CHINA – MEASURES IMPOSING ANTI-DUMPING DUTIES ON HIGH-PERFORMANCE STAINLESS STEEL SEAMLESS TUBES ("HP-SSST") FROM JAPAN AB-2015-4 CHINA – MEASURES IMPOSING ANTI-DUMPING DUTIES ON HIGH-PERFORMANCE STAINLESS STEEL SEAMLESS TUBES ("HP-SSST") FROM THE EUROPEAN UNION AB-2015-5
Document: CHINA – MEASURES IMPOSING ANTI-DUMPING DUTIES ON HIGH-PERFORMANCE STAINLESS STEEL SEAMLESS TUBES ("HP-SSST") FROM THE EUROPEAN UNION AB-2015-5 Reports of the Appellate Body Addendum
Date: 14 October 2015
Document codes: WT/DS454/AB/R/Add.1; WT/DS460/AB/R/Add.1; WT/DS454/AB/R; WT/DS460/AB/R.
Complainant: Japan
Respondent: China
Third parties: EU, India, South Korea, Russia, U.S., Turkey, Saudi Arabia
Dispute stage: Appellate Body
Agreements cited: Art. 3.1, 3.2, 3.4, 3.5, 6.5, 6.8, 6.9, 6.5.1, 7.4, 12.2, 12.2.2  Anti-dumpingArt. VI  GATT 1994

CHINA – MEASURES IMPOSING ANTI-DUMPING DUTIES ON
HIGH-PERFORMANCE STAINLESS STEEL SEAMLESS TUBES ("HP-SSST")
FROM JAPAN
AB-2015-4
CHINA – MEASURES IMPOSING ANTI-DUMPING DUTIES ON
HIGH-PERFORMANCE STAINLESS STEEL SEAMLESS TUBES ("HP-SSST")
FROM THE EUROPEAN UNION
AB-2015-5
Reports of the Appellate Body
Addendum

This Addendum contains Annexes A to C to the Reports of the Appellate Body circulated as
document ;

The Notices of Appeal and Other Appeal and th e executive summaries of written submissions
contained in this Addendum are attached as they were received from the participants and third
participants. The content has not been revised or edited by the Appellate Body, except that
paragraph and footnote numbers that did not start at one in the original may have been
re-numbered to do so, and the text may have been formatted in order to adhere to WTO style. The
executive summaries do not serve as substitutes for the submissions of the participants and third
participants in the Appellate Body's examination of these appeals.

 •

LIST OF ANNEXES
ANNEX A
NOTICES OF APPEAL AND OTHER APPEAL
Contents Page
Annex A-1 Japan's Notice of Appeal (DS454) A-2
Annex A-2 China's Notice of Appeal (DS460) A-4
Annex A-3 China's Notice of Other Appeal (DS454) A-7
Annex A-4 European Union's Notice of Other Appeal (DS460) A-9
ANNEX B
ARGUMENTS OF THE PARTICIPANTS
Contents Page
Annex B-1 Executive summary of Japan's appellant's submission (DS454) B-2
Annex B-2 Executive summary of China's appellant's submission (DS460) B-6
Annex B-3 Executive summary of China's other appellant's submission (DS454) B-12
Annex B-4 Executive summary of the European Union's other appellant's submission
(DS460)
B-16
Annex B-5 Executive summary of China's appellee's submission (DS454, DS460) B-20
Annex B-6 Executive summary of Japan's appellee's submission (DS454) B-26
Annex B-7 Executive summary of the European Union's appellee's submission (DS460) B-29
ANNEX C
ARGUMENTS OF THE THIRD PARTICIPANTS
Contents Page
Annex C-1 Executive summary of the United States' third participant's submission
(DS454, DS460)
C-2
WT/DS454/AB/R/Add.1 • WT/DS460/AB/R/Add.1

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ANNEX A
NOTICES OF APPEAL AND OTHER APPEAL
Contents Page
Annex A-1 Japan's Notice of Appeal (DS454) A-2
Annex A-2 China's Notice of Appeal (DS460) A-4
Annex A-3 China's Notice of Other Appeal (DS454) A-7
Annex A-4 European Union's Notice of Other Appeal (DS460) A-9
WT/DS454/AB/R/Add.1 • WT/DS460/AB/R/Add.1

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ANNEX A-1
JAPAN'S NOTICE OF APPEAL*
(DS454)
Pursuant to Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing
the Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review
("Working Procedures"), Japan hereby notifies th e Dispute Settlement Body of its decision to
appeal to the Appellate Body certain issues of law covered in the Panel Report in China – Measures
Imposing Anti-Dumping Duties on High-Performan ce Stainless Steel Seamless Tubes ("HP-SSST")
from Japan (WT/DS454/R) ("Panel Report"), and certain legal interpretations developed by the
Panel in this dispute.
For the reasons to be elaborated in its submissions and oral statements to the Appellate Body,
Japan appeals the following errors in the issues of law in the Panel Report and legal interpretations
developed by the Panel, and requests the Appellate Body to reverse and modify the related
findings, conclusions and recommendations of the Panel, and where indicated to complete the
analysis.
1
1. With respect to Japan's claims that the price effects analysis conducted by the Ministry of
Commerce of the People's Republic of China ("MOFCOM") is inconsistent with Articles 3.1 and 3.2
of the Agreement on Implementation of Articl e VI of the General Agreement on Tariffs and
Trade 1994 ("Anti-Dumping Agreement"):
a. The Panel erred in its interpretation and application of Articles 3.1 and 3.2 of the Anti-
Dumping Agreement in concluding that an investigating authority may complete its
analysis of the "effect of the dumped imports on prices" under Article 3.2 by simply
finding price undercutting to exist solely based on the consideration of whether subject
import prices are mathematically lower than prices of domestic like products, without
consideration of whether, by selling at lower prices, subject imports have the effect of
g i v i n g r i s e t o a n a c t u a l d e c r e a s e o r p r e v e n t i o n o f i n c r e a s e i n p r i c e s i n t h e d o m e s t i c
market for like products, or alternatively taking the place of domestic like products.
2
Japan requests the Appellate Body to reverse and modify the Panel's legal interpretation
in this regard, and complete the analysis to find instead that MOFCOM acted
inconsistently with Articles 3.1 and 3.2 of the Anti-Dumping Agreement by concluding an
analysis of the "effect of the dumped imports on prices" with a finding of price
undercutting for Grade C solely based on a mathematical comparison of imported and
domestic Grade C prices.
3
b. The Panel erred in interpreting Articles 3. 1 and 3.2 of the Anti-Dumping Agreement to
mean that it is sufficient under Article 3.2 for an investigating authority to find
mathematically lower prices of subject imports at a single point in time during the period
of investigation ("POI").
4 Japan requests the Appellate Body to reverse and modify the
Panel's legal interpretation in this regard.

* This document, dated 20 May 2015, was circulated to Members as document WT/DS454/7.

1 Pursuant to Rule 20(2)(d)(iii)of the Working Procedures, this Notice of Appeal includes an indicative
list of the paragraphs of the Panel Report containing the alleged errors, without prejudice to the ability of Japan
to refer to other paragraphs of the Panel Report in the context of its appeal.
2 Panel Report, paras. 7.124-7.130, 7.138, 7.152, 7.155.
3 This dispute concerns three grades of HP-SSST products: (i) TP347HFG (Grade A); (ii) S30432
(Grade B); and (iii) TP310HNbN (Grade C).
4 Panel Report, paras. 7.125, 7.139-7.142.
WT/DS454/AB/R/Add.1 • WT/DS460/AB/R/Add.1

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2. With respect to Japan's claims that MOFCOM's impact analysis is inconsistent with
Articles 3.1 and 3.4 of the Anti-Dumping Agreement:
a. The Panel erred in its interpretation and application of Articles 3.1 and 3.4 of the
Anti-Dumping Agreement in concluding that an investigating authority may find the
required "consequent impact" by finding simply that "the state of the domestic industry
shows injury, and the subject imports are sold at prices that undercut certain like
products produced and sold by that industry", without any further consideration of the
relationship between subject imports and th e state of the domestic industry, or the
explanatory force of subject imports on th e state of the domestic industry, and the
logical connection between the volume and price effects found to exist under the
Article 3.2 analysis and the state of the domestic industry.
5 Japan requests the Appellate
Body to reverse and modify the Panel's legal interpretation in this regard, and complete
the analysis to find that MOFCOM acted inco nsistently with Articles 3.1 and 3.4 of the
Anti-Dumping Agreement by failing to examin e the relationship between subject imports
and the state of the domestic industry, and by conducting an impact analysis that was at
odds with and did not follow from its volume and price effects analyses.
b. The Panel erred in finding that Japan's clai m that MOFCOM failed to examine whether
subject imports provided explanatory force fo r the state of the domestic industry was
outside the Panel's terms of reference. 6 Japan requests that the Appellate Body reverse
the Panel's finding in this regard, and complete the analysis to find that MOFCOM acted
inconsistently with Articles 3.1 and 3.4 of the Anti-Dumping Agreement by failing to
examine whether subject imports provided explanatory force for the state of the
domestic industry.
3. With respect to Japan's claims that MOFCOM's causation analysis is inconsistent with
Articles 3.1 and 3.5 of the Anti-Dumping Agreement:
c. The Panel failed to make an objective assessment of the matter before it as required by
Article 11 of the DSU by erroneously concluding that Japan has not advanced
independent claims under Articles 3.1 and 3.5 of the Anti-Dumping Agreement in those
instances where the Panel had rejected (or not evaluated) one of Japan's claims under
Articles 3.1 and 3.2 concerning MOFCOM's price effects analysis or under Articles 3.1
and 3.4 concerning MOFCOM's impact analysis, as well as by failing to examine and by
abstaining from making findings on those independent claims.
7 Japan requests that the
Appellate Body complete the analysis to fi nd that MOFCOM acted inconsistently with
Articles 3.1 and 3.5 of the Anti-Dumping Agreement in those instances where Japan's
claims under Articles 3.1 and 3.2 concerning MOFCOM's price effects analysis or under
Articles 3.1 and 3.4 concerning MOFCOM's impact analysis have been rejected by the
Panel or the Appellate Body.

5 Panel Report, paras. 7.152-7.155.
7 Panel Report, paras. 6.43, 7.192.
WT/DS454/AB/R/Add.1 • WT/DS460/AB/R/Add.1

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ANNEX A-2
CHINA'S NOTICE OF APPEAL*
(DS460)
1. Pursuant to Articles 16.4 and 17 of the DSU and Rule 20 of the Working Procedures, China
hereby notifies the Dispute Settlement Body of its decision to appeal certain issues of law and legal
interpretations developed in the Report of the Panel in China – Measures Imposing Anti-Dumping
Duties on High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from the European Union
(WT/DS460/R) (Panel Report).
2. Pursuant to Rules 20(1) and 21(1) of the Working Procedures, China is simultaneously filing
this Notice of Appeal and its Appellant Submission with the Appellate Body Secretariat.
3. The measure at issue in this dispute concerns anti-dumping duties imposed on imports of
High-Performance Stainless Steel Seamless Tube s ("HP-SSST") from the European Union. The
Ministry of Commerce of China (MOFCOM) issued a final determination finding the existence of
dumping that caused injury to the domestic industry by means of MOFCOM Notice No. 72 [2012].
4. Pursuant to Rule 20(2)(d)(iii), the present Notice of Appeal provides an indicative list of the
paragraphs of the Panel Report containing the alleged errors of law and legal interpretation by the
Panel in its report, without prejudice to the ability of China to refer to other paragraphs of the
Panel Report in the context of its appeal.
5. China seeks review by the Appellate Body of, and requests the Appellate Body to reverse,
the following findings and conclusions of the Panel, with respect to the following errors of law and
legal interpretation contained in the Panel Report:
a. the Panel's findings and conclusions concerning the consistency of MOFCOM's
determination of the amount for selling, general and administrative expenses with
China's obligations under the Anti-Dumping Agreement, including Article 2.2.2 of the
Anti-Dumping Agreement, as contained inter alia in paras. 7.49, 7.51, 7.64-7.66
and 8.6(a), because of the following errors of law and legal interpretation:
i. the Panel acted contrary to Articles 6.2, 7.1 and 11 of the DSU when finding that the
European Union's request for the establishment of a panel complied with the
requirements of Article 6.2 of the DSU in respect of the European Union's claim that
China acted inconsistently with Article 2.2.2 of the Anti-Dumping Agreement by
failing to determine an amount for selling, general and administrative expenses on
the basis of data pertaining to production and sales in the ordinary course of trade of
the like product. The Panel erred in concluding that this claim was within its terms of
reference and by reaching any findings and conclusions on this claim that was
outside its terms of reference. The Panel similarly erred when finding that the
Article 2.2.1 arguments in the European Union's submissions relate to a claim that
was within its terms of reference;
ii. the Panel erred in its interpretation and application of Article 2.2.2 of the
Anti-Dumping Agreement and violated Articles 11 and 12.7 of the DSU and
Article 17.6(i) of the Anti-Dumping Agreement when reaching those findings and
conclusions, including when finding that "China acted inconsistently with Article 2.2.2
of the Anti-Dumping Agreement by failing to determine an SG&A amount for SMST
on the basis of actual data pertaining to production and sales in the ordinary course
of trade of the like product";

* This document, dated 20 May 2015, was circulated to Members as document WT/DS460/7.
WT/DS454/AB/R/Add.1 • WT/DS460/AB/R/Add.1

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b. the Panel's findings and conclusions concerning the consistency of MOFCOM's conduct
with Article 6.7 and Paragraph 7 of Annex I of the Anti-Dumping Agreement, as
contained inter alia in paras. 7.98-7.101 and para. 8.6(c), including that "China acted
inconsistently with Article 6.7 and Para graph 7 of Annex I of the Anti-Dumping
Agreement by rejecting SMST's request for rectification only on the basis that it was not
provided prior to verification", because the Panel erred in its interpretation and
application of Article 6.7 and Paragraph 7 of Annex I of the Anti-Dumping Agreement
when reaching those findings and conclusions;
c. the Panel's findings and conclusions concerning the consistency of MOFCOM's reliance on
the market share in the causation analysis with Articles 3.1 and 3.5 of the Anti-Dumping
Agreement, as contained inter alia in paras. 6.106, 7.181-7. 188, 7.205 and 8.6(d)(iii),
including that "MOFCOM improperly relied on the market share of subject imports […] in
determining a causal link between subject imports and material injury to the domestic
industry, contrary to Articles 3.1 and 3.5 of the Anti-Dumping Agreement", because of
the following errors of law and legal interpretation:
i. in reaching those findings and conclusions the Panel erred in considering that the
European Union in its submissions "referred to the relevance of market share data in
the context of price effects" and ruled on a matter that was not before it, contrary to
Article 11 of the DSU, or in the alternative, made the case for the complainant and
acted in violation of the principles gove rning the burden of proof, the due process
requirements, Paragraph 7 of the Joint Wo rking Procedures and Article 11 of the
DSU;
ii. the Panel erred in the interpretation and a pplication of Articles 3.1 and 3.5 of the
Anti-Dumping Agreement and acted contrary to Article 11 of the DSU when reaching
those findings and conclusions, including when finding that MOFCOM's reliance on
the market shares is not sufficient to establish that subject imports, through price
undercutting, had a relatively big impact on the price of the domestic industry, and a
consequent finding of causation consistent with Article 3.5 of the Anti-Dumping
Agreement;
d. the Panel's findings and conclusions concerning the consistency of MOFCOM's
non-attribution analysis with Articles 3.1 and 3.5 of the Anti-Dumping Agreement, as
contained inter alia in paras. 7.200-7.205 and 8.6(d)(iv), including that "MOFCOM failed
to ensure that injury caused by the decrease in apparent consumption and the increase
in production capacity was not attributed to subject imports, contrary to Articles 3.1
and 3.5 of the Anti-Dumping Agreement", because these are entirely based on the
Panel's findings and conclusions contained in paras. 6.106, 7.181-7.188, 7.205
and 8.6(d)(iii) (including the Panel's erroneous rejection of China's reliance on
MOFCOM's price correlation finding) that have to be reversed for the reasons set out in
subparagraph (c) above;
e. the Panel's findings and conclusions concerning the consistency of MOFCOM's treatment
of confidential information with Article 6.5 of the Anti-Dumping Agreement, as contained
inter alia in paras. 7.290, 7.297-7.303 and 8.6(e), including that "MOFCOM allowed
certain information supplied by the petitioners to remain confidential without objectively
assessing "good cause" or scrutinizing the petitioners' showing of "good cause", contrary
to Article 6.5 of the Anti-Dumping Agreement", because of the following errors of law
and legal interpretation:
i. the Panel erred in the interpretation and application of Article 6.5 of the
Anti-Dumping Agreement when reaching those findings and conclusions;
ii. the Panel applied an erroneous standard of review and failed to make an objective
assessment of the facts before it and acted contrary to Article 11 of the DSU and
Article 17.6(i) of the Anti-Dumping Agreement when reaching those findings and
conclusions;
WT/DS454/AB/R/Add.1 • WT/DS460/AB/R/Add.1

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iii. the internally inconsistent reasoning as regards the consistency of the measure at
issue with Article 6.5 and Article 6.5.1 cannot be reconciled with the Panel's duty to
make an objective assessment of the facts under Article 11 of the DSU and the Panel
disregarded Paragraph 7 of the Joint Working Procedures when reaching those
findings and conclusions.
WT/DS454/AB/R/Add.1 • WT/DS460/AB/R/Add.1

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ANNEX A-3
CHINA'S NOTICE OF OTHER APPEAL*
(DS454)
1. Pursuant to Articles 16.4 and 17 of the DSU and Rule 23 of the Working Procedures, China
hereby notifies the Dispute Settlement Body of its decision to appeal certain issues of law and legal
interpretations developed in the Report of the Panel in China – Measures Imposing Anti-Dumping
Duties on High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan
(WT/DS454/R) (Panel Report).

2. Pursuant to Rules 23(1) and 23(3) of the Working Procedures, China is simultaneously filing
this Notice of Other Appeal and its Other Appellant Submission with the Appellate Body
Secretariat.

3. The measure at issue in this dispute concerns anti-dumping duties imposed on imports of
High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from the Japan. The Ministry of
Commerce of China (MOFCOM) issued a final determination finding the existence of dumping that
caused injury to the domestic industry by means of MOFCOM Notice No. 72 [2012].

4. Pursuant to Rule 23(2)(c)(ii)(C), the present No tice of Other Appeal provides an indicative
list of the paragraphs of the Panel Report co ntaining the alleged errors of law and legal
interpretation by the Panel in its report, without prejudice to the ability of China to refer to other
paragraphs of the Panel Report in the context of its appeal.

5. China seeks review by the Appellate Body of, and requests the Appellate Body to reverse,
the following findings and conclusions of the Panel, with respect to the following errors of law and
legal interpretation contained in the Panel Report:

a. the Panel's findings and conclusions concerning the consistency of MOFCOM's reliance on
the market share in the causation analysis with Articles 3.1 and 3.5 of the Anti-Dumping
Agreement, as contained inter alia in paras. 6.106, 7.181-7. 188, 7.205 and 8.1(a)(iii),
including that "MOFCOM improperly relied on the market share of subject imports […] in
determining a causal link between subject imports and material injury to the domestic
industry, contrary to Articles 3.1 and 3.5 of the Anti-Dumping Agreement", because of
the following errors of law and legal interpretation:
i. in reaching those findings and conclusions, the Panel acted contrary to Articles 6.2
and 7.1 of the DSU since it reached findings and ruled on a claim that was not within
its terms of reference;
ii. even if assuming that the claim was within the Panel's terms of reference, in
reaching those findings and conclusions the Panel erred in considering that Japan in
its submissions "referred to the relevance of market share data in the context of
price effects" and ruled on a matter that was not before it, contrary to Article 11 of
the DSU, or in the alternative, made th e case for the complainant and acted in
violation of the principles governing the burden of proof, the due process
requirements, Paragraph 7 of the Joint Wo rking Procedures and Article 11 of the
DSU;
iii. the Panel erred in the interpretation and a pplication of Articles 3.1 and 3.5 of the
Anti-Dumping Agreement and acted contrary to Article 11 of the DSU when reaching
those findings and conclusions, including when finding that MOFCOM's reliance on
the market shares is not sufficient to establish that subject imports, through price
undercutting, had a relatively big impact on the price of the domestic industry, and a
consequent finding of causation consistent with Article 3.5 of the Anti-Dumping
Agreement;

* This document, dated 26 May 2015, was circulated to Members as document WT/DS454/8.
WT/DS454/AB/R/Add.1 • WT/DS460/AB/R/Add.1

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b. the Panel's findings and conclusions concerning the consistency of MOFCOM's non-
attribution analysis with Articles 3.1 an d 3.5 of the Anti-Dumping Agreement, as
contained inter alia in paras. 7.200-7.205 and 8.1(a)(iv), including that "MOFCOM failed
to ensure that injury caused by the decrease in apparent consumption and the increase
in production capacity was not attributed to subject imports, contrary to Articles 3.1 and
3.5 of the Anti-Dumping Agreement", becaus e these are entirely based on the Panel's
findings and conclusions contained in paras. 6.106, 7.181-7.188, 7.205 and 8.1(a)(iii)
(including the Panel's erroneous rejection of China's reliance on MOFCOM's price
correlation finding) that have to be reversed for the reasons set out in subparagraph (c)
above;
c. the Panel's findings and conclusions concerning the consistency of MOFCOM's treatment
of confidential information with Article 6.5 of the Anti-Dumping Agreement, as contained
inter alia in paras. 7.290, 7.297-7.303 and 8.1(b), including that "MOFCOM allowed
certain information supplied by the petitioners to remain confidential without objectively
assessing "good cause" or scrutinizing the petitioners' showing of "good cause", contrary
to Article 6.5 of the Anti-Dumping Agreement", because of the following errors of law
and legal interpretation:
i. the Panel erred in the interpretation and application of Article 6.5 of the
Anti-Dumping Agreement when reaching those findings and conclusions;
ii. the Panel applied an erroneous standard of review and failed to make an objective
assessment of the facts before it and acted contrary to Article 11 of the DSU and
Article 17.6(i) of the Anti-Dumping Agreement when reaching those findings and
conclusions;
iii. the internally inconsistent reasoning as regards the consistency of the measure at
issue with Article 6.5 and Article 6.5.1 cannot be reconciled with the Panel's duty to
make an objective assessment of the facts under Article 11 of the DSU and the Panel
disregarded Paragraph 7 of the Joint Working Procedures when reaching those
findings and conclusions.
WT/DS454/AB/R/Add.1 • WT/DS460/AB/R/Add.1

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ANNEX A-4
EUROPEAN UNION'S NOTICE OF OTHER APPEAL*
(DS460)
Pursuant to Article 16.4 and Article 17.1 of the DSU, the European Union hereby notifies
to the Dispute Settlement Body its decision to appeal to the Appellate Body certain issues of law
covered in the Panel Report and certain legal interpretations developed by the Panel in the dispute
China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel Seamless
Tubes ("HP-SSST") from the European Union (WT/DS460) (AB-2015-5). Pursuant to Rule 23(1) of
the Working Procedures for Appellate Review , the European Union simultaneously files this Notice
of Appeal with the Appellate Body Secretariat.

For the reasons to be further elaborated in its submissions to the Appellate Body, the
European Union appeals, and requests the Appellate Body to reverse, modify or declare moot and
of no legal effect the findings, conclusions and recommendations of the Panel, with respect to the
following errors of law and legal interpretations contained in the Panel Report, and where indicated
to complete the analysis
1:

I. ADDITIONAL WORKING PROCEDURES ON BCI
1. The European Union appeals and seeks the revers al and/or modification of the Panel's legal
findings and conclusions concerning the designation of Business Confidential Information (BCI).
2
The Panel erred in its interpretation and applic ation of Articles 18.2 and 13.1 of the DSU and
Articles 17.7 and 6.5 of the Anti-Dumping Agreement. The Panel erroneously found that
information designated as confidential within the meaning of Article 6.5 of the Anti-Dumping
Agreement is automatically confidential within the meaning of Article 17.7 of the Anti-Dumping
Agreement and Article 18.2 of the DSU and may be automatically designated as BCI within the
meaning of BCI Procedures. The European Union requests the Appellate Body to complete the
analysis.
2. The European Union appeals and seeks the revers al and/or modification of the Panel's legal
findings and conclusions concerning the provision of an authorizing letter. 3 The Panel erred in its
interpretation and application of Articles 18.2 and 13.1 of the DSU and Articles 17.7 and 6.5 of the
Anti-Dumping Agreement. The Panel erroneously found that information designated as confidential
within the meaning of Article 6.5 of the Anti-D umping Agreement is automatically confidential
within the meaning of Article 17.7 of the Anti-D umping Agreement and Article 18.2 of the DSU,
and that it may only be disclosed within the meaning of Article 17.7 of the Anti-Dumping
Agreement on the basis of a formal authorization from the person, body or authority providing such
information to the investigating authority in the municipal anti-dumping proceeding. The
European Union requests the Appellate Body to complete the analysis.

* This document, dated 26 May 2015, was circulated to Members as document WT/DS460/8.

1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review this Notice of Appeal
includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without prejudice
to the ability of the European Union to refer to other paragraphs of the Panel Report in the context of its
appeal.
2 Panel Report, paras. 7.18-7.25, particularly paras. 7.21 ("… the phra se "confidential information" in
Article 17.7 refers to the confidential information previously examined by the investigating authority and
treated as confidential pursuant to Article 6.5 – and which is now provided to a dispute settlement panel
pursuant to Article 17.7.") and 7.25 ("… we have decided not to modify paragraph 1 of the BCI Procedures in
the manner proposed by the European Union.").
3 Panel Report, paras. 7.26-7.29, and para. 7.21, particularly the finding that ("… the phrase
"confidential information" in Article 17.7 refers to the confidential information previously examined by the
investigating authority and treated as confidential pursuant to Article 6.5 – and which is now provided to a
dispute settlement panel pursuant to Article 17.7.") and the interpretation of the phrase "person, body or
authority".
WT/DS454/AB/R/Add.1 • WT/DS460/AB/R/Add.1

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II. ARTICLE 6.2 OF THE DSU
3. The European Union appeals and seeks the revers al and/or modification of the Panel's legal
findings and conclusions that, with respect to the European Union's claim under Article 2.2, the
panel request did not comply with Article 6.2 of the DSU, because it allegedly did not "provide a
brief summary of the legal basis of the complaint sufficient to present the problem clearly".
4 The
Panel erred in its interpretation and application of Article 6.2 of the DSU. The European Union
requests the Appellate Body to complete the anal ysis. However, if the Appellate Body upholds the
Panel's findings concerning the European Union' s claim under Article 2.2.2 of the Anti-Dumping
Agreement5, or completes the analysis by confirming that claim, then it need not consider this
appeal point.
4. The European Union appeals and seeks the revers al and/or modification of the Panel's legal
findings and conclusions that, with respect to the European Union's claim under Article 2.2.1.1, the
panel request did not comply with Article 6.2 of the DSU, because it allegedly did not "provide a
brief summary of the legal basis of the complaint sufficient to present the problem clearly".
6 The
Panel erred in its interpretation and application of Article 6.2 of the DSU. The European Union
requests the Appellate Body to complete the anal ysis. However, if the Appellate Body upholds the
Panel's findings concerning the European Union' s claim under Article 2.2.2 of the Anti-Dumping
Agreement7, or completes the analysis by confirming that claim, then it need not consider this
appeal point.
III. DUMPING
5. If the Appellate Body reverses the Panel's lega l findings and conclusions to the effect that
China acted inconsistently with Article 6.7 and Annex I, paragraph 7 of the Anti-Dumping
Agreement8, and does not complete the analysis by finding that China acted inconsistently with
these provisions, then the European Union appeals the Panel's legal findings and conclusions with
respect to Article 6.8 and Annex II, paragraphs 3 and 6. 9 The European Union requests the
Appellate Body to reverse and/or modify these le gal findings and conclusions. The Panel erred in
its interpretation and application of Article 6.8 and Annex II, paragraphs 3 and 6. Investigating
authorities are not permitted to disregard rectified data only because it is provided at verification,
wholly failing in this respect to exercise their discretion, and base their determinations instead on
facts available. The European Union requests the Appellate Body to complete the analysis.
IV. INJURY
6. The European Union appeals the Panel's legal findings and conclusions concerning the
interpretation and application of Article 3.1 an d the second sentence of Article 3.2 of the
Anti-Dumping Agreement, specifically with respect to the obligation to consider the effect of the
price of the dumped imports on the price of the domestic product being compared – and
particularly with respect to the question of whether the price of Grade C imports had any
significant price undercutting effect on domestic Grade C products.
10 The European Union submits
that these legal findings and conclusions of the Panel are legally erroneous and requests that the
Appellate Body reverse and/or modify them, and complete the analysis.

4 Panel Report, para. 8.9, first sentence. The Panel Report contains a typographical error insofar as
para. 8.9 refers to Article 2.2.1 (found within the terms of reference in para. 7.49 of the Panel Report), when it
should refer to Article 2.2 (found outside the terms of reference in para. 7.48 of the Panel Report). The
European Union also appeals para. 7.48 of the Panel Report, particularly the final sentence. The European
Union does not appeal para. 7.47 of the Panel Report.
5 China's Notice of Appeal, paras. 5(a)(i) and (ii).
6 Panel Report, para. 8.9, second sentence, insofar as it contains the phrase: "did not reasonably reflect
the costs associated with the product under consideration". The European Union also appeals the eighth
sentence of para. 7.50 of the Panel Report ("We also note that China accepts …"), insofar as it does not include
the phrase "reasonably reflect the costs associated with the production and sale of the product under
consideration", and the final sentence of para. 7.50, insofar as the term "such obligations" does not include
that phrase.
7 China's Notice of Appeal, paras. 5(a)(i) and (ii).
8 Panel Report, para. 8.6(c) and paras. 7.98-7.101; China's Notice of Appeal, para. 5(b).
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7. The European Union appeals the Panel's legal findings and conclusions concerning the
interpretation and application of Article 3.1 an d the second sentence of Article 3.2 of the
Anti-Dumping Agreement, specifically with respec t to the question of whether MOFCOM's findings
of price undercutting in respect of Grades B and C were sufficient to comply with MOFCOM's
obligation to consider whether or not the price of the dumped imports had a significant effect on
the price of the domestic product. 11 The European Union submits that these legal findings and
conclusions of the Panel are legally erroneous and requests that the Appellate Body reverse and/or
modify them, and complete the analysis.
8. The European Union appeals the Panel's legal findings and conclusions concerning the
interpretation and application of Articles 3.1 and Article 3.4 of the Anti-Dumping Agreement,
specifically with respect to the assessment of th e impact of the dumped imports on the domestic
industry.12 In effect, the Panel erroneously concluded that MOFCOM's failure to comply with the
requirements of Article 3.2, as properly understood, and Article 3.5, had no implications for the
consistency of the measure at issue with Article 3.4, and that, in this respect, there were no
independent claims under Article 3.5. The Euro pean Union submits that these findings and
conclusions of the Panel are legally erroneous and requests that the Appellate Body reverse and/or
modify them, and complete the analysis.
9. The European Union appeals – pursuant to Article 11 of the DSU – certain of the Panel's
legal findings and conclusions concerning Articles 3.1 and Article 3.5 of the Anti-Dumping
Agreement, specifically with respect to the assessment of causation.
13 The European Union
submits that, in this respect, the Panel failed to make an objective assessment of the matter
before it, as required by Article 11 of the DSU. It wrongly concluded that the European Union had
not made relevant independent claims under Article 3.5, and it failed to assess those claims and
arguments. The European Union requests that the Appellate Body reverse and/or modify these
legal findings and conclusions, and complete the analysis.
V. PROCEDURAL ISSUES
10. The European Union appeals the Panel's legal findings and conclusions concerning the
interpretation and application of Article 6.9 of the Anti-Dumping Agreement, specifically with
respect to the obligation to adequately disclose essential facts – and particularly with respect to
the data underlying MOFCOM's determination of dumping with respect to SMST and Tubacex.
14 The
European Union submits that these legal findings and conclusions of the Panel are legally
erroneous and requests that the Appellate Body reverse or modify them, and complete the
analysis.

WT/DS454/AB/R/Add.1 • WT/DS460/AB/R/Add.1

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ANNEX B
ARGUMENTS OF THE PARTICIPANTS
Contents Page
Annex B-1 Executive summary of Japan's appellant's submission (DS454) B-2
Annex B-2 Executive summary of China's appellant's submission (DS460) B-6
Annex B-3 Executive summary of China's other appellant's submission (DS454) B-12
Annex B-4 Executive summary of the European Union's other appellant's submission
(DS460)
B-16
Annex B-5 Executive summary of China's appellee's submission (DS454, DS460) B-20
Annex B-6 Executive summary of Japan's appellee's submission (DS454) B-26
Annex B-7 Executive summary of the European Union's appellee's submission (DS460) B-29
WT/DS454/AB/R/Add.1 • WT/DS460/AB/R/Add.1

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ANNEX B-1
EXECUTIVE SUMMARY OF JAPAN'S APPELLANT'S SUBMISSION
(DS454)
I. INTRODUCTION
1. This dispute concerns the measures taken by the Ministry of Commerce of the People's
Republic of China ("MOFCOM") imposing anti-dumpi ng duties on high-performance stainless steel
seamless tubes ("HP-SSST") from Japan. Japan appeals because the Panel erred in its legal
interpretation of Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement, and failed to make
an objective assessment of the matter before it consistent with Article 11 of the DSU.
II. JAPAN'S CLAIMS THAT MOFCOM'S PRICE EFFECTS AN ALYSIS IS INCONSISTENT
WITH ARTICLES 3.1 AND 3.2 OF THE ANTI-DUMPING AGREEMENT
A. The Panel erred in concluding that an investigating authority may find a price effect
under Articles 3.1 and 3.2 by finding price undercutting based solely on a
mathematical comparison of import and domestic prices
2. Articles 3.1 and 3.2 indicate that an investigating authority must examine the existence of
an "effect" of subject imports on domestic prices (i .e., a price effect). In this respect, the second
sentence of Article 3.2 requires an investigating authority to "consider" whether there has been
significant price undercutting, significant price depression, or significant price suppression.
However, a finding of "price undercutting" does not end the price "effect" inquiry, or "necessarily
give decisive guidance" as confirmed by the final sentence of Article 3.2. Moreover, the mere fact
of subject import prices mathematically lower than comparable domestic prices does not, in and of
itself, provide a "meaningful basis" for conducting a further causation analysis under Article 3.5.
1
3. Japan requests that the Appellate Body reverse and modify the Panel's interpretation to
make clear that Articles 3.1 and 3.2 require an investigating authority to objectively examine the
"effect" of the dumped imports on the prices of the domestic like products (i.e., an actual decrease
or prevention of increase in domestic prices), and not merely find mathematically lower prices of
subject imports.
4. Here, MOFCOM based its price effect finding for Grade C solely on finding Grade C import
prices to be about 50% below Grade C domestic prices in 2010. MOFCOM provided no analysis as
to how such finding may have resulted in an actual "effect" on domestic Grade C prices. MOFCOM
ignored the fact that domestic prices rose by 112.80% between 2009 and 2010 to give rise to a
situation where import prices were lower than domestic prices, which may better be described as
domestic overpricing. Thus, Japan requests that the Appellate Body complete the analysis and
conclude that MOFCOM's price effect analysis in respect of Grade C was inconsistent with
Articles 3.1 and 3.2.
B. The Panel erred in concluding that it is sufficient under Articles 3.1 and 3.2 for an
investigating authority to find mathematically lower prices of subject imports at a
single point in time during the POI
5. The Panel's interpretation of Articles 3.1 and 3.2 is further problematic because it suggests
that it is sufficient for an investigating authority to find mathematically lower prices of subject
imports ("price undercutting" as the Panel understands it) at a single point in time during the POI,
and thereafter proceed with the remainder of its injury analysis.
2 However, such an interpretation
risks rendering the price effect analysis inutile. Japan requests that the Appellate Body reverse and
modify the Panel's interpretation of Articles 3.1 and 3.2 to make clear that it is insufficient under
those provisions for an investigating authority to simply find mathematically lower prices of subject
imports at a single point in time during the POI.

1 Appellate Body Report, China – GOES, paras. 144-145, 149, and 154.
2 Panel Report, para. 7.125.
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III. JAPAN'S CLAIMS THAT MOFCOM'S IMPA CT ANALYSIS IS INCONSISTENT WITH
ARTICLES 3.1 AND 3.4 OF THE ANTI-DUMPING AGREEMENT
A. The Panel erred in concluding that an investigating authority may find an impact
under Articles 3.1 and 3.4 by simply finding the domestic industry in an injurious state
and subject imports sold at prices that undercut certain domestic like products
6. Articles 3.1 and 3.4 require an investigating authority to examine the "consequent impact"
of the dumped imports on the domestic industry through the "evaluation" of the various factors
and indices specified in Article 3.4. Thus, an investigating authority must assess whether the
observed changes in the state of the domestic indu stry are an effect or influence of the dumped
imports. The Appellate Body has confirmed that an investigating authority must assess the
relationship between subject imports and the state of the domestic industry, or the "explanatory
force of subject imports for the state of the domestic industry", under Article 3.4.3 Furthermore, as
suggested by the word "consequent", there must be a logical connection between the results of
the volume and price effects analyses under Article 3.2 and the impact analysis under Article 3.4.4
7. Japan requests that the Appellate Body reverse and modify the Panel's interpretation to
make clear that Article 3.4 requires an assessment of the relationship between subject imports and
the state of the domestic industry, or the "exp lanatory force", and a logical connection between
the Article 3.2 volume and price effects inquiries and the Article 3.4 impact inquiry.
8. Here, MOFCOM should have focused its Article 3.4 assessment on those aspects of the
domestic industry that could "logically" have been impacted by the volume and price effects it
found under its Article 3.2 analysis. MOFCOM failed to do so. Japan therefore requests that the
Appellate Body complete the analysis and find that MOFCOM's impact determination was
inconsistent with Articles 3.1 and 3.4.
B. The Panel erred in concluding that Japan's claim regarding MOFCOM's failure to
examine whether subject imports had explanat ory force for the state of the domestic
industry was outside the Panel's terms of reference
9. The Panel also erred in finding Japan's claim regarding MOFCOM's failure to examine
whether subject imports provided "explanatory forc e" for the state of the domestic industry under
Articles 3.1 and 3.4 to be outside its terms of refe rence. The Panel explained that it failed to see a
reference to this claim in Japan's Panel Request.
5 However, based on Japan's Panel Request read
as a whole, as well as Japan's submissions and statements throughout the Panel proceedings, the
Panel should have been able to recognize Japan's claim regarding "explanatory force", which is
merely a different expression of the "consequent im pact" or "the impact of subject imports on the
domestic industry" 6 referred to in Japan's Panel Request. Moreover, there is no indication that
China's ability to defend itself was prejudiced.
10. Therefore, Japan requests that the Appellate Body reverse the Panel's conclusion and find
instead that this claim was within the Panel's terms of reference. Japan further requests that the
Appellate Body complete the analysis and find that MOFCOM acted inconsistently with Articles 3.1
and 3.4 because it failed to examine whether subjec t imports provided "explanatory force" for the
state of the domestic industry.

3 Appellate Body Report, China – GOES, para. 149.
6 See Appellate Body Report, China – GOES, para. 149.
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IV. JAPAN'S CLAIMS THAT MOFCOM'S CAUSATION ANALYSIS IS INCONSISTENT WITH
ARTICLES 3.1 AND 3.5 OF THE ANTI-DUMPING AGREEMENT
A. The Panel failed to make an objective assessment of the matter before it as required
by Article 11 of the DSU by failing to examine Japan's claims of independent violations
of Articles 3.1 and 3.5 arising from MOFCOM's price effects and impact analyses
11. Japan's independent claims under Articles 3.1 and 3.5 were properly made and
demonstrated before the Panel, and their inde pendent nature was evident from the specific
content of the claims, as well as the context of the provisions in question. Japan also repeatedly
asserted the independent nature of these claims. Nonetheless, the Panel erroneously concluded
that Japan had not advanced such independent clai ms and failed to examine, and abstained from
making findings on, those claims. The Panel ther efore failed to make an objective assessment of
the matter before it and erred under DSU Article 11.
12. In light of the Panel's violation of DSU Article 11, Japan requests that the Appellate Body
complete the analysis and, unless the Appellate Body agrees with Japan pursuant to the
arguments above that one or more of the following re sult in violations of Articles 3.2 or 3.4, Japan
requests that the Appellate Body find that MOFCOM violated Articles 3.1 and 3.5 because:
 MOFCOM improperly found imports of Grade C had explanatory force for price
undercutting effects on domestic Grade C;
 MOFCOM improperly extended its findings of price undercutting in respect of Grades B
and C to the domestic like product as a whole;
 MOFCOM improperly found the domestic industry as a whole to be impacted by subject
imports despite finding no price effects with respect to Grade A; and
 MOFCOM failed to examine whether subject imports had explanatory force for the state of
the domestic industry.
7
V. CONCLUSION
13. For the foregoing reasons, Japan requests that the Appellate Body:
 reverse the Panel's legal interpretation of Articles 3.1 and 3.2 of the Anti-Dumping
Agreement8, and modify it to provide that an investigating authority may not find the
requisite "effect of the dumped imports on prices" by simply: (i) finding price
undercutting to exist solely based on the consideration of whether subject import prices
are mathematically lower than prices of domestic like products, without consideration of
whether, by selling at lower prices, subject imports have the effect of taking the place of
domestic like products or giving rise to an actual decrease or prevention of increase in
prices in the domestic market for like products; or (ii) finding mathematically lower prices
of subject imports at a single point in time during the POI;
 complete the legal analysis and find that MOFCOM acted inconsistently with Articles 3.1
and 3.2 of the Anti-Dumping Agreement by concluding its Article 3.2 analysis with a
finding of price undercutting for Grade C solely based on a mathematical comparison of
imported and domestic Grade C prices;
 reverse the Panel's legal interpretation of Articles 3.1 and 3.4 of the Anti-Dumping
Agreement9, and modify it to provide that an investigating authority may not find the
requisite "impact of the dumped imports on the domestic industry" by simply finding that
"the state of the domestic industry shows injury, and the subject imports are sold at
prices that undercut certain like products produced and sold by that industry", without
any further consideration of the relationship between subject imports and the state of the

8 Panel Report, paras. 7.124-7.130, 7.138-7.142, 7.152, 7.155.
9 Panel Report, paras. 7.152-7.155.
WT/DS454/AB/R/Add.1 • WT/DS460/AB/R/Add.1

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domestic industry, or the explanatory force of subject imports on the state of the
domestic industry, and the logical connection between the volume and price effects found
to exist under the Article 3.2 analysis and the state of the domestic industry;
 reverse the Panel's finding that Japan's claim that MOFCOM erred under Articles 3.1 and
3.4 of the Anti-Dumping Agreement because it failed to examine whether subject imports
provided explanatory force for the state of the domestic industry was outside the Panel's
terms of reference10, and find instead that this claim was properly within the Panel's
terms of reference;
 complete the legal analysis and find that MOFCOM acted inconsistently with Articles 3.1
and 3.4 of the Anti-Dumping Agreement by: (i) conducting an impact analysis that was at
odds with and did not follow from its volume and price effects analyses under Article 3.2;
and (ii) failing to examine whether subject imports provided explanatory force for the
state of the domestic industry;
 find that the Panel failed to make an objective assessment of the matter before it as
required by Article 11 of the DSU by erroneously concluding that Japan has not advanced
independent claims under Articles 3.1 and 3.5 of the Anti-Dumping Agreement in those
instances where the Panel had rejected (or not evaluated) one of Japan's claims under
Articles 3.1 and 3.2 concerning MOFCOM's price effects analysis or under Articles 3.1 and
3.4 concerning MOFCOM's impact analysis, as well as by failing to examine and by
abstaining from making findings on those independent claims
11; and
 complete the legal analysis and find that MOFCOM acted inconsistently with Articles 3.1
and 3.5 of the Anti-Dumping Agreement in those instances where Japan's claims under
Articles 3.1 and 3.2 concerning MOFCOM's price effects analysis or under Articles 3.1 and
3.4 concerning MOFCOM's impact analysis have been rejected by the Panel or the
Appellate Body.
14. In addition, Japan requests that the Appe llate Body recommend that China bring its
measures found to be WTO-inconsistent into conformity with its obligations under the
Anti-Dumping Agreement and the GATT 1994.

11 Panel Report, paras. 6.43, 7.192.
WT/DS454/AB/R/Add.1 • WT/DS460/AB/R/Add.1

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ANNEX B-2
EXECUTIVE SUMMARY OF CHINA'S APPELLANT'S SUBMISSION1
(DS460)
1. China appeals certain findings and conclusions contained in the report of the Panel in
China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel Seamless
Tubes ("HP-SSST") from the European Union (DS460). China takes issue with a number of errors
of legal reasoning, interpretation and application of the provisions of the Anti-Dumping Agreement
and the DSU, which led the Panel to erroneous findings and conclusions. For the reasons set out in
China's submissions during the Panel proceeding and for the reasons laid down in this submission
to the Appellate Body, China appeals, and requests the Appellate Body to reverse, the findings and
conclusions of the Panel with respect to the errors of law and legal interpretations contained in the
Panel Report.
2. As regards the violation of Article 2.2.2 of th e Anti-Dumping Agreement found by the Panel,
China submits the following. The relevant part of the European Union's panel request expressly
limited its claims to the claims that MOFCOM did not determine the amounts for SG&A and profits
on the basis of:
 the records of the exporters/producers under investigation; and
 the actual data of the exporters/producers under investigation.
3. This is clear from the first sentence of the panel request which refers to an alleged violation
"because China did not determine the amounts for administrative, selling and general costs and for
profits on the basis of records and actual data by the exporters or producers under investigation".
The express limitation is reinforced by the Europe an Union's repetition of these two claims once
more in the narrative description, preceded by the wording "in particular".
4. The Panel therefore erred and acted contrary to Articles 6.2 and 7.1 of the DSU in finding
that the European Union's claim that the SG&A amounts are not based on data pertaining to the
production and sales in the ordinary course of trade was included in the European Union's panel
request. This position applies irrespective of whether or not the provisions at stake contain
multiple obligations. However, in any event, Arti cle 2.2.2 of the Anti-Dumping Agreement contains
multiple and distinct obligations.
5. The Panel further errs in relying on an alleged reference to Article 2.2.1 to conclude that
China would have been put "on notice that below-cost sales […] will be an issue in this dispute".
First, following the reasoning set out above, the claim under Article 2.2.1 is equally outside the
Panel's terms of reference. However, even assuming this claim was within the Panel's terms of
reference, the Panel erred in relying on the "reference" to Article 2.2.1. There was no "reference"
from Article 2.2.2 to Article 2.2.1 in the panel request. Moreover, "a brief summary of the legal
basis of the complaint sufficient to present the problem clearly" cannot take the form of merely
mentioning a different provision. For a "reasonably informed reader", the "reference" to
Article 2.2.1 at best suggested that th e European Union thought that MOFCOM erroneously
excluded certain sales that had to be considered as being in the ordinary course of trade from the
SG&A determinations, rather than wrongly included sales that were not in the ordinary course of
trade.
6. Consequently, the Panel's findings in paras. 7.64-7.66 of its Report relate to a claim that
was not within the Panel's terms of reference. Even assuming the claim was within the Panel's
terms of reference, the Panel erred in its interp retation and application of Article 2.2.2 of the

1 In accordance with the Guidelines in respect of Executive Summaries of Written Submissions in
Appellate Proceedings, China hereby specifies the word count of the executive summary as well as of its
written submission. The total word count (including footnotes) of the executive summary amounts to 3,724.
The total word count (including footnotes) of the present Appellant Submission (excluding the executive
summary) amounts to 38,860.
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Anti-Dumping Agreement and violated Articles 11 and 12.7 of the DSU and Article 17.6(i) of the
Anti-Dumping Agreement by reaching the conclu sion that "by using SGA data based on the
application of coefficients to data that had already been excluded for the purpose of constructing
normal value", MOFCOM failed to base the SG&A amounts on "actual data pertaining to production
and sales in the ordinary course of trade of the like product".
7. The Panel failed to set out and explain it s assessment of how and why China allegedly
violated the requirement to base the SG&A amount on data that is actual and/or the requirement
to base the SG&A amount on data that pertain to production and sales in the ordinary course of
trade, contrary to its duties under Articles 11 and 12.7 of the DSU.
8. Moreover, the Panel's interpretation of Article 2.2.2 as requiring an investigating authority
not to base the SG&A amount on data that were not used for the determination of the cost of
production amount is erroneous. The Panel's reasoning seems to be based on the premise that
costs of production that are not used for the calc ulation of the cost of production in the normal
value determination are necessarily not "actual" and/or do not pertain to "sales in the ordinary
course of trade". This is, however, incorrect.
9. The Panel failed to engage in the required assessment to analyze whether the SG&A amount
was based on data that was actual and whether it was based on data pertaining to production and
sales in the ordinary course of trade. To the extent that the Appellate Body would consider that the
Panel implicitly engaged in an assessment of this sort, China submits that this was carried out
contrary to Article 11 of the DSU. China co nsiders that an objective assessment of the
methodology to obtain the SG&A amount would have led the Panel to conclude that China
complied with its obligations to "base" the SG&A amount is on data that is "actual" and pertains to
"production and sales in the ordinary course of trade".
10. As regards the violation of Article 6.7 and Paragraph 7 of Annex I to the Anti-Dumping
Agreement found by the Panel, China submits that the panel erred in its interpretation and
application of these provisions. First, Article 6.7 and Paragraph 7 of Annex I do not contain an
obligation for an investigating authority not to act contrary to the main purpose of the verification
visit. In creating this obligation, the Panel is reading words into Article 6.7 and Paragraph 7 that
are simply not there and disregarding the synt ax of the relevant sentences. China is not
suggesting that the Anti-Dumping Agreement contains no obligations of relevance to the
information that an investigating authority must accept and take into account. Rather, it submits
that any such obligations are not found in Article 6.7 or Paragraph 7 and that this conclusion is
supported by the unwarranted nature of a distinction between the obligations of an investigating
authority in terms of information gathering, depending on how it decides to satisfy itself of the
accuracy of information submitted (by means of a verification visit or otherwise).
11. Second, even if assuming that Article 6.7 and Paragraph 7 do contain a prohibition against
acting contrary to the purpose of a verification visit ( quod non ), this does not mean that an
investigating authority must verify all information provided or obtain all further details unless it
has a valid reason not to do so. If anything, these provisions can be read as prohibiting an
investigating authority who carries out an investigating authority from doing anything that does
not qualify as verifying information or obtaining further details. Third, even if assuming that
Paragraph 7 of Annex I compels an investigation authority to accept all information unless it has a
valid reason not to do so, China submits that the fact that the information is submitted in
disregard of the procedures determined beforehand by the investigating authority (including the
requirement to put forward new information at the start of the verification visit) does constitute a
"valid reason".
12. In relation to the Panel' conclusion that China violated Articles 3.1 and 3.5 of the
Anti-Dumping Agreement because MOFCOM improper ly relied on the market share of subject
imports in determining a link between subject imports and material injury to the domestic
industry, China submits the following.
13. With respect to Articles 3.1 and 3.5, the European Union claimed (in addition to its claims
with respect to the non-attribution analysis) that MOFCOM's causation determination lacked any
foundation in MOFCOM's analysis of the volume, price effects and impact of subject imports. As
regards the price effects analysis based claim and impact analysis based claim, the
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European Union made purely consequential 2 claims based on the alleged violations of Articles 3.2
and 3.4.
14. When addressing the independent Article 3.5 claim with respect to volume, the Panel
dismissed the claim as presented by the European Union (that is, the alleged reliance on volume
effects and/or the alleged disregard of the absence of such volume effects in MOFCOM's causation
analysis) in unambiguous terms. 3 That should have been the en d of the Panel's evaluation of
MOFCOM's reliance on the market share of subject imports.
15. The Panel, however, continued on its own motion by finding a violation of Article 3.5 in
relation to MOFCOM's findings concerning the impact of price effects on the domestic industry
(which MOFCOM qualified inter alia by reference to the volume of imports found to be made at
undercutting prices). However, as found by the Panel itself, the only claim raised by the
European Union in relation to the price effects relied upon by MOFCOM in its causation
determination is a claim that is purely consequential to its claim under Article 3.2.

16. The fact that the European Union's claim in relation to volume did not address in any way
the violation eventually found to exist by the Panel is evident from the fact that MOFCOM's finding
in relation to which the Panel found a violation (that is, that "the imports of the subject products
had a relatively big impact on the price of the domestic like products") was not even referenced by
the European Union when setting out its claims and arguments.

17. China submits that the Panel made an error when ruling on this unarticulated claim, in
relation to which no arguments were presented by the complainants, and by finding a violation of
Articles 3.1 and 3.5 on this basis. In doing so, the Panel acted inconsistently with the requirement
of Article 11 of the DSU to make an objective assessment "of the matter before it".
18. The Panel found that China violated Articles 3.1 and 3.5 of the AD Agreement by finding that
subject imports through price undercutting, taking into account the market share of the imports
made at undercutting prices, had a relatively big impact on the price of the domestic like products
and therefore caused injury to the domestic indu stry. The claim underlying the finding of violation
is different from the one put forward by the European Union that the absence of volume effects (in
the form of a significant increase in dumped imports) and/or the presence of "positive" volume
effects (in the form of a drop in dumped imports) precluded MOFCOM from: (i) relying on volume
effects in its causation determination; and (ii) reaching an affirmative causation finding.
19. The violation found by the Panel did not even refer to the absence of such a significant
increase or, more generally, to the relevance of (the absence of) volume effects for the causation
analysis. Rather, it related to MOFCOM's finding concerning the impact of the price effects on the
domestic industry, in relation to which MOFCOM considered that the volume of imports made at
undercutting prices was a relevant consideration.
20. The Panel acted ultra petita in reaching its findings in paras. 7.181-7.188 of its Report and
ruled on a claim that was not articulated and in relation to which no arguments were submitted.
Consequently, the Panel failed to make an obje ctive assessment of "the matter before it" as
required by Article 11 of the DSU.
21. Moreover, China submits in the alternative that the Panel erred in law by making the case
for the complainant and ruling on a claim for which the complaining party has failed to make a
prima facie case, and that the Panel failed in its duty to respect due process under Article 11 of the
DSU. Even if it is found that the European Union presented a claim that allowed the Panel to find
the violation it did, the European Union failed to make a prima facie case and the Panel made the
case on the complainant's behalf by finding a violation. In doing so, the Panel reached its findings
in a manner inconsistent with the rules on burden of proof and in violation of Article 11 of the DSU.
Equally, contrary to its duty under Article 11, the Panel failed to ensure that the due process rights
of China were respected in the way in which it reached its findings.

2 Panel Report, para. 7.192.
3 Panel Report, para. 7.180.
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22. The Appellate Body's findings in previous disputes make it clear that in order to present a
prima facie case, a complaining party must put forward sufficient arguments. Moreover, in the
words of the Appellate Body, "a prima facie case must be based on "evidence and legal argument"
put forward by the complaining party in relation to each of the elements of the claim".4 In order to
do so, a complaining party has to, inter alia, relate facts to its legal arguments.5
23. Even assuming that the Panel correctly concluded that the European Union "referred to the
relevance of market share data in the context of price effects" and that this reference would be
sufficient to present a claim and bring this claim within the matter before the Panel ( quod non),
this reference cannot be considered as providing any arguments, let alone as providing sufficient
arguments to make a prima facie case.
24. The alleged claim certainly lacks argumentation in relation to each of the elements of this
claim, inter alia because of the absence of any relating of the facts to the legal arguments under
Article 3.5. The European Union does not even re fer to the main finding of MOFCOM addressed by
the Panel when finding the violation of Articles 3.1 and 3.5 of the Anti-Dumping Agreement, that
is, that taking into account the market share "the imports of the subject products had a relatively
big impact on the price of the domestic like prod ucts". As such, the European Union certainly fails
to relate this finding to its (inexistent) legal arguments under Article 3.5 that could lead to the
violation found by the Panel.
25. By relieving the complainant from the necessity of establishing a prima facie case, the Panel
erred in law.
6
26. Turning to the substance of the Panel's findings (even if assuming the Panel was in a
position to reach these findings, quod non), the Panel erred in its interpretation and application of
Articles 3.1 and 3.5 of the Anti-Dumping Agr eement and violated Article 11 of the DSU by
concluding that China acted inconsistently with Articles 3.1 and 3.5 of the Anti-Dumping
Agreement because "MOFCOM's reference to the market shares held by subject imports is not
sufficient to establish that subject imports, through price undercutting, had "a relatively big impact
on the price of the domestic like products", and therefore caused injury to the domestic industry
through their price effects".
27. The Panel reached this finding of violation on the basis of a combination of two elements.
First, the Panel finds that "MOFCOM failed to acco unt for the fact that the market share of subject
imports had actually dropped from around 90% in 2008 and 2009 to around 50% in 2010 and
H12011, and that domestic market shares increa sed correspondingly". China submits that this
completely disregards the section of MOFCOM's Final Determination dealing with causation and
distorts the findings reached by MOFCOM, contrary to the Panel's duty under Article 11 of the DSU.
Moreover, the Panel erred in its interpretation and application of Articles 3.1 and 3.5 of the
Anti-Dumping Agreement to the extent that it co ncluded that MOFCOM's overview of the evolution
of the market share and its conclusion that, despite ("although") the evolution of the (absolute and
relative) volume of imports, the share itself "remained high", was not sufficient to act as an
objective and impartial investigating authority.
28. Second, the Panel found that MOFCOM failed to provide an "examination or analysis" of
"how the 90% market shares of Grade B and C subject imports enabled those imports, through
price effects, to cause injury to the domestic industry as a whole, notwithstanding the fact that the
bulk of domestic production was of Grade A, the sales and market share of domestic Grade A
increased, the negligible market share of su bject imports of Grade A and the absence of
cross-grade price effects, and despite the decline in the absolute volume of those imports and the
declining market share of Grade C imports and the fluctuating market share of Grade B imports".
China understands that the Panel's consideration that MOFCOM's finding of price correlation was
not sufficient to demonstrate cross-grade price effects is the basis for the Panel's conclusion that
MOFCOM failed to provide the required examination or analysis.

4 Appellate Body Report, US – Gambling, para. 140. (emphasis original)
5 Appellate Body Report, US – Gambling, para. 140.
6 Appellate Body Report, EC – Hormones, para. 108.
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29. The Panel rejects China's reliance on MOFCOM's finding of price correlation for a combination
of four elements. However, the Panel erred in its interpretation and application of Articles 3.1 and
3.5 of the Anti-Dumping Agreement and violated Arti cle 11 of the DSU in relation to each of these
four elements that together led to its rejection of China's reliance on MOFCOM's finding of price
correlation.
30. To the extent that the Appellate Body may consider that the Panel also took issue with
elements other than MOFCOM's finding of price co rrelation (despite the absence of any discussion
by the Panel of such elements), China submits that the Panel erred in its interpretation and
application of Articles 3.1 and 3.5 of the Anti-D umping Agreement and acted contrary to Article 11
of the DSU by means of its implicit findings, if any, that MOFCOM did not or not sufficiently assess:
 that "the sales and market share of domestic Grade A increased"; and
 "the decline in the absolute volume of those imports and the declining market share of
Grade C imports and the fluctuating market share of Grade B imports".
31. The Panel's findings and conclusions concerning MOFCOM's non-attribution analysis under
Article 3.5 of the Anti-Dumping Agreement are entirely based on the Panel's findings and
conclusions concerning MOFCOM's reliance on the market share. Therefore, these have equally
been reached in error and should be reversed.
32. As regards the Panel's finding of violation of Article 6.5 of the Anti-Dumping Agreement,
China submits that the Panel erred in its interpretation and application of Article 6.5 of the
Anti-Dumping Agreement and acted contrary to Ar ticle 11 of the DSU and Article 17.6(i) of the
Anti-Dumping Agreement. First, the Panel erred in law when interpreting Article 6.5 as requiring
an investigating authority to explain its conclusions as regards it examination of the requests for
confidential treatment and/or why it considers such confidential treatment is warranted.
33. The Appellate Body found that an investigating authority "must objectively assess the "good
cause" alleged for confidential treatment, and scr utinize the party's showing in order to determine
whether the submitting party has sufficiently substantiated its request". 7 However, it never
endorsed the interpretation that the authority must explain its conclusions about the examination
of the requests for confidential treatment. In this respect, China considers that the panel's findings
in Mexico – Steel Pipes and Tubes provide correct guidance as to whether or not Article 6.5
requires an investigating authority to explain its conclusions. The panel in that dispute held that
there was no obligation requiring the investigating authority to provide any explanation regarding
its assessment and scrutiny of an alleged showing of "good cause", beyond the obligation to grant
confidential treatment if "good cause" is shown.
34. Second, the Panel wrongly applied the standard of review and failed to make an objective
assessment of the facts of the case, contrary to Article 11 of the DSU and Article 17.6(i) of the
Anti-Dumping Agreement. By limiting its review to the explanations provided by MOFCOM (possibly
even to the explanations on the published record) and not taking into account (and drawing
inferences from) the facts on the record, the Panel acted contrary to Article 11 of the DSU and
Article 17.6(i) of the Anti-Dumping Agreement. Al l facts on the record lead to the inevitable
conclusion that MOFCOM did objectively assess good cause and scrutinize the petitioners' showing.
35. China points out that the panel in Mexico – Steel Pipes and Tubes was presented with a
situation similar to that before the present Panel, but made a completely opposite finding. The
panel in Mexico – Steel Pipes and Tubes concluded that there was no violation of Article 6.5 of the
Anti-Dumping Agreement concerning the treatment of requests for confidentiality, notwithstanding
the fact that the record did not contain any explanation of the investigating authority's evaluation
in this regard.
8

7 Appellate Body Report, EC – Fasteners (China), para. 539.
8 Panel Report, Mexico – Steel Pipes and Tubes, paras. 7.395 and 7.399.
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36. Also, the Panel applied the wrong standard of review in coming to its position that, by
examining the Petitioners' requests in order to determine whether MOFCOM complied with the
obligations in Article 6.5 of the Anti-Dumping Agreement, this would amount to a de novo review.
This would not have amounted to a de novo review, but merely an assessment as to whether the
facts before MOFCOM could have reasonably supported its conclusion that "good cause" was shown
and that the granting of confidential treatment was, accordingly, warranted.
37. The Panel's internally inconsistent reasoning as regards the consistency of the measure at
issue with Article 6.5 and Article 6.5.1 "cannot be reconciled with the Panel's duty to make an
objective assessment of the facts under Article 11 of the DSU". 9 Moreover, the Panel disregarded
Paragraph 7 of the Joint Working Procedures.

9 Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 894.
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ANNEX B-3
EXECUTIVE SUMMARY OF CHINA'S OTHER APPELLANT'S SUBMISSION1
(DS454)
1. China appeals certain findings and conclusions contained in the report of the Panel in China
– Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel Seamless Tubes
("HP-SSST") from Japan (DS454). China takes issue with a numb er of errors of legal reasoning,
interpretation and application of the provisions of the Anti-Dumping Agreement and the DSU,
which led the Panel to erroneous findings and conclusions. For the reasons set out in China's
submissions during the Panel proceeding and for the reasons laid down in this submission to the
Appellate Body, China appeals, and requests the Appellate Body to reverse, the findings and
conclusions of the Panel with respect to the errors of law and legal interpretations contained in the
Panel Report.
2. In relation to the Panel's conclusion that China violated Articles 3.1 and 3.5 of the
Anti-Dumping Agreement because MOFCOM improper ly relied on the market share of subject
imports in determining a link between subject imports and material injury to the domestic
industry, China submits the following.
3. With respect to Articles 3.1 and 3.5, Japan claimed (in addition to its claims with respect to
the non-attribution analysis) that MOFCOM's causation determination lacked any foundation in
MOFCOM's analysis of the volume, price effects an d impact of subject imports. The price effects
analysis based claim and impact analysis based claim were purely consequential 2 claims based on
the alleged violations of Articles 3.2 and 3.4.
4. When addressing the independent Article 3.5 claim with respect to volume, the Panel
dismissed the claim as presented by Japan (that is, the alleged reliance on volume effects and/or
the alleged disregard of the absence of such volume effects in MOFCOM's causation analysis) in
unambiguous terms.
3 That should have been the end of the Panel's evaluation of MOFCOM's
reliance on the market share of subject imports.
5. The Panel, however, continued on its own motion by finding a violation of Article 3.5 in
relation to MOFCOM's findings concerning the impact of price effects on the domestic industry
(which MOFCOM qualified inter alia by reference to the volume of imports found to be made at
undercutting prices). However, as found by the Panel itself, the only claim raised by Japan in
relation to the price effects relied upon by MOFCOM in its causation determination is a claim that is
purely consequential to its claim under Article 3.2.

6. The fact that Japan's claim in relation to volume did not address in any way the violation
eventually found to exist by the Panel is evident fr om the fact that MOFCOM's finding in relation to
which the Panel found a violation (that is, that "the imports of the subject products had a relatively
big impact on the price of the domestic like products") was not even referenced by Japan when
setting out its claims and arguments.
7. China submits that the Panel made an error when ruling on this unarticulated claim, in
relation to which no arguments were presented by the complainants, and by finding a violation of
Articles 3.1 and 3.5 on this basis. First of all, this claim that was not within the Panel's terms of
reference since it was not addressed in Japan's request for the establishment of a panel as
required by Articles 6.2 and 7.1 of the DSU. Japan's panel request expressly limits its claims under
Article 3.5 (other than those relating to the non-attribution analysis) to three claims, which did not

1 In accordance with the Guidelines in respect of Executive Summaries of Written Submissions in
Appellate Proceedings, China hereby specifies the word count of the executive summary as well as of its
written submission. The total word count (including footnotes) of the executive summary amounts to 2,679.
The total word count (including footnotes) of the present Appellant Submission (excluding the executive
summary) amounts to 27,926.
2 Panel Report, para. 7.192.
3 Panel Report, para. 7.180.
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include the claim in relation to which the Panel found a violation. The limitations regarding the
scope of claims included in the narrative of a panel request will determine a panel's terms of
reference and, accordingly, this claim was not within the Panel's terms of reference.
8. Even if assuming that this claim was within the Panel's terms of reference, the Panel acted
inconsistently with the requirement of Article 11 of the DSU to make an objective assessment "of
the matter before it".
9. The Panel found that China violated Articles 3.1 and 3.5 of the AD Agreement by finding that
subject imports through price undercutting, taking into account the market share of the imports
made at undercutting prices, had a relatively big impact on the price of the domestic like products
and therefore caused injury to the domestic indu stry. The claim underlying the finding of violation
is different from the one put forward by Japan that the absence of volume effects (in the form of a
significant increase in dumped imports) and/or the presence of "positive" volume effects (in the
form of a drop in dumped imports) precluded MOFCOM from: (i) relying on volume effects in its
causation determination; and (ii) reaching an affirmative causation finding.
10. The violation found by the Panel did not even refer to the absence of such a significant
increase or, more generally, to the relevance of (the absence of) volume effects for the causation
analysis. Rather, it related to MOFCOM's finding concerning the impact of the price effects on the
domestic industry, in relation to which MOFCOM considered that the volume of imports made at
undercutting prices was a relevant consideration.
11. The Panel acted ultra petita in reaching its findings in paras. 7.181-7.188 of its Report and
ruled on a claim that was not articulated and in relation to which no arguments were submitted.
Consequently, the Panel failed to make an obje ctive assessment of "the matter before it" as
required by Article 11 of the DSU.
12. Moreover, China submits in the alternative that the Panel erred in law by making the case
for the complainant and ruling on a claim for which the complaining party has failed to make a
prima facie case, and that the Panel failed in its duty to respect due process under Article 11 of the
DSU. Even if it is found that Japan presented a claim that allowed the Panel to find the violation it
did, Japan failed to make a prima facie case and the Panel made the case on the complainant's
behalf by finding a violation. In doing so, the Panel reached its findings in a manner inconsistent
with the rules on burden of proof and in violation of Article 11 of the DSU. Equally, contrary to its
duty under Article 11, the Panel failed to ensure that the due process rights of China were
respected in the way in which it reached its findings.
13. The Appellate Body's findings in previous disputes make it clear that in order to present a
prima facie case, a complaining party must put forward sufficient arguments. Moreover, in the
words of the Appellate Body, "a prima facie case must be based on "evidence and legal argument"
put forward by the complaining party in relation to each of the elements of the claim".
4 In order to
do so, a complaining party has to, inter alia, relate facts to its legal arguments.5
14. Even assuming that the Panel correctly concluded that Japan "referred to the relevance of
market share data in the context of price effects" and that this reference would be sufficient to
present a claim and bring this claim within the matter before the Panel ( quod non), this reference
cannot be considered as providing any arguments, let alone as providing sufficient arguments to
make a prima facie case.
15. The alleged claim certainly lacks argumentation in relation to each of the elements of this
claim, inter alia because of the absence of any relating of the facts to the legal arguments under
Article 3.5. Japan does not even refer to the main finding of MOFCOM addressed by the Panel
when finding the violation of Articles 3.1 and 3. 5 of the Anti-Dumping Agreement, that is, that
taking into account the market share "the imports of the subject products had a relatively big
impact on the price of the domestic like products". As such, Japan certainly fails to relate this
finding to its (inexistent) legal arguments under Article 3.5 that could lead to the violation found
by the Panel.

4 Appellate Body Report, US – Gambling, para. 140. (emphasis original)
5 Appellate Body Report, US – Gambling, para. 140.
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16. By relieving the complainant from the necessity of establishing a prima facie case, the Panel
erred in law.6
17. Turning to the substance of the Panel's findings (even if assuming the Panel was in a
position to reach these findings, quod non), the Panel erred in its interpretation and application of
Articles 3.1 and 3.5 of the Anti-Dumping Agreement and violated Article 11 of the DSU by
concluding that China acted inconsistently with Articles 3.1 and 3.5 of the Anti-Dumping
Agreement because "MOFCOM's reference to the market shares held by subject imports is not
sufficient to establish that subject imports, through price undercutting, had "a relatively big impact
on the price of the domestic like products", and therefore caused injury to the domestic industry
through their price effects".
18. The Panel reached this finding of violation on the basis of a combination of two elements.
First, the Panel finds that "MOFCOM failed to acco unt for the fact that the market share of subject
imports had actually dropped from around 90% in 2008 and 2009 to around 50% in 2010 and
H12011, and that domestic market shares increa sed correspondingly". China submits that this
completely disregards the section of MOFCOM's Final Determination dealing with causation and
distorts the findings reached by MOFCOM, contrary to the Panel's duty under Article 11 of the DSU.
Moreover, the Panel erred in its interpretation and application of Articles 3.1 and 3.5 of the
Anti-Dumping Agreement to the extent that it co ncluded that MOFCOM's overview of the evolution
of the market share and its conclusion that, despite ("although") the evolution of the (absolute and
relative) volume of imports, the share itself "remained high", was not sufficient to act as an
objective and impartial investigating authority.
19. Second, the Panel found that MOFCOM failed to provide an "examination or analysis" of
"how the 90% market shares of Grade B and C subject imports enabled those imports, through
price effects, to cause injury to the domestic industry as a whole, notwithstanding the fact that the
bulk of domestic production was of Grade A, the sales and market share of domestic Grade A
increased, the negligible market share of su bject imports of Grade A and the absence of
cross-grade price effects, and despite the decline in the absolute volume of those imports and the
declining market share of Grade C imports and th e fluctuating market share of Grade B imports".
China understands that the Panel's consideration that MOFCOM's finding of price correlation was
not sufficient to demonstrate cross-grade price effects is the basis for the Panel's conclusion that
MOFCOM failed to provide the required examination or analysis.
20. The Panel rejects China's reliance on MOFCOM's finding of price correlation for a combination
of four elements. However, the Panel erred in its interpretation and application of Articles 3.1
and 3.5 of the Anti-Dumping Agreement and violated Article 11 of the DSU in relation to each of
these four elements that together led to its rejection of China's reliance on MOFCOM's finding of
price correlation.
21. To the extent that the Appellate Body may consider that the Panel also took issue with
elements other than MOFCOM's finding of price co rrelation (despite the absence of any discussion
by the Panel of such elements), China submits that the Panel erred in its interpretation and
application of Articles 3.1 and 3.5 of the Anti-D umping Agreement and acted contrary to Article 11
of the DSU by means of its implicit findings, if any, that MOFCOM did not or not sufficiently assess:
 that "the sales and market share of domestic Grade A increased"; and
 "the decline in the absolute volume of those imports and the declining market share of
Grade C imports and the fluctuating market share of Grade B imports".
22. The Panel's findings and conclusions concerning MOFCOM's non-attribution analysis under
Article 3.5 of the Anti-Dumping Agreement are entirely based on the Panel's findings and
conclusions concerning MOFCOM's reliance on the market share. Therefore, these have equally
been reached in error and should be reversed.

6 Appellate Body Report, EC – Hormones, para. 108.
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23. As regards the Panel's finding of violation of Article 6.5 of the Anti-Dumping Agreement,
China submits that the Panel erred in its interpretation and application of Article 6.5 of the
Anti-Dumping Agreement and acted contrary to Ar ticle 11 of the DSU and Article 17.6(i) of the
Anti-Dumping Agreement. First, the Panel erred in law when interpreting Article 6.5 as requiring
an investigating authority to explain its conclusions as regards it examination of the requests for
confidential treatment and/or why it considers such confidential treatment is warranted.
24. The Appellate Body found that an investigating authority "must objectively assess the "good
cause" alleged for confidential treatment, and scr utinize the party's showing in order to determine
whether the submitting party has sufficiently substantiated its request". 7 However, it never
endorsed the interpretation that the authority must explain its conclusions about the examination
of the requests for confidential treatment. In this respect, China considers that the panel's findings
in Mexico – Steel Pipes and Tubes provide correct guidance as to whether or not Article 6.5
requires an investigating authority to explain its conclusions. The panel in that dispute held that
there was no obligation requiring the investigating authority to provide any explanation regarding
its assessment and scrutiny of an alleged showing of "good cause", beyond the obligation to grant
confidential treatment if "good cause" is shown.
25. Second, the Panel wrongly applied the standard of review and failed to make an objective
assessment of the facts of the case, contrary to Article 11 of the DSU and Article 17.6(i) of the
Anti-Dumping Agreement. By limiting its review to the explanations provided by MOFCOM (possibly
even to the explanations on the published record) and not taking into account (and drawing
inferences from) the facts on the record, the Panel acted contrary to Article 11 of the DSU and
Article 17.6(i) of the Anti-Dumping Agreement. Al l facts on the record lead to the inevitable
conclusion that MOFCOM did objectively assess good cause and scrutinize the petitioners' showing.
26. China points out that the panel in Mexico – Steel Pipes and Tubes was presented with a
situation similar to that before the present Panel, but made a completely opposite finding. The
panel in Mexico – Steel Pipes and Tubes concluded that there was no violation of Article 6.5 of the
Anti-Dumping Agreement concerning the treatment of requests for confidentiality, notwithstanding
the fact that the record did not contain any explanation of the investigating authority's evaluation
in this regard.
8
27. Also, the Panel applied the wrong standard of review in coming to its position that, by
examining the Petitioners' requests in order to determine whether MOFCOM complied with the
obligations in Article 6.5 of the Anti-Dumping Agreement, this would amount to a de novo review.
This would not have amounted to a de novo review, but merely an assessment as to whether the
facts before MOFCOM could have reasonably supported its conclusion that "good cause" was shown
and that the granting of confidential treatment was, accordingly, warranted.
28. The Panel's internally inconsistent reasoning as regards the consistency of the measure at
issue with Article 6.5 and Article 6.5.1 "cannot be reconciled with the Panel's duty to make an
objective assessment of the facts under Article 11 of the DSU". 9 Moreover, the Panel disregarded
Paragraph 7 of the Joint Working Procedures.

7 Appellate Body Report, EC – Fasteners (China), para 539.
8 Panel Report, Mexico – Steel Pipes and Tubes, paras. 7.395 and 7.399.
9 Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 894.
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ANNEX B-4
EXECUTIVE SUMMARY OF THE EUROPEAN UNION'S OTHER APPELLANT'S SUBMISSION
(DS460)
I. BCI
A. Designation of BCI
1. The EU appeals the Panel's findings on the desi gnation of BCI. The question of designation
should be subject to objective criteria establishe d and applied by a WTO adjudicator. It cannot be
delegated to any other entity or person. Whilst a WTO adjudicator may give close attention to the
views of a Member, an investigating authority or a firm, and whilst what may have occurred during
the domestic proceedings might provide a reasonable starting point, it cannot form the basis for an
absolute rule. By providing otherwise in its BCI Procedures the Panel acted inconsistently with
Articles 18.2 and 13.1 DSU and Article 17.7 ADA.
B. Authorizing Letter
2. The EU appeals the Panel's findings concerning the authorizing letter. The additional
confidentiality obligation is triggered by a designation by the submitting Member. It is not
triggered by a designation by any other entity or by a firm. The BCI Procedures in this case
originally included a statement that a party must seek and provide evidence of prior written
authorisation from the entity that submitted su ch information in the anti-dumping proceedings.
The EU considers that such statements in BCI Procedures are WTO inconsistent. Although the
Panel partially addressed the concern raised by the EU, in doing so it built upon and re-affirmed
certain legally erroneous findings that it had already made regarding Articles 17.7 and 6.5 ADA.
II. ARTICLE 6.2 DSU
A. Article 2.2 ADA
3. The EU conditionally appeals the Panel's finding that, with respect to Article 2.2, the panel
request did not comply with Article 6.2 DSU. The Panel Report fails to take into account the
introductory language of Article 2.2.2, which establishes a clear link between Article 2.2 and
Article 2.2.2. It is clear from Article 2.2.2 that it concerns "the amounts for administrative, selling
and general costs and for profits". This refers directly back to the phrase in Article 2.2
"a reasonable amount for administrative, selling and general costs and for profits." It is therefore
clear that a measure at issue that would not comply with Article 2.2.2 would also not comply with
Article 2.2, insofar as it refers to "a reasonable amount for administrative, selling and general
costs and for profits." This is confirmed by the fina l sub-paragraph of Article 2.2.2. Evidently, "the
amounts for administrative, selling and general costs and for profits" determined for the purposes
of Article 2.2.2 must always be reasonable, as that term appears in both Article 2.2.2 and in
Article 2.2.
B. Article 2.2.1.1 ADA
4. The EU conditionally appeals the Panel's finding that, with respect to Article 2.2.1.1 (and the
language "reasonably reflect the costs associated with the production and sale of the product
under consideration"), the panel request did not co mply with Article 6.2 DSU. The Panel first finds
that Article 2.2.1.1 contains multiple obligations, and breaks that provision down into three
sentences. Noting the narrative in the panel requ est and China's acceptance, the Panel then finds
that, with respect to the following element of Article 2.2.1.1, the EU claim complied with Article 6.2
DSU and was within the Panel's terms of reference: "For the purpose of paragraph 2, costs shall
normally be calculated on the basis of reco rds kept by the exporter or producer under
investigation …". These findings have not been appealed. The error that the Panel makes is to
divide the relevant obligation in two, or to fail to take into account the clearly interlinked nature of
the two relevant parts of Article 2.2.1.1. It is evident from Article 2.2.1.1 that, insofar as is
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relevant for the purposes of the present discussion, there is a single obligation, namely: "For the
purpose of paragraph 2, costs shall normally be calculated on the basis of records kept by the
exporter or producer under investigation … provid ed that such records … reasonably reflect the
costs associated with the production and sale of the product under consideration."
III. DUMPING
A. Rejection of SMST's rectification request
5. If the Appellate Body reverses the Panel's finding to the effect that China acted
inconsistently with Article 6.7 and Annex I, pa ragraph 7 ADA, then the EU appeals the Panel's
findings with respect to Article 6.8 and Annex II, paragraphs 3 and 6. MOFCOM rejected certain
information presented by SMST at verification for the sole reason that it was presented at the
verification.
6. In this respect, the EU claimed that the measure at issue is inconsistent with Article 6.7 and
Annex I, paragraph 1. The EU further claimed that the measure at issue is inconsistent with
Article 6.8 and Annex II, paragraphs 3 and 6. In rejecting the EU claims under Article 6.8 and
Annex II, paragraphs 3 and 6, the Panel reasoned that MOFCOM did not rely on facts available.
However, whether or not a measure at issue involves a reliance on facts available is not
determined subjectively by reference to whether or not the measure at issue states that it does or
does not rely on facts available. Rather, this question is determined objectively. Objectively, as
soon as an investigating authority reasons that an interested party has refused access to or
otherwise not provided necessary information within a reasonable period or has significantly impeded
the investigation, then it is reasoning that the conditions provided for in Article 6.8 are present.
IV. INJURY
A. Articles 3.1 and 3.2 ADA: The effect of the price of the dumped imports on the price of
the domestic product
7. The EU appeals the Panel's findings concerning Articles 3.1 and 3.2 ADA with respect to the
obligation to consider the effect of the price of the dumped imports on the price of the domestic
product.
8. The Panel finds that the obligations at issue can be met, and were met in this case, " purely"
on the basis of the fact that, in 2010, the price of the dumped imports was below the price of the
domestic product. That is, in essence, no more than a "photograph" of the juxtaposition of the two
prices. This represents a legally erroneous interpretation and application of these obligations.
Given MOFCOM's decision to conduct a grade-by-grade analysis, the obligations require the
importing Member to "consider" more than the mere juxtaposition of the price of the dumped
imports and the price of the domestic product. The importing Member must consider whether such
juxtaposition, together with other relevant facts, such as specifically identified quantitative
differences, inverse price movements, a sudden and substantial increase in the domestic price, an
increase in the market share of domestic Grade C product and an absence of substitutability, have
explanatory force for the effect of the price of the dumped impo rts on the price of the domestic
products.
9. Several observations support that submission. First, the introductory language of the phrase
in Article 3.2 at issue. Second, the fact that the same phrase appears in Article 3.1(a) ADA. Third,
the term "price undercutting", which reinforces the language of the opening phrase. Fourth, we
disagree with the Panel's assumption that simp ly because a photograph of the juxtaposition
between the price of the imported product and the price of the domestic product reveals that the
first is less than the second, one can assume that the lower price is having an effect on the higher
price. Fifth, we find further support for our position in the first occurrence of the term "otherwise"
in the second sentence of Article 3.2. The presence of this term confirms that "price undercutting"
is not a necessary pre-condition for determining the existence of price depression or suppression.
Sixth, we find further support for our interpretation in the term "significant", in the sense of
explanatory force for the effect of the price of th e imported product on the price of the domestic
product. Seventh, we find further support for our interpretation in the opening phrase of
Article 3.5. Eighth, we find further support for our position in the Appellate Body Report in China –
WT/DS454/AB/R/Add.1 • WT/DS460/AB/R/Add.1

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GOES. Ninth, we disagree with the Panel's statement that the term "has been" supports its
conclusion.
B. Articles 3.1 and 3.2 ADA: MOFCOM's findings of price undercutting
10. The EU appeals the Panel's findings concerning Articles 3.1 and 3.2 ADA with respect to the
question of whether MOFCOM's findings of price undercutting in respect of Grades B and C were
sufficient to comply with MOFCOM's obligation to consider whether or not the price of the dumped
imports had a significant effect on the price of the domestic product.
11. The Panel's reasoning conflates and obscures two different things: the abstract definition of
the imported product (ABC or A, B and C separately) and the corresponding domestic like product;
and the actual distribution of the import and dome stic data within Grades A, B and C. There were
no relevant imports of Grade A. Most of the domestic sales were Grade A. Yet MOFCOM found that
price undercutting by imported Grades B and C had a significant effect on the domestic product,
without conducting any cross-grade analysis. The Panel accepts this conclusion only on the basis of
its erroneous finding that Articles 3.1 and 3.2 do not require any consideration of the effect of the
price of the dumped product on the price of the domestic product.
12. If an investigating authority sets out to address the ultimate question of whether or not the
price of the imported product (ABC) had a signific ant price undercutting effect on the domestic
product (ABC), it must adopt a consistent and coherent line of reasoning that starts with the
imported product (ABC) and ends with a determination that relates to the domestic product (ABC).
If, by way of intermediary step, an investigating authority decides to make a grade-by-grade
analysis, it must also proceed in a consistent and coherent manner. At this intermediary step, if
there is no price undercutting for Grade A, an investigating authority cannot just arbitrarily
discard, ignore or pass in silence over this intermediate result.
13. If an investigating authority, having found price undercutting for Grades B and C, wishes to
proceed to the final step in its overall analysis (ABC), by aggregating the results of the
intermediary steps, it must do so in a coherent and consistent manner, and having regard to the
obligation to consider the effect of the price of the dumped imports. This means that the
investigating authority must address the question of why, notwithstanding the absence of any
price undercutting for Grade A, there is a significant price undercutting effect for the domestic
product ABC. This means that the investigating authority must consider the competitive
relationship between A and BC.
C. Articles 3.1 and 3.4 ADA: The impact on the domestic industry
14. The EU appeals the Panel's findings concerning Articles 3.1 and 3.4 ADA with respect to the
assessment of the impact of the dumped imports on the domestic industry.
15. The Panel's approach to the question before it in this case was from the perspective of a
so-called bifurcated analysis. That is, a situation in which the analysis is divided into two steps. In
the first step the material injury is assessed pursuant to Article 3.4. In a second step, pursuant to
Article 3.5, the investigating authority considers whether the dumped imports caused the material
injury, separating, distinguishing and discounting the non-attribution factors. The difficulty with
the Panel's approach is that it does not take into consideration the concept of a so-called unitary
analysis. A unitary analysis recognises that it is highly problematic to distinguish between the
concept of injury and the concept of causation, precisely because only what is caused by the
dumped imports is correctly characterised as injury within the meaning of footnote 9 ADA.
16. What this implies is that, if, in the application of Article 3.5, an investigating authority
determines that a particular thing is a non-attribution factor, at the same time anything caused by
that non-attribution factor is not injury within the meaning of footnote 9 ADA . This necessarily
means that it is not part of the "impact of the dumped imports on the domestic industry" within
the meaning of Article 3.4. The Panel dealt with th is issue by reasoning that, with respect to this
matter, the complainants had made no independ ent claims under Article 3.5. However, both
Article 3.4 and Article 3.5 are pertinent to the issu e raised by the complainants, in the sense that
both contain obligations that must be complied with.
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D. Articles 3.1 and 3.5 ADA: Causation
17. The EU appeals – pursuant to Article 11 DSU – certain of the Panel's findings concerning
Articles 3.1 and Article 3.5 ADA with respect to the assessment of causation.
18. Among its claims under Articles 3.1 and 3.5 ADA, the EU claimed that MOFCOM's causation
determination did not involve an objective examination and was not based on positive evidence
because it was made in the absence of a significant increase in the volume of dumped imports,
and was based on MOFCOM's flawed price effects and impact analyses. In response to a question
from the Panel seeking clarification the EU made clear that its Article 3.5 claims were not merely
dependent on its Article 3.2 and 3.4 claims. We explained that while a violation of Article 3.2
and/or Article 3.4 would lead to a consequential vi olation of Article 3.5, the EU had made several
independent claims of violation under Articles 3.1 and 3.5.
19. The Panel found that MOFCOM's causation determination was inconsistent with Article 3.5
due to its improper reliance on the market share of subject imports, and it found a consequential
violation of Article 3.5 as a result of the inconsistencies it had found under Articles 3.2 and 3.4.
However, the Panel declined to evaluate whether independent violations of Articles 3.1 and 3.5
arose in those instances where it had rejected (or not evaluated) one of the EU claims under
Articles 3.1 and 3.2 or Articles 3.1 and 3.4. On this point, the Panel agreed that "many of the
issues raised by the complainants in the context of their Article 3.2 and 3.4 claims could, in our
view, form the basis for independent claims under Article 3.5". That said, and despite the
EU response to Panel Question 88, the Panel concluded that the EU had not advanced any
independent Article 3.5 claims concerning MOFCOM's price effects and impact analyses. In so
doing, the Panel failed to make an objective assessment of the matter before it as required by
Article 11 DSU.
V. PROCEDURAL ISSUES
A. Article 6.9 ADA: Essential facts
20. The EU appeals the Panel's findings concerning Article 6.9 ADA with respect to the obligation
to adequately disclose essential facts – particularly with respect to the data underlying MOFCOM's
determination of dumping with respect to SMST and Tubacex.
21. The essential facts supporting an anti-dumping margin determination include the data
underlying the margin calculations and adjustments to the data. These facts also include
information on the calculation methodology, the formulas used in calculations and the data applied
in those formulas. China's anti-dumping disclosures contain none of this information.
22. Specifically, we disagree with the Panel when it finds that Article 6.9 does not require the
disclosure of the "entirety" of the essential facts. There is no such qualification in Article 6.9.
Article 6.9 rather requires disclosure of all the essential facts under consideration which form the
basis for the decision whether to apply definitive measures. Furthermore, we disagree with the
Panel when it finds that an investigating authority is excused from disclosing the essential facts if
they are already in the possession of the interested party. There is no such qualification in
Article 6.9. When the investigating authority has selected from amongst the facts originally
provided by the interested party, the interested party has no way of knowing which facts have
been selected. Mere possession of the data set from which the facts have been selected is
insufficient for the interested party to defend its interests.
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ANNEX B-5
EXECUTIVE SUMMARY OF CHINA'S APPELLEE'S SUBMISSION1
(DS454, DS460)
1. At the outset, China emphasizes that consolidation of the appellate proceedings should
not lead to any consolidation of the complaints by Japan and the European Union in the
respective DS454 and DS460 disputes.
2. As regards the European Union's conditional appeal of the Panel's findings in DS460 that the
European Union's panel request did not comply with Article 6.2 of the DSU with respect to the
European Union's claims under Articles 2.2 and 2.2.1.1 of the Anti-Dumping Agreement, China
submits the following.
3. China is, even following the conclusion of the Panel proceedings, at a loss as to
understanding the exact elements of the claim(s) of the European Union, both in relation to
the SG&A determination in general and specifically with respect to Articles 2.2 and 2.2.1.1 of the
Anti-Dumping Agreement. The European Union's statements in its submissions before the Panel
call into question whether the European Union made any claims at all under these provisions, since
the European Union appears to rely on these provisions only as context. In any event, the contrast
between the lack of clarity and precision of th e European Union's submissions during the Panel
process and the clarity and precision of the European Union's panel request is striking.
4. In China's view, in order to verify whether a claim falls within the Panel's terms of reference,
a two-step approach should be followed. First, the claims included in the panel request should be
identified. In this respect, the European Union's request for the establishment of a panel expressly
limits its claims (under Articles 2.2, 2.2.1, 2.2.1.1 and 2.2.2 of the Anti-Dumping Agreement) to
the claims that the SG&A (and profit) amounts do not reflect the records and the actual data.
5. Second, it should be determined whether the claim(s) at stake are covered by the scope of
the description of the claims included in the panel request. This is not the case. Article 2.2 does
not relate to whether the SG&A or profit amount s are based on "actual data by the exporters or
producers under investigation" or on "the records […] of the exporter or producers under
investigation". There is also no brief summary of the legal basis of the complaint in relation to the
alleged obligation for the SG&A to "reasonably reflect the costs associated with the production
and sale".
6. Accordingly, the European Union's panel request fails to explain succinctly how or why the
measure at issue is considered by the European Union to be violating the WTO obligations in
question. As such, it is not even a matter of whether or not the brief summary suffices to present
the problem clearly. The brief summary is simply absent.
7. China also notes that the European Union's first written submission confirms the meaning of
the terms used in its panel request, as being distinct from its claims that the Panel found to be
outside its terms of reference. The Panel also correctly found that Article 2.2 contains multiple
obligations. Moreover, China has suffered a prejudice caused by the deficiencies in the
European Union's panel request, as well as by the European Union's deficient submissions. Finally,
the European Union fails to read its panel request as a whole. Rather, it seems to read the
reference in the narrative to "the amounts for administrative, selling and general costs and for
profits" in wilful isolation of the remaining part of the narrative ("on the basis of records and actual
data by the exporters or producers under investigation").

1 In accordance with the Guidelines in respect of Executive Summaries of Written Submissions in
Appellate Proceedings, China hereby specifies the word count of the executive summary as well as of its
written submission. The total word count (including footnotes) of the executive summary amounts to 4,085.
The total word count (including footnotes) of the present appellee submissions (excluding the executive
summary) amounts to 45,123.
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8. China disagrees with the European Union's allegations in its conditional appeal of the Panel's
findings regarding the European Union's claims under Article 6.8 and Paragraphs 3 and 6 of
Annex II of the Anti-Dumping Agreement. The Euro pean Union disagrees with the Panel's finding
that there was no factual basis for and no evidence on the Panel record in support of the
European Union's claim that MOFCOM relied on the allegedly erroneous and uncorrected data in
making its determination. Whether or not there was evidence on the Panel record that MOFCOM
relied on uncorrected and erroneous data when making its determination is a factual determination
by the Panel. The European Union failed in this respect to make a claim under Article 11 of the
DSU (in its notice of other appeal or in its other appellant's submission). Therefore, whether or not
the Panel made an objective assessment of the facts before it is not properly raised on appeal by
the European Union and, accordingly, falls outside the scope of appellate review.
9. The European Union does not explain how, why or where the Panel erred in its legal
interpretation of Article 6.8 and Paragraphs 3 an d 6 of Annex II of the Anti-Dumping Agreement,
nor does it indicate how, why or where the Panel misapplied such interpretation. China considers
that the European Union's failure to contest an issue of law covered in the Panel Report or a legal
interpretation developed by the Panel (taking into account the absence of a claim under Article 11
of the DSU) should suffice to reject the Europe an Union's appeal, in view of Article 17.6 of
the DSU.
10. In any event, the Panel's interpretation and application was correct. In order to trigger the
applicability of Article 6.8, "determinations", by definition, must be "made on the basis of the facts
available". The European Union seems to suggest that the Panel concluded that MOFCOM did not
rely on facts available because the measure at issue did not state that it relied on facts available.
Such suggestion is baseless. Indeed, paragraph 7. 102 of the Panel Report (or even more broadly
section 7.4.3.4 containing the entire "evaluation by the Panel" of the claim at stake as well as
another claim) does not contain a single reference to the Provisional Determination and/or the
Final Determination (that is, the measure at issue), let alone to the absence of any explicit reliance
on facts available in the measure at issue. The unc ontested facts and factual findings made by the
Panel show that MOFCOM undeniably made its determination on the basis of evidence contained in
the records that was submitted by SMST, rather than on the basis of the facts available.
11. As regards the Panels' rejection of the complainants' claim that MOFCOM acted
inconsistently with Articles 3.1 and 3.2 of the Anti-Dumping Agreement by failing to consider
whether Grade C subject imports sold at lower prices were placing downward pressure on domestic
prices of Grade C, China submits that these findings should be upheld.
12. At the outset, China considers that it is important to focus upon the subject matter of this
appeal. Japan and the European Union challenge the Panels' legal interpretation that, with respect
to price undercutting, an investigating authority will satisfy the relevant requirements by
considering whether subject imports sell at lower prices than comparable domestic prices. In order
to assess the correctness of the specific legal interpretation that is the subject matter of this
appeal and the application thereof, the comparabilit y of the import and domestic prices that have
been compared should thus be taken as accepted.
13. As regards the first inquiry under Article 3.2 (price undercutting), an investigating authority
is instructed to consider "whether there has be en a significant price undercutting by the dumped
imports as compared with the price of a like product". Accordingly, this inquiry thus consists of a
comparison of prices, which will reveal whether there "has been" a significant price undercutting.
Article 3.2 does not require any consideration of the cause of the price undercutting (for instance,
a decrease in the price of dumped imports and/or an increase in the domestic price), nor of the
consequences of such price undercutting (for instance, lost sales, price depression or price
suppression). The fact that no additional consideration is required in this respect is even clearer
when comparing the wording concerning the first kind of inquiry with the wording used for the
second kind of inquiry (price depression or suppre ssion). If the drafters had intended to require a
similar consideration for the first kind of inquiry, as required for the second kind of inquiry, they
would have used the same wording and the same syntax to describe both kinds of inquiries.
In China's view, the importance of the absence of the wording "whether the effect of" and the lack
of the syntactic relationship expressed by the terms "to depress prices and "[to] prevent price
increases" is confirmed by the Appellate Body's findings in China – GOES.
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14. A mathematical difference between comparable prices is the inquiry explicitly provided for in
view of assessing the "effect of the dumped imports on prices" referred to in Articles 3.1 and 3.2.
The use of the wording "effect of the dumped imports on prices" thus does not suggest the
presence of any other required consideration beyond the comparison between prices for price
undercutting. This is because the inquiry into the effect that links the subject imports with the
prices of the domestic like products consists precisely of such comparison.
15. Japan and the European Union consider that a situation in which the domestic price
increased can be better described as "price over cutting" or "overpricing by domestic products".
This is erroneous for several reasons, including the fact that if price A is higher than price B, this
necessarily means that price B is lower than price A. These are simply two sides of the same coin,
but still reveal the relationship between the two prices. It is exactly this relationship or link
between the import prices and the domestic pr ices that, according to the Appellate Body,
an investigating authority should inquiry into under Article 3.2.
16. Moreover, the interpretation proposed by Japan and the European Union thus renders
meaningless the wording "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" as well as the use
of the "otherwise". The interpretation no longer addresses two distinguishable situations but rather
addresses one specific situation (depression/suppression) that can be present in several
circumstances, without raising the need to list all of these circumstances.
17. Japan also contests the Panel's legal interpretation because it allegedly may be construed to
mean that it is sufficient under Articles 3.1 and 3.2 for an investigating authority to find
mathematically lower prices of subject imports at a single point in time during the POI. China fails
to find any such construction by the Panel in the paragraphs referred to by Japan. The Panel did
not make any findings about the length of the period during which price undercutting should be
found, as Japan never made a claim in this respect.
18. China submits that the European Union's appeal concerning the Panel's findings leading it to
conclude that MOFCOM did not act inconsistently with Articles 3.1 and 3.2 by allegedly having
improperly extended its finding of price undercutting in respect of Grades B and C to the domestic
like product as a whole should be rejected.
19. The European Union had argued before the Panel that MOFCOM improperly extended its
findings of price undercutting in respect of Grades B and C to the domestic like product as a whole
(ABC). The European Union's position before the Appellate Body is no longer that an investigating
authority is always required to reach an ultimate price undercutting determination that relates to
the domestic product (ABC). Rather, according to the European Union's latest views, an
investigating authority is required to reach an ultimate price undercutting determination that
relates to the domestic product ABC if the investigating authority sets out to address the ultimate
question of whether or not the price of the imported product (ABC) had a significant price
undercutting effect on the domestic product (ABC).
20. China has been unable to identify an interpretation of the Panel according to which an
investigating authority, acting in the way described by the European Union, would have acted
consistently with its obligations under Articles 3.1 and 3.2 of the Anti-Dumping Agreement.
The Panel reached no findings on this, simply because this was not an issue at stake before the
Panel. China recalls that Appellate Body proceedings are limited to issues of law covered in the
panel report and legal interpretations developed by the panel.
21. In any event, an investigating authority might first attempt to assess the presence of price
undercutting by dumped imports as a whole in respect of the domestic like product as a whole, but
then subsequently adopt a grade-by-grade method ology because the authority realizes that its
initial methodology would not result in a comparison of comparable prices. Such an approach
would not fail to be objective, nor lack a basis in positive evidence.
22. Moreover, even if assuming that such methodology would result in chunks of data or
questions remaining unconsidered, this does no t affect the evidentiary basis or objective
assessment if such data and questions do no t require an assessment under Article 3.2.
The European Union explicitly agrees that the relevant provisions permit an investigating authority
WT/DS454/AB/R/Add.1 • WT/DS460/AB/R/Add.1

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to consider price undercutting on the basis of Grades A, B and C separately. China fails to see why
this conclusion would be any different, simply because an investigating authority had first
attempted to consider price undercutting for the domestic like product as a whole. China also
recalls that the Panel's findings are clearly premised on the fact that the grade-by-grade
comparison was the appropriate methodology to ensure price comparability.
23. Finally, the Panel's factual findings confirm that, even if assuming the European Union's
interpretation would be upheld, there would be no violation by MOFCOM.
24. Japan incorrectly submits that the Panel erred in finding that its claim regarding the
explanatory force was outside its terms of reference. Japan acknowledges that this claim is
separate from the claim that MOFCOM's impact anal ysis was at odds with and did not follow from
its volume and price effects analyses. However, it simultaneously contends that the logical
connection with the results of its Article 3.2 volu me and price effects analyses and the explanatory
force are merely different expressions or explanat ions of the same concept. If the concepts are
identical, China fails to see why Japan felt compel led to fault the Panel for failing to address this
fourth independent claim.
25. Japan also appeals the Panel's findings under Articles 3.1 and 3.4 in relation to Japan's claim
that MOFCOM's impact analysis was at odds with and did not follow from its volume and price
effects analyses. Japan's appeal essentially consists of a reintroduction of its claim concerning the
absence of any explanatory force. Indeed, the rele vant part of Japan's other appellant submission
refers abundantly to the notion of explanatory force. China submits that for this reason, Japan's
appeal should fail.
26. In any event, the Panel's findings should be upheld. China considers that the obligation to
derive an understanding of the impact of the du mped imports on the domestic industry must be
distinguished from the obligation to determine that the dumped imports are causing injury.
Moreover, in order to reach an affirmative caus ation determination under Article 3.5, dumped
imports must not be found to be the only cause of injury, nor the predominant cause of injury.
Rather, an investigating authority can only find a causal link if it duly demonstrates that the
dumped imports are a cause of injury. Since the assessment under Article 3.4 will be used as a
basis for the causation determination under Article 3. 5, this necessarily implies that the Article 3.4
assessment must allow an investigating authority to derive an understanding about whether or not
the dumped imports could be a cause of injury.
27. Article 3.4 thus does not require an investigating authority to determine that the injury
found to exist under Article 3.4 is caused by the dumped imports, nor that such injury can be
attributed exclusively to the dumped imports. Ra ther, Article 3.4 requires an examination that
allows an investigating authority to find that there is injury and that dumped imports can be
c o n s i d e r e d t o h a v e " e x p l a n a t o r y f o r c e " f o r p a r t o f t h e i n j u r y f o u n d t o e x i s t . I t i s i m p o r t a n t t o
distinguish such "explanatory force" from a determination of causation. Indeed, the wording
"explanatory force" suggests that the dumped impo rts should be able to "serve, or intended to
serve, as an explanation". It does not imply that the dumped imports are determined to actually
explain the (or part of the) injury. The latter determination is to be reached in Article 3.5.
28. In view of the above, the Panel's interpretation is entirely consistent with the requirement to
engage in an assessment of the relationship between subject imports and the state of the
domestic industry or the explanatory force of subject imports for the state of the domestic
industry. There is no need for a premise that those grades/time periods for which no price effects
were found were not impacted by subject imports. Indeed, part of the injury found to exist for the
domestic industry as a whole under Article 3.4 may relate to other factors that affect the
performance of the domestic industry in respect of those like products for which no undercutting
was found. However, this does not detract from the explanatory force of the dumped imports for
part of the injury found to exist.
29. The European Union's appeal of the Panel's findings under Articles 3.1 and 3.4 is based on
the approach adopted by the Panel, which the Euro pean Union refers to as a bifurcated analysis.
According to the European Union, the Panel should have adopted a so-called unitary analysis.
However, the European Union fails to see that the Panel was required to carry out an analysis as to
the consistency of the measure at issue with Arti cle 3.4 of the Anti-Dumping Agreement, taking
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into account its standard of review under Ar ticle 17.6(i) of the Anti-Dumping Agreement.
By faulting the Panel for having adopted a two-step (or "bifurcated") approach, the
European Union is essentially faulting the Panel for not having carried out a de novo review.
The European Union further claims that only what is caused by the dumped imports is correctly
characterised as injury within the meaning of footnote 9 of the Anti-Dumping Agreement.
However, this disregards the wording of footnote 9 itself and ignores the reference to "injuries"
caused by "other factors" in Article 3.5.
30. Both Japan and the European Union allege that t h e P a n e l s f a i l e d t o m a k e a n o b j e c t i v e
assessment of the matter before it, as required by Article 11 of the DSU, in finding that the
complainants did not raise independent claims under article 3.5 (other than reliance on the market
share and non-attribution analysis). In this respect, China submits, first, that the requests for the
establishment of a panel do not contain any independent claims. Indeed, the wording "flawed"
presupposes a finding that the analysis is found to be violating Articles 3.2 and 3.4 of the
Anti-Dumping Agreement. Reading the panel reques ts as a whole, it is even clearer that the
alleged flawed price effects and impact analyses refer to the alleged violations of Articles 3.2
and 3.4. Consequently, if the Panels would have found that the complainants did make
independent claims, it should have found these to be outside its terms of reference.
31. Second, even if assuming that the panel requests would have contained independent claims,
such claims must be made explicitly in the submissions to a panel. Japan and the European Union,
however, failed to do so. Japan and the European Union's (other) appellant's submissions should
have at least identified relevant statements in their submissions to the Panels, in which they would
have clearly stated independent claims. Their failur e to do so should be sufficient to deny their
request to the reverse the Panels' findings.
32. There is nothing in Japan's or the European Union's (other) appeal to suggest that the
Panels' assessment was inaccurate, let alone not objective. The complainants erroneously consider
that Philippines – Distilled Spirits is instructive as regards the Panels' supposed failure to make an
objective assessment of the matter before it, as required by Article 11 of the DSU. In Philippines –
Distilled Spirits, there was no disagreement as to whether or not the claim was duly made before
the panel. Rather, the discussion concerned whether or not the complainant had requested that
the panel address its claim (which was duly made) (i) in any event, or (ii) only in the alternative.
Finally, even the application of th e approach of the Appellate Body in this dispute leads to the
conclusion that the Panels' assessment was consistent with Article 11 of the DSU.
33. The European Union further erroneously alleges that the Panel erred in its findings
concerning Article 6.9 of the Anti-Dumping Agreement as regards MOFCOM's disclosure of the data
underlying the dumping determination. The European Union fails to contest any issue of law
actually covered in the Panel Report or any legal interpretation actually developed by the Panel
(taking into account the absence of a claim under Article 11 of the DSU). In the few instances
where the European Union expresses a disagreement with what it considers to be a Panel finding,
it is in fact simply distorting the Panel's findings. Therefore, the European Union's appeal should be
rejected, in view of Articles 17.6 and 17.13 of the DSU.
34. In any event, the Panel's interpretation and application of Article 6.9 was correct. Article 6.9
does not specify in which manner (other than timely) the authorities shall "inform all interested
parties of the essential facts under consideration which form the basis for the decision whether to
apply definitive measures". In requiring that a narrative description not leave uncertainty as to the
essential facts under consideration, the Panel appropriately focused on the respondents' ability to
defend their interests.
35. China also finds support for the Panel's interpretation in the wording of Article 6.9, which
provides that the obligation is to " inform all interested parties of the essential facts". This is
different from the word "provide". Consequently, under Article 6.9, an investigating authority may
not necessarily be under an obligation to provide interested parties with certain actual data under
certain circumstances where these are already in their possession. However, the investigating
authority still remains under the obligation to inform such interested parties of the essential facts
under consideration.
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36. The European Union takes issue with the BCI Procedures and certain legal interpretations
and findings made by the Panel when examining the European Union's request that the Panels
amend two aspects of such BCI Procedures. During the Panel proceedings, this was essentially an
issue between the European Union and the Panel. This issue was, and still is, unrelated to the
dispute between the European Union and China.
37. China notes that, in respect of its appeal on th is issue, the European Union is not requesting
that the Appellate Body make findings that would result in DSB rulings and recommendations with
respect to China's anti-dumping measures imposed on imports of HP-SSST. Therefore, China
considers it unnecessary for the Appellate Body to examine this issue, as such examination would
not contribute to the prompt or satisfactory settlement of this matter or contribute to secure a
positive solution to this dispute. China further notes that the BCI Procedures exclusively governed
the Panels' proceedings, which have been concluded.
38. China considers that, pursuant to Article 1.2 an d Appendix 2 of the DSU, Article 17.7 of the
Anti-Dumping Agreement is the most relevant provision governing confidentiality in the context of
panel proceedings concerning disputes under the Anti-Dumping Agreement. China considers that
"confidential information" under Article 17.7 refers to information submitted as confidential
pursuant to Article 6.5 of the Anti-Dumping Agreement in the context of the underlying
anti-dumping proceedings. In China's view, as a matter of WTO law, regardless of whether or not
this is confirmed in a panel's BCI Procedures, information submitted as confidential to an
investigating authority should by definition be designated as confidential before a panel examining
the underlying anti-dumping proceedings. Such information should not be disclosed without
specific permission or formal authorization of the party having submitted it in the underlying
anti-dumping proceedings.
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ANNEX B-6
EXECUTIVE SUMMARY OF JAPAN'S APPELLEE'S SUBMISSION
(DS454)
I. INTRODUCTION
1. China claims that the Panel erred under th e Anti-Dumping Agreement, DSU, and Joint
Working Procedures by concluding that the Ministry of Commerce of the People's Republic of China
("MOFCOM") violated Articles 3.1 and 3.5 and Article 6.5 of the Anti-Dumping Agreement in
imposing anti-dumping duties on imports of high-performance stainless steel seamless tubes
("HP-SSST") from Japan. For the reasons stated below, the Appellate Body should reject
China's claims of error in their entirety.
II. THE PANEL DID NOT ERR WHEN FINDING THAT MOFCOM ACTED INCONSISTENTLY
WITH ARTICLES 3.1 AND 3.5 OF THE ANTI -DUMPING AGREEMENT IN ITS CAUSATION
AND NON-ATTRIBUTION ANALYSES
2. First, China's arguments that Japan never raised, articulated, or made a prima facie case
regarding the claim that MOFCOM's reliance on the market share of subject imports was
insufficient in the context of its price effects findings to establish a causal link 1 are entirely without
merit. To the contrary, Japan properly raised this claim in its Panel Request, particularly when
Japan's Panel Request is considered " as a whole " and " in the light of attendant circumstances ".2
Specifically, Japan addressed the fundamental problem with MOFCOM's causation analysis that it
assessed none of the "effects of dumping, as set forth in paragraph[] 2" as required under
Article 3.5, i.e., the dynamic trends in the volume of subject imports and the prices of the
domestic like products. Further, Japan properly articulated this claim and made a prima facie case
regarding this claim throughout its submissions to the Panel, beginning with its first written
submission.
3 China appears to improperly divide Japan's claim and arguments into pieces, isolating
the "market share based causation claim" in the cont ext of the price effects analysis from the rest
of Japan's claim. Such an argument is rooted in China's own faulty understanding that this issue
must be treated in total isolation from other issues arising under Article 3.5, and thus without
merit. The Panel therefore acted appropriately in its analysis and conclusions at
paragraphs 7.181-7.188 of the Panel Report, and did not violate Articles 6.2, 7.1, and 11 of
the DSU and Paragraph 7 of the Joint Working Procedures.
3. Second, China takes issue with the substance of the Panel's findings at
paragraphs 7.181-7.188 of the Panel Report, arguing that the Panel erred in its interpretation and
application of Articles 3.1 and 3.5 of the Anti-D umping Agreement and acted contrary to Article 11
of the DSU.4 China's arguments, however, have no merit.
4. Importantly, most, if not all, of China's arguments in Section 2.2 of its other appellant
submission implicate the "panel's appreciation of facts and evidence", which the Appellate Body
has explained are arguments that fall under Article 11 of the DSU. 5 H o w e v e r , C h i n a d o e s n o t
establish that any of the Panel's analysis at pa ragraphs 7.181-7.188 of the Panel Report rises to
the level of "deliberate disregard" or "willful distortion" of the evidence required for the
Appellate Body to find that the Panel failed to make an objective assessment under Article 11 of
the DSU.6

1 China’s other appellant submission, paras. 49-102.
2 Appellate Body Report, US – Carbon Steel, para. 127 (emphases added).
3 See Japan’s comments on China’s interim comments, para. 9.
4 China’s other appellant submission, paras. 114-171.
5 Appellate Body Report, China – GOES, para. 183.
6 Appellate Body Report, EC – Hormones, para. 133.
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5. Turning to China's particular arguments, regarding the Panel's finding that MOFCOM failed to
account for the fact that the market share of subject imports had dropped in its causation
analysis7, the mere recitation of facts in MOFCOM's final determination does not constitute the
"reasoned and adequate" and "unbiased and objective" analysis that an investigating authority is
obligated to conduct. 8 Further, regarding the Panel's dismissal of MOFCOM's finding of price
correlation as a sufficient basis for demonstrating cross-grade price effects9, the mere recitation by
MOFCOM in its discussion pertaining to the product under consideration of petitioners' argument
that "the price changes of the three [grades] are to a certain extent correlated with one another"10
does not as a matter of inference, logic, and ob viousness lead to the conclusion that MOFCOM
sufficiently found cross-grade price effects to justify its causation determination. China's argument
is also faulty as it conflates theoretical physical substitutability with the actual substitutability
relevant for a price effects analysis.
6. Third, China makes a purely consequential argument regarding the Panel's non-attribution
findings11, which should fail because Japan has demonstrated that the Panel's causation findings
should not be reversed. That said, the Panel's observations at paragraphs 7.202-7.203 of the
Panel Report in addition to the fundamental flaw in MOFCOM's causation determination support the
Panel's non-attribution findings. Therefore, even if the Appellate Body reverses the Panel's
causation findings based on China's arguments in this appeal, the Appellate Body has no basis to
reverse the Panel's non-attribution findings.
III. THE PANEL DID NOT ERR WHEN FINDING THAT MOFCOM ACTED INCONSISTENTLY
WITH ARTICLE 6.5 OF THE ANTI-DUMPING AGREEMENT BY FAILING TO OBJECTIVELY
ASSESS "GOOD CAUSE" OR SCRUTINIZE PETITIONERS' SHOWING OF "GOOD CAUSE"
FOR CONFIDENTIAL TREATMENT OF INFORMATION
7. First, China claims that the Panel interpreted Article 6.5 so as to obligate an investigating
authority to explain its reasons for the grant of confidential treatment. 12 However, the Panel did
not find an affirmative obligation on MOFCOM to provide an explanation; rather, from the evidence
before it, the Panel found that China had not discharged its burden to establish that MOFCOM
undertook an objective assessment of good cause for confidential treatment.
8. Second, China alleges that the Panel employed an erroneous standard of review by limiting
its review to the explanations provided by MOFC OM and by not drawing inferences in favor of
China from certain other facts identified by China. 13 As an initial matter, the Panel assessed not
only MOFCOM's explanation, but also other facts and evidence before it. Further, the question
before the Panel was whether MOFCOM undertook an objective assessment, not whether the Panel
itself could reach the conclusion that "good cause" existed for confidential treatment. Here, none
of the facts referenced by China points to any assessment by MOFCOM, let alone an objective one.
9. Third, China alleges that the Panel Report is internally inconsistent, on account of the Panel
not taking issue with the absence of any explanation by MOFCOM while making findings on the
claim under Article 6.5.1.14 However, in its Article 6.5.1 analysis, the Panel found a lack of material
on the record that MOFCOM could have scrutinized, and consequently, a violation of Article 6.5.1.
By contrast, under Article 6.5, petitioners had made statements that alleged good cause for
confidential treatment, so the Panel proceeded to examine whether MOFCOM in fact objectively
assessed that material.

7 China’s other appellant submission, paras. 116-124.
8 See Panel Report, China – Autos (US), para. 7.4 (citing Appellate Body Report, US – Countervailing
Duty Investigation on DRAMs, para. 186; Appellate Body Report, US – Lamb, para. 103).
9 China’s other appellant submission, paras. 125-170.
10 China’s other appellant submission, para. 135 (citing Final Determination, Exhibit JPN-2, p. 48).
11 China’s other appellant submission, paras. 173-176.
12 China’s other appellant submission, paras. 191-197.
13 China’s other appellant submission, paras. 201-206.
14 China’s other appellant submission, paras. 208-210.
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10. Finally, China alleges that it was in response to the Panel's Question 67 that Japan first
argued that MOFCOM had not "objectively assesse d and determined the showing of good cause by
the petitioners"15, and therefore the Panel improperly set out the case and arguments for Japan on
this issue. However, an allegation that confid ential treatment was extended without "good cause
being shown" is merely another manner of expressing that the investigating authority failed to
undertake an objective assessment as to whether good cause had been shown.
IV. CONCLUSION
11. For the foregoing reasons, Japan respectfully requests that the Appellate Body reject China's
claims of error in their entirety.

15 China’s other appellant submission, note 210.
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ANNEX B-7
EXECUTIVE SUMMARY OF THE EUROPEAN UNION'S APPELLEE'S SUBMISSION
(DS460)
I. EU THIRD PARTICIPANT SUBMISSION IN DS454
1. This submission is also the second part of the EU's Third Participant Written Submission in
the appeal proceedings in DS454.
II. REQUEST CONCERNING CONFIDENTIAL TREATMENT OF CERTAIN INFORMATION
2. The EU respectfully requests the Appellate Body to draft the Appellate Body Report so as to
avoid express reference to information designated as confidential in the EU Appellee Submission.
III. ARTICLE 6.2 OF THE DSU
3. With respect to Article 2.2.2, the statement in the panel request is consistent with the
requirement in Article 6.2 of the DSU to "provide a brief summary of the legal basis of the
complaint sufficient to present the problem clearly."
4. First, the specific "legal basis" is clearly stated. Second, what is provided in the narrative is a
summary of the legal basis of the complaint, which is shorter than the provision itself. The
summary included both the opening and closing phrases, which was a reasonable way capturing
the interlinked language sandwiched between them. Third, Article 6.2 of the DSU permits a brief
summary. The EU complied with this requirement. Fourth, Article 6.2 of the DSU merely requires
that the summary of the legal basis of the complaint be sufficient, which, in all the circumstances,
was the case. Fifth, in this respect, the panel re quest contained a brief summary of the legal basis
of the complaint sufficient to present the problem clearly. The problem was that MOFCOM could
not have determined the amounts for SG&A based on actual data pertaining to production and
sales in the ordinary course of trade by SMST . Finally, the panel request was completed by
references to Articles 2.2, 2.2.1 and 2.2.1.1. In short, China, having no defence on the substance,
makes a simple matter appear far more complex than it actually is. On the substance, China does
not contest that planned coefficients were applied to the COP of the free samples, doubling the
SG&A for Grade B. Instead, in the Panel proceedings, China made a series of unreasonable and
untenable allegations about the procedural conduc t of the municipal anti-dumping proceedings in
an attempt to blame SMST and excuse MOFCOM. And it persists in attempting to artificially divide
up the obviously interlinked terms of Article 2.2.2; and de-contextualise the obviously interlinked
provisions cited in the panel request.
5. There is only one obligation in Article 2.2.2, not four, as China would have it, or forty-eight,
which is what China's arguments imply. Article 2.2.2 is the preferred option for calculating SG&A,
the others being set out in Articles 2.2.2(i), 2.2. 2(ii) and 2.2.2(iii), each providing a single basis
for calculation or complaint. The term "actual data" is unique to Article 2.2.2 and directed China to
that provision. In any event, the relevant terms in Article 2.2.2 are interlinked, this being the only
meaningful interpretation available. The EU did not expressly limit its panel request, through the
use of the terms "because" or "in particular", it merely provided a brief summary of the legal basis
of the complaint. The references to Article 2.2.1 (with its single obligation regarding the ordinary
course of trade); Article 2.2 (with its single reference to SG&A amounts being reasonable); and
Article 2.2.1.1 (with its reference to reasonable costs) – all support the EU position. The case law
also supports the EU position.
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IV. DUMPING
A. MOFCOM'S failure to take into account certain information provided during the
verification
6. The EU is not aware of any investigating authority in any jurisdiction that operates a general
and absolute rule according to which no rectification or clarification can ever be provided at
verification. Any such rule would have to operate even-handedly for all interested parties,
including the domestic industry. It would also surely be inconsistent with the ADA, which sets out
in Article 6.7 and Paragraph 7 of Annex I the pr ocedures that shall apply, which envisage the
receipt of such information. In any event, absent such a general rule in municipal law, it is evident
that an investigating authority cannot simply cherry-pick the occasions on which, from time-to-
time, it invokes and applies such an absolute rule, subsequent to the verification, without offering
any assessment of the objective criteria and circumstances that might or might not justify such
refusal. This conclusion is all the more compelling in this case, given the Panel's findings, not
appealed by China, that MOFCOM expressly and specifically requested SMST to prepare documents
relating inter alia to Table 6-5, but later rejected them without any additional explanation. And the
Panel's further findings, also not appealed by Ch ina, that, as a matter of fact, MOFCOM actually
received and verified the information during the verification, leaving one completely at a loss to
understand how this issue might conceivably ha ve impeded or delayed the conduct of the
municipal anti-dumping proceedings in any way. Most of China's appeal is built around
misstatements of what the Panel actually found.
B. Article 2.2.2 of the ADA
7. The position is far less complicated than China suggests. All China needs to do in the
compliance review is to use the actual data pertaining to production and sales in the ordinary
course of trade by SMST, contained in Tables 6-5 to 6-8, which is the only thing that was verified.
In this way China can ensure that the measure taken to comply complies with Article 2.2.2.
China's remaining arguments are largely a re-iteration of its arguments concerning the scope of
the panel request, and should be similarly dismissed. China has not been treated in a manner that
does not comport with "the principles of fundam ental fairness". There has been no breach of due
process or lack of disclosure by the Panel. There is no breach of Article 11 of the DSU.
8. The origin of what occurred was the express request by SMST, which MOFCOM accepted, not
to use in the constructed normal value calculations the COP in Table 6-3 for Grade B sales in the
EU, because such COP was abnormally high due to the inclusion of the two free samples. The only
pertinent particularity of the transactions that is recorded on the Panel record is the fact that the
COP was abnormally high due to the two free samples. The Panel was therefore correct to state
that this point was undisputed. The Panel engaged in a reasonable and legally correct
interpretation and application of Article 2.2.2 to the specific facts of this case. There is clearly a
"logical connection" between the unreliability of the COP of the samples for the purposes of
determining COP and SG&A. The Panel did not err in reasoning that an unbiased and objective
investigating authority could not have assumed the corrective potential of the relevant coefficients
without any supporting analysis or evidence.
V. INJURY – ARTICLES 3.1 AND 3.5 OF THE ADA
9. The EU made a prima facie case. China did not bring a claim under Articles 6.2 and 7.1 of
the DSU. Further, the EU properly articulated this claim and made a prima facie case regarding
this claim throughout its submissions to the Panel, beginning with its First Written Submission. The
Panel therefore acted appropriately in its analysis and conclusions. It is uncontested that the EU
properly raised this claim in its panel request. Nothing in the EU's panel request limits the claim
raised by the EU under Articles 3.1 and 3.5 of the ADA to a "volume analysis based claim" that
only takes issue with an affirmative finding of causation despite the absence of volume effects and
given the presence of "positive" volume effects, and a "price effects analysis based claim and
impact analysis based claim" that is "purely consequential" to the alleged violations of Articles 3.2
and 3.4.
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10. Moreover, the brief summary in the EU's panel request clearly indicates that the EU did raise
the causation claim regarding MOFCOM's reliance on the market share of subject imports in the
context of its price effects analysis. The brief su mmary in the panel request clearly addresses the
problem. As such, based on MOFCOM's Final Determination as written, even if MOFCOM relied on
the market share of subject imports only in the context of its price effects analysis, the
assessment of the market share retained by subject imports at the end of the POI is not by itself
sufficient to support or justify a finding of causation.
11. The EU did argue that it is erroneous for an investigating authority to take the market share
retained by subject imports into consideration in its Article 3.5 causation analysis, which the Panel
rejected at paragraph 7.180 of the Panel Report. However, as the Panel then correctly recognized
at paragraphs 7.181-7.188 of the Panel Report, th is was not the only argument the EU made in
respect of the relevance of the market share retained by subject imports for the causation
analysis. Rather, in its First Written Submission, the EU argued that MOFCOM should have
considered the absence of a significant increase in subject imports in respect of its assessment of
the price effects in its causation analysis under Articles 3.1 and 3.5.
12. The EU, in its First Written Submission, specifically cited MOFCOM's explanation, and then
argued that MOFCOM's analysis is flawed because "while agreeing that the absence of a significant
increase in imported products under investigation is not, in and of itself, sufficient to prevent a
conclusion that the domestic industry is being injured, the EU submits that this factor cannot be
stripped of all significance ", and, as the EU asserted in its oral statement at the first substantive
meeting, causation must relate to the specific effects of dumping that were the subject of the
analysis under Articles 3.2 and 3.4, a context in which the EU referred expressly to MOFCOM's
failure to find cross-grade price effects. In short, (i) in its Final Determination, MOFCOM relied on
the market share retained by subject imports in reaching its conclusion that "the imports of the
subject products had a relatively noticeable impact on the price of domestic like products"; and (ii)
the EU, in response, argued that this specific part of MOFCOM's causation analysis is flawed
because MOFCOM did not properly consider the absence of a significant increase in imported
products as a factor which is at odds with and attenuating the alleged "impact on the price of
domestic like products".
13. Most, if not all, of China's arguments in Section 4.2 of its Appellant Submission implicate the
"panel's appreciation of facts and evidence". The Appellate Body has explained that such
arguments fall under Article 11 of the DSU. China does not establish that any of the Panel's
analysis at paragraphs 7.181-7.188 of the Panel Report rises to the level of "deliberate disregard"
or "wilful distortion" of the evidence required for th e Appellate Body to find that the Panel failed to
make an objective assessment under Article 11 of the DSU. The Appellate Body should therefore
reject China's arguments. The EU submits that the Panel's analysis at paragraphs 7.181-7.188 was
sound and fully consistent with the factual record at hand.
14. In addition, the EU disagrees with China that the Panel's non-attribution findings at
paragraphs 7.200-7.204 of the Panel Report "are en tirely based on the findings in relation to
MOFCOM's determination of a causal link". China appears to claim that the Panel's non-attribution
findings are consequential based on the fact that the Panel referenced certain "circumstances"
relating to MOFCOM's causation analysis. However, China's claim is not correct. The Panel did find
that a flawed causation analysis results in a flawed non-attribution analysis at paragraph 7.201 of
the Panel Report, but the Panel did not end its analysis there. "In light of the fundamental flaw in
MOFCOM's causation determination" the Panel considered it "not necessary […] to address every
aspect of the parties' non-attribution arguments in detail". However, at paragraphs 7.202-7.203
the Panel did address certain additional aspects of the EU's non-attribution arguments. The Panel's
observations at paragraphs 7.202-7.203 in addi tion to the fundamental flaw in MOFCOM's
causation determination are among the "above reasons" referenced by the Panel at
paragraph 7.204 that constitute the basis for the Panel's ultimate finding.
15. The Panel's observations at paragraphs 7.202-7.203 are clearly independent from the
Panel's causation analysis. These observations confirm that China's argument that the Panel's non-
attribution findings are "entirely based on the findings in relation to MOFCOM's determination of a
causal link" must be rejected. Further, China has presented no argument that the additional
reasons described at paragraphs 7.202-7.203 of the Panel Report do not support the Panel's
conclusion that MOFCOM's non-attribution analysis was inconsistent with Articles 3.1 and 3.5 of
the ADA. Consequently, even if the Appellate Body reversed the Panel's causation findings based
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on China's arguments in this appeal, the Appellate Body would have no basis to reverse the Panel's
finding that MOFCOM's non-attribution analysis was inconsistent with Articles 3.1 and 3.5 of the
ADA due to the reasons described at paragraphs 7.202-7.203 of the Panel Report.
VI. PROCEDURAL ISSUES: ARTICLE 6.5 OF THE ADA
The Panel did not find that Article 6.5 of the ADA obliges an investigating authority to explain its
decision to grant confidential treatment. In fact, the Panel's finding was that, in the absence of any
explanation by MOFCOM, the Panel had no basis to conclude that MOFCOM properly determined
that the petitioners had shown good cause for their requests for confidential treatment. This is not
a finding that Article 6.5 contains an obligation to provide an explanation, but a finding that China
had not provided any evidence to support its assertion that MOFCOM undertook an objective
assessment of good cause for confidential treatm ent, an obligation that China acknowledges is
contained in Article 6.5.
16. In the present case, the question before the Panel was whether MOFCOM undertook an
objective assessment of the alleged good cause offered by petitioners for confidential treatment. It
would have been unreasonable to expect the EU to prove the negative, or to prove that "an
unbiased and objective investigating authority could not have reached the particular conclusion".
The EU did not have access to any information or evidence relating to the decision making of
MOFCOM, which, owing to their designation as confidential, were in the exclusive possession of
China.
17. In this context, the Panel considered the evidence before it. Since the statement by
MOFCOM merely summarized the arguments of petitioners, without evidencing any assessment by
MOFCOM, let alone an objective one, the Panel rule d that there was no evidence of an objective
assessment by MOFCOM. This is evident, for example, from the Panel's explanation that "there is
no evidence, and China has not demonstrated otherwise , that MOFCOM objectively assessed the
'good cause' alleged for confidential treatment, an d scrutinized the petitioners' requests". The EU
submits that the Panel was correct in reaching this conclusion.
18. The Panel did not employ an erroneous standard of review and could not infer that MOFCOM
objectively assessed the alleged good cause. China's argument is based on a false premise,
because the Panel assessed not only MOFCOM's explanation, but also other facts and evidence
before it. Further, as noted by the Appellate Body in EC – Fasteners (China), under Article 6.5,
"'[g]ood cause' must be assessed and determined objectively by the investigating authority, and
cannot be determined merely based on the subj ective concerns of the submitting party".
Therefore, the question before the Panel was whether MOFCOM undertook an objective
assessment, as required by Article 6.5, not whether the Panel itself could reach the conclusion that
"good cause" existed for confidential treatment. To answer this question, the Panel had to review
how MOFCOM dealt with the request, a matter it needed to determine from the investigation
record. It would have been inappropriate for the Panel to undertake a de novo assessment and
determine for itself whether good cause existed.
19. In any case, as the Panel correctly concluded, there were no facts on the record that would
warrant an inference that MOFCOM undertook an objective assessment. The three facts that China
points to are: (i) the existence of a request for co nfidentiality; (ii) the grant of the request; and
(iii) the mention of the request and the reasons advanced by petitioners in the investigation
record. None of these facts points to any assessment by MOFCOM, let alone an objective one. The
obligation under Article 6.5 to engage in an objective assessment would be meaningless if the
mere facts that a request was made, was noticed by the investigating authority, and was granted,
would sustain an inference of objective assessment. In fact, objective assessment is the
intervening stage between an investigating authorit y taking notice of a request and granting it.
The mere granting of the request cannot serve as evidence that the investigating authority
undertook an objective assessment of the existenc e of good cause for confidential treatment,
because that precludes the possibility that the investigating authority improperly granted the
request in the absence of such an objective assessment.
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There is no internal inconsistency in the Panel's treatment of claims under Articles 6.5 and 6.5.1.
The EU notes the ruling of the Appellate Body in EC – Fasteners (China) that an investigating
authority is obliged to scrutinize the reasons advanced by a party for not supplying non-
confidential summaries. The EU further notes that, in this regard, there may be similarities
between the obligations of an investigating authority under Articles 6.5 and 6.5.1. However, a
precondition for triggering the obligation of the authority to scrutinize the reasons advanced for
not supplying non-confidential summaries is the existence of a statement by the relevant party
pertaining to such reasons. In other words, wh ere the party concerned has not placed on record
any reason for not supplying non-confidential summaries, it would be impossible for an
investigating authority to scrutinize such reasons, and it would be futile for a panel addressing a
claim under Article 6.5.1 to examine whether the authority undertook such scrutiny. Therefore,
where a panel finds that the concerned party did not advance any reasons for not supplying non-
confidential summaries, the panel would make a finding of violation of Article 6.5.1, without
undertaking the impossible task of examining whet her the authority scrutinized such non-existent
reasons. This is not a de novo scrutiny by the Panel of the reasons stated by the concerned party
for their adequacy, but a factual examination of whether there was any material that the
investigating authority could scrutinize.
20. This was the scenario before the Appellate Body in EC – Fasteners (China), which China cites
in support of its proposition. China claims that the Appellate Body in that case examined
statements provided by certain parties who claimed that they could not provide a non-confidential
summary, and did not require an analysis by the investigating authority. The paragraph that China
cites states: " Neither o f t h e s t a t e m e n t s p r o v i d e d b y A g r a t i o r F o n t a n a L u i g i indicated why the
information for which no non-confidential summary was provided presented an 'exceptional
circumstance' to justify the lack of a summary, nor did either statement provide reasons explaining
why summarization of a particular category of information was not possible." This was an instance
where the Appellate Body found that there was no material before the investigating authority to
scrutinize; a further examination as to whether the investigating authority undertook a scrutiny of
non-existent information would have been pointless.
21. The Panel did not set out the case and arguments for the EU. China's arguments in this
respect are based on its erroneous understanding of the nature of the analysis under Article 6.5.
The grant of confidential treatment under Article 6.5 is contingent on good cause being shown by
the applicant. Whether good cause has been shown is a matter to be objectively assessed by the
investigating authority. As explained above, it would be improper for a panel to undertake a de
novo analysis on this matter. Therefore, an allega tion that confidential treatment was extended
without good cause being shown is merely another manner of expressing that the investigating
authority failed to undertake an objective assessment as to whether good cause had been shown
by the applicant. China's attempt to draw a distinction between the two issues rests on China's
erroneous interpretation of Article 6.5, which would allow a panel to undertake a de novo
assessment of good cause. The EU has already explained why that interpretation is incorrect.

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ANNEX C
ARGUMENTS OF THE THIRD PARTICIPANTS
Contents Page
Annex C-1 Executive summary of the United States' third participant's submission
(DS454, DS460)
C-2
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ANNEX C-1
EXECUTIVE SUMMARY OF THE UNITED STATES' THIRD PARTICIPANT'S SUBMISSION
(DS454, DS460)
I. ARTICLES 6 AND 17 OF THE ANTI-DUMPING AGREEMENT
1. A basic tenet of the AD Agreement, as reflecte d in various Article 6 provisions, is that the
parties to an investigation must be given a full and fair opportunity to see relevant information and
to defend their interests. At the same time, the protection of confidential information is essential
to the appropriate functioning of an antidump ing proceeding. Here, various aspects of those
transparency and confidentiality requirements are being challenged before the Appellate Body.
2. Citing Article 6.5 and 17.7 of the AD Agreemen t, the Panel amended the BCI Procedures to
clarify that BCI "shall include information that was previously submitted to MOFCOM as BCI in the
anti-dumping investigation at issue in these disputes." The Panel's amendment with respect to BCI
information was consistent with Articles 6.5 and 17.7. The United States, however, does not agree
with the EU's proposed interpretation of Articles 6.5 and 17.7.
3. The Panel also reached a conclusion as to Article 6.5.1, which requires that an investigating
authority must provide or otherwise assure that accepted confidential information is summarized in
sufficient detail to permit a reasonable understan ding of the substance of the information. The
Panel erred in its interpretation of 6.5.1 because the article does not provide that the investigating
authority must explain why good cause has been demonstrated for an objective assessment of
confidentiality to have occurred.
4. The Panel's interpretation of Article 6.7 and Paragraph 7 of Annex I is under appeal as well.
The U.S. view is that while there is no affirmative obligation for an investigating authority to
accept all information presented during verification, it is also not entitled to reject information on
the sole ground that such information was proffered at verification.
5. Additionally at issue is the Panel's interpretation of Article 6.9, which provides for the
disclosure of "essential facts" underlying an investigating authority's antidumping determination to
the interested parties. The Panel incorrectly found that China satisfied its obligations under Article
6.9. In the view of the United States, MOFCOM di d not sufficiently make available underlying data
it used to determine the existence and margin of dumping, including the calculation of the normal
value and export price for the respondents.
II. ARTICLE 2 OF THE ANTI-DUMPING AGREEMENT
6. The parties made claims under the Article 2 provisions of the AD Agreement. Article 2.2.2
provides that the amounts for SG&A and for profits shall be based on actual data pertaining to
production and sales in the ordinary course of trade of the like product by the exporter or producer
under investigation. To the extent that MOFCOM relied on sample sales that it had already
excluded in other dumping calculations to establish SG&A when information on sales in the
ordinary course of trade was available, the United States agrees with the Panel's findings that
China acted inconsistently with Article 2.2.2.
III. ARTICLE 3 OF THE ANTI-DUMPING AGREEMENT
7. The parties have appealed various aspects of the Panel's analysis of MOFCOM's injury
determination. Under Article 3.2, the Panel correctly rejected the arguments of the
European Union and Japan in concluding that an investigating authority may consider the
significance of price undercutting by subject imports separately from its determination of price
depression or suppression.
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- C-3 -

8. The Panel's views regarding the analysis of th e impact by dumped imports on the domestic
industry is inconsistent with Article 3.4. The text of Article 3.4 requires investigating authorities to
examine the impact of subject imports on an in dustry, and not just the state of the industry.
An investigating authority must consider whethe r changes in the state of the industry are the
consequences of subject imports and whether subject imports have explanatory force for the
industry's performance trends.
9. As to the arguments made by Japan and the EU under Article 3.5, China is incorrect in
arguing that the Panel decided on a matter that had not been raised by the complainants. It is
clear from the submissions that Japan and the EU both properly submitted these claims to the
Panel.