BRAZIL – ANTI-DUMPING MEASURES ON IMPORTS OF CERTAIN RESINS FROM ARGENTINA
Document: Request for the Establishment of a Panel by Argentina
Date: 8 June 2007
Document codes: WT/DS355/2
Complainant: Argentina
Respondent: Brazil
Third parties: EU, Japan, Taiwan, U.S.
Dispute stage: Panel
Agreements cited: Art. 6.1, 6.2, 6.4, 6.6, 6.8, 6.9, 2.2.1.1, 2.2.2, 2.4, 3.1, 3.2, 3.4, 3.5, 8.3, 10.1, 12.1, 12.1.1, 12.2, 12.2.2, 18.4  Anti-dumpingArt. VI, X:1, X:3  GATT 1994Art. XVI:4  Agreement Establishing the World Trade OrganizationAnnex II  Anti-dumping

BRAZIL – ANTI-DUMPING MEASURES ON IMPORTS
OF CERTAIN RESINS FROM ARGENTINA

Request for the Establishment of a Panel by Argentina

 The following communication, dated 7 June 2007, from the delegation of Argentina to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

 Argentina considers that certain measures of th e Government of Brazil are inconsistent with
Brazil's commitments and obligations under the General Agreement on Tariffs and Trade 1994
("GATT 1994"), the Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994 ("AD Agreement"), and the Marrakesh Agreement Establishing the ("WTO Agreement"). In particular:

(1) On 26 August 2005, the President of the Ministers Council of the Foreign Trade Chamber
("CAMEX"), through Resolução No 29, de 26 de Agosto de 2005, da Cãmara de Comércio Exterior
CAMEX, do Conselho de Goberno ("Resolution No. 29") , resolved, ad referendum of the Council, to
apply an anti-dumping duty on imports of polyethyl ene terephthalate ("PET") resins, with intrinsic
viscosity over 0.7 dl/g, excluding added resins of glass fiber and other blends, classified under item
3907.60.00 of the NCM
1, originating from Argentina. Reso lution No. 29 was published in Brazil's
Diario Oficial da Uniao on 2 September 2005 and appears to ha ve been ratified by the Council of
Ministers of CAMEX on 16 December 2005. This me asure appears to be inconsistent with the
following provisions of the AD Agreement and the GATT 1994:

(a) Articles 6.1, 6.2, 6.4, 6.6, 6.8, and 6.9 of the AD Agreement and paragraphs 1, 3, 5, 6 and
7 of Annex II of the AD Agreement, because Brazil:

- failed to inform the Argentinian expor ter of perceived deficiencies in its
responses to Brazil's questionnaire;

- failed to provide the Argentinian export er an opportunity to provide further
explanations within a reasonable period;

- failed to provide the Argentinian export er with ample opportunity to present in
writing all evidence which it considered relevant in respect of the anti-dumping
investigation;

- failed to give the Argentinian exporter a full opportunity for the defence of its
interests;

1 Nomenclatura Comun Mercosur (Mercosur Common Tariff Schedule).

- failed to provide timely opportunities for the Argentinian exporter to see all
information that is relevant to the presentation of its case and to prepare
presentations on the basis of this information;

- failed during the course of the investigation to satisfy itself as to the accuracy of
the information supplied by interested parties upon which their findings were
based;

- improperly made its final determination on the basis of the facts available; and

- failed to inform the Argentinian exporter of the essential facts under
consideration which formed the basis for the decision to apply definitive
measures in sufficient time for the Argentinian exporter to defend its interests;

(b) Articles 2.2.1.1 and 6.8 of the AD Agreement, pa ragraphs 1, 3, 5, 6, and 7 of Annex II of
the AD Agreement, and paragraph 2 of Article VI of GATT 1994, because Brazil
substituted the facts available for the Argen tinian exporter's actual records regarding the
primary input into PET resin, which record s were in accordance with the generally
accepted accounting principles of Argentina and reasonably reflected the costs associated
with the production and sale of the product u nder consideration; and by failing to use
special circumspection in basing its findings on information from a secondary source;

(c) Articles 2.2.2 and 6.8 of the AD Agreement, para graphs 1, 3, 5, 6, and 7 of Annex II of
the AD Agreement, and paragraph 2 of Article VI of GATT 1994, because Brazil
substituted the facts available for the Arge ntinian exporter's actual data regarding
administrative, selling and general costs and for profits pertaining to production and sales
in the ordinary course of trade of the li ke product by the Argentinian exporter under
investigation; and by failing to use special circumspection in basing its findings on
information from a secondary source;

(d) Articles 2.2.1 and 6.8 of the AD Agreement, para graphs 1, 3, 5, 6, and 7 of Annex II of
the AD Agreement, and paragraph 2 of Article VI of GATT 1994, because Brazil
improperly treated sales of the Argentinian exporter's like product as being at prices
below per unit costs of production plus admini strative, selling and general costs in the
domestic market of Argentina, and as not being in the ordinary course of trade by reason
of price, which Brazil disregarded in determining normal value;

(e) Articles 2.4 and 6.8 of the AD Agreement, paragr aphs 1, 3, 5, 6, and 7 of Annex II of the
AD Agreement, and paragraph 2 of Artic le VI of GATT 1994, because Brazil, in
calculating the profits accruing to be deduc ted from the export price on sales in Brazil
made by the affiliated party of the Argentin ian exporter of PET resin after importation,
substituted the facts available for the actual profit realized on the sales by the affiliated
party of the Argentinian exporter;

(f) Article 2.4 of the AD Agreement and paragra phs 1 and 2 of Article VI of GATT 1994,
because Brazil improperly denied adjustments to normal value and export price for
volume discounts, debits and credits for pri ce adjustments, customer credits, as well as
level of trade differences granted by the Ar gentinian exporter to individual customers,
thereby failing to make a fair comparison between the export price and normal value;

(g) Articles 3.1, 3.2, and 3.4 of the AD Agreem ent because Brazil, in conducting its injury
analysis, failed to collect or examine r ecent data, and failed to base its injury
determination on positive evidence or to c onduct objective examina tions of the volume

of the allegedly dumped imports, the effect of those imports on prices in the domestic
market of the like product, and the impact of the imports on domestic producers of those
products;

(h) Articles 3.1 and 3.5 of the AD Agreement b ecause Brazil failed to demonstrate that the
allegedly dumped imports are, through the effects of dumping, causing injury; failed to
base its determination of a causal relationship between the allegedly dumped imports and
injury to the domestic industry on positive ev idence and an objective examination of all
relevant evidence; failed to examine all know n factors other than the allegedly dumped
imports which at the same time are allege dly injuring the domestic industry; and
attributed the alleged injury caused by these other factors to the allegedly dumped
imports;

(i) Article 8.3 of the AD Agreement, because Brazil rejected a proposed price undertaking
by the Argentinian exporter without providing the reasons which led the investigating
authorities to consider acceptance of an undert aking as inappropriate, and without giving
the exporter an opportunity to make comments thereon;

(j) Article 10.1 of the AD Agreement, because Brazil began applying anti-dumping duties to
products which entered for consumption prio r to the time when the decision to impose
anti-dumping duties entered into force; and

(k) Articles 12.1, 12.1.1, 12.2, and 12.2.2 of the AD Agreement, because Brazil failed in its
public notice of initiation to provide ade quate information concerning the product
involved in the investigation, and failed in its final determination to set forth in sufficient
detail the findings and conclusions reached on all issues of fact and law considered
material or to provide all relevant informa tion on the matters of fact and law and reasons
which led to the imposition of final measures.

(2) Certain provisions of Brazil's Decree 4732 of 10 June 2003 ("Decree 4732/03") appear to be
inconsistent with Brazil's obligations under the provisions of the AD Agreement, the GATT 1994, and
the WTO Agreement.

 Article 2(XV) of Decree 4732/03 authorizes CAMEX to impose provisional or definitive
anti-dumping measures. Article 5 § 3 of Decree 4732/03 authorizes the president of CAMEX to
perform all acts of CAMEX, including the imposition of anti-dumping measures, ad referendum of
the Council of Ministers, and Brazilian law prescr ibes no deadline within which CAMEX must ratify
or reject those acts, nor does it stipulate the lega l status of the anti-dumping measures apparently in
force. These provisions appear to be inconsistent with:

(a) Article 10.1 of the AD Agreement, which requires that anti-dumping duties only be
applied to products which enter for consump tion after the time when the decision to
impose anti-dumping duties enters into force;

(b) Article X:1 and X:3(a) of GATT 1994, which requires that laws, regulations, judicial
decisions and administrative rulings of ge neral application made effective by a
contracting party be published promptly in such a manner as to enable governments and
traders to become acquainted with them and to administer them in a uniform, impartial
and reasonable manner;

(c) Article 18.4 of the AD Agreement, which requires each Member to take all necessary
steps, of a general or particular character, to ensure, not later than the date of entry into

force of the WTO Agreement for it, the c onformity of its laws, regulations and
administrative procedures with the provisions of the AD Agreement; and

(d) Article XVI:4 of the WTO Agreement, which requires Members to ensure the conformity
of their laws, regulations and administra tive procedures with their obligations as
provided in the annexed Agreements.

 Brazil's measures identified in this request also appear to nullify or impair benefits accruing to
Argentina directly or indirectly under the cited Ag reements. For each of the measures referred to
above, this request also covers any amendments, replacements, extensions, implementing measures or
other related measures.

 On 26 December 2006, the Government of Ar gentina requested consultations with the
Government of Brazil pursuant to Article 4 of the Understanding on Rules and Procedures Governing
the Settlement of Disputes ("DSU"), Article XXII:1 of GATT 1994, and Article 17 of the
AD Agreement (WT/DS355/1). Argentina and Brazil held such consultations on 1 February 2007,
covering the measures at issue in this request . These consultations provided some helpful
clarifications, but unfortunately did not resolve the dispute.

 Accordingly, Argentina respectfully request s, pursuant to Article XXIII of the GATT 1994,
Articles 4.7 and 6 of the DSU, and Article 17.4 of the AD Agreement, that the Dispute Settlement
Body establish a panel to examine this matter, with the standard terms of reference as set out in
Article 7.1 of the DSU. Argentina further asks that this request for a panel be placed on the agenda
for the next meeting of the Dispute Settlement Body to be held on 20 June 2007.