GUATEMALA - ANTI-DUMPING INVESTIGATION REGARDING PORTLAND CEMENT FROM MEXICO
Document: Request for the Establishment of a Panel by Mexico
Date: 13 February 1997
Document codes: WT/DS60/2; G/ADP/D3/2
Complainant: Mexico
Respondent: Guatemala
Third parties: Canada, El Salvador, Honduras, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. 7, Annex I  Anti-dumpingArt. VI  GATT 1994Art. 2, 3, 5, 6  Anti-dumping

GUATEMALA - ANTI-DUMPING INVESTIGATION REGARDING
PORTLAND CEMENT FROM MEXICO

Request for the Establishment of a Panel by Mexico

The following communication, dated 4 February 1997, from the Permanent Mission of Mexico
to the Chairman of the Dispute Settlement Body is circulated at the request of that delegation.

On 15 October 1996, the Government of Mexico requested the Government of Guatemala to
conduct formal consultations under Article 17 of the Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994 (hereafter the "Anti-Dumping Agreement" or "AD")
and Article 4 of the Understanding on Rules and Procedures for the Settlement of Disputes (hereafter
"Dispute Settlement Understanding" or "DSU"), of the (WTO). In accordance
with the procedures laid down in the DSU, this request was notified to the Dispute Settlement Body
(DSB), the Council for Trade in Goods and the Anti-Dumping Committee. The request was circulated
to WTO Members on 24 October 1996 ().

The consultations requested by the Government of Mexico were held on 9 January 1997 in
Guatemala City, Guatemala. As the consultations did not produce a satisfactory solution to the matter
(as is shown by the fact that the Government of Guatemala not only did not revoke the provisional
anti-dumping duties but increased them in the final resolution to a level of 89.54 per cent, well above
the amount claimed by the petitioner), and taking into account that the time-period established for
conducting consultations under Article 4 of the DSU has been amply exceeded, the Government of
Mexico requests that at the next meeting of the Dispute Settlement Body, scheduled for
25 February 1997, a dispute settlement panel be established to examine the consistency of the
anti-dumping investigation by the Government of Guatemala into Guatemalan imports of portland cement
from Mexico with Guatemala’s obligations under the WTO, in particular those contained in the
Anti-Dumping Agreement.

The Government of Mexico requests that the Panel examine, find and rule that the anti-dumping
investigation in question is incompatible with Guatemala’s obligations under the AD. Mexico considers
that in the anti-dumping investigation in question actions were taken that are inconsistent with, at least,
Articles VI of the General Agreement on Tariffs and Trade 1994, and 2, 3, 5, 6 and 7 of the
Anti-Dumping Agreement and Annex IJ thereto. By way of example, the aspects of the investigation
presenting the main inconsistencies with the Anti-Dumping Agreement are highlighted below.

(a) Initiation:

(i) The application for the initiation of the investigation submitted by the sole
cement-producing firm in Guatemala contains, among other shortcomings:

e simple assertions unsubstantiated by relevant evidence for the
determination of the alleged dumping (e.g. only two invoices were
submitted, each for one sack of cement, as proof of prices on the
Mexican market, from which it cannot possibly be deduced that they
are representative, that is to say, qualify as the normal value; and as
proof of the export price, the only evidence submitted was photocopies
of two import certificates for a total value of about US$30,000;

e allegations or conjectures as to the threat of injury to the Guatemalan
industry, without the petitioner submitting any evidence ofits existence
within the meaning of Article VI of GATT 1994 (e.g. as evidence of
the volume of imports - the Guatemalan investigating authority’s sole
alleged proof of injury - the Guatemalan firm requested that this
information be sought from the Guatemalan Directorate-General of
Customs, and it was not officially available to the Ministry of the
Economy of Guatemala until after the investigation had been initiated);

e simple assertions as to the causal relationship between the dumped
imports and the alleged threat of injury to the Guatemalan industry,
without any evidence at all having been submitted in this respect.

(ii) initiation of the investigation by the Guatemalan investigating authority without
examining the accuracy and relevance of the evidence submitted in the
application to determine whether there was sufficient evidence to justify the
initiation of the investigation, owing inter alia to the absence of relevant data
to calculate normal value (this was based solely on two invoices, each for one
sack of cement, submitted by the Guatemalan firm making the application),
shortcomings in the methodology for comparing the normal value with the
export price (the latter was calculated exclusively on the basis of the above-
mentioned two import certificates, without considering differences influencing
price comparability), absence of evidence of threat of injury to the Guatemalan
industry and absence of relevant proof or even arguments to demonstrate the
existence of a causal link between the alleged dumping and the alleged threat
of injury.

(iii) —_ lack of notification to the Government of Mexico prior to the initiation of the
investigation;

(iv) non-compliance with the obligation to make available the full text of the

application to the exporter and to the Government of Mexico as soon as the
investigation had been initiated.

(b) Preliminary resolution:

(i) positive determination of a margin of dumping in violation of the guidelines
laid down in the Agreement;

(ii) positive determination of threat of injury in violation of the guidelines laid down
in the Agreement;

(iii) | attempt to equate the accumulation of inventories of raw material (clinker) with
inventories of the product under investigation (cement) for the determination
of threat of injury;

(iv) attribution to imports from Mexico of the threat of injury to the Guatemalan
domestic industry caused by other factors (e.g. increase in inventories, decline
in sales, kiln stoppages, inter alia);

(v) failure to demonstrate a causal relationship between imports from Mexico and
the alleged threat of injury;

(c) Final stage of the proceeding:

(i) extension of the investigation period, investigated firms and investigated product
10 months after the initiation of the investigation;

(ii) irregularities in the notification and conduct of the verification visit to the
Mexican exporting firm (e.g. lack of notification to the Mexican Government
of the inclusion of non-governmental experts and no justification of their
participation);

(iii) outright cancellation of the verification visit by the Guatemalan Government
as a result of the objections by the Mexican Government and the exporting
firm to the inclusion of non-governmental experts with a possible conflict of
interest in the conduct of the verification visit and to the wish to verify
information not provided during the investigation, thus treating it as an
"uncooperative" firm;

(iv) _ violation of the Mexican exporter’s right of defence by denying it timely access
to examine all the relevant information for the presentation of its arguments
and to prepare its submission on the basis of such information (e.g. the
information corresponding to the final submissions presented in writing by the
petitioner at the public hearing and the essential facts that would be taken into
account for the final resolution were not made available to the exporter;
hindering of access to the administrative record, etc.).

The Government of Mexico considers that the anti-dumping investigation in question should
never have been initiated, owing to the inconsistencies that arose from the very start, and that both
its initiation and its subsequent conduct led to the nullification or impairment of benefits accruing to
Mexico under the WTO, and in particular under the Anti-Dumping Agreement, within the meaning
of Article XXIII of GATT 1994 and 17 of the AD.