices, in profits and in cash flow led the domestic
industry to take measures to reduce production costs", and that this "entail[ed], amo ngst other
measures, a cut in employment, which was recorded in 2017, in order to reduce fixed costs and,
therefore, the average cost of production".309 The Dominican Republic also notes that "[i]n view of
the displacement of domestic production by dumped imports from Costa Rica, the domestic industry
had to take measures to help reduce average costs".310
7.210. We note that table 34 of the Final Technical Report contains information on the change in
the number of employees divided into four groups: direct labour; workers (direct labour and indirect
labour); employees; and total employment (workers and employees). 311 The CDC analyses the
change in the number of workers employed in the production of the like product and notes that this
number increased in 2016 before decreasing in 2017 and the first four months of 2018.312 The CDC
noted the following:
Overall, the total number of employees of the domestic industry, i.e. [the] total number
of workers plus the total number of employees (including sales, management and
general services employees) involved in the production and marketing of the like
product, increased by 11% in 2016. Similarly, i n 2017 and the period
January-April 2018, the total number of employees fell by 7% and 11%, respectively.
The foregoing relates to the reduction in the domestic industry's total investments.313
7.211. In addition to these comments, the CDC noted that, "[a]ccording to the information provided
by the Applicant", "the domestic industry has been forced to reduce its workforce owing to the entry
of imports at dumped prices, in order to reduce its fixed costs and thereby lower its average cost".314
7.212. We note that the figures in table 34 of the Final Technical Report show a varying trend during
the injury POI with respect to the different categories of employees. Furthermore, the reduction in
the workforce does not concern all the categories. For instance, we note that, despite fluctuations,
the number of "employees" in the period January -April 2018 exceeds the number of employees in
2015. Similarly, "total employment" in January 2018 is almost at the level of total employment for
2015.315 The CDC also indicated that its analysis was conducted on the basis of the number of total
employees, which reflects a decrease in 2017 and January-April 2018 in relation to the comparable
period.316

305 Costa Rica's first written submission, para. 123 (quoting Final Technical Report (confidential version)
(Exhibit DOM-3 (BCI)), para. 397).
306 Costa Rica's first written submission, para. 123.
307 Costa Rica's first written submission, para. 123.
308 Dominican Republic's response to Panel question No. 95, para. 119.
309 Dominican Republic's response to Panel question No. 95, para. 120.
310 Dominican Republic's response to Panel question No. 95, para. 120.
311 Final Technical Report (Exhibit CRI-3), table 34.
312 Final Technical Report (Exhibit CRI-3), para. 392.
313 Final Technical Report (Exhibit CRI-3), para. 393.
314 Final Technical Report (Exhibit CRI-3), paras. 394 and 397.
315 Final Technical Report (Exhibit CRI-3), table 34.
316 Final Technical Report (Exhibit CRI-3), para. 396.

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7.213. However, we do not find any explanation in the CDC's examination that links the domestic
industry's need to reduce its workforce "[with the objective of] reduc[ing] its fixed costs and thereby
lower[ing] its average cost", which formed the basis for the CDC's conclusion that the reduction in
employment had been caused by the entry of imports.317 Apart from indicating that this conclusion
was reached in "[a]ccord[ance with] the information provided by the Applicant", and citing
information provided by the latter on 11 September 2018318, the CDC failed to provide explanations
or an analysis to substantiate its conclusion. As a result, we do not see how the CDC's determination
provided a reasoned and adequate explanation as to how the evidence on the record supported its
conclusion.319
7.5.3.2.5 The examination of the domestic industry's loss of market share
7.214. Costa Rica submits that the CDC 's conclusion that the domestic industry's loss of market
share was attributable to Costa Rican imports is unsupported by the record. Costa Rica notes that
its imports' share of apparent domestic consumption in the Dominican Republic did not remain
"unchanged" during the most recent period. Therefore, according to Costa Rica, if the period
January-April 2018 is compared to the period January -April 2017, the decline in the domestic
industry's share cannot be attributed to imports from Costa Rica, as the mark et share of those
imports did not increase.320
7.215. The Dominican Republic explains that Costa Rica's argument is based on a comparison of
different periods and is therefore incorrect. In particular, according to the Dominican Republic, if the
periods are compared in the same manner as they were by the CDC, it is clear that imports from
Costa Rica retained the same share of the domestic market.321
7.216. The CDC's analysis of the domestic industry's market share is set out in section 6.1.2 of the
Final Technical Report. On the basis of the information in table 19, the CDC noted that the share of
Costa Rican imports increased by 3% in 2016 and 10% in 2017, and remained unchanged at 6%
during the most recent period in January-April 2018, in relation to the same period in 2017.322 The
CDC also noted that imports from other sources had increased their imported volume by 77% and
their share of apparent domestic consumption (ADC) by 6 percentage points. 323 In the meantime,
imports from Costa Rica increased by 38%, with their share remaining unchanged.324 On this basis,
the CDC concluded that the domestic industry "recorded a loss of market share attributable to
Costa Rican imports" and, despite the domestic industry recovering slightly in the most recent period
of the investigation, it did not attain the share levels it had recorded in 2016.325
7.217. Table 19 suggests that the domestic industry's share of ADC began decreasing in 2016.
However, while the domestic industry's share fell in 2017 in the context of the growing share of
imports from Costa Rica, in the first four months of 2018, the share of imports from Costa Rica
appeared "unchanged", while the volume of imports from other sources increased by 77% and the
ADC share of such imports rose by 6 percentage points, with a stable (compared to the same period
in 2017) or decreasing (compared to the whole of 2017) share of imports from Costa Rica. In these
circumstances, the loss of market share during the most recen t period was, to a large extent,
contextualized by imports from other sources. In any event, even though the authority took into
account the increase in Costa Rican imports in 2017, the CDC's assertion that the loss of market
share was "attributable to Costa Rican imports" could not constitute a generalization for the entire
POI. On the basis of the foregoing, we do not consider that the CDC's examination of the market

317 Final Technical Report (Exhibit CRI-3), para. 397 ("the CDC considers that the domestic industry has
been forced to reduce its workforce owing to the entry of imports at dumped prices, in order to reduce its fixed
costs and thereby lower its average cost".)
318 Final Technical Report (Exhibit CRI-3), fn 134 (referring to the information provided by Gerdau
Metaldom in the confidential version of the supplementary information form dated 11 September 2018, p. 12).
319 Having made this finding, we express no view as to whether the CDC was under the obligation to
contrast the trend in employment with productivity.
320 Costa Rica's first written submission, para. 124.
321 Dominican Republic's first written submission, para. 326.
322 Final Technical Report (Exhibit CRI-3), para. 299.
323 Final Technical Report (Exhibit CRI-3), para. 300.
324 Final Technical Report (Exhibit CRI-3), para. 300.
325 Final Technical Report (Exhibit CRI-3), para. 305.

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share of the dumped imports could constitute a reasoned and adequate explanation as to ho w the
evidence on the record supported that conclusion.
7.5.3.2.6 Whether the CDC properly considered the positive performance of certain
indicators and evaluated the economic factors and indices as a whole
7.218. Costa Rica claims that the CDC failed to comply with the requirements of Article 3.4 because
it did not assess the positive performance of certain domestic industry indicators and also limited
itself to examining the economic factors and indices individually without considering "each one's
role, relevance or relative importance".326 Furthermore, Costa Rica argues that the CDC also failed
to properly consider the economic factors and indices "in a broader context in order to understand
the impact of the dumped imports on the domestic industry".327
7.219. The Dominican Republic responds that the CDC duly examined all the injury factors relevant
to the domestic industry in the light of the significant increase in dumped imports, and concluded
that there was a strong coincidence in time between the negative performance of severa l factors
and the significant increase in the volume of imports. Furthermore, the Dominican Republic notes
that the CDC examined each of the factors and, in doing so, obtained "a complete picture" of the
state of the industry that informed its determinatio n in relation to dumped imports from
Costa Rica.328
7.220. The Dominican Republic also submits that Costa Rica is wrong to selectively focus its
argument on a certain period within the POI. In any case, the Dominican Republic notes that a
disagreement over how the authority interpreted the facts does not constitute sufficient grounds for
finding a violation of the Anti-Dumping Agreement.329
7.221. Lastly, the Dominican Republic emphasizes that the CDC's final determination was not one
of material injury, but of threat o f injury. According to its argument, the fact that certain factors
continued to show a positive trend over a certain period of the POI, such as, for example, during the
last four months of the POI, is not a valid reason for challenging the examination of the factors listed
in Article 3.4.330
7.222. We begin by examining Costa Rica's first argument, namely that the CDC failed to assess
the positive performance of several domestic industry indicators. Specifically, Costa Rica's argument
focuses on positive movements in the following economic factors and indices: volume and value of
the domestic industry's domestic sales; volume of production; productivity; utilization of productive
capacity; return on investments; inventories; and ability to raise capital or investmen ts. According
to Costa Rica, these factors showed a positive trend "during the [POI] or at least in the first four
months of 2018".331
7.223. In particular, Costa Rica adduces that when a number of factors show positive trends, the
situation requires "a thorough a nd persuasive explanation as to whether and how such positive
movements were outweighed by any other factors and indices which might be moving in a negative
direction during the [POI ]". 332 In the case at issue, Costa Rica notes that "the figures in the Fin al
Technical Report objectively support a trend of improvement in the performance of the domestic
industry during the POI" and, therefore, argues that it is not possible to "conclude in an unbiased

326 Costa Rica's first written submission, paras. 117 and 129.
327 Costa Rica's second written submission, para. 126. See also Costa Rica's first written submission,
para. 131.
328 In particular, the Dominican Republic notes that the CDC evaluated each of the injury factors
required to objectively examine the trend and, in doing so, obtained a complete picture of the state of the
industry, which, according to the Dominican Republic, is precisely what Article 3.4 requires of an investigating
authority. Dominican Republic's first written submission, paras. 278 and 299; and second written submission,
para. 103.
329 Dominican Republic's first written submission, para. 292; and second written submission, para. 109.
330 Dominican Republic's second written submission, para. 105.
331 Costa Rica's first written submission, para. 115; and second written submission, para. 116.
332 Costa Rica's second written submission, para. 113 (quoting Panel Report, Thailand — H-Beams,

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and objective manner that the situation under analysis would lead to a clear, expected and imminent
occurrence of injury".333
7.224. The CDC considered the economic factors and indices listed in Article 3.4 in the section of
the Final Technical Report entitled "Domestic Industry Indicators".334 At the beginning of this section,
the CDC summarized the applicant's arguments regarding the state of the domestic industry.335
Among other comments, the applicant had noted that the domestic industry had "suffered a
significant contraction in several of the company's economic and fi nancial variables, with its
consequent negative impact".336 The CDC noted, in particular, the applicant's arguments with respect
to the decline in the gross profit and the return on investments of the domestic industry. The CDC
further observed that:
[T]he domestic industry's economic and financial indicators have weakened, an effect
that has persisted over time due to the increase in those imports; for example, during
the period January -April 2018, [gross profit] and investments contracted by 3% and
28.2%, respectively, while the number of employees and workers fell by 7% and 6%.337
7.225. In the subsequent paragraphs, the CDC presented its analysis of the domestic industry's
injury indicators for the POI.338
7.226. We note that there is no disagreement between the parties that Article 3.4 requires an
evaluation of all relevant economic factors and indices. 339 At the same time, we recall that the
evaluation of the economic factors and indices relating to the Article 3.4 examination requires that,
rather than considering the trends relating to each of the economic factors and indices in isolation,
the investigating authority assess the "relative weight" 340 of each factor in the investigation. The
investigating authority also needs to take into account all relevant factors, inclu ding those that
detract from an affirmative determination, and that evaluation must be reflected in the investigation
record.
7.227. Apart from its consideration of the economic factors and indices in isolation, we find no
indication that the CDC considered the f actors in a holistic manner or assessed the relative weight
of each factor. Due to this absence of consideration, we do not agree that the CDC conducted a
proper evaluation of all the relevant economic factors and indices listed in Article 3.4 in order to
have an appreciation of the state of the domestic industry.
7.228. The Dominican Republic refers to paragraph 305 of the Final Technical Report as evidence
that the CDC duly evaluated the factors. This paragraph forms part of the CDC's analysis of apparent
domestic consumption, but is limited to the observation that there was a trend in increased imports
from Costa Rica at dumped prices, and that:
[T]o this extent, the domestic industry's economic indicators, including profits, cash
flow and employment, were adver sely affected. Moreover, the domestic industry
recorded a loss of market share attributable to Costa Rican imports and, despite
recovering slightly during the most recent period of the investigation, did not attain the
share levels it had recorded in 2016, a situation that coincides with the entry into the
country of imports from Costa Rica at dumped prices.341

333 Costa Rica's opening statement at the first meeting of the Panel, para. 13 (referring to Final
Technical Report (confidential version) (Exhibit DOM-3 (BCI)), table A-1). (footnote omitted)
334 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), section 7.
335 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), paras. 367-371.
336 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 368.
337 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 370.
338 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), paras. 373-407.
339 Dominican Republic's second written submission, para. 105.
340 Panel Report, Pakistan — BOPP Film (UAE), appealed on 22 February 2021, para. 7.351 (referring to
Panel Reports, EC — Bed Linen (Article 21.5 ‒ India), para. 6.162; and Egypt — Steel Rebar,
paras. 7.43-7.44).
341 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 305.

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7.229. The Dominican Republic also refers to paragraphs 163 -167 of the final determination. 342
However, these paragraphs largely repeat the CDC's observation in paragraph 305 of the Final
Technical Report, as set out above, which is not indicative of the CDC having conducted a proper
evaluation of all the relevant economic factors and indices listed in Article 3.4. In the final
determination, the CDC noted that "generally speaking, the economic and financial indicators of the
domestic industry continued fluctuating".343 In our view, however, the general characterization of
the trends in all indices as "fluctuating" does not amount to an assessment of the role, r elevance
and relative weight of each factor.
7.230. On the basis of the foregoing, the investigation record does not show that the CDC has
conducted a proper and objective analysis of the economic factors and indices that had a bearing on
the state of the domestic industry as part of the examination provided for in Article 3.4. As a result,
we do not consider that the CDC conducted an evaluation of all relevant economic factors and indices,
as prescribed in Article 3.4.
7.5.3.3 Conclusion
7.231. In sum, for the reasons set out above, we conclude that the Dominican Republic acted
inconsistently with its obligations under Articles 3.1 and 3.4 of the Anti -Dumping Agreement
because, with respect to factors concerning the profits, cash flow, employment and market share of
the domestic industry, the CDC's examination could not co nstitute a proper and objective analysis
of how the evidence on the record supported the CDC's conclusions in this regard. At the same time,
we recall that in a case concerning the existence of a threat of injury, the authority must consider
the situation of the industry in the light of the factors listed in Article 3.4. 344 In this instance, we
therefore conclude that the Dominican Republic also acted inconsistently with Articles 3.1 and 3.4
because the CDC failed to conduct an evaluation of all relevant economic factors and indices having
a bearing on the state of the domestic industry, as required by Article 3.4.
7.5.4 Costa Rica's claims under Articles 3.1 and 3.7 of the Anti-Dumping Agreement
7.232. In this section, we address Costa Rica's arguments that the CDC's conclusions that allegedly
support the CDC's determination of a threat of injury are not well founded and, as such, are
inconsistent with Articles 3.1 and 3.7 of the Anti-Dumping Agreement.345
7.233. Costa Rica claims that the CDC's determination of a threat of injur y is inconsistent with
Articles 3.1 and 3.7 of the Anti-Dumping Agreement.346 Essentially, Costa Rica claims that there are
"serious shortcomings" in the CDC's analysis of the four factors set forth in Article 3.7.347 Moreover,
Costa Rica maintains that the CDC's arguments as a whole fail to provide an appropriate, or "robust",
explanation that a change in circumstances which would create a situation in which the alleged
dumping would cause injury is "clearly foreseen and imminent".348
7.234. The Dominican Republic responds that Costa Rica's claim has no legal basis. 349 The
Dominican Republic also contends that Costa Rica has "erred" in not addressing the CDC's
conclusions and in ignoring a large number of the factual findings that support those conclusions.350
The Dominican Republic also asserts that Costa Rica's allegations under Article 3.1 regarding its
claim under Article 3.7 are not within the scope of the Panel's terms of reference.351
7.235. We begin our analysis by examining the Dominican Republic's argument, which we reject,
that the Panel does not have jurisdiction to examine the arguments under Article 3.1 that Costa Rica
put forward in its first written submission and that relate to Costa Rica's claim under Article 3.7
(section 7.5.4.1 ). We go on to recall the applicable requirements of Articles 3.1 and 3.7 of the

342 Final Determination (Exhibit CRI-2), paras. 163-167.
344 See para. 7.186. above.
345 Costa Rica's first written submission, paras. 139-165.
346 Costa Rica's first written submission, paras. 139 and 172-173.
347 Costa Rica's first written submission, para. 139.
348 Costa Rica's first written submission, para. 172.
349 Dominican Republic's first written submission, para. 481.
350 Dominican Republic's first written submission, para. 482.
351 Dominican Republic's first written submission, para. 418.

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Anti-Dumping Agreement (section 7.5.4.2 ), and then, based on the specific facts and circumstances
of this dispute, we examine Costa Rica's claims that the Dominican Republic acted inconsistent ly
with Articles 3.1 and 3.7 in its analysis of the factors set forth in Article 3.7 (section 7.5.4.3 ).
7.5.4.1 Dominican Republic's claim under Article 6.2 of the DSU
7.236. The Dominican Republic argues that Costa Rica did not indicate in its reque st for the
establishment of a panel that Article 3.1 was a legal basis for its claim concerning the CDC's
determination of a threat of material injury and, as such, the Panel does not have jurisdiction to
examine the arguments under Article 3.1 that Costa Rica put forward in its first written submission
regarding the determination of a threat of material injury.352
7.237. We note that, in paragraph 11 of its panel request, Costa Rica stated that the challenged
measures are inconsistent with Article 3.7 of the Anti-Dumping Agreement because, inter alia:
[T]he investigating authority based the determination of a threat of material injury not
on facts but merely on allegation, conjecture or remote possibility, and failed to properly
determine that the change in circumstances which would create a situation in which the
alleged dumping would cause injury was clearly foreseen and imminent. In addition, the
investigating authority failed to properly consider:
- whether there was a significant rate of increase of dumped imp orts into the
domestic market indicating the likelihood of substantially increased importation;
- whether there was sufficient freely disposable capacity indicating the likelihood of
an imminent, substantial increase in dumped exports to the Dominican Republic,
taking into account the availability of other export markets to absorb any
additional exports;
- whether imports were entering at prices that would have a significant depressing
or suppressing effect on domestic prices, and would likely increase demand for
further imports; and
- whether the totality of the factors considered led to the conclusion that further
dumped exports were imminent and that, unless protective action was taken,
material injury would occur.
7.238. With respect to the claim regarding the determination of a threat of material injury,
Costa Rica's panel request refers explicitly to Article 3.7 but does not mention Article 3.1.
7.239. As we have indicated, the Dominican Republic contends that, since Costa Rica did not
mention in its pa nel request that Article 3.1 was a legal basis for its claim concerning the CDC's
determination of a threat of material injury, the Panel does not have jurisdiction to examine the
arguments under Article 3.1 that Costa Rica put forward in its first written submission. In particular,
in the Dominican Republic's view, any argument advanced by Costa Rica that the CDC failed to
conduct an "objective examination" based on "positive evidence" in its determination of a threat of
material injury does not fall withi n the scope of the Panel's terms of reference. 353 To support its
argument, the Dominican Republic also indicates that, in contrast to its claim under Article 3.7,
Costa Rica did, in its panel request, identify Article 3.1 as a legal basis for other claims.354

352 Dominican Republic's first written submission, para. 418.
353 Dominican Republic's first written submission, para. 418. The Dominican Republic emphasizes that it
is important for a panel request to be precise in identifying the legal basis of the complaint, and that identifying
the legal basis fulfils the function of protecting the respondent's due process rights. (Dominican Republic's
first written submission, paras. 416-417 (referring to Appellate Body Reports, Thailand — H-Beams, para. 97;
and US — Oil Country Tubular Goods Sunset Reviews, para. 162)).
354 The Dominican Republic adds that regardless of whether the error was inadvertent or not, the
consequences must be borne by Costa Rica, as it is obliged under Article 6.2 of the DSU to provide "a brief
summary of the legal basis of the complaint sufficient to present the problem clearly". (Dominican Republic's
first written submission, para. 414).

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7.240. Costa Rica responds that the Dominican Republic's argument is "irrelevant", since
"Article 3.1 is an 'overarching' provision and 'informs the more detailed obligations in succeeding
paragraphs'".355 In addition, Costa Rica indicates that, as the Dominican Republic acknowledges,
"objectivity" is a central component of the assessment that the Panel must make in accordance with
the standard of review set forth in Article 17.6 of the Anti -Dumping Agreement. As such, there is
nothing to prevent the Panel from considering Costa Rica's argument of a lack of "objectivity" in the
CDC's determination of a threat of material injury.356
7.241. Having examined the parties' arguments and the relevant language in Costa Rica's panel
request, we consider that Costa Rica has provide d a brief summary of the legal basis of the claim
sufficient to meet the minimum requirements of Article 6.2 of the DSU with respect to the claims
concerning the CDC's determination of a threat of material injury under Articles 3.1 and 3.7 of the
Anti-Dumping Agreement.
7.242. We recall first of all that the assessment of whether a "brief summary" is "sufficient to
present the problem clearly" must take into consideration the nature and scope of the provisions of
the covered agreements alleged to have been violate d.357 We also recall that this assessment
requires an examination of the text of the request as a whole, and in certain cases, the statement
of a claim may be inferred therefrom. 358 It is therefore our view that the fact that a complainant
does not explicitly refer to a claim does not necessarily undermine a panel's jurisdiction to examine
such a claim.
7.243. As we have noted, Costa Rica's panel request refers explicitly to Article 3.7 and not to
Article 3.1 in its claim concerning the determination of a threat of material injury. However, we agree
with previous panels that there is "a close normative relationship" between the different
subparagraphs of Article 3, which together establish the relevant legal framework and disciplines
that must be followed when conduc ting an injury and causation analysis. 359 It is our view that this
normative relationship also includes the threat of injury analysis under Article 3.7. We also consider
that Article 3.1 functions as an overarching provision that is directly linked with the more detailed
obligations set forth in succeeding provisions 360 (including Article 3.7), and the inquiries foreseen
under these provisions "serve as elements of a single, overall analysis" addressing the question of
whether dumped imports are causing injur y361 or, as in the case at hand, a threat of injury. In
particular, we agree that the basic principles of "positive evidence" and "objective examination", on
which an injury determination under Article 3.1 must be based, do not "establish independent
obligations which can be judged in the abstract, or in isolation and separately" from the obligations
set out in the succeeding provisions but instead "inform the application of all the provisions of
Article 3".362 In the context of this overall examination, we t herefore do not rule out that a claim
made under a more specific provision, such as Article 3.7, may not be resolved without assessing
the consistency of the situation at issue with the requirements of the overarching provision, namely
Article 3.1.363

355 Costa Rica's opening statement at the first meeting of the Panel, para. 40 (referring to Appellate
Body Report, Thailand — H-Beams, para. 106).
356 Costa Rica's first written submission, paras. 40-41.
357 See para. 7.124. above. See also Appellate Body Report, US — Countervailing Measures (China),
para. 4.9.
358 See para. 7.124. above.
359 Panel Report, US — Ripe Olives from Spain, para. 7.193. See also Panel Report, China — Cellulose
Pulp, para. 7.10.
360 Appellate Body Reports, US — Carbon Steel (India), para. 4.580; and Thailand — H Beams,
para. 106. See also Panel Reports, US — Ripe Olives from Spain, para. 7.193; and China — Cellulose Pulp,
para. 7.13.
361 Panel Report, US — Ripe Olives from Spain, para. 7.193. See also Appellate Body Reports,
China — HP-SSST (Japan) / China - HP-SSST (EU), para. 5.141; Korea — Pneumatic Valves (Japan),
362 Panel Report, China - Cellulose Pulp, paras. 7.12-7.13. See also Panel Report, US — Ripe Olives from
Spain, para. 7.193.
363 By analogy, we observe that panels in prior disputes have stated that a claim of inconsistency with
Article 3.1 will not normally be made or resolved independently of other provisions of Article 3. (Panel Report,
China - Cellulose Pulp, para. 7.13). See also Panel Reports, Korea — Pneumatic Valves (Japan), para. 7.33;
and US — Ripe Olives from Spain, para. 7.193.

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7.244. In this case, Costa Rica's request closely follows the text of Article 3.7, stating that "the
investigating authority based the determination of a threat of material injury not on facts but merely
on allegation, conjecture or remote possibility". 364 It is our vi ew that, in the light of this brief
summary, it could be reasonably understood that Costa Rica's panel request indicates that its claim
under Article 3.7 encompasses matters pertaining to the principles of "objective examination" and
"positive evidence" under Article 3.1, on which a determination of a threat of injury must be based.
7.245. For the foregoing reasons, concerning the claims made under Article 3.1 and 3.7 of the
Anti-Dumping Agreement, we conclude that, by identifying Article 3.7 in its panel request, and
considering the text of the request as a whole and the function of Article 3.1 (i.e. that of an
informative, overarching provision that is directly linked to the more specific obligations in the
succeeding provisions, including Article 3.7), Costa Rica provided a brief summary of the legal basis
of the complaint that is sufficient to satisfy the minimum requirements of Article 6.2 of the DSU.
7.246. We therefore reject the Dominican Republic's argument that the fact that Costa Rica
identified Article 3.1 as a legal basis for other claims in its panel request indicates that it failed to
make reference to the provisions of Article 3.1 in its claim under Article 3.7.365 In particular, for the
foregoing reasons, this fact does not preclude Costa Rica's claim under Article 3.7 from
encompassing matters pertaining to whether the CDC's threat of injury analysis constituted an
objective examination and whether its determination was based on positive evidence.
7.5.4.2 Applicable requirements of Articles 3.1 and 3.7 of the Anti-Dumping Agreement
7.247. Costa Rica bases its claims of violation on Articles 3.1 and 3.7 of the Anti -Dumping
Agreement. We have already examined the applicable requirements of Article 3.1 in
section 7.5.2.2 above.366
7.248. Article 3.7 provides that:
A determination of a threat of material injury shall be based on facts and not merely on
allegation, conjecture or remote possibility. The change in circumstances which would
create a situation in which the dumping would cause injury must be clearly forese en
and imminent .10 In making a determination regarding the existence of a threat of
material injury, the authorities should consider, inter alia, such factors as:
(i) a significant rate of increase of dumped imports into the domestic market
indicating the likelihood of substantially increased importation;
(ii) sufficient freely disposable, or an imminent, substantial increase in, capacity of
the exporter indicating the likelihood of substantially increased dumped exports to the
importing Member's market, taking into account the availability of other export markets
to absorb any additional exports;
(iii) whether imports are entering at prices that will have a significant depressing or
suppressing effect on domestic prices, and would likely increase deman d for further
imports; and
(iv) inventories of the product being investigated.
No one of these factors by itself can necessarily give decisive guidance but the totality
of the factors considered must lead to the conclusion that further dumped exports are
imminent and that, unless protective action is taken, material injury would occur.

364 Costa Rica's panel request, para. 11.
365 Dominican Republic's first written submission, para. 414.
366 See in particular paras. 7.128. and 7.130. above.

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10 One example, though not an exclusive one, is that there is convincing reason to believe that
there will be, in the near future, substantially increased importation of th e product at dumped
prices.
7.249. Article 3.7 therefore requires that a determination of a threat of injury be based on "facts"
and not merely on "allegation, conjecture or remote possibility". It also stipulates that the change
in circumstances which would create a situation in which the dumping would cause injury "must be
clearly foreseen and imminent". Article 3.7 also sets out four factors that the investigating authorities
"should consider" when assessing whether a threat of injury exists. 367 Footnote 10 states that an
"example" of "foreseen and imminent" circumstances is that there is convincing reason to believe
that there will be, in the near future, substantially increased importation of the product at dumped
prices.
7.250. The fact that the investigating authorities have "consider[ed]" the factors listed in Article 3.7
must be clear from the authority's respective determination, meaning that it must be apparent that
"the investigating authorities have given attention to and taken into account those factors", and its
consideration "must go beyond a mere recitation of the facts in question" and instead "put them into
context".368
7.251. We also agree with previous panels and the Appellate Body that Article 3.7 combines positive
requirements – a determination of threat of injury must "be based on facts" and show how a "clearly
foreseen and imminent" change in circumstances would lead to further subject imports causing injury
in the near future – with an express prohibition of a determination based "merely on allegation,
conjecture or remote possibility".369 As the panel in US - Coated Paper (Indonesia) observed:
A threat of injury determination thus requires that the determination of the investigating
authority clearly disclose its inferences and explanations in order to ensure that any
projections or assumptions made by it regarding likely future occurrences, are
adequately explained and supported by positive evidence on the record, and show a
high degree of likelihood that projected occurrences will occur.370
7.252. We also agree that "[i]n determining the existence of a threat of material injury, the
investigating authorities will also necessarily have to make projections relating to the 'occurrence of
future events' since such future events 'can never be definitively proven by facts' ".371 However,
"[n]otwithstanding this intrinsic uncertainty, a 'proper establishment' of facts in a determination of
threat of material injury must be based on events that, although they have not yet occurred, must
be 'clearly foreseen and imminent', in accordance with Article 3.7".372 We also agree that "projections
about future events need not necessarily reflect a continuation of trends that took place during the
POI for a threat of injury determination to be based on facts as opposed to allegation, conjecture or
remote possibility".373

367 However, we note that "consideration of each of the factors listed in Article[ ] 3.7 … is not
mandatory" and, as such, "a failure to consider a factor at all, or a failure to adequately consider, a particular
factor would not necessarily demonstrate a violation of the provisions". Rather, "[w]hether a violation existed
would depend on the particular facts of the case, in light of the totality of the factors considered and the
explanations given". (Panel Report, US — Softwood Lumber VI, para. 7.68).
368 Panel Report, US — Softwood Lumber VI, para. 7.67 (referring to Panel Report,
Thailand — H-Beams, paras. 7.161 and 7.170). (fn omitted)
369 Panel Report, US — Coated Paper (Indonesia), para. 7.261 (referring to Appellate Body Report,
US — Softwood Lumber VI (Article 21.5 - Canada), para. 96 (quoting Appellate Body Report, US — Lamb,
para. 136)). See also Appellate Body Report, Mexico - Corn Syrup (Article 21.5 — US), para. 85; and Panel
370 Panel Report, US — Coated Paper (Indonesia), para. 7.261 (referring to Appellate Body Report,
US — Softwood Lumber VI (Article 21.5 - Canada), paras. 96 and 109). (fns omitted)
371 Panel Report, US — Coated Paper (Indonesia), para. 7.262.
372 Panel Report, US — Coated Paper (Indonesia), para. 7.262. Appellate Body Report,
Mexico — Corn Syrup (Article 21.5 - US), para. 85 (referring to Appellate Body Report, US — Hot-Rolled Steel,
fn 59 and para. 56).
373 Panel Report, US — Coated Paper (Indonesia), para. 7.277.

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7.5.4.3 Whether the Dominican Republic acted inconsistently with Articles 3.1 and 3.7
7.253. In the current case, it is not disputed that the CDC covered each of the factors listed in
Article 3.7.374 Therefore, in order to establish whether the CDC's determination of a threat of material
injury is inconsistent with the requirements of Article 3.7, we will now separately examine each of
the factors considered by the CDC, and the parties' arguments. How ever, in accordance with
Article 3.7375, our findings are based on our assessment of the CDC's determination as a whole,
taking into account the facts under consideration and the analysis carried out.
7.5.4.3.1 Significant rate of increase of dumped imports
7.254. Costa Rica claims that the CDC's analysis merely considered two scenarios predicated on
baseless assumptions.376 Costa Rica also notes that the CDC did not "clearly" conclude that there
was a likelihood of substantially increased imports, but simply assumed that imports would increase
(directly or indirectly). As such, Costa Rica contends that the CDC failed to assess the likelihood of
these scenarios occurring and what would happen in each of them.377
7.255. The Dominican Republic maintains that Costa Rica's argument is incorrect and irrelevant. In
particular, the Dominican Republic indicates that the CDC's analysis of the first factor listed under
Article 3.7 was based on an analysis of the volumes of dumped imports from Costa Rica during the
POI.378 The Dominican Republic maintains that the CDC's findings concerning the rate of increase of
dumped imports "speak for themselves", since dumped imports increased by 156% between 2016
and 2017 and by a further 38% in the first quarter of 2018379, and the figures show that Costa Rican
imports continued to rise throughout 2018, increasing by 22% compared with the full -year figure
for 2017.380
7.256. We observe that section 6 of the Final Technical Report contains the CDC's "[d]etermination
of a threat of injury to the domestic industry".381 In this section (in particular, subsection 6.1.1), the
CDC analysed "the behaviour of imports of the investigated product during the period of investigation
in both absolute and relative terms" 382, as well as "apparent domestic consumption" (ADC)
(subsection 6.1.2). In particular, the CDC observed that "imports originating in Costa Rica increased
considerably from 2016 onwards" and that in 2017 "these same imports grew significantly, with an
increase of 156%". The CDC also noted that the investigated imports "follow[ed] an upward trend",
increasing by 22% from January to December 2018 compared with 2017. 383 In terms of ADC, the
CDC observed that "Costa Rican imports increased their share of ADC during the period under
analysis. In 2016, the share of the se imports was 3%[;] in 2017 it was 10% [; and] [d]uring the
most recent period of the investigation [(January -April 2018)] it remained unchanged compared
with the same period of the previous year, at 6%."384 Based on this analysis, the CDC underscored
the following facts: (a) "Costa Rican imports of the investigated product began to enter the
Dominican Republic in November 2016" and "from then until December 2017, 48,522.95 MT were
imported from that country"; (b) in the period 2016-2017, "the imports accounted for 26% of total
imports and, during the most recent period of January -April 2018, they accounted for 28% of total
imports"; and (c) in relative terms, "Costa Rican imports rose by 156% from 2016 to 2017 and,
during the same period, their share of ADC increased by an average of 7%", and in the most recent
period, "imports rose by 38% and their share of ADC increased by 6%".385
7.257. We recall that Article 3.7(i) requires the consideration of "a significant rate of increase of
dumped imports into the domestic market indicating the likelihood of substantially increased

374 See section 6.1 of the Final Technical Report (Exhibit DOM-3 (BCI)).
375 We recall that no one factor listed under Article 3.7 can necessarily give decisive guidance, but the
totality of the factors considered must lead to the conclusion regarding threat of material injury.
376 Costa Rica's first written submission, para. 143.
377 Costa Rica's first written submission, para. 144.
378 Dominican Republic's first written submission, paras. 483-484.
379 Dominican Republic's opening statement at the first meeting of the Panel, para. 46.
380 Dominican Republic's opening statement at the first meeting of the Panel, para. 46.
381 Final Technical Report (Exhibit CRI-3), section 6.
382 Final Technical Report (Exhibit CRI-3), para. 289.
383 Final Technical Report (Exhibit CRI-3), para. 292.
384 Final Technical Report (Exhibit CRI-3), para. 299.
385 Final Technical Report (Exhibit CRI-3), para. 361(i)-(iii).

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importation".386 In our view, the use of the term "que indique" ("indicating") (i.e. que muestre algo
con indicios387 (that demonstrates something with evidence)) implies that the rate of increase o f
imports must not be considered simply as a matter of fact. Rather, in the context of Article 3.7, this
rate must actually indicate "the likelihood of substantially increased importation". In its
aforementioned analysis of imports, the CDC provided a descriptive analysis of the rates of increase
of imports from Costa Rica. However, we do not see how this analysis, which merely describes the
previous import trend, can support a finding that imports would increase substantially.388
7.258. Costa Rica points out that the CDC's conclusion concerning the likely increase in Costa Rican
imports can be found in section 17.6 of the CDC's Final Technical Report. 389 However, the
Dominican Republic argues that this analysis "is far from the only factual basis for the CDC's
conclusion".390
7.259. We note that in section 17.6 of the Final Technical Report, the CDC analysed "the likelihood
of entry of further Costa Rican imports and the possible impact on the domestic industry". 391 In
particular, the CDC "presents the projected change in dem and for rods in the Dominican Republic
for the period 2020-2022, for imports originating in Costa Rica" and in other countries, on the basis
of three scenarios.392
7.260. For each of the three scenarios, the CDC makes projections about the change in the volume
of imports up to the year 2022. In the "baseline" scenario, the CDC estimates that the volume of
imports from Costa Rica will increase at a constant annual rate of 3%, reaching 39,769 MT in 2022.393
In the "price adjustment" scenario, the CDC forecasts that the volume of imports from Costa Rica
would stand at 45,038 MT in 2018 (an increase of 29% compared with 2017) and would continue to
rise at the same rate as in the baseline scenario, reaching 50, 024 MT in 2022. 394 In the "quantity
adjustment" scenario, the CDC projected that the volume of imports from Costa Rica would rise to
65,805 MT in 2018 (an increase of 89% compared with 2017) and would continue to rise, reaching
134,621 MT in 2022.395
7.261. The CDC also explains how the different scenarios would affect the domestic industry. 396
Specifically, the CDC explains that "[i]n the event of a quantity adjustment, it is assumed that
Costa Rican imports would increase by 90,000 MT over a three-year period".397 The CDC also states
that "in the event that ArcelorMittal used around half of its idle capacity, of 90,000 metric tonnes,
over a three-year period, the impact on the value of the domestic industry would be significant".398
7.262. We note that the projected incre ases under the aforementioned scenarios were not part of
the CDC's conclusions concerning the imminent entry into the Dominican Republic of further imports
from Costa Rica at dumped prices in the short term. 399 In any event, we recall that any projection
or assumption made by an investigating authority must be adequately explained and supported by
positive evidence on the record.400

386 Emphasis added
387 Diccionario de la Real Academia Española, definition of "indicar" ("indicate")
https://dle.rae.es/indicar?m=form (accessed 14 April 2023), meaning 1. We note that the term "que indique"
appears in the co-authentic English and French texts of the Anti-Dumping Agreement as "indicating" and "qui
dénote", respectively.
388 In this respect, we recall that an investigating authority's consideration of the factors set forth in
Article 3.7 "must go beyond a mere recitation of the facts in question" and instead "put them into context".
(See para. 7.250. above; and Panel Report, US — Softwood Lumber VI, para. 7.67).
389 Costa Rica's first written submission, para. 141.
390 Dominican Republic's first written submission, para. 483.
391 Final Technical Report (Exhibit CRI-3), para. 408.
392 Final Technical Report (Exhibit CRI-3), para. 409.
393 Dominican Republic's response to Panel question No. 35, paras. 117-118.
394 Dominican Republic's response to Panel question No. 35, para. 121.
395 Dominican Republic's response to Panel question No. 35, para. 122.
396 Final Technical Report (Exhibit CRI-3), para. 410.
397 Final Technical Report (Exhibit CRI-3), para. 411.
398 Final Technical Report (Exhibit CRI-3), para. 412.
399 See Final Technical Report (Exhibit CRI-3), para. 362.
400 See para. 7.251. above. See also Panel Report, US - Coated Paper (Indonesia), para. 7.261
(referring to Appellate Body Report, US — Softwood Lumber VI (Article 21.5 - Canada), para. 109).

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7.263. The CDC's analysis, however, does not mention how it determined the rates of increase of
imports used in each of the three scena rios to project the alleged progression in imports up to the
year 2022.401 At the same time, the projected increase in imports from Costa Rica in the "baseline"
scenario (i.e. an annual increase of 3%) cannot, in our view, be considered a substantial increase in
imports, and the CDC does not explain which of the scenarios is the most likely to occur. 402 In
particular, it is not clear from the record in which of these scenarios the CDC considered there to be
"a significant rate of increase of imports … indicat ing the likelihood of substantially increased
importation".
7.264. Furthermore, we observe that the facts available on the record do not appear to support
several of the assumptions on which the CDC based its projections. In particular, in the "price
adjustment" scenario, the CDC's assumptions about the change in ADC "[are] based on … an annual
growth rate of 3.0% generated by growth in [gross domestic product]". 403 However, we observe
that the CDC itself states that "in 2016 and 2017, ADC [had] declined by 1.36% a nd 22%"404 and,
as a result, we do not see how the facts on the record support the assumption that the investigated
product's ADC would increase at a constant annual rate of 3%. Furthermore, the CDC makes the
assumptions that "[i]f the domestic industry red uced its price by [[***]], it can be assumed that
growth in the domestic industry's sales of local rods could be maintained at its historical annual rate
of [[***]]"405 and that this would lead to an "increase in the total volume of rods". 406 However, we
observe that, in 2016, the domestic industry's prices fell by 17.5%407, its ADC declined by 1.36%408
and its sales volumes increased by 9.94% compared with 2015. 409 Based on these facts, it is not
clear to us that a [[***]] decline in the domestic industry's pri ces would result in an increase in
domestic consumption and only a modest increase in the domestic industry's sales volumes, as the
CDC estimated. Consequently, any projection of future imports made on the basis of these
assumptions would not appear to be based on the facts on the record.
7.265. Similarly, in the "quantity adjustment" scenario, we observe that the CDC makes a series of
assumptions about the volume of imports from Costa Rica that are not aligned with the facts
available on the record. In particular , the CDC estimated that under this scenario imports
from Costa Rica would stand at 65,805 MT in 2018. 410 However, the record shows that, for this
period (January-December 2018), the CDC recorded a rise in Costa Rican imports to 42,462.32 MT
(i.e. 1.5 times lower than the amount estimated by the CDC as the basis for its projections). 411

401 The Dominican Republic explains that this analysis was supported by an internal economic analysis
and seeks to explain the methodology used in its responses to the Panel's questions (see Dominican Republic's
responses to Panel questions No. 35 and No. 101). However, these explanations cannot be found in any part of
the CDC's determination. We recall that "[a] threat of injury determination thus requires that the determination
of the investigating authority clearly disclose its inferences and explanations in order to ensure that any
projections or assumptions made by it regarding likely future occurrences, are adequately explained and
supported by positive evidence on the record" (Appellate Body Report, US — Softwood Lumber VI
(Article 21.5 - Canada), para. 7.261).
402 In its analysis of the "likelihood of entry of further Costa Rican imports and the possible impact on
the domestic industry", in section 7.16 of the Final Technical Report, the CDC also explains that it conducted a
Monte Carlo analysis, which "involves the simulation of 5,000 quantity variations that could be applied by
ArcelorMittal over a three-year period, which may range from 60,000 MT (an annual increase of 20,000 MT)
to 120,000 MT (an annual increase of 40,000 MT)". (Final Technical Report (Exhibit CRI-3), para. 413). We
note that, based on this analysis, the CDC came to conclusions with respect to the likelihood of losses and loss
of value that the domestic industry would suffer. As such, this analysis has nothing to do with the increase in
the imports.
403 Dominican Republic's response to Panel question No. 101, para. 165.
404 Final Technical Report (Exhibit CRI-3), para. 296.
405 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 346.
406 Final Technical Report (Exhibit CRI-3), para. 346. See also Dominican Republic's response to Panel
question No. 101, para. 165, in which the Dominican Republic explains that it assumes that "the 17%
depression in the price of domestic industry rods … would lead to an increase of 5.8% in total demand for
rods".
407 Final Technical Report (Exhibit CRI-3), table 22.
408 Final Technical Report (Exhibit CRI-3), table 18.
409 Final Technical Report (Exhibit CRI-3), table 26.
410 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), table 40.
411 Concerning the fact that the CDC took into account information on AlcelorMittal's contractual
obligations with respect to new supplies when considering the scenarios alleged by the Dominican Republic,
we note that the contract refers to sales in an amount of 3,000 MT/month (which implies an annual total of
36,000 TM) and a strategy to achieve a market share of 15%, with the market estimated to represent

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Therefore, any projection of future imports drawn from this inaccurate volume of 65,805 MT is not,
in our view, based on the facts on the record.
7.5.4.3.2 Sufficient disposable, or an imminent, substantial increase in, capacity
7.266. Costa Rica argues that the approaches relied upon by the CDC are not sufficient to
demonstrate a likelihood of the exporting company's freely disposable capacity resulting in a
substantial increase in exports, and therefore that the CDC's conclusion is not based on an objective
assessment of positive evidence.412 Moreover, Costa Rica states that the CDC does not adequately
explain why other markets would not absorb any possible increase in the installed capacity us e of
the exporting company.413
7.267. The Dominican Republic refutes these arguments. First, the Dominican Republic states that
none of Costa Rica's arguments objects to the CDC's conclusion that there was freely disposable
capacity in Costa Rica.414 Second, the Dominican Republic notes that Article 3.7 does not require a
"clear" determination that exports will occur in the future 415; rather, it requires an investigating
authority to examine whether these exports are "likely" to occur. 416 Third, the Dominican Republic
submits that Article 3.7 gives the investigating authority some discretion to draw reasonable
inferences from the facts before it, including to make assumptions about the occurrence of future
events.417
7.268. We note that the CDC de termined that "according to the data provided by ArcelorMittal
Costa Rica, the company ha[d] the capacity to produce about 350,000 metric tonnes of the product
per year" and that, during the POI, it had not reported any changes in its installed capacity. 418
Moreover, after comparing this with the exporting company's actual capacity utilization, the CDC
noted that the company "ha[d] a large freely disposable capacity of 55% in the most recent period,
which would allow it to increase the volume of production and thus of exports of the product under
investigation in the short term". 419 In this regard, the CDC further noted that "the existing
contractual obligations between the exporting company and various Dominican importers [wa]s a
clear indication" of "[the co mpany's] intention to continue to export its products to the
Dominican Republic in the short term". 420 With respect to export markets other than the
Dominican Republic, the CDC also carried out an analysis of the export volumes of the exporting
company to v arious markets, and analysed the conditions in some of these markets. 421 Thus, for
Nicaragua and Honduras, the CDC observed a drop in imports of construction materials, and for the
United States, it noted the imposition of additional tariffs of 25% on alumi nium and steel. 422 The
CDC also noted that "ArcelorMittal's strategy [wa]s to place its products in other countries on account
of the limitations … in Costa Rica's market, in which [the company had] seen its sales replaced by
imported products and ha[d] los t market share".423 Furthermore, the CDC found that "since 2016,

320,000 MT per year (which implies a maximum volume of 48,000 MT). As such, this does not come close to
the estimated volume of imports from Costa Rica provided by the CDC in its "quantity adjustment" scenario.
412 Costa Rica's opening statement at the first meeting of the Panel, para. 52. Costa Rica explains that
many companies are export-oriented, but that this in itself is insufficient to conclude that there is a likelihood
of substantially increased exports by the company in question and that the increase would be directed to a
specific market. (See Costa Rica's first written submission, para. 151).
413 Costa Rica's first written submission, para. 152. Costa Rica adds that the CDC also ignored the
behaviour of exports to the Dominican Republic from other countries and simply assumed that Costa Rica's
exports would displace exports from other countries. (See Costa Rica's first written submission, para. 153).
414 Dominican Republic's first written submission, para. 503.
415 Dominican Republic's second written submission, para. 198.
416 Dominican Republic's second written submission, para. 198; and Panel Report, US — Coated Paper
(Indonesia), paras. 7.261-7.262.
417 Dominican Republic's second written submission, para. 198; and Appellate Body Report,
Mexico - Corn Syrup (Article 21.5 - US), para. 85.
418 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 310.
419 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 311.
420 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 325.
421 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), paras. 319-320 and table 21.
422 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 320.
423 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 327. In this regard, the
CDC noted that, "as a result of Costa Rica reducing the tariff on imports of steel rod from 14% to 5% in 2011,
the market share of ArcelorMittal, the only company producing the product under investigation in Costa Rica,
fell from 75% to around 50%". (Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)),
para. 313).

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the Dominican Republic has been an attractive destination for ArcelorMittal exports and was the
main market for its sales abroad during the period investigated".424 On the basis of its analysis, the
CDC concluded that "ArcelorMittal ha[d] significant productive capacity and, therefore, could
continue to increase its exports to the Dominican Republic within a short period of time".425
7.269. Thus, it seems clear to us that the CDC considered the installe d capacity of the exporting
company, how much of it was used and how much was freely disposable, and took into account the
situations in other historical export markets.
7.270. Furthermore, contrary to what Costa Rica asserts, we see nothing in Article 3.7 that requires
an investigating authority to explain why it considers that a company's export strategy would
necessarily lead it to export to a particular market, that requires it to analyse in detail the reasons
why other markets would not absorb any increase in the use of spare capacity or that requires it to
assess whether exports from other countries are likely to increase. Article 3.7 (ii) provides only that
the "freely disposable … capacity of the exporter" must indicate "the likelihood" of substantially
increased importation. In the case at hand, the CDC concluded that the exporting company " ha[d]
significant productive capacity and, therefore, could continue to increase its exports to the
Dominican Republic within a short period of time".426
7.5.4.3.3 Price depression and suppression
7.271. Costa Rica argues that the price effects analyses that the CDC conducted in its threat of
injury analysis and its conclusions are retrospective and do not concern the "prospective effect" of
imports on domestic prices, as required by Artic le 3.7 (iii). Moreover, Costa Rica claims that the
CDC's analysis is deficient because the CDC failed to take into account other factors, such as the
prices of imports from other sources and the fact that the domestic industry’s price was on an upward
trend.427
7.272. The Dominican Republic does not dispute Costa Rica's assertion that the CDC's conclusions
on prices do not refer to their future effects, but it stresses that the CDC conducted several additional
analyses estimating the likely effects of the volume an d prices of the dumped imports from
Costa Rica. According to the Dominican Republic, all the analyses carried out by the CDC on the
price effects during the POI and on the effects of the estimated future prices were part of the CDC's
threat of material injury determination.428
7.273. The Dominican Republic submits that, in any event, the third factor in Article 3.7 essentially
refers to prices during the POI (i.e. whether imports "are entering" at prices that will have a
depressing or suppressing effect on prices), and contends that undercutting is an important
consideration in this regard. 429 In this respect, the Dominican Republic adduces that the CDC's
analysis of the effect of reducing the prices of the dumped imports took into account data for 2017
but also indicated what would have to happen in terms of price decreases in order to maintain sales
volumes. Thus, the Dominican Republic submits that the situation during the POI is a relevant basis
from which future events can be inferred.430 Accordingly, the Dominican Republic states that all the
analyses carried out by the CDC on the price effects during the POI and on the effects of estimated
future prices were part of the threat of material injury determination.431
7.274. We note that Article 3.2 requires the authorities to consider "whether there has been a
significant price undercutting", or whether the effect of such imports is "to depress" prices or
"prevent" price increases. Moreover, Article 3.7 (iii) provides that investigating authorities should
consider "whether imports are entering at prices that will have a significant depressing or
suppressing effect on domestic prices, and would likely increase demand for further imports".

424 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 327.
425 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 328.
426 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 328. (emphasis added)
427 Costa Rica's second written submission, paras. 162 and 173.
428 Dominican Republic's first written submission, para. 528.
429 Dominican Republic's first written submission, para. 523.
430 Dominican Republic's first written submission, para. 527.
431 Dominican Republic's first written submission, para. 528.

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Therefore, in contrast to the analysis required by Article 3.2, the consideration required by Article 3.7
(iii) is essentially prospective.
7.275. In section 7.5.2 above, we examined the CDC's analysis of the effects of Costa Rica's imports
on domestic prices during the POI and concluded that Costa Rica failed to establish that the CDC's
examination of price undercutting and price suppression was inconsistent with Articles 3.1 and 3.2.
We agree with previous panels that the factors set out in Article 3.2 may be relevant when considered
in a "predictive" context in making a threat of material injury determination.432
7.276. In any event, we note the Dominican Republic's argument that the CDC did carry out
additional analyses estimating the likely volume and p rice effects of the dumped imports. In this
regard, the CDC noted the following:
[F]or the domestic industry not to be displaced by Costa Rican dumped imports, it would
have to reduce the price by approximately [[***]]. If the domestic industry reduced its
price by [[***]], it can be assumed that growth in the domestic industry's sales of local
rods could be maintained at its historical annual rate of [[***]], while ArcelorMittal
would account for the rest of the increase in the total volume of r ods. Failing that, the
combination of the price reduction to maintain the sales volume would cause the
domestic industry's sales value to fall by [[***]], while the value of the domestic
industry would decline by [[***]].433
7.277. The Dominican Republic also refers to the "additional analyses" in paragraphs 408-415 and
518-519 of the Final Technical Report. 434 In paragraph 410, the CDC notes that "[i]n the price
adjustment scenario, the decline in the price of rods would increase their consumption to almost
[[***]] thousand MT in 2022, of which slightly more than [[***]] thousand would be supplied by
the domestic industry and 121,000 by the various sources of imports". 435 Further on, in
paragraph 412, the CDC concludes that "[i]f the domestic industry decided not to reduce prices, it
would allow its domestic sales to be displaced".436
7.278. We understand that these conclusions of the CDC are based on the projections that we have
already evaluated above and determined not to be based on facts. 437 We therefore do not believe
that the references cited by the Dominican Republic serve to support its argument that the CDC did
consider the factor in Article 3.7 (iii).
7.5.4.3.4 Inventories of the product being investigated
7.279. Costa Rica argues that the exporting company's inventory levels did not give cause to believe
that there would be a substantial increase in imports of the product at dumped prices in the near
future.438 Costa Rica further maintains that, contrary to the Dominican Republic's contention, there
is nothing in the CDC analysis to suggest that the inventory level was an indication of the threat of
injury and that, in fact, the CDC dismissed the inventory levels as irrelevant and did not consider
them to be indicative of such a threat.439

432 Panel Report, US — Coated Paper (Indonesia), para. 7.313 ("nothing in Article 3.7 … require[s] an
investigating authority to have found negative price effects during the POI as a prerequisite for concluding that
negative price effects will occur in the imminent future"); and Panel Report, US – Softwood Lumber VI,
para. 7.111 ("[w]ith respect to the factors set out in Article 3.2 of the AD Agreement … we see even less basis
for concluding that they must be directly considered in a 'predictive' context in making a threat of material
injury determination. Th[is] provision[] requires the investigating authorities to consider events in the past,
during the period investigated, in making a determination regarding present material injury").
433 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 346.
434 Dominican Republic's first written submission, para. 522.
435 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 410.
436 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 412.
437 See paras. 7.263. -7.265. above.
438 Costa Rica's first written submission, paras. 167-169.
439 Costa Rica's second written submission, paras. 186-187. Costa Rica adds that the
Dominican Republic incorrectly confuses inventory (which, by definition, already existed, hence the use of the
term "existencias" in Spanish) with the idle capacity. (Costa Rica's second written submission, para. 186).

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7.280. The Dominican Republic submits that the CDC det ermined that the exporting company's
inventory level was not a decisive factor in determining the threat of material injury, since the CDC
found that the company did not keep a large stock. Rather, according to the Dominican Republic,
the CDC determined th at the company would start production once an order had been placed. 440
The Dominican Republic adds that the CDC determined that the exporter had a significant free
production capacity of 55%, which clearly demonstrated that production and exports could
significantly increase in the short term.441
7.281. We note that, in its analysis of inventories of the product being investigated, the CDC found
that "the increase in ArcelorMittal's inventories [wa]s in line with the increase in its production of
the product under investigation, accounting for approximately [[***]]% to [[***]]% of the total
production of the product at the end of each financial year". 442 The CDC also noted that,
notwithstanding the behaviour of ArcelorMittal's inventory levels, the company's idle pro duction
capacity, which stood at 55% during the most recent period, would enable it to increase production,
and thus its exports, within a short period of time. 443 The CDC also emphasized that "ArcelorMittal
manufacture[d] after price negotiations and the receipt of purchase orders, which would justify the
inventory levels" of the company.444
7.282. Costa Rica's argument centres on the fact that, in its view, the inventory level did not give
cause to believe that there would be a substantial increase in imports of the product at dumped
prices in the near future.445 However, we note that the CDC did not reach that conclusion. Rather,
the CDC considered that the exporting company did not, in fact, keep a large inventory owing to the
nature of its production (in other words, "ArcelorMittal manufacture[d] after price negotiations and
the receipt of purchase orders"), but that this did not preclude reaching the conclusion that, on the
basis of the company's freely disposable capacity, it could increase its production, and consequently
its exports, within a short period of time.
7.283. In addition, we recall that no one of the factors set out in Article 3.7 "by itself can necessarily
give decisive guidance but the totality of the factors considered must lead to the conclusion that
further dumped exports are imminent". Consequently, the mere fact that the exporting company's
inventory level was not, in itself, an indicator of a threat of injury does not, in our view, mean that,
in combination with other factors, it could not serve as a basis for concluding that further dumped
exports were imminent.
7.5.4.3.5 Whether the CDC's determination, based on the totality of the factors
considered, is consistent with Article 3.7
7.284. We recall that Article 3.7 provides that the totality of the factors considered by an
investigating authority must lead to the conclusion that "further dumped exports are imminent" and
that, unless protective action is taken, "material inj ury would occur". Accordingly, investigating
authorities should not only determine whether "further … imports are imminent" but also reach a
conclusion on whether, unless protective action is taken, "material injury would occur".446
7.285. Regarding the first elem ent of this examination, we note that, in its threat of injury
determination, the CDC stated that there were "sufficient elements" to conclude that "the entry into
the Dominican Republic of further imports from Costa Rica at dumped prices in the short term [was
imminent]".447 The CDC based its conclusion on the following considerations:
a. imports from Costa Rica accounted for 26-28% of total import volumes during the POI;

440 Dominican Republic's first written submission, para. 421.
441 Costa Rica's second written submission, para. 186.
442 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 357.
443 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 359.
444 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 360.
445 Costa Rica's first written submission, para. 167.
446 Panel Report, Mexico — Corn Syrup, para. 7.125. (emphasis omitted)
447 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 362.

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b. in relative terms, these imports grew by 156% from 2016 to 2017, and by 38% in the
most recent period;
c. ArcelorMittal has the capacity to produce about 350,000 MT of the product under
investigation per year, and in 2015, it used only 26.7% of its productive capacity, while in
2016 and 2017, the utilization rate rose to 38.5% and 48.1%, respectively, as part of an
upward trend in the utilization of its productive capacity;
d. ArcelorMittal had a freely disposable capacity of 55% in the most recent period;
e. ArcelorMittal has the capacity to replace all other exporters of rods to the
Dominican Republic and to replace a significant share of domestic production;
f. the prices of imports from Costa Rica depress domestic sales prices, adversely affecting
the economic and financial indicators of the domestic industry;
g. ArcelorMittal increased its utilization of production capacity at the same time as it began
to export to the Dominican Republic, which is the main destination for the company's
exports;
h. ArcelorMittal's loss of domestic market share;
i. in 2017, ArcelorMittal requested the initiation of a safeguard investigation concerning steel
bars and rods on the grounds that it was suffering serious damage because of the product's
increasing trend in the domestic market;
j. the drastic change in the destination of ArcelorMittal's sales from the domestic market to
overseas;
k. even though, in 2018, ArcelorMittal increased its export sales to other markets, the
Dominican Republic continued to be its main export market;
l. ArcelorMittal is contractually obliged to supply a minimum monthly average of 3,000 MT
of products (including the product under investigation) and to increase its market share
by [[***]] by the end of 2018;
m. notwithstanding the behaviour of ArcelorMittal's inventory levels, its idle production
capacity would enable it to increase production, and thus its exports; and
n. owing to limitations in Costa Rica's domestic market, ArcelorMittal's strategy is to place
its products in other countries.448
7.286. It is clear from the CDC's determination that the key bases for its threat of injury
determination are the conclusions that the exporting company "ha[d] a freely disposable capacity of
55%" and that it had "increased its share of the Dominican market in recent years". 449 However,
having examined the CDC's analysis of the rate of incr ease of imports, we do not see how the
historical increase in imports can support its conclusion of a threat of injury. As discussed above,
the CDC merely described the historical rates of increase in imports from Costa Rica, without
explaining why they were indicative of a substantial increase in imports. Therefore, while the facts
on which the CDC relied could support the conclusion that dumped imports would remain at the
levels reached in the past, we do not see how this could be sufficient to indicate t he likelihood of a
substantial increase in imports and thus to support the conclusion of a threat of injury.450 In addition,

448 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 361.
449 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 362.
450 Moreover, while events that took place during the POI "do not limit the scope of projections that the
authority may make concerning future events" (see Panel Report, US — Coated Paper (Indonesia),
para. 7.277), we recall our findings in paragraphs 7.262. -7.265. above that the CDC's projections about the
change in the volume of imports up to the year 2022 were not part of the CDC's conclusions regarding a
likelihood of substantially increased importations and that, in any event, some of the conclusions and/or
elements on which the CDC based these projections were not supported by the facts on the record or pointed

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we note that, although imports from Costa Rica increased significantly from 2016 onwards,
particularly in 2017 (when they were 156% higher than the year before), import growth slowed in
2018 to 22%.451
7.287. As we have noted, the CDC also mentions the freely disposable capacity of the exporting
company to support its determination of a threat of injury. Specifically, the CDC noted that
ArcelorMittal had "a large freely disposable capacity of 55% in the most recent period, which would
allow it to increase the volume of production and thus of exports of the product under investigation
in the short term".452 In this context, the CDC also noted tha t the increase in the utilization of the
exporting company's productive capacity had coincided with when it began exporting to the
Dominican Republic, which was the destination for between 32% and 40% of the company's exports
during the POI.453 However, we consider that the exporter's freely disposable capacity alone cannot
support a conclusion that further exports are "imminent". While an existing production capacity may
be indicative of potential to export, we do not see how this fact on its own can substa ntiate the
"imminence" of further exports.
7.288. The CDC attempts to bolster this conclusion with an analysis of the competitive pressures
experienced by ArcelorMittal in the Costa Rican domestic market. Thus, the CDC refers to a study
by the Government of Costa Rica that estimates the effect of reducing the tariff on imports of steel
rod in 2011 and the resulting loss of market share by ArcelorMittal in the Costa Rican market.
According to the CDC, owing to these limitations in the domestic market, ArcelorMittal developed a
strategy to place its products in other markets. The CDC also noted that ArcelorMittal requested the
Costa Rican Government to initiate a safeguard investigation on rods.454
7.289. We do not see how these elements would support a conclusion of imminent further imports.
The CDC does not explain why the effect of the 2011 tariff reduction is so long -lasting as to result
in imminent further imports to the Dominican Republic in the future. Furthermore, the record reveals
that, in absolute terms, ArcelorMit tal's sales in Costa Rica's domestic market actually increased
during the POI. 455 We also fail to see how the fact that a company requested a safeguard
investigation would support the conclusion that further imports to the Dominican Republic were
imminent. In other words, in our view, a possible safeguard measure would presumably alleviate
the pressure exerted by imports on the domestic market and would enable domestic producers to
increase their domestic sales. Therefore, the elements referred to by the CDC do not appear to
support its conclusion that further imports are imminent.
7.290. The CDC also noted a number of elements that, in its view, supported its conclusion that
further dumped exports were imminent. In particular, the CDC considered that the contractual
obligations between ArcelorMittal and a Dominican importing company to supply a minimum monthly
average of 3,000 MT of long steel products (including the product under investigation) and to
increase its market share by [[***]]% by the end of 2018 was "a clear indication of the company's
intention to continue to export its products to the Dominican Republic in the short term".456 However,
this alleged "intention" is not sufficient to support the conclusion that further exports are imminent.
This contract also covered products other than the dumped product and related to an increase in
imports over a period running up to 2018. Consequently, we fail to see how the contractual
obligations cited by the CDC could support its conclusion that further expo rts are imminent in the
future.
7.291. Regarding the second element to be addressed in a conclusion of a threat of injury, we note
that "[a] determination that material injury would occur cannot … be made solely on the basis of

to growth that was not substantial. For these reasons, we further reject the Dominican Republic's argument
that "the CDC attempted to conduct a quantitative analysis of what could occur in a baseline scenario of
increased imports". (Dominican Republic's response to Panel question No. 91, paras. 91-92).
451 Final Technical Report (Exhibit CRI-3), para. 292.
452 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 361 (v).
453 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 361 (ix).
454 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), paras. 314-315.
455 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), table 21.
456 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), paras. 325 and 361 (xiv).

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consideration of the Article 3.7 fa ctors".457 Rather, an investigating authority must also "include
consideration of the likely impact of further dumped imports on the domestic industry".458
7.292. Having examined the CDC's threat of injury determination, we note that the CDC calculated
that "for the domestic industry not to be displaced by Costa Rican dumped imports, it would have
to reduce the price by approximately 17%". 459 However, this determination does not contain any
analysis of the future development of the domestic industry in the light of this hypothetical decrease.
We also note that the CDC concluded that "[i]f the domestic industry decided not to reduce prices,
it would allow its domestic sales to be displaced [and that] [f]or example, in the event that
ArcelorMittal used around half of its idle ca pacity, 90,000 metric tonnes, over a three -year period,
the impact on the value of the domestic industry would be significant ". 460 In other words, the
company's market share would follow a downward trend over the three-year period, and the annual
average domestic sales value would fall, as would the "value of the company".461 We note that both
conclusions are based on the CDC's projections about the change in the volume of imports up to the
year 2022. However, as we have found above, some of the conclusions and/or elements on which
the CDC based these projections were not supported by the facts on the record.462
7.293. The Dominican Republic notes the CDC's conclusion that:
[G]iven the high elasticity of substitution between imported and domestically-produced
rods due to the product's homogeneity, the domestic industry would have to reduce its
prices significantly[, since, f]or example, in 2017, the average c.i.f. price of the rod
exported by ArcelorMittal from Costa Rica was USD 536.8 per MT, which is [[***]] %
lower than the average price of the rod manufactured and sold by the domestic
industry.463
7.294. We fail to see how the mere fact that the price of the imported products is lower necessarily
implies a significant decline in the domestic industry’s prices, especially considering the upward trend
in the prices of these imports noted by the CDC. 464 We recall that any projections or assumptions
made by an investigating authority regarding likely future occurrences must be adequately explained
and supported by positive evidence on the record and show a high degree of likelihood that projected
occurrences will occur.465 We do not see how the CDC's conclusion satisfies this requirement.
7.295. Lastly, on a general level, we note that the CDC's determination did not conclude that the
situations described above would cause "material injury" to the domestic industry unless measures
are imposed.
7.296. Consequently, bearing in mind the factors considered by the CDC and the explanations
provided in its threat of injury determination, we conclude th at the CDC's threat of injury
determination is inconsistent with Articles 3.1 and 3.7 of the Anti-Dumping Agreement.
7.297. Costa Rica raises an additional argument that the threat of injury determination did not
satisfy the applicable requirements of Article 3.7 because the CDC "failed to identify a clearly

457 Panel Report, Mexico — Corn Syrup, para. 7.125.
458 Panel Report, Mexico — Corn Syrup, para. 7.125. We agree with the panel's statements in
Mexico — Corn Syrup that:
"[The Article 3.7 factors] are not … relevant to a decision concerning what the 'consequent
impact' of continued dumped imports on the domestic industry is likely to be. However, it is
precisely this latter question - whether the 'consequent impact' of continued dumped imports is
likely to be material injury to the domestic industry - which must be answered in a threat of
material injury analysis. Thus, we conclude that an analysis of the consequent impact of imports
is required in a threat of material injury determination".
(Panel Report, Mexico — Corn Syrup, para. 7.126).
459 Final Technical Report (Exhibit CRI-3), para. 346.
460 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 412.
461 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 412.
462 See paras. 7.264. -7.265. above.
463 Dominican Republic's response to Panel question No. 93, para. 99 (quoting Final Technical Report,
paras. 344-345; and Essential Facts Report (Exhibit DOM-2 (BCI)), para. 259).
464 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), table 22.
465 See para. 7.251. above.

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foreseen and imminent change in circumstances". 466 The parties disagree over whether Article 3.7
requires a specific analysis on this issue. 467 In our view, an assessment of whether the change in
circumstances was "clearly foreseen and imminent" in a specific situation "in which the dumping
would cause injury" is possible only when the situation in question is identified by the investigating
authority. In this case, however, the investigating authority failed to properly evaluate the
consequent impact of future dumped imports on the domestic industry or to identify a situation in
which the dumping would cause injury. We therefore express no view on this argument
by Costa Rica.
7.5.4.4 Conclusion
7.298. In sum, on the basis of all the foregoing considerations, we find that the Dominican Republic
acted inconsistently with Articles 3.1 and 3.7 of the Anti -Dumping Agreement because the CDC's
conclusions on the imminence of further exports and on the likely effects of further dumped imports
on the domestic industry could not form the basis for its threat of injury determination under these
provisions.
7.5.5 Costa Rica's claims under Articles 3.1 and 3.5 of the Anti-Dumping Agreement
7.299. Costa Rica claims that the CDC's causation analysis is neit her adequate nor sufficient to
establish that Costa Rica's imports had "the characteristics of a 'genuine and substantial' cause of
threat of injury". 468 In particular, Costa Rica asserts that the CDC's examination was limited to
assessing whether there wer e other factors causing injury to the domestic industry at the same
time; in other words, a non-attribution analysis.469 However, according to Costa Rica, although the
non-attribution assessment is mandatory, it is in itself insufficient to meet the obligation under
Article 3.5 of the Anti -Dumping Agreement. 470 With respect to this non -attribution analysis,
Costa Rica claims that the CDC's conclusions on "other factors" that were causing injury to the
domestic industry at the same time do not amount to an objective examination based on positive
evidence.471
7.300. The Dominican Republic responds that the CDC established a causal link between the
dumped imports and the performance of the domestic industry with respect to individual injury
factors and the performance as a whole. 472 Moreover, the Dominican Republic states that this
analysis is spread across several parts of the CDC's determination, since there is no obligation for
an investigating authority to present all the facts and analyses in its determination under one
heading.473 Regarding the non -attribution obligation, the Dominican Republic maintains that
Costa Rica's arguments are unfounded.474 In particular, the Dominican Republic indicates that the
CDC examined other known factors that could have injured the domestic industry at the same time
as the dumped imports and found that no factor broke the established causal relationship.475
7.5.5.1 Applicable requirements of Articles 3.1 and 3.5 of the Anti-Dumping Agreement
7.301. Costa Rica bases its claims of violation on Articles 3.1 and 3.5 of the Anti -Dumping
Agreement. We have already examined the applicable requirements of Article 3.1 in
section 7.5.2.2 above.476
7.302. Article 3.5 of the Anti-Dumping Agreement provides:

466 Costa Rica's second written submission, para. 135.
467 Costa Rica's response to Panel question No. 108, para. 52; and Dominican Republic's response to
Panel question No. 107, paras. 205-207.
468 Costa Rica's first written submission, para. 181.
469 Costa Rica's first written submission, para. 179.
470 Costa Rica's first written submission, para. 180.
471 Costa Rica's first written submission, para. 191.
472 Costa Rica's first written submission, para. 191.
473 Dominican Republic's first written submission, para. 373.
474 Dominican Republic's first written submission, paras. 370 and 385.
475 Dominican Republic's opening statement at the first meeting of the Panel, para. 58.
476 See in particular paras. 7.128. and 7.130. above.

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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 eviden ce
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 imp orts.
Factors which may be relevant in this respect include, inter alia, the volume and prices
of imports not sold at dumping prices, contraction in demand or changes in the patterns
of consumption, trade restrictive practices of and competition between the foreign and
domestic producers, developments in technology and the export performance and
productivity of the domestic industry.
7.303. Article 3.5 thus requires investigating authorities to ascertain whether the dumped imports
are causing injury to the domestic industry ("causation") and, as part of that causation analysis, it
also requires investigating authorities to ensure that they do not attribute to dumped imports the
injury caused by known factors other than dumping ("non-attribution").477
7.304. The first sente nce of Article 3.5 requires that an investigating authority demonstrate that
the dumped imports are, "through the effects of dumping, as set forth in [Articles 3.2 and 3.4 ]",
causing injury. This provision thus requires the authority to bring together the findings arrived at
under Articles 3.2 and 3.4 to ascertain whether "the dumped imports are … causing injury".478
7.305. With respect to the demonstration of a causal relationship within the framework of a threat
of injury determination, we recall the Appellate B ody's statement that this positive requirement
implies "that an investigating authority demonstrate that further dumped … imports would cause
injury".479 We also note that a panel should "examine whether the [investigating authority] identified
and explained the positive evidence establishing a genuine and substantial relationship of cause and
effect between imports and threat of injury".480
7.306. The second sentence of Article 3.5 requires the authority to demonstrate a causal
relationship between the dumped impor ts and the injury "based on an examination of all relevant
evidence before [it]".
7.307. The third sentence of Article 3.5 requires an investigating authority to examine "any known
factors" that are causing injury at the same time as dumped imports, and ensure th at it does not
attribute the injury caused by those other factors to the dumped imports. The fourth sentence of
Article 3.5 lists some of the factors other than dumped imports that "may be relevant", and makes
it clear, by using the words "include, inter alia", that the list is not exhaustive.481
7.308. Article 3.5 requires an authority to examine injurious factors other than dumping only when
the factors are "known" to it. For a factor to be "known", it must have "come within the scope of
knowledge" of the authority, which is typically the case when interested parties have substantiated
the existence of such a factor during the anti -dumping proceedings.482 In addition, we note that a
factor cannot be known "in one stage of the investigation [such as in the dumping a nd injury
analyses] and unknown in a subsequent stage [such as the causation analysis]".483

477 Panel Report, Pakistan — BOPP Film (UAE), para. 7.429.
478 See also e.g. Panel Report, Pakistan — BOPP Film (UAE), para. 7.430 and Appellate Body Report,
China — GOES, para. 128.
479 Appellate Body Report, US — Softwood Lumber VI (Article 21.5 — Canada), para. 132.
480 Appellate Body Report, US — Softwood Lumber VI (Article 21.5 - Canada), para. 132 (referring to
Appellate Body Report, US — Wheat Gluten, para. 69) (fn omitted). See also Appellate Body Report, US – Steel
Safeguards, para. 485.
481 Panel Report, Pakistan — BOPP Film (UAE), para. 7.432.
482 Panel Report, Pakistan — BOPP Film (UAE), para. 7.432 (quoting Oxford Dictionaries online,
definition of "known", https://www.oed.com/search?searchType=dictionary&q=known&_searchBtn=Search
(accessed 27 October 2020), adj., meaning A1b). See also, e contrario, Panel Reports, China — X-Ray
Equipment, para. 7.267; China — Autos (US), paras. 7.322-7.323; Thailand — H-Beams, para. 7.273; and
EU — Footwear (China), para. 7.484.
483 Appellate Body Report, EC — Tube or Pipe Fittings, para. 178.

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7.309. Once the other factors are "known" to it, the investigating authority must "examine" them
and "not … attribute[] to the dumped imports" "the injuries caused by these other factors".484 This
requires the authority to identify, and "separat[e] and distinguish[,] the injurious effects of the other
factors from the injurious effects of the dumped imports" 485, because otherwise, the authority will
not have a rational basis to ensure that it does not attribute those injuries to the dumped imports.486
7.310. In the specific case of a threat of injury finding, a previous panel understood the obligation
laid down in the third sentence of Article 3.5 to "encompass non-attribution of injury by other known
factors threatening to cause injury to the domestic industry".487
7.311. Article 3.5 does not set out a specific methodology for investigating authorities to follow in
their examinations. However, the methods applied by an investigating authority must comport with
the overarching obligation in Article 3.1 to undertake an objective examination based on positive
evidence.488
7.312. As can be seen from the considerations relating to the applicable legal framework, Article 3.5
establishes two separate b ut complementary obligations. Costa Rica has raised its claims on this
understanding, and the Dominican Republic does not dispute this characterization of the obligations.
We will therefore start by examining Costa Rica's claim regarding the establishment of a causal
relationship, before turning to Costa Rica's claim concerning the non-attribution obligation.
7.5.5.2 Whether the CDC carried out a proper causation analysis
7.313. Costa Rica claims that the CDC failed to carry out a proper causation analysis. 489 In
particular, Costa Rica asserts that the CDC's determination was limited to assessing "whether there
were … factors other than the dumped imports which at the same time were injuring the domestic
industry; in other words, a non-attribution analysis"490, hence the causal relationship was assumed
to exist on account of the alleged absence of other factors.491 Costa Rica further states that, despite
being required to do so, the CDC failed to assess the arguments put forward by the exporting
company that there was no coinc idence in time between the movements in the imports and the
movements in injury factors, and that the domestic industry indicators showed a significant recovery
in 2018, even though imports from Costa Rica remained stable.492
7.314. The Dominican Republic refutes this claim. In particular, the Dominican Republic contends
that Costa Rica's argument is purely "formalistic and incorrect", since an authority cannot be
considered to have violated Article 3.5 simply because its conclusion on causation is not repeated in
a specific section of the report, when it is obvious that the authority established a causal link between
the dumped imports and the threat of injury.493 The Dominican Republic further argues that the CDC
concluded that there was a strong coincidence in tim e between the negative performance and the
significant increase in the volume of dumped imports494, and that, accordingly, the CDC determined
that a negative trend in several injury factors coincided with the presence of significant volumes of
dumped imports.495
7.315. We begin our analysis by recalling that, in order to demonstrate causation in the context of
a threat of injury, an investigating authority must find that further dumped imports would cause
material injury.496

484 Article 3.5 of the Anti-Dumping Agreement.
485 Appellate Body Report, US — Hot-Rolled Steel, para. 223.
486 See also e.g. Appellate Body Report, US — Hot-Rolled Steel, paras. 223 and 226.
487 Panel Report, US — Coated Paper (Indonesia), para. 7.206. (emphasis original)
488 Panel Report, Pakistan — BOPP Film (UAE), para. 7.435. See also Appellate Body Reports,
China — HP-SSST (Japan) / China — HP-SSST (EU), para. 5.141.
489 Costa Rica's first written submission, section XI.B.
490 Costa Rica's first written submission, para. 179.
491 Costa Rica's first written submission, para. 183.
492 Costa Rica's first written submission, para. 185.
493 Dominican Republic's opening statement at the first meeting of the Panel, para. 57.
494 Dominican Republic's first written submission, para. 376.
495 Dominican Republic's first written submission, para. 382.
496 See para. 7.305. above.

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7.316. The parties disagree as to whether the CDC did indeed conduct a causation analysis. As we
have noted, Costa Rica argues that the CDC limited itself to a non-attribution analysis. However, the
Dominican Republic considers that the causation analysis need not be contained in a single section
of the report497 and identifies various parts of the CDC's determination in which the CDC allegedly
carried out a causation assessment. 498 In particular, the Dominican Republic refers to numerous
paragraphs of the Final Technical Report in which the CDC noted that there was a temporal
correlation during the POI between a negative trend in the domestic industry and a movement in
imports from Costa Rica. The Dominican Republic notes that the correlation in time was clearly part
of the CDC's analysis and that it confir med the findings.499 The Dominican Republic also explained
the following:
[T]o the extent that there is a correlation between the dumped imports and trends in specific
injury factors, this provides a relevant factual basis for making reasonable assumptions about
the future impact of further dumped imports. This was the case with the underlying
investigation, in which the CDC found a temporal correlation between the state of the domestic
industry and the dumped imports from Costa Rica, which provides a factua l basis for making
reasoned assumptions about the future likelihood of a threat of injury.
7.317. We have examined sections 7 and 8 of the Final Technical Report, section 9 of the Essential
Facts Report and section D of the final determination, cited by the Domin ican Republic.500 We note
that in none of these sections, whether in the public or the confidential versions, does the CDC refer
to the issue of whether future injury could be caused by dumped imports. Moreover, we see nothing
in the evidence on the record (nor has the Dom inican Republic told us where in the record to look)
that shows that the CDC relied on the past correlation between the state of the domestic industry
and dumped imports "to make reasonable assumptions" that any future injury would be caused by
future dumped imports.
7.318. The Dominican Republic argues that, in section 7.16 of the Final Technical Report, the CDC
carried out an analysis "to determine the imminence of entry of further imports and their impact on
the domestic industry". 501 However, in our discussion above on the CDC's threat of injury
determination, we examined the CDC analysis contained in that section and found that it was not
based on facts and that the CDC's conclusion that the domestic industry was actually likely to suffer
material injury on account of further dumped imports was not substantiated. In such circumstances,
we fail to see how the CDC could conclude that such material injury would be caused by further
dumped imports.
7.319. We further note that, in its Final Technical Report, the CDC, referr ing to the causes of the
threat of injury, observed that "it ha[d] not identified 'factors other' than increased imports from
Costa Rica at dumped prices that [would] explain the threat of injury to the domestic industry". 502
Furthermore, in its final determination, the CDC reached the following conclusion:
No factors other than Costa Rican imports of steel bars or rods at dumped prices have
been identified as possible causes of the threat of injury to the domestic industry. The
Plenary Session of the Commissioners therefore concludes that the causal relationship
between the increase in dumped imports and the threat of injury to the domestic
industry is clearly demonstrated.503
7.320. We therefore fail to see how the CDC's conclusion on the causal relationship amount s to a
demonstration that further dumped imports would cause material injury.
7.321. In conclusion, we consider that the CDC acted inconsistently with Article 3.5 of the
Anti-Dumping Agreement by failing to conduct a proper analysis of the existence of a causal
relationship between further dumped imports and the threat of material injury. Given the

497 Dominican Republic's first written submission, para. 373.
498 Dominican Republic's first written submission, paras. 373 and 375-377.
499 Dominican Republic's first written submission, para. 373.
500 Dominican Republic's first written submission, para. 374.
501 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 408.
502 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), paras. 514 and 520.
503 Final determination (Exhibit CRI-2), para. 177. (emphasis original)

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circumstances, we will not examine whether the CDC also acted inconsistently with Article 3.5 by
failing to adequately address the arguments put forward by the exportin g company with respect to
whether there was a correlation between the dumped imports and the evolution of the domestic
industry during the POI.
7.5.5.3 Whether the CDC's non -attribution analysis was inconsistent with Articles 3.1
and 3.5
7.322. Costa Rica claims that the CDC's non -attribution analysis was inconsistent with the
requirements of Articles 3.1 and 3.5 of the Anti -Dumping Agreement. According to Costa Rica, the
CDC's conclusions do not amount to an objective examination based on positive evidence, as the
CDC failed to carry out a proper non-attribution assessment of the following factors: (a) the volume
and prices of non -dumped imports; (b) the decline in the domestic industry's exports; and
(c) developments in technology.504
7.323. The Dominican Republic does not agree with Costa Rica's claim and requests that it be
rejected.505
7.324. We note that Costa Rica's arguments in the course of these proceedings focus on the CDC's
analysis of the following factors: (a) the volume and prices of non-dumped imports; (b) the decline
in th e domestic industry's exports; and (c) developments in technology. Thus, in essence,
Costa Rica's arguments are limited to the alleged inadequacy of the CDC's analysis of these factors
during the POI, i.e. in the past . At the same time, we note that, in it s panel request, Costa Rica
makes its claim under Article 3.5 as follows:
[The Dominican Republic's measures are inconsistent with] Articles 3.1 and 3.5 of the
Anti-Dumping Agreement because, inter alia , the investigating authority … failed to
ensure that injury caused by other factors was not attributed to the allegedly dumped
imports. Most notably, but not exclusively, the investigating authority failed to
adequately examine the volume and prices of imports not sold at dumping prices,
developments in technology, and the export performance of the domestic industry.506
7.325. As we have noted, in order to demonstrate causation in the context of a threat of injury, an
investigating authority must find that further dumped imports would cause material injury .507
Similarly, we note that an investigating authority's obligation to conduct a non -attribution analysis
in the context of a threat of injury must focus on an assessment of whether factors other than
dumped imports would cause future injury.508
7.326. However, Costa Rica's claim and arguments do not focus on whether, in its non -attribution
analysis, the CDC addressed whether "other factors" could have caused injury in the future . We
therefore find no basis on which to make findings with respect to Costa Rica's claims concerning the
CDC's non-attribution analysis.
7.5.5.4 Conclusion
7.327. For the reasons set out above, we conclude that the Dominican Republic acted inconsistently
with Articles 3.1 and 3.5 of the Anti-Dumping Agreement because the CDC failed to conduct a proper
analysis of the existence of a causal relationship between further dumped imports and the threat of
material injury. Moreover, we find no basis on which to make findings with respect to Costa Rica's
claims under Article 3.5 concerning the CDC's non-attribution analysis.

504 Costa Rica's first written submission, para. 191.
505 Dominican Republic's first written submission, para. 385.
506 Costa Rica's panel request, para. 10. (emphasis added)
507 See paragraphs 7.305. and 7.315. above.
508 Panel Report, US — Coated Paper (Indonesia), para. 7.211.

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7.6 Costa Rica's claim under Article 5.3 of the Anti-Dumping Agreement: the initiation of
the investigation
7.6.1 Introduction
7.328. On 7 May 2018, the company, Gerdau Metaldom, submitted an application to the CDC to
initiate an anti-dumping investigation on imports of "corrugated or deformed steel rods and bars for
concrete reinforcement", identified under tariff subheadings "7213.10.00, 7213.20.90, 7214.10.00,
7214.20.00, 7214.30.00, 7214.91.00 and 7214.99.00", coming from Costa Rica. 509 As evidence of
the normal value, Gerdau Metaldom submitted four purchase invoices from two marketing
companies in Costa Rica (Materiales Villa SRL and Construplaza), which were issued on 2 June and
17 July 2017.510
7.329. Costa Rica argues that the Dominican Republic acted inconsistently with its obligations under
Article 5.3 because the CDC failed to examine properly the "accuracy" and "adequacy" of the
evidence submitted by the applicant to determine whether there was "sufficient" evidence of
dumping to justify the i nitiation of the investigation. 511 In particular, Costa Rica argues that the
invoices submitted as evidence of the normal value were not "representative", as they referred to
only one type of rod, covered a very low volume and were issued at around the same time, almost
a year before the submission of the application.512
7.330. The Dominican Republic responds that Costa Rica's claim is without merit because it is based
on an incomplete and incorrect presentation of the facts, and on an erroneous approach to the
evidence required under Article 5.3 to justify the initiation of an investigation.513
7.331. We begin our examination by recalling the applicable requirements of Article 5.3
(section 7.6.2 ). We will then examine whether, in view of the specific facts and circumstances of
this dispute, the Dominican Republic acted inconsistently with Article 5.3 (section 7.6.3 ).
7.6.2 Requirements applicable to Article 5.3 of the Anti-Dumping Agreement
7.332. We note that Article 5.3 of the Anti-Dumping Agreement provides that:
The authorities shall 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.
7.333. Article 5.3 thus requires investigating authorities to determine whether there is "sufficient"
evidence to justify the initiation of an investigation and, in doing so, to "examine" the "accuracy"
and "adequacy" of the evidence provided in "the application".514 The ordinary meaning of the Spanish
terms " exactitud" ("accuracy") and " pertinencia" ("adequacy") includes the definitions " exacto"
("exact") and "pertinente" ("relevant"), respectively.515 In turn, the following definitions form part
of the ordinary meaning of " exacto" ("exact"): " perfectamente adecuada; rigurosamente cierto o
correcto" ("perfectly adequate; strictly accurate or correct") 516; and for "pertinente" ("relevant"):

509 Application for initiation of the investigation (7 May 2018) (Exhibit DOM-11 (BCI)), sections II.1
and V.
510 Application for initiation of the investigation (7 May 2018) (Exhibit DOM-11 (BCI)), point 50 and
annex 4b; and sales invoices in Costa Rica (Exhibit DOM-21 (BCI)). See also Initial Technical Report
(Exhibit CRI-6), paras. 59 and 62.
511 Costa Rica's first written submission, para. 225; and second written submission, para. 256.
512 Costa Rica's first written submission, para. 232; and opening statement at the first meeting of the
Panel, para. 90.
513 Dominican Republic's first written submission, paras. 541 and 577; and second written submission,
para. 220.
514 The subject under examination pursuant to Article 5.3 is therefore the "evidence" provided in the
"application".
515 Diccionario de la Real Academia Española, definitions of "exactitud" ("accuracy") and "pertinencia"
("adequacy") https://dle.rae.es/exactitud and https://dle.rae.es/pertinencia%20?m=form, respectively
(accessed 10 October 2022), meaning 1.
516 Diccionario de la Real Academia Española, definition of "exacto" ("exact")
https://dle.rae.es/exacto?m=form (accessed 10 October 2022), meanings 2 and 4.

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"oportuno para una situación determinada" ("appropriate to a specific situation").517 An investigating
authority must therefore examine whether the evidence is adequate, accurate, correct and
appropriate.518
7.334. Lastly, we note tha t Article 5.3 requires the authorities to determine whether there is
"sufficient" evidence to justify the initiation. 519 The ordinary meaning of the term " suficiente"
("sufficient") includes the meaning " bastante para lo que se necesita " ("enough for what i s
needed").520 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 necessary information to enable it to initiate its investigation.521
7.335. We further note that, as other panels have stated, Article 5.3 does not indicate how this
examination is to be carried out or require an investigating authority to explain how that examination
was carried out.522 We therefore take the view that "the absolute threshold of sufficiency will depend
upon the circumstances of a given case"523, according to the circumstances of the case in question.524
7.336. In the light of the foregoing, the standard of review that we will apply to examine Costa Rica's
claim under Article 5.3 is whether an unbiased and objective investigating authority could have
determined that the application submitted by Gerdau Metaldom to the CDC contained sufficient
evidence to justify the initiation of an anti -dumping investigation on imports from Costa Rica of
corrugated or deformed steel bars or rods for the reinforcement of concrete.525
7.6.3 Whether the Dominican Republic acted inconsistently with Article 5.3 of the
Anti-Dumping Agreement
7.337. We begin our analysis by noting that Costa Rica's claim concerning the sufficiency of the
evidence of alleged dumping is limited to the evidence submitted by the applicant pertaining to
normal value. In this connection, we recall that, as part of its application to initiate an investigations,
the applicant submitted four sales invoices from two Costa Rican marketing companies (Materiales
Villa SRL and Construplaza S.A.).526 We also note that it is not disputed that these invoices refer to
bars produced by ArcelorMittal (the only exporter identified by the CDC527), and that they constitute
a product similar to the product under investigation.

517 Diccionario Reverso, definition of "pertinente" ("relevant") https://diccionario.reverso.net/espanol-
definiciones/pertinente (accessed 11 October 2022), meaning 1.
518 In this context, we note the panel's statement in Morocco — Definitive AD Measures on Exercise
Books (Tunisia) that "the examination of the accuracy and adequacy of the evidence [within the meaning of
Article 5.3 does not] require the investigating authority to ensure that the information provided is
'representative' of the whole period and of all types of the product under investigation". (Panel Report,
Morocco — Definitive AD Measures on Exercise Books (Tunisia), para. 7.378 (emphasis omitted)).
519 In this regard, we agree with the panel's statement in Guatemala — Cement II that "[i]t is however
the sufficiency of the evidence, and not its adequacy and accuracy per se, which represents the legal standard
to be applied in the case of a determination whether to initiate an investigation". (Panel Report,
Guatemala - Cement II, para. 8.31).
520 Diccionario de la Real Academia Española, definition of "suficiente" ("sufficient")
https://dle.rae.es/suficiente (accessed 6 December 2022), meaning 1.
521 Morocco - Definitive AD Measures on Exercise Books (Tunisia), para. 7.358.
522 Panel Report, EC - Bed Linen, para. 6.198.
523 Panel Report, Mexico - Steel Pipes and Tubes, para. 7.24.
524 In this regard, recognizing that the initiation stage of an investigation is different from the
investigation process itself, we consider "the quantity" and "the quality" of the evidence necessary to initiate an
investigation to be generally lower than that required to impose anti-dumping measures. (See, for example,
Panel Reports, Guatemala — Cement II, para. 8.35; Mexico — Steel Pipes and Tubes, para. 7.22; and
Argentina - Poultry Anti-Dumping Duties, para. 7.67.)
525 In this regard, we agree with other panels that have adopted this standard of review for claims under
Article 5.3. (See, for example, Panel Reports, Argentina — Poultry Anti-Dumping Duties, para. 7.60;
Mexico — Steel Pipes and Tubes, para. 7.26; and Morocco — Definitive AD Measures on Exercise Books
(Tunisia), para. 7.358.)
526 Application for initiation of the investigation (7 May 2018) (Exhibit DOM-11 (BCI)), annex 4b; and
sales invoices in Costa Rica (Exhibit DOM-21 (BCI)).
527 Initial Technical Report (Exhibit CRI-6), paras. 16-17 and table 1. See also Costa Rica's first written
submission, para. 251.

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7.338. Costa Rica makes several arguments in support of its claim that an "objective" and
"unbiased" investigating authority would not have determined that the invoices provided by the
applicant were "sufficient" evidence to justify initiation. 528 In essence, Costa Rica argues that the
invoices were not "representative" because, first, they referred only to one type of rod; second, they
covered a very low volume; and third, they were issued at around the same time, and almost a year
before the submission of the application.529
7.339. For its part, the Dominican Republic responds that Costa Rica ignores the "obvious"
difference in the "quality" and "quan tity" of the evidence necessary for initiation, compared to the
evidence required to adopt provisional or final determinations. 530 In addition, according to the
Dominican Republic, it is not necessary for the evidence to cover the entire time period and all
product types, provided that it covers some of the product types. 531 In particular, the
Dominican Republic argues that Article 5.3 does not require normal value evidence ("which is
notoriously difficult to obtain") to be "representative" of each product type and the overall period of
investigation, as imposing such a standard would make it impossible to initiate an investigation. 532
Moreover, for the Dominican Republic, the invoices referred to a period of the POI and, therefore,
Costa Rica's assertion that the invoices were too old to provide information about current dumping
is incorrect.533
7.340. As a preliminary point, we note that Costa Rica's argument refers repeatedly to the alleged
lack of "representativeness" of the invoices in question. 534 However, the concept of
"representativeness" does not feature in Article 5.3 of the Anti-Dumping Agreement. This provision
only refers to the evidence being "sufficient".
7.341. As regards Costa Rica's first argument, i.e. that the invoices were not "representative"
because they referred to a single product type of the five under investigation identified by the
applicant in its application 535, we note that , effectively, the invoices provided by the applicant as
evidence of the normal value did not cover all types of the product under investigation.536 Costa Rica
makes somewhat contradictory statements regarding the assertions made before the Panel's with
respect to this aspect of its claim. On the one hand, Costa Rica submits that the invoices provided
were not "representative" because they referred to a single type of bar when the imported product
identified by the applicant included five different types. On the other hand, however, Costa Rica
claims that it is not arguing that the evidence must be "representative" of the product as a

528 Costa Rica's first written submission, para. 230; and second written submission, para. 261.
529 Costa Rica's first written submission, paras. 232 and 236. See also Costa Rica's second written
submission, para. 263; and opening statement at the first meeting of the Panel, para. 90.
530 Dominican Republic's opening statement at the first meeting of the Panel, para. 65; and opening
statement at the second meeting of the Panel, para. 87.
531 Dominican Republic's first written submission, para. 589. See also Dominican Republic's second
written submission, para. 223.
532 Dominican Republic's second written submission, paras. 223 and 233. See also Dominican Republic's
opening statement at the first meeting of the Panel, para. 66. The Dominican Republic adds that Costa Rica
develops theoretical arguments about what might have been better evidence at the time of initiation, but has
not provided evidence that demonstrates that the evidence relied on by the CDC, in accordance with the facts
before it, was not sufficiently reliable and accurate to justify the initiation of the investigation.
(Dominican Republic's opening statement at the first meeting of the Panel, para. 70; response to Panel
question No. 38, para. 133; and opening statement at the second meeting of the Panel, para. 88.)
533 Dominican Republic's first written submission, para. 588.
534 See, for example, Costa Rica's first written submission, para. 232; and second written submission,
para. 263.
535 Costa Rica's second written submission, para. 263. For this reason, Costa Rica claims that the
invoices were not "relevant" to the possible existence of dumping for the other four types of rod identified by
the applicant itself. (Costa Rica's response to Panel question No. 39, para. 65).
536 In fact, the record shows that the sales prices in the invoices only concerned "deformed rod No. 3
3/8" of "[grade] 40", under tariff subheading 7214.20.00 (two of the invoices also indicate that the rods
referred to therein were 6 metres in length), while the dumped product identified by the applicant covered
"[c]orrugated or deformed steel bars or rods for concrete reinforcement" of different lengths (from 6 metres or
20 feet to 18 metres or 60 feet) and thicknesses (3/8", 1/2", 5.8", ¾", 1", 1 1/8", 1 1/2" and 2"), classified
under tariff subheadings 7213.10.00, 7214.20.00, 7214.30.00, 7214.91.00 and 7214.99.00. The record also
shows that the dumped product included products that could be of quality grades 40/60. (Sales invoices in
Costa Rica (Exhibit DOM-21 (BCI)); and application for initiation of the investigation (7 May 2018)
(Exhibit DOM-11 (BCI)), annex 4b, section II.1 and pp. 10-11).

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"whole".537 We therefore understand that Costa Rica is arguing, in essence, that invoices relating to
a single type of imported product do not constitute sufficient evidence within the meaning of
Article 5.3. However, in our view, Costa Rica's claim has no textual basis.
7.342. We recall that Article 5.3 of the Anti -Dumping Agreement requires that, in initiating an
investigation, there i s sufficient evidence of dumping for an investigating authority to be able to
determine that there was "sufficient" evidence to justify the initiation of the investigation. As regards
the normal value, we recall that the evidence required is "information o n the prices at which the
product is sold from the country or countries of origin or export". However, we note that Article 5.3
does not establish quantitative thresholds for determining what is considered "sufficient"
evidence538, and as such, we do not se e anything in Article 5.3 that would make the sufficiency of
the evidence of dumping dependent on the existence of evidence of a certain number of types of the
imported product under investigation. We therefore do not see how, under the terms of Article 5.3,
from the mere fact that the four purchase invoices allegedly referred to only one type of all of the
types of products identified in the application that comprised the product under investigation, it
could be established that the evidence was not suffic ient to justify the initiation of the
investigation.539 Moreover, in our opinion, whether evidence is "sufficient" will depend on the specific
circumstances of each case.540 In the case at hand, we note that the products for which information
on the normal value was submitted, which include grade 40, 6 metre-long deformed rods No. 3 3/8
classified under tariff subheading 7214.20.00, were specifically identified by the applicant as among
the main types of the product under investigation. 541 We therefore disagre e with Costa Rica's
argument that the invoices submitted by the applicant as proof of the normal value could not be
considered sufficient evidence because they concerned a single type of the imported product under
investigation.
7.343. Costa Rica also claims that the invoices were not "representative" because they covered a
"very low" volume.542 In particular, according to Costa Rica, the low volume of sales covered by the
invoices is another factor that casts doubt on not only the representativeness of the invoice s, but
also their capacity to substantiate the claims accurately and precisely. In other words, the volume
described on the invoices was only 0.01% of the total volume of imports from Costa Rica in 2017
and, as a result, that volume could "hardly" serve as a basis for making "generalizations" about the
normal value.543
7.344. We note that, as Costa Rica indicates, the quantities listed in each invoice were less than
1 tonne (i.e. 994.56 kg).544 However, as we set out above, Article 5.3 does not establish quantitative
thresholds for determining the sufficiency of evidence, and as such, we see nothing in Article 5.3
requiring that evidence of dumping must relate to particular sales volumes of the product in question.
On the other hand, we recall that Article 5.3 only requires evidence to be "sufficient", i.e. that it is
"sufficient" to justify the initiation of an investigation, and contrary to what Costa Rica appears to
suggest, this provision doe s not refer to the concept of "generalization" or to evidence having to

537 Costa Rica's second written submission, para. 271.
538 Indeed, in previous disputes, panels have shared this view and found that "there is no requirement
[under Article 5.3] that evidence of dumping of all categories or sub-sets of the imported product is necessary
to justify a decision to initiate". (Panel Report, US — Softwood Lumber V, para. 7.101) See also Panel Reports,
Morocco — Definitive AD Measures on Exercise Books (Tunisia), paras. 7.378 and 7.380; and Mexico — Steel
Pipes and Tubes, para. 7.40.
539 At the same time, we recall that the "quantity and the "quality" of the evidence needed to initiate an
investigation are lesser than required to impose anti-dumping measures. See fn 524 above. See also Panel
Reports, Guatemala - Cement II, para. 8.35; Mexico - Steel Pipes and Tubes, paras. 7.22 and 7.27.
540 In this regard, see para. 7.335. above. In fact, Costa Rica asserts that "sufficiency" must be
determined on a case-by-case basis, depending on the particular circumstances of each situation. (Costa Rica's
response to Panel question No. 36(b), para. 58).
541 In particular, the applicant indicated that the "dumped product" was "entering into the
Dominican Republic at lengths of between 20' (6 metres) and 40' (12 metres), specifically at lengths of 20, 25,
30, 35 and 40 feet", and that it was being imported at thicknesses of "3/8, ½, ¼ and 1 inch". The applicant
also indicated that the main types of imported products under alleged conditions of dumping were the products
under tariff subheadings 7214.10.00 and 7214.20.00. (Application for initiation of the investigation
(Exhibit DOM-11 (BCI)), section II.2 and point 51.)
542 Costa Rica's first written submission, para. 232; opening statement at the first meeting of the Panel,
543 Costa Rica's response to Panel question No. 41, paras. 66-67.
544 Application for initiation of the investigation (7 May 2018) (Exhibit DOM-11 (BCI)), annex 4b; and
sales invoices in Costa Rica (Exhibit DOM-21 (BCI)).

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"serve as a basis for making generalizations". We therefore find no basis in the text of Article 5.3 to
support the position that the invoices were not sufficient evidence because the volume of sales
covered by those invoices was "very low", and could not be used as a basis to make "generalizations"
with respect to the normal value. At the same time, we are not convinced that the volume of sales
covered by the evidence is a relevant fac tor as Costa Rica asserts. So, for example, in situations
where the evidence of dumping refers to all types of the product under investigation and the entire
POI (or vice versa), we do not see how the volume of sales covered by the evidence could affect the
sufficiency of the evidence.
7.345. We now turn to Costa Rica's last argument, which concerns the dates of the evidence.
Costa Rica claims that the four invoices were not "representative" because they were issued at
around the same time, almost a year before th e submission of the application. 545 We note that
Costa Rica does not argue that the evidence must be "representative" of the whole POI. 546 Indeed,
Costa Rica asserts that the problem in this case is the temporal dysfunction of the evidence, and not
that the evidence did not cover "the whole period of time". 547 Therefore, in our view, Costa Rica's
argument concerning the temporal scope of the information contained in the invoices is limited to
the fact that this information corresponds to sales allegedly made a lmost a year before the
submission of the application, which, according to Costa Rica, undermines the "adequacy" and
"accuracy" of the evidence by failing to point to current dumping.548
7.346. We note that, as indicated above, the applicant submitted two invoices dated 2 June and
two invoices dated 17 July 2017 (all within the POI designated by the applicant, namely
April-October 2017).549 We also note that the investigation was initiated on 30 July 2018550, that is,
a little over 12 months after the date of issue of the invoices in question.
7.347. In this regard, we note that the CDC acknowledged and addressed the time lag between the
dates of the invoices and the initiation of the investigation. In particular, the CDC noted that "these
invoices [corresponded] to two dates (2 June and 17 July 2017) within the period of dumping", and
"[i]n this sense", requested that the applicant "provide evidence from other months within the period
investigated, for the purpose of obtaining samples more representative of the normal value".551
7.348. Moreover, as the Dominican Republic indicates, we note that the CDC did not limit itself to
asking the applicant questions about the invoices, but it also examined the additional evidence to
corroborate the "accuracy" and "adequacy" of the inform ation provided.552 In particular, we note
that the CDC "verif[ied] the market behaviour of the allegedly dumped imports subsequent to the
dumping period provided in the application to initiate [an investigation]", and did so in order to "find

545 Costa Rica's first written submission, para. 232; and opening statement at the first meeting of the
Panel, para. 90. See also Costa Rica's first written submission, para. 236.
546 Costa Rica's second written submission, para. 271.
547 Costa Rica's response to Panel question No. 39, para. 64.
548 Costa Rica's first written submission, para. 233; and second written submission, para. 262. We note
that Costa Rica's argument refers to the temporal relationship between the information and the date of
submission of the application. (See, for example, Costa Rica's first written submission, para. 233;
second written submission, para. 262; and response to Panel question No. 39, para. 64.) However, we note
that the obligations set forth in Article 5.3 of the Anti-Dumping Agreement concern the initiation of the
investigation, and thus, "whether and to what extent the data are remote for purposes of Article 5.3 should be
assessed with reference to the date of initiation". (Panel Report, Pakistan - BOPP Film (UAE), appealed on
22 February 2021, para. 7.26 (emphasis omitted)).
549 The applicant required that the period from April to October 2017 be considered the dumping
analysis period, as this period was the "most recent" for which it had "available and verifiable" information.
(Application for initiation of the investigation (7 May 2018), (Exhibit DOM-11 (BCI)), point 50.) Costa Rica does
not object to either the period covered by the evidence in question, or the time lag (if any) between this and
the initiation of the investigation.
550 Resolution initiating the investigation (Exhibit CRI-5).
551 Letter from the CDC to Gerdau Metaldom (4 June 2018) (Exhibit DOM-14 (BCI)), para. 13.
(emphasis added)
552 Dominican Republic's response to Panel question No. 38, paras. 130-132. See also
Dominican Republic's first written submission, para. 580; opening statement at the first meeting of the Panel,

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whether there [wa]s any correlation between the information ... on the record" and "[the
information] verified by the [CDC] when preparing its [initial technical] report".553
7.349. Specifically, the CDC "used price information published [on 14 June 2018] on the website of
the company, Construplaza, S.A. (previously identified as an ArcelorMittal distributor)" to "determine
a price in the Costa Rican domestic market".554 Meanwhile, the CDC used "Costa Rican import data
for the month of April 2018 to obtain an export price". 555 The CDC determined an adjusted normal
value of USD 801.78 and an adjusted export price of USD 680.24, thereby obtaining "an estimated
margin of dumping of 22%". 556 As a result of the "research conducted", the CDC found "that for
more recent dates there would b e or would continue to be a pricing trend or behaviour that
provide[d] evidence of a dumping trend".557
7.350. Costa Rica asserts that the CDC's analysis is flawed, and thus argues that the price that the
CDC "found" does not resolve the inconsistency with Article 5.3, and that the alleged additional
information gathered by the CDC does not demonstrate alleged dumping on dates closer to the
application. In particular, Costa Rica notes that the CDC's analysis: (a) does not "identify" the type
of rod used for the purposes of the normal value or export price; (b) does not "present information"
on the adjustments made (does not "identify" the adjustments or their amounts, or "how they were
applied" to the normal value obtained); and (c) does not "explain why" it compare s transactions
made in different months (14 June 2018 for the normal value and April for the export price), or
"spell out why" it did not use importations made on dates closer to the date on which the price used
for the normal value was obtained.558
7.351. In our view, the fact that the CDC did not explicitly set out the type of rod used, the
adjustments made, and its decision to compare transactions from different months, does not affect
the examination it carried out to corroborate the relevance of the evidence by finding that dumping
occurred on dates closer to the time of initiation. In other words, Costa Rica has not provided the
Panel with any evidence to indicate that the additional evidence collected by the CDC could not
demonstrate alleged dumping on dates closer to the start of the investigation. Furthermore, we
recall that while Article 5.3 requires the accuracy and adequacy of the information to be examined
in order to determine whether there is sufficient evidence to justify the initiation of an investigation,
there is nothing in that provision governing such an examination, or requiring the authorities to
conduct a particular type of analysis or to provide an explanation of how it carried out this
examination.559 We therefore see no basis in Article 5.3 t hat requires an investigating authority to
"explain" or "spell out" (or "provide information" on) how it carried out the examination of the
evidence in accordance with that provision.
7.352. On the basis of the foregoing, we find that the information contained in the invoices
corresponded to the POI, in the absence of any legal impediment to them being considered evidence

553 Initial Technical Report (Exhibit CRI-6), para. 83. We note that the CDC's analysis was based on
"information provided by the DGA, [the] applicant, [the CDC's] own estimates and data gathered from the
website of the company, Construplaza, S.A." (Ibid., table 15).
554 Initial Technical Report (Exhibit CRI-6), para. 84 and fn 39.
555 In particular, the CDC identified six ArcelorMittal transactions dated 5 and 11 April 2018. However,
the CDC excluded from its assessment the importation of 11 April 2018 as it had "a f.o.b. value of USD 0.74
that could distort the results". (Initial Technical Report (Exhibit CRI-6), table 15).
556 The Dominican Republic points out that the following adjustments were made to the prices obtained
from the Construplaza website to reach the adjusted normal value: sales adjustment (13%); marketing margin
(6%); and transport adjustment (USD 10 per metric tonne). As regards the export price, the Dominican
Republic indicates that two adjustments were made: a port transportation adjustment (USD 9) and a loading,
unloading, wharfage, cargo movement, and stevedoring adjustment (USD 13.50). (Dominican Republic's
second written submission, para. 231). We note, however, that these explanations are not reflected in the
record of the investigation.
557 Initial Technical Report (Exhibit CRI-6), paras. 83-85 and fn 40. We note that the margin of dumping
alleged by the applicant was lower (that is, 17.3%) than the margin of dumping calculated by the CDC (that is,
22%). (Application for initiation of the investigation (Exhibit DOM-11 (BCI)), point 55; and Initial Technical
Report (Exhibit CRI-6), para. 74).
558 Costa Rica's first written submission, para. 241; and second written submission, para. 273. See also
Costa Rica's opening statement at the first meeting of the Panel, para. 91.
559 See para. 7.335. above. In this regard, we concur with the panel's statement in EC — Bed Linen that
Article 5.3 says nothing "regarding the nature of the examination to be carried out. Nor does it say anything
requiring an explanation of how that examination was carried out". (Panel Report, EC - Bed Linen,
para. 6.198).

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of the normal value. In such circumstances, we disagree with Costa Rica's argument that the invoices
could not be considered sufficient evidence because they concerned sales made almost a year before
the application to initiate an investigation.
7.6.4 Conclusion
7.353. For the reasons stated above, we conclude that the Dominican Republic did not act
inconsistently with its obligations under Article 5.3. In par ticular, we conclude that the CDC
determined, in an unbiased and objective manner, that the invoices submitted by the applicant as
evidence of the normal value - which concerned a single type of rod, covered a very low volume and
were issued at around the same time, almost a year before the submission of the
application - constituted sufficient evidence of dumping to justify the initiation of the investigation.
7.7 Costa Rica's claim under Article 5.8 of the Anti-Dumping Agreement
7.354. Costa Rica claims that, as the CDC did not have sufficient information on the existence of
dumping, it should have rejected the application and promptly terminated the investigation.
Accordingly, Costa Rica argues that the CDC's decision to initiate the investigation is inconsistent
with Article 5.8 of the Anti-Dumping Agreement.560
7.355. The Dominican Republic responds that Costa Rica's argument is not supported by the text of
Article 5.8. In particular, the Dominican Republic claims that Article 5.8 applies once the investigating
authority concludes that there is not sufficient evidence to justify initiation, and, given that the CDC
determined that there was sufficient evidence, Article 5.8 does not apply. According to the
Dominican Republic, this applies even in the event that a panel wer e to consider that the CDC's
conclusion was reached in a manner inconsistent with the Anti-Dumping Agreement.561
7.356. Before addressing the substance of this claim, we note that there have been changes and
contradictions throughout this dispute in the way Costa Rica has made its claim under Article 5.8.
Initially, in its first written submission, Costa Rica made its claim under Article 5.8 consequential to
its claim under Article 5.3. 562 Subsequently, in its response to the Panel's questions prior to the
first substantive meeting, Costa Rica indicated that its claim under Article 5.3 and that under
Article 5.8 are related, since both are based on a premise of insufficient evidence. 563 Then, in its
second written submission, Costa Rica again put forward its claim under Article 5.8 as consequential
to its claim under Article 5.3.564
7.357. In any event, and despite these contradictions, we note that the text of Article 5.8 of the
Anti-Dumping Agreement provides that "[a]n application under paragraph 1 shall be rejected and
an investigation shall be terminated promptly as soon as the authorities concerned are satisfied that
there is not sufficient evidence of either dumping or of injury to justify proceeding with the case".
Accordingly, we note that Article 5.8 does not r equire an investigating authority to reject an
application or promptly terminate an investigation if it is satisfied that there is sufficient evidence to
justify initiating an investigation. 565 In this connection, as we have found that the CDC did not err
when it determined that there was sufficient evidence to justify initiating the investigation, and, in

560 Costa Rica's first written submission, paras. 243-244; and second written submission,
paras. 275-276.
561 Dominican Republic's first written submission, paras. 591-593 (quoting Panel Report,
Morocco — Definitive AD Measures on Exercise Books (Tunisia), para. 7.360). See also Dominican Republic's
second written submission, para. 225.
562 See, for example, Costa Rica's first written submission, para. 244.
563 Costa Rica's response to Panel question No. 42, para. 69
564 Costa Rica's second written submission, para. 276. We also note that Costa Rica did not contest the
Dominican Republic's characterization of this claim as "entirely consequential". (Costa Rica's second written
submission, para. 277).
565 In this regard, we agree with the panel in Morocco — Definitive AD Measures on Exercise Books
(Tunisia), para. 7.359, that "[o]ther panels have taken the view that Article 5.8 does not require an additional
examination in relation to Article 5.3" and "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".

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the light of the foregoing, we conclude that there was no violation of Article 5.8 of the Anti-Dumping
Agreement.
7.8 Costa Rica's claim under Article 6.1.3 o f the Anti -Dumping Agreement: provision of
the "full text of the written application" received
7.8.1 Introduction
7.358. On 7 May 2018, the applicant – Gerdau Metaldom – submitted its written application for
initiation of an investigation to the CDC, together with confidential and non-confidential versions of
the application form and the annexes thereto.566 In its letter dated 4 June 2018, the CDC noted that
there were "certain aspects that need to be clarified and/expanded on" by the applicant 567 and
therefore asked it to provide the "additional information needed to examine the application". 568 In
response, the applicant provided the additional information required by the CDC on 7 and
11 June 2018.569 The CDC accepted the application and, on 30 July 2018, decided to initia te
"an anti-dumping investigation into imports of corrugated or deformed steel bars or rods for the
reinforcement of concrete" originating in Costa Rica. 570 On the same date, the CDC
"notified initiation of the investigation to the known producing/exporting company of the dumped
product"571 (namely, ArcelorMittal 572) and, together with this notification, "sent copies of
Resolution No. CDC -RD-AD-001-2018 providing for the initiation of the investigation, the public
notice of its initiation and the non-confidential version of the written application for initiation filed by
the applicant".573
7.359. Costa Rica claims that the Dominican Republic violated Article 6.1.3 because the CDC
(a) failed to provide the text of the application to the known exporter "as soon" as the investigation
was initiated; and (b) failed to provide the known exporter with the "full text" of the written
application.574 In particular, Costa Rica submits that the CDC only provided an eight-page document,
rather than the application filed by the applicant in its "entirety", and that it was not until four months
after initiation, following a request from the exporting company, that the CDC provided it with the
required information.575 In addition to this delay, Costa Rica argues that the CDC never provided the
"full" text of the written application to the known exporter, as the CDC failed to provide the
information submitted by the applicant in follow -up to the application, which, acco rding to
Costa Rica, "corrected" or "supplemented" the application. 576 In view of the foregoing, Costa Rica
adds that the CDC failed to comply with basic rules that ensure due process in an investigation,
creating imbalances in the process and hampering the exporting company's defence.577
7.360. The Dominican Republic states that Costa Rica's arguments are without merit and requests
the Panel to reject these claims.578 In the Dominican Republic's view, Article 6.1.3 refers only to the
"full text of the application", and nothing in this provision indicates that elements other than the

566 Application for initiation of the investigation (7 May 2018) (Exhibit DOM-11 (BCI)). See also Letter
from the CDC to Gerdau Metaldom (24 May 2018) (Exhibit DOM-12), p. 1.
567 Letter from the CDC to Gerdau Metaldom (4 June 2018) (Exhibit DOM-14 (BCI)), p. 3.
568 Initial Technical Report (Exhibit CRI-6), para. 9.
569 Letter from Gerdau Metaldom to the CDC (7 June 2018) (Exhibit DOM-15 (BCI)); and letter from
Gerdau Metaldom to the CDC (11 June 2018) (Exhibit DOM-16 (BCI)).
570 Resolution No. CDC-RD-AD-001-2018 (Exhibit DOM-1), p. 1. (emphasis omitted)
571 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 18. (emphasis omitted)
572 It is an undisputed fact that ArcelorMittal was the only exporter identified by the CDC. (See, for
example, Costa Rica's first written submission, para. 251).
573 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 19.
574 Costa Rica's first written submission, paras. 245 and 252. See also Costa Rica's second written
submission, para. 231; and opening statement at the second meeting of the Panel, para. 109.
575 Costa Rica's response to Panel question No. 43, para. 75; and first written submission, para. 253.
Costa Rica indicates that the "vast difference" between what the applicant submitted and the inventory that the
CDC conducted based on the information it received, on the one hand, and what the CDC provided to the
exporter when the investigation was initiated, on the other hand, demonstrates that the CDC failed to provide
the known exporter with the "full text of the application". (Costa Rica's second written submission, para. 240).
576 Costa Rica's first written submission, para. 256; and second written submission, para. 248.
577 Costa Rica's first written submission, paras. 250, 253 and 258.
578 Dominican Republic's first written submission, paras. 598 and 627; second written submission,
para. 265.

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"text" of the application, such as "annexes" and "updates", should be provided immediat ely.579
Consequently, in the investigation in question, the Dominican Republic argues that the CDC complied
with Article 6.1.3 of the Anti -Dumping Agreement by providing the non -confidential version of the
text of the application "immediately" after initiat ing the investigation. 580 Furthermore, the
Dominican Republic indicates that ArcelorMittal acknowledged receipt of the application and made
comments thereon, so its rights of defence were safeguarded in the investigation. 581 Lastly, the
Dominican Republic indicates that the CDC subsequently provided ArcelorMittal with the annexes to
the application with non -confidential information (the "application form") and granted it sufficient
time to make comments thereon, which means that its rights of defence were saf eguarded under
Articles 6.2 and 6.4 of the Anti-Dumping Agreement.582
7.361. Our examination is structured as follows: first, we recall the applicable requirements under
Article 6.1.3 of the Anti -Dumping Agreement (section 7.8.2 ); and, second, we apply those
requirements to the specific facts and circumstances of this dispute in order to evaluate whether the
Dominican Republic acted inconsistently with Article 6.1.3 of the Anti-Dumping Agreement
(section 7.8.3 ).
7.8.2 Applicable requirements of Article 6.1.3 of the Anti-Dumping Agreement
7.362. The text of Article 6.1.3 of the Anti-Dumping Agreement establishes that:
As soon as an investigation has been initiated, the authorities shall provide the full text
of the written application received under paragraph 1 of Article 5 to the known
exporters16 and to the authorities of the exporting Member and shall make it available,
upon request, to other interested parties involved. Due regard shall be paid to the
requirement for the protection of confidential information, as provided for in
paragraph 5.

16 It being understood that, where the number of ex porters involved is particularly high, the full
text of the written application should instead be provided only to the authorities of the exporting
Member or to the relevant trade association.
7.363. Therefore, Article 6.1.3 expressly indicates that the investigating authority must provide the
"full text of the written application" received "under Article [5.1 of the Anti -Dumping Agreement]".
Article 5.1 of the Anti -Dumping Agreement establishes that an anti -dumping investigation may be
initiated upon submission o f a "written application" by (or on behalf of) the domestic industry.
Consequently, in accordance with Article 6.1.3, the application to be provided is the "written
application" by (or on behalf of) the domestic industry.
7.364. Moreover, we note that Article 6.1 .3 requires the investigating authorities to "provide" this
application to the known exporters and to the authorities of the exporting Member. The ordinary
meaning of the term " facilitar" ("provide") includes " entregar" ("deliver"). 583 Accordingly, in our
view, the obligation under Article 6.1.3 to "provide" the written application requires effective action
by an investigating authority, namely, action to "deliver" this application to the known exporters and
to the authorities of the exporting Member in question.

579 Dominican Republic's opening statement at the first meeting of the Panel, para. 77; second written
submission, para. 245; and response to Panel question No. 44(a), para. 141. See also Dominican Republic's
first written submission, para. 617.
580 Dominican Republic's opening statement at the first meeting of the Panel, para. 77; and first written
submission, paras. 612-613 and 616.
581 Dominican Republic's opening statement at the first meeting of the Panel, para. 77; and
second written submission, para. 259.
582 Dominican Republic's opening statement at the first meeting of the Panel, para. 77; and
second written submission, para. 245.
583 Diccionario de la Real Academia Española, definition of "facilitar"
https://www.rae.es/drae2001/facilitar (accessed 29 March 2023), meaning 2.

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7.365. Lastly, with regard to when this obligation applies, we note that Article 6.1.3 clearly
establishes that the "full text of the written application" must be provided as " pronto" ("soon") (in
other words, "con celeridad" ("rapidly")584) as the investigation has been initiated.
7.8.3 Whether the Dominican Republic acted inconsistently with Article 6.1.3
7.366. There are two points of contention between the parties under Article 6.1.3 that we examine
below: first, whether the CDC provided the "ful l text of the written application" received "as soon"
as the investigation was initiated; and, second, whether the information provided by the applicant
after the submission of the application formed part of the "full text of the written application", and,
accordingly, whether it was information that needed to be provided under Article 6.1.3. We will
examine these two issues in turn.
7.367. With regard to the first issue, we note that, as has been indicated, the applicant submitted
its "written application for ini tiation of an investigation" (written application) to the CDC, together
with the "form for applicant producers" (application form) and the annexes thereto. 585
Moreover, we recall that, on the same day the investigation was initiated, the CDC sent the known
company – ArcelorMittal – a copy of the non-confidential version of the written application submitted
to the CDC by the applicant.586
7.368. Costa Rica argues that the CDC violated Article 6.1.3 because it failed to provide the text of
the application to the known exporting company "as soon" as the investigation was initiated. 587 In
essence, as we understand it, Costa Rica's claim is based on its opinion that the document provided
by the CDC to the known exporter on the same day that the investigation was initiated did not
constitute the application submitted by the applicant in its "entirety". In other words, according to
Costa Rica, it was not until 22 November 2018 (four months after the investigation was initiated)
that the CDC sent the required information, namely, the application form and the annexes thereto,
to the exporting company.588
7.369. In the light of the foregoing, in order to resolve Costa Rica's claim regarding the
"promptness" of the provision of the application, we shall first examine whether the document
provided by the CDC to the known exporter, namely the written application with out the application
form and the annexes thereto, constituted the "full text of the written application" under Article 6.1.3
of the Anti-Dumping Agreement.

584 Diccionario de la Real Academia Española, definition of "pronto" https://dle.rae.es/pronto?m=form
(accessed 18 April 2023), meaning 8. We also agree with the panel's assertions in Guatemala - Cement II that
the term "as soon as" conveys a sense of "substantial urgency", and, in fact, the terms "'immediately' and 'as
soon as' are considered to be interchangeable". (Panel Report, Guatemala - Cement II, para. 8.101)
585 Application for initiation of the investigation (7 May 2018) (Exhibit DOM-11 (BCI)); and letter from
the CDC to Gerdau Metaldom (24 May 2018) (Exhibit DOM-12), p. 1. We take note of the Dominican Republic's
indication that distinction is made in the Dominican Republic between the written application and the
application form. The former summarizes (a) who is submitting the application and their credentials; (b) the
description of the product and the practice being reported (namely, identification, description, uses and origin
of the dumped product; the behaviour of the imports under investigation; dumping analysis and description of
the situation; and identification of producers and/or exporters of the reported good); (c) the description of the
injury to domestic production; and (d) the causal relationship. The latter, the application form, is an annex to
the written application. It contains responses to detailed questions on: (i) the identity of the applicant
producer; (ii) the characteristics of the imported products under investigation and the like domestic product;
(iii) the domestic industry; (iv) the importers and exporters of the products under investigation; (v) the total
sales of the applicant and of the domestic market; (vi) the material injury to the domestic industry and the
causal link; (vii) the dumping practices; and (viii) the international market. The application form is also
accompanied by annexes, which include information on dumping; the applicant's economic and financial
indicators; and imports. (Dominican Republic's response to Panel question No. 45(a), paras. 149-150;
and second written submission, paras. 250-251). See also Application for initiation of the investigation
(7 May 2018) (Exhibit DOM-11 (BCI)).
586 Final Technical Report (confidential version) (Exhibit DOM-3), paras. 18-19. The Dominican Republic
indicates that, when notifying the initiation of the investigation, the CDC shares the written application and
informs the parties that the application form completed by the domestic producer is "available" from the CDC.
(See, for example, Dominican Republic's response to Panel question No. 45(b), para. 152).
587 Costa Rica's first written submission, para. 252.
588 See, for example, Costa Rica's first written submission, para. 253; and response to Panel question
No. 43, para. 75.

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7.370. The response to this question raises the issue of the meaning of the expression "full text of
the written application" in Article 6.1.3. The parties disagree on the meaning, and particularly on
the scope, of this expression. Costa Rica argues, inter alia, that the use of the adjective "full" in
Article 6.1.3 suggests the intention to give a "broad" and " exhaustive" meaning to the obligation
contained in this provision. 589 Therefore, according to Costa Rica, the term "full text of the
application" refers to the application in its "entirety", including annexes and any material submitted
by the applicant to supplement its application prior to the initiation of the investigation.590 However,
according to the Dominican Republic, the fact that Article 6.1.3 does not refer simply to the full
"application", but to the "full text" of the application, "intentionally l imits" the obligation contained
in Article 6.1.3 to the "text" of the application and "not to all the information that may have been
provided in an annex or other forms relating to the application".591
7.371. Broadly speaking, the European Union agrees with Costa Rica and argues that the expression
"full text of the written application" includes the application and any other written submission
provided by the applicant and on the basis of which the investigating authority assessed whether
the initiation of the investigation was warranted in accordance with Article 5.3 of the Anti-Dumping
Agreement.592
7.372. Mexico also concurs with Costa Rica's view and asserts that "the application" within the
meaning of Article 6.1.3 comprises the set of elements contained in the applica tion, as well as all
the pieces of evidence, inferences and lines of reasoning that support this application, including the
elements listed in Article 5.2 of the Anti-Dumping Agreement.593 Similarly, the United States argues
that the "written application" t hat is to be provided under Article 6.1.3 constitutes the written
application filed by (or on behalf of) the domestic industry, including any supplemental aspects of
the written application.594
7.373. We recall that the relevant part of the text of Article 6.1.3 o f the Anti-Dumping Agreement
establishes the following:
[T]he authorities shall provide the full text of the written application received under
paragraph 1 of Article 5 to the known exporters and to the authorities of the exporting
Member [...]. Due regard shall be paid to the requirement for the protection of
confidential information, as provided for in paragraph 5.595
7.374. The essence of the Dominican Republic's argument is that the term "text" in Article 6.1.3
should be understood in the sense that this provision does not require elements other than the "text"
of the application, such as all the information that could have been provided in an annex or forms,
to be provided. 596 However, in our view, the Dominican Republic's argument is based on an
erroneous inter pretation of the term "text" in Article 6.1.3 of the Anti -Dumping Agreement. In
particular, we note that the ordinary meaning of the term " texto" ("text") includes " conjunto
coherente de enunciados escritos" ("coherent set of written submissions"). 597 Moreover, as part of
its application, we note than an applicant may submit, or be required to submit, non-written evidence
or information.598 Therefore, when placed in context, it is our view that the term "text" refers to the
written aspect of the application and, accordingly, its use emphasizes that what needs to be provided
under Article 6.1.3 is limited to the written content of the application submitted, thereby excluding

589 See, for example, Costa Rica's second written submission, paras. 237 and 246.
590 Costa Rica's second written submission, para. 235. See also Costa Rica's response to Panel question
No. 43, para. 70; and opening statement at the first meeting of the Panel, para. 106.
591 Dominican Republic's first written submission, para. 617. See also Dominican Republic's
second written submission, para. 257; and response to Panel question No. 44(a), para. 141.
592 European Union's third-party response to Panel question No. 10, para. 17.
593 Mexico's third-party response to Panel question No. 10(a), p. 4.
594 United States' third-party response to Panel question No. 10(a), para. 24.
595 Fn omitted.
596 See, for example, Dominican Republic's first written submission, para. 617.
597 Diccionario de la Real Academia Española, definition of "texto" https://dle.rae.es/texto (accessed
2 November 2022), meaning 1.
598 For example, in the investigation at issue, we note that, in its application, the applicant provided
"physical samples of the product under investigation, imported from the country [of origin]" and "samples of
the domestically manufactured product". (Application for initiation of the investigation (7 May 2018)
(Exhibit DOM-11 (BCI)), p. 1).

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the non -written elements. 599 Consequently, we do not agree with the limited and exclusio nary
meaning that the Dominican Republic attributes to the use of the term "text" in Article 6.1.3, or with
the indicative importance that the Dominican Republic gives to this term for the purposes of
interpreting the expression "full text of the written a pplication".600 Rather, an examination of the
text and of the context of Article 6.1.3 indicates that the scope of the expression "full text of the
written application" is not limited as the Dominican Republic suggests.
7.375. As we discuss above, based on the ter ms set out in Article 6.1.3, the application to be
provided is the "full text of the written application" submitted in accordance with Article 5.1 of the
Anti-Dumping Agreement: in other words, the "written application" for initiation of an investigation
submitted by (or on behalf of) the domestic industry. At the same time, we note that, except in
cases related to confidential information, there is nothing in Article 6.1.3 that limits or circumscribes
the provision of this application to, for example, certain documents or document types only, or that
limits the nature of the written information contained in the documents submitted. On the contrary,
we note that Article 6.1.3 clearly requires the "full" text of the written application received to be
provided. The ordinary meaning of the term " completo" ("full") includes " [q]ue tiene todos los
elementos o partes que normalmente lo componen"601 ("having all the elements or parts that usually
elements").602 Therefore, the use of the adjective "full" in the context of Article 6.1.3 indicates that
the written application that must be provided in accordance with this provision includes all of the
written documents or submissions that form part of the application or that are necessary for the
purposes of applying for the initiation of an investigation. 603 Under such circumstances, we do not
see any textual basis in the provision in question for excluding information or evidence that an
applicant has supplied as part of their application in annexes, forms or other written documents.
7.376. The Dominican Republic asserts that the reference to the "full" text in Article 6.1.3 "means
that it is not the authority's responsibility to prepare a summary of the application".604 However, the
Dominican Republic's assertion is inconsistent with the meaning of the term "full". Furthermore, we
note that Article 6.1.3 refers only to an investigating authority's obligation to "provide" the "full text
of the written application" received and there is nothing in this provision that refers to an
investigating authority's capacity to "prepare" something in relation to this application.
7.377. As context relevant to the interpretation of the expression "full text of the written
application", we also note that Article 5.2 of the Anti-Dumping Agreement lays down the content to
be included in the "application under [Article 5.1]", that is, the application also referred to in
Article 6.1.3. In particular, in our view, the reference in Article 6.1.3 to the application received in
accordance with Article 5.1 and the requirements in Article 5.2, which specify the evidence and
information to be included in this application, clearly establish an explicit link between these
three provisions. We therefore reject the Dominican Republic's argument that the fact that
Article 6.1.3 refers only to Article 5.1, and not to Ar ticle 5.2 in which reference is made to the
evidence to be submitted together "with" the application, means that the evidence contained in the
annexes does not need to be provided under Article 6.1.3.605
7.378. Article 5.2 indicates that the application referred to in Article 6.1.3 must include "evidence"
of dumping, injury and a causal link, in the form of certain elements of "information" to be submitted
insofar as it is "reasonably" available to the applicant. Accordingly, in our view, it is clear that the
information and evidence that an applicant submits under Article 5.2 forms part of its written
application and, as a result, this information and evidence needs to be provided under Article 6.1.3.

599 In fact, we note that Article 6.1.3 itself refers to the "text" of the "written" application.
600 In this regard, we note Costa Rica's argument that understanding the term "text" as a limiting factor
would run counter to the broad meaning reflected by the use of the term "full" in Article 6.1.3. (See, for
example, Costa Rica's second written submission, para. 246).
601 TheFreeDictionary, definition of "completo" https://es.thefreedictionary.com/completo (accessed
30 March 2023), adj., meaning 1.
602 Diccionario general de español, definition of "completo" https://www.definiciones-
de.com/Definicion/de/completo.php#definicion_snip (accessed 30 March 2023), adj., meaning 1.
603 Pursuant to the Anti-Dumping Agreement, we note that the purpose of an application is to initiate an
anti-dumping investigation in order to "determine the existence, degree and effect of any alleged dumping".
(Article 5.1 of the Anti-Dumping Agreement).
604 See, for example, Dominican Republic's second written communication, para. 263.
605 Dominican Republic's response to Panel question No. 44 (a)-(b), paras. 141-142; and second written
submission, paras. 257-258.

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However, we note that we agree with the European Union's assertion that it is not only the content
detailed in Article 5.2 that falls under the obligation established under Article 6.1.3 of the
Anti-Dumping Agreement.606 As has been indicated above, we note that Article 6.1.3 requires the
"full" text of the written application submitted by (or on behalf of) the domestic industry to be
provided, and that Article 5.2 only indicates the evidence and information that this application must
"include".
7.379. The Dominican Republic claims that the fact that Article 6.1.3 refers expressly to the need
to protect confidential information, which, in all "likelihood" is included in most of the evidence
submitted together with the text of the application, confirms that the drafters' intention "was to
oblige the authorities to provide the text of the application, rather than the evidence together with
the text".607 However, we note that the Dominican Republic's argument on "likelihood" contradic ts
the "explicit" requirement in Article 5.2 for the application to be supported by evidence of dumping,
injury and a causal link.
7.380. Consequently, in the light of all the previous considerations, we do not agree with the
Dominican Republic's interpretation that the expression "full text of the written application" excludes
the information or evidence provided by an applicant in an annex or other forms related to the
application. Accepting the Dominican Republic's interpretation would distort the purpose of
Article 6.1.3 as it could undermine the principle of transparency and due process rights laid down in
Article 6.1.3.608
7.381. The Dominican Republic maintains that its interpretation of the "full text" of the application
does not "undermine" the "transparency" requirement, as Articles 6.2 and 6.4 of the Anti-Dumping
Agreement "[would] continue" to enable interested parties to have the opportunity to examine all
the relevant non-confidential information that the authorities use in the investigation. 609 However,
in our view, the obligations laid down in these provisions and, as a result, the rights of the interested
parties covered by them, are, by their nature, different from the obligations and rights under
Article 6.1.3. Specifically, we recall that Article 6.1.3 establishes the obligation for the investigating
authority to "provide", "as soon" as the investigation has been initiated, "the full text of the written
application" received.
7.382. Moreover, we note that Article 6.2 does not lay down any obligations concerning t he
disclosure of, or access to, information. 610 Similarly, although Article 6.4 allows for "interested
parties to see all information that is relevant to the presentation of their cases, that is not
confidential"611, we note that the obligation in Article 6.4, which applies throughout the investigation,
concerns information that is "used" by the authorities in the investigation and does not require this
information to be actively disclosed.612 Accordingly, in our view, while the information and evidence
submitted as part of an application could be provided over the course of an investigation (assuming
that it is information and evidence used by the authorities), we do not see how providing this

606 European Union's third-party response to Panel question No. 10, para. 16.
607 See, for example, Dominican Republic's second written communication, para. 262.
608 Panel Report, Guatemala - Cement II, paras. 8.102 and 8.111 ("a key function of the transparency
requirements of the AD Agreement is to ensure that interested parties … are able to take whatever steps they
deem appropriate to defend their interests" and, to that end, "[a]ccess to the text of the application is crucial
for the exporter to prepare its defence").
609 Dominican Republic's second written submission, para. 256.
610 As previous panels have highlighted, the only specific requirement in Article 6.1.3 is for
"investigating authorities to, on request, provide opportunities for parties to meet other parties with adverse
interests", and, therefore, "nothing in the text of Article 6.2 … require[s] investigating authorities to actively
disclose information to interested parties" as, in fact, "there is nothing specific in the text of Article 6.2
that relates to 'information' at all". (Panel Report, EU - Footwear (China), para. 7.604. See also Panel Report,
EC — Fasteners (China), para. 7.481).
611 Article 6.4 of the Anti-Dumping Agreement provides the following:
The authorities shall whenever practicable provide timely opportunities for all interested parties
to see all information that is relevant to the presentation of their cases, that is not confidential as
defined in paragraph 5, and that is used by the authorities in an anti-dumping investigation, and
to prepare presentations on the basis of this information.
612 We agree with the panel's comments in EC - Fasteners (China) that the obligation laid down in
Article 6.4 to provide "timely" opportunities to see information, which applies "throughout the course of an
anti-dumping investigation", "does not obligate the investigating authorities to actively disclose information to
interested parties". (Panel Report, EC - Fasteners (China), paras. 7.480 and 7.507).

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information and evidence could constitute an alternative way of gua ranteeing the inherent
procedural rights of transparency and due process enjoyed by the parties under Article 6.1.3. 613 In
other words, access – through its "provision" by the authorities – to the "full text of the written
application" received "as soon" as the investigation has been initiated. We therefore reject the
Dominican Republic's argument that its interpretation that the "full text" of the application alone
would not undermine the "transparency" requirement, since Articles 6.2 and 6.4 would continue to
enable the interested parties to see the information.
7.383. On the basis of the foregoing, we find that the written application provided by the CDC to
the known exporter on the same day as the investigation was initiated – which also, as the
Dominican Republic itself recognizes, only "summarizes" the applicant's claims 614 – could not
constitute the "full text of the written application" within the meaning of Article 6.1.3. In particular,
the text and the context of Article 6.1.3 clearly indicate that the written application under this
provision includes all the elements and parts that comprise it, including the evidence or information
contained in the annexes, forms or other document types provided by an applicant. As has been
previously mentioned, Article 6.1.3 clearly imposes the obligation to provide the "full text of th e
written application" as "soon" (in other words, rapidly) as the investigation has been initiated.615 In
the present case, the record shows that the application form and the annexes thereto were provided
to the exporting company on 22 November 2018, that i s, slightly less than four months after
initiation.616 Under such circumstances or, in other words, given that there was a delay of exactly
116 days, we find that the CDC failed to comply with the requirement to provide the "full text of the
written application" submitted by the applicant "as soon" as the investigation was initiated.617
7.384. The Dominican Republic argues that, following the initiation of the investigation, the CDC
provided ArcelorMittal with the information contained in the initiation form and the annexes thereto
and granted it sufficient time (30 working days) to make comments on them, therefore its rights of
defence were safeguarded. 618 In our view, however, the fact that the CDC granted the known
exporter 30 working days to make comments on the i nformation in question almost four months
after the initiation of the investigation, does not imply, let alone mean, that the rights of defence of
the known exporter were safeguarded "as soon" as the investigation was initiated. Indeed, the record
shows that, prior to receiving the initiation form and the annexes thereto, the known exporter had
already stated that its rights of defence had been violated by the absence of this information.619
7.385. conclusion, for the reasons set out above, we find that by providing the known exporter with
the initiation form and the annexes thereto almost four months after initiating the investigation, the
Dominican Republic acted inconsistently with its obligation under Article 6.1.3 to provide the "full
text of the written application" received "as soon" as the investigation was initiated.
7.386. With regard to the second matter, namely, whether the information provided by the applicant
in follow -up to the application formed part of the "full text of the written application" and,
consequently, was information that needed to be provided under Article 6.1.3, Costa Rica claims
that this "additional information" was related to the initiation application and therefore formed part

613 Indeed, as demonstrated by the facts of the investigation at issue (see para. 7.384. above), in
contrast to what is claimed by the Dominican Republic, the known exporter's rights of defence under
Article 6.1.3 were not safeguarded in an alternative manner later during the investigation.
614 Dominican Republic's second written submission, para. 250.
615 See para. 7.365. above.
616 Letter from the CDC (22 November 2018) (Exhibit CRI-17).
617 In this context, we note the finding of the panel in Guatemala - Cement II that the "sending of the
application even 8 days after the initiation of investigation is not adequate to fulfil the requirement that it be
done 'as soon as an investigation has been initiated'". (Panel Report, Guatemala - Cement II, para. 8.104)
618 In particular, the Dominican Republic maintains that the reason why the text of the application must
be submitted immediately under Article 6.1.3 is directly related to the need "for exporters to prepare the
arguments in defence of their interests before the investigating authorities" and given that "in this case, an
additional 30 working days were granted in order to make comments on the form, it is clear that this due
process-related obligation was respected, even assuming that the initiation form [wa]s part of the full text of
the written application (quod non)". (Dominican Republic's first written submission, para. 626).
619 Specifically, in its comments made on the written application provided on 30 July 2018 (in other
words, on the day that the investigation was initiated), the known exporter stated that the "missing, untimely
and incomplete information" in this application, "constitute[d] a violation of due process" and "le[ft] it clearly
defenceless". (ArcelorMittal's comments (30 October 2018) (Exhibit DOM-17), p. 1).

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of it.620 In its defence, the Dominican Republic makes the same a rguments as those raised with
regard to the applicant's initiation form and the annexes thereto621, which we have rejected. Having
determined that, in our view, the "full text of the written application" within the meaning of
Article 6.1.3 includes all docu ments or written submissions that are necessary for the purposes of
applying for the initiation of an investigation, we do not consider that these additional findings
requested by Costa Rica are necessary to resolve this dispute.
7.8.4 Conclusion
7.387. Based on the foregoing, we conclude that the Dominican Republic acted inconsistently with
Article 6.1.3 of the Anti -Dumping Agreement because, by providing the initiation form and the
annexes thereto to the known exporter almost four months after the initiation of the in vestigation,
the CDC failed to provide the "full text of the written application" submitted by the applicant "as
soon" as the investigation was initiated.
7.9 Costa Rica's claim under Article 6.4 of the Anti-Dumping Agreement: opportunities to
see certain information
7.9.1 Introduction
7.388. From 22 to 25 October 2018, the CDC conducted a verification visit at the production facility
and administrative offices of the applicant company (Gerdau Metaldom).622 The purpose of this visit
was to confirm the accounting, economic and financial figures provided by the company, and to
observe, on the spot, the production process for the product under investigation. 623 The CDC took
minutes of the verification visit, which were included in the public and confidential record of the
investigation. The CDC also prepared re ports on "the findings and information resulting from the
verification visit", which were incorporated into the confidential record of the investigation.624
7.389. Costa Rica claims that the Dominican Republic violated Article 6.4 of the Anti -Dumping
Agreement because the CDC failed to provide the exporting company (ArcelorMittal) with timely
opportunities to see all information relevant to the presentation of its case and to prepare
presentations on the basis of this information.625 In particular, Costa Rica asserts that the CDC failed
to provide the exporting company with opportunities to see: (a) the reports on the findings and
information resulting from the verification visit; and (b) the documents that the CDC received during
this visit.626 According to Costa Ric a, the information in question was relevant, was not declared
confidential by the CDC under Article 6.5 of the Anti-Dumping Agreement, and was used by the CDC
in the anti-dumping investigation at issue.627 In the light of the above, Costa Rica adds that the CDC
failed to comply with the rules of due process and left the exporting company defenceless.628
7.390. The Dominican Republic responds that Costa Rica's assertions are erroneous 629 for
five reasons: (a) the text of the Anti -Dumping Agreement (Article 6.7) contradicts Costa Rica's
argument that the verification results should be shared with a party other than the verified

620 See, for example, Costa Rica's first written submission, para. 256. See also para. 7.359. above.
621 See para. 7.360. above.
622 Despite the CDC having scheduled the verification visit for the week of 22-26 October 2018, the CDC
"complete[d] the verification of all the information on 25 October 2018". (Minutes of the verification visit
(Exhibit CRI-7), p. 3)
623 Final Technical Report (Exhibit CRI-3), para. 53; Essential Facts Report (Exhibit CRI-4), para. 33;
and final determination (Exhibit CRI-2), para. 17. See also minutes of the verification visit (Exhibit CRI-7),
pp. 1-3.
624 Final Technical Report (Exhibit CRI-3), para. 54. See also minutes of the verification visit
(Exhibit CRI-7), p. 2.
625 Costa Rica's second written submission, para. 278. See also Costa Rica's first written submission,
para. 259.
626 Costa Rica's first written submission, paras. 263-264; and second written submission,
paras. 281-282. See also Costa Rica's opening statement at the first meeting of the Panel, para. 111; and
response to Panel question No. 49, paras. 82-83.
627 Costa Rica's second written submission, paras. 283-286; and first written submission,
paras. 265-267. See also Costa Rica's opening statement at the second meeting of the Panel, para. 110.
628 Costa Rica's first written submission, para. 262. See also Costa Rica's first written submission,
paras. 265 and 267.
629 Dominican Republic's first written submission, para. 629.

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company630; (b) the documents received during the verification visit, as well as the CDC's
conclusions pertaining to those documents, fall within the definition of confidential information in
Article 6.5 631; (c) Costa Rica has failed to prove that the alleged "information" meets the legal
standard of being "used" by the authorities within the meaning of Article 6.4 632; (d) the obligation
under Article 6.4 does not require active disclosure by the investigating authority, but rather is
limited to providing timely opportunities for all interested parties to see information; and (e) in this
case, there is no evidence suggesting that ArcelorMittal - despite having been aware of what
happened during the verification visit and of the documents gathered - has requested opportunities
to see the information in question and that it has been denied such opportunities.633
7.391. Our examination is structured as follows: first, we recall the applicable requirements under
Article 6.4 of the Anti -Dumping Agreement (section 7.9.2 ); and, second, we apply these
requirements to the specific facts and circumstances of this dispute in order to evaluate whether the
Dominican Republic acted inconsistently with Article 6.4 of the Anti -Dumping Agreement
(section 7.9.3 ).
7.9.2 Applicable requirements of Article 6.4 of the Anti-Dumping Agreement
7.392. The text of Article 6.4 of the Anti-Dumping Agreement provides as follows:
The authorities shall whenever practicable provide timely opportunities for all interested
parties to see all information that is relevant to the presentation of their cases, that is
not confidential as defined in paragraph 5, and that is used by the authorities in an
anti-dumping investigation, and to prepare presentations on the basis of t his
information.
7.393. Article 6.4 thus requires investigating authorities, "whenever practicable", to provide timely
opportunities for interested parties in the investigation to see all "information" that is: (a) relevant
to the presentation of their cases; (b) not confidential as defined in Article 6.5; and (c) used by the
authorities in the investigation. Therefore, the information concerned must meet these
three cumulative criteria as a precondition for a finding of an Article 6.4 violation.634
7.394. Regarding the relevance of the information, the information is considered "relevant" within
the meaning of Article 6.4 when the interested party itself determines that the information is relevant
to the presentation of its case in the investigation. 635 However, under the terms of Article 6.4, any
information that has been accorded "confidential" treatment in accordance with Article 6.5 is
excluded from the scope of this provision.636
7.395. Lastly, we agree with panels in previous disputes that Article 6.4 does not obligate the
authorities to actively disclose information to interested parties.637
7.9.3 Whether the Dominican Republic acted inconsistently with Article 6.4
7.396. Costa Rica raises its claim under Article 6.4 regarding opportunities to see certain items of
information and to prepare presentations on the basis of such information. In particular, Costa Rica's
claim is limited to two categories of information: (a) the documents that the CDC received from the

630 Dominican Republic's first written submission, para. 647; second written submission, paras. 267
and 273-274; opening statement at the first meeting of the Panel, paras. 78-79; and response to Panel
question No. 112, paras. 220-221.
631 Dominican Republic's first written submission, paras. 648-649; and second written submission,
para. 268.
632 Dominican Republic's first written submission, para. 650; and second written submission, para. 271.
633 Dominican Republic's first written submission, para. 651 (referring to, inter alia, Panel Report,
Korea — Certain Paper (Article 21.5 - Indonesia), para. 6.87); and second written submission, paras. 269-270.
634 See, for example, Appellate Body Report, EC — Fasteners (China) (Article 21.5 - China), para. 5.122;
and Panel Report, China - Broiler Products (Article 21.5 - US), para. 7.279.
635 Appellate Body Reports, EC - Tube or Pipe Fittings, para. 145; EC - Fasteners (China), para. 479;
and EC — Fasteners (China) (Article 21.5 - China), para. 5.111.
636 Appellate Body Report, EC - Fasteners (China) (Article 21.5 - China), para. 5.101.
637 Panel Reports, EC - Fasteners (China), para. 7.480; Korea - Certain Paper (Article 21.5 - Indonesia),
para. 6.87; and EU - Footwear (China), paras. 7.646 and 7.648.

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applicant during the verification visit; and (b) the CDC's reports on the findings and information
resulting from this verification visit. We address each of these aspects below.
7.9.3.1 Documents received by the CDC from the applicant during the verification visit
7.397. Costa Rica submits that the documents received by the CDC during the verification visit were
"relevant" information within the meaning of Article 6.4, since this information would have enabled
the exporting company to have a fuller understanding of the domestic industry's situation for the
purpose of preparing its arguments concerning the alleged existence of injury and the alleged causal
link.638 Costa Rica also asserts that this information was in fact "used" by the CDC and that it was
not "declared" confidential during the investigation.639
7.398. The Dominican Republic responds that Article 6.4 does not require the "active disclosure" of
all the documents obtained or produced by the authorities in an investigation. 640 Therefore,
according to the Dominican Republic, if the interested party considers the alleged information to be
"relevant to the presentation of [its case]", it could and should have requested an opportunity to
see that information. In this instance, the Dominican Republic notes that ArcelorMittal, however,
despite knowing "exactly" what had happened during the verification visit and which documents had
been gathered641, did not request to see the alleged "information" from the visit, and therefore
Costa Rica's claim is without merit. 642 In addition, the Dominican Republic submits that the
documents provided during the verification (a) are not the type of "information" to be provided on
the basis of Article 6.4643 and (b) fall within the definition of confidential information in Article 6.5644,
and that (c) Costa Rica has failed to demonstrate that the info rmation at issue has been "used" by
the authorities within the meaning of Article 6.4.645
7.399. The first question we must address is whether the documents that the CDC received from
the applicant during the verification visit constitute "information" within the meaning of Article 6.4.
The minutes of the verification visit (verification minutes) state that, during this visit, the CDC
received the following documents: (a) nine invoices for raw material purchased by the applicant
(Gerdau Metaldom); (b) 40 invoices f or sales of the like product for the POI; (c) sales report;
(d) reports on sales costs and details thereof; (e) report on sales of round and square bars; (f) list
of prices of rods and rods in coils for the export market; (g) employee payroll lists (Februa ry, July
and November 2015; April, August and December 2016; January, June and October 2017; and
March 2018); (h) Social Security Treasury payment receipt (February, July and November 2015;
April, August and December 2016; January, June and October 2017; a nd March 2018); (i) list of
permanent staff submitted to the Ministry of Labour (2015 -2017 and January -April 2018); and
(j) audited financial statements (2017). 646 It is this Panel's understanding that the information
gathered at the time of the verification visit confirmed the veracity and accuracy of the information
provided by the applicant. 647 That information had been used to initiate the investigation and had

638 In other words, according to Costa Rica, this would have enabled the exporting company to prepare
its presentations with a more "clear and comprehensive" understanding. (Costa Rica's first written submission,
639 Costa Rica's first written submission, paras. 266-267; and second written submission, para. 284.
640 The Dominican Republic argues that the fact that Article 6.4 does not impose an active disclosure
obligation means that the burden of proof lies with Costa Rica, i.e. it is for Costa Rica to demonstrate that the
authorities did not provide opportunities to see the relevant and non-confidential information at issue.
(Dominican Republic's second written submission, para. 280).
641 In particular, the Dominican Republic notes that, through the verification minutes, which formed part
of the public record, ArcelorMittal "was aware of the preparation of a 'verification report' and also knew exactly
what additional evidence was gathered during verification". (See, for example, Dominican Republic's second
written submission, para. 281).
642 Dominican Republic's response to Panel question No. 55, paras. 164-166. See also, for example,
Dominican Republic's first written submission, paras. 646 and 651; second written submission paras. 269-270;
and opening statement at the first meeting of the Panel, para. 83.
643 Dominican Republic's response to Panel question No. 55, para. 167. See also Dominican Republic's
first written submission, para. 652; and responses to Panel questions Nos. 59 and 111, paras. 179 and 213,
respectively.
644 See, for example, Dominican Republic's first written submission, para. 648; and second written
submission, para. 268.
645 Dominican Republic's first written submission, para. 650; and second written submission, para. 271.
646 Minutes of the verification visit (Exhibit CRI-7), pp. 3-4.

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therefore been included in the investigation's Initial Technical Report.648 ArcelorMittal was therefore
aware of this information, and of that contained in the record.
7.400. The Dominican Republic argues that these documents are not "information" within the
meaning of Article 6.4, but rather constitute "documentary evidence" supporting the information
already provided by the applicant in its questionnaire response. 649 Costa Rica disagrees with this
assertion, noting that the term "information" in Article 6.4 has a broad meaning. In particular,
Costa Rica indicates that: (a) this provision refers to "all" inf ormation; (b) the ordinary meaning of
the term "information" includes evidence and includes material that supports information already
provided; and (c) this term has been interpreted broadly.650
7.401. We recall that the "information" that an investigating author ity will provide timely
opportunities to see is "all" information that is "relevant" and "not confidential" that is "used" by the
investigating authorities. In our view, this clearly indicates that the term "information" within the
meaning of Article 6.4 does not in any way limit the type or nature of information that an interested
party is entitled to see under that provision. Accordingly, "all" information that is relevant and used
by the investigating authority, with the exception of confidential informa tion, may be seen by
interested parties in the investigation.
7.402. We now turn to consider whether the information contained in the documents under review
meets the three conditions set out in Article 6.4. The Dominican Republic submits that the
information gathered during the verification visit does not constitute "relevant" information, as it is
merely "documentary evidence" supporting the information provided in the questionnaire response
from the domestic industry. According to the Dominican Republic, the la tter is the relevant
"information" under Article 6.4, and this was made available to ArcelorMittal, giving it an opportunity
to comment.
7.403. However, it is our understanding that the information subject to verification was relevant. In
particular, we recall th at information is "relevant" within the meaning of Article 6.4 when the
interested party itself determines that the information is relevant to the presentation of its case in
the investigation.651 At the same time, we note Costa Rica's argument that the information gathered
during the verification visit, and the documents received by the CDC during that same visit, were
"relevant" information, as this information would have enabled the exporting company to have fuller
understanding of the domestic industry's situation for the purpose of preparing its arguments
concerning the alleged existence of injury and the alleged causal link.652
7.404. As we have said, the Dominican Republic also submits that since ArcelorMittal did not request
any information, Costa Rica's claim is without merit. That is to say that, in the Dominican Republic's
view, if the interested party considers that the alleged information was "relevant to the presentation
of [its] case[]", it could and should have requested an opportunity to see that information.653 In our
view, however, the mere fact that an interested party has not requested an opportunity to see
certain information does not in itself demonstrate that the information is not relevant within the
meaning of Article 6.4.
7.405. With regard to whether the information gathered at the time of the verification was used by
the CDC, we note that, as we have pointed out, this information made it possible to confirm the
veracity and accuracy of the information previously provided by the applicant. Thus, given that the
information submitted by the applicant was considered relevant information and was verified by the
CDC, it is understood that the information gathered during the verification is of the same nature,
recalling that the purpose of the verification was to con firm the veracity and accuracy of the
information previously provided, as mentioned above.

648 See, for example, Initial Technical Report (Exhibit CRI-6).
649 Dominican Republic's first written submission, para. 652.
650 Costa Rica's response to Panel question No. 111, para. 55 (referring to Appellate Body Report,
EC — Fasteners (China), para. 495; and Panel Report, China - Broiler Products, para. 7.310). See also
definition of "información" (Exhibit CRI-25).
651 See para. 7.394. above.
652 Costa Rica's first written submission, para. 265.
653 Dominican Republic's response to Panel question No. 55, paras. 164 and 166.

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7.406. We now turn to the last condition imposed on the range of information subject to the
requirements of Article 6.4, namely the non -confidentiality of the information. Costa Rica argues
that the information contained in the documents at issue was not "declared" confidential. 654 In
particular, Costa Rica notes that this information is not covered by the resolutions under which the
CDC accorded confidential treatment to some of the applicant's information, and that the verification
minutes do not indicate that the CDC accepted the applicant's request for this information to be
treated as confidential.655
7.407. The Dominican Republic submits, however, that the documents received during the
verification fall within the definition of confidential information of Article 6.5.656 Furthermore, the
Dominican Republic adduces that there is no legal basis for claiming that information must be
"declared confidential" by an investigating authority in order to be excluded from the scope of
Article 6.4.657 In particular, according to the Dominican Republic, the documents need not be
"declared confidential" as long as they are consistent with the definition in Article 6.5 (i.e. that they
are by nature confidential or provided on a confidential basis, and treated as such), as was the case
with the documents at issue in the investigation.658
7.408. We note that, with respect to the document s provided during the verification visit, it was
requested that they be treated as confidential "under Article 52 of the Regulations" implementing
Law No. 1-02.659 Furthermore, we note that there is no disagreement between the parties that the
information contained therein was not disclosed in any way to the interested parties during the
investigation, and we therefore infer that the CDC accorded confidential treatment to that
information.660 Costa Rica's central argument specifically addresses this issue, an d is essentially
based on the assumption that the confidential treatment afforded to information must be "declared"
by an investigating authority. However, as we discuss later in our report 661, Article 6.5 does not
establish how an investigating authority s hould or must indicate in the investigation record its
determination regarding confidential treatment granted. Moreover, insofar as Costa Rica responds
that the CDC erroneously treated the information as confidential, we note that this would fall within
the scope of a claim under Article 6.5, which Costa Rica has not made with regard to the information
at issue.662
7.9.3.2 The CDC's reports on the findings and information resulting from the verification
visit
7.409. Costa Rica relies largely on the same arguments it made r egarding the documents that the
CDC received during the verification visit, noting that the report on the findings and information
resulting from this visit was relevant information663 that was used by the CDC in the investigation664,
and was not "declared" confidential under Article 6.5 of the Anti-Dumping Agreement.665 Costa Rica
also submits that, as a factual matter, the Dominican Republic has not demonstrated that this
information constituted analysis, conclusions or methodologies of the CDC.666

654 See, for example, Costa Rica's first written submission, para. 267.
655 Costa Rica's first written submission, paras. 268-270 and 285.
656 Dominican Republic's first written submission, para. 648; and second written submission, para. 268.
657 Dominican Republic's first written submission, para. 648.
658 Dominican Republic's first written submission, para. 649. See also Dominican Republic's opening
statement at the first meeting of the Panel, para. 82; and response to question No. 56, para. 168.
659 Minutes of the verification visit (Exhibit CRI-7), p. 4.
660 Furthermore, we note that in its Resolutions Nos. 003 and 005, the CDC explicitly afforded
confidential treatment to information of the same type and nature as that contained in the documents at issue.
(See, for example, paras. 7.430. and 7.431. below).
661 See specifically paras. 7.433. and 7.439. .
662 Costa Rica claims that the obligation in Article 6.4 is "independent and does not depend on there
being a violation of Article 6.5". (Costa Rica's response to Panel question No. 114, para. 63). However, in this
instance, where the information at issue was treated as confidential, we fail to see how Costa Rica intends to
demonstrate, if not by means of a claim under Article 6.5, that this information was not confidential in
accordance with this provision and was therefore subject to the obligation laid down in Article 6.4.
663 Costa Rica's first written submission, para. 265; and second written submission, para. 283.
664 Costa Rica's first written submission, para. 266; and second written submission, para. 284.
665 See, for example, Costa Rica's first written submission, para. 267.
666 Costa Rica's comments on the Dominican Republic's response to Panel question No. 112,
paras. 86-88.

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7.410. For its part, the Dominican Republic reiterates that Article 6.4 does not require the "active
disclosure" of all the documents obtained or produced by the authorities in an investigation, but
rather the obligation contained in that provision applies when a request i s received to "consult"
certain information. Thus, according to the Dominican Republic, if the interested party considers the
alleged information to be "relevant", it could and should have requested an opportunity to see that
information, which ArcelorMitt al did not, despite being aware of what had taken place during the
verification.667 Furthermore, the Dominican Republic submits that the internal reports prepared by
the authorities (a) are not the type of "information" to be provided on the basis of Article 6.4668 and
(b) fall within the definition of confidential information in Article 6.5 669, and that (c) Costa Rica has
failed to demonstrate that the information at issue complies with the "legal standard" of being "used"
by the authorities within the meaning of Article 6.4.670
7.411. We recall that following the verification visit, the CDC prepared a report on "the findings and
information resulting from the verification visit".671 The Dominican Republic adduces that this report
contains "the CDC's statements", which do not constitute "information", but rather "thoughts and
'findings' on the information" and are therefore not covered by Article 6.4.672
7.412. In our view, the thoughts and findings of an authority regarding the information verified in
the context of a verification visit do not constitute, as such, information within the meaning of
Article 6.4.673 However, the report in question does not form part of the record of this dispute and
we therefore have no way of knowing what that report contains. In particula r, we have no basis to
find that the report contains only findings by the CDC. The Dominican Republic states that
paragraph 17 of the CDC's final determination "reflects what is in the 'report', that is, the CDC's
statements".674 In relevant part, however, this paragraph merely states that "reports were prepared
on the findings and information resulting from the verification visits, and are included in the
confidential record of the investigation". 675 We therefore see nothing in that paragraph suggesting
that the report in question only "reflected" the "CDC's statements".
7.413. We now turn to consider whether this report is subject to the obligation in Article 6.4. We
recall that Article 6.4 only requires that timely opportunities be provided to see information that is
"relevant" to the presentation of the cases of the interested parties, "used" by the authorities in an
investigation, and "not confidential" as defined in Article 6.5. In the present case, we note that the
report in question was incorporated into the confidential record of the investigation676, and that the
information contained therein was not disclosed in any way to the interested parties during the
investigation677, and we therefore infer that the CDC accorded confidential treatment to that
information. Costa Rica recognizes that Article 6.4 excludes confidential information from its scope
of application, but submits that the information regarding the "findings and information resulting
from the verification visit" was not "declared" as such in the inve stigation.678 However, Costa Rica
bases its argument on the premise that the confidential treatment accorded to information must be

667 Dominican Republic's response to Panel question No. 55, paras. 164-166. See also, for example,
Dominican Republic's first written submission, paras. 646 and 651; second written submission,
paras. 269-270; and opening statement at the first meeting of the Panel, para. 83.
668 See, for example, Dominican Republic's response to Panel question No. 111, paras. 213-214.
669 Dominican Republic's first written submission, para. 648; and second written submission, para. 268.
670 Dominican Republic's first written submission, para. 650; and second written submission, para. 271.
671 Letter of notice of the visit to Gerdau Metaldom (15 October 2018) (Exhibit DOM-25), p. 3; minutes
of the verification visit (Exhibit CRI-7), p. 2; Final Technical Report (Exhibit CRI-3), para. 54; and Essential
Facts Report (Exhibit CRI-4), p. 15.
672 Dominican Republic's response to Panel question No. 111, para. 218. See also Dominican Republic's
response to Panel question No. 50, para. 158.
673 Specifically, we share the Appellate Body's statements that Article 6.4 does not refer to an
investigating authority's "reasoning or internal deliberation", or to "an authority's detailed analysis of the
information". (Appellate Body Report, EC - Fasteners (China), para. 480).
674 Dominican Republic's response to Panel question No. 111, paras. 216-218.
675 Final determination (Exhibit CRI-2), p. 4.
676 Final Technical Report (Exhibit CRI-3), para. 54. See also minutes of the verification visit
(Exhibit CRI-7), p. 2.
677 The Dominican Republic confirmed that non-confidential versions were not drawn up for any of the
verification reports prepared by the CDC, and that the fact that none of the interested parties requested to see
these reports explains why no non-public versions were prepared. (Dominican Republic's response to Panel
question No. 52, para. 160. See also Dominican Republic's response to Panel question No. 53, para. 162).
678 See, for example, Costa Rica's first written submission, para. 267.

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"declared" by an investigating authority, which we have rejected.679 Moreover, insofar as Costa Rica
challenges the confidential treatment accorded by the CDC to the information contained in the report
on the findings and information from the verification visit, we note that this would require a claim
under Article 6.5, which Costa Rica has not made with regard to this information.680
7.9.3.3 Conclusion
7.414. In view of the foregoing, we conclude that the Dominican Republic did not violate Article 6.4
because the CDC did not provide timely opportunities for the exporting company to see the
information contained in the CDC's report on the findings and information from the verification visit
and in the documents provided during that verification. In these circumstances, we do not consider
it necessary to address the other arguments raised by the Dominican Republic681 in support of its
claims under Article 6.4 of the Anti-Dumping Agreement.
7.10 Costa Rica's claims under Article 6.5 of the Anti -Dumping Agreement: confidential
treatment granted to certain information
7.10.1 Introduction
7.415. In the investigation, the applicant (Gerd au Metaldom) requested confidential treatment for
some of the information and documents submitted to the CDC. Through Resolution No. 003 and
Resolution No. 005, the CDC granted confidential treatment to said information and documents.682
7.416. Costa Rica argues t hat the Dominican Republic violated Article 6.5 of the
Anti-Dumping Agreement because the CDC granted, without "good cause" being shown, confidential
treatment to the information submitted by the domestic industry.683 In particular, Costa Rica submits
that pursuant to Article 6.5, the CDC was required to: (a) assess the reasons provided by the
domestic industry to justify the confidential treatment of certain information; and (b) determine
"objectively" whether the domestic industry had shown "good cause" for the confidential treatment
of its information.684 However, Costa Rica maintains that Resolution No. 003 and Resolution No. 005
do not demonstrate that the CDC "assessed" the reasons given, or that the CDC had "objectively"
determined whether the applicant had shown "good cause" for the confidential treatment of its
information.685 As such, Costa Rica submits that the record does not reflect that the CDC had
conducted an "objective assessment" of the reasons given by the domestic industry to justify the
confidential treatment requested and, consequently, the CDC acted inconsistently with Article 6.5.686
7.417. The Dominican Republic rejects Costa Rica's claim on the grounds that it is incorrect and is
without merit. 687 In general terms, the Dominican Republic submits that Costa Rica's position
erroneously asserts that a "reasoned explanation" by the investigating authority is required with
respect to the "good cause shown" for the protection of "each piece of confidential information". 688
However, according to the Dominican Republic, it is sufficient that it can be "discern[ed] from [the]
published report" that the investigating authority has assessed whether good cause has been shown,
and no "further express explanation" is required. 689 Moreover, the Dominican Republic notes that
Costa Rica fails to demonstrate that the information to which confidential treatment was granted did

679 See para. 7.407. above.
680 Regarding Costa Rica's argument that the obligation under Article 6.4 is "independent and does not
depend on there being a violation of Article 6.5", see fn 662 above in which we address this statement.
681 See para. 7.390. above.
682 Resolution No. CDC RD AD-003-2018 (Exhibit CRI-8); and Resolution No. CDC RD AD-005-2019
(Exhibit CRI-9).
683 Costa Rica's first written submission, paras. 272 and 293.
684 Costa Rica's second written submission, para. 295. (referring to Appellate Body Report,
EC — Fasteners (China) (Article 21.5 — China), para. 5.68); opening statements at the first and
second meetings of the Panel, paras. 117 and 115, respectively.
685 Costa Rica's first written submission, para. 276; and second written submission, para. 296.
686 Costa Rica's second written submission, para. 299; and opening statement at the second meeting of
the Panel, para. 116. See also Costa Rica's first written submission, para. 279.
687 Dominican Republic's first written submission, para. 655. See also Dominican Republic's closing
statement at the first meeting of the Panel, para. 7.
688 Dominican Republic's first written submission, para. 677; and second written submission, para. 285.
689 Dominican Republic's second written submission, para. 285.

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not warrant such treatment, and nor does it demonstrate that the granting of confidential treatment
was "unreasonable".690
7.418. We begin our analysis by recalling the applicable requirements under Article 6.5 of the
Anti-Dumping Agreement (section 7.10.2 ). We then turn to consi der whether, in the light of the
specific facts and circumstances of this dispute, the Dominican Republic acted inconsistently with
Article 6.5 of the Anti-Dumping Agreement (section 7.10.3 ).
7.10.2 Requirements applicable of Article 6.5 of the Anti-Dumping Agreement
7.419. Article 6.5 of the Anti-Dumping Agreement provides, in relevant part, the following:
Any information which is by nature confidential (for example, because its disclosure
would be of significant competitive advantage to a competitor or because its disclosure
would have a significantly adverse effect upon a person supplying the information or
upon a person from whom that person acquired the information ), or which is provided
on a confidential basis by parties to an anti -dumping investigation shall, upon good
cause shown, be treated as such by the authorities. Such information shall not be
disclosed without specific permission of the party submitting it.17

17 Members are aware that in the territory of certain Members disclosure pursuant to a
narrowly-drawn protective order may be required.
7.420. Article 6.5 refers to the confidential treatment of information provided as such by interested
parties to an investigation. "Confidential information" is defined as information that is: (a) "by nature
confidential"; or (b) "provided by parties to an investigation on a confidential basis". These
two categories may, in practice, overlap.691 In addition, Article 6.5 requires that "upon good cause
shown", an investigating authority shall: (a) treat such information as confidential; and (b) not
disclose it without specific permission of the party submitting it.
7.421. Thus, "good cause" is "a condition precedent for according confide ntial treatment to
information submitted to an authority" 692, which applies to all information for which confidential
treatment is sought, including information that is "by nature" confidential or information which is
provided "on a confidential basis".693 While Article 6.5 does not define what constitutes "good cause",
we consider that the "good cause"694 must constitute "a reason sufficient to justify the withholding
of information from both the public and from the other parties interested in the investigati on", so
this justification "must demonstrate the risk of a potential consequence, the avoidance of which is
important enough to warrant the non-disclosure of the information".695

690 Dominican Republic's first written submission, para. 677; and second written submission, para. 285.
691 Appellate Body Report, EC — Fasteners (China), para. 536.
692 Appellate Body Report, EC — Fasteners (China) (Article 21.5 — China), para. 5.38. See also Panel
Reports, EU — Cost Adjustment Methodologies II (Russia), appealed on 28 August 2020, para. 7.635;
693 See, for example, Appellate Body Report, EC — Fasteners (China), para. 537; and Panel Report,
Guatemala — Cement II, para. 8.219.
694 Instead, Article 6.5 provides illustrative examples of information which "by nature" is considered
confidential, including information that is sensitive "because its disclosure would be of significant competitive
advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person
supplying the information or upon a person from whom that person acquired the information". We concur with
the Appellate Body that these examples "are helpful in interpreting 'good cause' generally, because they
illustrate the type of harm that might result from the disclosure of sensitive information, and the protectable
interests involved". In particular, these illustrative examples "suggest that a 'good cause' which could justify
the non-disclosure of confidential information might include an advantage being bestowed on a competitor, or
the experience of an adverse effect on the submitting party or the party from which it was acquired".
(Appellate Body Report, EC — Fasteners (China), para. 538).
695 Appellate Body Report, EC — Fasteners (China), para. 537. See also Panel Reports, China – HP-SSST
(Japan)/China — HP-SSST (EU), para. 7.291; Russia — Commercial Vehicles, para. 7.241; Korea — Pneumatic
Valves (Japan), para. 7.423; and EU — Cost Adjustment Methodologies II (Russia), appealed on
28 August 2020, para. 7.636.

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7.422. Article 6.5 does not stipulate how "good cause" must be demonstrated 696, nor do es it set
forth how an investigating authority must assess and determine whether "good cause" has been
shown.697 However, we agree with the Appellate Body and previous dispute panels that the type of
evidence and the extent of substantiation to prove "good cause" has been shown will depend on the
nature of the information at issue and the particular good cause alleged.698 In this regard, we further
note that the confidentiality of information that is "by nature" confidential will often be readily
"apparent"699, and that this is a relevant factor when examining a showing of "good cause".700
7.423. With regard to our jurisdiction, we recall that it is not for us to conduct a de novo review of
the record of the investigation, nor to determine whether the existence of "goo d cause" has been
sufficiently substantiated by the submitting party.
7.10.3 Whether the Dominican Republic acted inconsistently with Article 6.5 of the
Anti-Dumping Agreement
7.424. In the light of the parties' arguments, we consider that, in order to resolve Costa Rica's claim
under Article 6.5, we need to consider two main issues: first, whether the CDC assessed the
"reasons" given by the applicant to justify the confidential treatment requested; and second,
whether the CDC "objectively" determined that the applicant had shown good cause for the
confidential treatment of its information. We will examine these issues in turn.
7.425. With respect to the first issue, Costa Rica claims that none of the resolutions through which
the CDC granted confidential treatment to specific i nformation from the domestic industry, namely
Resolution No. 003 and Resolution No. 005 of the CDC, demonstrate that the CDC assessed the
"reasons" given by the domestic industry for the confidential treatment of its information. 701
The Dominican Republic, however, submits that the applicant requested confidential treatment
based on the Dominican Republic's domestic legislation, which grants protection to specific types of
information.702
7.426. Before resolving the merits of this issue, we will examine the circumstances surrounding the
confidential treatment granted by the CDC, and then summarize the relevant facts in this regard,
which are undisputed by the parties. We recall that Costa Rica's claim regarding this aspect of the
investigation is limited to information and documents submitted by the domestic industry (that is to
say, the applicant Gerdau Metaldom703), and referred to in Resolutions Nos. 003 and 005 of the CDC.
7.427. First, the initiation form, under the "general instructions" section, explains the "treatment of
confidential information" by the CDC and indicates to the applicant the relevant domestic legislation
in order to "understand the type of information to which the CDC will accept to afford confidential

696 See, for example, Panel Report, EU — Footwear (China), para. 7.684. See also Appellate Body
Report, Korea — Pneumatic Valves (Japan), para. 5.399.
697 Panel report, EU — Footwear (China), para. 7.728. See also Appellate Body Report,
698 Appellate Body Report, EC — Fasteners (China), para. 539. See also Panel Reports, Mexico — Steel
699 Appellate Body Report, EC — Fasteners (China), para. 536. We also note that "[o]ne type of such
information is commercially sensitive information not typically disclosed in the normal course of business, and
which would likely be regularly treated as confidential in anti-dumping investigations", and that "[t]his could be
the case, for example, for certain profit or cost data or proprietary customer information" (Ibid., para. 536 and
fn 775) or "information on sales prices". (Panel Report, EC — Footwear (China), para. 7.744) We also agree
that a showing of "good cause" for information that is "by nature confidential" may consist of "establishing that
the information fits into the Article 6.5 (chapeau) description of such information: 'for example, because its
disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a
significantly adverse effect upon a person supplying the information or upon a person from whom that person
acquired the information'". (Panel Report, Mexico — Steel Pipes and Tubes, para. 7.378; see also Panel Report,
700 Appellate Body Report, EC — Fasteners (China), para. 536. See also final report of the panel as
issued to the parties in Colombia — Frozen Fries, para. 7.118.
701 See, for example, Costa Rica's first written submission, paras. 276-277; and second written
submission, para. 296.
702 Dominican Republic's response to Panel question No. 114, paras. 223 and 225.
703 We note in this regard that, in the underlying investigation, Gerdau Metaldom was the only company
producing the product under investigation in the Dominican Republic. (See, for example, Initial Technical
Report (Exhibit CRI-6), para. 2; and the Dominican Republic's first written submission, para. 66.).

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treatment". Namely, Resolution No. CDC RD-ADM-014-2009 of 30 July 2009, "approving the criteria
and procedure for declaring information submitted by interested parties in trade defence
investigations confidential".704
7.428. Second, under the relevant Dominican legislation (Article 52 of the implementing regulations
of Law No. 1-02), the following information is considered confidential: (a) business or trade secrets
concerning the nature of a product; (b) production processes or operations for the product involved,
and production equipment or machinery; (c) production costs and specification of components;
(d) distribution costs; (e) terms and conditions of sale, except those offered to the public;
(f) expansion and marketing plans; (g) selling prices by transaction and by product , except
components of prices such as dates of sales and distribution of the product, and transport if by public
routes; (h) identification of clients, distributors or suppliers; (i) the exact amount of the margin of
price discrimination in individual sales; (j) t the amounts of adjustments for terms and conditions of
sale, volume or quantities, variable costs and tax charges; (k) levels of inventories and sales;
(l) information concerning the financial condition of a company that is not public, including a mount
or source of any profit, losses, or expenses relating to the production or sale of a specific product;
and (m) any other specific information about the enterprise concerned whose disclosure or
dissemination to the public may cause injury to its compe titive position. 705 The legislation also
provides that confidential information shall be deemed to be such information "the disclosure of
which would be of significant competitive advantage to a competitor or would have a significantly
adverse effect upon a person supplying the information or upon a person from whom that person
acquired the information".706 The legislation also establishes a "limitation on and exceptions to the
obligation to inform" regarding information that the administration has received a nd "whose
disclosure may result in economic damage".707
7.429. Third, under Dominican law, the CDC must issue confidentiality resolutions through which it
communicates to the parties the information that has been granted the requested confidential
treatment.708
7.430. Fourth, in Resolution No. 003, the CDC considered the request for confidential treatment of
"information classified as such" by the applicant in the following submissions: (a) the initiation form;
(b) the initiation request; (c) the letter of 11 June 2018; (d ) the supplemental information
questionnaire of 11 September 2018; and (e) the letter of 28 September 2018.709 In particular,
pursuant to Article 6.5 of the Anti-Dumping Agreement, as well as domestic legislation pertaining to
the protection of confidential information710, the CDC "analysed whether or not to grant confidential
treatment" to information "classified" as confidential by the applicant. 711 The CDC granted
confidential treatment to some of this information, and in particular the information described below:

704 Application for initiation of the investigation (7 May 2018) (Exhibit DOM-11 (BCI)), p. 4. See also the
exhibits related to the fact that the CDC notified the parties of relevant laws and regulations on confidential
treatment (Exhibit DOM-30), p. 4.
705 Resolution No. CDC-RD-AD-003-2018 (Exhibit CRI-8), pp. 2-3.
706 Resolution No. CDC RD AD-005-2019 (Exhibit CRI-9), p. 6 (quoting Article 51 of the implementing
regulations of Law No. 1-02).
707 Resolution No. CDC RD AD-003-2018 (Exhibit CRI-8), p. 2 (quoting Article 17 i) of Law No. 200-04
on Free Access to Public Information).
708 Resolution No. CDC RD AD-003-2018 (Exhibit CRI-8), p. 3 (quoting Article 54(II) of the
implementing regulations of Law No. 1-02).
709 Resolution No. CDC-RD-AD-003-2018 (Exhibit CRI-8), pp. 5-8.
710 Specifically, Article 17 i) of Law No. 200-04 on Free Access to Public Information; and Articles 52
and 54 of the implementing regulations of Law No. 1-02. (Resolution No. CDC-RD-AD-003-2018
(Exhibit CRI-8), pp. 2-3).
711 Resolution No. CDC-RD-AD-003-2018 (Exhibit CRI-8), p. 5.

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Resolution No. 003 of the CDC
Information Description
Initiation form: points 26, 28, 35,
40, 44, and 47-48; and annexes
C4-C8, 2, and 3A-3B
Information about Gerdau Metaldom regarding: (a) the production of the
product at issue; (b) sales; (c) the financial statements for 2015-2016
and interim statements for 2017; (d) the prices for 2016-2017; (e) the
name of and information related to the customers contained in the
sample commercial invoices supporting the terms of sale; (f) the list of
main customers; (g) the margin of price discrimination and
company-related information in the determination of apparent domestic
consumption; (h) economic and financial indicators; (i) financial
information regarding the product under investigation and
Gerdau Metaldom in general; (j) the ratio of imports to
Gerdau Metaldom's sales, and the economic and financial variables
affected by dumping; (k) the share of imports relative to
Gerdau Metaldom's production; and (l) the name and information of the
sellers and customers on the sales invoices of the product under
investigation in Costa Rica.
Letter from Gerdau Metaldom of
11 June 2018: points 1,7,9, and
10
Information about Gerdau Metaldom regarding: (a) the economic and
financial variables affected by dumping; (b) the production of the
product at issue in 2015-2017; (c) the price list in 2017; and (d) the list
of main customers in 2015.
Letter from Gerdau Metaldom of
11 September 2018 (supplemental
information questionnaire): point
5; tables 1-2; annex 2B; tables 4-
8 and 10-11; and section V
Information about Gerdau Metaldom regarding: (a) the ratio of
Costa Rican imports to the domestic industry's sales; (b) the monthly
productive capacity of the three national mills available to the domestic
industry and Gerdau Metaldom's total production; (c) the interim
financial statements (April 2018); (d) costs; (e) the average price
(2015-April 2018) of the raw material used in the production of the like
product and the monthly and average annual purchase price for the POI;
(g) profits; (h) investments and their performance; (i) cash flow;
(j) sales volume and value by type of channel; (k) domestic market sales
and the terms of sale thereof; (l) apparent domestic consumption and
the share of the feedstock in Gerdau Metaldom's total production costs
Letter from Gerdau Metaldom of
28 September 2018: points 1-2
and 4-6
Information about Gerdau Metaldom regarding: (a) sales prices
(January-April 2018); (b) updated economic and financial information
(January-April 2018); (c) the list of main customers
(January-April 2018); (d) apparent domestic consumption and
Gerdau Metaldom's market share; and (e) technological processes for
the production of the product under investigation.

7.431. Fifth, in Resolution No. 005, the CDC assessed the requests for confidential treatment with
regard to specific information that the applicant had classified as confidential in its letters dated:
(a) 7 November 2018; (b) 28 December 2018; (c) 8 February 2019; (d) 19 March 2019;
(e) 10 April 2019; (f) 16 May 2019; (g) 20 May 2019; (h) 8 July 2019; (i) 8 August 2019; and
(j) 13 September 2019.712 In the applicant's "view", this information was "by nature confidential",
and the applicant requested that they be granted confidential treatment "pursuant to Article 6.5 of
the Anti -Dumping Agreement" and "Article 51 et seq. of the implementing regulations of Law
No. 1-02".713 The CDC granted confidential treatment to all such information, as described below:
Resolution No. 005 of the CDC
Information Description
Information submitted on
7 November 2018
Information about Gerdau Metaldom (and/or information) regarding:
(a) the name of the consulting firm used as the source to calculate the
normal value; (b) the names of the sender and recipient of the email
used as a basis to calculate the port services; and (c) information on
technological advances in the production of the product under
investigation.
Information submitted on
28 December 2018: table 7
Information on the performance of Gerdau Metaldom's investments.
Information submitted on
8 February 2019: annex 5
Independent expert opinion of an auditing firm on best accounting
practices.
Information submitted on
19 March 2019
Information about Gerdau Metaldom regarding: (a) the value and
volume of domestic production of the product under investigation
(2015-April 2018); (b) the prices of monthly purchases of billets

712 Resolution No. CDC-RD-AD-005-2019 (Exhibit CRI-9), pp. 3-5.
713 Resolution No. CDC-RD-AD-005-2019 (Exhibit CRI-9), pp. 3 and 6.

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Resolution No. 005 of the CDC
(2015-April 2018); and (c) the monthly cost of electricity for the
production of the product under investigation (2015-April 2018).
Information submitted on
10 April 2019
Monthly information on the volume (in tonnes) and the value of domestic
and export sales (in US dollars) (2015-April 2018) of Gerdau Metaldom.
Information submitted on
16 May 2019
Monthly information about the volumes (in metric tonnes) and value (in
US dollars) of domestic and export sales (2015) of Gerdau Metaldom.
Information submitted on
20 May 2019
Information on Gerdau Metaldom's financial variables affected in the
POI.
Information submitted on
8 July 2019: charts 1-2;
tables 1-3; and annexes 2-3 and 7
Additional information on the margin of dumping, in particular: (a) the
costs of grade 60 and 40 steel bars to the foundries of Gerdau Metaldom
Costa Rica; (b) the average costs of grade 40 and 60 corrugated steel
bars to foundries; (c) tables Nos. 2-3 of the memorandum containing
additional arguments on the margin of dumping; (d) the sales of
Gerdau Metaldom Costa Rica (January 2015-March 2019); (e) the
summary of the monthly prices of Gerdau Metaldom Costa Rica; and
(f) the calculation of the margin of dumping under different scenarios.
Information submitted on
5 August 2019
Information on the purpose of the acquisitions and implementation of
technological changes affecting the production and sale of the product
under investigation.
Information provided orally on
13 September 2019
Information on Gerdau Metaldom indicators showing the injury to the
domestic industry.
Information submitted on
13 September 2019: tables 2-3
Information about: (a) Gerdau Metaldom's sales prices in the
Costa Rican market; (b) Gerdau Metaldom's sales prices in the
Costa Rican market on a freight adjusted basis; and (c) comparative
analysis between the gross margin of the domestic industry and imports
in metric tonnes originating in Costa Rica.

7.432. Based on the foregoing facts, it is clear that the CDC granted confidential treatment to
specific information submitted by the applicant before and during the investigation, so that
interested parties in the investigation had access only to the public versions of the documents
containing that information. We also understand that, in accordance with the resolutions at issue,
the CDC granted this confidential treatment. As the record before the Panel demonstrates, the CDC
assessed the request for confidentiality based on its "classification" as such. It also follows that the
applicant classified such information as confidential based on the relevant Dominican legislation and
WTO law.714
7.433. As we have noted, Costa Rica submits that none of the resolutions through which the CDC
granted confidential treatment demonstrates that the CDC has assessed the "reasons" given by the
applicant to justify the confidential treatment requested. We no te that implicit in Costa Rica's
argument is the premise that, under Article 6.5, an applicant requesting confidential treatment is
required to provide the "reasons" that justify the confidential treatment requested. However, we find
no textual basis in Ar ticle 6.5 to support this assertion. In particular, we recall that Article 6.5 is
limited to providing that "[a]ny information … provided on a confidential basis … shall, upon good
cause shown, be treated as such by the authorities". Thus, as we discuss above, there is nothing in
Article 6.5 that stipulates how "good cause" is to be shown. 715 In particular, we agree with the
statements in EU — Footwear (China) that Article 6.5 "contains no guidance as to what might
constitute good cause, or how it should be established" and nothing in Article 6.5 requires "any
particular form or means of showing good cause, or any particular type or degree of supporting
evidence which must be provided".716
7.434. As such, we do not consider that the implicit indication of good cause through the submission
of information "classified" as confidential is a priori inconsistent with the requirements of Article 6.5.
Rather, as we have stated above, the type of evidence and the extent of substantiation to prove the

714 For example, the record reveals that the applicant "classified the information contained in [the
application form] as confidential" "in accordance with and pursuant to" the relevant domestic legislation,
"issued by the [CDC]". (Application for initiation of the investigation (7 May 2018) (Exhibit DOM-11 (BCI)), p. 1
of the application questionnaire). Regarding the confidential information referred to in Resolution No. 005, the
applicant stated that it was requesting confidential treatment be granted to such information "pursuant to
Article 6.5 of the Anti-Dumping Agreement" and "Article 51 et seq. of the implementing regulations of
Law No. 1-02". (Resolution No. CDC-RD-AD-005-2019 (Exhibit CRI-9), p. 6).
715 See para. 7.422. above.
716 Panel Report, EU — Footwear (China), para. 7.684. See also Panel Report, Korea — Stainless Steel
Bars, para. 7.206.

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existence of "good cause" will depend upon the nature of the information at issue. 717 We therefore
do not preclude that in certain circumstances — for example, when a Member's legislation defines
the categories o f information to which it will grant confidential treatment, and it is clear that the
information falls within one of those categories and that its disclosure would cause
commercial harm — an "implicit assertion" might be sufficient. Specifically, we agree with the panel
in Korea — Stainless Steel Bars, which, in response to an argument similar to Costa Rica's, observed
that "[f]or some types of information, it may be self-evident that the information falls within one of
the categories [of the domestic regulation at issue] and that its disclosure would cause commercial
harm", and for such information "'implicit assertion' could well suffice".718
7.435. Costa Rica does not contest that the implicit indication of good cause is necessarily
inconsistent with Article 6.5 of the Anti-Dumping Agreement. Rather, for Costa Rica, "the mere act
of redacting certain information will normally not be sufficient to convey the category for which
confidential treatment is being sought and whether protection is warranted".719 Moreover, according
to Costa Rica, "not all the information that was classified as confidential in Resolution No. 005
corresponds to the categories defined in Article 52 of the Dominican law".720 However, we note that
Costa Rica's claims in this dispute do not refer to the supposed failure to show good cause for all the
information to which confidential treatment was granted. Rather, Costa Rica's claims refer to specific
elements of information to which the CDC granted confidential treatment through Resolution No. 005
and Resolution No. 003. This is an important point because, in our view, the question of whether an
implicit indication of good cause meets the requirements of Article 6.5 can only be determined on a
case-by-case basis, i.e. on the basis of an assessment of each specific element of information at
issue.721
7.436. In this case, however, Costa Rica failed to demonstrate, with respect to each element of
information challenged, that its classification as confidential was not sufficient under Article 6.5. In
particular, Costa Rica has not explained, nor demonstrated, why in its opinion, the information on,
for example, the costs of production, prices, sales, and the economic and financial statements of the
applicant, could not be considered confidential information or did not constitute confidential
information under Dominican law. Costa Rica only refers, in an "illustrative manner", to some of the
information to which the CDC granted confidential treatment through Resolution No. 005, arguing
that it does not "appear" t o fall within the categories of confidential information as referred to in
Article 52.722 First, however, the basis for the confidential treatment granted by the CDC in
Resolutions Nos. 003 and 005 was not limited to Dominican domestic law, but included Art icle 6.5
of the Anti-Dumping Agreement. Second, the "examples" of information provided by Costa Rica refer
only to some of the information to which the CDC granted confidential treatment through Resolution
No. 005. Third, with respect to these examples, Co sta Rica has not explained why, in its view, this
information could not fall within the categories of confidential information listed in Article 52 of the
implementing regulations of Law No. 1-02. Fourth, these examples were raised by Costa Rica in
response to the Dominican Republic's rebuttal, as opposed to forming the basis of its original claim
and being set out in its first written submission to this Panel.723 Rather, as we have noted, Costa Rica
has based its claim on the premise that Article 6.5 requires the applicant requesting confidential
treatment of certain information to provide reasons to justify such treatment, which we have
rejected.724 In view of the foregoing, we find that Costa Rica has failed to establish that the CDC

717 See para. 7.422. above. See also the Panel Reports, Mexico — Steel Pipes and Tubes, para. 7.378;
Korea — Certain Paper, para. 7.335; EU — Footwear (China), para. 7.728; and Korea — Stainless Steel Bars,
para. 7.206.
718 Panel Report, Korea — Stainless Steel Bars, para. 7.206. See also Panel Report, Korea — Pneumatic
Valves (Japan), para. 7.438.
719 Costa Rica's response to Panel question No. 62, para. 90
720 Costa Rica's opening statement at the second meeting of the Panel, para. 119 (emphasis added). We
note that Costa Rica does not challenge the consistency with the Anti-Dumping Agreement of Article 52 of the
implementing regulations of Law No. 1-02, and of other provisions to which the CDC referred in its confidential
treatment determinations.
721 See Panel Report, Korea — Stainless Steel Bars, para. 7.208.
722 Costa Rica's opening statement at the second meeting of the Panel, para. 119.
723 Working Procedures of the Panel, clause. 3.1. See also Appellate Body Report, Argentina — Textiles
and Apparel, para. 79; and Panel Report, Korea — Stainless Steel Bars, fn 637.
724 As stated by the panel in Korea — Stainless Steel Bars, "the text of Article 6.5 is not so prescriptive
that it excludes the possibility of a showing of 'good cause' through an 'implicit assertion' by the submission of
a redacted document … depending of course on the particular information at issue". (Panel Report,

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acted inconsistently with Article 6.5 by granting confidential treatment to the information provided
by the applicant.725
7.437. We now turn to the second issue, namely whether the CDC "objectively" determined that
the applicant had shown good cause for the confidential treatment of its information. In essence,
Costa Rica claims that there is no "substantiated" "reason" or "explanation" in Resolutions Nos. 003
and 005 demonstrating that the CDC "objectively" assessed the reasons given by the applicant. 726
The Dominican Republic refutes this assertion, noting that confidential treatment was granted
because the CDC was able to verify that the applications complied with the requirements of domestic
and WTO law, and when the CDC granted confidential treatment, it was because those rules required
the CDC to do so. 727 Moreover, the Dominican Republic maintains that, contrary to Costa Rica's
assertion, Article 6.5 does not require any particular detail in the submission of the reasoning of an
investigating authority in support of its decision to treat information as confidential.728 According to
the Dominican Republic, it is sufficient that it can be "discerned from the published report" that the
investigating authority has conducted an "objective assessment" as to whether "good cause " was
shown, and no "further express explanation" is required.729
7.438. Our task of reviewing the CDC's assessment with respect to a showing of "good cause" must
be based on the published documents from the competent investigating authority, the nature of the
information at issue, and the justification provided by the applican t for confidential treatment. We
also recall that Article 6.5 does not prescribe how an investigating authority must assess and
determine whether "good cause" has been shown. 730 In particular, as we have stated above, we
note that Article 6.5 does not set f orth "how an investigating authority should or must evaluate a
request for confidential treatment", nor does it set forth "how the investigating authority should or
must indicate (explicitly or otherwise in the record of the investigation) how, and the extent to which,
it assessed an applicant's assertion to conclude that 'good cause' existed for the information to be
treated as confidential".731
7.439. Bearing these considerations in mind, we now turn to the facts on which Costa Rica bases
its claim. In this case, as we have indicated, the CDC granted confidential treatment to some of the
information provided by the applicant on a confidential basis as shown in Resolution No. 003 and
Resolution No. 005. With respect to Resolution No. 003, we note that the CDC "analysed whether or
not to grant confidential treatment" to information "classified" as confidential by the applicant, under
Article 6.5 of the Anti -Dumping Agreement, as well as domestic legislation pertaining to the
protection of confidential information.732 To that end, the CDC began its assessment by describing
the instances for which the applicant had requested confidential treatment and setting out the
specific information classified by the applicant as confidential in each of these instances. 733 Then,
before its confidential treatment determination, in the "Citations" section of the resolution, the CDC
listed the domestic and WTO law and documentation it had reviewed as part of its assessment. 734

725 In reaching this conclusion, we express no views as to whether the "classification" as confidential of
each element of information that was granted confidential treatment through Resolutions Nos. 003 and 005
constituted, in fact, a sufficient showing of good cause for the purposes of Article 6.5.
726 Costa Rica's first written submission, paras. 277-278; and second written submission,
paras. 297-298.
727 See, for example, Dominican Republic's first written submission, paras. 676 and 678-680; and
second written submission paras. 292-295 and 302-304.
728 Dominican Republic's second written submission, para. 285.
729 See, for example, Dominican Republic's second written communication, para. 285 (referring to
Appellate Body Report, Korea — Pneumatic Valves (Japan), para. 5.402). The Dominican Republic argues that,
in contrast, Costa Rica claims that a " substantiated explanation" is necessary as if it were a determination of
dumping, injury or causation. (Dominican Republic's first written submission, para. 688).
730 See para. 7.422 above.
731 Panel Report, Mexico — Steel Pipes and Tubes, para. 7.393. In this context, we also note the panel
report on Korea — Stainless Steel Bars, which specifies that there is "nothing in the text of Article 6.5 to
support the proposition that it requires an authority, in all cases, to provide a report or other written evidence
indicating the authority's assessment of good cause". (Panel Report, Korea — Stainless Steel Bars,
para. 7.212).
732 Specifically, Article 17 i) of Law No. 200-04 on Free Access to Public Information; and Articles 52 and
54 of the implementing regulations of Law No. 1-02. (Resolution No. CDC-RD-AD-003-2018 (Exhibit CRI-8),
pp. 1-3 and 5).
733 Resolution No. CDC-RD-AD-003-2018 (Exhibit CRI-8), pp. 5-8.
734 Specifically, the Dominican Constitution; the Anti-Dumping Agreement; Law No. 1-02 on Unfair
Trade Practices and Safeguard Measures; Law No. 200-04 on Free Access to Public Information; Law

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Unlike Costa Rica, we do not consider that the numbered items in the "Citations" section of
Resolution No. 003 "merely present a list of legal instruments and a general reference to the record
of the investigation".735 In our view, in the absence of a convincing explanation to the contrary, the
"citations" instead show the documents that the CDC examined as part of its assessment. On the
basis of its assessment, the CDC declared as confidential some of the information classified by the
applicant as confidential, in considering that it "concern[ed] information that [cou ld] compromise
the company".736 At the same time, the CDC denied the request for confidential treatment with
respect to certain information 737, and required the applicant to justify the confidential nature of
certain information provided as such.738
7.440. As we hav e noted, Costa Rica submits that Resolution No. 003 does not contain a
"substantiated explanation" demonstrating that the CDC conducted an assessment. In particular,
Costa Rica claims that the CDC found, without any sort "explanation" or "rationale", that
confidentiality was granted "because it concerned information that [could] compromise the
company".739 In other words, for Costa Rica, apart from this concluding statement, Resolution
No. 003 does not provide any justification for granting confidential treatment.740
7.441. The arguments put forward by Costa Rica are essentially based on the assumption
that Article 6.5 requires an investigating authority to explain and base its determination on a showing
of good cause for the confidential treatment granted. However, as we note above, Article 6.5 of the
Anti-Dumping Agreement simply provides that "[a]ny information … provided on a confidential basis
… shall, upon good cause shown, be treated as such by the authorities". Article 6.5 does not set
forth how an investigating authority must assess and determine whether good cause has been shown
or how an investigating authority must indicate or explain its assessment and determination of a
showing of such cause.741 We therefore see no legal basis under Article 6.5 to support Costa Rica's
argument that the CDC was required to provide a "substantiated explanation" of its assessment of
a showing of good cause for the confidential treatment granted.742
7.442. Our review of Resolution No. 003 reveals that Costa Rica's arguments are also fa ctually
unfounded. In particular, the statements published by the CDC reveal that the CDC based its
determination of confidential treatment on the following factors: (a) the fact that the information at
issue had been provided on a confidential basis by th e applicant; (b) the confidential status of this
information under Dominican and WTO law743; and (c) the fact that the disclosure of this information
could "compromise the [applicant] company". Thus, in our view, contrary to Costa Rica's assertion,
the facts on the record show that the CDC did in fact explain and substantiate the basis for its
determination regarding the confidential treatment granted. Based on the foregoing, we cannot find

No. 107-13 on the Rights of Individuals in their Interactions with the Administration and Administrative
Procedures; the implementing regulations of Law No. 1-02 on Unfair Trade Practices and Safeguard Measures;
and Record No. CDC-RD/AD/2018-001 relating to the investigation at issue.
(Resolution No. CDC-RD-AD-003-2018 (Exhibit CRI-8), pp. 8-9).
735 See, for example, Costa Rica's first written submission, para. 277.
736 Resolution No. CDC-RD-AD-003-2018 (Exhibit CRI-8), p. 9.
737 In particular, the CDC denied confidential treatment of the information submitted by the applicant
with regard to the consulting firm used as a source for the determination of adjustments to the normal value;
of certain information contained in the original application; and information relating to domestic industry
workers, because such information was already on the record on a non-confidential basis.
(Resolution No. CDC-RD-AD-003-2018 (Exhibit CRI-8), pp. 9-10).
738 The CDC requested justification for the confidential treatment requested with respect to the sender
and recipient of the email used by the applicant as a source for determining adjustments to port services of
stevedoring, transport and storage. (Resolution No. CDC-RD-AD-003-2018 (Exhibit CRI-8), p. 10).
739 Costa Rica's first written submission, para. 277; and second written submission, para. 297 (quoting
Resolution No. CDC-RD-AD-003-2018 (Exhibit CRI-8), p. 9).
740 In particular, Costa Rica asserts that this conclusion does not demonstrate that the CDC conducted
an objective analysis of whether the applicant had shown good cause. (Costa Rica's opening statement at the
first meeting of the Panel, para. 118).
741 See para. 7.422 above.
742 Costa Rica's opening statement at the second meeting of the Panel, para. 118.
743 In this regard, we recall that, through Resolution No. 003, "under the provisions of the regulations in
this field" (i.e. Article 6.5 of the Anti-Dumping Agreement; Article 17 i) of Law No. 200-04 on Free Access to
Public Information; and Articles 52 and 54 of the implementing regulations of Law No. 1-02), the CDC
"analysed whether or not to grant confidential treatment" to information "classified" as confidential by the
applicant. (Resolution No. CDC-RD-AD-003-2018 (Exhibit CRI-8), pp. 1-3 and 5).

BCI deleted, as indicated [[***]]

that the CDC's assessment of the confidential treatment granted by Resolution No. 003 was deficient
for the purposes of Article 6.5 of the Anti-Dumping Agreement.
7.443. We now turn to consider Resolution No. 005, bearing in mind that, in this resolution, the
CDC examined requests for confidential treatment with respect to certain information which, "in the
view" of the applicant, was "by nature confidential".744 First, the CDC detailed the instances in which
the applicant had requested such treatment and described the specific information classified as
confidential in each of thes e instances.745 Next, the CDC noted that the applicant had requested
confidentiality "pursuant to Article 6.5 of the Anti -Dumping Agreement" and "Article 51 et seq. of
the implementing regulations of Law No. 1 -02".746 After conducting a "detailed analysis" of the
information at issue, as well as a "verification" of both Dominican and WTO law 747, the CDC
determined to grant confidential treatment to the documentation submitted by the applicant and
classified as confidential. In particular, in its assessment, the CDC "was able to verify the … nature
of the information submitted" and determined tha t it "[fell] within the parameters established by
Article 51 et seq. of the implementing regulations of Law 1 -02 and Article 6.5 of the Anti-Dumping
Agreement".748 The CDC therefore determined that "it [wa]s appropriate to accept the requests for
confidentiality …, since … disclosure [of that information] could cause material injury, could be of
significant competitive advantage to a competitor and, in addition, in the cases in which they have
received information from third parties, could have an adverse effect in accordance with the criteria
established in the Anti -Dumping Agreement".749 Based on the foregoing, the CDC determined to
grant confidential treatment to the information provided by the applicant "because it is information
that [could] compromise the company".750
7.444. Costa Rica presents a series of arguments that, in its view, undermine the objectivity of the
CDC's review in Resolution No. 005, including: (a) that there is no "substantiated explanation" in
that resolution that demonstrates that the CDC "o bjectively" assessed the reasons given by the
applicant company751; (b) that the determination contains concluding statements that also refer to
"all" of the information declared as confidential by the applicant752; and (c) that the CDC's reasoning
contains certain contradictions and inconsistencies that demonstrate that the CDC did not conduct
an objective assessment of the reasons provided by the applicant.753
7.445. Beginning with Costa Rica's first argument, we note that Costa Rica's criticism of the CDC's
review focuses on the alleged view that an investigating authority's assessment of good cause must
provide a "substantiated explanation" demonstrating such an assessment. 754 We have addressed
this argument in discussing Costa Rica's arguments with respect to Reso lution No. 003 in
paragraph 7.441 above, and the same considerations are valid here. In particular, we reiterate that
Article 6.5 does not prescribe how an investigating authority must evaluate and determine whether
"good cause" has been shown, nor how an investigating authority must indicate or explain its
assessment and determination in this regard. Moreover, in our view, Costa Rica's position is even
more difficult to follow when Resolution No. 005 itself makes it clear that the CDC did indeed explain
and substantiate its assessment of the reasons given by the applicant for the confidential treatment
requested.

744 Resolution No. CDC-RD-AD-005-2019 (Exhibit CRI-9), pp. 3-5.
745 Resolution No. CDC-RD-AD-005-2019 (Exhibit CRI-9), pp. 3-5.
746 Resolution No. CDC-RD-AD-005-2019 (Exhibit CRI-9), p. 6.
747 Namely, Article 6.5 of the Anti-Dumping Agreement; Articles 51-52 and 54 of the implementing
regulations of Law No. 1-02; and Articles 51-52 and 54 of Law No. 1-02.
(Resolution No. CDC-RD-AD-005-2019 (Exhibit CRI-9), pp. 6-7).
748 Resolution No. CDC-RD-AD-005-2019 (Exhibit CRI-9), p. 7.
749 Resolution No. CDC-RD-AD-005-2019 (Exhibit CRI-9), p. 7.
750 Resolution No. CDC-RD-AD-005-2019 (Exhibit CRI-9), p. 8. See paragraph 7.431 above, referring to
the elements of information to which the CDC granted confidential treatment.
751 Costa Rica's first written submission, para. 278; and second written submission, para. 298.
752 Costa Rica's opening statement at the first meeting of the Panel, para. 119.
753 See, for example, Costa Rica's first written submission, para. 278; second written submission,
para. 298; and opening statement at the second meeting of the Panel, para. 120.
754 In particular, Costa Rica argues that beyond the statements that the CDC conducted a "detailed
analysis of the information submitted by [the applicant company]" and that it "was able to verify the
confidential nature of the information submitted", there is no "substantiated explanation" in this determination
that demonstrates that the CDC "objectively" assessed the reasons given by the applicant. (Costa Rica's

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7.446. In particular, based on the foregoing facts, we recall that the CDC: (a) took into consideration
that the applicant had classified the information as confidential based on its confidential nature and
its compliance with relevant domestic and WTO law 755; (b) conducted a "detailed" analysis of the
information, as well as a "verification" of the relevant regulations; (c) "ascertain[ed] the nature" of
the information and determined that it "[fell] within the parameters established" by Article 6.5 and
Article 51 et seq. of the implementing regulations of Law No. 1-02; and (d) found that it concerned
information that "[could] compromise the [applicant] company", as its disclosure "could cause [the
company] material injury", and "could be of significant competitive advantage to a competitor",
while in the case of information submitted by third parties, "could have an adverse effect in
accordance with the criteria established in the Anti-Dumping Agreement".756 Therefore, in our view,
these facts demonstrate that, contrary to Costa Rica's allegation, the CDC did indeed provide a
"substantiated explanation" for its assessment.
7.447. We now turn to Costa Rica's second ar gument, namely, that the CDC's assertions that
disclosure of the information could result in material injury to the applicant, and in cases where it
has received information from third parties, could have an adverse effect on the applicant, are
concluding statements that also relate to "all" of the information. In particular, according to
Costa Rica, there is no discussion of the different categories of information submitted by the
applicant, nor of the particular reasons that justified the confidential treatment of each category.757
However, we recall that Article 6.5 does not set forth how an investigating authority must indicate
or explain its assessment of a showing of "good cause". Therefore, we see nothing in Article 6.5 that
requires or prohibits an as sessment by category, and as such, we see no basis for requiring an
investigating authority to specify, for each category of information granted confidential treatment,
the reasons justifying the confidential treatment granted. Moreover, in our view, it is possible that
for a set of information categories, the reasons justifying their confidentiality could be the same,
and as such, the specification of these reasons for each category would be unnecessarily formalistic.
In the present case, we further note t hat Costa Rica has not argued that the disclosure of the
information at issue could not result in the injury identified by the CDC, and rather focuses its
arguments on the alleged need for an assessment by category.
7.448. Lastly, as noted above, Costa Rica has a lso identified alleged contradictions and
inconsistencies in the CDC's analysis which, in its view, demonstrate that the CDC failed to conduct
an "objective" assessment of the reasons provided by the applicant. First, Costa Rica argues that
the CDC's reasoning is not consistent, as the CDC stated that it conducted a "detailed analysis of
the information" when it had admitted that it would consider all the information "as a whole". 758 As
Costa Rica argues, we note that because of "all the information submitte d by [the applicant]", for
which the applicant "requested … confidential treatment", the CDC, "applying judicial economy",
decided that it would "evaluate [the information] as a whole in order to make its finding" of
confidential treatment.759 However, we do not understand, and Costa Rica has not explained, how
this context is sufficient to demonstrate that the CDC failed to conduct an "objective" assessment of
the reasons given by the applicant. In other words, in our view, the mere fact that the CDC had
stated that it would evaluate all the confidentiality requests referred to in Resolution No. 005 "as a
whole" does not exclude, nor does it demonstrate, that the CDC could not or did not in fact conduct
a "detailed analysis of the different information" as i t indicated in its resolution. Therefore, in the
absence of evidence to the contrary, we do not share the interpretation of the facts suggested by
Costa Rica, whereby they point to an inconsistency, and therefore a lack of objectivity, in the CDC's
analysis.
7.449. Similarly, we do not consider that the alleged contradictions identified by Costa Rica
demonstrate a lack of "objectivity" in the CDC's assessment. Costa Rica argues that the confidential
treatment of certain information in Resolution No. 003 and Resolution No. 005 is contradictory, and
that this demonstrates that the CDC did not conduct an "objective" assessment. In particular,
Costa Rica refers to the treatment of the following information: (a) the name of the consulting firm

755 Resolution No. CDC-RD-AD-005-2019 (Exhibit CRI-9), pp. 3 and 6.
756 Resolution No. CDC-RD-AD-005-2019 (Exhibit CRI-9), p. 7.
757 Costa Rica's opening statement at the first meeting of the Panel, para. 119.
758 Costa Rica's second written submission, para. 298. See also Costa Rica's first written submission,
para. 278; and opening statement at the first meeting of the Panel, para. 119.
759 Resolution No. CDC-RD-AD-005-2019 (Exhibit CRI-9), p. 5.

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used as a source for the normal value calculation; and (b) the names of the sender and recipient of
the email used as a basis for the port services calculation.760
7.450. With respect to the first element of information indicated by Costa Rica, i.e., the name of
the consulting firm used as a source for the normal value calculation, we recall that the CDC, in
Resolution No. 003, denied the requested confidential treatment of that information, since it had
been submitted by the applicant in annex 4B of its initiation form "on a non -confidential basis".761
At the same time, the CDC granted the applicant time to submit "any rectification or argument" with
respect to the information denied confidential treatment.762 We also note that, subsequently, within
the time period granted for that pur pose, the applicant reiterated the request for confidential
treatment with respect to that information by reintroducing it on a confidential basis 763, and that
based on that request, the CDC then granted the requested confidential treatment in Resolution
No. 005.764 In our view, the mere fact that the confidential treatment of that information was denied
in the first instance, and subsequently granted, is not necessarily proof of a contradiction, and
therefore a lack of objectivity, in the confidential treatment granted by the CDC. Rather, in our view,
the foregoing facts only demonstrate the evolution of the assessment that the CDC actually
conducted with respect to the requests for confidential treatment of that information.
7.451. However, we note that Costa Rica does not argue, nor does it demonstrate, that the
information at issue had been disclosed in the investigation, and therefore could not be treated as
confidential. At the same time, we note that the facts on the record appear to indicate that the
disclosure of that information did not, in fact, have any effect on the present investigation. In
particular, we note that this information was submitted on a non-confidential basis in the applicant's
initiation form and that this form was provided to the known exporter in the investigation only after
the information at issue had been reintroduced on a confidential basis (i.e. on
22 November 2018).765 Moreover, in the absence of evidence to the contrary, we do not consider
that the fact that the "investigation forms" were available on the CDC website before the information
was reintroduced on a confidential basis766, necessarily demonstrates that interested parties in the
investigation had, in fact, accessed such information.
7.452. With respect to the second item of informat ion indicated by Costa Rica, namely the names
of the sender and recipient of the email used as a basis for the port services calculation, Costa Rica
notes that, while in Resolution No. 003 the CDC required the applicant to justify the need for
confidential treatment of that information, in Resolution No. 005, the CDC determined that this
information was confidential without any "justification". 767 However, as discussed above, in the
process of an investigating authority's assessment of a request for confidential treatment, the mere
fact that confidential treatment of an element of information was first denied, and subsequently
granted, does not necessarily imply "inconsistent treatment" of the information, nor consequently a
lack of "objectivity" in the confidential treatment granted.
7.453. In the present case, the record shows that, in Resolution No. 003, the CDC required the
applicant to "justify the confidential nature" of the information in question 768, and granted the
applicant time to submit "any rectif ications or arguments" in this regard. 769 We also note that
subsequently, within the time period granted for that purpose 770, the applicant again requested
confidential treatment of that information. 771 As noted above, on the basis of this new application,
the CDC granted confidential treatment to that information, considering the following factors: (a) the
fact that the applicant had submitted documents which, "in its view", were by "nature confidential"

760 Costa Rica's opening statement at the second meeting of the Panel, para. 120.
761 See fn 737 above. See also Resolution CDC-RD-AD-003-2018, (Exhibit CRI-8), pp. 6 and 10.
762 Resolution No. CDC-RD-AD-003-2018 (Exhibit CRI-8), p. 10.
763 Resolution No. CDC-RD-AD-005-2019 (Exhibit CRI-9), pp. 2-3.
764 Resolution No. CDC-RD-AD-005-2019 (Exhibit CRI-9), pp. 3 and 8.
765 See Resolution No. CDC RD AD-005-2019 (Exhibit CRI-9), p. 8; and letter from the CDC
(22 November 2018) (Exhibit CRI-17).
766 See, for example, Resolution No. CDC-RD-AD-001-2018 (Exhibit DOM-1), p. 4.
767 Costa Rica's opening statement at the second meeting of the Panel, para. 120.
768 See fn 738 above. See also Resolution No. CDC RD AD-003-2018 (Exhibit CRI-8), p. 10.
769 Resolution No. CDC-RD-AD-003-2018 (Exhibit CRI-8), pp. 10-11.
770 Namely, within the time period granted "for [the applicant] to make any comments with respect to
the information declared non-confidential" in Resolution No. 003. (Resolution No. CDC-RD-AD-005-2019
(Exhibit CRI-9), p. 3).
771 Resolution No. CDC-RD-AD-003-2018 (Exhibit CRI-8), pp. 2-3.

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and which it requested be granted confid ential treatment "pursuant to Article 6.5 of the
Anti-Dumping Agreement" and to the relevant laws of the Dominican Republic; (b) the fact that the
CDC had "[been] able to verify the … nature" of the information and determine that it "[fell] within
the para meters established" by Article 6.5 of the Anti -Dumping Agreement and the relevant
domestic legislation; and (c) that in cases where the applicant had received information from third
parties, disclosure of that information could have an "adverse effect in a ccordance with the criteria
set out in the Anti-Dumping Agreement".772 Therefore, based on our reading of Resolution No. 003
and Resolution No. 005, we find that, contrary to Costa Rica's allegation, the facts on the record do
not demonstrate a contradiction, and therefore a lack of objectivity, in the treatment that the CDC
granted the requests for the confidentiality of the names of the sender and recipient of the email
used as a basis for the port services calculation. Rather, these facts, in our view, in dicate the
development of the CDC's assessment of the requests for the confidential treatment of such
information.
7.454. For these reasons, we also reject Costa Rica's argument that the alleged "contradictory
treatment" by the CDC "undermines the argument that the reference to domestic law [wa]s sufficient
to justify the confidential treatment granted in Resolution No. 005 to the same type of
information".773 In particular, Costa Rica supports its argument on the premise that there is a
contradiction in the treatment of the information at issue, which we have rejected. In addition, we
note that the basis for the confidential treatment granted by the CDC was not limited to the domestic
law of the Dominican Republic, but included Article 6.5 of the Anti -Dumping Agreement and other
factors.774
7.455. In conclusion, based on the foregoing, we cannot find that the CDC's assessment of the
confidential treatment granted by Resolution No. 005 was deficient for the purposes of Article 6.5 of
the Anti-Dumping Agreement.
7.10.4 Conclusion
7.456. On the basis of the foregoing, we conclude that Costa Rica has failed to demonstrate, with
respect to the confidential treatment granted by Resolution No. 003 and Resolution No. 005: (a) that
the CDC failed to assess the "reasons" provided by the applicant to justify the confidential treatment
requested; and (b) that the CDC failed to "objectively" determine that the applicant had shown good
cause for the confidential treatment of its information. Consequently, we find that the
Dominican Republic did not act inconsistently with Article 6.5 of the Anti-Dumping Agreement with
respect to the information that was granted confidential treatment in Resolutions Nos. 003 and 005.
7.11 Costa Rica's claim under Article 6.7 of the Anti -Dumping Agreement and Annex I
thereto: information to be verified and any further information which needs to be provided
7.11.1 Introduction
7.457. On 19-21 November 2018, the CDC conducted a verification visit at the production facility
and administrative offices of the exporting company, ArcelorMittal. 775 The purpose of this visit was
to "confirm the accounting, economic and financial figures" provided by the company, and to
"observe, on the spot, the production process for the product under investigation". 776 Before the
verification visit took place, the CDC notified the exporting company of the "general verification
programme" (including the matters to be verified) and the "items relating to the review period" that
the company would have to submit at the start of the verification visit.777
7.458. Costa Rica claims that the Dominican Republic breached its obligations under Article 6.7 of
the Anti-Dumping Agreement and Annex I thereto, as the CDC failed, prior to the visit, to advise

772 Resolution No. CDC-RD-AD-005-2019 (Exhibit CRI-9), pp. 3 and 6-7.
773 Costa Rica's opening statement at the second meeting of the Panel, para. 120.
774 Specifically, see para. 7.443 above.
775 Minutes of the verification visit to ArcelorMittal (Exhibit CRI-11) p. 2; and Final Technical Report
(Exhibit CRI-3), para. 52.
776 Final Technical Report (Exhibit CRI-3), para. 53.
777 Letter from the CDC No. 697 to ArcelorMittal regarding the verification visit (2 November 2018)
(Exhibit DOM-18), pp. 2-3.

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ArcelorMittal of the "general nature" of the information that it sought to verify and o f any further
information that the company needed to provide. In particular, Costa Rica indicates that the CDC
failed to inform the exporting company that it had to provide information on sales made prior to the
POI.778
7.459. The Dominican Republic responds that this claim is not within the scope of the Panel's terms
of reference because Costa Rica did not present the problem clearly in its panel request, in
accordance with Article 6.2 of the DSU. 779 However, should the Panel deem this claim to be within
the scope of its terms of reference, the Dominican Republic contends that Costa Rica's claim has no
legal basis and that Costa Rica's presentation of the facts is also incorrect.780
7.460. The parties' arguments raise two issues that we will examine below: (a) whether the P anel
has jurisdiction to examine Costa Rica's claim (section 7.11.2 ); and, if so, (b) whether, based on
the specific facts and circumstances of this dispute, Costa Rica has established that the
Dominican Republic acted inconsistently with Article 6.7 of the Anti-Dumping Agreement and Annex I
thereto (section 7.11.3 ). We will address each of these issues below.
7.11.2 The Panel's terms of reference
7.461. We will first address the Dominican Republic's argument that Costa Rica's panel request did
not present the problem clearly, in accordance with Article 6.2 of the DSU. The Dominican Republic
claims, first, that Costa Rica did not specify which of the many obligations under Annex I its claim
referred to; and second, that no "meaningful" narrative was provided alongside the claim in the
panel request to enable the Dominican Republic to understand the case it had to answer.781
7.462. Costa Rica responds that its panel request makes reference to Article 6.7 and Annex I, and
also contains a description sufficient to satisfy the requirement to provide "a brief summary of the
legal basis of the complaint sufficient to present the problem clearly".782
7.463. As we discuss above783, Article 6.2 of the DSU stipulates that "a brief summary of the legal
basis of the complaint sufficient to present the problem clearly" must be provided in a request for
the establishment of a panel as a fundamental requirement for determining a panel's jurisdiction.
Furthermore, the matter of whether a "brief summary" is "sufficient to present the problem clearly"
is to be assessed on a case -by-case basis, taking into conside ration the nature and scope of the
provisions of the covered agreements alleged to have been violated. At the same time, this
assessment requires an examination of the text of the request in its entirety, and in certain cases,
the panel may infer the statement of a claim therefrom.
7.464. In paragraph 18 of the panel request, Costa Rica claims that the challenged measures are
inconsistent with Article 6.7 of the Anti-Dumping Agreement and Annex I thereto because, inter alia:
[T]he investigating authority failed, prior to the visit, to advise the firms concerned of
the general nature of the information to be verified and of any further information which
needed to be provided.
7.465. Costa Rica's statement of a claim therefore expressly cites Article 6.7 and Annex I and uses
practically the same language as that used in paragraph 7 of Annex I. It is thus clear that the
"problem" that Costa Rica presents in its claim relates to paragraph 7 of Annex I. As such, we reject
the Dominican Republic's argument that paragraph 18 of t he request for the establishment of a
panel was not "sufficient to present the problem clearly".
7.466. The Dominican Republic also contends that no "meaningful" narrative was provided alongside
the claim in the panel request to enable the Dominican Republic to u nderstand the case it was

778 Costa Rica's first written submission, paras. 280 and 285; second written submission, para. 307; and
opening statement at the first meeting of the Panel, para. 122.
779 Dominican Republic's first written submission, para. 694.
780 Dominican Republic's first written submission, para. 693.
781 Dominican Republic's first written submission, paras. 694 and 696-697.
782 Costa Rica's opening statement at the first meeting of the Panel, para. 120.
783 See para. 7.122, ff. above.

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required to respond to. The Dominican Republic also argues that the claim presented by Costa Rica
in its first written submission is not the same as that presented in the panel request, as the claim in
Costa Rica's first written submission "focuses on the fact that the CDC considered that ArcelorMittal
should have provided evidence to enable the CDC to carry out the comparative analysis that
ArcelorMittal deemed necessary or to support ArcelorMittal's argument that certain sales sh ould be
excluded from the examination based on the POI". 784 The Dominican Republic maintains that this
argument has nothing to do with verification or with the procedural aspects set out in Annex I.785
7.467. Article 6.2 of the DSU stipulates that panel requests need only provide a "brief summary" of
the claims.786 It is therefore not necessary for the request to include the arguments supporting the
claims. A complainant may progressively set out, develop and/or clarify its arguments in its
submissions over the course of the panel proceedings.787
7.468. In our view, it is therefore clear that the assertions made by Costa Rica in its first written
submission do not constitute separate claims but rather they are arguments to support its claim of
a breach of Article 6.7 of the A nti-Dumping Agreement and Annex I thereto. This is clear to us
because the submission mentions that the CDC should have requested, prior to the verification visit,
information on domestic sales made before the POI.788
7.469. In the light of the above, we also reject the Dominican Republic's argument that Costa Rica's
claim, as set out in its first written submission, is not within the scope of the Panel's terms of
reference.
7.11.3 Whether the Dominican Republic acted inconsistently with Article 6.7 and Annex I
7.470. Costa Rica claims that the Dominican Republic violated Article 6.7 of the Anti -Dumping
Agreement and Annex I thereto because the CDC failed, prior to the verification visit, to advise the
exporting company of the "general nature" of the information that it sough t to verify and of any
further information that the company needed to provide. In particular, Costa Rica contends that the
CDC failed to notify the exporting company, ArcelorMittal, that it had to provide information on sales
made before the POI.789
7.471. The Dominican Republic responds that Costa Rica's claim has no legal basis and that its
presentation of the facts is also incorrect. 790 The Dominican Republic provides three reasons to
support its allegations. First, the Dominican Republic contends that paragraph 7 of Annex I merely
"recommends" that investigating authorities "should consider it standard practice" to advise the
parties concerned of the general nature of the information to be verified, which is what the CDC did
in the investigation. 791 Second, it is the Dominican Republic's view that Costa Rica presents a
"confused" argument that is "unconnected" to Article 6.7 or the procedural aspects of on -the-spot
verifications set forth in Annex I.792 Third, the Dominican Republic points out that, at the time of the
verification visit, the CDC did not know that ArcelorMittal would later oppose the inclusion of the

784 Dominican Republic's first written submission, para. 698.
785 Dominican Republic's first written submission, paras. 694 and 696-697.
786 This means, as the Appellate Body has stated, that the brief summary of claims required under
Article 6.2 "aims to explain succinctly how or why the measure at issue is considered by the complaining
Member to be violating the WTO obligation in question". (Appellate Body Report, EC - Selected Customs
Matters, para. 130).
787 Panel Report, Thailand - H-Beams, para. 7.44; and the final panel report issued to the parties in
Colombia - Frozen Fries, para. 7.231. See also Appellate Body Report, Korea - Pneumatic Valves (Japan),
paras. 5.6 and 5.31.
788 See, for example, Costa Rica's first written submission, paras. 288-289.
789 See, for example, Costa Rica's first written submission, para. 280.
790 See, for example, Dominican Republic's first written submission, para. 693.
791 Dominican Republic's first written submission, paras. 715-716.
792 Namely, according to the Dominican Republic, the purpose of verification is to obtain documentary
evidence to support the information already provided; yet Costa Rica's claim relates to evidence that should
have been provided to support the claim that certain sales should have been excluded when determining the
export price. (Dominican Republic's second written submission, paras. 308 and 310; and opening statement at
the first meeting of the Panel, para. 88. See also Dominican Republic's first written submission,
paras. 717-723).

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export sales transactions shipped on the vessels, the Thorco Logic and the Suzie Q, which
ArcelorMittal itself had included in its questionnaire response.793
7.472. The parties do not dispute that the CDC did not, prior to or during the verification visit,
request the exporting company to verify sales made before the POI. Instead, the disagreement
between the parties is centred on whether, under Article 6.7 and pa ragraph 7 of Annex I, the CDC
was required to advise the exporting company that it needed to provide such information.
7.473. We observe that Article 6.7 of the Anti-Dumping Agreement provides, in relevant part, that:
In order to verify information provided or to obtain further details, the authorities may
carry out investigations in the territory of other Members as required, provided they
obtain the agreement of the firms concerned and notify the representatives of the
government of the Member in q uestion, and unless that Member objects to the
investigation. The procedures described in Annex I shall apply to investigations carried
out in the territory of other Members.
7.474. Paragraph 7 of Annex I to the Anti-Dumping Agreement provides that:
As the main purpose of the on-the-spot investigation is to verify information provided
or to obtain further details, it should be carried out after the response to the
questionnaire has been received unless the firm agrees to the contrary and the
government of the exporting Member is informed by the investigating authorities of the
anticipated visit and does not object to it; further, it should be standard practice prior
to the visit to advise the firms concerned of the general nature of the information to be
verified and of any further information which needs to be provided, though this should
not preclude requests to be made on the spot for further details to be provided in the
light of information obtained.
7.475. Pursuant to Article 6.7, on -the-spot verifications in the ter ritory of other Members are not
mandatory but rather are permitted during an anti -dumping investigation. 794 However, if an
investigating authority decides to conduct a verification visit, Article 6.7 clearly establishes that the
specific parameters that mus t be applied to the verification visit are found in Annex I to the
Anti-Dumping Agreement.795 Below we will analyse these provisions together.
7.476. We also observe that paragraph 7 of Annex I stipulates that it "should" be standard practice,
prior to the visit, to advise the firms of the "general nature of the information to be verified and of
any further information which needs to be provided". This paragraph does not stipulate that firms
"shall be advised". However, we find it relevant that Article 6.7 expressl y stipulates that the
procedures described in Annex I "shall apply". 796 In our view, paragraph 7 of Annex I should
therefore be interpreted in the mandatory sense, as not doing so would be inconsistent with
Article 6.7.797 For these reasons, we reject the Do minican Republic's argument that the use of the
term "should" in paragraph 7 of Annex I "does not impose obligations on Members".798
7.477. As we have noted, Costa Rica claims that the CDC was "obliged" to advise ArcelorMittal, prior
to the verification visit, tha t it had to supply information on sales made in Costa Rica's domestic
market before the POI.799 However, in the circumstances of this case, we do not deem there to be
such an obligation.
7.478. First, paragraph 7 of Annex I instructs the authority to "advise the f irms concerned of the
general nature of the information to be verified and of any further information which needs to be
provided". In the present case, we consider that this is what the CDC did, as confirmed in letter

793 See, for example, Dominican Republic's response to Panel question No. 64, paras. 192-194.
794 Panel Reports, Egypt - Steel Rebar, para. 7.326; and EC - Tube or Pipe Fittings, para. 7.191.
795 Panel Report, Egypt - Steel Rebar, para. 7.325.
796 We also observe that Annex I is entitled "Procedures for on-the-spot investigations pursuant to
paragraph 7 of Article 6".
797 See, by analogy, Panel Report, Guatemala - Cement II, fn 854.
798 Dominican Republic's first written submission, para. 705; and second written submission, para. 316.
799 Costa Rica's first written submission, para. 387.

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No. 697 from the CDC to ArcelorMittal regarding the verification visit. 800 In particular, the letter
makes reference to the verification of "[a]ll documents concerning sales in the domestic market".801
It also explains that "it is expected that you will be able to account for every figure provided in your
responses".802 Annex I, however, does not specify any obligation to advise the exporter in advance
of the specific transactions to be verified.
7.479. Second, we note that Costa Rica's argument is based on the fact that the CDC rejected the
arguments – concerning the lack of a fair comparison between the normal value and the export
price803 – that the exporting company put forward in its observations about the essential facts of the
investigation because, inter alia, "ArcelorMittal [had] failed to provide the evidence needed to make
a fair comparison with the normal value for dates prior to the [POI]". 804 We recall that Costa Rica
based the claim made under Articles 2.1 and 2.4 of the Anti -Dumping Agreement on these same
facts, and we found that the CDC acted inconsistent ly with Article 2.4, as it failed to make a
comparison between the export price and normal value "in respect of sales made at as nearly as
possible the same time".805
7.480. In our view, in this instance, Costa Rica's argument under Article 6 .7 and Annex I is based
on the fact that, according to Costa Rica, the verification visit was the "ideal opportunity" for the
CDC to express and meet its need to obtain certain information, with a view to ensuring a fair
comparison.806 However, we consider that verification visits – which are not even mandatory – are
not the only time or way for an investigating authority to satisfy itself as to the accuracy of the
information supplied by interested parties or to request further information as part of the
investigation.807 We therefore do not see how the verification visit was the "ideal opportunity" for
the CDC to request information on domestic sales made before the POI, nor do we see how the CDC
could be required to advise the exporter that it needed to supply this information.808
7.11.4 Conclusion
7.481. For the foregoing reasons, we therefore conclude that the Dominican Republic did not act
inconsistently with Article 6.7 of the Anti-Dumping Agreement and Annex I thereto by not advising
the exporting company, prior to th e verification visit, that it had to provide information on sales
made before the POI.
7.12 Costa Rica claims under Article 9.3 of the Anti-Dumping Agreement and Article VI:2
of the GATT 1994
7.482. Costa Rica claims that, because the Panel has found that the CDC failed to calculate the
margin of dumping in accordance with Articles 2.4 and 2.2.1 of the Anti -Dumping Agreement, the

800 Letter from the CDC No. 697 to ArcelorMittal regarding the verification visit (2 November 2018)
(Exhibit DOM-18).
801 Letter from the CDC No. 697 to ArcelorMittal regarding the verification visit (2 November 2018)
(Exhibit DOM-18), p. 3.
802 Letter from the CDC No. 697 to ArcelorMittal regarding the verification visit (2 November 2018)
(Exhibit DOM-18), p. 3.
803 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), pp. 40-41.
804 Final Technical Report (confidential version) (Exhibit DOM-3 (BCI)), para. 129. See also Costa Rica's
first written submission, para. 288; and response to Panel question No. 117, para. 69.
805 See section 7.3.3.2 above.
806 Costa Rica's response to Panel question No. 63, para. 91. Costa Rica also contends that if "the CDC
considered it necessary for the exporter to supply [information on invoices for domestic sales made prior to the
POI], and given that the CDC decided to carry out a verification visit, the CDC should have used that visit to
obtain further details on the domestic sales from the exporter". (Costa Rica's response to Panel question
No. 117, para. 69).
807 As the panel stated in EU - Footwear (China), "[w]hile on-site verification is certainly one method by
which an investigating authority may satisfy itself as to the accuracy of information [in accordance with
Article 6.6 of the Anti-Dumping Agreement], it is by no means the only method of doing so, and ... is not
required in any case". (Panel Report, EU - Footwear (China), para. 7.428. See also Panel Report, Egypt - Steel
Rebar, para. 7.327).
808 In this respect, we take note of the Dominican Republic's assertion that "the purpose of verification
[is not to] request new evidence to support [a claim] that had not even been made at that time".
(Dominican Republic's second written submission, para. 317).

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Panel should also determine that the Dominican Republic's anti-dumping measures were inconsistent
with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.
7.483. The chapeau of Article 9.3 provides that "[t]he amount of the anti -dumping duty shall not
exceed the margin of dumping as established under Article 2". Article VI:2 of the GATT 1994 likewise
provides that "[i]n order to offset or prevent dumping, a contracting party may levy on any dumped
product an anti-dumping duty not greater in amount than the margin of dumping in respect of such
product".
7.484. In the final determination, the CDC calculated a margin of dumping of 15 % and applied
definitive anti-dumping duties of 15% ad valorem at the ex-factory level.809
7.485. Costa Rica's claim is based on the argument that it has demonstrated that the
Dominican Republic imposed anti-dumping duties in excess of the margin of dumping that s hould
have been established under Article 2 of the Anti -Dumping Agreement. To substantiate this,
Costa Rica recalls that, during the investigation, ArcelorMittal had submitted to the CDC an
alternative margin of dumping calculation that excluded the shipments transported the Thorco Logic
and the Suzie Q.810 Costa Rica states that the alternative calculation demonstrated the absence of
dumping and that the CDC rejected the calculation on the grounds that ArcelorMittal did not
expressly request the exclusion of those shipments, nor did it provide evidence of prices associated
with the normal value for purposes of comparison with the export prices of the two shipments. 811
Costa Rica rejects the validity of these arguments and also indicates that the CDC did not i dentify
any errors in the alternative calculation. Costa Rica therefore considers that the margin of dumping
calculation produced by ArcelorMittal is sufficient to demonstrate that the amount of the
anti-dumping duty in this case exceeds the margin of dumping that would have been established if
the CDC had complied with Article 2.812
7.486. The Dominican Republic considers Costa Rica's claim to be without merit because it is "purely
consequential" to Costa Rica's other arguments that the CDC failed to calculate the margin of
dumping in accordance with Article 2 of the Anti -Dumping Agreement.813 The Dominican Republic
also refutes Costa Rica's argument that "the CDC did not identify errors in the calculation produced
by the exporting company", indicating that "[t]he CDC never examined the accuracy of the
calculations because [they] excluded sales that entered the country during the POI and that should
therefore have been included in the calculation".814
7.487. In its written submissions to the Panel, Costa Rica made reference to the approach taken in
the cases EU - Biodiesel (Argentina)815 and EU - Biodiesel (Indonesia)816, in which the panels found
that the investigating authority had acted inconsistently with Article 9.3 and Article VI:2, as it had
calculated the margin of dumping in a manner inconsistent with Article 2 of the Anti -Dumping
Agreement. In bo th cases, the panels determined that the anti -dumping duty imposed exceeded
what the margin of dumping would have been had the investigating authority complied with Article 2.
To reach that finding, the panels considered it appropriate to compare the margi n of dumping
calculated in the final determination with the margin of dumping calculated in the provisional
determination. In both cases, the authorities had calculated the margin of dumping in the provisional

809 Final determination (Exhibit CRI-2), third operative paragraph.
810 Costa Rica's first written submission, para. 296 (referring to the resolution on the appeal for
reconsideration (Exhibit CRI-1), paras. 82-83); and second written submission, para. 314 (referring to
ArcelorMittal's arguments dated 8 February 2019 (Exhibit CRI-18) and Excel sheet with the "MD" calculation
(Exhibit CRI-23 (BCI))).
811 Costa Rica's first written submission, para. 296 (referring to the resolution on the appeal for
reconsideration (Exhibit CRI-1), paras. 81-86); and second written submission, para. 314 (referring to
ArcelorMittal's arguments dated 8 February 2019 (Exhibit CRI-18) and Excel sheet with the "MD" calculation
(Exhibit CRI-23 (BCI))).
812 Costa Rica's first written submission, para. 296; and second written submission, para. 314.
813 Dominican Republic's first written submission, paras. 730-731; and second written submission,
paras. 330 and 333.
814 Dominican Republic's first written submission, para. 733 (referring to Costa Rica's first written
submission, para. 296).
815 Panel Report, EU - Biodiesel (Argentina), paras. 7.365-7.366.
816 Panel Report, EU - Biodiesel (Indonesia), paras. 7.172-7.173.

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determination using cost information that was different from that used in the final determination,
which was deemed inconsistent with Article 2.
7.488. Contrary to those cases, Costa Rica has requested that the Panel consider an alternative
calculation submitted by the exporter under investigation, ArcelorMi ttal, on 7 February 2019. 817 In
this alternative calculation, the export price was determined based on seven shipments invoiced in
the POI, excluding the sales shipped on the Thorco Logic and the Suzie Q; this resulted in a higher
weighted average adjusted export price for each of the diameters. 818 However, the normal value
was also calculated using a different baseline. In particular, a new analysis of sales made in the
ordinary course of trade found that sales with a unit price that was lower than the unit cost accounted
for 38% of total sales. 819 This percentage was lower than that determined by the CDC during its
investigation, which found that 54% of sales were below cost. 820 As fewer sales (at lower prices)
were excluded from ArcelorMittal's alternative calculation, the normal value obtained was lower than
that calculated by the CDC.821 Based on this alternative analysis, ArcelorMittal concluded that there
was no dumping, as the weighted average dumping margin was 0%.822
7.489. We note the Dominican Republic's argum ent that the specific details of ArcelorMittal's
recalculation were not reviewed, or at least, there is no indication to that effect in the CDC's
determination.
7.490. As we explained in section 7.3.4 above, a panel may refrain from examining one or more
claims, in accordance with the principle of judicial economy, if it is established that the same measure
under consideration is inconsistent with any of the provisions of the covered agreement and if the
findings with regard to the additional claims are not necessary to resolve the dispute.823
7.491. As set out in sections 7.3.3 and 7.4.3 above, we have found that the CDC acted
inconsistently with Articles 2.4 and 2.2.1 of the Anti -Dumping Agreement with respect to the
determination of dumping. As such, we consider that additional and consequential findings under
Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 will not help to resolve
the dispute. We therefore decline to address these claims.
8 CONCLUSIONS AND RECOMMENDATIONS
8.1. For the reasons set forth in this Report, we conclude as follows:
a. With respect to Costa Rica's claims regarding the CDC's determination of dumping:
i. the Dominican Republic acted inconsistently with its obligations under Article 2.4 of
the Anti-Dumping Agreement because the CDC failed to comply with the requirement
in the second sentence of Article 2.4 to make the comparison between the export price
and normal value "in respect of sales made at as nearly as possible the same time",
when it considered sales made in different periods, one to determine the normal value
and another to determine the export price;
ii. we exercise j udicial economy with respect to the other claims made by Costa Rica
under Article 2.1 and under the first and third sentences of Article 2.4;
iii. the Dominican Republic acted inconsistently with Article 2.2.1 of the Anti -Dumping
Agreement because, by usin g an annual weighted average cost, the CDC failed to

817 ArcelorMittal's arguments dated 8 February 2019 (Exhibit CRI-18); and Excel sheet with the "MD"
calculation (Exhibit CRI-23 (BCI)).
818 ArcelorMittal's arguments dated 8 February 2019 (Exhibit CRI-18), pp. 4-5; and Excel sheet with the
"MD" calculation (Exhibit CRI-23 (BCI)).
819 ArcelorMittal's arguments dated 8 February 2019 (Exhibit CRI-18), p. 6; and Excel sheet with the
"MD" calculation (Exhibit CRI-23 (BCI)).
820 See section 7.4.1 above.
821 ArcelorMittal's arguments dated 8 February 2019 (Exhibit CRI-18), p. 7; and Excel sheet with the
"MD" calculation (Exhibit CRI-23 (BCI)).
822 ArcelorMittal's arguments dated 8 February 2109 (Exhibit CRI-18), p. 6; and Excel sheet with the
"MD" calculation (Exhibit CRI-23 (BCI)).
823 See, for example, Appellate Body Report, Canada - Wheat Exports and Grain Imports, para. 133.

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properly consider whether prices were lower than unit costs "at the time of sale" in
accordance with the second sentence of Article 2.2.1; and
iv. we exercise judicial economy with regard to Costa Rica's other claims under
Article 2.2.1.
b. With respect to Costa Rica's claims regarding the CDC's determinations of injury and
causation:
i. the Dominican Republic has failed to demonstrate that several of the arguments put
forward by Costa Rica in its first w ritten submission regarding Articles 3.1 and 3.2 of
the Anti-Dumping Agreement do not relate to the claim made by Costa Rica in its panel
request, and that, as a result, that claim and the arguments supporting it are not
within the Panel's terms of reference;
ii. the Dominican Republic did not act inconsistently with Articles 3.1 and 3.2 of the
Anti-Dumping Agreement, as the CDC considered whether price undercutting was
"significant" and whether it was "the effect of" the dumped imports;
iii. the Dominican Republic acted inconsistently with Articles 3.1 and 3.2 of the
Anti-Dumping Agreement because, in its consideration of the price depression, the
CDC failed to explain the upward price trend throughout the entire POI from 2016
to 2018 and, therefore, failed to conduct an objective examination;
iv. the Dominican Republic did not act inconsistently with its obligations under
Articles 3.1 and 3.2 of the Anti-Dumping Agreement because, in its price suppression
analysis, the CDC properly considered that there was price suppression and established
that the suppression was a consequence of the effect of imports from Costa Rica;
v. the Dominican Republic acted inconsistently with its obligations under Articles 3.1
and 3.4 of the Anti -Dumping Agreement because: (a) w ith respect to factors
concerning the profits, cash flow, employment and market share of the domestic
industry, the CDC's examination could not constitute a proper and objective analysis
of how the evidence on the record supported the CDC's conclusions in this regard; and
(b) the CDC failed to conduct an evaluation of all relevant economic factors and indices
having a bearing on the state of the domestic industry, as required by Article 3.4;
vi. the Dominican Republic has failed to demonstrate that Costa Rica's claims put forward
in its first written submission regarding the determination of a threat of material injury
under Article 3.1 are not within the Panel's terms of reference;
vii. the Dominican Republic acted inconsistently with Articles 3.1 and 3.7 of the
Anti-Dumping Agreement because the CDC's conclusions on the imminence of further
exports and on the likely effects of further dumped imports on the domestic industry
could not form the basis for its threat of injury determination under these provisions;
and
viii. the Dominican Republic acted inconsistently with Articles 3.1 and 3.5 of the
Anti-Dumping Agreement because the CDC failed to conduct a proper analysis of the
existence of a causal relationship between further dumped imports and the threat o f
material injury. Moreover, we find no basis on which to make findings with respect to
Costa Rica's claims under Article 3.5 concerning the CDC's non-attribution analysis.
c. With respect to Costa Rica's claims regarding the CDC's determination to initiat e the
underlying investigation:
i. the Dominican Republic did not act inconsistently with its obligations under Article 5.3
as the CDC determined, in an unbiased and objective manner, that the invoices
submitted by the applicant as evidence of the normal value - which concerned a single
type of rod, covered a very low volume and were issued at around the same time,

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almost a year before the submission of the application - constituted sufficient evidence
of dumping to justify the initiation of the investigation; and
ii. the Dominican Republic did not act inconsistently with its obligations under Article 5.8
as the CDC did not err when it determined that there was sufficient evidence to justify
initiating the investigation.
d. With respect to Costa Rica's claim s regarding the CDC's provision of the "full text of the
written application" received:
i. the Dominican Republic acted inconsistently with Article 6.1.3 of the Anti -Dumping
Agreement because, by providing the initiation form and the annexes thereto to the
known exporter almost four months after the initiation of the investigation, the CDC
failed to provide the "full text of the written application" submitted by the applicant
"as soon" as the investigation was initiated; and
ii. having determined that the "full text of the written application" within the meaning of
Article 6.1.3 includes all documents or written submissions that are necessary for the
purposes of applying for the initiation of an investigation, we do not consider that these
additional findings requested by Costa Rica with respect to the fact that the CDC failed
to provide the additional information submitted by the applicant subsequent to the
application (that is, in its letters dated 7 and 11 June 2018) are necessary to resolve
this dispute.
e. With respect to Costa Rica's claims regarding the opportunity to see relevant,
non-confidential information that the CDC used:
i. the Dominican Republic did not act inconsistently with Article 6.4 because, with
respect to the documents that the CDC rec eived from the applicant during the
verification visit, as well as the CDC reports on the findings and information from the
verification visit, Costa Rica did not demonstrate that the CDC failed to provide timely
opportunities for the Costa Rican intereste d parties to see the information contained
in those documents and to prepare presentations on the basis of that information.
f. With respect to Costa Rica's claims regarding the confidential treatment granted by the
CDC to certain information:
i. the Dominican Republic did not act inconsistently with Article 6.5 of the Anti-Dumping
Agreement with respect to the information which was granted confidential treatment
in Resolutions Nos. 003 and 005 because Costa Rica failed to demonstrate that the
CDC (a) faile d to assess the "reasons" provided by the applicant to justify the
confidential treatment requested; and (b) failed to "objectively" determine that the
applicant had shown good cause for the confidential treatment of its information.
g. With respect to Costa Rica's claims regarding information to be verified and any further
information which needs to be provided:
i. the Dominican Republic has failed to demonstrate that Costa Rica did not present the
problem clearly in its panel request with respect to its claims under Article 6.7 of the
Anti-Dumping Agreement and paragraph 7 of Annex I thereto; and
ii. the Dominican Republic did not act inconsistently with Article 6.7 of the Anti-Dumping
Agreement and Annex I thereto by not advising the exporting compan y, prior to the
verification visit, that it had to provide information on sales made before the POI.
h. With respect to Costa Rica's claims regarding the margin of dumping determination
calculated by the CDC:
i. we apply the principle of judicial economy w ith respect to Costa Rica's claims under
Article 9.3 of the Anti-Dumping Agreement and Article VI: 2 of the GATT 1994.

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8.2. Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations
assumed under a covered agreement, the action is considered prima facie to constitute a case of
nullification or impairment. We conclude that, to the extent that the measures at issue are
inconsistent with the Anti-Dumping Agreement, they have nullified or impaired benefits accruing to
the Costa Rica under the Anti-Dumping Agreement and the GATT 1994.
8.3. Pursuant to Article 19.1 of the DSU, we recommend that the Dominican Republic bring its
measures into conformity with its obligations under the GATT 1994 and the Anti -Dumping
Agreement.