UNITED STATES – ANTI-DUMPING MEASURES ON OIL COUNTRY TUBULAR GOODS (OCTG) FROM MEXICO
Document: Report of the Appellate Body
Date: 2 November 2005
Document codes: WT/DS282/AB/R
Complainant: Mexico
Respondent: U.S.
Third parties: Argentina, Canada, China, Taiwan, EU, Japan, Venezuela, Thailand
Dispute stage: Appellate Body
Agreements cited: Art. 1, 2, 3, 6, 11, 18  Anti-dumpingArt. VI, X  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

UNITED STATES – ANTI-DUMPING MEASURES ON OIL
COUNTRY TUBULAR GOODS (OCTG) FROM MEXICO

AB-2005-7

Report of the Appellate Body

APPELLATE BODY

Mexico – Appellant/Appellee
United States – Appellant/Appellee

Argentina – Third Participant
Canada – Third Participant
China – Third Participant
European Communities – Third Participant
Japan – Third Participant
Separate Customs Territory of Taiwan, Penghu,
Kinmen, and Matsu – Third Participant

 AB-2005-7

 Present:

 Ganesan, Presiding Member
 Lockhart, Member
 Taniguchi, Member

I. Introduction
1. Mexico and the United States each appeals cert ain issues of law and legal interpretations
developed in the Panel Report: (the "Panel Report").
1 The Panel was established to consider a
complaint by Mexico against the United States regarding, inter alia, the continuation of anti-dumping
duties on oil country tubular goods ("OCTG") from Mexico following the conduct of a five-year or
"sunset" review of those duties, as well as certain United States laws and procedures relating to such
reviews.
2
2. On 11 August 1995, the United States Department of Commerce (the "USDOC") issued an
anti-dumping duty order on OCTG from Mexico, b ased on a dumping margin of 23.79 per cent for
Tubos de Acero de Mexico, S.A. ("TAMSA") and for "all other" Mexican producers, including Hylsa,
S.A. de C.V. ("Hylsa").3 The USDOC subsequently reduced this margin to 21.70 per cent.4 On 3 July

1, 20 June 2005.
2Panel Report, para. 2.1.
3Ibid., para. 2.3.
4Ibid., footnote 6 to para. 2.3 and para. 2.6; Oil Country Tubular Goods From Mexico: Notice of Panel
Decision, Amended Order and Final Determination of Antidumping Duty Investigation in Accordance With
Decision Upon Remand, United States Federal Register , Vol. 62, No. 25 (6 February 1997), p. 5612 (Exhibit
MEX-2 submitted by Mexico to the Panel), at p. 5613.

2000, the USDOC initiated a sunset review of the order.
5 In its determination of the likelihood of
continuation or recurrence of dumping6, the USDOC determined that revocation of the order would be
likely to lead to continuation or recurrence of dumping at the rate of 21.70 per cent for TAMSA,
Hylsa, and "all other" Mexican producers. 7 In its determination of th e likelihood of continuation or
recurrence of injury, the United States International Trade Commission (the "USITC") determined
that revocation of the anti-dumping duty orders on OCTG (other than drill pipe) from Mexico and
certain other countries would be likely to lead to continuation or recurrence of material injury within a
reasonably foreseeable time.8 As a result of these determinations by the USDOC and the USITC, the
USDOC did not revoke the order on OCTG (other than drill pipe) from Mexico.9
3. Before the Panel, Mexico challenged, under the Agreement on Implementation of Article VI
of the General Agreement on Tariffs and Trade 1994 (the " Anti-Dumping Agreement "), the General
Agreement on Tariffs and Trade 1994 (the "GATT 1994"), and the Marrakesh Agreement
Establishing the World Trade Organization (the "WTO Agreement"), inter alia:
(a) Sections 752(a)(1), 752(a)(5), and 752(c)(1 ) of the Tariff Act of 1930 (the "Tariff
Act")10; pages 889 to 890 of the Statement of Administrative Action 11 (the "SAA");
Section II.A.3 of the Sunset Policy Bulletin (the "SPB") 12; the "practice" of the

5Panel Report, para. 2.6.
6In our discussion, we refer at times to the USDOC' s determination of the likelihood of continuation or
recurrence of dumping as the "likelihood-of-dumping determination" and to the USITC's determination of the
likelihood of continuation or recurrence of injury as the "likelihood-of-injury determination".
7Panel Report, para. 2.6; Oil Country Tubular goods ("OCTG") From Mexico; Final Results of Sunset
Review of Antidumping Duty Order, United States Federal Register, Vol. 66, No. 47 (9 March 2001), p. 14131
and Memorandum from Jeffrey May to Bernard Carreau, "Issues and Decision Memorandum for the Full Sunset
Review of the Antidumping Duty Order on Oil Country Tubular Goods (OCTG) from Mexico; Final Results"
(26 February 2001) (Exhibit MEX-19 submitted by Mexico to the Panel).
8Panel Report, para. 2.7; Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico:
Determinations, United States Federal Register , Vol. 66, No. 132 (10 July 2001), p. 35997 and Oil Country
Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico—Investigation Nos. 701-TA-364, 731-TA-711,
and 713-616 (Review): Determination and Views of the Commission, USITC Publication 3434 (June 2001)
(Exhibit MEX-20 submitted by Mexico to the Panel).
9Panel Report, para. 2.8; Continuation of Countervailing and Antidumping Duty Orders on Oil
Country Tubular Goods From Argentina, Italy, Japan, Korea and Mexico, and Partial Revocation of Those
Orders From Argentina and Mexico With Respect to Drill Pipe, United States Federal Register , Vol. 66,
No. 143 (25 July 2001), p. 38630 (Exhibit MEX-22 submitted by Mexico to the Panel), at p. 38631.
10These provisions are codified in Sections 1675a(a)(1), 1675a(a)(5), and 1675a(c)(1) of Title 19 of the
United States Code, respectively (Exhibit MEX-24 submitted by Mexico to the Panel).
11Statement of Administrative Action to the Uruguay Round Agreements Act, H.R. Doc. No. 103-316
(1994), reprinted in 1994 USCCAN 4040 (Exhibit MEX-26 submitted by Mexico to the Panel).
12Policies Regarding the Conduct of Five-year ("Sunset") Reviews of Antidumping and Countervailing
Duty Orders; Policy Bulletin, United States Federal Register , Vol. 63, No. 73 (16 April 1998), p. 18871
(Exhibit MEX-32 submitted by Mexico to the Panel).

USDOC in such reviews; and the "standard" applied by the USITC in such reviews;
and
(b) various aspects of the USDOC's likelihood-of-dumping determination and the
USITC's likelihood-of-injury determination in the sunset review of anti-dumping
duties on OCTG from Mexico.
13
4. In the Panel Report, circulated to Members of the World Trade Organization (the "WTO") on
20 June 2005, the Panel made the following findings:
(a) Claims regarding USDOC's sunset review
8.1 With regard to claims regard ing the alleged inconsistency of
the US statute, 19 U.S.C. § 1675a(c)(1)), the Statement of
Administrative Action (SAA) (pages 889-890) and the Sunset
Policy Bulletin (SPB) (section II.A.3), with Article 11.3 of
the AD Agreement, we conclude the SPB, in section II.A.3,
establishes an irrebuttable presumption that termination of the
anti-dumping duty would be likely to lead to continuation or
recurrence of dumping, and therefore is, in this respect,
inconsistent, as such, with the obligation set forth in
Article 11.3 of the AD Agreement to determine likelihood of
continuation or recurrence of dumping.
8.2 With regard to the determin ation of USDOC in the sunset
review at issue in this dispute, we conclude that USDOC
acted inconsistently with Article 11.3 of the AD Agreement
in that its determination that dumping is likely to continue or
recur is not supported by reas oned and adequate conclusions
based on the facts before it.
8.3 We make no findings concerning Mexico's claims under
Articles 2 and 6 of the AD Agreement in the context of the
USDOC sunset review at issue in this dispute.
8.4 We conclude that claims re garding alleged in consistency of
USDOC "practice" in sunset reviews are not within the
Panel's terms of reference.
(b) Claims regarding USITC's sunset review
8.5 We conclude that the standard applied by USITC in
determining whether termina tion of the anti-dumping duty
would be likely to lead to continuation or recurrence of
injury, is not inconsistent with Article 11.3 of the
AD Agreement as such, or as applied in the sunset review at
issue in this dispute.

13For further details of Mexico's claims, see Panel Report, para. 3.1.

8.6 We conclude that the relevant provisions of US law, 19
U.S.C. §§ 1675a(a)(1) and (5) regarding the temporal aspect
of USITC determinations of likelihood of continuation or
recurrence of injury are not, as such, or as applied in the
sunset review before us in th is dispute, inconsistent with
Articles 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 11.1, and 11.3 of the
AD Agreement.
8.7 We conclude that the USITC did not act inconsistently with
Article 11.3 of the AD Agreement in making its
determination of likelihood of continuation or recurrence of
injury in the sunset review at issue in this dispute.
8.8 We conclude that the USITC's determination in the sunset
review at issue in this dispute is not inconsistent with
Articles 3.3 and 11.3 of the Agreement because it involved a
cumulative analysis.
8.9 We make no findings regarding the remaining aspects of
Mexico's claims under Articles 3.1, 3.2, 3.3, 3.4, 3.5, 3.7 and
3.8 of the AD Agreement.

(d) Other claims
8.13 We make no findings concer ning alleged inc onsistency with
... Article X:3(a) of the GATT 1994 in the administration of
US anti-dumping laws, regulations, decisions and rulings
with respect to USDOC's conduct of sunset reviews of anti-
dumping duty orders;
8.14 We make no findings c oncerning asserted subsidiary
violations of the provisions of Article VI of the GATT 1994,
Articles 1 and 18 of the AD Agreement, and Article XVI:4 of
the WTO Agreement.
5. On 4 August 2005, Mexico notified the Dispute Se ttlement Body (the "DSB") of its intention
to appeal certain issues of law covered in the Pane l Report and certain legal interpretations developed
by the Panel, pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes (the "DSU"), and filed a Notice of Appeal
14 pursuant to
Rule 20(1) of the Working Procedures for Appellate Review (the " Working Procedures ").15 O n
11 August 2005, Mexico filed an appellant's submission. 16 On 16 August 2005, the United States
notified the DSB of its intention to appeal certain issues of law covered in the Panel Report and
certain legal interpretations developed by the Panel, pursuant to Articles 16.4 and 17 of the DSU, and

14WT/DS282/6 (attached as Annex I to this Report).
15WT/AB/WP/5, 4 January 2005.
16Pursuant to Rule 21(1) of the Working Procedures.

filed a Notice of Other Appeal 17 pursuant to Rule 23(1) of the Working Procedures. On 19 August
2005, the United States filed an other appellant's submission. 18 On 29 August 2005, the United States
and Mexico each filed an appellee's submission. 19 On the same day, Argen tina, China, the European
Communities, and Japan each filed a third participant's submission 20, and Canada and the Separate
Customs Territory of Taiwan, Penghu, Kinmen, and Matsu each notified the Appellate Body
Secretariat of its intention to appear at the oral hearing as a third participant.21
6. The oral hearing in this appeal was held on 19 September 2005. The participants and third
participants presented oral arguments (with the exception of Canada and the Separate Customs
Territory of Taiwan, Penghu, Kinmen, and Matsu) and responded to questions posed by the Members
of the Division hearing the appeal.

II. Arguments of the Participants and Third Participants
A. Claims of Error by Mexico – Appellant
1. Requirement to Establish a Causal Link in Sunset Reviews
7. Mexico argues that the Panel erred in fa iling to find that Article 11.3 of the Anti-Dumping
Agreement requires investigating authorities to demonstrate the existence of a causal link between
likely dumping and likely injury, even assuming, arguendo, that Article 3.5 of the Anti-Dumping
Agreement does not apply to sunset reviews.
8. Relying on Article VI:1 of the GATT 1994, Mexi co argues that "'dumping' must be the cause
of the 'injury' before it can be 'condemned' through the use of anti-dumping measures." 22 In addition,
Mexico contends that Article VI:6(a) of the GA TT 1994 suggests that "[t]he causality requirement of
Article VI:6(a) continues throughout the life of the anti-dumping measure." 23 Citing the report of the
GATT panel in US – Non-Rubber Footwear , Mexico argues that "the requirement under
Article VI:6(a) to determine a causal link betw een the dumping and injury is not a time-bound
obligation that expires upon imposition of the orde r" and that "'further implementation of [the

17WT/DS282/7 (attached as Annex II to this Report).
18Pursuant to Rule 23(3) of the Working Procedures.
19Pursuant to Rules 22(1) and 23(4) of the Working Procedures, respectively.
20Pursuant to Rule 24(1) of the Working Procedures.
21Pursuant to Rule 24(2) of the Working Procedures.
23Ibid., para. 24.

order]'—including its continuation through—a sunset review has to be done consistently with
Article VI:6(a), which includes the requirement to establish a causal link."
24
9. According to Mexico, the reference in Article 11.1 of the Anti-Dumping Agreement to
"dumping which is 'causing' injury" indicates "tha t a causal link is a precondition to an order being
considered as 'necessary' under Article 11.1."25 In other words, "[u]nless the dumping is 'causing injury,'
then the order is not 'necessary,' and cannot 'remain in force.'"26 Mexico argues, in this respect, that the
Appellate Body Report in US – Carbon Steel suggests that, "in order for an anti-dumping duty to be
considered as 'necessary' under Article 11.1, its purpose must be to 'counteract dumping which is
causing injury.'"27
10. Mexico further submits that "[t]he Panel's finding that the [USDOC's] likelihood of dumping
determination with respect to Mexican OCTG impor ts was WTO-inconsistent necessarily meant that
the [USITC's] likelihood of injury dete rmination was also WTO-inconsistent." 28 According to
Mexico, "a WTO-consistent determination of likely dumping is a legal predicate to a WTO-consistent
determination of likely injury."29 Mexico argues that the panel report in US – DRAMS supports "the
notion that a finding of likely dumping is a n ecessary predicate to a fi nding of likely injury". 30
Mexico adds that "[t]he DSB rulings in US – Oil Country Tubular Goods Sunset Reviews , combined
with the Panel's finding in [the present case], esta blish that there was no WTO-consistent basis for a
finding of likely dumping for any Member that was included in the USITC's cumulative analysis."31
11. Finally, Mexico argues that the Panel acted inconsistently with Article 11 of the DSU by
failing to address Mexico's argument regarding "the f undamental causation principles of Article VI of
the GATT and the Anti-Dumping Agreement" 32, which, Mexico contends, apply in the context of
sunset reviews under Article 11.3, regardless of the applicability of Article 3.5 of the Anti-Dumping
Agreement to such reviews. Mexico submits, in this regard, that the Panel erred in finding that
"'Mexico did not explain or elaborate on' its causation claim". 33 According to Mexico, "[t]he Panel

24Mexico's appellant's submission, para. 25 (quoting GATT Panel Report, US – Non-Rubber Footwear,
para. 4.5). (footnote omitted)
25Ibid., para. 32.
26Ibid.
27Ibid., paras. 33-34 (referring to Appellate Body Report, US – Carbon Steel, para. 70).
28Ibid., para. 52.
29Ibid., para. 54.
31Ibid., para. 57. (original emphasis)
32Ibid., para. 66.

record shows that, despite Mexico's repeated expl anation and elaboration, the Panel simply ignored
[Mexico's] argument and failed to make any assessment of it." 34 Mexico maintains that Article 11 of
the DSU "does not allow Panels to ignore argume nts in this manner, and then claim that an
insufficient explanation or elaboration justifies a decision not to assess the argument."35
12. For these reasons, Mexico requests the Appellate Body to rule that the Panel erred in its
interpretation and application of Articles 1, 11.1, 11.3, and 18.1 of the Anti-Dumping Agreement and
Article VI of the GATT 1994, and acted inconsisten tly with Article 11 of the DSU by failing to find
that Article 11.3 of the Anti-Dumping Agreement requires investigating authorities to demonstrate
the existence of a causal link between likely dumping and likely injury.
2. Cumulation in Sunset Reviews
13. Mexico argues that the Panel acted inconsistent ly with Article 11 of the DSU by not making
findings with respect to Mexico's argument that, re gardless of the applicability of Article 3.3 of the
Anti-Dumping Agreement to sunset reviews, the USITC's likelihood-of-injury determination "failed
to satisfy the requirements applicable to th e conduct of any cumulative injury assessment." 36 Mexico
submits that it "fully explained the lega l and factual basis to support its position" 37 and refers, in this
respect, to several explanations it provided to th e Panel, arguing that the Panel disregarded these
explanations. Mexico requests the Appellate Body "to address, complete the analysis, and rule in
favor of Mexico's claims, on which the Panel declined to rule."38
14. According to Mexico, the Panel "simply assu med" that, because Article 3.3 of the Anti-
Dumping Agreement "does not apply to sunset reviews, th e USITC's cumulative injury determination
could not be inconsistent with Article 11.3". 39 Mexico submits that the Panel erred because it
"wrongly assumed that its findings regarding two of Mexico's cumulation arguments were sufficient
to address Mexico's separate and wholly independent argument that was not linked to Article 3.3".40
15. According to Mexico, the USITC was under an obligation to "ensure that cumulation was
appropriate in light of the conditions of competition". 41 To do so, the USITC was "required" to make

35Ibid.
36Ibid., para. 73.
37Ibid.
38Ibid., para. 75.
39Ibid., para. 77.
40Ibid.
41Ibid., p. 23, heading II.B.2.c.i.

"a threshold finding that the subject imports w ould be simultaneously present in the U.S. market".
42
Mexico asks: "[i]f the imports are not in the mark et together and competing against each other, what
possible justification could exist to evaluate th e effects of the imports in a cumulative manner?" 43
Mexico contends that "nowhere in [the USITC's] analysis is there positive evidence demonstrating
that imports from Mexico, Argentina, Italy, Korea, and Japan would be present in the United States
market at the same time ... if the order were revoked."44
16. Mexico further argues that the USITC "did not apply the legal standard required by
Article 11.3 in connection with its assess ment of likelihood of simultaneity" 45, because the USITC
"requir[ed] a demonstration that the imports 'would not' be simultaneously in the market". 46 Mexico
emphasizes that "the mere absence of contradictor y information is not positive evidence of what is
likely to happen."47
17. Mexico also argues that the USITC's likelihood- of-injury determination is inconsistent with
Article 11.3 "because [the USITC] failed to identify a time-frame within which subject imports would
be simultaneously present in the U.S. market and the corresponding likely injury would take place".48
18. Moreover, Mexico contends that, having "decide d to cumulate Mexican imports with imports
from the other four countries that were cumulated in the original investigation", the USITC "was
required to do so consistently w ith the requirements of Article 3.3" 49, regardless of whether that
provision applies directly to sunset reviews. Me xico finds support for its position in the Appellate
Body Report in US – Corrosion-Resistant Steel Sunset Review, where the Appellate Body stated that,
"should investigating authorities choose to rely upon dumping margins in making their likelihood
determination, the calculation of these margins must conform to the disciplines of Article 2.4."50
19. Accordingly, Mexico requests the Appellate B ody to find that the Panel erred in its
interpretation and application of the Anti-Dumping Agreement to the USITC's cumulative analysis
and failed to make an objective assessment as require d under Article 11 of the DSU. Mexico requests

42Mexico's appellant's submission, p. 23, heading II.B.2.c.i.
43Mexico's second written submission to the Panel, para. 192 (quoted in Mexico's appellant's
submission, para. 82). (emphasis omitted)
45Ibid., para. 94.
46Ibid.
47Ibid. (footnote omitted)
48Ibid., p. 27, heading II.B.2.c.iv.
49Ibid., para. 103.
50Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 127 (quoted in Mexico's
appellant's submission, para. 101).

the Appellate Body to find that the USITC's likel ihood-of-injury determinati on is inconsistent with
Article 11.3 of the Anti-Dumping Agreement.
3. Margins of Dumping in Sunset Reviews
20. Mexico argues that the Panel exercised fals e judicial economy by "declining to decide
Mexico's claims concerning the margin likely to prevail".51 Mexico contends that "the Panel reasoned
that, because the Anti-Dumping Agreement does no t require authorities to determine and report a
margin likely to prevail, an authority's determina tion of a margin likely to prevail cannot contravene
the Anti-Dumping Agreement." 52 According to Mexico, by deciding not to examine Mexico's
arguments, the Panel failed to make an objective assessment of the matter before it as required by
Article 11 of the DSU.
21. Mexico submits that the Panel erred in its interpretation of Articles 2 and 11.3 of the Anti-
Dumping Agreement . Citing the Appellate Body Report in US – Corrosion-Resistant Steel Sunset
Review53, Mexico argues that, when an investigating authority "uses a specific methodology that the
Anti-Dumping Agreement does not require, the authority must not apply that methodology in a
manner that otherwise conflicts with the Agreement."
54 Otherwise, according to Mexico, "the use of a
WTO-inconsistent methodology in a sunset review would also render the determination inconsistent
with Article 11.3."55 Mexico submits that "the Panel effectively reasoned that the United States is free
to select any dumping margin for use in the [US DOC's] and [the USITC's] respective likelihood
determinations, regardless of whether that margin was calculated in accordance with the requirements
of the Agreement, including with the disciplines of Article 2."56
22. Mexico also argues that, "[p]ursuant to Articl es 1 and 18.3, any dumping margin used in the
context of a sunset review must be the result of the application of the Anti-Dumping Agreement, and
it also must be consistent with the Agreemen t, including the requirements of Article 2." 57 According
to Mexico, the "margin of dumping likely to preva il" that the USDOC reported to the USITC resulted
from an investigation initiated befo re the entry into force of the WTO Agreement , and thus this

52Ibid., para. 132.
53Ibid., para. 114 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
para. 127).
54Ibid., para. 115.
55Ibid.
56Ibid., para. 116.
57Ibid., para. 121.

margin could not be the result of the application of the Anti-Dumping Agreement , as required by
Article 18.3.
23. Mexico observes that, "[d]uring the Panel pr oceedings, the United States claimed that the
staff report appended to the USITC's sunset determination 'clearly addresses each of the factors
enumerated in Article 3.4.'"
58 Mexico points out that those factors include the "magnitude of the
margin of dumping". 59 As Mexico sees it, the United States la ter retreated from this position, as it
contended that "the [US]ITC did not rely on or ot herwise factor the reporte d likely margin into its
analysis."60 Mexico argues that "the United States cannot have it both ways on this issue. Either the
[USITC] 'evaluated' the dumping margin ... and thus must accept the logical legal consequences of
this margin affecting its determination, or the [U SITC] 'did not rely on or otherwise factor the ...
margin into its analysis'".61
24. Mexico therefore requests the Appellate Body to find that the Panel failed to make an
objective assessment under Article 11 of the DSU, becau se it declined to rule on Mexico's claim that
the USDOC's determination of the margin likely to prevail and the USITC's use of that margin were
inconsistent with Articles 1, 2, 11.3, and 18.3 of the Anti-Dumping Agreement. Mexico also requests
the Appellate Body to rule that the United States acted inconsistently with these provisions.
4. The "Legal Basis" for Continuing Anti-Dumping Duties
25. Mexico argues that the Panel acted inconsistently with Article 11 of the DSU by declining to
make a finding that the United States had no lega l basis to impose anti-dumping duties on OCTG
from Mexico after the five-year period set out in Article 11.3 of the Anti-Dumping Agreement .
Mexico requests the Appellate Body to make such a finding.
26. Mexico maintains that Article 11.3 of the Anti-Dumping Agreement requires Members to
terminate anti-dumping duties within five years of their imposition unless: (a) the Member has
initiated a review before the expiry of the five-y ear period; and (b) the authorities have properly
determined that the expiry of the duty would be likely to lead to continuation or recurrence of
dumping and injury. Although the United States initiated a review within the relevant time period, the

58Mexico's appellant's submission, para. 128 (quo ting United States' first written submission to the
Panel, para. 315).
59Ibid.
60Ibid. (quoting United States' response to Question 13 posed by the Panel at the first panel meeting,
Panel Report, p. E-45).
61Ibid., para. 129 (referring to United States' first written submission to the Panel, para. 315; and
quoting United States' response to Question 13 posed by the Panel at the first panel meeting, Panel Report,
p. E-45).

Panel found that the USDOC's likelihood-of-dumpi ng determination was in consistent with the
United States' WTO obligations. Therefore, the United States has not fulfilled the requirements for
invoking the exception in Article 11.3, and, in acco rdance with the Appellate Body's reasoning in
US – Corrosion-Resistant Steel Sunset Review 62, it must terminate immediately the anti-dumping
duties on OCTG from Mexico.
27. Mexico argues that it "specifically, and repeatedly" 63 asked the Panel to find that the United
States had no legal basis to continue imposing anti-dumping duties on OCTG from Mexico. Mexico
contends that, by not doing so, the Panel failed to make "such other findings as will assist the DSB in
making the recommendations or in giving the rulings provided for in the covered agreements", as
required by Article 11 of the DSU. Mexico asserts that the Panel had to make the finding requested
by Mexico to enable the DSB to make "s ufficiently precise recommendations and rulings"
64 in
relation to implementation. Mexico adds that a panel's discretion to exercise judicial economy is
limited.
28. Mexico maintains that, for the United States to br ing its inconsistent measure into conformity
with Article 11.3 of the Anti-Dumping Agreement, it has no option but to terminate the anti-dumping
duty order on OCTG from Mexico. The initiation of a new sunset review of this order would be
inconsistent with Article 11.3. By analogy, Mexico refers to the Appellate Body's agreement with the
Panel in US – Steel Safeguards that the measures at issue in that case had been "deprived of a legal
basis".65 For these reasons, Mexico requests the Appellate Body to find that the United States had no
legal basis to continue imposing anti-dumping duties on OCTG from Mexico beyond the five-year
period established in Article 11.3.
5. Mexico's Conditional Appeals
(a) The "Standard" for USDOC Determinations in Sunset Reviews
29. In the event that the Appellate Body reverses the Panel's finding that Section II.A.3 of the
SPB, as such, is inconsistent with Article 11.3 of the Anti-Dumping Agreement, Mexico requests the
Appellate Body to find that Section 752(c)(1) of th e Tariff Act, the SAA, and the SPB, "as such", are

62Mexico's appellant's submission, para. 137 (referring to Appellate Body Report, US – Corrosion-
63Ibid., para. 136.
64Appellate Body Report, US – Wheat Gluten , para. 180 (quoted in Mexico's appellant's submission,
para. 140).
65Appellate Body Report, US – Steel Safeguards, para. 511 (quoted in Mexico's appellant's submission,
para. 136).

inconsistent with Article 11.3 becau se, "collectively and independently"
66, they establish a standard
for USDOC determinations in sunset reviews that is inconsistent with Article 11.3.
30. According to Mexico, Article 11.3 of the Anti-Dumping Agreement precludes authorities
from finding that the expiry of an anti-dumping duty would be likely to lead to continuation or
recurrence of dumping unless the evidence shows that dumping would be likely or probable in those
circumstances. In contrast, United States la w directs the USDOC to make an affirmative
determination where the likelihood of dumping is "less than, or other than, probable".
67 In particular,
this is confirmed by the SAA, which allows the USDOC to make an affirmative determination where
dumping is merely a possible outcome of revoking an anti-dumping duty order.
31. Mexico suggests that the Panel "declined to ru le" on whether the Tariff Act, the SAA, and the
SPB establish a standard that is contrary to Article 11.3 of the Anti-Dumping Agreement.68 However,
Mexico submits that the Panel record contains su fficient findings for the Appellate Body to complete
the analysis of this issue. In particular, the Panel found that the USDOC treats the existence of
dumping and declining import volumes as conclusive evidence that the revocation of an anti-dumping
duty order would be likely to lead to continuation or recurrence of dumping. Mexico emphasizes that
the Panel based this finding on a "qualitative assessment" of the cons istent practice of the USDOC in
sunset reviews.
(b) Article X:3(a) of the GATT 1994
32. In the event that the Appellate Body reverses the Panel's finding that Section II.A.3 of the
SPB, as such, is inconsistent with Article 11.3 of the Anti-Dumping Agreement, Mexico requests the
Appellate Body to find that the United States has fa iled to administer its laws, regulations, decisions,
and rulings in an impartial and reasonable manner as required by Article X:3(a) of the GATT 1994.
33. Mexico points out that sunset reviews by th e USDOC fall within the types of laws and
regulations described in Article X:1 of th e GATT 1994 and, therefore, that the USDOC's
administration of United States laws, regulations, deci sions, and rulings pertaining to sunset reviews
is subject to Article X:3(a). Mexico declares th at it has established a clear pattern of "biased and
unreasonable"69 decision-making by the USDOC in administering these provisions. The USDOC
made an affirmative likelihood determination in all th e sunset reviews in which at least one domestic
producer participated, and it treated historical dum ping margins and/or declining import volumes as

67Ibid.
68Mexico's Notice of Appeal, para. 5(a) (referring to Panel Report, para. 6.6).
69Mexico's appellant's submission, paras. 172 and 173.

determinative of likely dumping in all expedited and full sunset revi ews. According to Mexico, the
USDOC's systematic maintenance of anti-dumping duties beyond the five-year period set out in
Article 11.3 of the Anti-Dumping Agreement damages the competitive position of foreign exporters.
34. Mexico observes that the Panel declined to rule on Mexico's claim under Article X:3(a) of the
GATT 1994. However, Mexico submits that the Pa nel record contains sufficient findings for the
Appellate Body to complete the analysis of this issu e. In particular, Mexico maintains that the Panel
conducted a thorough qualitative analysis of indivi dual sunset determinations by the USDOC and
found that the USDOC has consistently based its affirmative likelihood dete rminations in sunset
reviews solely on the scenarios set out in the SPB . Mexico argues that th e Appellate Body needs
merely to apply Article X:3(a) to these findings to conclude that the United States administers sunset
reviews contrary to that provision.
35. For these reasons, if the Appellate Body reverses the Panel's finding that the SPB, as such, is
inconsistent with Article 11.3 of the Anti-Dumping Agreement, Mexico asks the Appellate Body to
find that the United States has acted inconsistently with Article X:3(a) of the GATT 1994.
B. Arguments of the United States – Appellee
1. Requirement to Establish a Causal Link in Sunset Reviews
36. The United States argues that the Appellate B ody should not consider Mexico's arguments
regarding "causation" on appeal. According to the United States, Mexico could have formulated these
arguments as claims in and of themselves before the Panel, but Mexico elected not to do so.
Referring to the Appellate Body Report in US – Oil Country Tubular Goods Sunset Reviews , the
United States contends that, "[f]aced with an Appellate Body report that considers Article 3—
including Article 3.5—inapplicable to sunset revi ews and with the Panel report that followed that
reasoning, it appears that Mexico is trying to devise an alternative means to have the requirements of
Article 3.5 read into sunset reviews."70
37. According to the United States, Mexico’s a dditional arguments on causation merely confirm
that a causation analysis under Article 3.5 of the Anti-Dumping Agreement is required in original
investigations. Mexico’s arguments add nothing, howeve r, to support its assertion that "a similar
analysis is required in addressing the likelihood of injury in sunset reviews, and they certainly do not
establish that the actual requirements of Article 3.5 apply in sunset reviews." 71 The United States
recalls that the Appellate Body has clarified that sunset reviews are separate and distinct from original

71Ibid., para. 42. (original emphasis)

investigations, and that the requirements for an original investigation cannot "be automatically
imported" into a sunset review.
72 The United States contends, therefore, that Mexico’s reliance on
substantive legal obligations that apply to original investigations does "not support its assertion that
the AD Agreement or Article VI of GATT 1994 c ontain some sort of 'inherent' causation
requirements for sunset reviews."73
38. The United States argues that Article VI of the GATT 1994 does not contemplate sunset
reviews. Rather than speaking of a determinati on of likelihood of continuation or recurrence of
injury, Article VI refers only to a determination of injury. In other words, there is no support for
Mexico’s argument that Article VI of the GATT 1994 imposes independent or inherent causation
requirements in sunset reviews. Similarly, Me xico does not explain how Article 11.1 of the Anti-
Dumping Agreement creates, in Article 11.3, a causal requirement of the nature Mexico suggests.
The United States emphasizes that the Appellate Body has already made it clear that "neither a
determination of dumping, nor a determination of injury, need be made under Article 11.3."74
39. Turning to Mexico's claim that the Panel acted inconsistently with Article 11 of the DSU, the
United States recalls the ruling of the Appellate Body, in Dominican Republic – Import and Sale of
Cigarettes, that "there is no obligation upon a panel to consider each and every argument put forward
by the parties in support of their respective cases, so long as it completes an objective assessment of
the matter before it, in accordance with Article 11 of the DSU." 75 The United States submits that,
therefore, "Mexico must show that the Panel’s fi ndings that Mexico had fa iled to substantiate its
assertions were in error and prevented the Pa nel from making an objective assessment of the
matter."76 According to the United States, Mexico has not done so. Instead, the United States
underscores that "[t]he Panel objectively concluded that Mexico did no more than make assertions
about the relevance of Article VI of th e GATT 1994 and Article 11.1 of the Antidumping
Agreement."77
40. The United States further argues that "[t]here is simply no basis" for Mexico's assertion that
"the DSB rulings 'combined with the Panel’s findi ng in this case, establish that there was no WTO-

72Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 359 (quoted in
United States' appellee's submission, para. 42).
74Ibid., para. 50 (referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews,
para. 280).
75Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes , para. 125 (quoted in
United States' appellee's submission, para. 8).
77Ibid., para. 16.

consistent basis for a finding of likely dumping for any Member that was included' in the USITC’s
cumulative analysis."78 According to the United States, "Mexico’s proposition relies on new facts—
its chart in paragraph 57 [of Mexico's appellant's submission]—and therefore is beyond the scope of
Appellate Body review." 79 The United States notes that not all of the likelihood-of-dumping
determinations to which Mexico refers have even been subject to WTO dispute settlement. In
addition, referring to Mexico's allegation that Mexi co had "developed this argument with sufficient
elaboration for the Panel to have made a finding and the Panel’s conclusion to the contrary is
erroneous"80, the United States argues that Mexico did not identify "where its request for such a
finding is located or where the Panel denied to make such a finding".81
41. For these reasons, the United States requests the Appellate Body to dismiss Mexico's appeal
in relation to causation.
2. Cumulation in Sunset Reviews
42. The United States agrees with the Panel that Article 11.3 of the Anti-Dumping Agreement
does not prescribe a methodology for cumulation in sunset reviews. Further, the United States recalls
that the Appellate Body found in US – Oil Country Tubular Goods Sunset Reviews that Article 3.3 of
the Anti-Dumping Agreement does not apply to sunset reviews. The United States emphasizes that,
"if Article 3.3 does not apply, then neither do its conditions."82
43. Regarding Mexico's allegation that the USITC applied a WTO-inconsistent standard in the
course of conducting its likelihood-of-injury determin ation, the United States argues, first, that the
Appellate Body has already found that "the 'likel y' standard of Article 11.3 applies to the overall
determinations regarding dumping and injury; it need not necessarily apply to each factor considered
in rendering the overall determ inations on dumping and injury." 83 Therefore, according to the United
States, there is no "likelihood of simultaneity" standard for cumulation of imports, as Mexico
suggests.
84 Secondly, the USITC determination focused on the existence of simultaneity before and
after the order was imposed. In the absence of c ontrary evidence, it was reasonable for the USITC to

78United States' appellee's submission, para. 32 (quoting Mexico's appellant's submission, para. 57).
(Mexico's emphasis)
79Ibid. (footnote omitted)
80Mexico's appellant's submission, para. 59 (quoted in United States' appellee's submission, para. 33).
82Ibid., para. 22 (referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews,
para. 301).
83Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 323 (quoted in
United States' appellee's submission, para. 60).

conclude that "simultaneous presence of the subj ect imports would continue if the order were
revoked."
85 Thirdly, "the Appellate Body already consid ered this issue in connection with the exact
same determination, noting that the USITC’s decision to cumulate, including its simultaneity
determination, was not inconsistent with Article 11.3."86
44. In relation to Mexico's contention that the Panel should have found that the USITC
determination was flawed, because the determinati on did not specify the time-frame within which
subject imports would be simultaneously present in the United States market and within which injury
would occur, the United States observes that th e Appellate Body has already explained that
Article 11.3 of the Anti-Dumping Agreement "does not require an investigating authority to specify
the timeframe on which it bases its determination of injury."87
45. Turning to Mexico's claims under Article 11 of the DSU, the United States agrees with the
Panel that "Mexico failed to 'explain or elabor ate on its bare assertion that Article 11.3 somehow
establishes "inherent" obligations for cumulati on independent of those in Article 3.3.'" 88 The United
States maintains that Mexico does not explain, even in its appellant's submission, why conditions for
cumulation exist "irrespective of the applicability of Article 3.3" to Article 11.3.89
46. Accordingly, the United States requests the Appe llate Body to dismiss Mexico's appeal in
relation to cumulation.
3. Margins of Dumping in Sunset Reviews
47. The United States submits that the Panel correctly found that nothing in the Anti-Dumping
Agreement requires investigating authorities to determine or consider a "margin likely to prevail" in
the context of a likelihood-of-dumping determination. The United States maintains that "reporting" of
a margin likely to prevail is an element of United States law "that is not derived from any element" of
the Anti-Dumping Agreement.90
48. The United States recalls that "[t]he Appellate Body has recognized that there is 'no obligation
under Article 11.3 for investigating authorities to calculate or rely on dumping margins in determining

86Ibid. (referring to Appellate Body Report, US – Oil Country Tubula r Goods Sunset Reviews , paras.
326 and 328-329).
87Ibid., para. 62 (referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews,
para. 364).
89Ibid. (quoting Mexico's appellant's submission, para. 83).

the likelihood of continuation or recurrence of dumping.'" 91 According to the United States, "[t]he
Panel’s conclusion that nothing in the AD Agreement requires determination, or consideration, of a
'margin likely to prevail'" in the context of a lik elihood-of-dumping determination is consistent with
that finding.92
49. The United States agrees with the Panel's conclu sion that, "[i]n a case such as this one, where
the United States acknowledges that USDOC explicitl y relied solely on import volumes in making its
determination, we consider that there can be no b asis for finding a violation of Article 2" of the Anti-
Dumping Agreement .93 Because the Panel found that the USDO C "did not rely on the margin" in
making its likelihood-of-dumping de termination, the rulings in the Appellate Body Report in US –
Corrosion-Resistant Steel Sunset Review to which Mexico refers are "simply inapposite".94
50. Turning to Mexico's allegation that the Pa nel erred in failing to find that the USITC
determination was also flawed as a result of the ma rgin likely to prevail determined by the USDOC,
the United States submits that "it is not clear how the margin likely to prevail could render the USITC
determination WTO-inconsistent wh en the Panel made a factual finding that the USITC did not 'use'
the margin in question."
95
51. The United States therefore requests the Appella te Body to dismiss Mexico's appeal in
relation to margins of dumping.
4. The "Legal Basis" for Continuing Anti-Dumping Duties
52. The United States contends that the Panel did not act inconsistently with Article 11 of the
DSU in declining to make a finding that the Unite d States had no legal basis to impose anti-dumping
duties on OCTG from Mexico after the five-year period set out in Article 11.3 of the Anti-Dumping
Agreement.
53. The United States submits that Mexico's appeal conflicts with Members' rights in deciding
how to implement recommendations and rulings of the DSB. "Mexico has offered no logical or legal
justification as to why Members cannot correct br eaches of so-called time-bound provisions as they
do breaches of any other obligation."96 In response to Mexico's reliance on US – Steel Safeguards, the

91United States' appellee's submission, para. 69 (quoting Appellate Body Report, US – Corrosion-
92Ibid. (quoting Panel Report, para. 7.83).
95Ibid., para. 73.
96Ibid., para. 80.

United States argues that, in that case, neither th e panel nor the Appellate Body suggested that the
United States should terminate the measure, even though the Appellate Body concluded that the
measure had no legal basis.
54. The United States disagrees with "Mexico's conten tion that the Panel abused its discretion in
exercising judicial economy".
97 Panels may be said to exercise judicial economy with respect to a
claim, but the Panel ruled on Mexico's claim. In addition, the United States notes that the Panel
explained its conclusion that it was unnecessary to make any further findings.98
55. For these reasons, the United States requests the Appellate Body to dismiss Mexico's appeal
regarding the absence of a specific finding by the Pa nel that the United States had no legal basis to
continue to impose anti-dumping duties on OCTG from Mexico.
5. Mexico's Conditional Appeals
(a) The "Standard" for USDOC Determinations in Sunset Reviews
56. The United States argues that the Appellate Body should dismiss Mexico's request that the
Appellate Body rule on whether the Tariff Act, th e SAA, and the SPB establish a standard that is
inconsistent with Article 11.3 of the Anti-Dumping Agreement.
57. According to the United States, Mexico is mist aken in asserting that "the Panel 'declined to
decide' this 'claim.''' 99 The Panel stated that it had ruled on Mexico's claim regarding the Tariff Act,
the SAA, and the SPB. 100 The United States contends that Me xico's alleged "claim" regarding the
standard established by these instruments is simply an "argument".
58. The United States submits that, in any event, the Appellate Body would be unable to
"complete the analysis" of this issue because it lacks a sufficient factual basis. The Panel stated that it
made no findings on this aspect of Mexico's argume nts. The findings on which Mexico suggests the
Appellate Body should rely are related to the SPB, not the Tariff Act or the SAA. The United States
adds that "the Panel did not find the SAA to be a measure in the first place". 101 Finally, the United
States maintains that the Panel's findings regarding the SPB are the very findings that the Appellate
Body would have to overturn in order to reach this aspect of Mexico's appeal, given that it is

99Ibid., para. 83 (quoting Mexico's appellant's submission, paras. 157-158).
101Ibid., para. 84.

conditioned on the Appellate Body reversing the Pa nel's conclusions regarding the SPB. Thus, the
Appellate Body would not be in a position to rely on them to complete the analysis.
59. Accordingly, the United States requests the Appe llate Body to dismiss Mexico's conditional
appeal regarding the standard established by the Tariff Act, the SAA, and the SPB.
(b) Article X:3(a) of the GATT 1994
60. Regarding Mexico's request that the Appellate Body rule that the United States has acted
inconsistently with Article X:3(a) of the GA TT 1994, the United States argues that Argentina
submitted, in US – Oil Country Tubular Goods Sunset Reviews , essentially the same evidence and
exactly the same argument that Mexico is submitting in this dispute. The United States contends that,
"based on this evidence" 102, the Appellate Body stated in that earlier appeal that "it would be
impossible to conclude on the basis of the overall st atistics alone that the determinations were flawed
due to lack of objectivity on the part of the USDOC." 103 The United States also argues that Mexico's
appellant's submission does not conform with the A ppellate Body's earlier statement that the evidence
offered in an Article X:3(a) claim must reflect the "gravity"104 of such a claim.
61. The United States observes that the Panel made no findings on this issue. In addition, the
United States alleges that the only findings the Appe llate Body could use to complete the analysis
under Article X:3(a) are the very findings the Appella te Body would have to overturn to reach this
aspect of Mexico's appeal, given that it is cond itioned on the Appellate Body reversing the Panel's
conclusions regarding the SPB. Thus , the Appellate Body would not be in a position to rely on them
to complete the analysis.
62. For these reasons, the United States requests th e Appellate Body to dismiss Mexico's
conditional appeal regarding Article X:3(a) of the GATT 1994.
C. Claims of Error by the United States – Appellant
1. Consistency of the Sunset Policy Bulletin "As Such"
63. The United States contends that the Panel erred in finding that Section II.A.3 of the SPB, "as
such", is inconsistent with Article 11.3 of the Anti-Dumping Agreement.

103Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 219 (quoted in
United States' appellee's submission, para. 87).

64. The United States puts forward three main reasons for its claim that the Panel made a legal
error in its finding of inconsistency with respect to the SPB: (i) the Panel erred in allocating the
burden of proof; (ii) the Panel applied an improper standard; and (iii) the Panel failed to make an
objective assessment of the matter before it (includi ng an objective assessment of the facts of the
case) as required by Article 11 of the DSU. The Unit ed States also highlights the serious nature of an
"as such" challenge, and the particular rigour require d in assessing such a cha llenge. In addition, the
United States did not have "a meaningful opportuni ty to rebut the evidence created and presented by
the Panel"
105 until the interim review stage, and, even after the interim review, the Panel did not
address all of the United States' comments on this issue. The United States also argues that its
opportunity for rebuttal was curtailed by the fact that the Panel did not identify each specific
determination it considered or how that determination supported its conclusion.
65. First, in relation to the burden of proof, th e United States submits that the Panel erred in
finding that Mexico had established a prima facie case that the SPB is inconsistent with Article 11.3
of the Anti-Dumping Agreement. The United States alleges that the Panel made Mexico's case for it,
instead of limiting itself to the evidence and argum ents that Mexico presented, which comprised the
text of the SPB and the outcomes in previous sunset reviews. According to the United States, Mexico
did not conduct a "qualitative assessment" of the USDOC determinations it presented, although the
Appellate Body has held that such an assessment is required to establish inconsistency of the SPB
with Article 11.3. 106 Given that Mexico's argument involve d a mere statistical analysis of the
outcomes in previous sunset reviews, it was not up to the Panel to make a "qualitative assessment" of
its own accord.
66. The United States points to the Appellate Body's decisions in Canada – Wheat Exports and
Grain Imports and US – Gambling as demonstrating that a complainant must provide evidence and
arguments, including an explanation of the measure's inconsistency and the relationship between the
evidence and its claims. However, "Mexico simp ly provided factual information, and the Panel
mined that information for facts supporting a legal argument that Mexico did not even advance."107
67. Secondly, in relation to the standard that the Panel applied in assessing this claim, the United
States argues that the Appellate Body found, in US – Corrosion-Resistant Steel Sunset Review, that it
is not clear from the text of the SPB alone whet her it instructs the USDOC to treat dumping margins
and import volumes as conclusive of the likelih ood of dumping under Article 11.3 of the Anti-

105United States' other appellant's submission, para. 3.
106Ibid., paras. 13-14 (referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset
Reviews, paras. 209 and 212).
107Ibid., para. 19.

Dumping Agreement. The Appellate Body's reasoning in US – Oil Country Tubular Goods Sunset
Reviews suggests that a qualitative analysis of USDOC de terminations is requir ed to show whether
the SPB directs the USDOC to treat certain scenario s as determinative of the likelihood of future
dumping, even though other factors might show that the revocation of an order would not be likely to
lead to continuation or recurrence of dumping. Th e United States contends that the Panel failed to
conduct an analysis of this kind.
68. According to the United States, the Panel di d not have before it the underlying decision
memorandum for each determination, nor did it exam ine all those determinations. Moreover, the
Panel failed to focus on the role of the SPB in the USDOC determinations and whether the SPB
caused the USDOC to make particular affirmativ e determinations. Instead, the Panel simply
conducted its own assessment as to whether the facts before the USDOC fit any of the scenarios in the
SPB, regardless of whether the USDOC itself even id entified such a scenario as being relevant, let
alone compelling a particular outcome. Similarly, the United States indicates that, in assessing the
USDOC's alleged disregard of evidence of other fa ctors, the Panel considered neither whether the
SPB caused the USDOC to disregard such evidence, nor whether such evidence had probative value
outweighing that of any particular SPB scenario.
69. The United States also refers to certain factua l deficiencies in the Panel's analysis. The
United States points out that the Panel reviewed only an unidentified "sampling"
108 of the 206
determinations that the Panel identified as invol ving no or minimal participation by foreign
respondents. In addition, the United States indicates that the Panel did not consider whether evidence
of other factors was presented in these sunset review s (which would be unlikely, given the incomplete
participation of foreign respondents).
70. In relation to the 15 cases in which the Panel concluded that dumping continued after the
order was issued, the United States argues that th e Panel stated that the USDOC "appears to have
considered"109 that scenario (a) applied, but the Pa nel did not examine whether the SPB was
responsible for that outcome. In any event, in seven of these cases the US DOC received no evidence
of other factors, so they cannot shed light on whether the SPB requires the USDOC to make an
affirmative likelihood determination even when probative evidence might outweigh the scenarios of
the SPB. In five of the 15 cases, the Panel wa s unable to state definitively whether foreign
respondents had alleged other factors, or whether the USDOC had considered such factors. The Panel
stated that, in one particular preliminary determination
110, the USDOC said that it did not consider the

108Panel Report, para. 7.53 (quoted in United States' other appellant's submission, paras. 30 and 35)
110Tab 89 of Exhibit MEX-62 submitted by Mexico to the Panel.

interested parties' arguments regarding other factor s. However, in making this determination, the
USDOC relied not only on the continuation of dumpi ng, but also on the decline in import volumes,
and it made no reference to the SPB. In addition, the respondent did not contend that it was
introducing evidence of other factors. The argum ents regarding other factors that the USDOC
decided not to consider were ma de by domestic interested parties, in response to the respondent's
suggestion that revocation of the order would not si gnificantly alter import volumes or prices. Given
that the current dumping margin for the exporte r that the respondent supplied was more than
20 per cent, this suggestion by the respondent c ould not constitute probative evidence in favour of
revoking the order. As for the remaining three cases in this category
111, the Panel stated that the
USDOC rejected the foreign responde nts' assertion of good cause to consider other factors. In fact,
according to the United States, the USDOC did consider the evidence of other factors, but determined
that its probative value was outweighed by the ev idence of continued dumping, low import volumes,
and the relationship between the two.
71. Turning to the four cases in which dumping had been eliminated and import volumes had
declined significantly, the United States refers to the Panel's statement that, in one case 112, the
USDOC originally asserted that it was willing to co nsider additional evidence and arguments, but it
later relied on declining import volumes in making an affirmative determination. The United States
declares that, in that case, the respondent did not take up the opportunity to provide additional
evidence and arguments. Even so, the USDOC st ill considered the evidence of other factors and
concluded that it did not outweigh the probative value of the decline in import volumes.
72. Thirdly, in relation to the Panel's alleged fa ilure to conduct an objective assessment pursuant
to Article 11 of the DSU, the United States reitera tes many of its arguments regarding the Panel's
allegedly flawed analysis of the USDOC determin ations submitted by Mexico. The United States
contends that the Panel: failed to provide a "reasoned explanation" 113 for its conclusion regarding its
unidentified "sampling" 114 of certain determinations; misunde rstood the facts in certain individual
cases, as already mentioned; and "selectively cite d certain statements from the determinations while
failing to acknowledge countervailing statements".115
73. The United States also queries the Panel's analysis of several other determinations. The Panel
did not explain its categorization of the cases, incl uding its conclusion that, in five cases, respondents

111Including Tab 78 of Exhibit MEX-62 submitted by Mexico to the Panel.
112Ibid., Tab 165.
113United States' other appellant's submission, para. 52.
114Panel Report, para. 7.53 (quoted in United States' other appellant's submission, para. 52).
115United States' other appellant's submission, para. 55.

discussed other factors without specifically asserting good cause. As an example, in one of these five
cases116, the only respondent that participated subm itted arguments relating to its own dumping
margin. It is not clear that such arguments involve d evidence of other factors and, in any event, the
dumping margins of individual companies are not relevant to whether the revocation of an anti-
dumping duty order is likely to lead to the continuation or recurrence of dumping. In relation to
certain other cases
117, the Panel stated that the USDOC rej ected the assertion that good cause existed
to consider other factors. In fact, in the cas es the Panel quoted, the United States insists that the
USDOC did consider the probative value of the eviden ce of other factors, but did not find it to be
overriding.
74. With respect to two other cases, the United States notes that the Panel focused on the fact that
the USDOC made a negative preliminary determ ination followed by an affirmative final
determination. The circumstances of the first case 118 demonstrate that the USDOC does consider
evidence of other factors. For this reason, at the preliminary stage, the USDOC accepted the
respondent's argument that the elimination of dumping and low import volumes should not be
regarded as indicating that the revocation of the or der would be likely to lead to the recurrence of
dumping, because the respondent had acquired a United States company that would supply the United
States market in future without the need for a significant volume of imports. However, the respondent
subsequently admitted that, if the order were revoked, it would increase its import volume to pre-order
levels. On this basis, the USDOC rejected th e suggestion that this evidence of other factors
demonstrated that the revocation of the order would not be likely to lead to continuation or recurrence
of dumping.
75. In relation to the second case in which th e USDOC made a negative preliminary
determination and an affirm ative final determination 119, the Panel referred to the USDOC's unusual
cost-of-production analysis to support its final de termination. In that case, the USDOC initially
rejected the assertion by a domestic interested party that good cause existed to consider cost-of-
production information. Both parties then submitted information relating to the cost of production,
and the USDOC therefore conducted an on-site ve rification and engaged in a cost-of-production
analysis, which led to its affirmative determination. The United States contends that this conclusion
was based on the evidence revealed in the verification, and not the SPB.

116Tab 35 of Exhibit MEX-62 submitted by Mexico to the Panel.
117Including ibid., Tab 201.
118Ibid., Tab 32.
119Ibid., Tab 261.

76. The United States submits that the Panel's finding that the scenarios in the SPB are
determinative contradicts its finding that the rele vant United States statute requires the USDOC to
take into account other factors. The Panel's finding that the SPB imposes a requirement on the
USDOC that is contrary to statute is unsupporte d by evidence. Further, the Panel disregarded
statements by the USDOC (which issued the SPB) that the scenarios in the SPB are not determinative.
The Panel also focused on the USDOC's alleged m echanistic application of the SPB, rather than
whether the SPB instructs the USDOC to treat the three scenarios as determinative, in disregard of
other factors. Finally, the United States asserts that the Panel lacked objectivity and had "an
unsubstantiated preconception"
120 that the USDOC determinations were somehow flawed. The
United States supports this assertion by reference to the Panel's "serious doubt s about the consistency
of some of the decisions reviewed" 121, and the Panel's suggestion th at these decisions might have
included "some correct results".122
77. On these three grounds, the United States requests the Appellate Body to reverse the Panel's
finding that Section II.A.3 of the SPB, as such, is inconsistent with Article 11.3 of the Anti-Dumping
Agreement.
D. Arguments of Mexico – Appellee
1. Consistency of the Sunset Policy Bulletin "As Such"
78. Mexico argues that the Panel properly found that Section II.A.3 of the SPB, "as such", is
inconsistent with Article 11.3 of the Anti-Dumping Agreement.
79. Mexico rejects the three grounds of the United States' appeal, arguing that the Panel properly
determined that Mexico established a prima facie case, applied the correct legal standard in
evaluating the SPB under Article 11.3 of the Anti-Dumping Agreement , and made an objective
assessment as required by Article 11 of the DSU.
80. In addition, in relation to the latter two grounds of appeal, Mexico asks the Appellate Body to
decline the United States' request that it revisit th e Panel's factual findings and reweigh the evidence
that was before the Panel. Previous decisions of the Appellate Body demonstrate that panels enjoy a
margin of discretion as triers of fact and that the Appellate Body is not to second-guess a panel's
assessment of the evidence before it. Applying th is reasoning to the present case, the Appellate Body

120United States' other appellant's submission, para. 72.
121Panel Report, footnote 85 to para. 7.63 (quoted in United States' other appellant's submission,
para. 73).
122Ibid., footnote 86 to para. 7.64 (quoted in United States' other appellant's submission, para. 72).

should not disturb the Panel's factual finding that the USDOC regards the scenarios in the SPB as
conclusive or determinative. These findings relate to the meaning and scope of a Member's municipal
law, which—according to the United States' own positi on in previous disputes—is a question of fact
falling outside the scope of appellate review. Me xico contends that the Appellate Body "should
accord deference to the Panel with respect to its factual findings on the SPB".123
81. In relation to the United States' argument that Mexico failed to establish a prima facie case,
Mexico submits that the Panel correctly applied the precedents contained in the Appellate Body
Reports in US – Corrosion-Resistant Steel Sunset Review and US – Oil Country Tubular Goods
Sunset Reviews in concluding that Mexico had established a prima facie case. In particular, Mexico
contends that the Panel correctly recognized, based on these precedents, that determinations in sunset
reviews must: be supported by "positive evidence" and a "sufficient factual basis" 124; be based on a
"rigorous examination" leading to a "reasoned conclusion" 125; and not involve the "mechanistic
application of presumptions".126
82. Mexico indicates that the Panel specifically an d correctly concluded that Mexico had made a
prima facie case. Contrary to the United States' reading, in US – Oil Country Tubular Goods Sunset
Reviews, the Appellate Body reversed the Panel's finding that the SPB was inconsistent with
Article 11.3 of the Anti-Dumping Agreement because the Panel had failed to comply with Article 11
of the DSU, not because the complainant had failed to establish a prima facie case. This is a critical
distinction. Therefore, the Appellate Body's ruling in US – Oil Country Tubular Goods Sunset
Reviews does not support the United States' appeal on th is issue. On the contrary, this ruling
confirms that "the obligation to make out a prima facie case may be satisfied in certain cases simply
by submitting the text of the measure or, particularly where the text may be unclear, with supporting
materials".
127 In the present case, the Panel found that Mexico identified the measure at issue,
explained how it operated, and explained the basis fo r the alleged inconsistenc y with Article 11.3 of
the Anti-Dumping Agreement .128 According to Mexico, this shows that the Panel properly
determined that Mexico established a prima facie case.

124Ibid., para. 3 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
para. 114; and Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 302).
125Ibid. (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, paras. 111 and
113; and Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 302).
126Ibid. (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 178).
127Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 263 (quoted in
Mexico's appellee's submission, para. 36).

83. Mexico states that the Panel was required to conduct a qualitative analysis in fulfilling its
functions under Article 11 of the DSU; this wa s not something that Mexico was required to do in
meeting its burden of proof as complainant. In any case, Mexico provided to the Panel its own
"qualitative assessment" of every sunset review conducted by the USDOC in the form of
Exhibits MEX-62 and MEX-65. The charts at the fr ont of these exhibits "simply could not have been
prepared unless a qualitative analysis had already occu rred in order to properly characterize the basis
for the [USDOC's] determination in each case".
129 In addition, Mexico argues that it analyzed many
individual sunset reviews in the course of the Panel proceedings.
84. In response to the United States' plea that it di d not have an adequate opportunity to respond
to the "evidence created and presented by the Panel" 130, Mexico maintains that Mexico presented the
evidence in question, comprising determinations of an agency of the United States government, with
its first submission to the Panel. Therefore, the United States had an opportunity to rebut the
evidence, but it chose not to do so as part of its litig ation strategy. For example, Mexico argues that
the United States could have responded to the evid ence: in its first or second submissions; in
response to questions posed by the Panel; upon the invitation of the Panel to comment on the
Appellate Body decision in US – Oil Country Tubular Goods Sunset Reviews ; or in an interim
review meeting that it could have requested under Article 15.2 of the DSU.
85. Mexico disagrees with the United States' contenti on that the Panel failed to apply the correct
standard in assessing the consistency of the SPB with Article 11.3 of the Anti-Dumping Agreement.
The Panel did not "shoehorn" the sunset review s or engage in an "outcomes" analysis. 131 The United
States mischaracterizes the Panel's analysis and wr ongly contests the Panel's factual assessment of the
individual sunset reviews.
86. According to Mexico, the United States cha llenges the Panel's statement that, in one
preliminary determination132, the USDOC said that it did not consider the interested parties' arguments
regarding other factors. Responding to the United St ates' contention that this was not due to the SPB,
Mexico argues that the USDOC relied on Section II.A. 3 of the SPB in the first sentence of the same
paragraph. Mexico submits that, contrary to the United States' arguments, respondents did introduce
evidence of other factors in that case, and, even if th ey had not, it would not change the fact that the
SPB determined the result. Mexico also refers to the United States' suggestion that, in one case in

129Mexico's appellee's submission, para. 40. (emphasis omitted)
130United States' other appellant's submission, para. 3 (quoted in Mexico's appellee's submission,
para. 48).
131Mexico's appellee's submission, para. 86 (quoting United States' other appellant's submission,
paras. 9 and 39).
132Tab 89 of Exhibit MEX-62 submitted by Mexico to the Panel.

which the USDOC rejected argum ents that good cause existed to consider other factors 133, the
USDOC did consider the evidence of other factors, but found the evidence of continued dumping and
low import volumes more probative. Mexico responds that, in fact, the USDOC strictly followed the
SPB, despite the dramatic fall in the dumping margin and without taking account of the evidence of
other factors. Finally, with respect to another case
134, Mexico challenges the United States' suggestion
that the USDOC relied on decreased import volumes (t he third SPB scenario). Mexico alleges that
the USDOC relied on continued dumping margins (the first SPB scenario), despite the existence of
zero or de minimis dumping margins in each administrative review.
87. In relation to the United States' claim that the Panel failed to make an objective assessment as
required by Article 11 of the DSU, Mexico disput es the United States' representations about several
individual sunset reviews. Beginni ng with the United States' criticis m of the Panel's "sampling" of
expedited sunset reviews, Mexico responds th at the United States' position during the Panel
proceedings was that these sunset reviews were not relevant because they were not contested. Mexico
disagrees that these reviews were not relevant. Even where respondent interested parties do not
participate, the USDOC is obliged to seek out relevant information, which it failed to do, as evidenced
by the Panel's sampling.
88. Mexico also refutes the United States' contention that, in one review135, the respondent did not
introduce evidence of other factors; Mexico lists sev en other factors identified by the respondents in
that review. In relation to another case 136, Mexico disagrees with the United States' suggestion that
the respondents' arguments related simply to the existence of de minimis dumping margins; Mexico
states that the respondent in that case submitted arguments about import volumes and its ability to
supply the United States market without dumping. In response to the United States' argument that the
USDOC weighed the probative value of evidence of other factors in determining whether good cause
had been shown in another sunset review 137, Mexico maintains that the USDOC relied solely on the
third SPB scenario in making its determinati on. In relation to another sunset review 138, Mexico
contests the United States' contention that the r espondents did not submit additional evidence. In
another case139, the United States contends that the USDOC relied on the respondent's admission that
revocation of the order would be likely to lead to dumping. However, Mexico submits that the

133Tab 78 of Exhibit MEX-62 submitted by Mexico to the Panel.
134Ibid., Tab 165.
135Ibid., Tab 89.
136Ibid., Tab 35.
137Ibid., Tab 201.
138Ibid., Tab 165.
139Ibid., Tab 32.

USDOC dismissed the respondent's explanation for the decline in import volumes, even though it had
accepted that explanation during the preliminar y stage and the evidence and arguments were
unchanged. Finally, Mexico rebuts the United States' argument that the USDOC based one
affirmative likelihood-of-dumping determination
140 on evidence of below-cost sales; Mexico argues
that "[e]vidence of sales below cost in the home market cannot constitute evidence that an exporter
would be likely to dump in the United States". 141 In any event, Mexico does not regard this case as
directly relevant to its claim, as none of the SPB criteria was present.
89. Mexico also responds to the United States' arguments regarding a lleged inconsistency
between the Panel's findings regarding the Tariff Act, the SAA, and the SPB. According to Mexico,
even assuming that the Panel is correct that the Ta riff Act is consistent with Article 11.3 of the Anti-
Dumping Agreement , that does not mean that the SPB conflic ts with the Tariff Act or changes its
meaning. The SPB simply goes beyond the require ment in the Tariff Act that the USDOC consider
dumping margins and import volumes, in that the SPB establishes conclusive scenarios based on
dumping margins and import volumes.
90. For these reasons, Mexico requests the Appellate Body to confirm the Panel's finding that
Section II.A.3 of the SPB, as such, is inconsistent with Article 11.3 of the Anti-Dumping Agreement.
E. Arguments of the Third Participants
1. Argentina

91. In relation to Mexico’s appeal regarding causa tion in sunset reviews, Argentina agrees with
Mexico that investigating authorities may not determ ine that the expiry of a duty would be likely to
lead to continuation or recurrence of injury under Article 11.3 of the Anti-Dumping Agreement
without establishing a causal link between the likely injury and dumped imports. Even if Article 3.5
of the Anti-Dumping Agreement does not apply to sunset reviews under Article 11.3, causation is a
fundamental requirement for anti-dumping duties, as reflected in Article VI of the GATT 1994 and in
Articles 1, 3.5, 11.1, 11.3, and 18.1 of the Anti-Dumping Agreement . Therefore, according to
Argentina, the United States was not entitled to continue the anti-dumping duties on OCTG from
Mexico beyond five years without establishing the existence of a causal link in the sunset review.
Argentina also contends that the USITC's likelihood- of-injury determination in the sunset review at
issue was rendered WTO-inconsistent by virtue of the fact that the Panel found that the USDOC's

140Tab 261 of Exhibit MEX-62 submitted by Mexico to the Panel.

likelihood-of-dumping determination was in consistent with Article 11.3 of the Anti-Dumping
Agreement.
92. Concerning Mexico’s appeal as to the legal b asis for continuation of the anti-dumping duties
on OCTG from Mexico, Argentina agrees with Mexico that the Panel erred in declining to find that
the continuation of the anti-dumping duty order on OCTG from Mexico lacks a legal basis. As the
Panel found that the USDOC's likelihood-of-dum ping determination was inconsistent with
Article 11.3 of the Anti-Dumping Agreement , the United States has not fulfilled the conditions of
Article 11.3 for continuing to impose anti-dumping duties on OCTG from Mexico. Accordingly, the
United States should immediately terminate the anti-dumping duty order on OCTG from Mexico.
93. In response to the United States' appeal in c onnection with the SPB, Argentina agrees with
Mexico that Mexico established a prima facie case and that the Panel did not make Mexico's case for
it. In particular, Mexico identified the measure at issue (the SPB); explained the meaning of the SPB;
and argued that the SPB, as such, is inc onsistent with Article 11.3 of the Anti-Dumping Agreement
because it requires a "mechanistic application" of certain scenarios without a "reasoned analysis" of
other factors.
142 Mexico also provided substantial evid ence supporting this argument in the form of
exhibits attached to its submissions. In eval uating Mexico's evidence and arguments, the Panel
followed the Appellate Body's guidance in US – Oil Country Tubular Goods Sunset Reviews .
Accordingly, Argentina supports Mexico's conten tion that the Appellate Body should dismiss the
United States' claim that the Panel acted inconsis tently with Article 11 of the DSU and uphold the
Panel's finding that the SPB, as such, is in consistent with Article 11.3 of the Anti-Dumping
Agreement.
2. China
94. China agrees with Mexico that Article 11.3 of the Anti-Dumping Agreement requires
investigating authorities to examin e whether the expiry of the duty would be likely to lead to
continuation or recurrence of injury caused by dum ped imports or likely dumped imports. Although
the text of Article 11.3 imposes no causation requi rement explicitly, a finding of causation is
necessary in order for the investigating authorities to conduct an objective exam ination. As regards
the USITC’s determination in the sunset review at issue, China finds it difficult to understand how the
USITC could make a WTO-consistent likelihood-of -injury determination, given that the USDOC’s
likelihood-of-dumping determination was inconsistent with Article 11. 3. China adds that, although
the Panel correctly found that Article 11.3 does not prescribe any particular method for the likelihood-
of-injury determination, the Panel did not provide an adequate explanation for its conclusion that the

142Argentina's third participant's submission, para. 18.

USITC’s likelihood-of-injury determination w as consistent with Article 11.3 of the Anti-Dumping
Agreement.
95. In relation to the United States' appeal concerning the SPB, China agrees with Mexico that the
Panel was correct in finding that the SPB is inconsistent with Article 11.3 of the Anti-Dumping
Agreement. First, the Panel correctly concl uded that Mexico had established a prima facie case and
discharged its burden of proof. Mexico submitted to the Panel extensive evidence and arguments
regarding the meaning of Section II.A.3 of the SPB, including evidence of the USDOC’s "consistent
application" of Section II.A.3.
143 Secondly, the Panel properly analyzed Mexico's evidence,
conducting a "qualitative assessment" 144 in accordance with the Appellate Body's guidance in US –
Oil Country Tubular Goods Sunset Reviews . Thirdly, the Panel made an objective assessment of the
matter before it and provided reasone d explanations for its conclusion that the SPB is inconsistent
with Article 11.3 of the Anti-Dumping Agreement . In doing so, according to China, the Panel
focused on the decision-making process of the USDOC, and not solely on the outcomes of sunset
reviews.
3. European Communities

96. The European Communities argues that imposing a causation requirement in sunset reviews,
together with the non-attribution requirements that go with causation, "might be pushing the
possibilities of prospective determ inations beyond reasonable limits". 145 The European Communities
also contends that the use of the present tense in Article VI of the GATT 1994 and certain provisions
of the Anti-Dumping Agreement does not provide a sufficient basis to read a causation requirement
into Article 11.3 of the Anti-Dumping Agreement. Accordingly, the European Communities "would
not generally support this part of Mexico's appeal".146
97. In response to Mexico's appeal as to cu mulation in sunset reviews, the European
Communities submits that Article 11.3 of the Anti-Dumping Agreement does not prohibit
investigating authorities from conducting a cumulative analysis of injury in a sunset review.
However, the European Communities agrees with Mexico that, if such an analysis is conducted, the

143China's third participant's submission, para. 5.
144Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 209 (quoted in
China's third participant's submission, para. 11.).
145European Communities' third participant's submission, para. 9.
146Ibid., para. 11.

conditions set out in Article 3.3 of the Anti-Dumping Agreement must be fulfilled, either at the time
of the sunset review or "at least within the reasonably foreseeable future".147
98. In relation to the United States' appeal regarding the SPB, the European Communities
contends that the question is not whether the SPB mandates or instructs the USDOC to adopt a certain
course of action in every case, but whether the SPB is consistent with the Anti-Dumping Agreement.
The European Communities agrees with Mexico th at, in answering this question, the Panel was
correct to consider past USDOC determinations. The European Communities adds that, if the SPB is
not intended to determine the outcomes of sunset re views, as the United States suggests, it is not clear
why the United States cannot simply amend the SPB to clarify this.
4. Japan
99. Japan agrees with Mexico that an investigating authority conducting a sunset review pursuant
to Article 11.3 of the Anti-Dumping Agreement may not determine that the expiry of the duty would
be likely to lead to continuation or recurrence of injury without establishing that the likely injury
would be caused by likely dumping. This flows from the overarching obligation in Article 11.1 of the
Anti-Dumping Agreement , which makes clear that a Member may maintain an anti-dumping duty
"only as long as and to the extent necessary to coun teract dumping which is causing injury". The
obligation under Article 11.1 for a Member to establish a causal link between dumping and injury
"applies to the finding of 'injury' under Article 11.3". 148 This is also consistent with the basic
principles of Article VI of the GATT 1994, which the Anti-Dumping Agreement implements. In
particular, Japan argues that Articles VI:1 and VI :6(a) of the GATT 1994 confirm the necessity of a
causal relationship between dumping and injury, whic h extends to sunset reviews under Article 11.3
of the Anti-Dumping Agreement as well.
100. Japan also agrees with Mexico that the Panel co rrectly concluded that the SPB is inconsistent
with Article 11.3 of the Anti-Dumping Agreement. Mexico presented evidence and arguments to the
Panel to substantiate its claim. This took the form of Exhibits MEX-62 and MEX-65, as well as the
legal argument that this evidence shows that the SPB attributes determinative or conclusive weight to
the factors of historical dumping margins and import volumes. Therefore, the Panel properly found
that Mexico had established a prima facie case of inconsistency. According to Japan, it was then for

147European Communities' third participant's submission, para. 14.
148Japan's third participant's submission, para. 11.

the Panel to assess the evidence in accordance with Article 11 of the DSU, which it did by conducting
a "qualitative assessment" of Mexico's evidence and arguments.
149
101. Japan maintains that, contrary to the United States' arguments, in US – Oil Country Tubular
Goods Sunset Reviews , the finding of the Appellate Body was not that Argentina had failed to
establish a prima facie case, but that the Panel had erred in its analysis of Argentina's evidence. In
the present dispute, the Panel applied the correct standard in assessing the consistency of the SPB with
Article 11.3 of the Anti-Dumping Agreement. Even assuming that the Panel committed factual errors
in assessing the SPB (which Japan disputes), these would not be of the egregious kind necessary to
create an error under Article 11 of the DSU. Accord ingly, Japan supports Mexico’s request that the
Appellate Body uphold the Panel’s finding that the SPB is inconsistent with Article 11.3 of the Anti-
Dumping Agreement.

III. Issues Raised in this Appeal
102. The following issues are raised in this appeal:
(a) in relation to causation:
(i) whether there is a requirement to est ablish the existence of a causal link
between likely dumping and likely injury, as a matter of legal obligation, in a
sunset review determinati on under Article 11.3 of the Agreement on
Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994 (the " Anti-Dumping Agreement ") and whether, therefore, the
United States International Trade Commission (the "USITC") was required to
demonstrate such a link in making its likelihood-of-injury determination
150 in
the sunset review at issue in this dispute; and
(ii) whether the Panel acted inconsistently with Article 11 of the Understanding
on Rules and Procedures Governing the Settlement of Disputes (the "DSU")
in its assessment of Mexico's arguments in this regard;

149Japan's third participant's submission, para. 22.
150In our discussion, we refer at times to the USITC's determination of the likelihood of continuation or
recurrence of injury as the "likelihood-of-injury determination".

(b) in relation to cumulation:
(i) whether the Panel erred in finding that the USITC's decision to conduct a
cumulative assessment of imports in making its likelihood-of-injury
determination was not in consistent with Articles 3.3 and 11.3 of the Anti-
Dumping Agreement; and
(ii) whether the Panel acted inconsistently with Article 11 of the DSU in its
assessment of Mexico's arguments in this regard;
(c) in relation to dumping margins:
(i) whether the Panel acted inconsistently with Article 11 of the DSU in not
addressing Mexico's claims under Article 2 of the Anti-Dumping Agreement;
(ii) whether the likelihood-of-dumping determination 151 of the United States
Department of Commerce (the "USDOC") was inconsistent with
Article 11.3 of the Anti-Dumping Agreement because the USDOC
determined a likely dumping margin inc onsistently with Article 2 of the
Anti-Dumping Agreement; and
(iii) whether the USITC's likelihood-of-injur y determination was inconsistent
with Article 11.3 of the Anti-Dumping Agreement because the USITC relied
on a likely dumping margin that was determined inconsistently with Article 2
of the Anti-Dumping Agreement;
(d) whether the Panel acted inconsistently with Article 11 of the DSU in declining to
make a specific finding that the United Stat es had no legal basis to continue the anti-
dumping duties on oil country tubular goods ("OCTG") from Mexico beyond the
five-year period established by Article 11.3 of the Anti-Dumping Agreement;
(e) in relation to the Sunset Policy Bulletin (the "SPB")
152:
(i) whether, in assessing the consistency of the SPB, "as such", with Article 11.3
of the Anti-Dumping Agreement , the Panel failed to make an objective

151In our discussion, we refer at times to the USDO C's determination of the likelihood of continuation
or recurrence of dumping as the "likelihood-of-dumping determination".
152Policies Regarding the Conduct of Five-year ("Sunset") Reviews of Antidumping and
Countervailing Duty Orders; Policy Bulletin, United States Federal Register , Vol. 63, No. 73 (16 April 1998),
p. 18871 (Exhibit MEX-32 submitted by Mexico to the Panel).

assessment of the matter, including an objective assessment of the facts of the
case, as required by Article 11 of the DSU;
(ii) whether the Panel erred in finding that Section II.A.3 of the SPB, as such, is
inconsistent with Article 11.3 of the Anti-Dumping Agreement; and
(iii) whether the Panel erred in stating that Mexico had established a prima facie
case that the SPB, as such, is inconsistent with Article 11.3 of the Anti-
Dumping Agreement; and
(f) if the Appellate Body reverses the Panel's finding that Section II.A.3 of the SPB is
inconsistent with Article 11.3 of the Anti-Dumping Agreement:
(i) whether the Tariff Act of 1930 (the "Tariff Act"), the Statement of
Administrative Action (the "SAA")
153, and the SPB, "collectively and
independently"154, establish a standard that is inconsistent with Article 11.3 of
the Anti-Dumping Agreement; and
(ii) whether the USDOC administers United States laws and regulations on
sunset reviews in a uniform, impartial, and reasonable manner in accordance
with Article X:3(a) of the General Agreement on Tariffs and Trade 1994
(the "GATT 1994").

IV. Causation in Sunset Reviews
A. Introduction
103. Mexico argued before the Panel that the USIT C's likelihood-of-injury determination with
respect to the anti-dumping duty order on OCTG from Mexico was inconsistent with several
provisions of Article 3 of the Anti-Dumping Agreement. Based on its analysis, the Panel found that
"the obligations set out in Article 3 are not directly applicable in sunset reviews."155

153Statement of Administrative Action to the Uruguay Round Agreements Act, H.R. Doc. No. 103-316
(1994), reprinted in 1994 USCCAN 4040 (Exhibit MEX-26 submitted by Mexico to the Panel).
155Panel Report, para. 7.117. (footnote omitted)

104. The Panel also concluded that:
While Mexico did make arguments concerning alleged failure to
establish a causal link between likely dumping and likely injury,
these were, in our view, based on Article 3.5, which we found did not
apply in sunset reviews. Mexico did not explain or elaborate on its
bare assertion that Article 11.1 of the AD Agreement and Article VI
of GATT 1994 establish "inherent" cau sation requirements, parallel
to but independent of those in Article 3.5. In the absence of any
basis for such findings, we did not consider it necessary to address
this aspect of Mexico's argument.
156
105. Mexico challenges the Panel's interpretation of Article 11.3 of the Anti-Dumping Agreement
and its failure to address the "inherent" causation requirements under that Article. Referring to the
underlying principles in Articles 1, 3, 11.1, and 18.1 of the Anti-Dumping Agreement and Article VI
of the GATT 1994, Mexico argues that, even assuming that Article 3.5 of the Anti-Dumping
Agreement (dealing with causation) does not apply directly to sunset reviews, there is an "inherent"
obligation to establish a causal link between likely dumping and likely injury in a sunset review
determination under Article 11.3 of the Anti-Dumping Agreement.157
106. The United States contends that Mexico's relian ce on substantive legal obligations that apply
to original investigations does "not support its ass ertion that the AD Agreement or Article VI of
GATT 1994 contain some sort of 'inherent' causation requirements for sunset reviews."158 The United
States recalls in this respect that the Appellate Body has previously clarified that sunset reviews are
separate and distinct from original investigati ons, and that the requirements for an original
investigation cannot "be automatically imported" into a sunset review.159

156Panel Report, para. 6.12.
157Mexico's appellant's submission, para. 38. Mexico clarified at the oral hearing that it does not appeal
the Panel's finding that Article 3 of the Anti-Dumping Agreement does not, as such, apply to sunset reviews.
159Ibid. (quoting Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 359).

B. Requirement to Establish a Causal Link Between Likely Dumping and Likely Injury in
a Sunset Review
107. We begin our analysis with the text of Article 11.3 of the Anti-Dumping Agreement:
Notwithstanding the provisions of para graphs 1 and 2, any definitive
anti-dumping duty shall be terminated on a date not later than five
years from its imposition … unless the authorities determine, in a
review initiated before that date on their own initiative or upon a duly
substantiated request made by or on behalf of the domestic industry
within a reasonable period of time prior to that date, that the expiry of
the duty would be likely to lead to continuation or recurrence of
dumping and injury. ... (footnote omitted)
108. On its face, Article 11.3 does not require investig ating authorities to establish the existence of
a "causal link" between likely dumping and likely inju ry. Instead, by its terms, Article 11.3 requires
investigating authorities to determine whether the expiry of the duty would be likely to lead to
continuation or recurrence of dumping and injury . Thus, in order to continue the duty, there must be
a nexus between the "expiry of the duty", on th e one hand, and "continuation or recurrence of
dumping and injury", on the other hand, such that the former "would be likely to lead to" the latter.
This nexus must be clearly demonstrated.
160 In this respect, we further note that, under Article 11.3 of
the Anti-Dumping Agreement, the termination of the anti-dumping duty at the end of five years is the
rule and its continuation beyond that period is the "exception".
109. Although Article 11.3 is silent as to whether i nvestigating authorities are required to establish
the existence of a "causal link" between likely du mping and likely injury, this "silence does not
exclude the possibility that the requirement w as intended to be included by implication." 161 W e
therefore proceed to examine whet her there is a requirement to establish a causal link between likely
dumping and likely injury in a sunset review under Article 11.3 flowing from other provisions of the
Anti-Dumping Agreement and Article VI of GATT 1994.
110. We start with Article VI of the GATT 1994, as the Anti-Dumping Agreement implements
that provision in respect of anti-dumping measures. This is clear from Article 1 of the Anti-Dumping
Agreement, which states that "[a]n anti-dumping me asure shall be applied only under the
circumstances provided for in Article VI of GATT 1994" . It further stipulates that the provisions of

160The use of the word "likely" in Article 11.3 shows that "an affirmative likelihood determination may
be made only if the evidence demonstrates that dumping [and injury] would be probable if the duty were
terminated—and not simply if the evidence suggests that such a result might be possible or plausible."
(Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 111)
161Appellate Body Report, US – Carbon Steel, para. 65. The Appellate Body said in that case that "the
task of ascertaining the meaning of a treaty provision with respect to a specific requirement does not end once it
has been determined that the text is silent on that requirement." (Ibid.)

the Anti-Dumping Agreement "govern the application of Article VI of GATT 1994 in so far as action
is taken under anti-dumping legislation or regulations".
111. Paragraph 1 of Article VI of the GATT 1994 st ates that dumping "is to be condemned if it
causes or threatens material injury to an established industry in the territory of a Member or materially
retards the establishment of a domestic industry". Pa ragraph 2 of Article VI provides that, "[i]n order
to offset or prevent dumping", a Member may levy on a dumped product an anti-dumping duty not
exceeding the margin of dumping. Paragraph 6(a) further stipulates that no anti-dumping duty shall
be levied unless the importing Member "determines th at the effect of the dumping ... is such as to
cause or threaten material injury to an established dom estic industry, or is such as to retard materially
the establishment of a domestic industry." T hus, Article VI of the GATT 1994 establishes the
fundamental principle that there must be a causal link between dumping and injury to a domestic
industry, if an anti-dumping duty is to be levied on a dumped product. It further establishes that the
purpose of an anti-dumping duty is to counteract dumping that causes injury.
112. Several provisions of the Anti-Dumping Agreement confirm and reinforce this fundamental
principle. Article 3, entitled "Determination of Injury", states in paragraph 1 that:
A determination of injury for purposes of Article VI of GATT 1994
shall be based on positive evidence and involve an objective
examination of both ( a) the volume of the dumped imports and the
effect of the dumped imports on prices in the domestic market for
like products, and ( b) the consequent impact of these imports on
domestic producers of such products. (emphasis added)
In evaluating the impact of the dumped imports on the domestic industry, pa ragraph 5 of Article 3
stipulates that "[i]t must be demonstrated that the dumped imports are, through the effects of
dumping, ... causing injury" to the domestic industry within the meaning of the Anti-Dumping
Agreement. Article 3.5 further requires that inves tigating authorities examine any known factors
other than the dumped imports "which at the same time are injuring the domestic industry", and that
the "injuries caused by these other factors ... not be attributed to the dumped imports."
113. Article 5 of the Anti-Dumping Agreement , which deals with "Initiation and Subsequent
Investigation", lays down in paragraph 2 that an application by the domestic industry for initiation
of an investigation by competent authorities sh all include evidence (not simple assertions) of
"(a) dumping, (b) injury within the meaning of Article VI of GATT 1994 as interpreted by [the Anti-
Dumping Agreement ] and (c) a causal link between the dumped imports and the alleged injury."
Sub-paragraph (iv) of paragraph 2 further stipulates that the application by the domestic industry must
include, inter alia, information on "the consequent impact of the imports on the domestic industry, as

demonstrated by relevant factors and indices havi ng a bearing on the state of the domestic industry,
such as those listed in paragraphs 2 and 4 of Article 3." Paragraph 8 of Article 5 requires rejection of
an application by the domestic industry and terminati on of the investigation if there is not sufficient
evidence either of dumping or of injury, or if the injury is found to be "negligible".
114. Article 9 of the Anti-Dumping Agreement, which deals with the "Imposition and Collection
of Anti-Dumping Duties", states in paragraph 1 that "[i]t is desirable that ... the [anti-dumping] duty
be less than the [full] margin [of dumping] if such lesser duty would be adequate to remove the injury
to the domestic industry."
115. We now turn to the provisions of the Anti-Dumping Agreement that deal with the "review"
of anti-dumping duties that have been levied after an original investigation. Article 11.1 of the
Agreement establishes an overarching principle for "duration" and "review" of anti-dumping duties in
force.
162 It provides that "[a]n anti-dumping duty shall remain in force only as long as and to the
extent necessary to counteract dumping which is cau sing injury." This principle applies during the
entire life of an anti-dumping duty. If, at any point in time, it is demonstrated that no injury is being
caused to the domestic industry by the dumped import s, the rationale for the continuation of the duty
would cease.163
116. Following the principle of Article 11.1, Article 11.2 provides, in part:
Interested parties shall have the right to request the authorities to
examine whether the continued imposition of the duty is necessary to
offset dumping, whether the injury would be likely to continue or
recur if the duty were removed or varied, or both. If, as a result of
the review under this paragraph, the authorities determine that the
anti-dumping duty is no longer warra nted, it shall be terminated
immediately.
117. It is clear from Article VI of the GATT 1994 and the above-mentioned provisions of the
Anti-Dumping Agreement , and indeed from the design and structure of that Agreement as a whole,
that the Anti-Dumping Agreement deals with counteracting injurious dumping and that an anti-
dumping duty can be imposed and maintained only if the dumping (as properly established) causes
injury to the domestic industry. Absent injury to the domestic industry, the rationale for either

162See Appellate Body Report, US – Carbon Steel, para. 70. Although the Appellate Body's reasoning
in that case related to the interpretation of Article 21.1 of the Agreement on Subsides and Countervailing
Measures (the " SCM Agreement "); we consider that it applies, mutatis mutandis , to the interpretation of
Article 11.1 of the Anti-Dumping Agreement, given that these provisions are almost identical.
163Under this broad principle, however, we recognize that, in a sunset review determination under
Article 11.3, it could be properly determined that there may be a likelihood of recurr ence of injury if the duty
expires. We further note that, under Article 11.3, an anti-dumping duty may continue even though there is no
injury at the time of the review.

imposing the duty in the first place, or maintaining it at any time after its imposition, does not exist. 164
A causal link between dumping and injury to the domestic industry is thus fundamental to the
imposition and maintenance of an anti-dumping duty under the Anti-Dumping Agreement.
118. We therefore agree with Mexico that this fundame ntal principle is expressed in Article VI of
the GATT 1994 and in various provisions of the Anti-Dumping Agreement. The United States does
not question this principle per se. However, this does not mean that a causal link between dumping
and injury is required to be established anew in a "review" conducted under Article 11.3 of the Anti-
Dumping Agreement. This is because the "review" contemplated in Article 11.3 is a "distinct" process
with a "different" purpose from the original investigation.165
119. The Appellate Body has underlined that "[t]he nature of the determina tion to be made in a
sunset review differs in certain essential respects fro m the nature of the determination to be made in
an original investigation", and that "[t]he di sciplines applicable to original investigations cannot,
therefore, be automatically imported into review processes."166
120. As the Appellate Body has explained in US – Oil Country Tubular Goods Sunset Reviews:
Original investigations require an investigating authority, in order to
impose an anti-dumping duty, to make a determination of the
existence of dumping in accordance wi th Article 2, and subsequently
to determine, in accordance with Article 3, whether the domestic
industry is facing injury or a threat thereof at the time of the original
investigation. In contrast , Article 11.3 requires an investigating
authority, in order to maintain an anti-dumping duty, to review an
anti-dumping duty order that has already been established—
following the prerequisite determin ations of dumping and injury—so
as to determine whether that order should be continued or revoked.
167
121. An anti-dumping duty comes into existence fo llowing an original investigation that has
established a causal link between dumping and injury to the domestic industry in accordance with the
requirements of Article 3 of the Anti-Dumping Agreement, including, in particular, the requirement
that the injury caused by any other known factor not be attributed to dumping. In contrast, when a
"review" takes place under Article 11.3, and it is determined that the "expiry of the duty" would
"likely ... lead to continuation or recurrence of du mping and injury", it is reasonable to assume that,

164We recognize that, in a sunset review determination under Article 11.3, it could be properly
determined that there may be a likelihood of recurrence of injury if the duty expires.
165Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 359.
166Ibid., paras. 328 and 359 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset
Review, paras. 106-107; and Appellate Body Report, US – Carbon Steel, para. 87). (emphasis added)

where dumping and injury continues or recurs, the causal link between dumping and injury,
established in the original investigation, would exist and need not be established anew.
122. We envisage a variety of circumstances that may exist when a review under Article 11.3 is
conducted. For instance, dumping may have continued throughout the life of the anti-dumping duty
order and the domestic industry may no t have recovered despite the existence of the duty. In such a
case, the injury may continue or may even be aggr avated if the duty is terminated. There may be
other cases where dumping is continuing, with signif icant import volumes and dumping margins, but
the domestic industry may have recovered by the time of the review because of the effect of the anti-
dumping duty. It may be, however, that, if the duty is revoked, the injury may recur. There may be
yet other cases where the dumping may have ceased, with or without imports also having ceased, and
the domestic industry also may have recovered by th e time of the review. In such cases, convincing
evidence will be needed to establis h that revocation of the duty would be likely to lead to both
recurrence of imports (if imports had ceased) and of dumping, as well as recurrence of injury to the
domestic industry. In the types of cases indicat ed above, there may be further variations in
circumstances, such as, for ex ample, when the dumping or im ports ceased during the intervening
period; the magnitude of dumped imports; dumping margins and the price effects if dumping is
continuing; the extent to which the domestic i ndustry has recovered; and the relative shares of
imports and domestic production in the market.
123. As we stated earlier, in a sunset review de termination under Article 11.3, the nexus to be
demonstrated is between "the expiry of the duty" on the one hand, and the likelihood of "continuation
or recurrence of dumping and injury" on the other hand.
168 We note that Article 11.3, in fact,
expressly postulates that, at the time of a sunset review, dumping and injury, or either of them, may
have ceased, but that expiration of the duty may be likely to lead to "recurrence of dumping and
injury". Therefore, what is ess ential for an affirmative determinat ion under Article 11.3 is proof of
likelihood of continuation or recurrence of dumping a nd injury, if the duty e xpires. The nature and
extent of the evidence required for such proof will vary with the facts and circumstances of the case
under review. Furthermore, as the Appellate Body has emphasized previously, determinations under
Article 11.3 must rest on a "sufficient factual basis" that allows the investigating authority to draw
"reasoned and adequate conclusions".
169 These being the requirements for a sunset review under
Article 11.3, we do not see that the requirement of establishing a causal link between likely dumping
and likely injury flows into that Article from other provisions of the GATT 1994 and the

168See supra, para. 108.
169See, for example, Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews ,
para. 311.

Anti-Dumping Agreement. Indeed, adding such a requirement w ould have the effect of converting the
sunset review into an original investigation, which cannot be justified.
124. Our conclusion that the establishment of a causal link between likely dumping and likely
injury is not required in a sunset review determ ination does not imply that the causal link between
dumping and injury envisaged by Article VI of the GATT 1994 and the Anti-Dumping Agreement is
severed in a sunset review. It only means that re -establishing such a link is not required, as a matter
of legal obligation, in a sunset review.
125. For these reasons, we are unable to agree with Me xico that there is a requirement to establish
the existence of a causal link between likely dumping and likely injury, as a matter of legal obligation,
in a sunset review determination under Article 11.3, and that, therefore, the USITC was required to
demonstrate such a link in making its likelihood-of-inj ury determination in the sunset review at issue
in this dispute.
126. Mexico further argues that "[t]he Panel's finding that the [USDOC's] likelihood of dumping
determination with respect to Mexican OCTG impor ts was WTO-inconsistent necessarily meant that
the [USITC's] likelihood of injury dete rmination was also WTO-inconsistent." 170 According to
Mexico, "a WTO-consistent determination of likely dumping is a legal predicate to a WTO-consistent
determination of likely injury." 171 Mexico posits that, "[a]s there was no WTO-consistent
determination of likely dumping of OCTG fro m Mexico, the [USITC's] determination was
concomitantly WTO-inconsistent."172
127. Mexico offers no textual support for this cl aim. We recognize that a WTO-consistent
likelihood-of-dumping determination and a WTO-consistent determin ation of likelihood-of-injury are
two pillars on which a WTO-consistent sunset review determination under Article 11.3 rests. If either
of them is flawed, the sunset review determination would be inconsistent with Article 11.3. But, if the
likelihood-of-dumping determinati on is flawed, it does not follow that the likelihood-of-injury
determination is ipso facto flawed as well. The two inquiries are separate, regardless of whether
they are carried out by the same or different aut horities in a Member's administrative system. If an
affirmative likelihood-of-dumping determination is later found to be flawed, we fail to see why this
should lead automatically to the conclusion that the likelihood-of-injury determination must also be
regarded as flawed. However, if a likelihood- of-injury determination rests upon a likelihood-of-

171Ibid., para. 54.
172Ibid.

dumping determination that is later found to be flawed, the former determination may also be found to
be WTO-inconsistent, after a proper examination of the facts of that determination.
128. Mexico further argues that the rulings of th e Dispute Settlement Body (the "DSB") in US –
Oil Country Tubular Goods Sunset Reviews , "combined with the Panel's finding in [the case at hand],
establish that there was no WTO-consistent basis for a finding of likely dumping for any Member
that was included in the USITC's cumulative analysis."
173 The United States submits that Mexico's
proposition relies on new facts and is therefore be yond the scope of Appellate Body review. The
United States adds that "not all of the likelihoo d of dumping determinations Mexico references have
even been subject to WTO dispute settlement."174
129. We observe, first, that the DSB rulings in US – Oil Country Tubular Goods Sunset Reviews
cannot, in and of themselves, "establish" that there was no WTO-consistent basis for the USITC's
likelihood-of-injury determination in the case be fore us now, even though there may be factual
similarities between the two cases. 175 More importantly, however, as we have explained above,
Mexico's premise for this assertion, namely, that "a WTO-consistent determination of likely dumping
is a legal predicate to a WTO-consistent determination of likely injury"176, is not legally tenable.
130. We turn next to Mexico's claim under Article 11 of the DSU with respect to causation.
C. Claims under Article 11 of the DSU
131. On appeal, Mexico submits that the Panel fa iled to conduct an "objective assessment of the
matter" under Article 11 of the DSU by failing to address Mexico's argument that the "inherent" and
"fundamental causation principles" of Article VI of the GATT 1994 and the Anti-Dumping
Agreement apply to sunset reviews as well, regardless of the applicability of Article 3.5 to sunset
reviews.177 Mexico submits that "[t]he Panel record shows that, despite Mexico's repeated
explanation and elaboration, the Panel simply igno red [Mexico's] argument and failed to make any
assessment of it." 178 Mexico maintains that Article 11 of th e DSU "does not allow Panels to ignore

173Mexico's appellant's submission, para. 57. (original emphasis)
175See Mexico's appellant's submission, table at para. 57.
176Ibid., para. 54.
177Ibid., para. 66.
178Ibid., para. 67.

arguments in this manner, and then claim that an insufficient explanation or elaboration justifies a
decision not to assess the argument."179
132. The United States refers to the ruling of the Appellate Body in Dominican Republic – Import
and Sale of Cigarettes and argues that "Mexico must show that the Panel's findings that Mexico had
failed to substantiate its assertions were in e rror and prevented the Panel from making an objective
assessment of the matter." 180 According to the United States, Me xico has not done so. The United
States submits that "[t]he Panel objectively conclude d that Mexico did no more than make assertions
about the relevance of Article VI of th e GATT 1994 and Article 11.1 of the Antidumping
Agreement."181
133. Mexico points to three passages in the Panel reco rd in which it allegedly provided arguments
regarding its claim that the USITC was required to establish the existence of a causal link between
likely dumping and likely injury irrespective of the applicability of Article 3.5. First, Mexico refers to
a passage in its first written submission to the Panel. 182 Secondly, it points to a passage in its closing
statement following the first meeting with the Panel. 183 Finally, Mexico points to its comments in
response to the Panel's questioning on the re levance of the Appellate Body Report in US – Oil
Country Tubular Goods Sunset Reviews .184 In these passages, there are assertions, but we see no
explanation or elaboration by Mexico that the cau sal link must be established in a sunset review
irrespective of the applicability of Article 3.5, which the Panel found di d not apply to sunset
reviews.185 We are, therefore, not convinced that the Pa nel erred in concluding that Mexico "did not
explain or elaborate on its bare assertion that Artic le 11.1 of the AD Agreement and Article VI of the
GATT 1994 establish 'inherent' causation requirements, parallel to but independent of those in
Article 3.5".186
134. In any event, as the Appellate Body has stated in Dominican Republic – Import and Sales of
Cigarettes, "there is no obligation upon a panel to consider each and every argument put forward by

180United States' appellee's submission, para. 8 (referring to Appellate Body Report, Dominican
Republic – Import and Sale of Cigarettes, para. 125).
181Ibid., para. 16.
182Mexico's appellant's submission, para. 42 (referring to Mexico's first written submission to the Panel,
para. 241).
183Ibid., para. 43 (quoting Mexico's closing statement at the first meeting of the Panel).
184Ibid., para. 46 (quoting Mexico's response to the Panel's request for comments on Appellate Body
Report, US – Oil Country Tubular Goods Sunset Reviews).
185Panel Report, para. 7.117.

the parties in support of their respective cases, so long as it completes an objective assessment of the
matter before it, in accordance with Article 11 of the DSU."
187 Moreover:
So long as it is clear in a panel report that a panel has reasonably
considered a claim, the fact that a particular argument relating to that
claim is not specifically addressed in the "Findings" section of a
panel report will not, in and of itself, lead to the conclusion that that
panel has failed to make the "objective assessment of the matter
before it" required by Article 11 of the DSU.
188 (emphasis added)
135. Based on our review of the Panel record, we ar e of the view that the Panel did "reasonably
consider Mexico's claim", and that the Panel was not under an obligation to address specifically in its
findings Mexico's argument regarding "inherent" cau sation requirements, particularly when the Panel
had reason to conclude that Mexico had not explai ned or elaborated upon its bare assertion in this
respect.
136. For all these reasons, we find that the Panel did not act incons istently with Article 11 of the
DSU in its assessment of Mexico's arguments on causation.

V. Cumulation in Sunset Reviews
A. Introduction
137. In its likelihood-of-injury determination, the USITC found that revocation of the anti-
dumping duty orders on OCTG from Argentina, Italy, Japan, Korea, and Mexico would be likely to
lead to a continuation or recurrence of injury. In other words, the USITC based its determination that
injury would be likely to continue or recur on the effects of imports from all the sources, and not only
the effects of the imports from Mexico. Mexico challenged the USITC's decision to conduct a
cumulative assessment in the sunset review at issue.
138. The Panel began its analysis by observing that "the text of Article 11.3 does not mention
cumulation at all" and that other provisions of the Anti-Dumping Agreement also contain no "direct
guidance on this matter". 189 Referring to the Appellate Body Report in US – Oil Country Tubular
Goods Sunset Reviews , the Panel found that "the silence of the AD Agreement on the question of
cumulation in sunset reviews is pr operly understood to mean that cu mulation is permitted in sunset

187Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes , para. 125 (footnote
omitted).
189Panel Report, para. 7.147.

reviews."190 The Panel also found that cumulation, when used in sunset reviews, does not need to
satisfy the conditions of Article 3.3 of the Anti-Dumping Agreement, because that provision "on its
face establishes conditions for the use of cumulative analysis which apply only in original anti-
dumping investigations."191 As a result, the Panel concluded th at the USITC's cumulative analysis in
the sunset review at issue was not incons istent with Articles 3.3 and 11.3 of the Anti-Dumping
Agreement.
139. Mexico challenges this conclusion of the Panel on several grounds 192, including that the Panel
disregarded certain of Mexico's arguments and based its conclusion solely on its finding that
Article 3.3 does not apply to sunset reviews. We address these allegations of error in turn below,
beginning with Mexico's assertion that the Panel acted inconsistently with Article 11 of the DSU.
B. Claims under Article 11 of the DSU
140. In response to comments submitted by Mexico at the interim review stage of the Panel
proceedings, the Panel stated that:
Mexico requests that we make uns pecified changes to the report,
asserting that the Panel "failed to address Mexico's third cumulation
argument". In this context, Mexico maintains that the Panel failed to
make legal or factual findings regarding "inherent obligations"
governing cumulation. ... While it is true that Mexico requested a
finding in this regard, we found that Article 3.3 did not apply in
sunset reviews, and that the re quirements regarding cumulation in
that provision therefore did not apply. Mexico did not explain or
elaborate on its bare assertion that Article 11.3 somehow establishes
"inherent" obligations for cumulation independent of those in
Article 3.3. In the absence of any basis for such findings, we did not
consider it necessary to address this aspect of Mexico's argument.
193
141. On appeal, Mexico argues that the Panel acted inconsistently with Article 11 of the DSU by
not making findings with respect to Mexico's argument that, regardless of the applicability of
Article 3.3 to sunset reviews, "the USITC likely injury determination failed to satisfy the requirements
applicable to the conduct of an y cumulative injury assessment."
194 Mexico submits that it "fully

190Panel Report, para. 7.148 (referring to Appellate Body Report, US – Oil Country Tubular Goods
Sunset Reviews, para. 294).
192See Mexico's appellant's submission, para. 70.
193Panel Report, para. 6.19.
194Mexico's appellant's submission, para. 73. We refer to this argument below as Mexico's "third
cumulation argument", which is the term that Mexico used before the Panel. In response to questioning at the
oral hearing, Mexico further clarified that its thir d cumulation argument was that, as the USITC chose to
cumulate, it was required to comply with the obligations set forth in Article 3.3 of the Anti-Dumping Agreement.

explained the legal and factual basis to support its position" and refers, in th is respect, to several
explanations it allegedly provided to the Panel, ar guing that these explanations were disregarded by
the Panel.
195
142. The United States, in contrast, submits that the Panel was correct in concluding that "Mexico
had failed to 'explain or elaborate on its bare assertion that Article 11.3 somehow establishes
"inherent" obligations for cumulation i ndependent of those in Article 3.3.'" 196 The United States adds
that Mexico does not explain, even in its appella nt's submission, why conditions for cumulation exist
"irrespective of the applicability of Article 3.3" to Article 11.3.197
143. Based on our reading of the Panel record, we believe that the Panel "reasonably considered"
Mexico's claim regarding cumulation and that it was not under an obligation to address specifically in
its findings Mexico's argument regard ing inherent cumulation requirements. 198 As in the case of
Mexico's allegation with regard to causation, we see no reason to disturb the Panel's conclusion that
"Mexico did not explain or elaborate on its bare assertion that Article 11.3 somehow establishes
'inherent' obligations for cumulation i ndependent of those in Article 3.3." 199 We are therefore not
persuaded that the Panel acted inconsistently with Article 11 of the DSU in its assessment of Mexico's
arguments on cumulation.
C. Whether the Panel Erred in Its Interpreta tion and Application of Article 11.3 with
Respect to Cumulation
1. Was the Panel's Finding Regarding C onsistency with Article 11.3 Based
Solely on Its Finding that Article 3.3 Does Not Apply to Sunset Reviews?
144. We turn now to Mexico's allegation that the Panel erred in its interpretation and application of
Article 11.3 of the Anti-Dumping Agreement with respect to cumulation.
145. Mexico contends that the Panel "simply assume d" that, "because ... Article 3.3 does not apply
to sunset reviews, the USITC's cumulative injury determination c ould not be inconsistent with
Article 11.3."200 Mexico submits that the Panel erred b ecause it "wrongly assumed that its findings
regarding two of Mexico's cumulation arguments we re sufficient to address Mexico's separate and

195Mexico's appellant's submission, para. 73 and footnote 52 thereto.
197Ibid. (quoting Mexico's appellant's submission, para. 83).
198See supra, para. 134.
199Panel Report, para. 6.19.

wholly independent argument that was not linked to Article 3.3." 201 In addition, Mexico submits that
"the Panel did not evaluate Mexico's arguments in terms of the requirements of Article 11.3."202
146. We observe, first, that the Panel did not "simply assume" that, "because ... Article 3.3 does
not apply to sunset reviews, the USITC's cumulativ e injury determination co uld not be inconsistent
with Article 11.3." 203 Rather, the Panel found that the text of Article 11.3 of the Anti-Dumping
Agreement does not speak to whether cumulation is permitted beyond the context of original
investigations and noted that other provisions of the Anti-Dumping Agreement contain no "direct
guidance" on this matter. 204 The Panel then disagreed with Mexi co's view that "to allow cumulation
in sunset reviews ... would be inconsistent w ith the plain meaning and object and purpose of
Article 11.3."205 The Panel further emphasized that "the silence of the AD Agreement on the question
of cumulation in sunset reviews is properly understo od to mean that cumulation is permitted in sunset
reviews."206 In its analysis of Article 11.3 of the Anti-Dumping Agreement, the Panel also addressed
and rejected Mexico's argument that the reference in that provision to "any anti-dumping duty", in the
singular, indicates an intent not to authorize cumula tion in sunset reviews. In the Panel's view, the
reference in Article 11.3 to " any anti-dumping duty" has "both singular and plural meanings", and it
could therefore apply to an anti-dumping measure covering more than one country. 207 The Panel also
found no support for Mexico's assertion that the object and purpose of "the sunset provisions, or the
AD Agreement as a whole, suggests that cumulation is prohibited."
208 The Panel stated that, "[e]ven
assuming Mexico were correct in asserting that the object and purpose of Article 11.3 is to 'ensure that
anti-dumping measures would not continue in perpetui ty', a cumulative analysis does not vitiate that
object and purpose."209
147. In the light of this extensive reasoning by the Panel, we do not agree with Mexico that the
Panel "simply assumed" that, "because ... Article 3.3 does not apply to sunset reviews, the USITC's
cumulative injury determination could not be inconsistent with Article 11.3."210 We also do not agree
with Mexico's assertion that "the Panel did not evaluate Mexico's arguments in terms of the

202Ibid.
203Ibid.
204Panel Report, para. 7.147.
205Ibid.
206Ibid., para. 7.148.
207Ibid., para. 7.149 (original emphasis) (referring to The New Shorter Oxford English Dictionary ,
L. Brown (ed.) (Clarendon Press, 1993).
208Ibid.
209Ibid.

requirements of Article 11.3."
211 Clearly it did. The Panel's analysis is based on the text of that
provision, including its context and the object and purpose of the Anti-Dumping Agreement.
2. "Threshold Finding" Regarding Simultaneous Presence of Subject Imports
148. Mexico suggests that the USITC was under a sep arate obligation to "ensure that cumulation
was appropriate in light of the conditions of competition". 212 To do that, the USITC was, in Mexico's
view, "required" to make "a threshold finding th at the subject imports would be simultaneously
present in the U.S. market". 213 According to Mexico, the Panel erred in declining "to examine and
make a finding on this issue".214
149. The United States argues that Mexico "fails to identify where Mexico requested such a
finding, or where the Panel declined to make such a finding."215 In any event, the Panel found that the
Anti-Dumping Agreement "simply does not prescribe a methodology for cumulation in sunset
reviews".216 Hence, according to the United States, "Me xico's contention that the Panel erred in
failing to determine whether a sunset review under Article 11.3 requires a threshold finding of any
kind is just wrong." 217 According to the United States, "[t] he Panel implicitly found that no such
thresholds exist."218
150. Mexico offers no textual support for its propos ition that the USITC was required, in making
its sunset review determination, to set out a "threshold finding" 219 regarding the simultaneous
presence of subject imports. On its face, Article 11.3 makes no mention of such a "threshold finding".
The immediate context of Article 11.3, in paragraphs 1, 2, 4, and 5 of Article 11, also does not reveal
any such requirement. Even Article 3.3, which is "the only provision in the Anti-Dumping
Agreement that specifically addresses the practice of cumulation" 220 in an original investigation, does
not require investigating authorities to make a threshold finding regarding cumulation.

212Ibid., p. 23, heading II.B.2.c.i.
213Ibid.
214Ibid., para. 85.
216Ibid., para. 58.
217Ibid.
218Ibid.
220Appellate Body Report, EC – Tube or Pipe Fittings, para. 108.

151. As the Appellate Body stated in US – Corrosion-Resistant Steel Sunset Review:
... Article 11.3 does not expressly prescribe any specific methodology
for investigating authorities to use in making a likelihood
determination in a sunset review. Nor does Article 11.3 identify any
particular factors that authorities must take into account in making
such a determination.
221 (footnote omitted)
152. Given that Article 11.3 does not prescribe any pa rticular methodology to be followed by an
investigating authority in conducting a sunset revi ew, we fail to see why the USITC was required,
under that provision, to follow the specific step of making a "threshold finding" on the simultaneous
presence of subject imports before resorting to cumulation.
153. This is not to say that it is never necessar y for an investigating authority, performing a
cumulative analysis of injury caused by imports fro m all sources, to examine whether imports are "in
the market together and competing against each other". 222 In order to arrive at a reasoned and
adequate conclusion, an examination of whether im ports are in the market together and competing
against each other may, in certain cases, be need ed in a likelihood-of-injury determination where an
investigating authority chooses to cumulate the impor ts from several countries. But the need for such
an examination flows from the particular facts and circumstances of a given case and not from a legal
requirement under Article 11.3.
3. Whether the USITC Had a Sufficient Fact ual Basis to Find that the Subject
Imports Would Be Simultaneously Present in the Domestic Market
154. Mexico contends that "nowhere in [the US ITC's] analysis is there positive evidence
demonstrating that imports from Mexico, Argentina, Italy, Korea, and Japan would be present in the
United States market at the same time ... if the order were revoked." 223 According to Mexico,
information from the time of the original inves tigation "cannot replace the need for a prospective
analysis of what is likely to happen if the order were revoked." 224 Moreover, in Mexico's view, "the
fact that imports may have been simultaneously presen t in the U.S. market at the time of the original
investigation is not positive evidence that such impor ts would be likely to be simultaneously present
in the U.S. market in the event of revocation of the order."225

221Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 123.
222Mexico's second written submission to the Panel, para. 192 (quoted in Mexico's appellant's
submission, para. 82).
225Ibid.

155. The United States argues that Mexico's "conclu sion does not withstand the application of
logic."
226 According to the United States, "[i]f imports were simultaneously present before the order
and imports were simultaneously present after the or der, it is unclear how Mexico arrives at the
conclusion that imports would not be simultaneously present if the order were revoked."227
156. As we have stated above, an investigating authority is not required, under Article 11.3 of the
Anti-Dumping Agreement , to make a separate threshold findi ng regarding simultaneous presence of
imports. We also note that "simultaneous presence" was only one of several factors that the USITC
examined in deciding to conduct a cumulative ass essment of imports. As we understand it, the
USITC's decision to cumulate was based mainly on an analysis of four factors: (i) whether subject
imports from any of the subject countries were lik ely to have an adverse impact on the domestic
industry; (ii) whether the imports from Argentina, Italy, Korea, Japan, and Mexico, and the domestic
like products, are fungible; (iii) whether the imports from Argentina, Italy, Korea, Japan, and Mexico,
and the domestic like products, would likely be sold through similar channels of distribution if the
orders were revoked; and (iv) whether the imports from all the subject countries and the domestic like
products would be sold in the same geographic markets and simultaneously be present in the market if
the orders were revoked.
157. With respect to simultaneous presence and sales in the same geographic market, the USITC
found that "[e]vidence gathered ... indicates that most large distributors are headquartered in the
Houston, Texas, area, though they may have s upply depots in other parts of the country."
228 T h e
USITC further found that "[t]here is some divisi on of distribution by geographic area, but most
distributors sell nationwide." 229 Moreover, "[i]mporters simila rly reported selling throughout the
continental United States."230 We fail to see why the USITC could not rely on this information in the
context of examining the appropriateness of cumulating subject imports.
158. Mexico suggests that the United States did not conduct "a prospective analysis of what is
likely to happen if the order were revoked". 231 We disagree. In our view, the information collected
by the USITC to support its conclusion regard ing simultaneous presence of imports, which we

227Ibid. (original emphasis)
228Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico—Investigation
Nos. 701-TA-364 and 731-TA-711 and 713-616 (Review): Determination and Views of the Commission,
USITC Publication 3434 (June 2001) (Exhibit MEX-20 s ubmitted by Mexico to the Panel) (the "USITC's
Sunset Determination"), p. 13. (footnote omitted)
229USITC's Sunset Determination, p. 13.
230Ibid.
231Mexico's appellant's submission, para. 87 (referring to Appellate Body Report, US – Carbon Steel ,
para. 88).

acknowledge relates to current market conditions, is relevant as a basis to draw reasoned conclusions
regarding likely future market conditions and to determine "what is likely to happen if the order were
revoked." The fact that the USITC referred, for inst ance, to data showing that most distributors and
importers sell "nationwide", does not, taken alone, mean that the USITC's assessment was not
"prospective".
232 We recall the Appellate Body's finding in US – Oil Country Tubular Goods Sunset
Reviews that "[a] sunset review determination, alth ough 'forward-looking', is to be based on existing
facts as well as projected facts."233 As we see it, in this case, the USITC conducted such a prospective
analysis based on inferences drawn from the evidence on the record.
159. For all these reasons, we do not agree with Me xico that the USITC's approach "does not
reflect a prospective analysis, based on positive evid ence, of whether imports from the five cumulated
countries were likely to be simultaneously present in the market in the event of termination" of the
anti-dumping duty order.234 As the Appellate Body found in US – Oil Country Tubular Goods Sunset
Reviews, "it does not follow from the fact that sunset reviews evaluate likelihood of injury that an
investigating authority will not have an evidentia ry basis for considering whether cumulation is
appropriate in a given case."235
4. The Standard Applied by the USITC
160. Regarding the standard applied by the US ITC for determining simultaneous presence of
imports in the domestic market, Mexico points to the following USITC findings:
Nothing in the record of these review s suggests that if the orders are
revoked subject imports and the domestic like product would not be
simultaneously present in the domestic market.
Therefore, we conclude that there likely would be a reasonable
overlap of competition between the subject imports and the domestic
like product, and among the subject imports themselves, if the orders
are revoked.
236 (emphasis added by Mexico; footnote omitted)
161. According to Mexico, these statements demonstr ate that the USITC "did not apply the legal
standard required by Article 11.3 in connection w ith its assessment of likelihood of simultaneity." 237

233Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 299. (footnote
omitted)
235Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 299. (original
emphasis)
236Mexico's appellant's submission, para. 93 (quoting USITC's Sunset Determination, p. 14).
237Ibid., para. 94.

In Mexico's view, "[b]y requiring a demonstration that the imports 'would not' be simultaneously in
the market, the [USITC] used a standard that is in consistent with Article 11.3 of the Anti-Dumping
Agreement."
238 Mexico adds that "the mere absence of contradictory information is not positive
evidence of what is likely to happen."239
162. Referring to the Appellate Body Report in US – Oil Country Tubular Goods Sunset Reviews ,
the United States argues that there is no "likelihood of simultaneity" standard, as Mexico suggests. 240
The United States adds that the USITC determinati on focused on the existence of simultaneity before
and after the order was imposed, and, in the absen ce of contrary evidence, it was reasonable for the
USITC to conclude that "simultaneous presence of the subject imports would continue if the order
were revoked."241
163. Mexico has misunderstood the Appellate Body Report in US – Oil Country Tubular Goods
Sunset Reviews . In that case, the Appellate Body found that "the 'likely' standard of Article 11.3
applies to the overall determinations regarding du mping and injury" and that "it need not necessarily
apply to each factor considered in rendering th e overall determinations on dumping and injury." 242
Even assuming, arguendo, that it might apply to the USITC's "assessment of likelihood of
simultaneity"243, we do not agree with Mexico that the USITC used a standard that is inconsistent with
Article 11.3 of the Anti-Dumping Agreement "[b]y requiring a demonstration that the imports 'would
not' be simultaneously in the market". 244 Although the USITC made reference to the fact that nothing
in the Panel record indicates that the products w ould not be simultaneously present, it cited other
reasons as well. As noted above, the USITC found, inter alia, that "[e]vidence gathered ... indicates
that most large distributors are headquartered in the Houston, Texas, area, though they may have
supply depots in other parts of the country" and that, although "[t]here is some division of distribution
by geographic area, ... most distributors sell nationwide."
245 The USITC further observed that
"[i]mporters similarly reported selling throughout the continental United States."246

239Ibid. (footnote omitted)
240United States' appellee's submission, para. 60 (referring to Appellate Body Report, US – Oil Country
241Ibid.
242Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 323 (quoted in
United States' appellee's submission, para. 60).
244Ibid.
245USITC's Sunset Determination, p. 13.
246Ibid.

164. We understand Mexico to argue that the USIT C's ultimate conclusion was based on no more
than the USITC's analysis of "simultaneous presence". As noted earlier, this does not appear to be the
case.247 Instead, as we understand it, the USITC used its analysis of "fungibility", "channels of
distribution", and "simultaneous presence" to suppor t its ultimate conclusion that "there likely would
be a reasonable overlap of competition between the subject imports and the domestic like product" if
the orders were revoked. 248 The USITC based this analysis on data relating to current market
conditions and on inferences it drew from that data. We do not, therefore, agree with Mexico that the
USITC had only a "mere absence of contradictory information" upon which to rely.249
5. Alleged Requirement to Identify a Ti me-frame within which Imports Would
Be Simultaneously Present
165. We turn next to Mexico's contention that th e USITC's likelihood-of-injury determination is
inconsistent with Article 11.3 "because [the USIT C] failed to identify a time-frame within which
subject imports would be simultaneously present in the U.S. market and the corresponding likely
injury would take place."250
166. On its face, Article 11.3 does not establish a re quirement for an investigating authority to
specify the time-frame within which the "simu ltaneous presence" of subject imports and the
corresponding likely injury would occur. As the Appellate Body found in US – Oil Country Tubular
Goods Sunset Reviews, "the mere fact that the timeframe of an injury analysis is not presented in a
sunset review determination is not suffi cient to undermine that determination." 251 The Appellate
Body noted in that case that a determination of likelihood-of-injury "can be properly reasoned and rest
on a sufficient factual basis even though the timefra me for the [likelihood-of-injury] determination is
not explicitly mentioned." 252 As long as a likelihood-of-injury determination rests on a sufficient
factual basis, the mere fact that an investiga ting authority does not specify the time-frame within
which the "simultaneous presence" of subject imports and the corresponding injury would be likely to
occur, does not, in our view, undermine that determination. Therefore, we do not agree with Mexico
that the USITC's likelihood-of-injury determinati on is inconsistent with Article 11.3 of the Anti-
Dumping Agreement because the USITC did not indicate the time period that it considered to be
applicable for its likelihood-of-injury determination.

247Supra, para. 156.
248USITC's Sunset Determination, p. 14.
250Ibid., p. 27, heading II.B.2.c.iv.
251Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 364.
252Ibid.

6. Applicability of Article 3.3 of the Anti-Dumping Agreement

167. We now return to the merits of the "third cumulation argument" of Mexico. 253 Mexico argues
that, having "decided to cumulate Mexican imports with imports from the other four countries that
were cumulated in the original investigation", the USITC "was required to do so consistently with the
requirements of Article 3.3", regardless of whethe r that provision "appl[ies] directly to sunset
reviews".254 Mexico purports to find support for its position in the Appellate Body Report in US –
Corrosion-Resistant Steel Sunset Review , where the Appellate Body stated that, "should investigating
authorities choose to rely upon dumping margins in making their likelihood determination, the
calculation of these margins must conform to the disciplines of Article 2.4." 255 We understand
Mexico to suggest that what is relevant for cal culation of dumping margins is also relevant for
determination of injury.
168. The United States refers to the finding of the Appellate Body in US – Oil Country Tubular
Goods Sunset Reviews that Article 3.3 of the Anti-Dumping Agreement does not apply to sunset
reviews. The United States emphasizes that, "if Article 3.3 does not apply, then neither do its
conditions."
256
169. Article 3.3 of the Anti-Dumping Agreement provides, in relevant part, that:
Where imports of a product from more than one country are
simultaneously subject to anti-dumping investigations, the
investigating authorities may cumu latively assess the effects of such
imports only if they determine that ... a cumulative assessment of the
effects of the imports is appropriate in light of the conditions of
competition between the imported pr oducts and the conditions of
competition between the imported products and the like domestic
product.
170. The Appellate Body has previously found that Ar ticle 3.3 "speaks to the situation '[w]here
imports of a product from more than one country are simultaneously subject to anti-dumping
investigations'"
257; that the "text of Article 3.3 plainly limits its applicability to original

253See supra, footnote 194.
255Ibid., para. 101 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
para. 127).
256United States' appellee's submission, para. 22 (referring to Appellate Body Report, US – Oil Country
257Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 294. (emphasis
added)

investigations"258; and that "the conditions of Article 3.3 do not apply to likelihood-of-injury
determinations in sunset reviews." 259 Moreover, the Appellate Body has observed that "original
investigations and sunset reviews are distinct processes with different purposes. The disciplines
applicable to original investigations cannot, th erefore, be automatically imported into review
processes."260 It is clear from these statements that Article 3.3 does not apply per se in sunset
reviews under Article 11.3.
171. We do not, however, suggest that, when an au thority chooses to cumulate imports in a
likelihood-of-injury determination under Article 11.3, it is never necessary for it to determine whether
such a cumulative assessment is appropriate in the li ght of the conditions of competition in the market
place. In particular cases, a cumulative assessment of the effects of the imports may be found to be
inappropriate and, therefore, inconsistent with th e fundamental requirement that a determination rest
on a sufficient factual basis and reasoned and adequate conclusions.
261 However, this fundamental
requirement derives from the obligations under Article 11.3 itself, and not from the conditions
specified in Article 3.3.
172. Referring to the Appellate Body Report in US – Corrosion-Resistant Steel Sunset Review ,
Mexico argues that, having "decided to cumulate Me xican imports with imports from the other four
countries that were cumulated in the original investigation", the USITC "was required to do so
consistently with the requirements of Article 3.3".
262 We note, however, that the Appellate Body
found in US – Oil Country Tubular Goods Sunset Reviews that the "text of Article 3.3 plainly limits
its applicability to original investigations" 263; and that "the conditions of Article 3.3 do not apply to
likelihood-of-injury determinations in sunset reviews." 264 The fact that an investigating authority has
not undertaken all the analyses detailed in Article 3.3 is not, by itself, sufficient to undermine a
determination under Article 11.3.
173. In the light of these considerations, we uphold the Panel's findings, in paragraphs 7.150,
7.151, and 8.8 of the Panel Report, that the US ITC's decision to conduct a cumulative assessment of

258Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 301.
259Ibid., para. 302.
260Ibid., para. 359 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
paras. 106-107; and Appellate Body Report, US – Carbon Steel, para. 87). (footnote omitted)
261See Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 284.
262Mexico's appellant's submission, para. 103, and footnote 80 to para. 101 (referring to Appellate Body
Report, US – Corrosion-Resistant Steel Sunset Review, para. 127).
263Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 301.
264Ibid., para. 302.

imports in making its likelihood- of-injury determination was not inconsistent with Articles 3.3
and 11.3 of the Anti-Dumping Agreement.

VI. Margins of Dumping in Sunset Reviews
174. Having found that the USDOC's likelihood-of-dum ping determination was inconsistent with
Article 11.3 of the Anti-Dumping Agreement
265, the Panel exercised judicial economy with regard to
Mexico's claims against that determination under Ar ticle 2 of that Agreement. The Panel added that,
"in any event, as it is clear that USDOC did not rely on historical dumping margins in this case, but
solely on import volumes, we would not have made any findings concerning Article 2 even if we had
reached a different conclusion on the adequacy of USDOC's consideration of the evidence."
266 In this
respect, the Panel referred to th e Appellate Body Report in US – Corrosion-Resistant Steel Sunset
Review, where the Appellate Body stated that:
... investigating authorities did not have to "calculate or rely on
dumping margins in determining th e likelihood of continuation or
recurrence of dumping. However, should investigating authorities
choose to rely upon dumping margins in making their likelihood
determination, the calculation of these margins must conform to the
disciplines of Article 2.4."267
175. The Panel further explained that:
... with respect to Mexico's claims concerning the margin of dumping
reported to the USITC as the margin likely to prevail, we recall that
... USDOC did not rely on this margin in making its determination of
likelihood of continuation or recurrence of dumping. We can find no
provision of the AD Agreement, and Mexico has cited none, that
requires such "reporting" of a margin likely to prevail—this appears
to be an element of US law that is not derived from any element of
the AD Agreement. Therefore, we do not consider it either necessary
or appropriate to address Mexico's claims under Articles 2 and 6 of
the AD Agreement regarding the margin of dumping reported to the
USITC.
268
176. On appeal, Mexico argues that the Panel acted inconsistently with Article 11 of the DSU in
exercising judicial economy with regard to Mexico's claims under Article 2 of the Anti-Dumping
Agreement. Mexico alleges that, in doing so, "the Panel reasoned that, because the Anti-Dumping

265Panel Report, para. 7.80.
266Ibid., para. 7.81.
267Ibid., para. 7.82 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
para. 127).
268Ibid., para. 7.83.

Agreement does not require authorities to determin e and report a margin likely to prevail, an
authority's determination of a margin likely to prevail cannot contravene the Anti-Dumping
Agreement."269
177. The United States agrees with the Panel's conclusion that the Anti-Dumping Agreement does
not require investigating authorities to determine or consider a "margin likely to prevail" in the
context of a likelihood-of-dumping determination. In this respect, the United States notes that "[t]he
Appellate Body has recognized that there is ' no obligation under Article 11.3 for investigating
authorities to calculate or rely on dumping margins in determining the likelih ood of continuation or
recurrence of dumping.'" 270 Accordingly, the United States agrees with the Panel that, "[i]n a case
such as this one, where the United States acknowledges that USDOC explicitly relied solely on import
volumes in making its determination, ... there can be no basis for a finding of violation of Article 2" of
the Anti-Dumping Agreement.271
178. In our view, the Panel did not commit an erro r of law in deciding to exercise judicial
economy with regard to the issue of whether the US DOC determination was consistent with Article 2,
as it had already found that determination to be inconsistent with Article 11.3 of the Anti-Dumping
Agreement. In Canada – Wheat Exports and Grain Imports , the Appellate Body found that the
practice of judicial economy "allows a panel to re frain from making multiple findings that the same
measure is inconsistent with various provisions when a single, or a certain number of findings of
inconsistency, would suffice to resolve the dispute." 272 Mexico has not explained why an additional
finding on Mexico's claim under Article 2 of the Anti-Dumping Agreement is necessary to resolve
the dispute.273 And we find no such need.274
179. In any event, we note that Mexico's arguments are premised on the assumption that the United
States "used" a dumping margin in the context of the sunset review at issue.275 Thus, Mexico submits,
for instance, that the USDOC's "reliance on a flawed margin for purposes of its likelihood of dumping
determination, and its reporting of a flawed marg in of dumping likely to prevail to the [USITC],

270United States' appellee's submission, para. 69 (quoting Appellate Body Report, US – Corrosion-
272Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 133. (original emphasis;
footnote omitted)
273See Appellate Body Report, Australia – Salmon, para. 223.
274For the same reason, we also do not find it n ecessary to consider Mexico's arguments, in
paras. 119-126 of its appellant's submission, related to Articles 1 and 18.3 of the Anti-Dumping Agreement.
275Mexico's response to questioning at the oral hearing. See also Mexico's appellant's submission,
para. 120.

tainted both the [USDOC's] and the [USITC's] likelihood determinations."
276 Although the USDOC
"calculated" dumping margins for OCTG, the Panel found that "it is clear that USDOC did not rely
on historical dumping margins ... , but solely on import volumes" 277 in making its determination of
likelihood of continuation or recurre nce of dumping in the sunset review at issue. Hence, we do not
see how a margin that the USDOC did not "rely upon" could taint the USITC's and the USDOC's
determinations in the context of the OCTG sunset review at issue.
180. Moreover, the Panel's finding that the USDOC did not rely on historical dumping margins is
a factual finding. No reason was given to us why we should "interfere" 278 with this finding by the
Panel. Nor has Mexico pointed to any evidence in the Panel record to suggest that the USITC relied
on or otherwise factored in the margin of dumping likely to prevail that was reported to it by the
USDOC. Also, the Panel Report contains no factual findings regarding this issue.
181. As a separate matter, we refer to Mexico's ch aracterization of the finding in paragraph 127 of
the Appellate Body Report in US – Corrosion-Resistant Steel Sunset Review . According to Mexico,
the Appellate Body clarified in that appeal that , when an investigating authority "uses a specific
methodology that the Anti-Dumping Agreement does not require, the authority must not apply that
methodology in a manner that otherwise conflicts with the Agreement."
279 In fact, the Appellate Body
found in US – Corrosion-Resistant Steel Sunset Review that, "should investigating authorities
choose to rely upon dumping margins [in the context of a sunset review determination], the
calculation of these margins must conform to the disciplines of Article 2.4." 280 Thus, the Appellate
Body Report in US – Corrosion-Resistant Steel Sunset Review does not stand for the proposition that
a WTO-inconsistent methodology used for the calculation of a dumping margin will, in and of itself,
taint a sunset review determinati on under Article 11.3. The only way the use of such a methodology
would render a sunset review dete rmination inconsistent with Artic le 11.3 is if the investigating
authority relied upon that margin of dumping to support its likelihood-of-dumping or likelihood-of-
injury determination.
182. In our view, it has not been established that the Panel acted inconsistently with Article 11 of
the DSU in not addressing Mexico's claims under Article 2 of the Anti-Dumping Agreement.

277Panel Report, para. 7.81. (emphasis added)
278See Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 170.
279Mexico's appellant's submission, paras. 114-115 (referring to Appellate Body Report, US –
Corrosion-Resistant Steel Sunset Review, para. 127).
280Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 127. (emphasis added)

VII. The "Legal Basis" for Continuing Anti-Dumping Duties
183. The Panel found, in paragraphs 7.80 and 8.2 of the Panel Report, that the USDOC acted
inconsistently with Article 11.3 of the Anti-Dumping Agreement in its review of the anti-dumping
duty order on OCTG from Mexico. The United Stat es has not appealed this finding. However,
Mexico argues that the Panel did not fulfil its obligations under Article 11 of the DSU because it
failed to find, in addition to its findings in paragr aphs 7.80 and 8.2 of the Panel Report, that "the
United States had no legal basis to continue its anti-dumping measure on OCTG from Mexico beyond
its scheduled expiration date, i.e., five years from its imposition." 281 Mexico requests that we make
such a finding. 282 In response to questioning at the oral hearing, Mexico clarified that it does not
request us to make a suggestion regarding impl ementation pursuant to the second sentence of
Article 19.1 of the DSU.
184. As we understand it, the finding that Mexico asked the Panel to make, a nd is requesting us to
make, is another way of stating that the United Stat es acted inconsistently w ith Article 11.3 of the
Anti-Dumping Agreement, with the added consequence that the anti-dumping duty order at issue must
therefore be terminated immediately. In our view, it was within the Panel's discretion to decide
whether or not to adopt the formulation proposed by Mexico in making its findings.
185. Mexico contends that, if a Member has acted inconsistently with Article 11.3 of the Anti-
Dumping Agreement in conducting a sunset review of an anti-dumping duty, the Member has no
choice but to terminate the duty immediately.
283 According to Mexico, if a new sunset review is
undertaken in such a case, it would necessarily entail a further inconsistency with Article 11.3 because
that provision imposes a five-year time-lim it on the continuation of anti-dumping duties. 284
Therefore, Mexico submits that, upon adoption of the Panel Report, the only way for the United States
to implement the recommendations and rulings of the DSB regarding the anti-dumping duties on
OCTG from Mexico would be to terminate those duties immediately.
285
186. Mexico is correct that Article 11.3 of the Anti-Dumping Agreement imposes an obligation on
Members to terminate anti-dumping duties at the e nd of five years, except where they choose to
conduct a sunset review as envisaged by that pr ovision, or, having conducted such a review, they
determine that the expiry of the duty would be likel y to lead to continuation or recurrence of dumping

282Ibid., para. 146.
283Ibid., para. 139.
284Ibid., para. 142.
285Ibid., para. 145.

and injury. The Appellate Body elaborated on these requirements in US – Corrosion-Resistant Steel
Sunset Review, as Mexico indicates in its submission.
286
187. The fact that the USDOC acted inconsistently with the requirements of Article 11.3 in its
likelihood-of-dumping determina tion does not necessarily imply that the underlying anti-dumping
duties must be terminated immediately. The mere fact that Article 11.3 sets a temporal limit for
termination of an anti-dumping duty, in the abse nce of a review leading to a WTO-consistent
determination under that Article fo r its continuation, does not affect the other provisions of the DSU
governing the implementation of the recommendations and rulings of the DSB, including, inter alia,
the means of implementation and the reasonable period of time accorded to the implementing
Member for implementation.
188. Mexico submits that, in declining to make a finding regarding the absence of a legal basis for
the anti-dumping duties on OCTG from Mexico, the Pa nel failed to make "such other findings as will
assist the DSB in making the recommendations or in giving the rulings provided for in the covered
agreements", as required by Article 11 of the DSU.
287 Mexico asserts that the Panel had to make the
finding requested by Mexico to enable the DSB to make "sufficiently precise recommendations and
rulings" in relation to implementation.288 In this context, Mexico relies, in particular, on the Appellate
Body Report in EC – Export Subsidies on Sugar.289
189. The facts of the present appeal are quite different from those in EC – Export Subsidies on
Sugar. First, the Appellate Body's finding of non- compliance with Article 11 of the DSU in that
dispute related to the obligation of panels to make a recommendation under Article 4.7 of the
Agreement on Subsidies and Countervailing Measures (the " SCM Agreement ") regarding the time
period for withdrawal of a prohibited subsidy. 290 T h e Anti-Dumping Agreement has no provision
similar to Article 4.7 of the SCM Agreement that panels must follow. The applicable provision in the
present dispute regarding suggestions for implementa tion is the second sentence of Article 19.1 of the

286Mexico's appellant's submission, para. 137 (quoting Appellate Body Report, US – Corrosion-
287Ibid., para. 140.
288Ibid., paras. 140 and 145 (quoting Appellate Body Report, US – Wheat Gluten, para. 180).
289Ibid., para. 141 (quoting Appellate Body Report, EC – Export Subsidies on Sugar , paras. 328
and 331).
290Article 4.7 of the SCM Agreement provides:
If the measure in question is found to be a prohibited subsidy, the panel
shall recommend that the subsidizing Member withdraw the subsidy
without delay. In this regard, the panel shall specify in its recommendation
the time period within which the measure must be withdrawn. (emphasis
added)

DSU291, which Mexico does not rely on in this appeal, and which, in any event, does not oblige panels
to make such a suggestion. Secondly, the panel's error in EC – Export Subsidies on Sugar was in
wrongly exercising judicial economy—that is, failing to rule on a claim before it. The Panel in the
present dispute did not exercise judicial economy with respect to Mexico's claim that the USDOC
acted inconsistently with Article 11.3 of the Anti-Dumping Agreement in the sunset review of the
anti-dumping duty order on OCTG from Mexico. On the contrary, as noted above, the Panel upheld
Mexico's claim of inconsistency.
292
190. For these reasons, we find that the Panel did not fail to comply with Article 11 of the DSU in
declining to make a specific finding that the Unite d States had no legal basis to continue the anti-
dumping duties on OCTG from Mexico beyond the five-year period established by Article 11.3 of the
Anti-Dumping Agreement.

VIII. Consistency of the Sunset Policy Bulletin "As Such"
191. The United States appeals the Panel's finding, in paragraphs 7.64 and 8.1 of the Panel Report,
that Section II.A.3 of the SPB is, as such , inconsistent with Article 11.3 of the Anti-Dumping
Agreement. The United States contends that the Panel failed to apply the correct standard in its
assessment of the consistency of the SPB, as such, w ith Article 11.3, and, in doing so, the Panel also
failed to "make an objective assessment of the matter before it, including an objective assessment of
the facts of the case", as required by Article 11 of the DSU. The United States also submits, as part of
its appeal, that the Panel erred in stating, in pa ragraph 6.28 of the Panel Report, that Mexico had
established a prima facie case that the SPB is, as such, inconsistent with Article 11.3.
A. The Panel's Articulation of the Standard
192. We begin our analysis by examining the standard articulated and applied by the Panel. Based
on its own analysis, and relying upon the Reports of the Appellate Body in US – Carbon Steel, US –
Corrosion-Resistant Steel Sunset Review , and US – Oil Country Tubular Goods Sunset Reviews , the

291Article 19.1 of the DSU provides:
Where a panel or the Appellate Body concludes that a measure is
inconsistent with a covered agreement, it shall recommend that the
Member concerned bring the measure into conformity with that agreement.
In addition to its recommendations, the panel or Appellate Body may
suggest ways in which the Member concerned could implement the
recommendations. (emphasis added; footnotes omitted)
292Panel Report, paras. 7.80 and 8.2.

Panel articulated the standard that it would a pply in assessing the consistency of the SPB, as such,
with Article 11.3 of the Anti-Dumping Agreement in these terms:
(a) in relation to the requirements of Article 11.3:
... Article 11.3 requires that a like lihood determination in a sunset
review be based on a sufficient factual basis, taking into
consideration the circumstances of the case at issue, and cannot be
based on presumptions that establish a priori conclusions in certain
factual situation[s] without the possibility of consideration of all the
facts and circumstances. ... [I]f certain evidentiary factors are treated
as determinative or conclusive, we would conclude that they create
an irrebuttable presumption, and thus that the relevant provisions are
inconsistent with Article 11.3 of the AD Agreement.
293 (emphasis
added)
(b) in relation to the "qualitative assessment":
... it seems clear that we must undertake a qualitative assessment of
the evidence concerning USDOC's sunset review determinations. ...
We cannot just look at the statistics to determine if, as a matter of
fact, the scenarios in the SPB are consistently treated by USDOC as
determinative or conclusive ... .
... it is not consistency in the outcomes of US sunset reviews, but
rather consistency in the process of decision-making, and the bases
on which the decisions were reached, that are relevant to our
assessment. The fact that in each of 232 of the sunset review
determinations put before us in evidence, USDOC made an
affirmative determination of likelih ood of continuation or recurrence
of dumping is not sufficient in itself to demonstrate that the scenarios
set out in the SPB are determinative or conclusive.
294 (footnote
omitted)
... it is essential to examine concre te examples of cases where the
likelihood determination of con tinuation or recurrence of dumping
was based solely on one of the scenarios of Section II.A.3 of the
SPB, even though the probative value of other factors might have
outweighed that of the identified scenario. Such an examination
requires a qualitative assessment of the likelihood determinations in
individual cases.
295
193. The parties are broadly in agreement that the Pane l’s articulation of the standard to be applied
is substantially consistent with previous Appellate Body rulings, except that the United States is of the

293Panel Report, para. 7.27. See also Panel Report, paras. 7.25-7.26.
294Ibid., paras. 7.49-7.51.
295Ibid., para. 7.49 (quoting, as guidance, Appellate Body Report, US – Oil Country Tubular Goods
Sunset Reviews, para. 209).

view that the Panel should also have stressed , following previous Appellate Body rulings, these
elements: whether the probative value of other f actors might have outweighed that of the factual
scenarios in Section II.A.3 of the SPB, and whether it is the SPB that "required" the USDOC to arrive
at the determinations it did in individual cases. 296 Having said that, the United States asserts that it is
in the application of the standard that the Panel failed to make an objective assessment of the matter,
including an objective assessment of the facts of the case.
B. The Panel's Application of the Standard
194. We begin our analysis with the text of the SPB in issue in this dispute. Section II.A.3 of the
SPB provides:
II. Sunset Reviews in Antidumping Proceedings
A. Determination of Likelihood of Continuation or Recurrence of
Dumping

3. Likelihood of Continuation or Recurrence of Dumping

[T]he Department normally will determine that revocation of an
antidumping order or termination of a suspended dumping
investigation is likely to lead to continuation or recurrence of
dumping where—
(a) dumping continued at any level above de minimis after the
issuance of the order or th e suspension agreement, as
applicable;
(b) imports of the subject merchandise ceased after issuance of
the order or the suspension agreement, as applicable; or
(c) dumping was eliminated after the issuance of the order or the
suspension agreement, as applicable, and import volumes for
the subject merchandise declined significantly.
The Department recognizes that, in the context of a sunset review of
a suspended investigation, the da ta relevant to the criteria under
paragraphs (a) through (c), above, may not be conclusive with respect
to likelihood. Therefore, the Department may be more likely to
entertain good cause arguments under paragraph II.C in a sunset
review of a suspended investigation.
297

296United States' response to questioning at the oral hearing.
297We note that "Mexico does not challenge the 'goo d cause' aspects of US law". (Panel Report,
footnote 48 to para. 7.34; and confirmed by Mexico in response to questioning at the oral hearing)

195. At the outset, we note Mexico's argument that the Panel's conclusions and findings in
paragraphs 7.53 to 7.64 of the Panel Report, in making its " qualitative assessment" of how the
USDOC perceives the factual scenarios of the SPB, ar e "factual findings". Mexico also argues that
the United States had ample opportunity to rebut the evidence adduced by Mexico at the Panel stage,
but chose not to do so, and that, therefore, these "f actual findings" are outside the scope of appellate
review.
298 We disagree. The Panel's conclusions and findi ngs in paragraphs 7.53 to 7.64 of the Panel
Report involve a "legal characterization of ... facts" 299 in the Panel's determin ation of the consistency
of the SPB, as such, with the requirements of Article 11.3 of the Anti-Dumping Agreement. They are,
therefore, subject to our review.
196. Before we proceed to review the Panel’s application of the standard it articulated, we consider
two matters that, in our view, are important for examining the "qualitative assessment" carried out by
the Panel. First, the Appellate Body emphasized in US – Oil Country Tubular Goods Sunset
Reviews that, in making a "qualitative assessment" of individual determina tions, a panel must
determine whether the factual scenarios of the SP B are regarded as "determinative/conclusive" and
"mechanistically applied" by the USDOC "to the exclus ion of other factors", or "in disregard of other
factors", or "even though the probative value of ot her factors might have outweighed that of the
identified scenario." 300 The relevance and probative value of other factors, and the USDOC's
treatment of them—whether the USDOC ignored them or did not treat them objectively—are crucial
for a "qualitative assessment" of individual determinations.
197. Secondly, each of the three factual scenarios of the SPB comprises variations depending, in
particular, on the duration and magnitude of dumping, and the trends in volume of imports, with or
without dumping (including cessation of imports), af ter the issuance of the anti-dumping duty order.
Such variations will determine whet her it is a case of likelihood of continuation of dumping or a
recurrence of dumping, and this, in turn, may have a b earing on the nature and extent of evidence
required for an objective determination and who bears the onus of introducing the evidence.
198. For example, under scenario (a), dumping may have continued during the entire period
between the issuance of the anti-dumping duty order and the time of the sunset review, possibly with
significant import volumes and dumping margins. A lternatively, dumping may have continued for a
substantial period after the issuance of the orde r and may have ceased only a short time before the
sunset review was undertaken. In such cases, unless the respondent party adduces evidence and
explains how its pricing behaviour will change or why its imports will cease or not recur, it may be

298Mexico's appellee's submission, paras. 48-54 and 59-63.
300Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, paras. 209 and 212.

open for an objective investigating authority to conclu de that dumping is likely to continue or recur if
the duty is revoked.
199. In contrast, if the dumping had ceased soon afte r the issuance of the order, and there was no
dumping or there were no imports for a substantial pe riod before the sunset review, the investigating
authority will need credible evid ence to come to the conclusion that dumping will "recur" if the anti-
dumping duty order is revoked. A respondent party may have the res ponsibility to introduce relevant
evidence in its favour, but the investigating authority also has a duty to seek information to ensure that
its determination rests on a sufficient evidentiary foundation. An affirma tive determination cannot
rest merely on a presumption, as envisaged under sce nario (b) or (c), that the cessation of dumping or
of imports was due solely to the anti-dumping duty order.
200. Likewise, scenario (c) also could have many vari ations within it. This scenario deals with
situations where imports continue, but without dum ping, and an affirmative determination under this
scenario is therefore a determination that dumping will "recur" if the anti-dumping duty order is
revoked. The underlying presumption in scenario (c) is that, if import volumes had declined
significantly, it was due solely to the anti-dumping dut y order, and that, if the order were revoked, the
company concerned would resort to dumping to increase its import volumes. Such a presumption
cannot be the sole basis for a determination of "r ecurrence" of dumping. A company's strategy and
ability to increase or decrease its exports to part icular markets depend on a variety of market
conditions, such as, in particular, the opportunities available in different markets and the competitive
conditions in the market place. Therefore, unless all relevant factors are taken into account, there may
not be an objective evaluation in such cases of th e causes of the variations in import volumes in the
importing Member's market.
201. Thus, the factual scenarios of the SPB must not be mechanistically applied. The responding
parties do have a responsibility to submit informati on and evidence in their favour, particularly about
their pricing behaviour, import volumes, and dumping ma rgins. But the investigating authority has a
duty to seek out information on relevant factors and evaluate their probative value in order to ensure
that its determination is based not on presumptions, but on a sufficient factual basis.
202. Keeping these considerations in mind, we turn to a review of the "qualitative assessment" of
the USDOC determinations by the Panel as contained in paragraphs 7.53 to 7.63 of the Panel Report.
We agree with the Panel that "[t]he fact that in each of 232 of the sunset review determinations put
before us in evidence, USDOC made an affirmativ e determination of likelihood of continuation or

recurrence of dumping is not sufficient in itself to demonstrate that the scenarios set out in the SPB
are determinative or conclusive."
301
203. In paragraph 7.53 of the Panel Report, the Pane l considered 206 sunset reviews that were
"expedited" because "foreign respondent parties either did not participate at all, or did not fully
participate in the proceedings". 302 These constituted the bulk of the 232 cases in which the USDOC
made affirmative determinations. The Panel reviewed "a sampling" of these 206 cases and stated that,
"in each of those we considered, USDOC's final a ffirmative determination ... was based on one of the
three affirmative scenarios." 303 The Panel Report does not reveal the size of the sample, which
individual determinations it reviewed, which of the factual scenarios were involved, or whether other
factors ought to have been taken into account in an y of them. More importantly, the Panel merely
speculated that "there may well have been other fact s that might [have been] relevant or probative [in
these 206 cases], but they were not before USDOC, and thus were not addressed." 304 Therefore, even
in respect of the "sampling" of cases that the Panel reviewed, the Panel Report does not reveal
whether the USDOC excluded or disregarded eviden ce or factors that might have outweighed the
probative value of the factual scenarios of the SPB. Nor does the Panel's analysis indicate whether, in
those cases, the USDOC wrongly relied on one of the scenarios in the SPB, despite the evidence
before it. It is quite possible that a numbe r of these 206 cases were cases where the dumping had
continued for the entire life of the anti-dumping duty order or for a substantial period after the
issuance of the order. In such cases, unless the resp ondent interested parties had adduced evidence to
show that the dumping would not continue or recu r, the USDOC could well have had reason to make
an affirmative determination. We simply do not know. In respect of these 206 cases, the Panel
Report does not reveal that the USDOC's affirmativ e determinations, although based on one of the
factual scenarios, were made in disregard or to the exclusion of other factors because of the SPB.
204. Leaving out five determinations of "suspended" investigations , which the Panel considered
irrelevant to its task, the Pa nel proceeded to examine the re maining 21 of the 232 affirmative
determinations.
305 In paragraphs 7.56 to 7.59 of the Panel Report, the Panel addressed 15 of these
cases in which, according to it, the "USDOC appears to have considered that scenario (a) of the SPB
applied—that is, dumping continued after the imposition of the order at a level above de minimis."306

301Panel Report, para. 7.51. (footnote omitted) In paragraph 7.52 of the Panel Report, the Panel
explained that, of the 306 cases covered by Exhibits MEX-62 and MEX-65, it did not take into account 74 cases
in which the USDOC revoked the anti-dumping duty order due to a lack of domestic industry participation.
302Ibid., para. 7.53.
303Ibid.
304Ibid.
305Ibid., paras. 7.54-7.55.
306Ibid., para. 7.56. (emphasis added)

In seven of these cases, the Pa nel stated that "there appears to have been no arguments or
information put before USDOC by respondent interested parties concerning other factors which might
be relevant".307 However, the Panel did not explain the facts of these cases, including matters such as
the period in which dumping continued, and the trends in the volume of imports and dumping
margins. Nor does the Panel's anal ysis reveal whether other factor s ought to have been taken into
account by the USDOC on its own initiative.
205. In five other cases, the Panel c oncluded that foreign respondents " appear to have made
arguments concerning the relevance of the scenarios and other evidence" and the "USDOC may have
considered the existence of facts fitting scenario (a) as determinative."308 The Panel stated that, in one
case, the USDOC indicated that it had not consider ed arguments regarding other factors because it
had based its results on the continuation of dumping. However, in relation to the other four cases, the
Panel did not explain whether the USDOC took in to account the arguments submitted by foreign
respondents, or whether it properly evaluated those arguments or simply followed the SPB scenarios
to the exclusion of other evidence.
206. In the remaining three of the 15 "scenario (a)" cases, the Panel found that the USDOC
rejected foreign respondents' arguments that good cause existed to consider other factors. 309
However, this alone does not demonstrate that the SPB instructs the USDOC to treat dumping
margins and import volumes as conclusive of the lik elihood of dumping, to the exclusion of other
factors. In order to determine whether the USDOC made a final affirmative determination in these
three cases due to the SPB, it would have been necess ary for the Panel to have analyzed the USDOC's
reasoning, in the light of the specific facts of the cases and the arguments of the foreign respondents.
The Panel Report contains no such analysis. The Pa nel also stated, in rela tion to these three cases,
that "the consistent results of these decisions are troubling, as is the unwillingness of USDOC to
actually undertake an analysis of evidence ot her than evidence of import volumes and dumping
margins submitted in sunset reviews." 310 Yet, as the Panel itself noted 311, the significance for its
analysis of the determinations of the USDOC lies not in their results, but whether the USDOC is
required to make an affirmative determination when one of the factual scenarios of the SPB is present.

307Panel Report, para. 7.57. (emphasis added)
308Ibid., para. 7.58. (emphasis added)
309Ibid., para. 7.59.
310Ibid. (emphasis added)
311Ibid., para. 7.51.

207. In paragraph 7.60 of the Panel Report, the Pane l turned to four cases in which the "USDOC
appears to have considered that scenario (c) of the SPB applied".
312 The Panel noted that the
USDOC rejected the arguments of foreign respondent s in each case, but the Panel did not evaluate
whether the USDOC did so solely because of the SPB, or on the basis of a reasoned assessment of the
evidence before it. The Panel d escribed as "troubling" the following statement of the USDOC in one
of these cases: "Since we are basing our likelihood determination on the elim ination of dumping at
the expense of exports, it is not necessary to consider other factors". 313 In relation to another case, the
Panel stated that, "despite an asserted willingness in the preliminary phase to consider additional
evidence and arguments, USDOC made a final affirm ative determination of likelihood, relying on a
decline in import volumes, as set out in one of the SPB scenarios." 314 Although the Panel found the
outcome of these cases troubling because affirmative de terminations were made, the Panel's analysis
does not reveal that the evidence before the USDO C was insufficient to lead to an affirmative
determination, or that the SPB required the USDOC to make affirmative determinations in the face of
contrary evidence.
208. Finally, in paragraph 7.62 of the Panel Repor t, the Panel addressed two cases in which the
USDOC made a negative preliminary determination followed by an affirmative final determination.315
In relation to one of these cases, the Panel stated that "scenario (c) appeared to be relevant". 316 In
relation to the other, the Panel said that the USDOC made a final affirmative determination based on
continued dumping, "as suggested by SPB scenario (a)". 317 The Panel's analysis does not reveal the
nature of the evidence and arguments submitted to the USDOC at the preliminary and final stages and
the USDOC's assessment thereof. The fact that the USDOC's final determinations differed from its
preliminary determinations does not, without more, suggest that the SPB establishes scenarios that are
determinative or conclusive.
209. In summary, having reviewed the 232 determina tions in the aforesaid manner in paragraphs
7.53 to 7.63 of the Panel Report, the Panel concl uded that the "USDOC has consistently based its
determinations in sunset reviews exclusively on th e scenarios, to the disregard of other factors." 318
But, as we have explained above, the Panel's an alysis does not reveal that the affirmative

312Panel Report, para. 7.60. (emphasis added)
313Ibid. (quoting Memorandum from Jeffrey May to Robert LaRussa, "Issues and Decision Memo for
the Sunset Review of Pure Magnesium from Canada; Preliminary Results" (18 February 2000) (Tab 201 of
Exhibit MEX-62 submitted by Mexico to the Panel, pp. 6-7)).
314Ibid. (footnote omitted)
315Ibid., para. 7.62.
316Ibid. (emphasis added)
317Ibid. (referring to Tab 261 of Exhibit MEX-62 submitted by Mexico to the Panel).
318Ibid., para. 7.63. (footnote omitted)

determinations, in the 21 specific cases reviewed by it 319, were based exclusively on the scenarios to
the disregard of other factors . Nor does the Panel's review of these cases reveal that the USDOC's
affirmative determinations were based solely on the SPB scenarios, when the probative value of other
factors might have outweighed that of the identifie d scenarios. Accordingly, we conclude that the
Panel did not conduct a "qualitative assessment" of th e USDOC's determination such that the Panel
could properly conclude that the SPB requires the USDOC to treat the factual scenarios of
Section II.A.3 of the SPB as determinative or conclusive.
210. For these reasons, we find that, in assessing the consistency of the SPB, as such, with
Article 11.3 of the Anti-Dumping Agreement, the Panel failed to make an objective assessment of the
matter, including an objective assessment of the facts of the case, as required by Article 11 of the
DSU. Accordingly, we reverse the Panel's finding, in paragraphs 7.64 and 8.1 of the Panel Report,
that Section II.A.3 of the SPB, as such, is inconsistent with Article 11.3 of the Anti-Dumping
Agreement.
211. Having reached this conclusion, we do not address the Panel's statement, in paragraph 6.28 of
the Panel Report
320, that Mexico had established a prima facie case that the SPB, as such, is
inconsistent with Article 11.3 of the Anti-Dumping Agreement . As a result of our reversal of the
Panel's finding that Section II.A.3 of the SPB, as su ch, is inconsistent with Article 11.3 of the Anti-
Dumping Agreement, that statement is moot and of no legal effect.

IX. Mexico's Conditional Appeals
A. The "Standard" for USDOC Determinations in Sunset Reviews
212. As we have reversed the Panel's finding th at Section II.A.3 of the SPB, as such, is
inconsistent with Article 11.3 of the Anti-Dumping Agreement, we consider Mexico's request that we
find that Section 752(c)(1) of the Tariff Act 321, the SAA, and the SPB, as such, are inconsistent with
Article 11.3 because, "collectively and independently" 322, they establish a "standard" for USDOC

319The Panel also reviewed a "sampling" of 206 cases, and decided that five cases were not relevant to
its task, as mentioned above in paragraphs 203-204.
320This paragraph appears in the "Interim Review" section of the Panel Report.
321This provision is codified in Section 1675a(c)(1) of Title 19 of the United States Code (Exhibit
MEX-24 submitted by Mexico to the Panel).

determinations in sunset reviews that is inconsistent with Article 11.3.
323 Mexico argues that the
Panel "declined to rule" on this "claim".324
213. The Panel found that Section 752(c)(1) of the Tari ff Act, by itself, is not inconsistent with
Article 11.3 of the Anti-Dumping Agreement.325 Mexico does not appeal this finding per se. The
Panel regarded the SAA as confirming its reading of the Tariff Act. 326 The Panel did not address the
WTO-consistency of the SAA "standing alone", because Mexico "made no independent claims
concerning the SAA", and it did not present "arguments regarding violation of any provision of the
AD Agreement by the SAA, separate from the argumen ts regarding the overall alleged inconsistency
of US law." 327 Finally, the Panel found that Section II.A.3 of the SPB, as such, is inconsistent with
Article 11.3 of the Anti-Dumping Agreement because it "establishes an irrebuttable presumption
that termination of the anti-dumping duty would be likely to lead to continuation or recurrence of
dumping".328
214. We have reversed the Panel's finding that S ection II.A.3 of the SPB is inconsistent with
Article 11.3 of the Anti-Dumping Agreement. In these circumstances, we see no merit in Mexico's
contention that the Tariff Act, the SAA, and the SPB, "collectively and independently", establish a
standard that is inconsistent with Article 11.3 of the Anti-Dumping Agreement.
B. Article X:3(a) of the GATT 1994
215. As we have reversed the Panel's finding th at Section II.A.3 of the SPB, as such, is
inconsistent with Article 11.3 of the Anti-Dumping Agreement, we consider Mexico's request that we
find that the United States has failed to administer its laws, regulations, deci sions, and rulings in an
impartial and reasonable manner as require d by Article X:3(a) of the GATT 1994. 329 M e x i c o
contends that Exhibits MEX-62 and MEX-65 submitte d by Mexico to the Panel demonstrate "a clear
and undeniable pattern of bi ased and unreasonable decision making by the [USDOC] in its
administration of the laws, regulations, decisions, and rulings pertaining to sunset reviews."330

323Mexico's appellant's submission, paras. 158 and 160.
324Mexico's Notice of Appeal, para. 5(a) (referring to Panel Report, para. 6.6). Mexico does not appeal
the Panel's conclusion that Mexico's claim against the "practice" of the USDOC, as such, fell outside its terms of
reference. (Mexico's response to questioning at the oral hearing; Panel Report, paras. 7.21 and 8.4)
325Panel Report, paras. 7.64 and 7.66.
326Ibid., para. 7.38.
327Ibid., footnote 49 to para. 7.35.
328Ibid., para. 8.1. (emphasis added) See also Panel Report, paras. 7.64 and 7.67.
329Mexico's Notice of Appeal, para. 5(b); Mexico's appellant's submission, para. 167.

216. Article X:3(a) of the GATT 1994 provides:
Each Member shall administer in a uniform, impartial and reasonable
manner all its laws, regulations, d ecisions and rulings of the kind
described in paragraph 1 of this Article.
217. Article X:1 of the GATT 1994 refers to "[l] aws, regulations, judicial decisions and
administrative rulings of general application, made effective by any Member".
218. In our view, an assessment of the USDOC's de terminations for the purpose of determining
whether the USDOC administers United States laws and regulations on sunset reviews in a uniform,
impartial, and reasonable manner in accordance wi th Article X:3(a) of the GATT 1994 entails an
inquiry much different from that involved in dete rmining whether the SPB instructs the USDOC to
treat certain scenarios as conclusive or determ inative contrary to Article 11.3 of the Anti-Dumping
Agreement. Therefore, in the absence of any consideration by the Panel of this claim, we are not in a
position to rule on it.

X. Findings and Conclusions
219. For the reasons set forth in this Report, the Appellate Body:
(a) in relation to causation:
(i) finds that there is no requirement to establish the existence of a causal link
between likely dumping and likely injury, as a matter of legal obligation, in a
sunset review determinati on under Article 11.3 of the Anti-Dumping
Agreement and that, therefore, the USITC was not required to demonstrate
such a link in making its likelihood-of-injury determination in the sunset
review at issue in this dispute; and
(ii) finds
 that the Panel did not act inconsiste ntly with Article 11 of the DSU in
its assessment of Mexico's arguments in this regard;
(b) in relation to cumulation:
(i) upholds the Panel's findings, in paragraphs 7.150, 7.151, and 8.8 of the Panel
Report, that the USITC's decision to conduct a cumulative assessment of
imports in making its likelihood-of-injur y determination was not inconsistent
with Articles 3.3 and 11.3 of the Anti-Dumping Agreement; and

(ii) finds
 that the Panel did not act inconsiste ntly with Article 11 of the DSU in
its assessment of Mexico's arguments in this regard;
(c) in relation to dumping margins:
(i) finds that the Panel did not act inconsiste ntly with Article 11 of the DSU in
not addressing Mexico's claim under Article 2 of the Anti-Dumping
Agreement; and
(ii) finds it unnecessary to rule on Mexico's claim relating to Article 2 of the
Anti-Dumping Agreement;
(d) finds that the Panel did not act inconsistently with Article 11 of the DSU in declining
to make a specific finding that the United St ates had no legal basis to continue the
anti-dumping duties on OCTG from Mexico beyond the five-year period established
by Article 11.3 of the Anti-Dumping Agreement;
(e) in relation to the SPB:
(i) finds that, in assessing the consistency of the SPB, as such, with Article 11.3
of the Anti-Dumping Agreement , the Panel failed to make an objective
assessment of the matter, including an objective assessment of the facts of the
case, as required by Article 11 of the DSU;
(ii) reverses the Panel's finding, in paragraphs 7.64 and 8.1 of the Panel Report,
that Section II.A.3 of the SPB, as such, is inconsistent with Article 11.3 of the
Anti-Dumping Agreement; and
(iii) finds that the Panel's statement, in para graph 6.28 of the Panel Report, that
Mexico had established a prima facie case that the SPB, as such, is
inconsistent with Article 11.3 of the Anti-Dumping Agreement, is moot and
of no legal effect; and
(f) having reversed the Panel's finding that Secti on II.A.3 of the SPB is inconsistent with
Article 11.3 of the Anti-Dumping Agreement:
(i) finds no merit in the argument that the Tariff Act, the SAA, and the SPB,
"collectively and independently", establish a standard that is inconsistent with
Article 11.3 of the Anti-Dumping Agreement; and

(ii) finds that it is not in a position to rule on Mexico's claim that the USDOC
does not administer United States laws and regulations on sunset reviews in a
uniform, impartial, and reasonable manner in accordance with Article X:3(a)
of the GATT 1994.
220. As there is no appeal from the Panel's finding that the USDOC's likelihood-of-dumping
determination in the sunset review at issue in this dispute was inconsistent with Article 11.3 of the
Anti-Dumping Agreement, we do not make any additional recommendation regarding that finding.
Given that we have not found in this Report that th e United States acted inconsistently with any of its
WTO obligations, we make no recommendation to the DSB pursuant to Article 19.1 of the DSU in
this regard.

Signed in the original in Geneva this 18th day of October 2005 by:

A.V. Ganesan
Presiding Member

 _________________________ _________________________
 John Lockhart Y asuhei Taniguchi
 Member Member

Annex I

10 August 2005
 (05-3559)
 Original: Spanish

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

 The following notification dated 4 August 2005, from the delegation of Mexico, is being
circulated to Members.

 Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review ,
Mexico notifies its decision to appeal to the A ppellate Body certain issues of law covered in the
Report of the Panel on (WT/DS282/R) (the "Panel Report") and cer tain legal interpretations developed
by the Panel in this dispute.
1. Mexico seeks review by the Appellate Body of the Panel's failure to find that the Sunset
Review Determination of the US International Trade Commission ("USITC") in OCTG from Mexico
was inconsistent with the Anti-Dumping Agreem ent and Article VI of the GATT 1994 because the
USITC did not establish the required causal link be tween the likely dumping and the likely injury. 1
The Panel's conclusions on this issue are in erro r, and are based on erroneous findings on issues of
law and related legal interpretations:
a. By failing to find that a WTO-consistent de termination of likely dumping is a legal
predicate to a WTO-consistent determinati on of likely injury, the Panel erred in its
interpretation and application of Articles 1, 3, 11.1, 11.3 and 18.1 of the Anti-Dumping
Agreement and Article VI of the GATT 1994, and failed to comply with its obligation
under Article 11 of the DSU to make an objective assessment of the matter before it.2
b. Although the Panel found that the Sunset Revi ew Determination of the US Department
of Commerce ("USDOC") was inconsistent with Article 11.3 of the Anti-Dumping

1Panel Report, paragraph. 8.7.
2Panel Report, paragraphs. 6.12, 6.14, 7.113, 7.114, 7.115, 7.117, 7.121, 7.122, 7.123, 7.130, 7.138,
7.143, 7.144, 8.7.

Agreement3, it failed to find that the USITC Sunset Review Determination was also
WTO-inconsistent. The Panel dismissed Mexico's claim that the Anti-Dumping
Agreement and the GATT 1994 established inhe rent causation requirements, parallel to
but independent of those in Article 3.5.
4 The Panel incorrectly interpreted Articles 1, 3,
11.1, 11.3, and 18.1 of the Anti-Dumping Agreement and Article VI of the GATT
1994. The Panel also failed to comply with its obligation under Article 11 of the DSU
to make an objective assessment of the matter before it.5
c. The Panel failed to apply the rulings adopt ed by the Dispute Settlement Body in United
States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods
from Argentina (DS268). 6 The DSB rulings in DS268, combined with the Panel's
rulings in this case, establish that there is no WTO-consistent basis for a finding of
likely dumping for any of the reviews of the WTO Members included in the USITC's
cumulative likelihood of injury analysis. The Panel in the pres ent case erroneously
failed to find that the USITC lacked a WTO- consistent basis for its determinations on
likely injury, likely price effects or likely impact. 7 The Panel thus erred in interpreting
and applying Articles 1, 3, 11.1, 11.3, and 18.1 of the Anti-Dumping Agreement and
Article VI of the GATT 1994. The Panel also failed to comply with its obligation
under Article 11 of the DSU to make an objective assessment of the matter before it.
 8
2. Mexico seeks review by the Appellate Body of the Panel's failure to find that the Sunset
Review Determination of the USITC was WTO-inconsistent because the USITC failed to comply
with the conditions for a WTO-consistent likelihood of injury analysis.
9 Although the Panel
recognized that "Mexico requested a finding regardi ng its 'third cumulation argument' (regarding the
evidentiary basis for the USITC's determination th at imports would be simultaneously present in the
US market)10, the Final Report contains no explanation of why it was appropriate for the Panel not to
rule on Mexico's claim. 11 The Panel erred in interpreting and applying Articles 1, 11.3, and 18.3 of
the Anti-Dumping Agreement, and failed to comply with its obligation under Article 11 of the DSU
and Article 17.6 of the Anti-Dumping Agreement to make an objective assessment of the matter
before it.12 Mexico respectfully requests the Appellate Body to address, complete the analysis, and
rule in favor of Mexico on the following issues of law and related legal inte rpretations, on which the
Panel declined to rule:

3Panel Report, paragraph. 8.2.
4Panel Report, paragraph. 6.12.
5Panel Report, paragraphs. 6.12, 6.14, 7.113, 7.114, 7.115, 7.117, 7.121, 7.122, 7.123, 7.130, 7.138,
7.143, 7.144, 8.7.
6See United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods
(OCTG) from Mexico, DS282, Request of the Panel for Comments on the Appellate Body's Report in US-OCTG
from Argentina, DS268, Nov. 22, 2004; see also Panel Report, Annex E-14, Annex E-15.
7Panel Report, paragraph. 8.7.
 8Panel Report, paragraphs. 6.12, 6.14, 7.113, 7.114, 7.115, 7.117, 7.121, 7.122, 7.123, 7.130, 7.138,
7.143, 7.144, 8.7.
 9Panel Report, paragraphs. 8.5, 8.7, 8.8.
 10Panel Report, paragraph. 6.19; see also Panel Report, paragraph. 3.1 (16th bullet) ("irrespective of
the applicability of Article 3.3 to Article 11.3, the USIT C failed to satisfy the requirements inherent in the
conduct of any cumulative injury assessment; the USITC failed to ensure that cumulation was appropriate in
light of the conditions of competition between imported OCTG, and between imported OCTG and the domestic
like product, which findings required a threshold finding that the imports would be simultaneously present in the
US market").

11Panel Report, paragraphs. 6.19, 7.150, and 7.151.
12Panel Report, paragraphs. 6.19, 7.150, 7.151, 8.5, 8.7, 8.8.

a. The Panel erroneously concluded that the US ITC's analysis of the cumulated imports
for purposes of its likelihood of injury dete rmination was consistent with Article 11.3
exclusively because it determined that Ar ticle 3.3 of the Anti-Dumping Agreement
does not apply to Article 11.3 reviews.
13
b. The Panel failed to find that the USIT C's Sunset Review Determination was
inconsistent with US obligations under the Anti-Dumping Agreement because:
(i) The likelihood of injury determinati on lacked a sufficient factual basis and
could not result in an objective examin ation of whether the subject imports
were likely to be simultaneously present in the domestic market for
purposes of determining the likelihood of injury;
(ii) The USITC failed to ensure that cumulation was appropriate in light of the
conditions of competition between im ported OCTG, and between imported
OCTG and the domestic like product, which findings required a threshold
finding that the subject imports would be simultaneously present in the US
market;
(iii) The USITC employed a WTO-inconsistent standard in the cumulative
likelihood of injury analysis
14; and
(iv) The USITC's determination did not identify any time-frame within which
the subject imports would be simulta neously present in the US market
during which time the corresponding likely injury would occur.
c. The Panel erroneously disregarded certain of Mexico's arguments supporting its claim
regarding the WTO-inconsistency of the USITC's sunset review determination based on
an erroneous finding that Mexico had failed to develop and elaborate its arguments.15
d. The Panel also erroneously disregarded Mexico's separate claim that even assuming
arguendo that the USITC was neither prohib ited from, nor required to, conduct a
cumulative injury assessment, because it decided to undertake cumulative analysis, then
the USITC was obliged to make sure that th e inherent conditions necessary to cumulate
were satisfied.16
3. Mexico seeks review by the Appellate Body of the Panel's failure to comply with its
obligation under Article 11 of the DSU to make an objective assessment of the matter before it, and its
error in the interpretation and application of Articles 1, 2, 11.3, and 18.3 of the Anti-Dumping
Agreement regarding Mexico's claims related to th e USDOC's determination of the "margin likely to
prevail."
17 Specifically:
a. The Panel erred in failing to find that the USDOC's determination of the "margin likely
to prevail" for OCTG from Mexico violated Articles 2 and 11.3 because the margin was

13Panel Report, paragraphs. 7.150, 7.151, 8.8.
14Panel Report, paragraph. 8.5.
15Panel Report, paragraph. 6.19.
16See Panel Report, paragraphs. 7.150, 7.151, 8.8; see also Panel Report, paragraph. 3.1 (15th bullet)
("in the alternative, assuming arguendo, that a cumulative injury analysis is permitted in sunset reviews, USITC
violated Articles 11.3 and 3.3 because USITC failed to apply the requirements of Article 3.3 in this case").
17Panel Report, paragraphs. 6.10, 6.11, 7.78, 7.81, 7.83, 8.3.

not calculated in accordance with the requirements of Article 2, and was used as an
integral part of the determination under Article 11.3;
b. The Panel failed to find that the "margin lik ely to prevail" determined by the USDOC
was a pre-WTO margin that was not the result of the application of the provisions of
the Anti-Dumping Agreement and was therefore inconsistent with Articles 1, 2, 11.3,
and 18.3 of the Agreement; and
c. The Panel failed to find that the USITC's use of the WTO-inconsistent "margin likely to
prevail" for purposes of its likelihood of injury analysis rendered its likelihood
determination inconsistent with Article 11.3.
4. Mexico seeks review by the Appellate Body of the Panel's failure to make a specific finding
that the United States had no legal basis to conti nue its anti-dumping measure on OCTG from Mexico
beyond the maximum five year period established by Article 11.3 of the Anti-Dumping Agreement.
The Panel's conclusions on this issue are in erro r, and are based on erroneous findings on issues of
law and related legal interpretations. The err oneous findings of the Panel include the Panel's
conclusions that "[o]ur decision not to make any suggestion regarding implementation, and
specifically not to suggest immediate termination of the measure, fully disposed of Mexico's request,
and no further findings are necessary."
18 In making this determination, the Panel erred in interpreting
and applying Article 11.3.
5. In the event of appeal by the United States and reversal by the Appellate Body on any of the
conclusions reached by the Panel regarding the USDOC's Sunset Policy Bulletin (SPB), Mexico
respectfully requests the Appellate Body to address, complete the analysis, and rule in favor of
Mexico on the following claims, on which the Panel declined to rule:
a. Mexico's claim that the US statute, the US Statement of Administrative Action (SAA),
and the SPB violate Article 11.3 of the An ti-Dumping Agreement as such. The Panel
considered that it was not "obliged to make findings in this context with respect to each
aspect of Mexico's arguments in support of its claim."19
b. Mexico's claim that United States failed to administer in an impartial and reasonable
manner US anti-dumping laws, regulations, deci sions and rulings with respect to the
USDOC's sunset reviews of anti-dumping duty or ders, in violation of Article X:3(a).
Having found that the relevant portions of th e SPB were inconsistent with Article 11.3,
the Panel stated that it did not need to address this claim.20

18Panel Report, paragraphs. 6.22. See also paragraph. 8.18.
19Panel Report, paragraph. 6.6.
20Panel report, paragraphs. 7.67, 8.13.

Annex II

19 August 2005
 (05-3686)
 Original: English

Notification of an Other Appeal by the United States
under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU)
and Rule 23(1) of the Working Procedures for Appellate Review

 The following notification dated 16 August 2005, from the delegation of the United States, is
being circulated to Members.

 Pursuant to Rule 23 of the Working Procedures for Appellate Review , the United States
hereby notifies its decision to appeal to the Appellate Body certain issues of law covered in the Report
of the Panel on United States – Anti-dumping Measures on O il Country Tubular Goods (OCTG) from
Mexico (WT/DS282/R) ("Panel Report") and certain legal interpretations developed by the Panel in
this dispute.
1. The United States seeks review by the Appellate Body of the Panel’s legal conclusion that the
Sunset Policy Bulletin is inconsis tent with Article 11.3 of the Agreement on Implementation of
Article VI of the General Agreem ent on Tariffs and Trade 1994 ("Anti-Dumping Agreement"). This
conclusion is in error and is base d on erroneous findings on issues of law and related interpretations,
including:
(a) The Panel failed to apply the correct burden of proof. 1 Although elsewhere in the
report the Panel correctly articulated the standard for burden of proof and making a
prima facie case 2, the Panel failed to apply that standard in evaluating whether
Mexico made a prima facie case with respect to the Sunset Policy Bulletin. 3 T h e
Panel also misapplied the Appellate Body’s analysis in United States – Sunset
Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina in
concluding that Mexico had made a prima facie case.4

1See, e.g., Panel Report, paras. 6.26-6.28, 8.1.
2Panel Report, para. 7.8.
3Panel Report, paras. 6.28, 7.49 and 7.64, footnote 85.
4Panel Report, para. 6.27.

(b) The Panel failed to apply the correct sta ndard in evaluating whether the Sunset Policy
Bulletin is inconsistent with Article 11.3 of the Anti-Dumping Agreement.5
2 The United States seeks review by the Appe llate Body, pursuant to Article 11 of the
Understanding on Rules and Procedures Go verning the Settlement of Disputes ("DSU"), of the
finding that the Sunset Policy Bulletin is inconsis tent "as such" with the obligation set forth in
Article 11.3 of the Antidumping Agreement. 6 The Panel failed to make an objective assessment of
the matter before it, including a failure to make an objective assessment of the facts of the case,
contrary to Article 11 of the DSU. For example, the United States noted that the Panel had failed to
identify other factors that formed the basis for Commerce’s determination in Sugar and Syrups from
Canada7, but the Panel simply dismissed the consid eration of other factors as "subsidiary". 8 T h e
Panel also selectively quoted statements from the sunset determinations it analyzed, ignoring
exculpatory statements found in the same determinations. 9 The Panel’s analysis was also
contradictory10 and unsupported by the facts.11

5Panel Report, paras. 7.55, 7.61, 7.63, footnote 86.
6Panel Report, para. 8.1.
7U.S. Comments on Interim Report, para. 8.
8Panel Report, para. 6.35.
9See, e.g., paras. 6.35, 7.60. See U.S. Comments on Interim Report, paras. 6 and 8-9, Panel Report,
para. 6.29.
10Panel Report, paras. 7.38, 7.40, 7.58, and 7.63.
11Panel Report, paras. 7.45, 7.55, and 7.61.