PAKISTAN – ANTI-DUMPING MEASURES ON BIAXIALLY ORIENTED POLYPROPYLENE FILM FROM THE UNITED ARAB EMIRATES REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 18 January 2021
Document codes: WT/DS538/R
Complainant: UAE
Respondent: Pakistan
Third parties: Afghanistan, China, EU, Japan, Oman, Russia, Saudi Arabia, U.S.
Dispute stage: Panel
Agreements cited: Art. 5.2, 5.3, 5.8, 1, 2.1, 3.1, 9.1, 9.3, 11.1, 5.10, 6.8, Annex II, 2.2.1.1, 2.2.2, 2.2, 2.2.1, 2.4, 3.1, 3.2, 3.4, 3.5, 6.2, 6.4, 6.5, 6.5.1, 6.9, 11.2, 11.3, 2, 11.4, 6.7, 12.1, 12.2, 12.3, 18.1  Anti-dumpingArt. VI:1, VI:2  GATT 1994

PAKISTAN – ANTI-DUMPING MEASURES ON BIAXIALLY ORIENTED
POLYPROPYLENE FILM FROM THE UNITED ARAB EMIRATES
REPORT OF THE PANEL

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LIST OF ANNEXES
ANNEX A
PANEL DOCUMENTS
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures of the Panel on Business Confidential Information 11
Annex A-3 Panel communication to the Parties (14 April 2020) 13
Annex A-4 Panel communication to the Parties (23 April 2020) 14
Annex A-5 Panel communication to the Parties (20 May 2020) 15
Annex A-6 Arrangements relating to the second substantive meeting in light of the
COVID-19 pandemic
16
Annex A-7 Panel communication to the Parties (21 July 2020) 17
Annex A-8 Interim review 18
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of the United Arab Emirates 31
Annex B-2 Integrated executive summary of the arguments of Pakistan 46
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of the European Union 67
Annex C-2 Integrated executive summary of the arguments of Japan 69
Annex C-3 Integrated executive summary of the arguments of the United States 71

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CASES CITED IN THIS REPORT
Short Title Full Case Title and Citation
Argentina – Ceramic Tiles Panel Report, Argentina – Definitive Anti-Dumping Measures on Imports of
Ceramic Floor Tiles from Italy, , adopted 5 November 2001,
DSR 2001:XII, p. 6241
Argentina – Poultry
Anti-Dumping Duties
Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from
Brazil, , adopted 19 May 2003, DSR 2003:V, p. 1727
Australia – Anti-Dumping
Measures on Paper
Panel Report, Australia – Anti-Dumping Measures on A4 Copy Paper,
WT/DS529/R and Add.1, adopted 28 January 2020
Canada – Wheat Exports
and Grain Imports
Appellate Body Report, Canada – Measures Relating to Exports of Wheat and
Treatment of Imported Grain, WT/DS276/AB/R, adopted 27 September 2004,
DSR 2004:VI, p. 2739
China – Autos (US) Panel Report, China – Anti-Dumping and Countervailing Duties on Certain
Automobiles from the United States, WT/DS440/R and Add.1, adopted
18 June 2014, DSR 2014:VII, p. 2655
China – Broiler Products Panel Report, China − Anti-Dumping and Countervailing Duty Measures on
Broiler Products from the United States, WT/DS427/R and Add.1, adopted
25 September 2013, DSR 2013:IV, p. 1041
China – Broiler Products
(Article 21.5 – US)
Panel Report, China − Anti-Dumping and Countervailing Duty Measures on
Broiler Products from the United States – Recourse to Article 21.5 of the DSU
by the United States, WT/DS427/RW and Add.1, adopted 28 February 2018
China – Cellulose Pulp Panel Report, China – Anti-Dumping Measures on Imports of Cellulose Pulp
from Canada, WT/DS483/R and Add.1, adopted 22 May 2017, DSR 2017:IV,
p. 1961
China – GOES Appellate Body Report, China – Countervailing and Anti-Dumping Duties on
Grain Oriented Flat-Rolled Electrical Steel from the United States,
WT/DS414/AB/R, adopted 16 November 2012, DSR 2012:XII, p. 6251
China – GOES Panel Report, China – Countervailing and Anti-Dumping Duties on Grain
Oriented Flat-Rolled Electrical Steel from the United States, WT/DS414/R and
Add.1, adopted 16 November 2012, upheld by Appellate Body Report
WT/DS414/AB/R, DSR 2012:XII, p. 6369
China – HP-SSST (Japan) /
China – HP-SSST (EU)
Appellate Body Reports, China – Measures Imposing Anti-Dumping Duties on
High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan /
China – Measures Imposing Anti-Dumping Duties on High-Performance
Stainless Steel Seamless Tubes ("HP-SSST") from the European Union,
WT/DS454/AB/R and Add.1 / WT/DS460/AB/R and Add.1, adopted
28 October 2015, DSR 2015:IX, p. 4573
China – HP-SSST (Japan) /
China – HP-SSST (EU)
Panel Reports, China – Measures Imposing Anti-Dumping Duties on High-
Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan / China –
Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel
Seamless Tubes ("HP-SSST") from the European Union, WT/DS454/R and
Add.1 / WT/DS460/R, Add.1 and Corr.1, adopted 28 October 2015, as modified
by Appellate Body Reports WT/DS454/AB/R / WT/DS460/AB/R, DSR 2015:IX,
p. 4789
China – X-Ray Equipment Panel Report, China – Definitive Anti-Dumping Duties on X-Ray Security
Inspection Equipment from the European Union, WT/DS425/R and Add.1,
adopted 24 April 2013, DSR 2013:III, p. 659
EC – Bananas III
(Article 21.5 – Ecuador)
Panel Report, European Communities – Regime for the Importation, Sale and
Distribution of Bananas – Recourse to Article 21.5 of the DSU by Ecuador,
WT/DS27/RW/ECU, adopted 6 May 1999, DSR 1999:II, p. 803
EC – Bed Linen
(Article 21.5 – India)
Panel Report, European Communities – Anti-Dumping Duties on Imports of
Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSU by
India, WT/DS141/RW, adopted 24 April 2003, as modified by Appellate Body
Report WT/DS141/AB/RW, DSR 2003:IV, p. 1269
EC – Export Subsidies on
Sugar (Australia)
Panel Report, European Communities – Export Subsidies on Sugar, Complaint
by Australia, WT/DS265/R, adopted 19 May 2005, as modified by
Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R,
DSR 2005:XIII, p. 6499

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Short Title Full Case Title and Citation
EC – Export Subsidies on
Sugar (Brazil)
Panel Report, European Communities – Export Subsidies on Sugar, Complaint
by Brazil, WT/DS266/R, adopted 19 May 2005, as modified by Appellate Body
Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIV,
p. 6793
EC – Export Subsidies on
Sugar (Thailand)
Panel Report, European Communities – Export Subsidies on Sugar, Complaint
by Thailand, WT/DS283/R, adopted 19 May 2005, as modified by
Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R,
DSR 2005:XIV, p. 7071
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R,
adopted 28 July 2011, DSR 2011:VII, p. 3995
EC – Fasteners (China)
(Article 21.5 – China)
Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China – Recourse to
Article 21.5 of the DSU by China, WT/DS397/AB/RW and Add.1, adopted
12 February 2016, DSR 2016:I, p. 7
EC – Trademarks and
Geographical Indications
(Australia)
Panel Report, European Communities – Protection of Trademarks and
Geographical Indications for Agricultural Products and Foodstuffs, Complaint by
Australia, WT/DS290/R, adopted 20 April 2005, DSR 2005:X, p. 4603
EC – Trademarks and
Geographical Indications
(US)
Panel Report, European Communities – Protection of Trademarks and
Geographical Indications for Agricultural Products and Foodstuffs, Complaint by
the United States, WT/DS174/R, adopted 20 April 2005, DSR 2005:VIII,
p. 3499
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on
Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/AB/R, adopted
18 August 2003, DSR 2003:VI, p. 2613
EC – Tube or Pipe Fittings Panel Report, European Communities – Anti-Dumping Duties on Malleable Cast
Iron Tube or Pipe Fittings from Brazil, WT/DS219/R, adopted 18 August 2003,
as modified by Appellate Body Report WT/DS219/AB/R, DSR 2003:VII, p. 2701
Egypt – Steel Rebar Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar from
Turkey, WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, p. 2667
EU – Biodiesel (Argentina) Appellate Body Report, European Union – Anti-Dumping Measures on Biodiesel
from Argentina, WT/DS473/AB/R and Add.1, adopted 26 October 2016,
DSR 2016:VI, p. 2871
EU – Biodiesel (Argentina) Panel Report, European Union – Anti-Dumping Measures on Biodiesel from
Argentina, WT/DS473/R and Add.1, adopted 26 October 2016, as modified by
Appellate Body Report WT/DS473/AB/R, DSR 2016:VI, p. 3077
EU – Cost Adjustment
Methodologies II (Russia)
Panel Report, European Union – Cost Adjustment Methodologies and Certain
Anti-Dumping Measures on Imports from Russia (Second Complaint),
WT/DS494/R and Add.1, circulated to WTO Members 24 July 2020 [appealed
by the European Union 28 August 2020]
EU – Fatty Alcohols
(Indonesia)
Appellate Body Report, European Union – Anti-Dumping Measures on Imports
of Certain Fatty Alcohols from Indonesia, WT/DS442/AB/R and Add.1, adopted
29 September 2017, DSR 2017:VI, p. 2613
EU – Fatty Alcohols
(Indonesia)
Panel Report, European Union – Anti-Dumping Measures on Imports of Certain
Fatty Alcohols from Indonesia, WT/DS442/R and Add.1, adopted
29 September 2017, as modified by Appellate Body Report WT/DS442/AB/R,
DSR 2017:VI, p. 2765
EU – Footwear (China) Panel Report, European Union – Anti-Dumping Measures on Certain Footwear
from China, WT/DS405/R, adopted 22 February 2012, DSR 2012:IX, p. 4585
EU – PET (Pakistan) Panel Report, European Union – Countervailing Measures on Certain
Polyethylene Terephthalate from Pakistan, WT/DS486/R, Add.1 and Corr.1,
adopted 28 May 2018, as modified by Appellate Body Report WT/DS486/AB/R
Guatemala – Cement I Panel Report, Guatemala – Anti-Dumping Investigation Regarding Portland
Cement from Mexico, WT/DS60/R, adopted 25 November 1998, as reversed by
Appellate Body Report WT/DS60/AB/R, DSR 1998:IX, p. 3797
Guatemala – Cement II Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey Portland
Cement from Mexico, WT/DS156/R, adopted 17 November 2000, DSR 2000:XI,
p. 5295
India – Quantitative
Restrictions
Panel Report, India – Quantitative Restrictions on Imports of Agricultural,
Textile and Industrial Products, WT/DS90/R, adopted 22 September 1999,
upheld by Appellate Body Report WT/DS90/AB/R, DSR 1999:V, p. 1799

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Short Title Full Case Title and Citation
Japan – Apples
(Article 21.5 – US)
Panel Report, Japan – Measures Affecting the Importation of Apples – Recourse
to Article 21.5 of the DSU by the United States, WT/DS245/RW, adopted
20 July 2005, DSR 2005:XVI, p. 7911
Korea – Certain Paper Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from
Indonesia, WT/DS312/R, adopted 28 November 2005, DSR 2005:XXII,
p. 10637
Korea – Certain Paper
(Article 21.5 – Indonesia)
Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from
Indonesia – Recourse to Article 21.5 of the DSU by Indonesia, WT/DS312/RW,
adopted 22 October 2007, DSR 2007:VIII, p. 3369
Korea – Pneumatic Valves
(Japan)
Panel Report, Korea – Anti-Dumping Duties on Pneumatic Valves from Japan,
WT/DS504/R and Add.1, adopted 30 September 2019, as modified by
Appellate Body Report WT/DS504/AB/R
Korea – Stainless Steel Bars Panel Report, Korea – Sunset Review of Anti-Dumping Duties on Stainless Steel
Bars, WT/DS553/R and Add.1, circulated to WTO Members 30 November 2020
[adoption/appeal pending]
Mexico – Anti-Dumping
Measures on Rice
Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on Beef and
Rice, Complaint with Respect to Rice, WT/DS295/AB/R, adopted
20 December 2005, DSR 2005:XXII, p. 10853
Mexico – Anti-Dumping
Measures on Rice
Panel Report, Mexico – Definitive Anti-Dumping Measures on Beef and Rice,
Complaint with Respect to Rice, WT/DS295/R, adopted 20 December 2005, as
modified by Appellate Body Report WT/DS295/AB/R, DSR 2005:XXIII, p. 11007
Mexico – Corn Syrup Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn
Syrup (HFCS) from the United States, WT/DS132/R, adopted
24 February 2000, and Corr.1, DSR 2000:III, p. 1345
Mexico – Corn Syrup
(Article 21.5 – US)
Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose
Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 of the
DSU by the United States, WT/DS132/AB/RW, adopted 21 November 2001,
DSR 2001:XIII, p. 6675
Mexico – Steel Pipes and
Tubes
Panel Report, Mexico – Anti-Dumping Duties on Steel Pipes and Tubes from
Guatemala, WT/DS331/R, adopted 24 July 2007, DSR 2007:IV, p. 1207
Morocco – Hot-Rolled Steel
(Turkey)
Panel Report, Morocco – Anti-dumping Measures on Certain Hot-Rolled Steel
from Turkey, WT/DS513/R and Add.1, adopted 8 January 2020; appeal
withdrawn by Morocco as reflected in Appellate Body Report WT/DS513/AB/R
Russia – Commercial
Vehicles
Panel Report, Russia – Anti-Dumping Duties on Light Commercial Vehicles from
Germany and Italy, WT/DS479/R and Add.1, adopted 9 April 2018, as modified
by Appellate Body Report WT/DS479/AB/R
Thailand – H-Beams Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections
of Iron or Non-Alloy Steel and H-Beams from Poland, WT/DS122/R, adopted
5 April 2001, as modified by Appellate Body Report WT/DS122/AB/R,
DSR 2001:VII, p. 2741
Ukraine – Ammonium
Nitrate
Panel Report, Ukraine – Anti-Dumping Measures on Ammonium Nitrate,
WT/DS493/R, Add.1 and Corr.1, adopted 30 September 2019, as upheld by
Appellate Body Report WT/DS493/AB/R
Ukraine – Passenger Cars Panel Report, Ukraine – Definitive Safeguard Measures on Certain Passenger
Cars, WT/DS468/R and Add.1, adopted 20 July 2015, DSR 2015:VI, p. 3117
US – Anti-Dumping
Measures on Oil Country
Tubular Goods
Appellate Body Report, United States – Anti-Dumping Measures on Oil Country
Tubular Goods (OCTG) from Mexico, WT/DS282/AB/R, adopted
28 November 2005, DSR 2005:XX, p. 10127
US – Clove Cigarettes Appellate Body Report, United States – Measures Affecting the Production and
Sale of Clove Cigarettes, WT/DS406/AB/R, adopted 24 April 2012,
DSR 2012:XI, p. 5751
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application of
Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009,
DSR 2009:III, p. 1291
US – Corrosion-Resistant
Steel Sunset Review
Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties
on Corrosion-Resistant Carbon Steel Flat Products from Japan,
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, p. 3

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Short Title Full Case Title and Citation
US – Corrosion-Resistant
Steel Sunset Review
Panel Report, United States – Sunset Review of Anti-Dumping Duties on
Corrosion-Resistant Carbon Steel Flat Products from Japan, WT/DS244/R,
adopted 9 January 2004, as modified by Appellate Body Report
WT/DS244/AB/R, DSR 2004:I, p. 85
US – Cotton Yarn Panel Report, United States – Transitional Safeguard Measure on Combed
Cotton Yarn from Pakistan, WT/DS192/R, adopted 5 November 2001, as
modified by Appellate Body Report WT/DS192/AB/R, DSR 2001:XII, p. 6067
US – Countervailing Duty
Investigation on DRAMS
Appellate Body Report, United States – Countervailing Duty Investigation on
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea,
WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, p. 8131
US – Countervailing Duty
Investigation on DRAMS
Panel Report, United States – Countervailing Duty Investigation on Dynamic
Random Access Memory Semiconductors (DRAMS) from Korea, WT/DS296/R,
adopted 20 July 2005, as modified by Appellate Body Report WT/DS296/AB/R,
DSR 2005:XVII, p. 8243
US – DRAMS Panel Report, United States – Anti-Dumping Duty on Dynamic Random Access
Memory Semiconductors (DRAMS) of One Megabit or Above from Korea,
WT/DS99/R, adopted 19 March 1999, DSR 1999:II, p. 521
US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-
Rolled Steel Products from Japan, WT/DS184/AB/R, adopted 23 August 2001,
DSR 2001:X, p. 4697
US – Hot-Rolled Steel Panel Report, United States – Anti-Dumping Measures on Certain Hot-Rolled
Steel Products from Japan, WT/DS184/R, adopted 23 August 2001 modified by
Appellate Body Report WT/DS184/AB/R, DSR 2001:X, p. 4769
US – Lamb Appellate Body Report, United States – Safeguard Measures on Imports of
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia,
WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX,
p. 4051
US – Lead and Bismuth II Panel Report, United States – Imposition of Countervailing Duties on Certain
Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the
United Kingdom, WT/DS138/R and Corr.2, adopted 7 June 2000, upheld by
Appellate Body Report WT/DS138/AB/R, DSR 2000:VI, p. 2623
US – Offset Act
(Byrd Amendment)
Panel Report, United States – Continued Dumping and Subsidy Offset Act
of 2000, WT/DS217/R, WT/DS234/R, adopted 27 January 2003, as modified by
Appellate Body Report WT/DS217/AB/R, WT/DS234/AB/R, DSR 2003:II, p. 489
US – Oil Country Tubular
Goods Sunset Reviews
Appellate Body Report, United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R,
adopted 17 December 2004, DSR 2004:VII, p. 3257
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain Shrimp
and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998,
DSR 1998:VII, p. 2755
US – Shrimp II (Viet Nam) Panel Report, United States – Anti-Dumping Measures on Certain Shrimp from
Viet Nam, WT/DS429/R and Add.1, adopted 22 April 2015, upheld by
Appellate Body Report WT/DS429/AB/R, DSR 2015:III, p. 1341
US – Softwood Lumber IV
(Article 21.5 – Canada)
Panel Report, United States – Final Countervailing Duty Determination with
Respect to Certain Softwood Lumber from Canada – Recourse by Canada to
Article 21.5 [of the DSU], WT/DS257/RW, adopted 20 December 2005, upheld
by Appellate Body Report WT/DS257/AB/RW, DSR 2005:XXIII, p. 11401
US – Softwood Lumber V Appellate Body Report, United States – Final Dumping Determination on
Softwood Lumber from Canada, WT/DS264/AB/R, adopted 31 August 2004,
DSR 2004:V, p. 1875
US – Softwood Lumber V Panel Report, United States – Final Dumping Determination on Softwood
Lumber from Canada, WT/DS264/R, adopted 31 August 2004, as modified by
Appellate Body Report WT/DS264/AB/R, DSR 2004:V, p. 1937
US – Softwood Lumber VI
(Article 21.5 – Canada)
Appellate Body Report, United States – Investigation of the International Trade
Commission in Softwood Lumber from Canada – Recourse to Article 21.5 of the
DSU by Canada, WT/DS277/AB/RW, adopted 9 May 2006, and Corr.1,
DSR 2006:XI, p. 4865

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Short Title Full Case Title and Citation
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Certain Steel Products, WT/DS248/AB/R, WT/DS249/AB/R,
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R,
WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003,
DSR 2003:VII, p. 3117
US – Supercalendered Paper Panel Report, United States – Countervailing Measures on Supercalendered
Paper from Canada, WT/DS505/R and Add.1, adopted 5 March 2020, as upheld
by Appellate Body Report WT/DS505/AB/R
US – Underwear Panel Report, United States – Restrictions on Imports of Cotton and Man-made
Fibre Underwear, WT/DS24/R, adopted 25 February 1997, as modified by
Appellate Body Report WT/DS24/AB/R, DSR 1997:I, p. 31
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology for
Calculating Dumping Margins ("Zeroing"), WT/DS294/AB/R, adopted
9 May 2006, and Corr.1, DSR 2006:II, p. 417
US – Zeroing (EC)
(Article 21.5 – EC)
Appellate Body Report, United States – Laws, Regulations and Methodology for
Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the DSU
by the European Communities, WT/DS294/AB/RW and Corr.1, adopted
11 June 2009, DSR 2009:VII, p. 2911
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and
Sunset Reviews, WT/DS322/AB/R, adopted 23 January 2007, DSR 2007:I, p. 3
US – Zeroing (Japan)
(Article 21.5 – Japan)
Appellate Body Report, United States – Measures Relating to Zeroing and
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan,
WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, p. 3441

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EXHIBITS REFERRED TO IN THIS REPORT
Exhibit Short title Description/Long title
ARE-1 Notice of final determination
(2015)
NTC, Notice of final determination and levy of definitive
antidumping duties on imports of biaxially oriented poly
propylene film into Pakistan originating in and/or exported
from the People's Republic of China, Sultanate of Oman,
Kingdom of Saudi Arabia and United Arab Emirates
(9 April 2015)
ARE-2 Report on final determination
(2013), public version
NTC, Report on the final determination final determination
and levy of definitive antidumping duties on imports of
biaxially oriented poly propylene film into Pakistan originating
in and/or exported from the People's Republic of China,
Sultanate of Oman, Kingdom of Saudi Arabia and
United Arab Emirates (4 February 2013)
ARE-3 Notice of conclusion of
sunset review
NTC, Notice of conclusion of sunset review and continuation
of anti -dumping duties imposed on dumped imports of
biaxially oriented polypropylene (BOPP) film imported from
China, Oman, Kingdom of Saudi Arabia , and UAE
(1 December 2016)
ARE-4 Report on sunset
determination, public version
NTC, Report on the conclusion of sunset review and
continuation of anti -dumping duties imposed on dumped
imports of biaxially oriented polypropylene (BOPP) film
imported from China, Oman, Kingdom of Saudi Arabia , and
UAE (28 November 2016)
ARE-5 Notice of initiation (2012) NTC, Notice of initiation of anti-dumping investigation against
alleged dumping of BOPP film originating in and/or exported
from the People's Republic of China, Sultanate of Oman,
Kingdom of Saudi Ara bia and United Arab Emirates
(23 April 2012)
ARE-6 NTC's letter of 27 April 2012 Letter dated 27 April 2012 from NTC to Taghleef requesting
to add any information to that already provided in
first questionnaire response
ARE-8 Taghleef's letter of
25 June 2012
Letter dated 25 June 2012 from Taghleef responding to
NTC's decision to re -initiate and to use old questionnaire
response data
ARE-9 Report on preliminary
determination
NTC, Report on preliminary determination and levy of
provisional antidumpin g duties on imports of biaxially
oriented poly propylene film into Pakistan originating in
and/or exported from the People's Republic of China,
Sultanate of Oman, Kingdom of Saudi Arabia and
United Arab Emirates (10 August 2012)
ARE-10 Notice of final det ermination
(2013)
NTC, Notice of final determination and levy of definitive
antidumping duties on imports of biaxially oriented poly
propylene film into Pakistan originating in and/or exported
from the People's Republic of China, Sultanate of Oman,
Kingdom of Saudi Arabia and United Arab Emirates
(7 February 2013)
ARE-12 Summary of Tri -Pack Films '
application for initiation
Tri-Pack Films Limited, Summary of application under the
Antidumping Duties Ordinance 2000 for initiation of an
investigation and imposition of antidumping measures for the
protection of the domestic industry producing biaxially
oriented polypropylene film against dumped imports of
biaxially oriented polypropylene film originating in and or
exported from China, Oman, Saudi Arabia and UAE
ARE-13 Taghleef's post-hearing
submission
Taghleef's written submission following a hearing held at the
NTC on 19 November 2012 (29 November 2012)
ARE-16 (BCI) Taghleef's questionnaire
response
Taghleef's response to exporter questionnaire
(7 December 2010)
ARE-17 Third deficiency letter Letter dated 22 February 2011 from NTC to Taghleef
requesting additional information and clarification concerning
questionnaire response
ARE-18 Taghleef's response to third
deficiency letter, redacted
version
Letter dated 1 March 2011 from Taghleef responding to the
NTC's deficiency letter of 22 February 2011 (redacted
version)
ARE-18b (BCI) Taghleef's response to third
deficiency letter
Letter dated 1 March 2011 from Taghleef responding to the
NTC's deficiency letter of 22 February 2011
ARE-18c (BCI)
(revised)
Taghleef's response to third
deficiency letter
Letter dated 1 March 2011 from Taghleef responding to the
NTC's deficiency letter of 22 February 2011 (revised)

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

Exhibit Short title Description/Long title
ARE-19 (BCI) Taghleef's letter of
30 November 2012
Letter dated 30 November 2012 from Taghleef to NTC
regarding dumping calculations and methodology used in
preliminary determination
ARE-20 Taghleef's response to
second deficiency letter,
redacted version
Letter dated 24 January 2011 from Taghleef responding to
the NTC's deficiency letter of 17 January 2011 (redacted
version)
ARE-20b (BCI) Taghleef's response to
second deficiency letter
Letter dated 24 January 2011 from Taghleef responding to
NTC's deficiency letter of 17 January 2011
ARE-22 (BCI) Taghleef's letter of
31 May 2011
Letter dated 31 May 2011 from Taghleef to NTC on level of
trade adjustments
ARE-23 Report on Tri -Pack Films
verification visit
NTC, Report on -the-spot verification visit to Tri -Pack Films
Limited (17 January 2011)
ARE-24b
(revised)
2009 Tri -Pack Films' Annual
Report
Tri-Pack Films Limited, Annual Report 2009 (revised)
ARE-25 Taghleef's comments on
statement of essential facts
Taghleef's comments on statement of essential facts
(17 January 2013)
ARE-26 2010 Tri -Pack Films' Annual
Report (excerpt)
Tri-Pack Films Limited, Annual Report 2010 (excerpt)
ARE-27 (BCI) NTC's explanation of sunset
methodology
NTC, Explanation of methodology used in determination of
likely continuation or recurrence of dumping in sunset review
of anti -dumping duties imposed on dumped imports of
Biaxially Oriented Polypropylene (BOPP) Film imports from
China, Oman, Kingdom of Saudi Arabia, and UAE
ARE-30 Notice of initiation of sunset
review
NTC, Notice of initiation of sunset review of anti -dumping
duties levied on dumped imports of BOPP film originating in
and/or exported from the People's Republic of China,
Sultanate of Oman , Kingdom of Saudi Arabia and
United Arab Emirates (4 August 2015)
ARE-31 (BCI) NTC's dumping calculations NTC dumping calculations for Taghleef LLC, Dubai
ARE-34 (BCI) Purchase Agreement Copy of Taghleef LLC and [[***]] Purchase Agreement 2009
ARE-36 (BCI)/
PAK-33 (BCI)
Appendix C -3 to Taghleef's
response to exporter
questionnaire
Appendix C -3 of Taghleef's response to exporter
questionnaire (7 December 2010)
ARE-40 (BCI) Taghleef's letter of
19 December 2012
Letter dated 19 December 2012 from Taghleef to the NTC
regarding cost of production of the product under
investigation
PAK-1 (BCI)
(revised)
Report on final determination
(2013)
NTC, Report on final determination and levy of definitive
antidumping duties on imports of biaxially oriented
polypropylene film into Pakistan originating in and/or
exported from the People's Republic of China, Sultanate of
Oman, Kingdom of Saudi Arabia and United Arab Emirates
(4 February 2013)
PAK-2 (BCI)
(revised)
Report on sunset
determination
NTC, Conclusion of sunset review and continuation of
anti-dumping duties imposed on dumped imports of Biaxially
Oriented Polypropylene (BOPP) Film imported from China,
Oman, Kingdom of Saudi Arabia , and UAE
(28 November 2016)
PAK-8 (BCI)
(revised)
Tri-Pack Films' letter of
9 October 2010
Letter dated 9 October 2010 from Tri-Pack Films to the NTC
concerning additional data for antidumping investigation of
BOPP film
PAK-9 Initiation memorandum Memorandum dated 18 April 2012 from the Antidumping
Investigation Unit-I to the National Tariff Commission on the
initiation of an anti -dumping investigation against
alleged dumping of BOPP film originating in and/or exported
from the People's Republic of China, Sultanate of Oman,
Kingdom of Saudi Arabia and United Arab Emirates
PAK-10 Judgment of Anti -Dumping
Appellate Tribunal
Anti-Dumping Appellate Tribunal, Pakistan, Appeals Nos. 42,
43, 46, 47, 48, and 49 (23 January 2015)
PAK-12A (BCI) Taghleef's email of
18 December 2012
Email dated 18 December 2012 from Taghleef to the NTC
PAK-12B (BCI) Appendix to Taghleef's email
of 18 December 2012
Appendix to Taghleef's email dated 18 December 2012
PAK-13 (BCI) Appendix 2 to Taghleef's
response to exporter
questionnaire
Appendix 2 to Taghleef's questionnaire response
PAK-14 (BCI) Appendix D -3 to Taghleef's
response to exporter
questionnaire
Appendix D-3 to Taghleef's questionnaire response

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

Exhibit Short title Description/Long title
PAK-18 (BCI)
(revised)
Second deficiency letter Letter dated 17 January 2011 from NTC to Taghleef
requesting additional information and clarification concerning
questionnaire response
PAK-22 Judgment of Lahore High
Court
Lahore High Court, Case No. W.P. 4735/2016, International
Business Management, etc. v. Federation of Pakistan, etc.
PAK-26 Report on final determination
(2015)
NTC, Report on final determination an levy of definitive
antidumping duties on imports of biaxially oriented poly
propylene film into Pakistan originating in and/or exported
from the People's Republic of China, Sultanate of Oman,
Kingdom of Saudi Arabia and United Arab Emirates
(9 April 2015)
PAK-27 Ordinance No. LXV of 2000 The Anti -Dumping Duties Ordinance, 2000, Ordinance
No. LXV of 2000 (22 December 2000)
PAK-28 Amendment of the Ordinance
No. LXV of 2000
Act No. XXIII of 2011, Act to amend The Anti-Dumping Duties
Ordinance, 2000
PAK-29 Anti-Dumping Duties Rules Anti-Dumping Duties Rules, 2001
PAK-31 Order of Islamabad High
Court
Order of the Islamabad High Court, W.P. No. 2098 of 2011,
Metatex Pvt. Ltd. v. NTC
PAK-37 NTC's blank exporter
questionnaire
NTC, antidumping questionnaire for exporters/foreign
producers of BOPP film
PAK-39 (BCI) Annexure-XVI, calculations
of landed cost
Annexure-XVI, calculations of landed cost
PAK-49 Report on final determination
(2015), public version
NTC, Report on final determination an levy of definitive
antidumping duties on imports of biaxially oriented poly
propylene film into Pakistan originating in and/or exported
from the People's Republic of China, Sultanate of Oman,
Kingdom of Saudi Arabia an d United Arab Emirates
(9 April 2015)
PAK-50 Taghleef's response to
deficiency letter
Letter dated 23 December 2010 from Taghleef to the
NTC's deficiency letter of 20 December 2010

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

ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
Anti-Dumping Agreement Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994
BOPP biaxially oriented polypropylene
CIF cost, insurance, freight
COP cost of production
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement
of Disputes
GAAP generally accepted accounting principles
GATT 1994 General Agreement on Tariffs and Trade 1994
NTC National Tariff Commission
PKR Pakistani Rupees
POI period of investigation
PRAL Pakistan Revenue Automation Limited
ROI return on investment
SG&A administrative, selling, and general costs
Taghleef Taghleef Industries LLC
Taghleef LLC, Dubai
Taghleef LLC
Taghleef Dubai
Taghleef SAOC Taghleef Industries SAOC
Taghleef Industries SAOG
Taghleef SAOC, Oman
Taghleef Oman
Ti Group Taghleef Industries Group
Tri-Pack Films Tri-Pack Films Limited

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

1 INTRODUCTION
1.1 Consultations
1.1. On 24 January 2018, the United Arab Emirates ( UAE) requested consultations with Pakistan
pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement
of Disputes (DSU), Article XXII:1 of the General Agreement on Tariffs and Trade 1994 (GATT 1994),
and Articles 17.2 and 17.3 of the Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 (Anti -Dumping Agreement), with respect to the
measures and claims set out below.1
1.2. Consultations were held on 27 March 2018 but did not resolve the dispute.
1.2 Panel establishment and composition
1.3. On 15 May 2018, the United Arab Emirates requested the establishment of a panel pursuant
to Article 6 of the DSU , Article XXIII of the GATT 1994, and Article 17.4 of the
Anti-Dumping Agreement, with standard terms of reference.2 Based on this request, in accordance
with Article 6 of the DSU, the Dispute Settlement Body (DSB) established a panel at its meeting of
29 October 2018.3
1.4. The Panel's terms of reference are the following:
To examine, in the light of the relevant provisions of the covered agreements cited by
the parties to the dispute, the matter referred to the DSB by the United Arab Emirates
in document WT/DS538/2 and to make such findings as will assist the DSB in making
the recommendations or in giving the rulings provided for in those agreements.4
1.5. On 7 May 2019, the parties agreed that the panel would be composed as follows:
Chairperson: Ms Luz Elena Reyes de la Torre

Members: Mr Paul O'Connor
 Mr Wilhelm Meier

1.6. Afghanistan, China, the European Union, Japan, Oman, the Russian Federation, the
Kingdom of Saudi Arabia, and the United States notified their interest in participating in the Panel
proceedings as third parties.
1.3 Panel proceedings
1.7. After consultation with the p arties, on 25 September 2019 the Panel adopted its Working
Procedures5, Additional Working Procedures on Business Confidential Information 6, and timetable.
The Panel subsequently revised the timetable on 5 March 2020, 20 May 2020, and 21 July 2020.
1.8. The United Arab Emirates submitted its first written submission on 18 October 2019, and
Pakistan submitted its first written submission on 13 December 2019.7 The Panel held its
first substantive meeting with the parties on 5 and 6 February 2020. A session with the third parties
took place on 6 February 2020. Both parties submitted their second written submissions on
25 March 2020.

1 Request for consultations by the United Arab Emirates, WT/DS538/1 (United Arab Emirates'
consultations request).
2 Request for the establishment of a Panel by the United Arab Emirates, WT/DS538/2
(United Arab Emirates' panel request).
3 DSB, Minutes of Meeting held on 29 October 2018, WT/DSB/M/420.
4 Constitution note of the Panel, WT/DS538/3.
5 Working Procedures of the Panel (Annex A-1).
6 Additional Working Procedures of the Panel on Business Confidential Information (Annex A-2).
7 See para. 7.663 below.

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

1.9. In view of the various restrictions imposed on gatherings and international travel in relation to
the COVID-19 pandemic, holding the second substantive meeting in the manner and at the time
initially envis aged in the time table became imp ossible. Therefore, on 14 April 2020, the Panel
consulted the parties on the possibility of hearing them through a written procedure, while reserving
the possibility of convening a meeting at a later date. 8 The parties provided comments on the
Panel's proposal on 17 April 2020. The United Arab Emirates agreed with the proposed course of
action9, whereas Pakistan suggested that the Panel delay its decision and reassess the situation in
mid-May, taking into account the evolution of restrictions related to the pandemic.10 On
23 April 2020, the Panel decided to reassess the situation in mid -May and to announce its decision
to the parties on 20 May 2020.11
1.10. As significant restrictions on international travel and meetings as a result of the COVID -19
pandemic were still in place in mid -May, it became clear that holding the second meeting with the
parties would not be possible in the near future. To avoid the risk of further delays, the Panel decided
on 20 May 2020 to hear the parties through a written procedure in lieu of the second substantive
meeting. The Panel reserved the possibility to convene an in-person meeting at a later date , if it
considered it necessary to effectively discharge its mandate .12 The parties did not object to this
decision. The written procedure in lieu of the second substantive meeting took place from 9 June to
17 July 2020.13 Following the completion of the written procedure, on 21 July 2020 the Panel decided
that an additional in-person meeting was not necessary to effectively discharge its mandate.14
1.11. On 4 September 2020, the Panel issued the descriptive part of its Report to the parties. The
Panel issued its Interim Report to the parties on 6 November 2020. The Panel issued its Final Report
to the parties on 14 December 2020.
2 FACTUAL ASPECTS: THE MEASURES AT ISSUE
2.1. On 12 April 2010, Tri -Pack Films Limited (Tri -Pack Films) filed an application with
Pakistan's anti-dumping authority, the National Tariff Commission (NTC), to initiate an investigation
into imports of biaxially oriented polypropylene (BOPP) film from, among others, the
United Arab Emirates.15 On 27 September 2010, the NTC initiated an investigation on the basis of
that application.16
2.2. On 6 July 2011, the Islamabad High Court ordered the NTC to suspend its investigation.17
On 6 March 2012, the Islamabad High Court voided the NTC's 27 September 2010 initiation due to
a defect in the composition of the NTC . In the same decision , the court held that the NTC " may
proceed with the complaint pending before [it]".18 As a result, on 23 April 2012 the NTC initiated a
second investigation into BOPP film, on the basis of Tri-Pack Films' 12 April 2010 application.19
2.3. The NTC issued the preliminary determination in its second investigation of imports of
BOPP film (i.e. the investigation that was initiated on 23 April 2012) on 14 August 2012.20 The NTC
issued the Notice of final determination in that investigation on 7 February 201321, having set forth
its findings in a separate report dated 4 February 2013 (Report on final determination of

8 Panel communication to the Parties (14 April 2020) (Annex A-3).
9 United Arab Emirates' comments on the Panel's communication of 14 April 2020.
10 Pakistan's comments on the Panel's communication of 14 April 2020.
11 Panel communication to the Parties (23 April 2020) (Annex A-4).
12 Panel communication to the Parties (20 May 2020) (Annex A-5).
13 Arrangements relating to the second substantive meeting in light of the COVID-19 pandemic
(Annex A-6).
14 Panel communication to the Parties (21 July 2020) (Annex A-7).
15 Report on final determination (2013), public version, (Exhibit ARE-2), section 5.1.
16 Report on final determination (2013), public version, (Exhibit ARE-2), section 5.2.
17 Report on final determination (2013), public version, (Exhibit ARE-2), section 5.2.
18 Order of Islamabad Hight Court, (Exhibit PAK-31). See also Pakistan's response to Panel question
No. 14; and Report on final determination (2013), public version, (Exhibit ARE-2), section 5.2.
19 Notice of initiation (2012), (Exhibit ARE-5).
20 Report on final determination (2013), public version, (Exhibit ARE-2), section 19. The Report on
preliminary determination is dated 10 August 2012. (Report on preliminary determination, (Exhibit ARE-9)).
21 Notice of final determination (2013), (Exhibit ARE-10). On the date of final determination, see fn 26
below.

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

4 February 2013).22 The NTC found that BOPP film from the United Arab Emirates was being dumped
in the Pakistani market, and imposed definitive anti-dumping duties at the rate of 29.70% for one
UAE exporter, Taghleef Industries LLC (Taghleef), and 57.09% for all other UAE exporters, with
effect until 14 August 2015.23
2.4. On 23 January 2015, the Anti -Dumping Appellate Tribunal of Pakistan set aside t he final
determination of 4 February 2013 and "remand[ed]" it to the NTC24, because the mandate of one of
the members of the NTC had expired at the time the determination had been adopted.25
2.5. On remand, the NTC adopted a final determination on 9 April 2015, which "ratified" its findings
of 4 February 2013 and the consequent "imposition of duty"26, at the same rate and with the same
end date as under the final determination of 4 February 2013.27 The separate report that
accompanied the final determination of 9 April 2015 (Report on final determination of 9 April 2015)
also physically incorporated, as annex-I, the Report on final determination of 4 February 2013.28
2.6. On 4 August 2015, following the receipt of an application from the domestic industry, the NTC
initiated a sunset review of the anti-dumping measures on imports of BOPP film from, among others,
the United Arab Emirates .29 Subsequently, in the context of proceedings relating to other
anti-dumping measures, the Lahore High Court found that one member of the NTC did not meet the
applicable qualification requirements. 30 Following that ruling, the NTC also suspended the BOPP
sunset review until 5 September 2016.31 The NTC then issued its sunset determination on
1 December 201632, extending the an ti-dumping duties, at the same rates, for five more years. 33
The NTC had adopted the separate report on this sunset determination on 28 November 2016
(Report on sunset determination of 28 November 2016).34
2.7. As set out below, the United Arab Emirates challenges (a) the final determination of
9 April 2015, which "ratified" the final determination of 4 February 2013 and incorporated the Report
on final determination of 4 February 2013 ; and (b) the sunset review determination of
1 December 2016.

22 Report on final determination (2013), (Exhibit PAK-1 (BCI) (revised)); Report on final
determination (2013), public version, (Exhibit ARE-2). In the proceedings at issue in this dispute, the NTC
accompanied its notices of final determination with a separate report setting forth its findings in more detail.
The parties have submitted to the Panel both a public version and a version containing BCI of the Report on
final determination (2013). The Panel has considered both the BCI and public versions of the Report on final
determination (2013) in making its assessment. However, whenever doing so does not have an impact on its
ultimate findings, in its Report the Panel has chosen to refer to the public version, with the aim of making the
meaning of the Panel Report as accessible as possible also in its public version.
23 Notice of final determination (2013), (Exhibit ARE-10), pp. 1-2; Report on final determination (2013),
public version, (Exhibit ARE-2), pp. 51-52.
24 Report on final determination (2015), public version, (Exhibit PAK-49), p. 2; Judgment of the
Anti-Dumping Appellate Tribunal, (Exhibit PAK-10).
25 Judgment of the Anti-Dumping Appellate Tribunal, (Exhibit PAK-10), paras. 7 and 9.
26 Report on final determination (2015), public version, (Exhibit PAK-49), p. 3; Notice of final
determination (2015), (Exhibit ARE-1), p. 2. We note that both documents refer to the earlier final
determination as being dated 4 February 2013 (i.e. the date of the Report on final determination), even though
we understand that the determination was in fact made public with the notice of 7 February 2013. This
difference of three days is not material to the dispute before us. We therefore refer to that determination as
being dated 4 February 2013.
27 Notice of final determination (2015), (Exhibit ARE-1), p. 2. See also para. 2.3 above.
28 Report on final determination (2015), public version, (Exhibit PAK-49), p. 3; Pakistan's response to
Panel question No. 95, para. 48.
29 Notice of initiation of sunset review, (Exhibit ARE-30); Report on sunset determination, public version,
(Exhibit ARE-4), para. 3.
30 Judgment of Lahore High Court, (Exhibit PAK-22), para. 12.
31 Report on sunset determination, public version, (Exhibit ARE-4), paras. 3-4 (referring to Judgment of
Lahore High Court, (Exhibit PAK-22), paras. 12 and 14).
32 Notice of conclusion of sunset review, (Exhibit ARE-3).
33 Notice of conclusion of sunset review, (Exhibit ARE-3), pp. 1-2.
34 Report on sunset determination, public version, (Exhibit ARE-4); Report on sunset determination,
(Exhibit PAK-2 (BCI) (revised)). The parties have submitted to the Panel both a public version and a version
containing BCI of the Report on sunset determination. The Panel has considered both the BCI and public
versions of the Report on sunset determination in making its assessment. However, whenever doing so does
not have an impact on its ultimate findings, in its Report the Panel has chosen to refer to the public version,
with the aim of making the meaning of the Panel Report as accessible as possible also in its public version.

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

3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1. The United Arab Emirates requests that the Panel find that Pakistan's final determination of
9 April 2015, which "ratified" the final determination of February 2013, is inconsistent with:
a. Articles 2.1, 2.2, 2.2.1, 2.2.1.1, 2.2.2, 2.4 , 3.1, 3.2, 3.4, 3.5, 5.2, 5.3, 5.8, 5.10, 6.2,
9.1, 9.3, 11.1, 12.1, and 12.2 of the Anti-Dumping Agreement; and
b. as a consequence, Articles 1 and 18.1 of the Anti -Dumping Agreement, and Articles VI:1
and VI:2 of the GATT 1994.
3.2. The United Arab Emirates further requests the Panel to find that Pakistan's sunset review
determination of 1 December 2016 is inconsistent with:
a. Articles 11.1, 11.3, 11.4, 12.2, and 12.3 of the Anti-Dumping Agreement; and
b. as a consequence, Articles 1 and 18.1 of the Anti-Dumping Agreement.
3.3. The United Arab Emirates requests that, pursuant to Article 19.1 of the DSU, the Panel
recommend that Pakistan bring its measures into conformity with its obligations under the
Anti-Dumping Agreement and the GATT 1994.35 Further, the United Arab Emirates requests that,
pursuant to Article 19.1 of the DSU, the Panel suggest that Pakistan "terminate the duties imposed"
and "refund the anti-dumping duties collected", in order to bring the measures into conformity with
its WTO obligations.36
3.4. Pakistan requests that the Panel find that the United Arab Emirates' claims under Articles 12.1,
12.2, and 12.3 of the Anti -Dumping Agreement are outside the Panel 's terms of reference 37, and
that the Panel reject the United Arab Emirates' claims in this dispute in their entirety.38 In the event
that the Panel finds that the United Arab Emirates has established any of the claimed inconsistencies,
Pakistan requests the Panel to reject the United Ara b Emirates' request for suggestions under
Article 19.1 of the DSU.
4 ARGUMENTS OF THE PARTIES
4.1. The arguments of the parties are reflected in their executive summaries, provided to the Panel
in accordance with paragraph 23 of the Working Procedures adopted by the Panel (see Annexes B-1
and B-2).
5 ARGUMENTS OF THE THIRD PARTIES
5.1. The arguments of the European Union, Japan, and the United States are reflected in their
executive summaries, provided in accordance with paragraph 26 of the Working Procedures adopted
by the Panel (see Annexes C-1, C-2, and C-3). Afghanistan, China, Oman, the Russian Federation ,
and the Kingdom of Saudi Arabia did not provide the Panel with a third -party submission and did
not make an oral statement at the third-party session of the first substantive meeting with the Panel.
6 INTERIM REVIEW
6.1. On 18 November 2020, the parties submitted written requests for the review of precise aspects
of the Interim Report. Neither party requested an interim review meeting. On 30 November 2020,
the parties submitted written comments on each other's requests for review. The Panel's discussion
and disposition of the parties' requests for review are set out in Annex A-8.

35 United Arab Emirates' first written submission, para. 622.
36 United Arab Emirates' first written submission, paras. 623 and 626.
37 Pakistan's first written submission, para. 3.729.
38 Pakistan's first written submission, para. 4.1.

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

7 FINDINGS
7.1. This dispute concerns anti -dumping measures that Pakistan has imposed on BOPP film from
the United Arab Emirates. On 4 February 2013, Pakistan adopted a final determination imposing
duties on BOPP film from the United Arab Emirates. In January 2015 that de termination was set
aside. Pakistan then issued, on 9 April 2015, a final determination that "ratified" the determination
of 4 February 2013, including the imposition of the duties, and incorporated the findings on which
the determination of 4 February 2013 was based. On 1 December 2016, Pakistan issued a sunset
determination that extended the duties on BOPP film for five years.39
7.2. In the first part of our findings, we review the United Arab Emirates' claims against the final
determination of 9 April 2015, which ratified the previous determination of 4 February 2013
(sections 7.1-7.11).
7.3. We begin by examining the United Arab Emirates' claims under Articles 5.3, 2.1, and 3.1 of the
Anti-Dumping Agreement, relating to the temporal scope of the evidence that Pakistan relied upon
(a) to initiate the investigation, (b) to determine dumping, and (c) to determine injury, respectively.
These claims relate to the foundation on which the challenged measures were built, and in each
instance the United Arab Emirates' arguments centre on the allegation that the evidence, taking into
account all relevant circumstances, was too remote (sections 7.1-7.3). We exercise judicial economy
on the United Arab Emirates' claims under Articles 9.1, 9.3, and 11.1 relating to the temporal scope
of the evidence to determine dumping and injury (sections 7.2.3 and 7.3.4).
7.4. We then examine the United Arab Emirates' claims under Articles 2.2, 2.2.1, 2.2.1.1, 2.2, and
2.4 of the Anti-Dumping Agreement, relating to Pakistan's choice of cost data to ascertain whether
sales were in the ordinary course of trade, and Pakistan's rejection of a request for a level of trade
adjustment (sections 7.4 and 7.5).
7.5. Next, we review the United Arab Emirates' other claims and arguments relating to
Pakistan's determination of injury and causati on under Articles 3.1, 3.2, 3.4, and 3.5
(sections 7.6-7.9).
7.6. We then examine whether the United Arab Emirates has established that Pakistan exceeded
the time-limits for original investigations under Article 5.10 (section 7.10), or violated parties' due
process rights under Article 6.2 (section 7.11).
7.7. In the second part of ou r findings, we review the claims against the sunset determination of
1 December 2016 (sections 7.12-7.14).
7.8. We examine the United Arab Emirates' claims that Pakistan determined that injury was likely
to continue or recur inconsistently with Article 11.3 (section 7.12), and that Pakistan completed the
sunset review in more than 12 months in the absence of abnormal circumstances, inconsistently
with Article 11.4 (section 7.13). We exercise judicial economy on the United Arab Emirates' claim
that the sunset review determination was inconsistent with Article 11.1 (section 7.12.5).
7.9. We also exercise judicial economy on certain claims brought against the final determination of
9 April 2015, the sunset determination of 1 December 2016, or both, to the effect that Pakistan
acted inconsistently with certain transparency obligations in Article 12 of the
Anti-Dumping Agreement (section 7.14), and that, as a consequence of the ot her claimed
inconsistencies, Pakistan acted inconsistently with Articles 1 and 18.1 of the
Anti-Dumping Agreement, and Articles VI:1 and VI:2 of the GATT 1994 (section 7.15).
7.10. In making our assessment, we have been mindful of the standard of review set forth for us
in Article 17.6(i) of the Anti -Dumping Agreement and Article 11 of the DSU, which provide,
respectively:
[I]n its assessment of the facts of the matter, th e panel shall determine whether the
authorities' establishment of the facts was proper and whether their evaluation of those
facts was unbiased and objective. If the establishment of the facts was proper and the

39 Section 2 above.

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

evaluation was unbiased and objective, even though the panel might have reached a
different conclusion, the evaluation shall not be overturned[.]40
The function of panels is to assist the DSB in discharging its responsibilities under this
Understanding and the covered agreements. Accordingly, a pan el should make an
objective assessment of the matter before it, including an objective assessment of the
facts of the case and the applicability of and conformity with the relevant covered
agreements, and make such other findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in the covered agreements.41
7.1 Temporal scope of the evidence underlying initiation: Articles 5.2, 5.3, and 5.8 of the
Anti-Dumping Agreement
7.11. Pakistan first initiated an investigation into impo rts of BOPP film from, among others, the
United Arab Emirates in September 2010, based on an application filed in April 2010, which
contained data up to December 2009. 42 At the NTC 's request, the applicant filed additional injury
data on 9 October 2010, covering the period from January to June 2010.43 The Islamabad High Court
suspended that first investigation in 2011 and terminated it in 2012. In its ruling the court held that
the NTC could "proceed with the complaint pending before [it]" .44 As a result, on 23 April 2012 the
NTC initiated a new investigation into BOPP film. It did so on the basis of the data in the original
application, supplemented by the additional injury data ending in June 2010.45
7.12. The United Arab Emirates argues that Pakistan acted inconsistently with Articles 5.2, 5.3,
and 5.8 of the Anti -Dumping Agreement by initiating an investigation based on data that ended
about two years earlier, in circumstances that did not justify doing so, and without explaining its
decision to initiate based on remote data or acknowledging that the data were remote.46
7.13. Pakistan responds that under Article 5.3 even somewhat dated evidence can be sufficiently
informative of dumping and injury to justify initiation, and that the NTC's decision to initiate must
be viewed in light of the circumstances. In particular, Pakistan argues that a domestic court had
ordered the NTC to proceed on the basis of the complaint filed in 2010, and that the NTC saved time
by not changing the temporal scope of the evidence. According to Pakistan, when these
circumstances are taken into account, the conclusion must be that the evidence was sufficient for
purposes of Article 5.3.47 Regarding Articles 5.2 and 5.8, Pakistan argues that they "do not address
the UAE's concern".48
7.14. As set out below, we find that the United Arab Emirates has established that Pakistan acted
inconsistently with Article 5.3 of the Anti-Dumping Agreement, and we exercise judicial economy on
the United Arab Emirates' claims under Articles 5.2 and 5.8.
7.15. We structure our discussion as follows: first, we set out the applicable requirements of
Article 5.3 (section 7.1.1); second, we apply those requirements to the facts of this case to assess
whether Pakistan acted inconsistently with Article 5.3, and we conclude that it did ( section 7.1.2);
and last, we explain that we therefore exercise judicial economy under Articles 5.2 and 5.8
(section 7.1.3).

40 Article 17.6(i) of the Anti-Dumping Agreement.
41 Article 11 of the DSU.
42 Summary of Tri-Pack Films' application for initiation, (Exhibit ARE-12).
43 Tri-Pack Films' letter of 9 October 2010, (Exhibit PAK-8 (BCI) (revised)). See also Pakistan's response
to Panel question No. 26. The additional data for January to June 2010, filed on 9 October 2010, were limited
to injury and did not cover dumping.
44 Order of Islamabad High Court, (Exhibit PAK-31); Pakistan's response to Panel question No. 14.
45 Initiation memorandum, (Exhibit PAK-9), para. 12; Pakistan's response to Panel question No. 26.
46 United Arab Emirates' first written submission, section V.1; opening statement at the first meeting of
the Panel, section II; response to Panel question No. 27; second written submission, section III.1; and opening
statement in the written procedure replacing the second meeting of the Panel (written opening statement),
section II.1.
47 Pakistan's first written submission, section 3.2; second written submission, section 2.1; and opening
statement in the written procedure replacing the second meeting of the Panel (written opening statement),
section 2. See also Pakistan's response to Panel question No. 31.
48 Pakistan's second written submission, para. 2.2.

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7.1.1 The applicable requirements of Article 5.3
7.16. The parties' arguments raise the question whether Article 5.3 imposes requirements on the
temporal scope of the evidence on which initiation is based.
7.17. We note that Article 5.3 of the Anti-Dumping Agreement provides that:
The authorities shall examine the accuracy and adequacy of the evidence provided in
the application to determine whether there is sufficient evidence to justify the initiation
of an investigation.49
7.18. Article 5.3 thus requires investigating authorities to "determine whether there is sufficient
evidence to justify the initiation of an investigation" and, in doing so, to "examine the accuracy and
adequacy of the evidence".50
7.19. The ordinary meaning of " evidence" includes "[i]nformation (in the form of personal or
documented testimony or the production of material objects), tending or used to establish facts in
a legal investigation".51 Thus, inherent in the very meaning of evidence is its relationship to the facts
that it tends to establish, i.e. its relevance.52 Information that does not tend to establish the facts
called for does not fit this definition. The context of Article 5.3 confirms th at evidence must be
relevant: Article 5.2, which provides context for the interpretation of Article 5.3, explicitly requires
the evidence in the application to be "relevant".
7.20. Turning to the attributes that the authorities must examine, "accuracy" and "adequacy" are
"the state or quality" of being "accurate" 53 and "adequate"54, respectively. In turn, the ordinary
meaning of "accurate" includes " exact, precise; conforming exactly with the truth or with a given
standard; free from error"55, and the ordinary meaning of "adequate" includes "fully satisfying what
is required; quite sufficient, suitable, or acceptable in quality or quantity".56 Thus, the authority must
examine whether the evidence is exact, precise, and suitable, acceptable.
7.21. Further, regarding the requirement that the authorities determine whether the evidence is
"sufficient … to justify the initiation of an investigation", we n ote that the ordinary meaning of
sufficient includes: "[o]f a quantity, extent, or scope adequate to a certain purpose or object".57 That
"purpose or object" is set forth in Article 5.3 itself, i.e. sufficient "to justify the initiation of an
investigation".

49 Underlining and italics added.
50 We agree in this regard with the statement in the Panel Report, Guatemala – Cement II, para. 8.31
("[i]t is … the sufficiency of the evidence, and not its adequacy and accuracy per se, which represents the legal
standard to be applied in the case of a determination whether to initiate an investigation").
51 Oxford Dictionaries online, definition of "evidence"
https://www.oed.com/view/Entry/65368?rskey=t5Pija&result=1&isAdvanced=false#eid (accessed
12 October 2020), n., meaning 4.a. (emphasis added)
52 In plain English, "relevant" is "bearing on or connected with the matter in hand". (Oxford Dictionaries
online, definition of "relevant" https://www.oed.com/view/Entry/161893?redirectedFrom=relevant#eid
(accessed 12 October 2020), meaning 2.a).
53 Oxford Dictionaries online, definition of "accuracy"
https://www.oed.com/view/Entry/1281?redirectedFrom=accuracy#eid (accessed 12 October 2020), n.,
meaning 1.
54 Oxford Dictionaries online, definition of "adequacy"
https://www.oed.com/view/Entry/2298?redirectedFrom=adequacy#eid (accessed 12 October 2020), n.,
meaning 1.
55 Oxford Dictionaries online, definition of "accurate"
https://www.oed.com/view/Entry/1283?redirectedFrom=accurate#eid (accessed 12 October 2020), adj.,
meaning 3 ("[e]sp. of information, measurements, or predictions").
56 Oxford Dictionaries online, definition of "adequate"
https://www.oed.com/view/Entry/2299?rskey=KTs110&result=1&isAdvanced=false#eid (accessed
12 October 2020), adj., meaning 3.
57 Oxford Dictionaries online, definition of "sufficient"
https://www.oed.com/view/Entry/193543?redirectedFrom=sufficient#eid (accessed 12 October 2020), n.,
meaning 1.a.

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7.22. As to the subject matter of the necessary evidence, i.e. what that evidence must tend to
establish58, the text and context of Article 5.3 indicate that Article 5.3 requires sufficient evidence
of dumping, injury, and a causal link between them, that is , the same elements that must be
demonstrated to impose anti -dumping measures. We note, first, that Article 5.3 refers to "the
evidence provided in the application". Article 5.2 requires the application to contain evidence of
(a) "dumping", for which Article 2, in turn, provides a single definition for the purpose of the
Anti-Dumping Agreement59; of (b) "injury within the meaning of Article VI of GATT 1994 as
interpreted by [the Anti -Dumping] Agreement"; and (c) a causal link between them. Further, we
note that the evidence must be sufficient "to justify … initiation", and Article 5 sets forth two bases
on which an investigation may be initiated. One such way is "upon a written application" 60, which
must include, pursuant to Article 5.2, evidence of dumping, injury, and a causal link between them;
the second way is on the investigating authority's own motion, which, again, requires "sufficient
evidence of dumping, injury and a causal link, as described in paragraph 2 [of Article 5]".61 These
textual and contextual elements confirm that initiation requires evidence of the same three elements
as those whose existence must be ascertained in order to impose anti-dumping measures.62
7.23. Thus, the difference between the evidence that must sustain a determination and the evidence
needed for initiation is not one of subject matter but of degree , or, as other panels have described
it, of "quantity and quality". The " quantity and quality " of the evidence needed to initiate an
investigation are lesser tha n required to impose anti -dumping measures. 63 However, it is still
evidence of those same elements that is necessary to justify initiation of an investigation.64
7.24. We further note that the context of Article 5.3, provided by other provisions of the
Anti-Dumping Agreement as well as Article VI of the GATT 1994, indicates that the WTO disciplines
on anti-dumping set forth a corrective scheme, i.e. one that is meant to remedy a current situation.
In particular, Article VI:2 of the GATT 1994 provides that an anti-dumping duty may be imposed
only "to offset or prevent dumping".65 Article 11.1 of the Anti-Dumping Agreement provides that an
anti-dumping duty "shall remain in force only as long as and to the extent necessary to counteract
dumping which is causing injury".66 And Articles 2.1 and 3.5 speak of dumping causing injury in the
present tense.67 Thus, under the corrective scheme set out in the Anti -Dumping Agreement and
Article VI of the GATT 1994, anti-dumping measures may only be imposed to counteract current
dumping causing injury: the three elements necessary for imposing anti-dumping measures are thus
current dumping, current injury, and a causal link between them.68 This, therefore, must also be the
subject matter of the evidence underlying initiation.

58 See para. 7.19 above.
59 See also Panel Report, Guatemala – Cement II, para. 8.35.
60 Article 5.1 of the Anti-Dumping Agreement.
61 Article 5.6 of the Anti-Dumping Agreement.
62 See also Panel Reports, Guatemala – Cement II, para. 8.35; Mexico – Steel Pipes and Tubes,
63 See also Panel Reports, Guatemala – Cement II, para. 8.35 ("certainty on the existence of all the
elements necessary in order to adopt a measure is reached gradually as the investigation moves forward");
and Mexico – Steel Pipes and Tubes, para. 7.22.
64 See also Panel Reports, Guatemala – Cement II, paras. 8.35-8.39 and 8.45; Argentina – Poultry
Anti-Dumping Duties, paras. 7.61 and 7.80; and Mexico – Steel Pipes and Tubes, para. 7.21. The former
two panels held that in establishing whether there was sufficient evidence of dumping and injury, the
authorities "cannot entirely disregard the elements that configure" dumping and injury under Articles 2 and 3;
the latter panel then summarized these findings as being that "the meanings of the concepts of 'dumping',
'injury' and 'causation' in Article 5 are the same as those in the relevant substantive provisions of
the Agreement (i.e. Article 2 for dumping and Article 3 for injury and causation)". (Panel Reports, Guatemala –
Some panels have also described the "type" or "subject matter" of the evidence (as opposed to its
quantity and quality) as having to be the same. (Panel Report, Mexico – Corn Syrup, para. 7.97; see also Panel
Report, Guatemala – Cement I, para. 7.77 (reversed on procedural grounds)).
65 Emphasis added. See also Appellate Body Report, Mexico – Anti-Dumping Measures on Rice,
para. 165 (quoting Article VI:2 of the GATT 1994).
66 Emphasis added. See also Panel Report, Mexico – Anti-Dumping Measures on Rice, para. 7.57
(quoting Article 11.1 of the Anti-Dumping Agreement).
67 See also Panel Report, Mexico – Anti-Dumping Measures on Rice, para. 7.57 (referring to Article 3.5
("[i]t must be demonstrated that the dumped imports are … causing injury within the meaning of
this Agreement" (emphasis original))).
68 See also Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 165 ("the current
situation"), there with reference to Article 3.1 of the Anti-Dumping Agreement.

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7.25. Information that does not speak to current dumping causing injury, therefore, does not relate
to the required subject matter: it is thus not "evidence" in the sense of being relevant to the facts
to be established69, and it is not "sufficient" in the sense of being "of a … scope adequate" "to justify
the initiation of an investigation".70
7.26. The mere fact that data relate to the past does not, however, mean that they cannot be used
to establish the existence of current injurious dumping. To the contrary, the data on which initiation
decisions and preliminary and final determinations are based are necessarily from a past period.
However, more recent data are likely to provi de better indications about current dumping causing
injury, and vice versa.71 This means that all things equal, the more remote the data, the less likely
it is to speak to current injurious dumping. Since under Article 5.3 an authority must assess "whether
there is sufficient evidence to justify … initiation", whether and to what extent the data are remote
for purposes of Article 5.3 should be assessed with reference to the date of initiation.
7.27. We are of the view that the relationship in time between the data on which initiation is based
and the date of initiation is not, alone, dispositive of whether the data relate to current injurious
dumping. Instead, whether the data relate to current injurious dumping must be assessed taking
also into account the other relevant circumstances surrounding the investigating
authority's decision.72 This was also the approach taken by panels and the Appellate Body in
assessing whether the data relied upon in injury determinations provided evidence of the "current
situation".73
7.28. For example, in Mexico – Anti-Dumping Measures on Rice, the panel and the Appellate Body
assessed the temporal gap existing in that case between the end of the injury POI and both initiation
and final determination in light of the following circumstances: (a)the POI was that proposed by the
applicant; ( b) Mexico had not established "that practical problems necessitated this particular
[POI]"; (c) Mexico had not argued "that updating the information was not possible"; (d) "no attempt
was made to update the information"; and (e) Mexico had provided no reason for not seeking more
recent information. 74 In that case, these factors together with the considerable temporal gap
between the end of the POI, on the one hand , and initiation and the final determination, on the
other, led the panel and the Appellate Body to conclude that the data did not relate to current
injury.75
7.29. To sum up, therefore, for evidence to be "sufficient evidence to justify the initiation of an
investigation" under Article 5.3, it must pertain to current dumping, injury, and causation. The more
recent the data are at the time of initiation, the more likely they will be to provide evidence of current
dumping, injury, and causal link, and vice versa. Whether a temporal gap between the date of
initiation and the evidence on which initiation is based means that the evidence does not relate to
current dumping, injury , and causation, must be assessed case by case in light of the relevant
circumstances.

69 See para. 7.19 above.
70 See para. 7.21 above.
71 To the same effect, see Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 166.
At issue in that case was the requirement for "positive evidence" under Article 3.1 of the
Anti-Dumping Agreement; however, the Appellate Body observed that positive evidence, at a minimum, had to
be relevant, and it found that evidence that did not relate to the current situation was not relevant. We also
note that the Recommendation on Periods of Data Collection adopted in 2000, while not a binding instrument,
is consistent with the view that data ending as close as possible to initiation provide the most appropriate basis
to decide on initiation. (Recommendation concerning the periods of data collection for anti-dumping
investigations, G/ADP/6, paras. 1(a) and 1(c)).
72 We note that while accepting that Article 5.3 of the Anti-Dumping Agreement does discipline the
temporal scope of the evidence relied upon to initiate, Pakistan emphasizes the importance of considering all
the relevant circumstances when assessing whether the authority has complied with Article 5.3.
(E.g. Pakistan's second written submission, paras. 2.3-2.18).
73 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, paras. 165 and 167; Panel Reports,
Mexico – Anti-Dumping Measures on Rice, paras. 7.58 and 7.64-7.65; and Mexico – Steel Pipes and Tubes,
paras. 7.233-7.237.
74 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 167; Panel Report, Mexico –
Anti-Dumping Measures on Rice, para. 7.64.
75 Panel Report, Mexico – Anti-Dumping Measures on Rice, para. 7.65; Appellate Body Report, Mexico –
Anti-Dumping Measures on Rice, para. 172.

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7.30. Finally, we note that Article 5.3 also speaks to a different element of the analysis that is
relevant in the present case, i.e. where the evidence must be found: in determining whether there
is sufficient evidence under Article 5.3, must the authority limit itself to the evidence in the
application? Although Article 5.3 refers to the accuracy and adequacy of the evidence "provided in
the applica tion", the ultimate question for the authority under Article 5.3 is " whether there is
sufficient evidence to justify the initiation of an investigation". As a result of this latter clause, an
investigating authority is not precluded from taking into accoun t additional information submitted
by the applicant upon the authority 's request to ensure that "there is sufficient evidence to justify
the initiation".76
7.1.2 Whether Pakistan acted inconsistently with Article 5.3
7.31. In this section, we apply the standard set out above to the facts of the case. We first identify
the body of evidence that is relevant to the assessment under Article 5.3 (section 7.1.2.1); we then
assess whether the NTC acted inconsistently with this provision by initiating the investigation on the
basis of that body of evidence, and we conclude that it did (section 7.1.2.2).
7.1.2.1 The relevant body of evidence: whether the NTC was entitled to consider evidence
not contained in the application
7.32. A first point of disagreement between the parties is whether, for purposes of Article 5.3, the
NTC had to limit itself to the data c ontained in the application, which went from January 2007
to December 2009, or whether it was proper for the NTC to also consider the additional injury data
filed by the applicant on 9 October 2010, which covered six more months, up to June 2010.77
7.33. The United Arab Emirates submits that since Article 5.3 refers to "the evidence provided in
the application", the authority could not rely on evidence external to the application to comply with
Article 5.3, and therefore the Panel cannot take into account the additional data in assessing whether
the NTC acted consistently with Article 5.3.78
7.34. As just set out at paragraph 7.30 above, the ultimate question under Article 5.3 is whether
"there is sufficient evidence" to justify the initiation of an investigation. On this basis, we consider
that the NTC was not preclude d from taking into account additional information submitted by the
applicant upon the NTC 's request. The NTC was therefore entitled to rely on the additional injury
data covering the first half of 2010 when reviewing the evidence for purposes of Article 5.3.
7.1.2.2 Whether the NTC properly determined that the evidence was sufficient
7.35. We now turn to the central question under Article 5.3, i.e. whether an unbiased and objective
investigating authority, looking at the facts before it, could have determined that the data ending
in December 2009 (for dumping) and June 2010 (for injury), in light of all relevant circumstances,
were "sufficient evidence to justify the initiation of an investigation" on 23 April 2012. Specifically,
as set out in section 7.1.1 above, if in light of all relevant circumstances the data could not be said
to relate to "current" dumping, injury, and causation, then the authority could not have determined
that there was sufficient evidence to justify initiation within the meaning of Article 5.3.
7.36. To make our assessment, we consider, first, the temporal gap between the data, on the one
hand, and the date of initiation, on the other; and second, the relevant circumstances surrounding
the authority's determination that there was sufficient evidence to justify initiation.
7.37. We begin with the temporal gap between the data and initiation: for dumping, this was more
than 27 months; for injury, the gap was almost 22 months. While the temporal gap alone is not
enough to conclude that the data did not provide evidence of current dumping causing injury, these
gaps are quite considerable, ranging from slightly less to slightly more than two full years.

76 Article 5.3 of the Anti-Dumping Agreement (emphasis added). See also e.g. Panel Report,
77 See para. 7.11 above.
78 United Arab Emirates' second written submission, paras. 26 and 43.

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7.38. We turn to the circumstances surrounding the NTC 's examination that, according to the
parties, are relevant to our assessment.
7.39. First, Pakistan argues that under domestic law, the court order directing the NTC to initiate
the investigation obligated the NTC to proceed on the basis of the original application. 79 According
to Pakistan, this is a "practical constraint[]" that must be taken into account as a factual matter
when assessing the NTC's conduct under Article 5.3.80 The United Arab Emirates disagrees that this
is a relevant fact, because a Member may not invoke domestic law to justify a failure to comply with
its obligations under the WTO agreements. The United Arab Emirates also disputes
Pakistan's interpretation of the Pakistani court order.81
7.40. A Member is responsible for the acts of all of its organs, including the judiciary.82 Therefore,
whether the NTC was abiding by the instructions of a Pa kistani court or acting in its own discretion
does not affect the scope of Pakistan 's obligations under Article 5.3 of the
Anti-Dumping Agreement.83
7.41. Second, Pakistan argues that because a gap of almost two years between the end of the POI
and a final determination "would be quite normal"84, such a gap "must, in principle, be acceptable for
purposes of the initiation decision".85 The United Arab Emirates considers this "absurd", and points
out that it is "precisely because" there is a gap between initia tion and final determination that the
information on which initiation is based needs to be sufficiently recent.86
7.42. It is true that an investigation takes time, leading to a gap between the end of the POI and
the date of final determination. This, however, does not suggest that it is necessarily appropriate to
initiate an investigation on the basis of evidence that is already remote at the time of initiation.
7.43. The two factors invoked by Pakistan, therefore, do not explain the NTC 's assessment, in
April 2012, that evidence ending in December 2009 and June 2010 was "sufficient evidence to justify
the initiation of an investigation", within the meaning of Article 5.3.
7.44. The United Arab Emirates, for its part, asks us to take into account that the NTC did not give
any consideration in its Initiation memorandum or other record documents to the temporal gap
between the data and initiation, let alone explain why the data nonetheless constituted sufficient
evidence to justify initiation or why it did not seek more recent evidence.87

79 Pakistan's first written submission, paras. 3.68-3.69; second written submission, paras. 2.3 and 2.14.
80 Pakistan's second written submission, para. 2.14.
81 United Arab Emirates' second written submission, paras. 48-51; Pakistan's second written submission,
paras. 2.14-2.17.
82 See e.g. Appellate Body Reports, US – Shrimp, para. 173; US – Zeroing (Japan) (Article 21.5 –
Japan), para. 182; Panel Report, Brazil – Tyres, para. 7.305; Anti-Dumping Agreement, Article 18.4; and
WTO Agreement, Article XVI:4. A similar question has been treated in the same way by other international
tribunals. See e.g. International Court of Justice, Advisory Opinion of 29 April 1999, Differences Relating to
Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (1999), para. 62.
83 We also note that, as the Panel pointed out during the first substantive meeting, there are
inconsistencies in Pakistan's argument regarding compliance with the Pakistani court order: Pakistan argues
that the NTC was obligated by the court order to proceed on the basis of the application received, but in fact it
included six additional months in its assessment, which contradicts Pakistan's argument that it could not rely
on updated evidence. (Summary of Tri-Pack Films' application for initiation, (Exhibit ARE-12), p. 2; Order of
Islamabad High Court, (Exhibit PAK-31); Initiation memorandum, (Exhibit PAK-9), section 12; and
Pakistan's response to Panel question No. 29).
84 Pakistan's first written submission, para. 3.63.
86 United Arab Emirates' second written submission, para. 46.
87 See e.g. United Arab Emirates' second written submission, para. 26. Pakistan admits that "[a]t the
time of re-initiation, there is no explicit mention in the investigation record or in the NTC's pronouncements of
the temporal aspect of the evidence". (Pakistan's response to Panel question No. 30).

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7.45. We note that the NTC did not discuss or acknowledge the issue of the temporal scope of the
evidence in its Initiation memorandum (including when referring to the court order that Pakistan
relies on in its arguments before us88) or in any other record document before us.89
7.46. The fact that the NTC does not appear to have considered the question of the temporal scope
of the data, despite the fact that they were two years old at the time of initiation, leads us to conclude
that the NTC did not fulfil its obligation to determine that there was "sufficient evidence" for purposes
of Article 5.3. The NTC gave no reasons for not updating the evidence and made no apparent attempt
to do so. According to Pakistan, it failed to do so because a court order directed it to rely on the data
in the original application. No such explanation, however, is discernible from the record90 and in any
case, as we discuss above, this order did not relieve Pakistan of its obligation to abide by its
commitments under the Anti-Dumping Agreement.91
7.47. We also recall the circumstances that, in Mexico – Anti-Dumping Measures on Rice ,
contributed to the conclusion that the authority did not base its injury determination on evidence of
"current" injury.92 We agree that those are relevant circumstances, and we note the similarities with
the circumstances surrounding the NTC's determination that there was sufficient evidence to justify
initiation: in 2012 the NTC did not demand more recent evidence, did not e xplain its choice, and
largely relied on the data period proposed by the applicant, and Pakistan has not demonstrated that
it was not possible to seek more recent evidence.
7.48. Therefore, when we consider both the temporal gap of approximately two years between the
data underlying initiation and initiation itself, and the circumstances surrounding the
authority's determination that the data were sufficient, we find that the NTC could not have
determined that the data underlying initiation pertained to current dumping causing injury.
Therefore, the NTC acted inconsistently with Article 5.3 by failing to assure itself that there was
sufficient evidence to justify initiation of an investigation.
7.1.3 Judicial economy under Articles 5.2 and 5.8
7.49. A panel may ex ercise judicial economy, and thus decline to review one or more claims , if
three conditions are met, namely (a) having already found that the same measure (b) is inconsistent
with one or more provisions of the covered agreements and, further, that (c) findings under the
additional claims are not necessary to resolve the dispute.93
7.50. In this case, the United Arab Emirates' Articles 5.2 and 5.8 claims challenge the same
measure as its Article 5.3 claim, and indeed the same aspect of that measure. The
United Arab Emirates argues that the evidence underlying initiation was around two years old at the
time of initiation, and yet the NTC did not even consider the question of the temporal scope of the
evidence. Having already found that, for those reasons, Pakist an acted inconsistently with
Article 5.3, we exercise judicial economy on the United Arab Emirates ' claims under Articles 5.2
and 5.8.
7.2 Temporal scope of the evidence underlying the determination of dumping:
Articles 2.1, 9.1, 9.3, and 11.1 of the Anti-Dumping Agreement
7.51. When initiating the investigation on 23 April 2012, the NTC selected January 2009 to
June 2010 as the period of investigation (POI) for dumping. On 4 February 2013, the NTC made its
final determination of dumping on the basis of the data for this POI.94

88 See para. 7.39 above.
89 Initiation memorandum, (Exhibit PAK-9); Pakistan's response to Panel question No. 28. See also
Report on preliminary determination, (Exhibit ARE-9); and Report on final determination (2013),
(Exhibit PAK-1 (BCI)), which also entirely fail to discuss the temporal scope of the evidence underlying
initiation.
90 Even when the Initiation memorandum refers to the court order in question, it does not mention the
issue of the temporal scope of the evidence. (Initiation memorandum, (Exhibit PAK-9), paras. 2.2-2.3).
91 See para. 7.40 above.
92 See para. 7.28 above.
93 See e.g. Appellate Body Report, Canada – Wheat Exports and Grain Imports, para. 133.
94 Report on final determination (2013), (Exhibit PAK-1 (BCI)), para. 13.3.

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7.52. The United Arab Emirates argues that in so doing, the NTC acted inconsistently with
Articles 2.1, 9.1, 9.3, and 11.1 of the Anti -Dumping Agreement, because of the following, taken
together: the temporal gap between the end of the POI, on the one hand, and the dates of initiation
and of final determination, on the other hand ; and other relevant factors, such as the fact that the
NTC failed to explain its choice and made no attempt at updating the evidence.95
7.53. Pakistan responds that Articles 9.1, 9.3, and 11.1 do not discipline the choice of POI. 96 As
regards Article 2.1, Pakistan accepts that it can be read as requiring that "a determination of
dumping be based on data that bears a sufficiently proximate temporal link to the time of
determination", but argues that when the circumstances surrounding the NTC's selection of the POI
are taken into account, it becomes apparent that the NTC did not act inconsistently with Article 2.1.97
7.54. As set out below, we find that the United Arab Emirates has established that Pakistan
has acted inconsistently with Article 2.1, and we exercise judicial economy on the
United Arab Emirates' claims under Articles 9.1, 9.3, and 11.1.
7.55. We structure our discussion as follows: (a) we set out the applicable requirements of
Article 2.1 (section 7.2.1); (b) we apply that standard to the facts of this case to assess whether
Pakistan acted inconsistently with Article 2.1, and we conclude that it did (section 7.2.2); and (c) we
exercise judicial economy under Articles 9.1, 9.3, and 11.1 (section 7.2.3).
7.2.1 The applicable requirements of Article 2.1
7.56. Article 2.1 of the Anti-Dumping Agreement provides that:
For the purpose of this Agreement, a product is to be considered as being dumped … if
the export price … is less than the comparable price … for the like product when destined
for consumption in the exporting country.98
7.57. Article 2.1 defines dumping in the present tense: "a product is to be considered as being
dumped … if the export price … is less than …".99 In other words, under this definition, dumping is a
present occurrence. Turning to the context of Article 2.1, we note that Article VI:2 of the GATT 1994
and Article 11.1 of the Anti-Dumping Agreement provide, respectively, that anti-dumping measures
may be imposed to "offset" or "counteract" dumping causing injury. As we have discussed above
(paragraph 7.29) and as has been observed in past disputes, these provisions make it clear that the
WTO disciplines on anti -dumping set forth a corrective scheme that is concerned with a current
situation100, confirming the reading of Article 2.1 as defining dumping in the present.
7.58. Article 2.1 has sometimes been regarded as merely definitional, i.e. as not itself imposing
obligations.101 However, the text of this provision evidences that the definition it sets out is directed
at an authority's determination. Article 2.1 uses the wording "a product is to be considered as being
dumped"102: the entity that "considers" whether a product is being dumped is the investigating

95 United Arab Emirates' first written submission, paras. 123-135 and 137-139; opening statement at
the first meeting of the Panel, section III; response to Panel question No. 35; second written submission,
section III.2; and written opening statement, section II.2. In setting forth its arguments, the
United Arab Emirates does not clearly distinguish its claims relating to the dumping POI from those relating to
the injury POI. Some of these claims relate only to the dumping POI (Articles 2.1 and 9.3) or the injury POI
(Article 3), but others may relate to both (Articles 9.1 and 11.1). In this section, we limit our consideration of
the United Arab Emirates' claims to the dumping POI. We address the injury POI separately, in section 7.3
below.
96 Pakistan's first written submission, paras. 3.95 (for Articles 9.1 and 9.3) and 3.96-3.97 (for
Article 11.1); second written submission, section 2.2; and written opening statement, para. 21.
97 Pakistan's responses to Panel question Nos. 32-33; second written submission, paras. 2.24-2.31.
98 Emphasis added.
99 Emphasis added.
100 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 165; Panel Report, Mexico –
101 Appellate Body Report, US – Zeroing (Japan), para. 140; Panel Report, Ukraine – Ammonium Nitrate,
para. 7.120.
102 Emphasis added.

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authority, and ultimately the Member imposing anti-dumping measures. We therefore consider that
Members are bound by the definition that Article 2.1 sets out.
7.59. Therefore, wit h reference to the specific interpretive question raised by the
United Arab Emirates' claim, we consider that to act consistently with Article 2.1 a
Member's determination of dumping must pertain to current dumping. Whether this is the case will
depend, first, on the temporal scope of the evidence relative to the dates of initiation and final
determination. In this regard, as we found above in respect of the data underlying initiation, we
agree that the more recent the data, the more likely it is to be relevant to the current situation, and
vice versa.103 Second, we are of the view that temporal scope is not, alone, dispositive, and that
therefore we must assess the authority 's choice of the POI for dumping in light of all the relevant
circumstances surroundi ng the authority 's decision at the time . In this regard, we consider that
depending on the facts of each case, circumstances such as those taken into account in assessing
the temporal scope of the evidence of injury in Mexico – Anti-Dumping Measures on Rice are also
relevant to the requirements of Article 2.1.
7.60. Both parties to the case before us take the view that, in the words of Pakistan, Article 2.1
"can be read as requiring that a determination of dumping be based on data that bears a sufficiently
proximate temporal link to the time of determin ation".104 Both parties also agree that whether the
data relied upon by an authority bear this sufficiently proximate temporal link – i.e. relates to current
dumping – depends not just on the temporal scope of the evidence , in itself, but also on all the
attendant circumstances, as also set forth in Mexico – Anti-Dumping Measures on Rice with
reference, there, to the determination of injury under Article 3.1.105
7.2.2 Whether Pakistan acted inconsistently with Article 2.1
7.61. There are two points of contention between the parties under Article 2.1, and we discuss each
of these below: first, what is the relevant date of final determination against which the temporal
scope of the evidence must be assessed; and second, whether Pakistan acted inconsistently with
Article 2.1 by determining dumping on the basis of a POI ending in June 2010, taking into account
all relevant circumstances. We discuss these in turn.
7.2.2.1 The relevant date of final determination
7.62. To assess whether the evidence on which the determination is based relates to current
dumping, we consider, among other elements, the temporal scope of that evidence relative to the
date of final determination. 106 That is, how remote was the evidence from the date the final
determination was made? In the case before us, the parties disagree as to the relevant date of final
determination, and we address that disagreement here.
7.63. To recall, in the investigation initiated on 23 April 2012, which is at issue here, the NTC first
adopted a final determination on 4 February 2013.107 A Pakistani court subsequently set aside that
final determination due to a defect in the composition of the NTC and, on remand, the NTC adopted
a formally distinct but substantively identical final determination on 9 April 2015, which "ratified"
the findings of February 2013 and continued the anti -dumping measures at the rates and for the
time provided for in the February 2013 determination.108

103 See also Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 166; and
Panel Reports, Mexico – Anti-Dumping Measures on Rice, para. 7.58; Mexico – Steel Pipes and Tubes,
para. 7.228.
104 Pakistan's response to Panel question No. 33; see also ibid. No. 32. According to the
United Arab Emirates, a Member that fails to base its determination on evidence that speaks to current injury
acts inconsistently with Article 2.1 because it fails "to make a proper finding of the product 'being dumped'".
(United Arab Emirates' second written submission, para. 59).
105 See e.g. Pakistan's responses to Panel question Nos. 32-33; and
United Arab Emirates' second written submission, para. 58.
106 See para. 7.59 above.
107 See para. 2.3 above.
108 See paras. 2.4-2.5 above.

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7.64. According to the United Arab Emirates, the relevant date of final determination to assess the
temporal scope of t he evidence is 9 April 2015109, whereas, according to Pakistan, it is
4 February 2013.110 The United Arab Emirates emphasize d that the final determination of
February 2013 was set aside, and that the final determination of 9 April 2015 was a fresh start and
only imposed duties with prospective effect. 111 Pakistan, on the other hand, pointed out that the
determination of 9 April 2015 was based on the findings set out in the determination of
February 2013 and merely "ratified" that previous decision.112
7.65. The final determination of April 2015 formally replaced the final determination of 2013, and
indeed the United Arab Emirates ' claims are directed at the determination of April 2015 as the
measure at issue. The question before us under Article 2.1, however, is wheth er the POI selected
by the NTC for purposes of its determination of dumping pertained to current dumping. In our view,
this must be assessed with reference to the time at which the NTC actually made that determination,
i.e. February 2013, when the NTC adopted the final determination in the original investigation. The
fact that because of a ministerial defect under domestic law a new determination had to be adopted
in April 2015 does not change this assessment: the final determination of April 2015 merely "ratified"
the determination of February 2013, incorporating all of its analysis and findings and providing for
anti-dumping duties at the same rate and until the same time as set forth in the February 2013
determination.113 It does not, therefore, c hange the point of reference for the assessment of the
temporal scope of the POI.
7.66. Therefore, we consider that the date of final determination that is relevant to our assessment
of the temporal scope of the evidence under Article 2.1 is 4 February 2013.114
7.2.2.2 Whether the NTC failed to determine current dumping
7.67. We now turn to whether the NTC acted inconsistently with Article 2.1 by determining dumping
on the basis of data that did not pertain to current dumping. To answer this question, we begin by
considering the temporal scope of the POI relative to the dates of initiation and final determination.
In this case, the POI for dumping ran from January 2009 to June 2010. There was thus a temporal
gap of approximately 22 months between the end of that POI and initiati on (23 April 2012), and a
gap of 31 months between the end of the POI and the final determination on 4 February 2013.
7.68. To assess whether data for such a POI were evidence of current dumping, we next turn to the
other factors surrounding the authority's selection of the POI.
7.69. First, Pakistan asks the Panel to take into account that a domestic court order directed the
NTC to proceed with the complaint before it, which, according to Pakistan, meant it could not change
the temporal scope of the evidence.115 However, as we have already noted, a WTO Member is
responsible for the WTO-consistency of the acts of all of its organs, including the judiciary, and
therefore whether the NTC was abiding by the instructions of a Pakistani court or acting in it s own
discretion does not change our assessment under the Anti -Dumping Agreement.116 Moreover, the
argument is even more difficult to follow when one considers that the court order now invoked by
Pakistan referred to proceeding "with the complaint before [the NTC]", whereas Pakistan invokes it

109 See e.g. United Arab Emirates' first written submission, para. 121; responses to Panel question
Nos. 23-25, paras. 17-20 and 22-27; and second written submission, paras. 57 and 81-87. The
United Arab Emirates argues, in the alternative, that there is an inconsistency also if the relevant date of
final determination is February 2013. (United Arab Emirates' second written submission, para. 57).
110 See e.g. Pakistan's first written submission, para. 2.14; responses to Panel question Nos. 23 and 25.
See also Pakistan's first written submission, paras. 3.106-3.108; and second written submission, para. 2.35, in
the context of Pakistan's arguments under Article 5.10.
111 See e.g. United Arab Emirates' first written submission, para. 121; and responses to Panel question
Nos. 23-25, paras. 17-20 and 22-27. See also para. 7.516 below.
112 See e.g. Pakistan's response to Panel question No. 23 (referring to Notice of final determination
(2015), (Exhibit ARE-1)).
113 See para. 2.5 above.
114 Concerning the exact date, we recall that the although the Notice of final determination was issued
on 7 February 2013, record documents refer to the date of adoption of the Report on final determination,
i.e. 4 February 2013, as the date of final determination. (See fn 26 above). This three days' difference does not
have an impact on our assessment of the temporal scope of the evidence underlying the determination.
115 Pakistan's second written submission, paras. 2.26-2.27; response to Panel question No. 28.
116 See para. 7.40 above.

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to explain its use of the POI selected in a first, interrupted investigation, which was not identical117
to the period covered in the "complaint" in question.
7.70. Second, Pakistan argues that maintaining the POI first selected in 2010 allowed the NTC to
complete the investigation faster, in little more than nine months118, which also limited the ultimate
temporal gap between the end of the POI and the final determination. 119 The United Arab Emirates
responds that this is not a pertinent consideration. Among the third parties, the United States too
takes the view that expediency is not a pertinent consideration, and that the authority must select
a POI as close as possible to the date of initiation.120
7.71. We disagree with Pakistan 's argument. Pursuant to Article 2.1, it is incumbent upon an
authority to ascertain the existence of current dumping. The selection of a POI that was almost
two years old already at the time of initiation cannot be explained by the fact that the investigating
authority already had on file data relating to that POI, and could therefore sa ve some time in its
investigation. Moreover, even with the purported "time saving"121, the overall gap between the end
of the POI and the date of final determination was two years and seven months.
7.72. Third, we turn to the factors that the United Arab Emirates has asked us to take into account.
The United Arab Emirates argues that, similar to Mexico – Anti-Dumping Measures on Rice, "(i) the
selected POI was essentially what was proposed by the applicant; (ii) the NTC did not establish that
practical problems necessitated this particular POI; (iii) the NTC never established that updating the
information was not possible; (iv) the NTC made no attempt at updating the information although
there was no lack of cooperation from interested parties; and (v) the NTC provided no reason why
it was not seeking more recent information."122 As we have noted above, we agree that these factors
are relevant to an assessment under Article 2.1.
7.73. As regards the allegation that the POI was that proposed by the applicant, Pakistan responds
that the NTC added six months to the proposed POI, namely January to June 2010. However, we
note that the dumping POI still encompassed the full year proposed by the applicant (2009), only
with the addition of six more months – despite the fact that by the time of initiation in April 2012,
two more calendar years had elapsed.
7.74. Further, the NTC did not establish that practical problems necessitated this particular POI and
that it was not possible to update the data, and provided no reason fo r not seeking more recent
information. The NTC did not discuss the remoteness of the POI in its Initiation memorandum
of 2012, in its provisional and final determinations of 2012 and 2013, or elsewhere in the record123,
even though Taghleef directly raised the matter in various submissions to the NTC. 124 The NTC did
cite the court order that now Pakistan describes as barring it from updating the evidence 125;
however, in doing so, the NTC does not appear to have acknowledged the issue of the temporal gap
between the end of the POI and initiation, nor to have explained that the court order in question
required it to rely on the previously selected POI.126
7.75. Similarly, the NTC does not appear to have made any attempt to update the evidence.
Pakistan points out that, in April 2012, the NTC gave parties the opportunity to "add some
information to the data already provided" in response to the questionnaires sent in 2010.127

117 See fn 83 above.
118 Pakistan's first written submission, paras. 3.89-3.90; second written submission, para. 2.28.
119 Pakistan's first written submission, para. 3.90; response to Panel question No. 28. Pakistan explains
that this was not a consideration that motivated the NTC's choice when initiating the investigation in 2012 but
that the Panel should, in its assessment, take into account the time saved by not updating the POI.
(Pakistan's response to Panel question No. 28).
120 United States' response to Panel question No. 1. The other third parties, while referring to a relevant
prior WTO dispute, did not ultimately take a stance on the substance of the Panel's question.
121 Pakistan's response to Panel question No. 28.
122 United Arab Emirates' second written submission, para. 58 (referring to United Arab Emirates' first
written submission, paras. 127-133).
123 Pakistan's response to Panel question No. 30; Initiation memorandum, (Exhibit PAK-9); Report on
preliminary determination, (Exhibit ARE-9); and Report on final determination (2013), (Exhibit PAK-1 (BCI)).
124 Taghleef's letter of 25 June 2012, (Exhibit ARE-8), pp. 1-2; Taghleef's post-hearing submission,
(Exhibit ARE-13), p. 6.
125 Initiation memorandum, (Exhibit PAK-9), sections 2 and 12.
126 Initiation memorandum, (Exhibit PAK-9), sections 2 and 12. Moreover, see fn 83 above.
127 NTC's letter of 27 April 2012, (Exhibit ARE-6); Pakistan's response to Panel question No. 30.

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However, the NTC had already defined the dumping POI as January 2009 to June 2010128, and this
opportunity for parties to "add some information" would not even necessarily be understood as
allowing the submission of data postdating the POI.
7.76. To sum up, therefore, the NTC relied on a dumping POI that was almost two years old by the
time of initiation and two years and seven months old by the time of the final determination, it made
no attempt to update it and, during the proceedings, it provided no discussion whatsoever of this
choice. For these reasons, we find that in making its determination of dumping , the NTC failed to
ascertain the existence of current dumping, as required by Article 2.1.
7.2.2.3 Conclusion under Article 2.1
7.77. We therefore conclude that Pakistan's final determination was inconsistent with Article 2.1 of
the Anti-Dumping Agreement.
7.2.3 Judicial economy under Articles 9.1, 9.3, and 11.1
7.78. We refer to paragraph 7.49 above, on the conditions under which a panel may exercise judicial
economy.
7.79. In this case, the United Arab Emirates' claims under Articles 9.1, 9.3, and 11.1 are directed
at the same measure as the claim under Article 2.1, and indeed at the same aspect of that measure,
i.e. the selection of the dumping POI.129 Having already found that Pakistan acted inconsistently with
Article 2.1 because of the selection of the dumping POI, we exercise judicial economy on the
United Arab Emirates' claims under Articles 9.1, 9.3, and 11.1.
7.3 Temporal scope of the evidence underlying the determination of injury: Articles 3.1,
3.2, 3.4, 3.5, 9.1, and 11.1 of the Anti-Dumping Agreement
7.80. When initiating the investigation on 23 April 2012, the NTC selected January 2007 to
June 2010 as the POI for injury, and made its final determination of injury on the basis of evidence
for this POI.130
7.81. The United Arab Emirates argues that in so doing, the NTC acted inconsistently with
Articles 3.1, 3.2, 3.4, 3.5, 9.1, and 11.1 of the Anti -Dumping Agreement, because of the temporal
gap between the end of the POI, on the one hand, and the date s of initiation and of final
determination, on the other hand, together with other relevant factors, such as the fact that the NTC
failed to explain its choice and made no attempt at updating the evidence.131
7.82. Pakistan responds that, as made clear in Mexico – Anti-Dumping Measures on Rice, a temporal
gap alone does not give rise to an inconsistency. Instead, other relevant factors must be considered;
and, when the relevant factors are considered in this case, the conclusion must be that there is no
inconsistency with Article 3.1 and, consequently, no inconsistency with Articles 3.2, 3.4, and 3.5.132
7.83. As set out below, we find that the United Arab Emirates has established that Pakistan acted
inconsistently with Article 3.1 of the Anti -Dumping Agreement; we do not address the
United Arab Emirates' argument that, as a consequence, Pakistan also acted inconsistently with
Articles 3.2, 3.4, and 3.5; and we exercise judicial economy on the United Arab Emirates' claims
under Articles 9.1 and 11.1.
7.84. We structure our discussion as follows: first, we set out the applicable requirements of
Article 3.1 (section 7.3.1); second, we apply that standard to the facts of this case to assess whether
Pakistan acted inconsistently with Article 3.1, and we conclude that it did ( section 7.3.2); and last,
we explain that we do not address the United Arab Emirates' consequential arguments under

128 Notice of initiation (2012), (Exhibit ARE-5).
129 We address the injury POI separately. (See fn 95 above).
130 Report on final determination (2013), public version, (Exhibit ARE-2), para. 13.3.
131 See e.g. United Arab Emirates' first written submission, paras. 123-134 and 136; and second written
submission, paras. 55-68.
132 See e.g. Pakistan's first written submission, paras. 3.80-3.82, 3.86-3.91, and 3.98; and
second written submission, paras. 2.24-2.31.

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Articles 3.2, 3.4, and 3.5 and we exercise judicial economy under Articles 9.1 and 11.1
(sections 7.3.3 and 7.3.4).
7.3.1 The applicable requirements of Article 3.1
7.85. Article 3.1 requires a "determination of injury" to be "based on positive evidence and involve
an objective examination" 133 of the volume of dumped imports, their effect on prices, and their
consequent impact on the domestic industry.
7.86. We have considered the ordinary meaning of "evidence" at paragraph 7.19 above, observing
that the relevance of the evidence to the facts to be established is inherent in that ordinary meaning.
The ord inary meaning of "positive" includes " admitting no question; stated, express, definite,
precise; emphatic "134 (with the phrase "proof positive" meaning " definite, absolute, or
incontrovertible proof "135), and " providing support for a particular hypothesis, esp [ecially] one
concerning the presence or existence of something".136
7.87. In this regard we agree with the panel in Mexico – Anti-Dumping Measures on Rice that
"positive evidence is in the first place evidence which is material to the case at hand, in other words
it is to be relevant and pertinent with respect to the issue to be decided", and it is these traits that
"make it 'evidence ' as opposed to unrelated facts". 137 That is, again, the notion of relevance is
inherent in the very meaning of "evid ence", and in Article 3.1 the requirement for the evidence to
be relevant is underlined by the addition of the adjective "positive": as pointed out by others before
us, to meet the "positive evidence" standard, evidence must , at a minimum, be "relevant … to the
issue to be decided".138
7.88. The context provided by other provisions of the Anti -Dumping Agreement and Article VI of
the GATT 1994 helps to clarify what "the issue to be decided" is, i.e. what the evidence must be
relevant to. As we have observed in paragraph 7.24 above, Article VI:2 of the GATT 1994 and
Articles 11.1, 2.1, and 3.5 of the Anti -Dumping Agreement show that WTO disciplines on
anti-dumping set forth a scheme for remedying a current situation of injurious dumping. 139 Thus,
for evidence to meet the requirement of "positive evidence" under Article 3.1, it must, at a minimum,
pertain to that current situation, i.e. it must be evidence of current injury.140
7.89. In our view, whether the evidence on which the authority has based its determination of injury
relates to current injury will depend, first, on the temporal scope of the evidence relative to the
dates of initiation and of final determination. The more recent the data, the more likely they are to
be relevant to current injury.141 Second, it also depends on the relevant circumstances surrounding
the authority's choice of the POI for injury.
7.90. In reaching this view we note that, addressing the same question in Mexico – Anti-Dumping
Measures on Rice , the panel and Appellate Body also took into account the following
circumstances: (a) the POI was that proposed by the applicant; (b) Mexico had not established "that
practical problems necessitated this particular [POI]"; (c) Mexico had not argued "that updating the
information was not possible"; (d) no attempt was made to update the information; and (e) Mexico

133 Emphasis added.
134 Oxford Dictionaries online, definition of "positive"
https://www.oed.com/view/Entry/148318?rskey=vGamb6&result=1&isAdvanced=false#eid (accessed
12 October 2020), adj., meaning A.I.2, specifying that "positive" with this meaning is used chiefly in the
phrase "proof positive n. at proof n. 1a", which, in turn, is defined as "definite, absolute, or
incontrovertible proof".
135 See fn 134 above.
136 Oxford Dictionaries online, definition of "positive"
https://www.oed.com/view/Entry/148318?rskey=vGamb6&result=1&isAdvanced=false#eid (accessed
12 October 2020), adj., meaning A.II.4.c.
137 Panel Report, Mexico – Anti-Dumping Measures on Rice, para. 7.55. (emphasis added)
138 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 165.
139 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 165; Panel Reports, Mexico –
Anti-Dumping Measures on Rice, paras. 7.57-7.61; and Mexico – Steel Pipes and Tubes, paras. 7.226-7.227.
140 See also Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 165 ("the conditions
to impose an anti-dumping duty are to be assessed with respect to the current situation").
141 See para. 7.26 above; see also Appellate Body Report, Mexico – Anti-Dumping Measures on Rice,
para. 166.

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had provided no reason for failing to seek more recent information. 142 Based on the temporal gap
between the POI and the dates of initiation and final determination, together with these additional
circumstances, the panel and the Appellate Body in that case found that the investigating authority
had failed to base its determination of injury on evidence that was relevant to the current situation,
and had therefore acted inconsistently with Article 3.1.143
7.91. To summarize, then, Article 3.1 requires a determination of injury to be based on positive
evidence. This means, at a minimum, that the evidence must be relevant, and therefore it must
pertain to current injury at the time the determination is made. Whether this requirement is complied
with depends not only on the temporal scope of the evidence vis-à-vis the dates of initiation and
final determination, but also on any other relevant circumstances surrounding the
authorities' determination, such as, for example, whether the authority made any attempts to
update remote evidence or whether it was possible to do so.
7.3.2 Whether Pakistan acted inconsistently with Article 3.1
7.92. Similar to Article 2.1, the parties disagree on the relevant date of final determination against
which the temporal scope of the evidence must be assessed. For the reasons we have alre ady set
out in section 7.2.2.1 above, which are equally applicable to the determination of injury, we find
that the relevant date of final determination relative to which the temporal scope of the evidence
must be assessed is 4 February 2013, and we will not repeat our reasoning here.
7.93. We therefore turn to the core question before us, which is whether Pakistan acted
inconsistently with Article 3.1 by basing its determination of injury on evidence ending in June 2010,
taking into account all relevant circumstances.
7.94. We begin by considering the temporal scope of the evidence relative to the dates of initiation
and final determination. In this case, the POI for injury ran from January 2007 to June 2010. There
was thus a temporal gap of approximately 22 months between the end of that POI and initiation
(23 April 2012), and a gap of 31 months between the end of the POI and the final determination of
4 February 2013.
7.95. To assess whether evidence for such a POI was "positive evidence" and therefore, at a
minimum, evidence that was relevant to the current situation, we must turn to the other
circumstances surrounding the authority's selection of the POI.
7.96. First, Pakistan asks the Panel to take into account that a domestic court order directed the NTC
to proceed with the complaint before it, which, according to Pakistan, meant it could not change the
temporal scope of the evidence. 144 We have addressed this argument when discussing the
dumping POI at paragraph 7.69 above, and the same considerations are valid here.
7.97. Second, Pakistan argues that maintaining the POI first selected in 2010 allowed the NTC to
complete the investigation faster, in little more than nine months.145 Again, we have addressed this
argument at paragraphs 7.70-7.71 above. Similar to what we have observed there with regard to
Article 2.1, Article 3.1 imposes an obligation on Members to base their determination of injury on
"positive evidence", and mere expediency – without, for example, an explanation as to why updating
the evidence was not possible – cannot explain the choice to base a determinati on of injury on
evidence that was already almost two years old at the time of initiation, and two years and seven
months old at the time of the final determination.
7.98. Third, we turn to the factors that the United Arab Emirates has asked us to take into account.
The United Arab Emirates argues that, similar to Mexico – Anti-Dumping Measures on Rice, "(i) the
selected POI was essentially what was proposed by the applicant; (ii) the NTC did not establish that

142 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 167.
143 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 167; Panel Report, Mexico –
Anti-Dumping Measures on Rice, paras. 7.64-7.65. In Mexico – Steel Pipes and Tubes, where the data were
less remote, the panel concluded that in light of all the relevant circumstances the complainant had not
established an inconsistency with Article 3.1. (Panel Report, Mexico – Steel Pipes and Tubes,
paras. 7.231-7.240).
144 Pakistan's second written submission, paras. 2.26-2.27; response to Panel question No. 28.
145 Pakistan's first written submission, paras. 3.89-3.90; second written submission, para. 2.28.

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practical problems necessitated this particular POI; (iii) the NTC never established that updating the
information was not possible; (iv) the NTC made no attempt at updating the information although
there was no lack of cooperation from interested parties; and (v) the NTC provided no reason why
it was not s eeking more recent information ".146 We have addressed these circumstances at
paragraphs 7.72-7.75 above, and identical considerations are valid here, when assessing the
consistency of the determination of injury with Article 3.1.
7.99. Summing up, the NTC based its determination of injury on evidence that ended almost
two years before initiation, and two years and seven months before the final determination. The NTC
made no attempt to update that evidence and, during the anti-dumping proceedings, it provided no
discussion whatsoever of this choice. For these reasons, we find that Pakista n failed to base its
determination of injury on "positive evidence", thus acting inconsistently with Article 3.1 of the
Anti-Dumping Agreement.
7.3.3 Arguments on temporal scope under Articles 3.2, 3.4, and 3.5
7.100. We have found that the final determination of 9 April 2015, which ratified the final
determination of February 2013, is inconsistent with Article 3.1 because the NTC did not base the
determination of injury on evidence of current injury . The United Arab Emirates argues that, as a
consequence, the same measure is also inconsistent with Articles 3.2, 3.4, and 3.5.147
7.101. We do not address this UAE argument under Articles 3.2, 3.4, and 3.5. Later, however, we
examine the merits of other arguments of the United Arab Emirates under Articles 3.2, 3.4, and 3.5,
and we find that the United Arab Emirates has established that the final determination of 9 April 2015
is inconsistent with Articles 3.2, 3.4, and 3.5.148
7.3.4 Judicial economy under Articles 9.1 and 11.1
7.102. We refer to paragraph 7.49 above, on the conditions allowing a panel to ex ercise judicial
economy.
7.103. In this case, the United Arab Emirates' claims under Articles 9.1 and 11.1 are directed at the
same measure as the claim und er Article 3.1, and at the same aspect of that measure , i.e. the
temporal scope of the evidence on which the NTC based its determination of injury. Having already
found that Pakistan acted inconsistently with Article 3.1, we exercise judicial economy on the
United Arab Emirates' claims under Articles 9.1 and 11.1.
7.4 The NTC's choice of cost data: Articles 2.2, 2.2.1, 2.2.1.1, and 2.2.2
7.104. The United Arab Emirates claims that Pakistan acted inconsistently with its obligations under
Articles 2.2, 2.2.1, 2.2.1.1, and 2.2.2 of the Anti-Dumping Agreement, because the NTC evaluated
whether Taghleef's domestic sales were made in the ordinary course of trade by examining certain
"general 'cost to make and sell'" 149 data that Taghleef submitted to the NTC , instead of examining
what the United Arab Emirates considers to be more specific record data 150 related to the cost of
production (COP) and sale of the product under consideration151, without providing a reasoned and
adequate explanation for doing so.152 The United Arab Emirates asserts that the decision to use this
more "general" data led the NTC to incorrectly determine that a significant number of
Taghleef's sales were made outside of the ordinary course of trade, and thus to erroneously establish
normal value based on a subset of sales.153

146 United Arab Emirates' second written submission, para. 58.
147 See e.g. United Arab Emirates' first written submission, para. 136.
148 See sections 7.6, 7.7, 7.8, and 7.9 below.
149 United Arab Emirates' first written submission, para. 175.
150 United Arab Emirates' first written submission, paras. 175, 201, and 207-208; second written
submission, para. 92.
151 United Arab Emirates' first written submission, paras. 175-176.
152 United Arab Emirates' first written submission, paras. 214-215, 217, and 221-224.
153 United Arab Emirates' second written submission, para. 92 (asserting that the NTC improperly
rejected "large volumes of Taghleef's domestic sales as allegedly not being in the ordinary course of trade

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7.105. Pakistan denies these allegations for a number of reasons. Among other things , Pakistan
asserts that the NTC was within its discretion 154 to rely on and use Taghleef's more "general" data
because the company (a) provided this information to the NTC in response to a request to provide
"per unit COP information for each type of [investigated product]" that reflects "actual costs" 155;
(b) did not amend, point to perceived flaws in this data156, or dispute that it reflected the company's
financial statements157; (c) affirmatively stated that the "cost to make" BOPP was the same for its
domestic and export sales158; and (d) did not substantiate certain differences in selling costs that it
alleged existed across different markets .159 Pakistan also asserts that the "alternative" COP data
that the United Arab Emirates highlights "could not be reconciled" with Taghleef's financial
accounts.160
7.106. Given this, Pakistan argues that the "NTC was within the bounds of its discretion to
determine" that the more general data that Taghleef provided were "by far the more plausible and
reliable … in terms of reflecting the actual costs of production of the investigated product", and that
the NTC's decision to use this data was reasonable and grounded in the objective characteristics of
the evidence before it.161
7.107. We structure our discussion as follows: first, we review the salient facts underlying the
United Arab Emirates' claims (section 7.4.1); second, we set out the applicable requirements of
Articles 2.2, 2.2.1, 2.2.1.1, and 2.2.2 (section 7.4.2); we then apply that standard to the facts of
this dispute to assess whether the United Arab Emirates has established that Pakistan acted
inconsistently with the requirements of Articles 2.2, 2.2.1, 2.2.1.1, and 2.2.2 (section 7.4.3); and
last, we conclude that it has not (section 7.4.3.3).
7.4.1 Factual overview
7.108. The United Arab Emirates' arguments, and Pakistan 's response, centre on the
parties' disagreement about the manner in which the NTC evaluated Taghleef's cost data during the
investigation. Because the resolution of these claims requires us to examine the circumstances
surrounding the NTC's cost analysis in some detail, we summarize below the key facts that are at
issue in this analysis.
7.4.1.1 Exporter questionnaire
7.109. A key point of co ntention underlying the United Arab Emirates' Article 2.2 claims revolves
around the parties' disagreement about the relative quality of two different sets of data that Taghleef
provided to the NTC when the company responded to two different sections of th e
NTC's questionnaire for exporting producers ("exporter questionnaire"). The sections of the exporter
questionnaire at issue can be found at subsection D-3 and section F.
7.110. Subsection D-3 of the exporter questionnaire asked Taghleef to provide the NTC with, among
other things, the "[p]er unit total cost of production (cost of production plus administrative, selling

because of the use of cost data that were not specific to the domestic sales of the product under
consideration"); response to Panel question No. 38, paras. 41-42 (asserting that the NTC's decision to use less
specific "cost data that did not reasonably reflect the costs associated with the production and sale" of
BOPP film caused the NTC to find that certain sales were outside the ordinary course of trade and thus to
erroneously establish normal value on a "relatively small subset of sales"); and comments on
Pakistan's response to Panel question No. 87, p. 3 (observing that the United Arab Emirates' claim "focuses on
the NTC's decision to use Taghleef's general cost data from Appendix 2 of Section F … and not its specific
domestic cost data from Section D-3", which in turn caused the NTC to find that certain sales were not made in
the ordinary course of trade "and the consequent erroneous establishment of normal value").
155 Pakistan's first written submission, para. 3.143; see also Taghleef's questionnaire response,
(Exhibit ARE-16 (BCI)), p. 29.
156 Pakistan's first written submission, para. 3.147.
157 Pakistan's first written submission, para. 3.147.
158 Pakistan's first written submission, para. 3.156; see also Taghleef's response to third deficiency
letter, redacted version, (Exhibit ARE-18), p. 2.
159 Pakistan's first written submission, paras. 3.157-3.162.
160 Pakistan's first written submission, paras. 3.140 and 3.231.
161 Pakistan's second written submission, para. 2.53.

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

and financial expenses)" associated with each sale that Taghleef made in the domestic market. 162
Section D-3 appears in section D of the exporter questionnaire. Section D is titled "Domestic Sales
of the [investigated product]". Section D instructed Taghleef to "please provide specific information
on all your sales of the [investigated product] in your domestic market during the POI". The relevant
portion of subsection D-3 reads as follows:
D-3 Information on Domestic market customers
Following information should be provided for each transaction separately in a
table form. This information should also be supplied on CD ROM. These data files should
be compatible to the US versions in EXCEL format.
Information Required Field Name
A Sequential number for the transaction S. No.
…
AK Per unit total cost of production (cost of production plus COP
 administrative, selling and financial expenses) for this
 transaction
7.111. Section F of the exporter questionnaire, which is titled "Cost of Production", asked Taghleef
to "report per-unit COP information for each type of [investigated product] in Appendix No. 2" and
specified that the amounts that were to be reported in appendix 2 "should be based on the actual
costs incurred" by Taghleef as recorded in the company's "normal accounting system".163
7.112. Taghleef responded to these requests by providing the NTC with two different spreadsheets.
7.113. The first spreadsheet responded to subsection D-3 of the exporter questionnaire by including
a column with the requested "total cost of production" data for each domestic sale. We refer to this
information as the "appendix D-3" data. The exporter questionnaire did not ask Taghleef to break
down the elements of the COP associated with each of Taghleef's sales (i.e. into a separate breakout
of administrative, selling, and general costs (SG&A) and profit, for example), and Taghleef did not
provide such a breakdown in appendix D-3.164
7.114. The second spreadsheet responded to section F of the exporter questionnaire with data that
Taghleef provided in appendix 2 to section F. We refer to this data as th e "appendix 2" data.
The appendix 2 data break down the costs associated with the production of BOPP film into a number
of categories, including the cost of raw materials, packing material, salaries and wages,
manufacturing overhead, administrative expense s, selling and distribution expenses, financial
expenses, and wholesaler's profit. The appendix 2 data did not, however, segment these costs on a
market-by-market basis.165
7.115. Taghleef did not provide audited financial statements to the NTC. 166 Notwithstanding this,
Taghleef asserted that the appendix 2 data mirrored the company's audited financial statements.167
Taghleef did not make a similar assertion with respect to the appendix D-3 data.
7.116. The NTC and Taghleef had several follow-on communications related to Taghleef's cost data,
including in the context of a deficiency letter, a letter related to the dumping calculation, the

162 NTC's blank exporter questionnaire, (Exhibit PAK-37), pp. 16-17; Taghleef's questionnaire response,
(Exhibit ARE-16 (BCI)), pp. 25-26.
163 NTC's blank exporter questionnaire, (Exhibit PAK-37), p. 18; Taghleef's questionnaire response,
(Exhibit ARE-16 (BCI)), p. 29.
164 Appendix D-3 to Taghleef's response to exporter questionnaire, (Exhibit PAK-14 (BCI)). This exhibit
provides a single COP for each transaction.
165 Appendix 2 to Taghleef's response to exporter questionnaire, (Exhibit PAK-13 (BCI)).
166 Taghleef's questionnaire response, (Exhibit ARE-16 (BCI)), p. 29 (stating that [[***]], and that

167 United Arab Emirates' second written submission, para. 105 (referring to Taghleef's letter of
30 November 2012, (Exhibit ARE-19 (BCI)), p. 2). Taghleef's letter of 30 November 2012 states: [[***]]).

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

preliminary determination, an email exchange in which Taghleef bifurcated some of the appendix 2
data that it had previously provided to the NTC, the statement of essential facts, and the final
determination. The parties dispute the contents and quality of the information contained in these
exchanges, which are summarized below.
7.4.1.2 Deficiency letter
7.117. On 22 February 2011, the NTC sent a deficie ncy letter to Taghleef in which the NTC
requested Taghleef, in relevant part:
a. To provide cost to make and sell on a quarterly basis in appendix 2 format.
b. To confirm that the cost to make and sell reported at appendix 2 related to overall
production of BOP P film only, and to bifurcate those costs if they did not relate to
production of BOPP film only.
c. To "work out" costs to make and sell BOPP film for domestic sales and export sales
separately.168
7.118. On 1 March 2011, Taghleef responded to the NTC's deficiency letter as follows:
a. Taghleef attached the cost to make and sell on a quarterly basis in appendix -2 format.
In addition, Taghleef drew the NTC 's "attention to the cost of production given in
Appendix D-3". Taghleef stated that these costs (i.e. the appendix D-3 costs) were "based
on the Company 's quarterly average of 'standard costs', which should be used for any
calculations for the Company".169
b. Taghleef confirmed that the cost to make and sell data that the company provided in
appendix 2 related to the production of BOPP film.170
c. Taghleef stated that there were no differences between the cost to make BOPP film [] for
domestic and export sales, but indicated that there were some differences in the cost of
sales between the domestic and export market, w hich Taghleef asserted were "clearly
provided" in appendices C-3 and D-3.171
7.119. Taghleef's 1 March 2011 reply did not provide additional information related to the
differences that Taghleef stated existed with respect to the company's domestic and export sales.
7.4.1.3 Preliminary determination
7.120. On 10 August 2012, the NTC issued its preliminary determination, in which it used
Taghleef's appendix 2 data to calculate the company's costs.172
7.121. On 30 November 2012, Taghleef commented on the preliminary determination. It pointed
out that the NTC had used the appendix 2 data, which included [[***]].173 For this reason, Taghleef
opined that these costs were not representative of the costs associated with domestic sales. Taghleef
stated that it was more appropriate for the NTC to use the separate costs that it had provided in
appendix D-3.174

168 Third deficiency letter, (Exhibit ARE-17), p. 1.
169 Taghleef's response to third deficiency letter, redacted version, (Exhibit ARE-18), p. 2, para. A3.
Taghleef repeated this statement in a 30 November 2012 letter to the NTC commenting on the NTC's dumping
calculations. (Taghleef's letter of 30 November 2012, (Exhibit ARE-19 (BCI)), p. 2).
170 Taghleef's response to third deficiency letter, redacted version, (Exhibit ARE-18), p. 2, para. A4.
171 Taghleef's response to third deficiency letter, redacted version, (Exhibit ARE-18), p. 2, para. A4.
172 Pakistan's first written submission, para. 3.167.
173 Taghleef's letter of 30 November 2012, (Exhibit ARE-19 (BCI)), p. 1.
174 Taghleef's letter of 30 November 2012, (Exhibit ARE-19 (BCI)), pp. 2-3. See also
United Arab Emirates' first written submission e.g. paras. 198, 208, 213, and 225; and Taghleef's response to
third deficiency letter, redacted version, (Exhibit ARE-18), p. 2, para. A3.

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

7.4.1.4 Email of December 2012
7.122. On 18 December 2012, Taghleef sent an email to the NTC in which it reiterated its position
that the data used by the NTC to calculate Taghleef 's costs did not correct ly represent the cost to
make and sell in the domestic market. Taghleef attached files in which it split the appendix 2 data
by territory into Pakistan, Dubai, Oman , and the rest of the world, and suggested that th ese files
showed how the appendix D-3 data were to be reconciled with the appendix 2 data.175 These files,
however, did not appear to allocate to domestic sales a number of fixed costs ( e.g. manufacturing
salaries and wages, depreciation, etc.).176
7.4.1.5 Taghleef's comments on the statement of essential facts
7.123. On 17 January 2013, Taghleef commented on the NTC's statement of essential facts. In its
letter, Taghleef stated that the NTC had "chosen to ignore what Taghleef [had] repeatedly stated in
its response to the exporter 's questionnaire, deficiency letters, detailed letters and submissions …
that the information representing the cost to make and sell for domestic sales is what was provided
in [appendix] D-3 rather than Appendix 2".177
7.4.1.6 The NTC's response in the Report on final determination
7.124. In its 2013 Report on final determination , responding to Taghleef's comment on the
NTC's statement of essential facts , the NTC stated that the appendix D-3 data failed to allocate to
domestic sales certain fixed costs. In light of this, the NTC concluded that the cost allocation method
in appendix D-3 did not present a "true and fair picture of cost of production. Hence the [NTC]
calculated cost of production of Taghleef Oman [sic] on the basis of information provided by it in
Appendix 2".178
7.4.2 The applicable requirements of Articles 2.2, 2.2.1, 2.2.1.1, and 2.2.2
7.4.2.1 Article 2.2 of the Anti-Dumping Agreement
7.125. Article 2.2 of the Anti -Dumping Agreement dictates the manner in which an investigating
authority must determine normal value in the event the authority cannot use sales data from the
exporting country's domestic market to calculate the dumping margin.179 Specifically, it provides, in
relevant part, that:
When there are no sales of the like product in the ordinary course of trade in the
domestic market of the exporting country … the margin of dumping shall be determined
by comparison with a comparable price of the like product when exported to an
appropriate third country, provided that this price is representative, or with the cost of

175 Taghleef's email of 18 December 2012, (Exhibit PAK-12A (BCI)), (explaining: "[y]ou will see a
highlighted cell (H48) in each of the sheets and these would reconcile with the quarterly COP numbers
provided in Annexure D3").
176 Taghleef's email of 18 December 2012, (Exhibit PAK-12A (BCI)). On this point, see also
fn 241 below.
177 Taghleef's comments on statement of essential facts, (Exhibit ARE-25), section 2.
178 Report on final determination (2013), public version, (Exhibit ARE-2), pp. 72-73. We note that
page 72 of the report uses the term "Taghleef Oman" rather than Taghleef Industries or Taghleef LLC. When
the Panel asked Pakistan to explain this apparent discrepancy, Pakistan asserted that the reference to Taghleef
Oman was a typographical error. Pakistan supported this assertion by noting, among other things, that (a) this
specific reference to Taghleef Oman appears in a section of the report that is titled "Comments of Taghleef
Industries"; and (b) Taghleef Industries and Taghleef Oman were frequently referred to in a combined or
collective manner during the investigation. (Pakistan's written opening statement, paras. 51-54; response to
Panel question No. 83, p. 37; comments on United Arab Emirates' request for interim review, para. 3.22).
Given this, and as we discuss in our response to the comments that the United Arab Emirates submitted on
this issue in the Interim Report, we accept that the reference to Taghleef Oman that appears on page 71 of
the 2013 Report on final determination is a typographical error.
179 See e.g. Panel Report, US – Softwood Lumber V, para. 7.278 (observing that the provision "concerns
the establishment of an appropriate proxy for the price of the like product in the ordinary course of trade in the
domestic market of the exporting country when that price cannot be used").

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

production in the country of origin plus a reasonable amount for administrative, selling
and general costs and for profits.
7.126. In such circumstances, Article 2.2 mandates ("shall be determined") that an investigating
authority select between one of two types of data to determine normal value in the event there are
no sales of the like product that were made in the ordinary course of trade: either third country
sales, or the COP in the country of origin. When an authority elects to determine normal value based
on the COP, the authority must add a "reasonable" amount for SG&A and profits to the identified
production costs.180
7.4.2.2 Article 2.2.1 of the Anti-Dumping Agreement
7.127. Article 2.2.1 of the Anti-Dumping Agreement provides that:
Sales of the like product in the domestic market of the exporting country or sales to a
third country at prices below per unit (fixed and variable) costs of production plus
administrative, selling and general costs may be treated as not being in the ordinary
course of trade by reason of price and may be disregarded in determining normal value
only if the authorities determine that such sales are made within an extended period of
time in substantial quantities and are at prices which do not provide for the recovery of
all costs within a reasonable period of time. If prices which are below per unit costs at
the time of sale are above weighted average per unit costs for the perio d of
investigation, such prices shall be considered to provide for recovery of costs within a
reasonable period of time.181
7.128. Article 2.2.1 establishes an analytic framework to verify whether an investigating authority
may disregard certain below-cost sales when determining normal value. Specifically, the framework
provides that an investigating authority may disregard certain below -cost sales that the authority
determines to have been made outside the ordinary course of trade. 182 The first sentence of this
provision sets out two steps that investigating authorities must follow when applying this framework
to determine whether particular below-cost sales may be disregarded as being outside the ordinary
course of trade.
7.129. First, the investigating authority must ascertain that a sale or sales have been made at
"prices below per unit (fixed and variable) costs of production plus administrative, selling and general
costs". Second, the investigating authority must determine that such below -cost sales have been
made (a) within an extended period of time, (b) in substantial quantities, and (c) at prices which do
not provide for the recovery of all costs within a reasonable period of time.
7.4.2.3 Article 2.2.1.1 of the Anti-Dumping Agreement
7.130. Article 2.2.1.1 of the Anti-Dumping Agreement provides that183:
For the purpose of paragraph 2, costs shall normally be calculated on the basis of
records kept by the exporter or producer under investigation, provided that such records
are in accordance with the generally accepted accountin g principles of the exporting
country and reasonably reflect the costs associated with the production and sale of the
product under consideration.
Authorities shall consider all available evidence on the proper allocation of costs,
including that which is made available by the exporter or producer in the course of the
investigation provided that such allocations have been historically utilized by the
exporter or producer, in particular in relation to establishing appropriate amortization
and depreciation periods and allowances for capital expenditures and other development
costs.

180 See e.g. Panel Report, US – Softwood Lumber V, para. 7.278.
181 Fns omitted.
182 See e.g. Appellate Body Report, US – Hot-Rolled Steel, para. 147.
183 We set out the sentences separately for ease of reference.

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Unless already reflected in the cost allocations under this sub-paragraph, costs shall be
adjusted appropriately for those non-recurring items of cost which benefit future and/or
current production, or for circumstances in which costs during the period of investigation
are affected by start-up operations.
7.131. Article 2.2.1.1 establishes three rules for investigating authorities to follow in the event that
an authority determines to construct normal value under Article 2.2 of the Anti-Dumping Agreement.
7.132. First, the first sentence of Article 2.2.1.1 establishes a general preference for an authority
to use an exporter or producer 's own records to determine a company 's costs, so long as thos e
records have been kept in accordance with generally accepted accounting principles (GAAP) and the
records "reasonably reflect" the costs that the company incurs to produce and sell the product under
consideration.
7.133. This means, conversely, that an authority need not necessarily use a company's records to
calculate its costs where those records do not reflect GAAP due to their potential lack of reliability.
The same is true where the authority determines that a company 's records do not "reasonably
reflect" the company's costs.
7.134. The phrase "reasonably reflect" is not defined in the Anti-Dumping Agreement. The ordinary
meaning of the word "reasonably", however, includes: "justly, properly, fairly"; " [f]airly or pretty
well"; and "sufficiently, suitably".184 The ordinary meaning of the word "reflect" includes "[t]o display
as if in a mirror" and "to reproduce, esp. faithfully or accurately".185
7.135. Other dispute proceedings , which we find persuasive, have interpreted the phrase
"reasonably reflect" to mean "to mi rror, reproduce, or correspond to something suitably and
sufficiently".186 This condition has been deemed to be met when, for example, the records kept by
the exporter or producer suitably and sufficiently correspond to or reproduce the costs that the
company incurred to produce and sell the product under consideration.187
7.136. Those proceedings have also observed that the manner in which an exporter or producer
records its costs in financial statements may not necessarily correspond to how the product under
consideration is defined for purposes of a specific anti-dumping investigation. Consequently, how an
exporter or producer registers its costs in its financial statements may not "reasonably reflect the
costs associated with the production and sale of the produ ct under consideration" in a specific
anti-dumping investigation.188
7.137. Investigating authorities are, of course, free to examine and test the reliability and accuracy
of a producer's or exporter's recorded costs, i.e. to determine for example: whether the re cords
accurately reflect all categories of costs; whether the costs that a company claims to have incurred
have been over or understated; and whether the allocations made are appropriate and in accordance
with proper accounting standards.189

184 Oxford Dictionaries online, definition of "reasonably"
https://www.oed.com/view/Entry/159074?redirectedFrom=reasonably#eid (accessed 15 October 2020), adv.,
meanings 1-2.
185 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 2, p. 2506; Oxford Dictionaries online, definition of "reflect"
https://www.oed.com/view/Entry/160912?rskey=FxHC69&result=3&isAdvanced=false#eid (accessed
15 October 2020), v., meaning 6.b.
186 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.20.
187 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.26.
188 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.21 and fn 127 (observing that "the
exporter or producer under investigation may export or produce a number of different products", "[w]hile the
product under consideration in a particular anti-dumping investigation may be limited to a single model, size,
type or specification of a product", and that the records of such exporter or producer may not allocate costs on
a "product-by-product or model-by-model basis").
189 Panel Report, EU – Biodiesel (Argentina), fn 400:
However, we do not understand the phrase "reasonably reflect" to mean that whatever is recorded
in the records of the producer or exporter must be automatically accepted. Nor does it mean …
that the words "reasonably reflect" are limited only to the "allocation" of costs. The investigating

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

7.138. Second, the sec ond sentence of Article 2.2.1.1 establishes a general rule governing the
scope of evidence that an authority must weigh when determining how to properly allocate a
producer or exporter's costs. Specifically, the sentence requires authorities to "consider all available
evidence on the proper allocation of costs", including evidence that a producer or exporter provides
during the course of the investigation, so long as the company can demonstrate that its allocation
criteria reflect the company's past allocation practices.
7.139. The Anti-Dumping Agreement does not specifically define either the word "consider" or the
phrase "proper allocation".
7.140. The ordinary meaning of the word "consider" includes: " [t]o look attentively"; " [t]o
contemplate mentally, fix the mind upo n", "to think over, meditate or reflect on, bestow attentive
thought upon, give heed to, take note of" ; "[t]o think, reflect, take note"; and "to regard, make
allowance for".190
7.141. After analysing the ordinary meaning of the word, another dispute proceeding which we find
relevant understood the term "consider" in the context of this sentence to mean that an investigating
authority is required to "reflect on" and to "weigh the merits of" all available evidence on the proper
allocation of costs.191 The parameters of this obligation will vary case by case. In instances where
there is compelling evidence that more than one allocation methodology may be appropriate to
ensure there is a "proper" allocation of costs, the same dispute proceeding concluded that an
investigating authority may be required to "reflect on" and "weigh the merits of" evidence that
relates to such alternative allocation methodologies, in order to satisfy the requirement to "consider
all available evidence".192
7.142. Finally, the third sentence of Article 2.2.1.1 requires an authority to adjust a
company's costs to ensure that that the construction of normal value is not distorted by certain
exceptional non-recurring or start-up costs.
7.143. Prior dispute proceedings have interpreted the second and third sentences of Article 2.2.1.1
to encompass "the understanding that the inquiry envisaged under Article 2.2.1.1 is one relating to
the circumstances of each investigated exporter or producer in the exporting country" .193
Article 2.2.1.1 has also been read to permit an authority to reject an allocation methodo logy that
would exclude certain costs that in fact pertain to the product under investigation.194 As such,
Article 2.2.1.1 has been interpreted to allow an investigating authority to "obtain a more precise
calculation of the costs associated with the product under consideration for the specific exporter or
producer by ensuring or verifying that there is a genuine relationship between the costs reflected in
the exporter's or producer's records and the costs associated with the production and sale of the
specific product under consideration".195 We agree with these interpretations.
7.144. The text of Article 2.2.1.1 does not specify how an investigating authority is to demonstrate
that it has fulfilled the article's requirement to calculate costs on the basis of the records of a
producer or exporter, and that it has considered all available evidence on the pro per allocation of

authorities are certainly free to examine the reliability and accuracy of the costs recorded in the
records of the producers/exporters, and thus, whether those records "reasonably reflect" such
costs. In particular, the investigating authorities are free to examine whether all costs incurred are
captured and none has been left out; they can examine whether the actual costs incurred have
been over or understated; and they can examine if the allocations made, for example for
depreciation or amortization, are appropriate and in accordance with proper accounting standards.
They are also free to examine non -arms-length transactions or other practices which may affect
the reliability of the reported costs. But, in our view, the examination of the records that flo ws
from the term "reasonably reflect" in Article 2.2.1.1 does not involve an examination of the
"reasonableness" of the reported costs themselves, when the actual costs recorded in the records
of the producer or exporter are otherwise found, within accep table limits, to be accurate and
faithful.
190 Oxford Dictionaries online, definition of "consider"
https://www.oed.com/view/Entry/39593?redirectedFrom=consider#eid (accessed 15 October 2020), v.,
meanings 2, 3, 4, and 7.
191 Appellate Body Report, US – Softwood Lumber V, para. 133.
192 Appellate Body Report, US – Softwood Lumber V, para. 138.
193 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.22.
194 Panel Report, US – Softwood Lumber V, para. 7.258 (referring to SG&A costs).
195 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.22.

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costs. Further, prior proceedings that have considered the scope of an authority 's obligation to
explain its conduct under Article 2.2.1.1 have generally done so when an authority has used external
cost data, after determining that a part y's records are either inconsistent with GAAP or do not
reasonably reflect the costs associated with the production and sale of the product under
consideration.196 We note that those circumstances are different from the circumstances in the
present dispute, given that the evidence in the present dispute indicates that the NTC did use
Taghleef's records in its cost analysis.
7.145. Finally, we note that while the text of Article 2.2.1.1 states that its terms apply to Article 2.2,
other proceedings have observed that Article 2.2.1.1 is "applicable to determining whether, pursuant
to Article 2.2.1, sales in the domestic market of the exporting country are at prices below per -unit
costs and therefore not in the ordinary course of trade by reason of price" .197 We agree with this
observation.
7.4.2.4 Article 2.2.2 of the Anti-Dumping Agreement
7.146. Article 2.2.2 of the Anti-Dumping Agreement states that:
For the purpose of paragraph 2, the amounts for administrative, selling and general
costs and for profits shall be based on actual data pertaining to production and sales in
the ordinary course of trade of the like product by the exporter or producer under
investigation. When such amounts cannot be determined on this basis, the amounts
may be determined on the basis of:
(i) the actual amounts incurred and realized by the exporter or producer in question
in respect of production and sales in the domestic market of the country of origin
of the same general category of products;
(ii) the weighted average of the actual amounts inc urred and realized by other
exporters or producers subject to investigation in respect of production and sales
of the like product in the domestic market of the country of origin;
(iii) any other reasonable method, provided that the amount for profit so established
shall not exceed the profit normally realized by other exporters or producers on
sales of products of the same general category in the domestic market of the
country of origin.
7.147. Article 2.2.2 thus establishes a two -tiered data hierarchy that an a uthority is expected to
follow when determining what administrative, selling, and general costs, and profit figures should
be used in the construction of normal value.198 Specifically, the first sentence of this article requires
that, if actual data for SG&A costs and profits in the ordinary course of trade exist for the exporter
under investigation, then the authority must use that actual data to calculate normal value. If actual
data are not available, an authority may determine SG&A costs and profits usin g one of the
three other methods outlined in the second sentence of this provision.199

196 Panel Report, China – Broiler Products, para. 7.164:
In sum, the Panel is of the view that although Article 2.2.1.1 sets up a presumption that the books
and records of the respondent shall normally be used to calculate the cost of production for
constructing normal value, the investigating authority retains the right to decline to use such books
if it determines that they are either (i) inconsistent with GAAP or, (ii) do not reasonably reflect the
costs associated with the production and sale of the product under consideration. However, when
making such a determination to derogate from the norm, the investigating authority must set forth
its reasons for doing so.
(emphasis original)
197 See e.g. Panel Report, EU – Biodiesel (Argentina), fn 376.
198 See also, Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.25;
EC – Tube or Pipe Fittings, para. 97.
199 The parties to this dispute have not raised any issues regarding the second sentence of Article 2.2.2.

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

7.148. The Anti-Dumping Agreement does not define the term "actual" ; the ordinary meaning of
the word includes "[e]xisting in fact, real".200
7.4.3 Whether Pakistan acted inconsistently with the requirements of Articles 2.2, 2.2.1,
2.2.1.1, and 2.2.2
7.149. In this section we apply the standard set out above to the particular facts of this dispute.
7.150. In doing so we note that United Arab Emirates' written submissions periodically refer to its
Article 2.2 claims either collectively (by asserting, for example, that the "NTC acted inconsistently
with its obligations under Articles 2.2, 2.2.1, 2.2.1.1 and 2.2.2")201 or in pairs ( by asserting, for
example, that the "NTC acted inconsistently with Articles 2.2.1.1 and 2.2.2" when it determined to
use costs that were "not associated with … domestic sales", and that the NTC improperly "rejected
and replaced verifiable cost data … in violation of Articles 2.2 and 2.2.1").202
7.151. While these submissions thus do not always specify precisely how the United Arab Emirates
believes the NTC 's conduct to be inconsistent with Pakistan 's obligations under Article 2.2, 2.2.1,
2.2.1.1, or 2.2.2 standing alone, we understand the United Arab Emirates to make two interrelated
arguments under different combinations of these provisions.
7.152. First, under Articles 2.2.1.1 and 2.2.2, we understand the United Arab Emirates to challenge
the NTC's decision to use Taghleef's appendix 2 data rather than its appendix D -3 data and the
NTC's alleged failure to provide a reasoned and adequate explanation for doing so. Second, we
understand the United Arab Emirates to make a consequ ential claim that Pakistan acted
inconsistently with Articles 2.2 and 2.2.1 based on the premise that , if the NTC had used
Taghleef's appendix D-3 data, Taghleef's overall costs would likely have been lower, which, in turn,
would have led the NTC to determine that more of Taghleef's domestic sales had been made in the
ordinary course of trade, which, in turn "would have resulted in a lower dumping margin".203
7.153. We consider these challenges in turn.
7.4.3.1 The NTC's decision to use the data that Taghleef provided in appendix 2 rather
than appendix D-3
7.4.3.1.1 Article 2.2.1.1
7.154. The parties do not dispute that the d ata in either appendix 2 or appendix D-3 were drawn
from "records kept" by Taghleef. The parties also have not questioned whether Taghleef 's records
were prepared in accordance with GAAP. The central question that thus presents itself under th e
United Arab Emirates' Article 2.2.1.1 claim (and that impacts all of the United Arab Emirates' related
claims) is: could an unbiased and objective authority have elected, as the NTC did, to use the cost
information contained in appendix 2 instead of appendix D-3 to evaluate whether
Taghleef's domestic sales were made in the ordinary course of trade?
7.155. The answer to this question turns on whether (a) an objective and unbiased authority could,
in accordance with Article 2.2.1.1, determine that Taghleef 's appendix 2 cost data "reasonably
reflect[ed]" the costs associated with the production of BOPP ; and (b) the NTC "consider[ed] all
available evidence" on the proper allocation of costs when it decided to rely on the appendix 2 data
to measure Taghleef's costs.

200 Oxford Dictionaries online, definition of "actual"
https://www.oed.com/view/Entry/1972?redirectedFrom=actual#eid (accessed 15 October 2020), adj.,
meaning 2.
201 United Arab Emirates' first written submission, para. 227; see also second written submission,
para. 98 (claiming that "[b]y using costs that were not associated with the domestic sales in the UAE for
establishing the normal value, the NTC acted inconsistently with Articles 2.2, 2.2.1, 2.2.1.1, and 2.2.2 of the
Anti-Dumping Agreement").
202 United Arab Emirates' first written submission, paras. 214 and 227.
203 United Arab Emirates' second written submission, para. 97.

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

7.156. We begin with the reasonably reflect element: Did the appendix 2 data "reasonably reflect"
Taghleef's costs?
7.157. Pakistan asserts that the NTC was within its discretion 204 to rely on and use
Taghleef's appendix 2 cost data because (a) Taghleef submitted the appendix 2 data in response to
section F of the NTC's exporter questionnaire request to provide "per-unit COP information for each
type of [investigated product]", which should reflect "actual costs" 205; (b) Taghleef did not seek to
amend its appendix 2 data nor dispute that it reflected its financial statements206; (c) Taghleef, when
asked by the NTC to "bifurcate" the costs associated with its domestic and export sales, affirmatively
stated that the "cost to make" BOPP in either instance was the same 207; and (d) while Taghleef
alleged that certain differences in selling costs existed, it did not substantiate those differences, and
therefore the NTC could not rely on them.208
7.158. The United Arab Emirates does not appear to dispute points (a)-(c) above. The
United Arab Emirates does, however, challenge the premise that Taghleef had an obligation to
support its appendix D-3 cost allocation by providing additional material to further substantiate and
explain the numerical information contained in the appendix D-3 spreadsheet.209 Specifically, the
United Arab Emirates asserts that t he cells labelled "Other 1", "Other 2", and "Other 3" in
appendix D-3210 explain the differences between the appendix 2 and appendix D-3 cost figures, and
that these differences were "clearly provided"211 to the NTC.
7.159. Pakistan disagrees, noting that "there was no evident basis to understand the origin s of
these figures".212 Pakistan also observes that "in contrast to Taghleef 's explicit assertion that the
Appendix 2 data 'mirror[ed]' the company's financial statements", Taghleef "never asserted that the
Appendix D-3 data could be reconciled with its financial statements".213
7.160. We observe that the ordinary meaning of the phrase "reasonably reflect" as it is used in
Article 2.2.1.1 indicates that when the records of a producer or exporter are used to calculate costs,
those records must fairly reproduce the actual costs that are incurred in the production and sale of
the product under consideration.
7.161. In this particular dispute, we note that the United Arab Emirates , and Taghleef in the
underlying proceeding, have suggested that Taghleef 's appendix D-3 data were superior to the
costs that it recorded in appendix 2 because appendix D-3 contained "specific … cost data that
directly applied to … the production and sale" 214 of BOPP film , and because the "costs given in
[appendix] D-3 … are based on the Company's quarterly average of 'standard costs'".215 By contrast,
the United Arab Emirates asserts that Taghleef's appendix 2 data "w[ere] not representative of the
costs affiliated with domestic sales, as it included certain non -relevant costs for selling to markets
other than in the UAE".216
7.162. We also observe, however, that the COP section of the NTC 's exporter questionnaire
instructed Taghleef to report the company's "per-unit COP information for each type of [investigated
product] in Appendix No. 2" and further instructed Taghleef that the "amounts reported in

204 Pakistan's second written submission, para. 2.53.
205 NTC's blank exporter questionnaire, (Exhibit PAK-37), p. 18; Taghleef's questionnaire response,
(Exhibit ARE-16 (BCI)), p. 29.
206 Pakistan's first written submission, para. 3.147.
207 Taghleef's response to third deficiency letter, redacted version, (Exhibit ARE-18), p. 2.
208 Pakistan's first written submission, paras. 3.157-3.160 and 3.162.
209 United Arab Emirates' response to Panel question No. 46, paras. 51-52 (asserting, among other
things, that nothing in the Anti-Dumping Agreement "requires an interested party to submit replies to …
questionnaires accompanied by 'evidence'" and that "the NTC never made any request to provide 'evidence' to
support the COP number given in response to the questionnaire as Appendix D-3").
210 United Arab Emirates' response to Panel question No. 42, para. 50.
211 Taghleef's response to third deficiency letter, (Exhibit ARE-18b (BCI)), para. A4.
212 Pakistan's second written submission, para. 2.71.
213 Pakistan's response to Panel question No. 44.
214 United Arab Emirates' first written submission, para. 192.
215 United Arab Emirates' first written submission, para. 208.
216 United Arab Emirates' first written submission, para. 198; see also ibid. para. 213 (stating that the
appendix 2 data "include many extraordinary and abnormal cost items … such as promotional costs for sales to
European and American markets and carrying costs of investment and cost of shared services rendered to
Ti Group").

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

Appendix 2 should be based on the actual c osts incurred by your company as recorded in your
normal accounting system" .217 We further observe that Taghleef stated that the cost information
that it provided to the NTC in appendix 2 mirrored the company 's audited financial statements.218
Taghleef does not appear to have made a similar statement regarding the appendix D-3 data.
7.163. Given this, we are of the view that the various cost information that Taghleef provided to
the NTC both in its responses to the questionnaire and in follow -on exchanges, and the
representations that Taghleef made to the NTC related to this data appear to be somewhat conflicted.
7.164. This conflict might have been capable of being resolved by the NTC had it had the opportunity
to evaluate the appendix 2 and appendix D-3 data against Taghleef's audited financial statements.
In this instance, however, Taghleef declined to provide its audited financial statements to the NTC219,
noting that, [[***]].220
7.165. The United Arab Emirates acknowledges that the NTC advised Taghleef of this issue in both
the NTC's preliminary and final report.221 Specifically, the United Arab Emirates acknowledges that
the NTC advised Taghleef that it had "'not provided a copy of the audited accounts' and that such a
copy is 'required for cross checking the cost of production [of the] investigated products while
determining ordinary course of trade'".222 Notwithstanding this, the United Arab Emirates suggests
that these statements are irrelevant223 to resolving whether the data that the NTC elected to use to
determine that some of Taghleef 's sales were made in the ordinary course of trade reasonably
reflected Taghleef's costs.
7.166. We are of the view that when an authority is presented with what appear to be conflicting
sets of company cost data, the phrase "reason ably reflect" in Article 2.2.1.1 provides the authority
with a degree of discretion to select the data that correspond better to the company's actual costs ,
absent evidence that demonstrates that a particular dataset is clearly superior (for example data
reflected in audited financial statements). While the exact scope of this discretion will vary depending
on the specific facts of each proceeding, in this instance we conclude that the NTC acted within the
bounds of its discretion when it elected to use Tag hleef's appendix 2 data to conduct its dumping
analysis.
7.167. We now turn to the consideration element: Did the NTC "consider all available evidence on
the proper allocation" of Taghleef's costs when it determined to use Taghleef's appendix 2 cost data?
7.168. The United Arab Emirates asserts that the NTC "never engaged with the COP information in
Appendix D-3".224
7.169. Pakistan counters this assertion by noting that the NTC stated in the Report on final
determination that, "[t]he cost of production stated at [appendix] D-3 has been calculated by
allocating fixed costs to export markets other than Pakistan. Similarly fixed cost has not been
allocated to cost of production for domestic sales. This method of cost allocation does no[t] present
[a] true and fair picture of cost of production. Hence the [NTC] calculated cost of production … on
the basis of information provided" by Taghleef in appendix 2.225
7.170. We appreciate that the United Arab Emirates takes the view that the NTC should have relied
upon Taghleef's appendix D-3 data when determining how to properly allocate the company's costs.
We disagree, however, with the suggestion that the NTC failed to consider this information. To the

217 NTC's blank exporter questionnaire, (Exhibit PAK-37), p. 18; Taghleef's questionnaire response,
(Exhibit ARE-16 (BCI)), p. 29.
218 United Arab Emirates' second written submission, para. 105 (referring to Taghleef's letter of
30 November 2012, (Exhibit ARE-19 (BCI)), p. 2); see also Taghleef's letter of 30 November 2012,
(Exhibit ARE-19 (BCI)), p. 2.
219 Pakistan's response to Panel question No. 44.
220 Taghleef's questionnaire response, (Exhibit ARE-16 (BCI)), p. 29.
221 United Arab Emirates' first written submission, para. 223.
222 United Arab Emirates' first written submission, para. 223 (referring to and quoting Report on
preliminary determination, (Exhibit ARE-9), para. 15.2.5; and Report on final determination (2013), public
version, (Exhibit ARE-2), para. 15.2.5).
223 United Arab Emirates' first written submission, para. 232.
224 United Arab Emirates' second written submission, para. 96.
225 Report on final determination (2013), (Exhibit PAK-1 (BCI)), pp. 72-73.

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

contrary, we note that the NTC's Report on final det ermination both summarizes and responds to
the cost-related arguments that Taghleef submitted to the NTC regarding the appendix D-3 and
appendix 2 data.226 While this portion of the Report on final determination is not lengthy, we believe
that it is sufficient to demonstrate that the NTC did in fact, contemplate, think over, take note of,
and regard 227 – or, stated differently, "consider" – Taghleef's appendix D-3 material when
determining how to properly allocate Taghleef's costs.
7.171. In sum, given that (a) Taghleef made arguably conflicting statements about the nature of
its data; (b) Taghleef provided arguably incomplete and conflicting information in response to the
NTC's deficiency request that Taghleef separate and "work out" its costs to "make and sell … BOPP
film" in the domestic and export market; (c) absent these clarifications, the NTC did not have the
means to separately evaluate whether the appendix D-3 data were objectively superior to
appendix 2 because the NTC could not weigh this data against the company's audited financial
statements; and (d) the Report on final determination demonstrated that the NTC considered
Taghleef's appendix D-3 arguments, we conclude that the NTC's establishment of the facts
surrounding Taghleef's cost data was proper and that its evaluation of those facts was unbiased and
objective. We therefore find that the United Arab Emirates has not established that the
NTC's decision to use Taghleef's appendix 2 data was inconsistent with Article 2.2.1.1 of the
Anti-Dumping Agreement.
7.4.3.1.2 Article 2.2.2
7.172. The facts and argument s underlying the United Arab Emirates' Article 2.2.2 claim, and
Pakistan's response to this claim, are virtually indistinguishable from the facts and arguments put
forward in the context of the United Arab Emirates' Article 2.2.1.1 claim. Both claims are
data-oriented and take issue with the NTC's decision to use the information that Taghleef provided
to the NTC in appendix 2 rather than appendix D-3, to ascertain whether sales were in the ordinary
course of trade. The only apparent difference between the two is that the
United Arab Emirates' Article 2.2.2 allegation is premised on the suggestion that appendix D-3
reflected "actual data" within the meaning of Article 2.2.2, whereas appendix 2 did not.228
7.173. As noted above, when an investigating authority determines normal value under Article 2.2,
Article 2.2.2 requires the authority to use a party 's "actual" SG&A cost and profit data "pertaining
to production and sales in the ordinary course of trade".
7.174. The United Arab Emirates claims that Pakistan acted inconsistently with this requirement
because, by using what it considers was more general informat ion contained in appendix 2 rather
than more "specific per unit" cost data contained in appendix D-3, the NTC "used cost data for SG&A
that were not based on actual data".229
7.175. Pakistan responds that Taghleef's appendix 2 data were the relevant source of inf ormation
to determine the company's SG&A costs and profits and was, in fact, "actual data" 230 pertaining to
Taghleef's domestic sales "taken from [Taghleef's] audited financial statements whereas the
Appendix D-3 were standard costs".231

226 Report on final determination (2013), (Exhibit PAK-1 (BCI)), pp. 72-73 (reproducing
Taghleef's comments in which the company reiterated its position "that the [NTC]'s methodology for the
determination of dumping in the [preliminary determination] is not in accordance with the information provided
by Taghleef and thus in contravention of the Ordinance", and asserted that the "[NTC] has chosen to ignore
what Taghleef has repeatedly stated in its response to the Exporter's Questionnaire, deficiency letters, detailed
letters and submissions etc., that the information representing cost to make and sell for domestic sales is what
was provided in [appendix] D-3 rather than Appendix 2"). See also fn 241 below.
227 See para. 7.140 above (reviewing the meaning of the word "consider").
228 United Arab Emirates' first written submission, paras. 207 and 224 (asserting that the cost data used
by the NTC was not "actual data" and that the NTC rejected Taghleef's "actual data on costs"); second written
submission, para. 93 (asserting that the NTC used "cost data for SG&A that were not based on actual data
pertaining to the production and sale of the like product in the home market"); responses to Panel question
Pakistan's response to Panel question No. 87, p. 3.
229 United Arab Emirates' second written submission, para. 93.
230 Pakistan's first written submission, para. 3.224.
231 Pakistan's second written submission, para. 2.75.

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7.176. The Panel notes that in support of its Article 2.2.2 claim, the United Arab Emirates has not
pointed to any additional evidence not described above that would lead us to conclude that the
information that Taghleef provided to the NTC when it replied to section F of the exporter
questionnaire was not "actual data", or that Taghleef's appendix D-3 information better reflected the
company's "actual" SG&A costs and profits. We again observe that ( a) the instructions that were
provided in the exporter questionnaire that the NTC issued to Taghleef requested the company to
base the "per-unit COP" amounts that it reported in appendix 2 on the "actual costs" that Taghleef
incurred "for each type of [investigated product]"; (b) Taghleef asserted that its appendix 2 data
mirrored the company 's audited financial statements ; and ( c) the NTC was unable to evaluate
Taghleef's datasets against the company's audited financial statements.232
7.177. Based on this, and given the conflicting statements that Taghleef made with respect to its
data that we describe above, we conclude that the United Arab Emirates has not established that
the NTC's decision to use Taghleef's appendix 2 information to determine the company's SG&A costs
and profits was inconsistent with Pakistan's obligations under Article 2.2.2 of the
Anti-Dumping Agreement.
7.4.3.1.3 The NTC's explanation in the Report on final determination
7.178. Together with the arguments noted above, t he United Arab Emirates argues that Pakistan
acted inconsistently with its obligations under Articles 2.2.1.1 and 2.2.2 of the
Anti-dumping Agreement because the NTC failed to adequately explain its decision not to use
Taghleef's appendix D-3 information.
7.179. We understand that the United Arab Emirates' arguments that the NTC failed to adequately
explain its decision centre on Articles 2.2.1.1 and 2.2.2233, in that they challenge the NTC's alleged
failure to explain why it did not use "the most relevant cost data"234 or why Taghleef's "actual data"
on sales ( i.e. the appendix D-3 data) could not be used in the NTC's dumping analysis. The
United Arab Emirates supports this allegation by observing that the panel in China – Broiler Products
determined that an authority "must set forth its reasons" for declining to use information on the
basis that it does not have a genuine relationship with the production and sale of the specific product
under consideration.235
7.180. The United Arab Emirates also asserts that the NTC "made no finding, or provided other
explanation, that would indicate that" the fact that the appendix 2 data reflected Taghleef's financial
accounts "informed the way in which" the NTC elected to establish normal value.236
7.181. Pakistan responds that the United Arab Emirates "fails to mention, let alone properly address
or engage with, the NTC 's explanation of why it rejected" Taghleef 's appendix D-3 data. 237
Specifically, Pakistan notes that the Report on final determination stated that:
The cost of production stated at [appendix] D-3 has been calculated by allocating the
fixed costs to export markets other than Pakistan. Similarly fixed costs has not been
allocated to cost of production for domestic sales. This method of cost allocation doe s
not present true and fair picture of cost of production. Hence the NTC calculated cost of
production of Taghleef Oman on the basis of information provided by it in appendix 2.238
7.182. As we consider this particular set of arguments, we note that the United Arab Emirates does
not appear to have completely captured the scope of the panel 's reasoning in the China – Broiler

232 We also note that, despite our questions, the United Arab Emirates has not pointed us to the profit
data that it alleges the NTC has disregarded. (United Arab Emirates' response to Panel question No. 49).
233 United Arab Emirates' first written submission, paras. 214-215 and 217-222 (referring to
Article 2.2.1.1 and Article 2.2.2 and reviewing, in light of the NTC's conduct, the requirement that an
investigating authority provide a reasoned and adequate explanation for its actions).
234 United Arab Emirates' first written submission, para. 215.
235 United Arab Emirates' first written submission, paras. 216-217.
236 United Arab Emirates' second written submission, para. 105.
237 Pakistan's first written submission, para. 3.237.
238 Pakistan's first written submission, para. 3.238 (quoting Report on final determination (2013),
(Exhibit PAK-1 (BCI)), pp. 72-73). See also fn 178 above.

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Products proceeding. For ease of reference, the complete statement that the United Arab Emirates
references in China – Broiler Products reads as follows:
In sum, the Panel is of the view that although Article 2.2.1.1 sets up a presumption that
the books and records of the respondent shall normally be used to calculate the cost of
production for constructing normal value, the inves tigating authority retains the right
to decline to use such books if it determines that they are either (i) inconsistent with
GAAP or, (ii) do not reasonably reflect the costs associated with the production and sale
of the product under consideration. Howe ver, when making such a determination to
derogate from the norm, the investigating authority must set forth its reasons for doing
so.239
7.183. A close reading of this paragraph makes clear that the Broiler Products panel stated that an
authority must "set forth its reasons" in the event that it "derogates from the norm" by declining to
use a respondent's books and records to determine normal value. That is not the circumstance here.
In this instance, the NTC did use Taghleef's records to determine normal value, just not the records
that Taghleef and the United Arab Emirates believe the NTC should have used.240
7.184. Recognizing this, the question that would seem to be properly before the Panel is not whether
the NTC acted inconsistently with its Article 2 obligations because it failed to explain why it did not
use Taghleef's records at all. The question is, instead, whether the NTC acted inconsistently with
Pakistan's obligations by not explaining why it used some of Taghleef's records but not others.
7.185. In th is instance, we are of the view that the NTC did explain why it elected to use
Taghleef's appendix 2 data rather than its appendix D-3 data.241 In particular, we observe that the
Report on final determination stated that the NTC took the view that Taghleef's appendix D-3 data
allocated certain "fixed costs to export markets other than Pakistan". The Report on f inal
determination also stated that "[s]imilarly fixed cost has not been allocated to cost of production for
domestic sales".242
7.186. While this explanation is brief, it does explain "why" the NTC elected to use
Taghleef's appendix 2 data instead of its appendix D-3 data. Based on this, we find that the
United Arab Emirates has not established that Pakistan acted inconsistently with its Articles 2.2.1.1
and 2.2.2 obligations to adequately explain its decision not to use Taghleef 's appendix D-3
information.
7.187. The fact that the NTC did not explicitly state that it "preferred the [a]ppendix 2 data because
it 'mirrored the compan y's financial accounts'" 243 does not alter this analysis. While investigating
authorities must of course provide a reasoned and adequate explanation for their decisions,
authorities need not explicitly address each and every argument that is presented to them to fulfil
this requirement, as long as the rationale for a particular decision can be inferred from the record of
the proceeding.244 In this case, as also noted above, the NTC twice advised Taghleef that it had "not
provided [a] copy of [its] audited accounts" and that this information was "required for cross
checking the cost of production [of the] investigated product … while determining [the] ordinary
course of trade for domestic sales".245 When we consider this exchange in concert with the arguably
conflicting and incomplete information and statements described above that Taghleef provided to
the NTC, and in concert with the record of this proceeding, we believe it reasonable to infer that,
when it was determining which dataset better reflected Taghleef's costs, the NTC considered the fact

239 Panel Report, China – Broiler Products, para. 7.164.
240 See e.g. Pakistan's first written submission, para. 3.137 (stating that "the UAE does not deny that
the NTC used Taghleef's own COP figures … . Rather, the UAE argues that the NTC should have used another
set of figures from Taghleef's Questionnaire response" (emphasis original)).
241 We note that in response to our question asking the United Arab Emirates to explain the manner in
which Taghleef allocated different cost items across different markets, the United Arab Emirates asserted that
those costs were not allocated to any specific market. This explanation was not provided to the NTC.
(United Arab Emirates' response to Panel question No. 48).
242 Report on final determination (2013), public version, (Exhibit ARE-2), annexure-IV, pp. 72-73.
243 United Arab Emirates' second written submission, para. 105.
244 See e.g. Appellate Body Report, US – Countervailing Duty Investigation on DRAMS, paras. 164
and 186; and Panel Report, EU – Fatty Alcohols (Indonesia), para. 7.8.
245 Report on final determination (2013), (Exhibit PAK-1 (BCI)), para. 15.2.5.

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that Taghleef stated that its appendix 2 data mirrored the company's financials to be a relevant
factor in its analysis.
7.4.3.2 Consequential claims under Articles 2.2 and 2.2.1
7.188. Lastly, the United Arab Emirates claims that Pakistan acted inconsistently with Articles 2.2
and 2.2.1 on the grounds that, if the NTC had used Taghleef's appendix D-3 data, Taghleef's overall
costs would have been lower and that this, in turn, would have led the NTC to determine that more
of the company's domestic sales were made in the ordinary course of trade.246
7.189. Pakistan contests the premise of these consequential claims, and asserts that the NTC did
not err in using Taghleef's appendix 2 cost data.
7.190. The United Arab Emirates' claims under Articles 2.2 and 2.2.1 are based on the premise that
the NTC acted inconsistently with Articles 2.2.1.1 and 2.2.2 in electing to rely on the appendix 2
data instead of the appendix D-3 dat a. Because we find that the United Arab Emirates has not
established that the NTC 's decision to use Taghleef 's appendix 2 data was inconsistent with
Articles 2.2.1.1 and 2.2.2, we find that the United Arab Emirates has not established that, as a
consequence, the NTC also acted inconsistently with Articles 2.2 and 2.2.1.
7.4.3.3 Conclusion under Articles 2.2, 2.2.1, 2.2.1.1, and 2.2.2
7.191. We conclude that the United Arab Emirates has not established that the NTC 's decision to
use Taghleef's appendix 2 data was inconsistent with Pakistan's obligations under Articles 2.2, 2.2.1,
2.2.1.1, and 2.2.2. We also find that the United Arab Emirates has not established that the
explanation that the NTC provided when taking this action was inconsistent with
Pakistan's obligations under these articles.
7.5 Level of trade adjustment: Article 2.4 of the Anti-Dumping Agreement
7.192. Taghleef requested an adjustment for differences in level of trade on the basis that in
Pakistan it sold mainly to distributors, whereas on the domestic market it sold mainly to converters.
According to Taghleef, its prices to distributors were lower than its prices to converters, because
Taghleef was giving distributors discounts to compensate them for their distribution costs. 247 After
a number of exchanges with Taghleef, the NTC rejected Taghleef's request as unsubstantiated.
7.193. The United Arab Emirates argues that Pakistan acted inconsistently with Article 2.4 of the
Anti-Dumping Agreement because (a) Taghleef substantiated its request with evidence and
arguments in "no less than five submissions", but the NTC rejected the request without a reasoned
and adequate explanation248; and (b) the NTC did not indicate what information reasonably available
to Taghleef was required to substantiate a request for a level of trade adjustment249, and the NTC
imposed an unreasonable burden of proof on Taghleef.250
7.194. Pakistan responds that the NTC repeatedly instructed Taghleef on what information it
required, but Taghleef either ignored the NTC's instructions, or was unable to substantiate its
assertions.251

246 See e.g. United Arab Emirates' first written submission, para. 227; second written submission,
paras. 92-93 and 97-98.
247 United Arab Emirates' first written submission, paras. 238-239, 241, and 243. See also
section 7.5.2.1.2 below.
248 United Arab Emirates' first written submission, paras. 240, 248-249, and 253-255; opening
statement at the first meeting of the Panel, paras. 89 and 92; second written submission, paras. 120, 123,
125, and 131; written opening statement, paras. 54 and 57; and response to Pakistan's written opening
statement, paras. 29-30.
249 United Arab Emirates' first written submission, paras. 248 and 250; second written submission,
paras. 120 and 131. See also United Arab Emirates' first written submission, para. 257; written opening
statement, para. 54; response to Pakistan's written opening statement, para. 27; and comments on
Pakistan's response to Panel question No. 88, p. 7.
250 United Arab Emirates' first written submission, paras. 251 and 257; second written submission,
251 Pakistan's first written submission, e.g. paras. 3.245, 3.324, and 3.329.

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

7.195. In this section, we first recall the applicable requirements of Article 2.4 of the
Anti-Dumping Agreement (section 7.5.1). We then apply those requirements to the facts of this case
(section 7.5.2) and find that the United Arab Emirates has not established that Pakistan acted
inconsistently with Article 2.4 (section 7.5.3).
7.5.1 The applicable requirements of Article 2.4
7.196. Article 2.4 provides, in relevant part:
A fair comparison shall be made between the export price and the normal value. This
comparison shall be made at the same level of trade, normally at the ex -factory level,
and in respect of sales made at as nearly as possible the same time. Due allowance
shall be made in each case, on its merits, for differences which affect price
comparability, including differences in … levels of trade … and any other differences
which are also demonstrated to affect price comparability. … The authorities shall
indicate to the parties in question what information is necessary to ensure a fair
comparison and shall not impose an unreasonable burden of proof on those parties.252
7.197. Article 2.4 requires that investigating authorities make a fair comparison between the export
price and the normal value, and sets forth certain requirements that must be complied with in order
to ensure that the comparison is fair.
7.198. In particular, Article 2.4 requires that investigating authorities make "[d]ue allowance … in
each case, on its merits, f or differences which affect price comparability ".253 Article 2.4 is thus
explicit that the relevant differences are those "which affect price comparability", and we agree with
the Appellate Body that "this refers to differences in characteristics of the compared transactions
that have an impact, or are likely to have an impact, on the prices of the transactions".254
7.199. Article 2.4 provides an illustrative list of differences that may affect price comparability,
which includes "differences in … levels of trade". However, the existence of one of the differences
listed in Article 2.4 does not automatically mean that price comparability has been affected, as "there
may be situations when those differences do not affect price comparability".255
7.200. The last sentence of Article 2.4 requires that investigating authorities "indicate to the parties
in question what information is necessary to ensure a fair comparison". Investigating authorities
must thus indicate what information they will need in order to ensure a fair comparison "so that the
interested parties will be in a position to make a request for adjustments". 256 In addition, the last
sentence of Article 2.4 requires that investigating authorities "not impose an unreasonable burden
of proof on those parties".257
7.201. Although investigating authorities are under the obligation to ensure that the comparison is
fair, we agree with the Appellate Body and panels in previous disputes that "exporters bear the
burden of substantiating, 'as constructively as possible', their requests for adjustments" under
Article 2.4.258 Therefore, if exporters request an adjustment but fail to demonstrate the existence of

252 Fn omitted.
253 Emphasis added.
254 Appellate Body Report, EU – Fatty Alcohols (Indonesia), para. 5.22 (referring to Appellate Body
255 Appellate Body Report, EU – Fatty Alcohols (Indonesia), para. 5.23. We thus also agree with the
panel in US – Softwood Lumber V that "Article 2.4 does not require that an adjustment be made automatically
in all cases where a difference is found to exist, but only where – based on the merits of the case – that
difference is demonstrated to affect price comparability". (Panel Report, US – Softwood Lumber V, para. 7.165
(emphasis original)).
256 Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China), para. 5.165 (quoting
Appellate Body Report, EC – Fasteners (China), para. 489).
257 We note the panel's observation in US – Softwood Lumber V "that the requirement in the last
sentence of Article 2.4 that the authorities 'shall not impose an unreasonable burden of proof' on interested
parties does not remove the burden from interested parties to substantiate their assertions concerning claimed
adjustments". (Ibid. para. 7.167). See also Panel Report, EC – Tube or Pipe Fittings, para. 7.157.
258 Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China), para. 5.204 (quoting
Appellate Body Report, EC – Fasteners (China), para. 488). See also Panel Reports, EC – Tube or Pipe Fittings,

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

a difference that affects price comparability, the investigating authorities are entitled to reject the
requested adjustment.259 At the same time, the investigating authorities "must take steps to achieve
clarity as to the adjustment claimed and then determine whether and to what extent that adjustment
is merited".260
7.5.2 Whether Pakistan acted inconsistently with Article 2.4
7.202. In light of the parties' arguments, we consider that in order to resolve the
United Arab Emirates' claim under Article 2.4, we need to examine: (a) the NTC's assessment of the
evidence, namely whether the NTC rejected a request that was duly su bstantiated, without a
reasoned and adequate explanation for doing so (section 7.5.2.1); and (b) the NTC's requests for
evidence, namely whether the NTC failed to indicate what information was necessary to substantiate
a request for a level of trade adjustment and imposed an unreasonable burden of proof on Taghleef
(section 7.5.2.2).
7.5.2.1 The NTC's assessment of the evidence
7.203. The United Arab Emirates argues that "[i]n no less than five submissions, Taghleef provided
arguments and evidence to support the need for an adjustment related to the differences in the level
of trade, which were demonstrated to affect price comparability" 261, "but the NTC ignored this
evidence and rejected the request for an adjustment". 262 The United Arab Emirates submits that
"the NTC effectively found that absent evidence of additional costs on the side of the distributors in
Pakistan no adjustment was warranted" .263 The United Arab Emirates contends that the NTC
"disregarded the fact that evidence was presented by Taghleef that distributors necessarily incurred
certain additional costs for which compensation was required in the form of price reductions".264 The
United Arab Emirates argues that the NTC failed to provide a reasoned and adequate explanation of
why, despite the evidence presented by Taghleef, it denied the adjustment.265
7.204. Pakistan responds that "Taghleef failed to provide any meaningful evidence to substantiate
its assertions"266, and that it "either ignored the multiple information requests of the NTC or it was
compelled to acknowledge that it was unable to provide the requisite inf ormation".267 In particular,
Pakistan argues that Taghleef did not provide "information on the precise amounts that formed the
basis for the discounts granted to the Pakistani distributors". 268 According to Pakistan, "the NTC
provided a reasoned and adequate explanation why it had no choice but to reject" the request for a
level of trade adjustment.269
7.205. To make our assessment, we turn first to the explanation provided by the NTC in its Report
on final determination, and then to the evidence that, according to t he United Arab Emirates,
supported Taghleef's request but was "ignored" by the NTC.

259 Appellate Body Reports, EC – Fasteners (China) (Article 21.5 – China), para. 5.204; EC – Fasteners
260 Appellate Body Reports, EC – Fasteners (China) (Article 21.5 – China), para. 5.204; EC – Fasteners
(China), para. 488; and Panel Report, EC – Tube or Pipe Fittings, para. 7.158.
261 United Arab Emirates' first written submission, para. 240. The five submissions referred to by the
United Arab Emirates in paragraphs 240-246 of its first written submission are: Taghleef's questionnaire
response, (Exhibit ARE-16 (BCI)); Taghleef's response to second deficiency letter, (Exhibits ARE-20
(redacted)/ARE-20b (BCI)); Taghleef's response to third deficiency letter, (Exhibits ARE-18
(redacted)/ARE-18b (BCI)/ARE-18c (BCI) (revised)); Taghleef's letter of 31 May 2011, (Exhibit ARE-22 (BCI));
and Taghleef's letter of 30 November 2012, (Exhibit ARE-19 (BCI)).
262 United Arab Emirates' opening statement at the first meeting of the Panel, para. 89; see also
second written submission, para. 123.
263 United Arab Emirates' first written submission, para. 248; second written submission, para. 131. See
also United Arab Emirates' opening statement at the first meeting of the Panel, para. 91.
264 United Arab Emirates' first written submission, para. 248; second written submission, para. 131.
265 United Arab Emirates' first written submission, paras. 253 and 255; second written submission,
para. 125. See also United Arab Emirates' opening statement at the first meeting of the Panel, para. 92;
written opening statement, para. 57; and response to Pakistan's written opening statement, para. 29.
266 Pakistan's first written submission, para. 3.324.
267 Pakistan's first written submission, para. 3.329.
268 Pakistan's first written submission, para. 3.308.
269 Pakistan's first written submission, para. 3.340. See also ibid. para. 3.6; and second written
submission, para. 2.119.

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

7.5.2.1.1 The NTC's explanation in the Report on final determination
7.206. In its Report on final determination, the NTC provided the following explanation for denying
Taghleef's request for a level of trade adjustment:
[a] The [NTC] has rejected the level of trade adjustment on the ground that same level
of trade adjustment has not been offered for domestic sales. The level of trade
adjustment is given in view of saving in the cost of transactions. The [NTC] asked as to
what price differential is available in domestic market, which justify the level of trade
adjustment in export price. In reply it was stated that there is no differential in level of
trade in the domestic market. [ b] Howeve r, different price is given to different
categories of importers in view of their additional cost hence this adjustment is claimed.
But no evidence of additional cost of importer has been given by the exporter. The
adjustment of level of trade is given for reasons of cost saving of the exporters and not
on account of additional cost of importers. The [NTC] has disregarded the adjustment
on the grounds, if it is accepted that adjustment is given on the account of additional
cost, it should be supported by es sential data plus it cannot be different for different
exporters as shown below.
Table – III
Different Level of Trade claimed
Distributor Name Taghleef SAO[C] Taghleef LLC
 Status Per Unit Adjustment
Claimed [[***]]
Status Per Unit Adjustment
Claimed [[***]]
Multi Traders Distributor [[***]] Distributor [[***]]
Adnan Brothers Distributor [[***]] Distributor [[***]]
Glamour
International
Distributor … Distributor [[***]]
Trade Line
International
Distributor [[***]] … …
Sony Trading CO Distributor [[***]] … …
It is also added that the costs of distributors have not been established through
evidence.270
7.207. There are thus two parts to Taghleef's explanation, which for ease of reference we have
identified by adding "a" and "b" in the quotation above: (a) Taghleef could not demonstrate the need
for an adjustment in the manner usually preferred by the NTC, namely based on differences in level
of trade on the domestic market; and (b) Taghleef sought an adjustment on a different basis, namely
additional costs incurred by distributors, but the NTC found that Taghleef had not substantiated that
request with evidence of the additional costs.
7.208. Thus, in the first part of its explanation the NTC noted that Taghleef had not based its request
for a level of trade adjustment on differences in prices between different levels of trade on the
domestic market, which the exporter questionnaire described as the NTC's preferred method for
demonstrating the existence of a difference in levels of trade affecting price comparability. 271
Ultimately, however, this was not material because the NTC entertained Taghleef's proposal of an
alternative basis for substantiating the need for an adjustment, even though the NTC then concluded
that Taghleef had not provided sufficient evidence to support its request.272
7.209. In the second part of its explanation, the NTC addressed Taghleef's request as formulated
by Taghleef. The NTC noted that Taghleef's position was that its prices to "different categories of
importers" were different because of the additi onal costs those importers (i.e. distributors 273)
incurred, and that Taghleef was requesting an adjustment on the basis of these additional costs.
The NTC then explained that, however, "no evidence of additional cost of importer has been given

270 Report on final determination (2013), (Exhibit PAK-1 (BCI)), paras. 29.2.3-29.2.4
(emphasis original). See also Report on final determination (2013), public version, (Exhibit ARE-2),
paras. 29.2.3-29.2.4.
271 See para. 7.240 below.
272 Report on final determination (2013), public version, (Exhibit ARE-2), para. 29.2.3.
273 See e.g. Taghleef's questionnaire response, (Exhibit ARE-16 (BCI)), section C-1.1.

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

by the export er"; "if it is accepted that adjustment is given on the account of additional cost, it
should be supported by essential data"; and "the costs of distributors have not been established
through evidence".274
7.210. We understand these statements to mean that the NT C denied the adjustment because,
although Taghleef was requesting an adjustment for differences in level of trade on the basis of
additional costs allegedly incurred by distributors in Pakistan, Taghleef had not provided the
evidence necessary to substantiate its request, such as evidence of the alleged additional costs on
which the request for an adjustment was based.
7.211. The United Arab Emirates however argues that Taghleef did provide the necessary evidence
but the NTC ignored it, effectively finding "that absent evidence of additional costs on the side of
the distributors in Pakistan no adjustment was warranted", and failing to provide a reasoned and
adequate explanation for rejecting the request for an adjustment in light of the evidence before it.275
We therefore review the arguments and evidence of Taghleef that the United Arab Emirates refers
to, to test whether, in light of that evidence and of the standard in Article 2.4, the NTC's explanations
and conclusions are reasoned and adequate. We review Taghle ef's arguments and evidence in the
following order: Taghleef's questionnaire response (section 7.5.2.1.2); Taghleef's subsequent
submissions regarding the additional costs of distributors (section 7.5.2.1.3); and
Taghleef's agreement with one distributor (section 7.5.2.1.4).
7.5.2.1.2 Taghleef's response to the exporter questionnaire
7.212. In requesting an adjustment for level of trade in its response to the exporter questionnaire,
Taghleef stated as follows:
[[***]].276
7.213. As a point of clarification, we note that Taghleef's questionnaire response and subsequent
submissions contained certain contradictory statements on the categories of customers to which it
sold in its domestic market. 277 However, Taghleef clarified in response t o a deficiency letter that
during the POI, all its domestic market sales were to converters and traders, and none to distributors
and end-users.278
7.214. Thus, in its questionnaire response, Taghleef was arguing that its price to distributors in
Pakistan was lower than its price to converters and traders in the domestic market to compensate

274 Report on final determination (2013), public version, (Exhibit ARE-2), paras. 29.2.3-29.2.4. The NTC
also stated "plus [the adjustment] cannot be different for different exporters, as shown below", and the
United Arab Emirates takes issue with this statement. We note that table-III, which follows immediately
"below", shows that two different exporters, Taghleef LLC, Dubai and Taghleef SAOC, Oman indeed claimed
adjustments in significantly different amounts for the same Pakistani distributors. Pakistan explains that the
NTC made this observation because the fact that the two exporters requested level of trade adjustments in
different amount for sales to the same distributor in Pakistan is inconsistent with Taghleef's narrative that the
discounts were driven by the distributors' costs. The United Arab Emirates argues that this explanation by
Pakistan constitutes an ex post justification. However, as this relates to a reason that the NTC made explicit in
its explanation, we reject the United Arab Emirates' argument that this is an ex post justification. The
United Arab Emirates has not shown to us that this reasoning was not proper. (Report on final
determination (2013), public version, (Exhibit ARE-2), para. 29.2.3 and table-III; United Arab Emirates' written
opening statement, paras. 56-57 and fn 68; response to Pakistan's written opening statement, para. 28;
Pakistan's first written submission, paras. 3.313 and 3.318; second written submission, paras. 2.218
and 2.137; written opening statement, paras. 60-62; and response to United Arab Emirates' written opening
statement, para. 30).
275 See para. 7.203 above.
276 Taghleef's questionnaire response, (Exhibit ARE-16 (BCI)), sections C-1.1 and D-2.4
(emphasis added). See also Taghleef's response to second deficiency letter, redacted version,
(Exhibit ARE-20), paras. A2:1 and A6; Taghleef's response to third deficiency letter, redacted version,
(Exhibit ARE-18), para. A1; and Taghleef's letter of 30 November 2012, (Exhibit ARE-19 (BCI)), p. 3.
277 For instance, at section C-1.1 of its questionnaire response, Taghleef stated that its domestic market
sales had been made mostly to end-users (Taghleef's questionnaire response, (Exhibit ARE-16 (BCI))),
whereas appendix D-3 to the questionnaire response indicated that, during the POI, Taghleef's domestic sales
had been made to converters and traders. (Appendix D-3 to Taghleef's response to exporter questionnaire,
(Exhibit PAK-14 (BCI))).
278 Taghleef's response to second deficiency letter, redacted version, (Exhibit ARE-20), para. A2:3.

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

for "distribution costs and margin" of the distributors . On that basis, in appendix C-3 of the
questionnaire, Taghleef included an upward adjustment to the price of its export sales to distributors
in Pakistan 279, to reflect the additional costs and margin of the distributors as compared with
converters and traders.
7.215. The United Arab Emirates refers to the questionnaire response as one of the five submissions
in which Taghleef allegedly "provided arguments and evidence to support the need for an adjustment
related to the differences in the level of trade". 280 The questionnaire response, while including
statements to the effect that sales on the domestic market and sales to Pakistan were at different
levels of trade, and stating the amount of the adjustment sought by Taghleef, did not contain
evidence of the difference in levels of trade or of the basis for the adjustment sought. The NTC
therefore sought evidence and clarifications from Taghleef, to which we now turn.
7.5.2.1.3 Taghleef's submissions regarding the additional costs of distributors
7.216. Following receipt of the questionnaire response, in a deficiency letter dated 17 January 2011
the NTC requested Taghleef to "provide documentary evidence of expenses incurred by distributors
against the allowance provided to them under allowance for level of trade". 281 The NTC also asked
Taghleef whether it had agreements with its distributors "that it will compensate [them] in their
distribution cost and profit margin", and if so, to provide a copy "in respect of each distributor".282
7.217. Taghleef responded that it was "not possible for the Company to provide the documentary
evidence of the expenses incurred by other companies" and that "distributors in Paki stan are
independent companies and they do not share their costs and profits margins with the Company".283
Taghleef added that it had agreements to compensate distributors for their additional costs and
margin and submitted a copy of an agreement with one distributor284, which we discuss separately
below.
7.218. In a further deficiency letter, dated 22 February 2011, the NTC requested that Taghleef
"share the basis of estimation of such costs incurred by distributors and the cost incurred by each
distributor".285
7.219. Taghleef answered that "[t]he adjustment value has been arrived [at] by subtracting the
average selling price to distributors from the average selling price to converters". 286 In the same
letter, Taghleef also listed certain "differentiating cost elements" incurred by distributors in Pakistan,
although without stating the value of those costs, and without providing any explanation.287

279 Appendix C-3 to Taghleef's response to exporter questionnaire,
(Exhibits ARE-36 (BCI)/PAK-33 (BCI)).
280 United Arab Emirates' first written submission, paras. 240-241.
281 Second deficiency letter, (Exhibit PAK-18 (BCI) (revised)), para. 7.
282 Second deficiency letter, (Exhibit PAK-18 (BCI)), para. 3.
283 Taghleef's response to second deficiency letter, redacted version, (Exhibit ARE-20), para. A6.
Taghleef also explained that the "'allowance for difference in level of trade' is solely based on business
convention, general practice of trade and the Company's experience with the distribution set up in the
domestic and external markets". (Ibid.)
284 Purchase agreement, (Exhibit ARE-34 (BCI)); Taghleef's response to second deficiency letter,
(Exhibit ARE-20b (BCI)), para. A2 and annexure 1. In a subsequent deficiency letter, the NTC reiterated its
request for agreements with all distributors to which Taghleef sold the investigated product. (Third deficiency
letter, (Exhibit ARE-17), para. 2(ii)). Taghleef responded that it only had one agreement, which it had already
submitted, and that it was giving the price discounts to all distributors irrespective of whether an agreement
had been signed or not. (Taghleef's response to third deficiency letter, redacted version, (Exhibit ARE-18),
para. A1(ii)).
285 Third deficiency letter, (Exhibit ARE-17), para. 2(iii).
286 Taghleef's response to third deficiency letter, redacted version, (Exhibit ARE-18), para. A1(iii).
287 Those costs, as they appear in Taghleef's response letter are: [[***]]. (Taghleef's response to
third deficiency letter, (Exhibit ARE-18c (BCI)), para. A1(iii)).

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

7.220. In a subsequent letter to the NTC dated 31 May 2011, Taghleef provided the following
table setting out a breakdown of the distributors' costs and profit margin underlying the price
reductions288:
[[***]]289

7.221. In arguing that there was evidence before the NTC to support Taghleef's request for a level
of trade adjustment, the United Arab Emirates repeatedly cites this breakdown of distributors' costs
provided by Taghleef.290 In the United Arab Emirates' view, this was a substantiated breakdown of
the distributors' costs for which discounts were given.291
7.222. Pakistan responds that "this piece of evidence is of essentially no evidentiary value" 292, as
the cost figures provided by Taghleef appear to be an estimate only, and Taghleef did not explain
how it arrived at those figures.293 According to the United Arab Emirates, Pakistan's arguments that
the breakdown of the distributors' costs does not constitute credible evidence are "inadmissible ex
post justifications", because they did not feature in the explanation given by the NTC in its report.294
However, the NTC stated in its report, inter alia, that "no evidence of additional cost of importer has
been given by the exporter" 295, that "the costs of distributors have not been established through
evidence"296, and that "if it is accepted that adjustment is given on the account of additional cost, it
should be supported by essential data".297 We therefore do not consider that Pakistan is providing
"inadmissible ex post justifications".
7.223. We also note that Taghleef did not accompany the breakdown of costs with an explanation
of how it arrived at those figures, or with any supporting evidence. In response to our questioning,
the United Arab Emirates indicated that the "grand total" of [[***]] presented in the
table approximated the difference between the weighte d average price of sales to distributors on
the one hand, and to converters on the other hand, in Pakistan.298 However, Taghleef did not explain
its "breakdown of costs" to the NTC in this way during the proceedings; in fact, as we will see next,
Taghleef s tated in a subsequent submission that it had "calculated" this "[m]argin … based on
the [[***]]".299
7.224. In its subsequent communication of 30 November 2012, following the NTC's preliminary
determination, Taghleef reiterated its explanation that, in Pakistan, it sold mainly to distributors,
which "incur additional costs … and profit margin", and that "[k]nowing this, Taghleef Dubai sells
the investigated product to distributors at a price that takes into account their additional costs" .300
In other words, Taghleef reiterated the assertions contained in its original questionnaire response,
of which the NTC had subsequently sought clarifications and evidence.

288 United Arab Emirates' first written submission, paras. 245 and 250; second written submission,
para. 120.
289 Taghleef's letter of 31 May 2011, (Exhibit ARE-22 (BCI)), annex-I. (emphasis original)
290 United Arab Emirates' first written submission, paras. 245 and 250; second written submission,
paras. 120 and 126; opening statement at the first meeting of the Panel, para. 90; written opening statement,
para. 54; response to Pakistan written opening statement, para. 27; and comments on Pakistan's response to
Panel question No. 88, p. 7.
291 United Arab Emirates' response to Pakistan's written opening statement, para. 27.
292 Pakistan's first written submission, paras. 3.320-3.321. See also Pakistan's second written
submission, para. 2.137.
293 Pakistan's first written submission, paras. 3.310 and 3.320. Pakistan also points out that Taghleef did
not attempt to tie the figures it submitted, including the total of [[***]], to the discounts allegedly granted to
distributors or to the requested adjustments, as listed in the spreadsheets annexed to Taghleef's questionnaire
response. (Pakistan's first written submission, para. 3.321; see also response to Panel question No. 88, fn 13).
294 United Arab Emirates' written opening statement, para. 57 (referring to Pakistan's second written
submission, para. 2.137).
295 Report on final determination (2013), public version, (Exhibit ARE-2), para. 29.2.3.
296 Report on final determination (2013), public version, (Exhibit ARE-2), para. 29.2.4.
297 Report on final determination (2013), public version, (Exhibit ARE-2), para. 29.2.3.
298 United Arab Emirates' responses to Panel question No. 51, paras. 63-64, and No. 52, para. 67.
299 Taghleef's letter of 30 November 2012, (Exhibit ARE-19 (BCI)), p. 3.
300 Taghleef's letter of 30 November 2012, (Exhibit ARE-19 (BCI)), p. 3. This is the fifth of the
"five submissions" that the United Arab Emirates refers to; see fn 261 above.

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

7.225. As just noted, Taghleef added that it had calculated the "margin" of the additional costs and
profits "based on the [[***]]".301 Again, it provided no supporting evidence.
7.226. Thus, although Taghleef did repeat in a number of submissions that its distributors incurred
additional costs (and added a margin), and that Taghleef charged them lower prices to compensate
for those additional costs and margin, it did not provide evidence of the amount of those additional
costs or of the amount of the consequent price reductions. In ans wer to the NTC's third deficiency
letter, Taghleef provided a breakdown of costs resulting in a [[***]] total, but provided no evidence
of how it had arrived at those figures.
7.227. Taghleef provided one item of documentary evidence that it presented as going to the
existence of the policy of compensating distributors for their additional costs and margin (and not
to the amount of the price reduction), and we turn to that next.
7.5.2.1.4 Taghleef's agreement with a Pakistani distributor
7.228. In its deficiency letter of 17 January 2011, the NTC had also asked Taghleef to explain its
stated policy of compensating distributors for their distribution costs and margin and whether it had
agreements with its distributors to this effect; in the event Taghleef had such agreements, the NTC
requested a copy of those agreements.302
7.229. Taghleef submitted a copy of one agreement with an unrelated distributor in Pakistan,
[[***]].303 The United Arab Emirates argues that this agreement "demonstrated … the arrangement
for compensating the distributor for incurring additional costs when subsequently selling the BOPP
film to end-users in Pakistan", and that this "is sufficient to establish that there was a price difference
owing to the specifi c level of trade" .304 The United Arab Emirates submits that the agreement in
question "expressly provided for price 'concessions' to account for the distributor's" costs.305
7.230. Pakistan responds that the agreement with Taghleef's distributor [[***]] does not
substantiate Taghleef's assertion that it had a policy 306 of giving price discounts to distributors as
compensation for their distributions costs 307, because that agreement concern ed only one
distributor308; the discounts it contemplated appeared to be volume-driven rather than based on the
level of trade 309; and the agreement provide d that granting the discounts was entirely within
Taghleef's discretion.310 Pakistan also notes that the text of the agreement indicates that the precise
amount of the discount would be determined in light of information pertaining to individual
transactions "at that point in time", and alleges that this implie d that the distributor would
periodically provide Taghleef with information on its costs. Pakistan points out that Taghleef st ated

301 Taghleef's letter of 30 November 2012, (Exhibit ARE-19 (BCI)), p. 3.
302 Second deficiency letter, (Exhibit PAK-18 (BCI)), para. 3.
303 Purchase agreement, (Exhibit ARE-34 (BCI)); Taghleef's response to second deficiency letter,
(Exhibit ARE-20b (BCI)), para. A2 and annexure 1.
304 United Arab Emirates' first written submission, para. 251; see also second written submission,
para. 121.
305 United Arab Emirates' first written submission, para. 250; second written submission, para. 120. See
also United Arab Emirates' second written submission, para. 128.
306 We note that Taghleef argued before the NTC that it was offering distributors a price that took it into
account the costs they incurred for the sale of the product "as a matter of policy". (Taghleef's response to
third deficiency letter, redacted version, (Exhibit ARE-18), para. A1 (emphasis added)).
307 Pakistan's response to Panel question No. 88, para. 12. See also ibid. paras. 16-17; first written
submission, paras. 3.299-3.3302; second written submission, para. 2.138; and response to
United Arab Emirates' written opening statement, para. 32.
308 Pakistan's second written submission, para. 2.138; response to United Arab Emirates' written
opening statement, para. 32; and response to Panel question No. 88, paras. 12 and 17. See also
Pakistan's first written submission, paras. 3.295-3.298 and 3.328.
309 Pakistan's second written submission, para. 2.138; response to Panel question No. 88, paras. 12
and 17. See also Pakistan's first written submission, paras. 3.299 and 3.301. Pakistan points out that "quantity
discounts are a different type of adjustment than [level of trade] adjustments". (Pakistan's first written
submission, para. 3.301).
310 Pakistan submits that according to the agreement, the granting of the discount was entirely within
Taghleef's discretion, which implies that Taghleef reserved its right to refuse to grant the discount or to vary its
amount. In Pakistan's view, this contradicts the notion that Taghleef had a consistent pricing policy of giving
discounts to compensate distributors for their costs. (Pakistan's first written submission, paras. 3.300
and 3.302; second written submission, para. 2.138; and response to Panel question No. 88, para. 17).

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

before the NTC that it did not have access to such data, and this contradicts the content of the
agreement.311
7.231. The United Arab Emirates submits that Pakistan's arguments concerning
Taghleef's agreement with the Pakistani distributor are ex post justifications, as the reasons provided
by Pakistan for the NTC's dismissal of the agreement do not feature in the NTC's explanation. 312 In
our view, however, these arguments by Pakistan, i.e. that Taghleef's agreement with the Pakistani
distributor does not demonstrate Taghleef's asserted policy, are connected to the NTC's explanation,
in its final determination, that Taghleef's request was not supported by evidence, and specifically by
evidence of the distributors' costs.313 The NTC's correspondence with Taghleef also bears out that,
in asking for Taghleef's agreements with its distributors, the NTC was seeking evidence that Taghleef
consistently granted the alleged compensation for distributors' costs. 314 Therefore, we do not
consider these arguments by Pakistan to be ex post rationalizations.
7.232. We note that the agreement submitted by Taghleef provides for [[***]].315 The agreement
specifies that [[***]].316
7.233. Although the agreement stipulates that the [[***]], it also stipulates that the [[***]].317
7.234. In light of the contents of the agreement, we reject the United Arab Emirates' argument that
the agreement Taghleef submitted to the NTC was "sufficient to establish that there was a price
difference owing to the specific level of trade". 318 We note that the agreement characterizes the
price concessions as based on volume of sales , emphasizes that any price concession is
discretionary, and gives no indication of the magnitude of any such concession.
7.5.2.1.5 Conclusion on the NTC's assessment that the evidence was insufficient
7.235. The record thus shows that Taghleef requested an adjustment for level of trade on the basis
that its distributors in Pakistan incurred "an additional cost … and add a margin" and that
Taghleef's price to them was set to compensate for the additional costs and margin. The NTC, in
various communications, asked Taghleef to provide evidence of its allegations, such as copies of
Taghleef's agreements to that effect with its distributors, if it had such agreements, and evidence of
the amount of the additional costs, either in the form of direct evidence of those costs or in the form
of evidence of the basis for estimating such costs. By way of evidence, Taghleef was only able to
produce an agreement with a distributor that envisaged price concessions linked to the volume of
sales, described the concessions as discretionary, and gave no indication as to the amount of any
such concessions; and a "breakdown of costs" of distributors for which Taghleef gave no supporting
evidence or explanation as to how it had derived it. In its final determination , the NTC set out the
basis on which Taghleef had requested the adjustment and explained that , absent evidence of the
facts on the basis of which the adjustment was sought, it could not grant the adjustment.
7.236. We therefore do not consider that the United Arab Emirates has shown that the NTC erred
when it rejected Taghleef's request for a level of trade adjustment on the basis that Taghleef had
not substantiated its request with evidence, or that the NTC did so without a reasoned and adequate
explanation.

311 Pakistan's response to Panel question No. 88, paras. 14 and 17. See also Pakistan's first written
submission, fn 151 and paras. 3.311-3.312; and second written submission, para. 2.138.
312 United Arab Emirates' written opening statement, para. 57 and fn 58 (referring to
Pakistan's second written submission, para. 2.138); comments on Pakistan's response to Panel question
No. 88, p. 7 (referring to Pakistan's response to Panel question No. 88, para. 17).
313 Report on final determination (2013), (Exhibit PAK-1 (BCI)), paras. 29.2.3-29.2.4. See also Report
on final determination (2013), public version, (Exhibit ARE-2), paras. 29.2.3-29.2.4.
314 Second deficiency letter, (Exhibit PAK-18 (BCI)), para. 3.
315 Purchase agreement, (Exhibit ARE-34 (BCI)).
316 Purchase agreement, (Exhibit ARE-34 (BCI)). (emphasis added)
317 Purchase agreement, (Exhibit ARE-34 (BCI)). (emphasis added)
318 United Arab Emirates' first written submission, para. 251; see also second written submission,
para. 121.

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7.5.2.2 The NTC's requests for evidence
7.237. The United Arab Emirates argues that the NTC acted inconsistently with the last sentence of
Article 2.4 by not indicating what information that was reasonably available to Taghleef was required
in support of the request for the level of trade adjustment 319, and by imposing an unreasonable
burden of proof on Taghleef. 320 The United Arab Emirates submits that if the NTC wanted more
evidence it should have engaged with Taghleef in order to identify reasonably available additional
evidence, but it did not do so.321 The United Arab Emirates contends that by requesting evidence on
the distributors' costs, the NTC imposed an unreasonable burden of p roof on Taghleef, as Taghleef
could not provide documentary evidence of the actual expenses incurred by unrelated companies,
which do not share with Taghleef evidence of their costs and profit margins.322
7.238. Pakistan responds that the NTC provided precise ins tructions in the exporter questionnaire
on what evidence it required and requested further information from Taghleef by means of
two deficiency letters.323
7.239. At the outset, we note that the record does not reflect the United Arab Emirates' allegation
that the NTC demanded evidence of Taghleef's distributors' costs as a necessary condition to grant
the level of trade adjustment.
7.240. The NTC indicated in the exporter questionnaire what an exporter normally needed to
demonstrate in support of a request for a level of trade adjustment, and listed the information it
required from the exporter. Thus, section D-2.4 of the NTC's exporter questionnaire reads, in
relevant part:
An adjustment for differences in levels of trade … can be made where, in relation to the
distribution chain in both markets, it is shown that the export price … is at a different
level of trade from the normal value and the difference has affected price comparability
which is demonstrated by consistent and distinct differences in functions and price s of
the seller for the different level of trade in the domestic market of the exporting country.
However, in circumstances not envisaged in the paragraph above, when an existing
difference in level of trade cannot be quantified because of the absence of the relevant
levels on the domestic market of the exporting country … a special adjustment may be
granted.
If you claim a level of trade adjustment the following information should be provided:
- a detailed description of the functions of each level of trad e both on the domestic
market and Pakistani market.
- a detailed description of the method used to determine the amount of adjustment.
- evidence showing that prices differ consistently for the different levels of trade on the
domestic market.

319 United Arab Emirates' first written submission, para. 250; second written submission, para. 120. See
also United Arab Emirates' first written submission, paras. 248 and 257; second written submission. para. 131;
written opening statement, para. 54; response to Pakistan's written opening statement, para. 27; and
comments on Pakistan's response to Panel question No. 88, p. 7.
320 United Arab Emirates' first written submission, paras. 251 and 257; second written submission,
321 United Arab Emirates' first written submission, paras. 250 and 257; opening statement at the
first meeting of the Panel, para. 93; second written submission, paras. 120 and 127; written opening
statement, para. 54; and response to Pakistan's written opening statement, para. 27.
322 United Arab Emirates' first written submission, para. 251; second written submission, paras. 121
and 126; and written opening statement, para. 55.
323 Pakistan's first written submission, para. 3.339. See also ibid. paras. 3.322-3.329; and
second written submission, para. 2.131.

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- report in the transaction-by-transaction listing (at point D-3 below) the market value
of the difference in level of trade.324
7.241. The NTC's exporter questionnaire thus indicated that, as a rule, the NTC grants adjustments
for differences in level of trade where the investigated exporter demonstrates that those differences
have "affected price comparability which is demonstrated by consistent and distinct differences in
functions and prices of the seller for the different level of trade in the domestic market of the
exporting country", and it further listed the evidence to be provided, including "a detailed description
of the functions of each level of trade" and "a detailed description of the method used to determine
the amount of adjustment". In its questionnaire, the NTC added that where a difference cannot be
demonstrated on that basis because of the absence of the relevant levels on the domestic market
of the exporting country, "a special adjustment could be granted".325
7.242. Taghleef did not seek an adjustment based on differences in level of trade in the domestic
market (the NTC's preferred approach according to the questionnaire), but on an alternative basis.326
That is, in its questionnaire response, Taghleef requested an adjustment for differences in level of
trade on the basis that its sales to Pakistan were mainly to distributors, "distributors incur additional
cost … and add a margin", and Taghleef sells to distributors "at a price to compensate distribution
costs and margin".327 It is after Taghleef formulated its request on this basis that the NTC sought
evidence and clarifications from Taghleef about what Taghleef itself had described as the basis for
its r equest for a level of trade adjustment, i.e. the existence of additional costs incurred by
distributors, and its practice of compensating for such costs through price concessions.
7.243. Specifically, in its deficiency letter of 17 January 2011, the NTC asked Taghleef, inter alia: to
"explain the policy of granting trade concession claimed under level of trade adjustment"328; whether
it had agreements with its distributors that it will compensate them for their distribution costs and
profit margin, and if so to pro vide copies of those agreements 329; and to "provide documentary
evidence of the expenses incurred by distributors against the allowance provided to them under
allowance for level of trade".330
7.244. In its deficiency letter of 22 February 2011, the NTC made further requests for information
related to Taghleef's claim for a level of trade adjustment. Among other requests, the NTC reiterated
its request for copies of agreements with all Pakistan distributors to which Taghleef sold the
investigated product.331 The NTC did not reiterate its request for " documentary evidence" of the
distributors' costs and instead asked Taghleef to "share the basis of estimation of such costs incurred
by distributors and the cost incurred by each distributor".332
7.245. The evidence on the record of the Panel, thus, shows that the NTC indicated from the outset
(i.e. in the exporter questionnaire) what information it required to assess a request for a level of
trade adjustment 333, and that it subsequently took steps to achieve clarity with respect to
Taghleef's request for an adjustment by sending Taghleef the two deficiency letters. The record also
shows that it was Taghleef that indicated that its request for a level of trade adjustment was based
on the additional costs incurred by distributors, for which its prices allegedly compensated. In its
subsequent requests, the NTC was demanding evidence of Taghleef's own assertions.
7.246. Given that Taghleef's request for a level of trade adjustment was premised on the
proposition that distributors incurred additional costs and that Taghleef had a policy of giving price
discounts to distributors as compensation for those costs, we do not consider that the NTC imposed
an unreasonable burden of proof on Taghleef by requiring that it provide evidence of those costs, or

324 NTC's blank exporter questionnaire, (Exhibit PAK-37), section D-2.4; Taghleef's questionnaire
response, (Exhibit ARE-16 (BCI)), section D-2.4.
325 NTC's blank exporter questionnaire, (Exhibit PAK-37), section D-2.4; Taghleef's questionnaire
response, (Exhibit ARE-16 (BCI)), section D-2.4.
326 This is also reflected in the explanation provided by the NTC in its Report on final determination; see
327 See para. 7.212 above.
328 Second deficiency letter, (Exhibit PAK-18 (BCI)), para. 3.
329 Second deficiency letter, (Exhibit PAK-18 (BCI)), para. 3.
330 Second deficiency letter, (Exhibit PAK-18 (BCI)), para. 7.
331 Third deficiency letter, (Exhibit ARE-17), para. 2(ii).
332 Third deficiency letter, (Exhibit ARE-17), para. 2(iii).
333 Taghleef's questionnaire response, (Exhibit ARE-16 (BCI)), section D-2.4.

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that it at least provide evidence of the existence of its stated policy of compensating for the
distributors' additional costs and explain how it estimated those costs.
7.247. We therefore find that the United Arab Emirates has not established that the NTC failed to
indicate what information it required in support of a request for a level of trade adjustment, or that
it imposed an unreasonable burden of proof on Taghleef. We thus conclude that the
United Arab Emirates has not established that the NTC acted inconsistently with the last sentence
of Article 2.4.
7.5.3 Conclusion under Article 2.4
7.248. We conclude that the United Arab Emirates has not established that the NTC erred when it
rejected Taghleef's request for a level of trade adjustment on the basis that Taghl eef had not
substantiated its request with evidence, or that it failed to provide a reasoned and adequate
explanation for doing so, failed to indicate what information it required in support of a request for a
level of trade adjustment, or imposed an unreasonable burden of proof on Taghleef.
7.249. Therefore, we conclude that the United Arab Emirates has not established that Pakistan
acted inconsistently with Article 2.4 of the Anti -Dumping Agreement in denying Taghleef's request
for an adjustment for differences in the level of trade.
7.6 Consideration of the volume of dumped imports: Articles 3.1 and 3.2 of the
Anti-Dumping Agreement
7.250. As part of its injury analysis, the NTC found that, during the POI, the volume of dumped
imports had increased significantly in absolute terms and relative to domestic production of the like
product.334
7.251. The United Arab Emirates argues that both of these findings are inconsistent with
Articles 3.1 and 3.2 of the Anti -Dumping Agreement on three grounds. With regard to the volume
of imports in absolute terms and relative to domestic production, the United Arab Emirates argues,
first, that the NTC based its findings on the single year of the POI in which the volume of dumped
imports increased, and disregarded the fact that the volume o f dumped imports decreased during
the rest of the POI, including its most recent period335; and second, that the NTC failed to objectively
evaluate and adequately explain whether the increases were significant .336 Third, the
United Arab Emirates argues that the NTC erred by not consider ing also whether the volume of
dumped imports had increased relative to domestic consumption.337
7.252. Pakistan responds that : first, the NTC considered data from the entire POI, but attached
more analytical significance to data relat ing to 2009 because that was the most recent full year in
the POI338; second, the NTC adequately considered the increase in the absolute volume of dumped
imports to be significant, the data on its record supported such a finding , and the NTC could have
easily found the increase in the volume of dumped imports relative to domestic production to be
significant339; and third, the NTC was not required to consider whether the volume of dumped
imports had also increased relative to domestic consumption.340
7.253. As set out below, we find that the United Arab Emirates has established that the
NTC's consideration of the volume of dumped imports was inconsistent with Articles 3.1 and 3.2.
7.254. We structure our discussion as follows: first, we set out the applicable requireme nts of
Articles 3.1 and 3.2 (section 7.6.1); second, we apply those requirements to the facts of this case

334 Report on final determination (2013), public version, (Exhibit ARE-2), para. 35.7.
335 United Arab Emirates' first written submission, paras. 300-305.
336 United Arab Emirates' first written submission, paras. 307-311.
337 United Arab Emirates' first written submission, para. 306; response to Panel question No. 59.
338 Pakistan's first written submission, paras. 3.357-3.359; second written submission
paras. 2.144-2.162.
339 Pakistan's first written submission, paras. 3.360-3.362; second written submission
paras. 2.163-2.167.
340 Pakistan's response to Panel question No. 59.

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to assess whether Pakistan acted inconsistently with Articles 3.1 and 3.2 (section 7.6.2); and third,
we conclude that Pakistan acted inconsistently with those provisions (section 7.6.3).
7.6.1 The applicable requirements of Articles 3.1 and 3.2, first sentence
7.255. Article 3.1 of the Anti-Dumping Agreement provides:
A determination of injury for purposes of Article VI of GATT 1994 shall be based on
positive evidence and involve an objective examinati on of both (a) the volume of the
dumped imports and the effect of the dumped imports on prices in the domestic market
for like products, and (b) the consequent impact of these imports on domestic producers
of such products.
7.256. Article 3.1 thus requires a "det ermination of injury" to be " based on positive evidence and
involve an objective examination "341 of the volume of dumped imports, their effect on prices, and
their consequent impact on the domestic industry.
7.257. As noted earlier, the ordinary meaning of "evidence" includes: "[i]nformation (in the form of
personal or documented testimony or the production of material objects), tending or used to
establish facts in a legal investigation".342 The ordinary meaning of "positive" includes "admitting no
question; stated, express, definite, precise; emphatic "343 and "providing support for a particular
hypothesis, esp[ecially] one concerning the presence or existence of something "344, and, as noted
by the Appellate Body, affirmative, objective, verifiable, and credible.345 Further, "based on" means
"place[d] on … a foundation, fundamental principle, or underlying basis".346 Thus, Article 3.1 requires
that a determination of injury be "based on", i.e. have as its foundation, "evidence" that is
affirmative, definite, and capable of supporting such a determination.
7.258. As for the requirement that the determination of injury "involve an objective examination",
this relates to the approach taken by the authority to the evidence and its analysis. The ordinary
meaning of examination includes the "[i] nvestigation of or inquiry into a subject, situation … etc.;
critical analysis"347, and the ordinary meaning of "objective" includes " not influenced by personal
feelings or opinions in considering and representing facts; impartial, detached".348 Thus, the enquiry
and analysis leading to a determination of injury must be one that is impartial, i.e. not influenced
by personal feelings and not favouring any interested party.349 For example, to perform an objective
examination the authority must also take into account the evidence that appears to conflict with its
own hypotheses, and explain how it has reconciled conflicting evidence in reaching its conclusions.350
7.259. The overarching requirements to conduct an objective examination and to base the
determination of injury on positive evidence, as set forth in Article 3.1, apply to every aspect of the
determination of injury. Articles 3.2, 3.4, and 3.5, in turn, set forth more detailed requirements

341 Emphasis added.
342 See para. 7.19 above.
343 Oxford Dictionaries online, definition of "positive"
https://www.oed.com/view/Entry/148318?rskey=3r7q5h&result=1&isAdvanced=false#eid (accessed
13 October 2020), adj., meaning A.I.2, specifying that "positive" with this meaning is used chiefly in the
phrase "proof positive n. at proof n. 1a", which, in turn, is defined as "definite, absolute, or incontrovertible
proof".
344 Oxford Dictionaries online, definition of "positive"
https://www.oed.com/view/Entry/148318?rskey=3r7q5h&result=1&isAdvanced=false#eid (accessed
13 October 2020), adj., meaning A.II.4.c.
345 Appellate Body Reports, US – Hot-Rolled Steel, para. 192; China – GOES, para. 126.
346 Oxford Dictionaries online, definition of "base"
https://www.oed.com/view/Entry/15856?rskey=rBVVi9&result=10&isAdvanced=false#eid (accessed
13 October 2020), v.3, meaning 2.
347 Oxford Dictionaries online, definition of "examination"
https://www.oed.com/view/Entry/65580?redirectedFrom=examination#eid (accessed 13 October 2020), n.,
meaning 6.a.
348 Oxford Dictionaries online, definition of "objective"
https://www.oed.com/view/Entry/129634?redirectedFrom=objective#eid (accessed 13 October 2020), adj.,
meaning 8.a.
349 See also e.g. Appellate Body Report, US – Hot-Rolled Steel, para. 193.
350 See also e.g. Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), paras. 93-94
and 97.

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relating to the examination of the volume of the dumped imports (Article 3.2), their effect on prices
in the domestic market of the like product (Article 3.2), the consequent impact of these imports on
domestic producers of such products (Article 3.4), and the demonstration that it is the dumped
imports that are causing injury (Article 3.5).
7.260. Beginning with Article 3.2, the first sentence sets out further requirements for the
examination of the volume of dumped imports, which is the aspect of the NTC's determination that
we are reviewing here.
7.261. The first sentence of Article 3.2 provides:
With regard to the volume of the dumped imports, the investigating authorities shall
consider whether there has been a significant increase in dumped imports, either in
absolute terms or relative to production or consumption in the importing Member.
7.262. Article 3.2 requires an investigating authority to " consider" whether there has been a
significant increase in dumped imports. As we discussed at paragraph 7.140 above, the ordinary
meaning of "consider" includes "[t]o view or contemplate attentively, to survey, examine" and "[t]o
contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive
thought upon, give heed to, take note of".351 Thus Article 3.2 requires an investigating authority to
assess whether there has been an increase in the volume of dumped imports, and to take those
findings into account.352
7.263. What the investigating authority must consider is whether there has been an increase in the
volume of dumped imports that is "significant", i.e. "noteworthy; consequential, influential ".353
Article 3.2 does not set out a minimum threshold for what qualifies as a "significant" increase;
whether an increase is "significant" will depend on the specific circumstances of the case.354
7.264. Article 3.2 sets forth three perspectives from which an increase may be assessed: "either in
absolute terms or relative to production or consumption in the importing Member ". The use of the
disjunctives "either … or … or" makes it clear that these are alternative, i.e. an investigating authority
may rely on one, two, or all three in its consideration of the volume of dumped imports.355
7.6.2 Whether the NTC's consideration of the volume of dumped imports is inconsistent
with Articles 3.1 and 3.2
7.265. Below, we assess first the NTC's consideration of the evolution of the volume of dumped
imports in absolute terms (section 7.6.2.1); second, the NTC's consideration of the volume of
dumped imports re lative to domestic production (section 7.6.2.2); and third, whether the
United Arab Emirates has established that the NTC was also required to consider whether there had
been an increase in the volume of imports relative to domestic consumption (section 7.6.2.3).
7.6.2.1 The evolution of the volume of dumped imports in absolute terms
7.266. To recall356, t he United Arab Emirates makes two sets of arguments on the
NTC's consideration of the volume of dumped imports in absolute terms: first, that the NTC focused
on 2009, the only year showing an increase on the previous year, and disregarded the evidence

351 Oxford Dictionaries online, definition of "consider"
https://www.oed.com/view/Entry/39593?redirectedFrom=consider#eid (accessed 13 October 2020), v.,
meaning 3.a.
352 See also e.g. Appellate Body Report, China – GOES, para. 130.
353 Oxford Dictionaries online, definition of "significant"
https://www.oed.com/view/Entry/179569?redirectedFrom=significant#eid (accessed 13 October 2020), adj.,
meaning 4.a. See also Panel Reports, China – Cellulose Pulp, para. 7.40; and Thailand – H-Beams,
para. 7.163.
354 See also Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.161.
355 See also Panel Report, China – Cellulose Pulp, para. 7.39. A previous panel took the same view when
addressing the similarly worded Article 15.2 of the SCM Agreement. (Panel Report, US – Countervailing Duty
Investigation on DRAMS, paras. 7.233-7.234).
356 See para. 7.251 above.

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relating to the rest of the POI, including its most recent period357; and second, that the NTC in any
event failed to consider whether the increase in imports in absolute terms was significant.358
7.267. Pakistan responds that the NTC in fact considered data from the entire POI , but attached
particular significance to the 2009 data for a number of reasons. First, 2009 was the most recent
full year in the POI 359: the earlier yea rs of the POI were too remote in time and therefore less
reliable360, and data relating to the last six months "cannot be as reliable and as revealing as full-year
data".361 Second, the decline in volume of dumped imports observed in January to June 2010 could
not offset the increase observed in 2009.362
7.268. To make our assessment, we turn to the NTC's determination. We recall that the injury POI
ran from January 2007 to June 2010.363
7.269. We note that the NTC found that the volume of dumped imports in absolute terms h ad
decreased by 12.96% in 2008 compared with 2007, increased by 56.86% in 2009 compared
with 2008 and decreased by 47.91% in the first six months of 2010 compared with the first
six months of 2009.364 Specifically, imports in absolute terms decreased by [[***]] metric tonnes in
2008 (from [[***]] metric tonnes in 2007), increased by [[***]] metric tonnes in 2009 , and
decreased by [[***]] metric tonnes during January to June 2010 compared with the previous
half-year.365 The NTC noted the fluctuations, but observed that the increase in 2009 was at a "higher
rate" than the subsequent decrease. 366 It then concluded that the volume of dumped imports in
absolute terms had increased significantly during the POI.367
7.270. Thus, although the NTC described the evolution of imports including the fact that they had
decreased during the first and last part of the POI, it then based its finding on the single year in
which they had increased, i.e. 2009, and it dismissed the decreases simply stating that the increase
in 2009 had been at a "higher rate" than the decrease in the first half of 2010.368
7.271. We note that Article 3 does not preclude an investigating authority from attaching more
weight to certain data on its record. However, even in doing so, an investigating authority must not
ignore other relevant data369, and must explain how it took into account evidence that conflicted
with its conclusions.370
7.272. The NTC provided one comment that appears intended at explaining its focus on 2009 rather
than other years; namely, that the increase in the volume of imports in 2009 had been at a "higher
rate" than the decrease in the first half of 2010. 371 We note however that the rate of decrease
observed in January to June 2010 (47.91%) is close in magnitude to the rate of the previous increase
(56.86%) and that, moreover, the absolute volume of decrease in the first six months of 2010

357 United Arab Emirates' first written submission, paras. 300-303 and 305; opening statement at the
first meeting of the Panel, para. 46; and written opening statement, para. 59.
358 United Arab Emirates' first written submission, para. 307; second written submission, para. 143; and
written opening statement, para. 60.
359 Pakistan's first written submission, para. 3.359; second written submission, paras. 2.145-2.151; and
response to United Arab Emirates' written opening statement, paras. 35-42.
360 Pakistan's second written submission, para. 2.150 (referring to Appellate Body Reports, US – Steel
361 Pakistan's second written submission, paras. 2.145-2.146 and 2.150-2.151 (referring to
Appellate Body Reports, US – Lamb, para. 137; Mexico – Anti-Dumping Measures on Rice, paras. 166-167; and
Panel Report, Ukraine – Passenger Cars, para. 7.179); written opening statement, para. 71. See also
Pakistan's written opening statement, paras. 73-74; and response to United Arab Emirates' written opening
statement, paras. 35-42.
362 Pakistan's first written submission, paras. 3.357 and 3.359; second written submission, para. 2.145.
363 See para. 7.80 above.
364 Report on final determination (2013), public version, (Exhibit ARE-2), table-VII.
365 Report on final determination (2013), (Exhibit PAK-1 (BCI)), table-VII and para. 35.6.
366 Report on final determination (2013), public version, (Exhibit ARE-2), paras. 35.3 and 35.6.
367 Report on final determination (2013), public version, (Exhibit ARE-2), para. 35.7.
368 Report on final determination (2013), (Exhibit PAK-1 (BCI)), table-VII and para. 35.6.
369 Panel Reports, Russia – Commercial Vehicles, para. 7.41; China – Broiler Products
(Article 21.5 – US), paras. 7.152-7.153.
370 See para. 7.258 above.
371 Report on final determination (2013), (Exhibit PAK-1 (BCI)), table-VII and para. 35.6.

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[[***]] was larger than the absolute volume of increase in the full year 2009 [[***]].372 Therefore,
the NTC's comment does not, in our view, adequately explain its decision to focus on the rate of
increase in 2009 and disregard th e conflicting evidence on the evo lution of imports during earlier
and later periods of the POI.
7.273. As noted, Pakistan argues that it was reasonable for the NTC to attach more significance
to 2009 because the earlier years of the POI were too remote in time and therefore less reliable,
and data relating to the last six months "cannot be as reliable and as revealing as full-year data".373
However, Pakistan has not pointed us to any evidence that these explanations formed part of the
NTC's own reasoning in the domestic proceedings, and we therefore cannot rely on them in assessing
the NTC's determination.
7.274. Pakistan also maintains that Article 3.2 only requires authorities to "consider whether there
has been a significant increase in dumped imports", and not to determine or conclude that there
was.374 We note however that this does not exempt authorities from the requirement to make an
"objective examination" when considering whether there has been a significant increase in dumped
imports, which is what was lacking in this case.
7.275. Therefore, we find t hat the NTC failed to make an objective examination in considering
whether there had been a significant increase in dumped imports in absolute terms, because it
focused selectively on the only year in which imports increased and did not explain how it took into
account the conflicting evidence pertaining to the rest of the POI, including the most recent period.
By so doing, the NTC acted inconsistently with Articles 3.1 and 3.2. Having so found, we do not
examine the United Arab Emirates' further argument t hat the NTC failed to consider whether the
increase in the absolute volume of imports, if any, was significant.
7.6.2.2 The evolution of the volume of dumped imports relative to domestic production
7.276. The United Arab Emirates makes two sets of arguments on the NTC's consideration of the
volume of dumped imports relative to domestic production: first, that the NTC focused on 2009, the
only year showing an increase on the previous year, and disregarded the evidence relating to the
rest of the POI375; and second, that the NTC in any event failed to consider whether the increase in
imports relative to domestic production was significant.376
7.277. Regarding the NTC's reliance on the increase in 2009, Pakistan responds that the decline in
the volume of dumped imports relative to do mestic production observed in January to June 2010
was not sufficient to offset the increase observed in the full year 2009. 377 As to the
NTC's consideration of significance, Pakistan responds that the NTC chose to focus "on import
volumes in absolute terms", was not required to consider whether also the increase in relative terms
was significant, and in any event " could have easily found " the relative increase of 6 percentage
points observed in 2009 to be significant, "in the light of the precarious state of the domestic
industry".378
7.278. To make our assessment, we turn to the NTC's determination. The NTC observed that the
dumped imports were 11.80%, 10.30%, 16.41% , and 14.84% of the domestic production in the
years 2007, 2008, 2009, and January to June 2010, respectively. 379 The NTC then concluded that
the volume of dumped imports had "increased significantly … relative to production of the domestic
like product during [the] POI".380
7.279. Thus, the NTC was faced with fluctuating trends: a decrease of 1.5 percentage points
in 2008, an increase of 6.1 percentage points in 2009, and a decrease of 1.6 percentage points in

372 Report on final determination (2013), (Exhibit PAK-1 (BCI)), table-VII.
373 See para. 7.267 above. We recall that the NTC itself, in April 2012, chose to cut off the injury POI at
the end of June 2010. See para. 7.80 above.
374 Pakistan's first written submission, paras. 3.353-3.354.
375 United Arab Emirates' first written submission, para. 304.
376 United Arab Emirates' first written submission, para. 310.
377 Pakistan's second written submission, para. 2.148.
378 Pakistan's second written submission, paras. 2.165-2.167. We also recall Pakistan's overarching
379 Report on final determination (2013), public version, (Exhibit ARE-2), para. 35.5.
380 Report on final determination (2013), public version, (Exhibit ARE-2), para. 35.7.

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

January to June 2010. The NTC described those trends and then, without more, concluded that the
volume of dumped imports relative to do mestic production had "increased significantly" during the
POI. We note Pakistan's explanation to us that the NTC focused on the increase in 2009 because the
later decrease did not offset that increase381; however, Pakistan has not pointed us to evidence from
the record of the domestic proceedings showing that this was indeed the NTC's reasoning.
7.280. Thus, in finding that imports relative to domestic production had "increased significantly",
the NTC did not explain how it reconciled the conflicting trends in th e data before it to reach its
conclusion. Specifically, it did not explain how the sequence of downward and upward movements
it observed led it to conclude that the increase in imports relative to domestic production was
"significant". Indeed, Pakistan's arguments acknowledge that the NTC did not discuss whether the
increase was significant.382
7.281. We further note Pakistan's argument that the NTC was entitled to focus on the increase in
the absolute volume of imports and did not need to consider also whether the increase in the volume
of imports relative to domestic production was "significant".383 However, the NTC did conclude that
the increase in the volume of imports relative to domestic production was significant384, and it relied
on that conclusion as part of the basis for its determination of injury 385; in doing so, it was subject
to the requirements of Articles 3.1 and 3.2.
7.282. We therefore find that in concluding that the volume of dumped imports relative to domestic
production had increased "significant ly", the NTC acted inconsistently with Articles 3.1 and 3.2,
because it did not explain how it reconciled the conflicting trends before it and in particular it did not
explain how those conflicting trends supported its conclusion that the increase was "significant".386
7.6.2.3 The evolution of the volume of dumped imports relative to domestic consumption
7.283. The NTC did not consider whether there had been an increase in dumped imports relative to
domestic consumption.
7.284. The United Arab Emirates argues that, given the "contradictory trends" observed, the NTC
was required to consider also whether there had been a significant increase in the volume of dumped
imports relative to domestic consumption, in order to perform an objective examination under
Articles 3.1 and 3.2.387
7.285. Pakistan responds that Article 3.2 confers discretion on the investigating authority to analyse
whether the volume of dumped imports has increased in absolute terms, or relative to domestic
production, or relative to domestic consumption, and does not require authorities to consider more
than one of these metrics.388 Therefore, Pakistan argues that having already examined the evolution
of the volume of dumped imports in absolute terms and relative to domestic production, the NTC
was not required to consider also whether there had been a significant increase in the volume of
imports relative to domestic consumption.389
7.286. We recall that Article 3.2 uses the disjunctives "either … or … or" when listing the different
manners in which an authority may consider whether dumped imports have increased significantly,
making it clear that these are alternative a nd not cumulative. 390 Therefore, we reject the
United Arab Emirates' argument that the NTC was required to examine the evolution of the volume

381 See para. 7.277 above.
382 Pakistan's second written submission, paras. 2.165-2.167.
383 See para. 7.277 above.
384 Report on final determination (2013), public version, (Exhibit ARE-2), para. 35.7.
385 Report on final determination (2013), public version, (Exhibit ARE-2), para. 47.2.
386 See paras. 7.258, 7.262, and 7.263 above.
387 United Arab Emirates' first written submission, para. 306; response to Panel question No. 59.
388 Pakistan's response to Panel question No. 59.
389 Pakistan's second written submission, paras. 2.171-2.173.
390 See para. 7.264 above.

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of imports relative to domestic consumption, in addition to examining the evolution of the volume
of imports in absolute terms and relative to domestic production.391
7.6.3 Conclusion on the NTC's consideration of the volume of dumped imports under
Articles 3.1 and 3.2
7.287. In sum, we find that the NTC acted inconsistently with Articles 3.1 and 3.2 because it failed
to make an ob jective examination in considering whether there had been a significant increase in
imports in absolute terms and relative to domestic production.
7.7 Consideration of the effect of dumped imports on prices: Articles 3.1 and 3.2 of the
Anti-Dumping Agreement
7.288. As part of its injury analysis, the NTC found that the effects of the dumped imports on the
prices of the domestic industry were significant price undercutting and significant price depression.392
The United Arab Emirates claims that the NTC's consideration of whether there had been significant
price undercutting and significant price depression was inconsistent with Articles 3.1 and 3.2.
7.289. We structure our discussion as follows: first, we set out the applicable requirements of
Article 3.2 (section 7.7.1), having already discussed Article 3.1 in section 7.6.1 above; second, we
assess whether the United Arab Emirates has established that the NTC's consideration of price
undercutting was inconsistent with the requirements of Articles 3.1 and 3.2, and find that it has so
established (section 7.7.2); third, we assess whether the United Arab Emirates has established that
the NTC's consideration of price depression was inconsistent with those requirements, and find that
it has so established (section 7.7.3).
7.7.1 The applicable requirements of Article 3.2, second sentence
7.290. The second sentence of Article 3.2 sets out requirements for the examination of the eff ect
of dumped imports on prices. It provides that:
With regard to the effect of the dumped imports on prices, the investigating authorities
shall consider whether there has been a significant price undercutting by the dumped
imports as compared with the p rice of a like product of the importing Member, or
whether the effect of such imports is otherwise to depress prices to a significant degree
or prevent price increases, which otherwise would have occurred, to a significant
degree. No one or several of these factors can necessarily give decisive guidance.
7.291. The second sentence of Article 3.2 imposes on an investigating authority the obligation to
"consider" the effect of dumped imports on prices. As we discussed at paragraph 7.262 above, the
ordinary meaning of "consider" includes "view or contemplate attentively … examine", "take
something into account in reaching its decision", and does not require an authority to make a
definitive determination.393
7.292. Article 3.2 refers to three types of price effects, two of which are the subject of the
United Arab Emirates' challenge, namely price undercutting and price depression.
7.293. With regard to price undercutting, Article 3.2 requires authorities to "consider whether there
has been a significant price undercutting by the dumped imports as compared with the price of a
like product of the importing Member". 394 That is, Article 3.2 requires a comparison between the
prices of the dumped imports and those of a domestic like product.395 As has been observed in the

391 We note that this is separate from the question whether the NTC's examination of the evolution of
dumped imports in absolute terms and relative to domestic production was itself consistent with Articles 3.1
and 3.2, which we have considered above.
392 Report on final determination (2013), public version, (Exhibit ARE-2), sections 36.1 and 36.2.
393 Appellate Body Report, China – GOES, para. 130.
394 Emphasis added.
395 See also Appellate Body Reports, China – GOES, para. 136; and China – HP-SSST (Japan) / China –
HP-SSST (EU), para. 5.158.

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past, when the investigating authority must compare prices, "price comparability necessarily arises
as an issue".396
7.294. The text of Article 3.2, which uses the present perfect ("has been") and the present participle
("undercutting"), in its context, suggests that what is at issue are price effects that continue over
time, and are not limited to an isolated instance.397
7.295. With regard to price depression, the question is "whether the effect of [the dumped] imports
is … to depress prices to a significant degree". The ordinary meaning of "depress" includes "[t] o
press down … to lower"398, while the ordinary meaning of "depression" includes "[t]he action of
pressing down, or fact of being pressed down" .399 In the context of Article 3.2, an investigating
authority is thus required to consider whether the prices of domestic like products are being pressed
down by the dumped imports.
7.296. For both types of price effects at issue here, the investigating authority must consider
whether they are "significant", i.e. "important, notable, consequential". This will depend on the
circumstances of the case.400
7.297. Further, the question under the second sentence of Article 3.2 is whether "the effect of the
dumped imports" has been one (or more) of these price phenomena. Article 3.2 thus links the
dumped imports and the price depression and contemplates considerati on of the relationship
between the two.401
7.298. Beyond these requirements and the overarching requirements in Article 3.1, Article 3.2 does
not prescribe a specific methodology to be relied upon in a price undercutting or depression analysis,
thus affording a certain level of discretion to the investigating authority.402
7.7.2 Whether the NTC's consideration of price undercutting was inconsistent with
Articles 3.1 and 3.2
7.299. The United Arab Emirates makes five arguments in support of its claim that the
NTC's consideration of price undercutting was inconsistent with Articles 3.1 and 3.2. The
United Arab Emirates argues: first, that the NTC failed to rely on positive evidence by using import
price data from Pakistan Revenue Automation Limited (PRAL), the data processing arm of the Federal
Board of Revenue of the Government of Pakistan 403; second, that the NTC failed to ensure price
comparability404; third, that the NTC focused on 2009, the single year of the POI during which

396 Panel Report, China – GOES, para. 7.530; Appellate Body Report, China – GOES, para. 200. See also
Panel Report, China – Broiler Products, paras. 7.475-7.478.
397 See also Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.159,
reasoning that "a proper reading of 'price undercutting' under Article 3.2 suggests that the inquiry requires a
dynamic assessment of price developments and trends in the relationship between the prices of the dumped
imports and those of domestic like products over the entire period of investigation (POI). An examination of
such developments and trends includes assessing whether import and domestic prices are moving in the same
or contrary directions, and whether there has been a sudden and substantial increase in the domestic prices".
398 Oxford Dictionaries online, definition of "depress"
https://www.oed.com/view/Entry/50442?rskey=ThDTSn&result=2&isAdvanced=false#eid (accessed
14 October 2020), v. meaning 2.
399 Oxford Dictionaries online, definition of "depression"
https://www.oed.com/view/Entry/50451?redirectedFrom=depression#eid (accessed 14 October 2020), n.
meaning 1.
400 See para. 7.263 above.
401 See also e.g. Appellate Body Reports, China – GOES, paras. 136, 144, and 152; China – HP-SSST
(Japan) / China – HP-SSST (EU), para. 5.161.
402 See also Panel Reports, China – Broiler Products, para. 7.474; and China – X-Ray Equipment,
para. 7.41.
403 United Arab Emirates' first written submission, para. 317; second written submission, para. 160; and
written opening statement, para. 67. For Pakistan's response, see Pakistan's first written submission,
paras. 3.374-3.376; response to Panel question No. 60; and written opening statement, paras. 76-78.
404 United Arab Emirates' first written submission, paras. 318-322; second written submission,
para. 161; and written opening statement, para. 68. For Pakistan's response, see Pakistan's first written
submission, paras. 3.381-3.386; and response to Panel question No. 61.

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undercutting was found, disregarding conflicting evi dence from the rest of the POI 405; fourth, that
the NTC failed to consider whether price undercutting was significant406; and fifth, that the NTC did
not take into account the global financial crisis.407 We consider these arguments in turn.
7.7.2.1 The NTC's use of PRAL data
7.300. The United Arab Emirates argues that the NTC used data from official import statistics
maintained by PRAL to establish the price of dumped imports for purposes of its undercutting
analysis, disregarding without any explanation the export price information provided by cooperating
exporters.408
7.301. Pakistan responds that the NTC established the price ("weighted average landed cost") of
the dumped imports using the price data submitted by the cooperating exporters as its primary
source of informa tion, and used PRAL data only for non -cooperating exporters. Pakistan
acknowledges that a passage in the Report on final determination refers only to PRAL as the source
of the data, but maintains that is because of a clerical error.409
7.302. We note that i n a fo otnote to table-VIII on price undercutting, the NTC state d that the
sources of the data underlying the price undercutting analysis were "[a]pplicant and cooperating
exporters".410 Elsewhere in its report, the NTC stated that it had "used import data obtaine d from
PRAL in addition to the information provided by the Applicant and the exporters/foreign
producers".411
7.303. Pakistan presented to us the NTC's calculation of the prices of the dumped imports. In those
calculations, the NTC appears to have, indeed, calculated weighted average prices using data from
cooperating exporters, including Taghleef, and PRAL data for other exporters. 412 The
NTC's statements in its report, together with its calculations of export price, support
Pakistan's explanation that it used price data from cooperating exporters where available, and that
the NTC's statement suggesting that landed costs were calculated only from PRAL data was in error.
7.304. We therefore find that the United Arab Emirates has not established, as a matter of fact,
that the NTC did not use the available price data from cooperating exporters.
7.305. The United Arab Emirates further argues that even if the NTC combined the data from
cooperating exporters and PRAL, it is "doubtful" that this ensured "an objective examination based
on positive evidence "413, the NTC provided "zero explanation" and there are "serious questions"
about reliance on this commingled data. 414 However, the United Arab Emirates has not further
substantiated its "doubts" and "questions", and we therefore con sider that it has not established
that the fact of combining data from the cooperating exporters with PRAL data for non -cooperating
exporters, in itself, gave rise to an inconsistency with Articles 3.1 and 3.2.

405 United Arab Emirates' first written submission, paras. 323-334; opening statement at the
first meeting of the Panel, paras. 48-50; second written submission, para. 163; and written opening statement,
para. 69. For Pakistan's response, see Pakistan's first written submission, paras. 3.393-3.395; and
second written submission, paras. 2.179-2.184.
406 United Arab Emirates' first written submission, para. 330; opening statement at the first meeting of
the Panel, para. 53; and second written submission, para. 162. For Pakistan's response, see Pakistan's first
written submission, paras. 3.388-3.390; response to Panel question No. 63; and second written submission,
paras. 2.186-2.189.
407 United Arab Emirates' first written submission, paras. 326 and 328. For Pakistan's response, see
Pakistan's first written submission, paras. 3.397-3.399.
408 United Arab Emirates' first written submission, para. 317; second written submission, paras. 145
and 160; and written opening statement, para. 67. The United Arab Emirates refers to Report on final
determination (2013), public version, (Exhibit ARE-2), para. 36.1.1.
409 Pakistan's first written submission, paras. 3.374-3.376; response to Panel question No. 60.
410 Report on final determination (2013), public version, (Exhibit ARE-2), table-VIII. (emphasis added)
411 Report on final determination (2013), public version, (Exhibit ARE-2), para. 14.8. (emphasis added)
412 Annexure-XVI, calculations of landed cost, (Exhibit PAK-39 (BCI)). This was annexure-XVI to the
Report on final determination (2013), (Exhibit PAK-1 (BCI)).
413 United Arab Emirates' second written submission, para. 160.
414 See also United Arab Emirates' response to Pakistan's written opening statement, para. 33.

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7.7.2.2 Price comparability (product mix)
7.306. The United Arab Emirates argues that the NTC failed to ensure that the prices it was
comparing were comparable: although there were two different types of the product under
consideration, namely metallized and non -metallized BOPP film, with " significant differences i n
import volumes and prices"415 between the two, the NTC compared the aggregate price of dumped
imports with the aggregate price of domestic BOPP film without distinguishing the metallized and
non-metallized type. 416 The United Arab Emirates maintains that the NTC bore the obligation to
ensure price comparability , even though Taghleef did not raise this issue during the domestic
proceedings.417
7.307. Pakistan responds that the NTC considered the product mix on either side of the price
comparison and concluded that the prices were comparable because the proportions of metallized
and non-metallized BOPP film on either side were "not different".418 Pakistan adds that the proportion
of the cheaper, non-metallized BOPP film was slightly greater on the domestic side than on the side
of dumped imports, and therefore the use of average figures in the comparison understated the
magnitude of undercutting.419 Pakistan concedes that the NTC did not explicitly discuss this analysis
on the record, but asserts that the NTC was not required to do so, because it had the discretion on
how to undertake the analysis, and no interested party raised these arguments during the
investigation.420
7.308. It is not disputed that the exporters (including Taghleef) and the domestic industry sold
two types of BOPP film in different proportions in the Pakistani market: non -metallized BOPP film
and metallized BOPP film. 421 There were pricing differences between the two types of BOPP film,
with the metallized type priced higher than the non-metallized type.422 In its undercutting analysis,
the NTC calculated a single weighted average price of imports for each year of the POI, and compared
that average price to the weighted average price of the domestic like product.423 Pakistan is offering
explanations for this choice but has not pointed us to anything in the record of the domestic
proceedings indicating that those explanations were the NTC's own.
7.309. We note that the existence of two types of the product that differed in price and quantities
raised conce rns of comparability. We recall that the text of Article 3.2 stipulates that a price
undercutting analysis is a price comparison. Whether the prices under comparison are comparable
is core to the objectivity of the analysis. Therefore, investigating author ities are required to ensure
that prices are comparable, whether or not investigated exporters raise such concerns during the
investigation.424 Failure to do so falls short of an objective examination of price undercutting.
7.310. Therefore, we find that by simply calculating an average price for the dumped imports and
an average price for the like domestic product, without addressing the concerns for comparability
that were posed by the existence of two different product types, the NTC failed to undertake an
objective examination in considering price undercutting. It thus acted inconsistently with Articles 3.1
and 3.2.
7.7.2.3 The NTC's focus on 2009
7.311. The United Arab Emirates argues that the NTC based its finding that there had been price
undercutting during the POI on the single year in which the prices of dumped imports were lower

415 United Arab Emirates' first written submission, para. 319.
416 United Arab Emirates' first written submission, paras. 318-321; second written submission,
417 United Arab Emirates' first written submission, para. 322 (referring to Appellate Body Report, China –
GOES, para. 200). See also United Arab Emirates' response to Pakistan's written opening statement, para. 34.
418 Pakistan's first written submission, paras. 3.381-3.382.
419 Pakistan's first written submission, para. 3.384; response to Panel question No. 61.
420 Pakistan's first written submission, paras. 3.381-3.386; response to Panel question No. 61.
421 Report on final determination (2013), public version, (Exhibit ARE-2), paras. 12.2.1-12.2.2
and 28.2.2; Pakistan's first written submission, para. 3.379.
422 NTC's dumping calculations, (Exhibit ARE-31 (BCI)); United Arab Emirates' first written submission,
423 Report on final determination (2013), public version, (Exhibit ARE-2), para. 36.1.1.
424 Appellate Body Report, China – GOES, para. 201; Panel Report, China – Broiler Products,
paras. 7.475-7.478.

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than the prices of the domestic like product (2009), without taking into account the conflicting
evidence from the rest of the POI, including the fact that the rate of undercutting in 2009 was lower
than the rate of overselling in 2007 and 2008 and close to the rate level of overselling in January to
June 2010.425
7.312. Pakistan responds that the NTC considered data from the entire POI, but attached particular
significance to that relating to 2009 because it was the most recent full year in the POI426, and that
the level of overselling in January to June 2010 did not offset the level of undercutting in 2009 .427
However, we note that the record before us does not establish that these explanations were
the NTC's.
7.313. To make our assessment, we turn to the NTC's discussion of whether there had been price
undercutting. The NTC first set out the aggregate price of the dumped imports and of the domestic
like product during each year of the injury POI, an exercise that showed undercutting only in 2009.428
In percentage terms, undercutting was 4.35% in 2009, whereas overselling was [[***]] in 2007,
[[***]] in 2008, and 3% in January to June 2010.429 The NTC then stated that the prices of dumped
imports and domestic like products had both increased in 2008, that the price of dumped imports
undercut prices of domestic like products in 2009 430, and that while the price of dumped i mports
was higher than that of domestic like products during January to June 2010, the "magnitude of the
price undercutting [in 2009] was overwhelming". 431 The NTC then concluded that there was price
undercutting during the POI.432
7.314. Thus, the data before the NTC showed undercutting in 2009 by a margin of 4.35%, whereas
during the rest of the POI, including the most recent period of the POI, the import prices exceeded
those of the domestic like product by similar margins. 433 Yet, the NTC did not explain how it t ook
this conflicting evidence into account, other than to state that although the domestic price was lower
than the price of imports in January to June 2010, the magnitude of price undercutting in 2009 was
"overwhelming".434 We also note that this cursory s tatement does not appear to be supported by
the data, because the magnitude of the undercutting in 2009 was in fact similar to the magnitude
of the overselling in January to June 2010.435
7.315. We recall that to make an objective examination as required by Article 3.1, the investigating
authority must not disregard relevant evidence that may conflict with its findings, and must instead
explain how it has taken this evidence into account. 436 We further recall that the requirement to
consider "whether there has been a significant price undercutting" is not satisfied "by a static
examination" at a single point in time. 437 By basing its conclusion of price undercutting solely
on 2009, without explaining how it had taken into account conflicting evidence, including f rom the
most recent period of the POI, the NTC acted inconsistently with Articles 3.1 and 3.2.

425 United Arab Emirates' first written submission, paras. 323-329; opening statement at the
first meeting of the Panel, paras. 48-50; and written opening statement, para. 69.
426 Pakistan's first written submission, paras. 3.393-3.395; second written submission,
paras. 2.179-2.180; and response to Panel question No. 55.
427 Pakistan's second written submission, para. 2.180. See also Pakistan's response to
United Arab Emirates' written opening statement, para. 43.
428 Report on final determination (2013), (Exhibit PAK-1 (BCI)), table-VIII; Report on final
determination (2013), public version, (Exhibit ARE-2), table-VIII.
429 For 2009, Report on final determination (2013), public version, (Exhibit ARE-2); for 2010,
United Arab Emirates' response to Panel question No. 90 and Pakistan's comments on United Arab
Emirates' response to Panel question No. 90; for the other years, percentages derived from Report on final
determination (2013), (Exhibit PAK-1 (BCI)), table-VIII. In absolute terms, the margins were [[***]]. (Report
on final determination (2013), (Exhibit PAK-1 (BCI)), table-VIII).
430 The Report on final determination refers to the "POI for dumping"; in the course of the proceedings,
Pakistan clarified that this was meant to be a reference to 2009. (Pakistan's response to Panel
question No. 57).
431 Report on final determination (2013), public version, (Exhibit ARE-2), para. 36.1.2.
432 Report on final determination (2013), public version, (Exhibit ARE-2), para. 36.1.3.
433 We refer to fn 429 above, for the exact magnitudes. [[***]]
434 See fn 431 above.
435 Report on final determination (2013), (Exhibit PAK-1 (BCI)), table-VIII; see also Report on final
determination (2013), public version, (Exhibit ARE-2), table-VIII.
436 See para. 7.258 above.
437 Emphasis added. See para. 7.294 and fn 397 above.

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7.7.2.4 "Significance" of price undercutting
7.316. The United Arab Emirates argues that the NTC did not consider whether the price
undercutting was "significant", as required under Article 3.2.438
7.317. Pakistan responds that the magnitude of price undercutting observed by the NTC in 2009
(4.35%) was sufficient to support a finding of significance in the circumstances of this case: the
investigated product is a commodity product whos e competition is primarily based on price, and
therefore, even small price differences influence consumer decisions.439 We note, however, that this
explanation is not reflected in the record of the investigation. Pakistan points out that during the
investigation Taghleef itself referred to BOPP Film as a "commodity" 440; in our view, however, this
does not demonstrate that the explanation put forward by Pakistan was the NTC's reasoning in the
underlying proceedings. Therefore, we cannot rely on this explanatio n in making our assessment,
notwithstanding Pakistan's assertion that "it is common industry knowledge that the subject product
is a commodity".441
7.318. The Report on final determination observes that the prices of dumped imports undercut
prices of the domestic like product by 4.35% in 2009, then adds that the domestic price was lower
than the price of dumped imports in January to June 2010, but that the "magnitude of the price
undercutting [in 2009] was overwhelming".442 That is the entirety of the NTC's consideration of this
issue, and Pakistan has not shown otherwise.
7.319. We therefore find that the United Arab Emirates has established that the NTC did not consider
whether there had been "significant" price undercutting, and thus acted inconsistently with
Article 3.2.
7.7.2.5 The global financial crisis
7.320. The United Arab Emirates also argues that by not considering the price undercutting
observed in 2009 in the context of the global financial crisis, the NTC failed to make an objective
examination of whether that undercutting was the effect of the dumped imports. The
United Arab Emirates points out that in 2009 the prices of BOPP film followed the world market trend
for non-energy commodity prices.443 Pakistan responds that the NTC was not required to take into
account the global financial crisis in its price undercutting analysis.444
7.321. Having already found, on other grounds, that the NTC's consideration of price undercutting
was inconsistent with Articles 3.1 and 3.2, we do not consider this additional argument by the
United Arab Emirates.
7.7.2.6 Conclusion on the NTC's consideration of price undercutting under Articles 3.1
and 3.2
7.322. We find that the NTC's consideration of price undercutting was inconsistent with Articles 3.1
and 3.2 because the NTC failed to ensure that the prices it was comparing were comparable, relied
on data for a single year of the POI without adequately explaining why it disregarded conflicting
evidence from the rest of the POI, including its most recent period, and failed to consider whether
price undercutting was significant.

438 United Arab Emirates' first written submission, para. 330. See also United Arab Emirates' opening
statement at the first meeting of the Panel, para. 53.
439 Pakistan's first written submission, paras. 3.387-3.390; second written submission,
paras. 2.186-2.189; and comments on the United Arab Emirates' response to the Panel question No. 90.
440 Pakistan's second written submission, paras. 2.187-2.188 (referring to Taghleef's post-hearing
submission, (Exhibit ARE-13), p. 17).
441 Pakistan's response to Panel question No. 63.
442 Report on final determination (2013), public version, (Exhibit ARE-2), para. 36.1.2. See also
ibid. table-VIII.
443 United Arab Emirates' first written submission, paras. 326 and 328.
444 Pakistan's first written submission, paras. 3.397-3.399.

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7.7.3 Whether the NTC's consideration of price depression was inconsistent with
Articles 3.1 and 3.2
7.323. The United Arab Emirates argues that the NTC acted inconsistently with Articles 3.1 and 3.2
in considering price depression, because, first, the NTC focused on the price decline in 2009 alone,
without explaining how it had taken into account conflicting evidence from the rest of the POI ,
including its most recent period445; second, the NTC did not consider whether the price depression
was "significant"446; third, the NTC did not consider whether the price depression was "the effect of"
dumped imports, given that the decline in prices tracked the decline in costs 447; and, fourth, the
NTC did not reconcile its finding of price depression with the finding that there was no price
suppression.448 We consider these arguments in turn.
7.7.3.1 The NTC's focus on 2009
7.324. The United Arab Emirates argues that the NTC failed to make an objective examination in
considering price depression, because it based its finding on the single year in which domestic prices
had decreased, and disregarded the fact that during the rest of the POI, including the period
January to June 2010, prices of the domestic like product increased.449
7.325. Pakistan responds that the NTC considered trends from the entire POI but gave more weight
to 2009, because the increase in January to June 2010 was less pronounced than the preceding
decline, and 2009 was the most recent full year of the POI.450
7.326. We note that the NTC set out the evolution of domestic prices in each year and the last
half-year of the POI, namely a price increase of 27.44% in 2008, a price decrease of 13.24%
in 2009, and a price increase of 11.5% in January to June 2010.451 The NTC then stated that the
price decrease observed in 2009 was "overwhelming"452, and concluded that the domestic industry
had suffered price depression due to dumped imports. 453 The NTC did not explain how it took into
account the conflicting indications provided by the data for 2008 and 2010. Beyond asserting that
the price decrease in 2009 was "overwhelming", it did not explain this assertion in light of the trends
observed during the rest of the POI, namely the fact that the price decrease in 2009 was more
contained than the price increase in 2008 and was ve ry close to the price increase in the first half
of 2010.454
7.327. We recall that to perform an objective examination, the authority must also take into account
the evidence that appears to conflict with its findings, and explain how it has reconciled this evidence

445 United Arab Emirates' first written submission, paras. 336-346; second written submission,
para. 164; opening statement at the first meeting of the Panel, para. 51; and written opening statement
paras. 70-72. For Pakistan's response, see Pakistan's first written submission, paras. 3.410-3.414; and
second written submission, paras. 2.196-2.200.
446 United Arab Emirates' first written submission, paras. 347-350; second written submission,
para. 165. For Pakistan's response, see Pakistan's first written submission, para. 3.416; second written
submission, paras. 2.201-2.204; and response to Panel question No. 63.
447 United Arab Emirates' first written submission, paras. 340-342; second written submission,
para. 165; opening statement at the first meeting of the Panel, para. 52; and written opening statement
para. 71. For Pakistan's response, see Pakistan's first written submission, paras. 3.413-3.414; second written
submission, paras. 2.199-2.200; and response to United Arab Emirates' written opening statement,
paras. 47-48.
448 United Arab Emirates' first written submission, para. 343; response to Panel question No. 62.
Pakistan's first written submission, para. 3.415; response to Panel question No. 64; and second written
submission, para. 2.209.
449 United Arab Emirates' first written submission, paras. 336-337; second written submission,
para. 164; opening statement at the first meeting of the Panel, para. 51; and written opening statement,
paras. 70-71.
450 Pakistan's first written submission, para. 3.411; second written submission, paras. 2.196 and 2.206.
451 Report on final determination (2013), public version, (Exhibit ARE-2), table-IX. For 2010, the
percentage increase is specified at para. 36.3.2. See also Report on final determination (2013),
(Exhibit PAK-1 (BCI)), table-IX.
452 Report on final determination (2013), public version, (Exhibit ARE-2), para. 36.2.1.
453 Report on final determination (2013), public version, (Exhibit ARE-2), para. 32.2.4.
454 Report on final determination (2013), public version, (Exhibit ARE-2), table-IX. The percentage
increase in January to June 2010 was derived from Report on final determination (2013),
(Exhibit PAK-1 (BCI)), table-IX.

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in reaching its conclusions. 455 In considering whether there had been significant price depression,
the NTC failed to do so, and focused on the only year supporting its conclusion of price depression,
without explaining how it had taken into account the evidence relating to the rest of the POI.
7.328. Although Pakistan argues that the NTC attached significance to the data for 2009 (to the
exclusion of earlier and later data) because 2009 was the most recent full -year, it could not point
us to record evidence establishing that this was the NTC's reasoning.
7.329. We therefore find that the NTC acted inconsistently with Articles 3.1 and 3.2 in considering
price depression, because, by focusing solely on data for the one year supporting its conclusion and
by not explain ing how it took into account conflicting evidence, it failed to make an objective
examination.
7.7.3.2 "Significance" of price depression
7.330. The United Arab Emirates asserts that the NTC did not consider whether the price depression
was significant, as is required by Article 3.2. The United Arab Emirates adds that the NTC did not
support its assertion that the " magnitude of the decrease [in 2009] was overwhelming ", in the
context of the subsequent increase in prices.456
7.331. Pakistan responds that it was reasonable for the NTC to consider a 13% decrease in prices
of the domestic like product to be "significant" because BOPP film is a commodity that is extremely
price-sensitive.457 Pakistan concedes that the NTC did not characte rize BOPP film as a commodity
product in its price depression analysis, but asserts that it "is common industry knowledge that the
subject product is a commodity " which has " obvious implications for competitive conditions in the
BOPP market".458 Pakistan adds that Taghleef itself referred to BOPP film as a commodity during the
investigation.459
7.332. We recall that Article 3.2 does not provide a quantitative threshold for what qualifies as
"significant" price depression. Whether the magnitude of depression is signi ficant depends on the
specific circumstances of each case. However, we also note that the NTC's analysis was limited to
identifying the trends during the POI and asserting that the domestic price "recovered during the
last six months of [the] POI but [the] magnitude of the decrease [in 2009] was overwhelming".460
7.333. While Pakistan argues that the NTC considered the price decline in the context of the
competitive effect of BOPP film as a commodity product, it has not pointed us to information from
the record of the domestic proceedings indicating that this was the NTC's reasoning.
7.334. We therefore find that the NTC did not consider whether the dumped imports had depressed
prices "to a significant degree", as required by Article 3.2.
7.7.3.3 Whether the absence of price suppression contradicted the finding of price
depression
7.335. The United Arab Emirates argues that the NTC's findings that there was no price suppression
but there was price depression are contradictory. The United Arab Emirates asks, "if dumped imports
did not stop domestic prices from increasing as much as they otherwi se would have, how can
dumped imports be blamed for having decreased prices?"461
7.336. Pakistan responds that the NTC's practice is to consider that price suppression exists when
a producer is unable to increase prices in response to an increase in production costs. In 2009, when

455 See para. 7.258 above.
456 United Arab Emirates' first written submission, paras. 347-350 (referring to Report on final
determination (2013), public version, (Exhibit ARE-2), para. 36.2.1).
457 Pakistan's first written submission, para. 3.416.
458 Pakistan's response to Panel question No. 63; second written submission, paras. 2.203-2.204.
459 Pakistan's second written submission, paras. 2.187-2.189 (referring to Taghleef's post-hearing
submission, (Exhibit ARE-13), p. 17).
460 Report on final determination (2013), public version, (Exhibit ARE-2), para. 36.2.1.
461 United Arab Emirates' first written submission, para. 343; response to Panel question No. 62.

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the NTC found price depression, the NTC did not consider there to be price suppression because
costs decreased.462
7.337. Under Article 3.2, consideration of price depression and price suppression entails related but
different enquiries – price depression exists when prices are "pushed down", while price suppression
exists when dumped imports "prevent price increases, which otherwise would have occurred". 463
The Report on final determination reflects Pakistan's explanation that the NTC considers t hat there
is price suppression only if the domestic industry cannot recover increases in costs, and there were
no such increases in 2009.464
7.338. Therefore, the United Arab Emirates has not established that the NTC's finding of price
depression in 2009 was contradicted by its finding that there was no price suppression that year.
7.7.3.4 Decrease in costs
7.339. The United Arab Emirates argues that the NTC failed to consider whether the price
depression was the effect of dumped imports, because the price decrease in 2009 trac ked closely
the decrease in costs, and yet the NTC merely stated that the " price depression was partly due to
decrease in cost and partly due to dumping".465 Pakistan responds that the NTC considered that the
magnitude of price decrease was mathematically greater than the cost decrease, and thus, dumping
was a "co-causal" factor in the price decline.466
7.340. We note that in 2009, the price of the domestic like product declined by [[***]] PKR/metric
tonnes (13.24%)467 while costs declined by [[***]] PKR/metric tonnes468 (13.4%469). In its Report
on final determination, the NTC stated that the prices of inputs had also reduced in 2009 , but the
"reduction in prices was more than reduction in cost". The NTC then concluded that there was price
depression during the POI for dumping "partly due to decrease in cost and partly due to dumping".470
7.341. We recall that Article 3.2 requires an investigating authority to consider "whether the effect
of [the dumped] imports is … to depress prices". 471 We agree with Pakistan that price depression
need not be exclusively the effect of dumping .472 However, where there is evidence that other
elements may explain the price depression, an objective investigating authority would need to
consider such evidence to understand whether the dumped imports have indeed depressed the
domestic prices.473
7.342. In this case, prices of the domestic like product tracked costs closely both in percentage and
absolute terms, and Taghleef had pointed out these facts during the investigation.474 In our view, in
these circumstances, it was not sufficient merely to assert that the price depression was the effect
of dumped imports and other factors. The NTC's statements that "the reduction in prices was more
than reduction in cost" and that therefore "price depression was partly due to decrease in cost and
partly due to dumping", are conclusory and fall short of a reasoned an adequate explanation. In our

462 Pakistan's response to Panel question No. 64.
463 Appellate Body Report, China – GOES, para. 141.
464 Report on final determination (2013), (Exhibit PAK-1 (BCI)), para. 36.3.2.
465 United Arab Emirates' first written submission, paras. 339-342; opening statement at the
first meeting of the Panel, para. 52; and written opening statement, paras. 71 and 78 (referring to Report on
final determination (2013), public version, (Exhibit ARE-2), para. 36.2.1). See also
United Arab Emirates' response to Panel question No. 91.
466 Pakistan's first written submission, para. 3.414; second written submission, paras. 2.197-2.200
and 2.210. See also Pakistan's response to the United Arab Emirates' written opening statement, para. 47;
response to Panel question No. 91; and comments on United Arab Emirates' response to Panel question No. 91.
467 Report on final determination (2013), (Exhibit PAK-1 (BCI)), table-IX and para. 36.2.1.
468 Report on final determination (2013), (Exhibit PAK-1 (BCI)), table-X.
469 United Arab Emirates' response to Panel question No. 91.
470 Report on final determination (2013), public version, (Exhibit ARE-2), para. 32.2.4.
471 Emphasis added.
472 Pakistan's second written submission, para. 2.200.
473 See also Appellate Body Report, China – GOES, para. 152, calling for an examination into whether
dumped imports have a "depressive … effect on domestic prices".
474 Taghleef's post-hearing submission, (Exhibit ARE-13), p. 18.

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view, to perform an objective examination, the NTC was required to explain why, in light of the facts
on its record, it considered that the price depression was "the effect of" the dumped imports.
7.343. We therefore find that the NTC acted inconsistently with Articles 3.1 and 3.2 because it did
not explain why it considered that the price depression was the effect of the dumped imports in light
of the fact that the decline in price s tracked extremely closely the decrease in the domestic
industry's costs.
7.7.3.5 Conclusion on the NTC's consideration of price depression under Articles 3.1
and 3.2
7.344. We find that the NTC's price depression analysis was inconsistent with Articles 3.1 and 3.2
because: the NTC based its conclusion of price depression on the only year of the POI that supported
that conclusion, without explaining how it took into account the conflicting evidence from earlier and
later parts of the POI; the NTC did not consider whether the price depression was "significant"; and
the NTC did not explain why it considered that the price depression was "the effect of" the dumped
imports in light of the fact that the decline in prices tracked extremely closely the decrease in the
domestic industry's costs.
7.8 Examination of the impact of the dumped imports on the domestic industry:
Articles 3.1 and 3.4 of the Anti-Dumping Agreement
7.345. The United Arab Emirates challenges the NTC's examination of the impact of the dumped
imports on the domestic ind ustry as inconsistent with Articles 3.1 and 3.4. First, the
United Arab Emirates submits that the NTC failed to evaluate the magnitude of the margin of
dumping, which is one of the factors explicitly listed in Article 3.4. Second, the United Arab Emirates
submits that the NTC did not objectively evaluate seven of the economic factors and indices having
a bearing on the state of the industry. Third, the United Arab Emirates argues that the NTC failed to
adequately explain why it concluded that overall, the domestic industry had been injured, in light of
several factors that exhibited positive trends.
7.346. Pakistan asks the Panel to reject the United Arab Emirates' claims.
7.347. As set out below, we find that the United Arab Emirates has established that
Pakistan's examination of the impact of the dumped imports on the domestic industry was
inconsistent with Articles 3.1 and 3.4 of the Anti-Dumping Agreement.
7.348. We structure our discussion as follows: first, we set out the applicable requirements of
Article 3.4 (section 7.8.1), having already discussed Article 3.1 in section 7.6.1 above; second, we
apply those requirements to the facts of this case to assess whether Pakistan acted inconsistently
with Articles 3.1 and 3.4 (section 7.8.2); and third, we conclude that Pakistan acted inconsistently
with those provisions (section 7.8.3).
7.8.1 The applicable requirements of Article 3.4
7.349. We recall that pursuant to Article 3.1, a determination of injury must involve an objective
examination of, inter alia, the impact of dumped imports on domestic producers of the like product.
Article 3.4 sets forth requirements for this examination of the impact of the dumped imports.
It provides that:
The examination of the impact of the dumped imports on the domestic industry
concerned shall include an evaluation of all relevant economic factors and indices having
a bearing on the state of the industry, including actual and potential decline in sales,
profits, output, market share, productivity, return on investments, or utilization of
capacity; factors affecting domestic prices; the magnitude of the margin of dumping;
actual and potential negative effects on cash flow, inventories, employmen t, wages,
growth, ability to raise capital or investments. This list is not exhaustive, nor can one
or several of these factors necessarily give decisive guidance.
7.350. Article 3.4 requires that an investigating authority evaluate all relevant economic factors and
indices that have a bearing on the state of the domestic industry, and lists 15 such factors. The list

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is not exhaustive, i.e. an investigating authority must examine all the listed factors but may also be
required to evaluate other relevant factors ba sed on the facts and circumstances of the particular
proceeding.
7.351. The ordinary meaning of "evaluate" includes to " determine the significance, worth, or
condition of usually by careful appraisal and study ".475 We agree with previous panels that have
understood the obligation to "evaluat[e]" under Article 3.4 to require an analysis and interpretation
of the data relating to the economic factors and indices, and an assessment of the "role, relevance
and relative weight of each factor in the particular investiga tion".476 Therefore, an investigating
authority may not limit itself to setting out trends relating to the economic factors and indices .477
Instead, it must analyse and interpret the data , in a way that is then discernible from the
investigation record.478
7.352. Article 3.4 requires an investigating authority to examine the impact of the dumped imports
on the domestic industry. Thus, the text of Article 3.4 creates a link between dumped imports and
the state of the domestic industry. Therefore, in our view, an investigating authority is required to
identify the trends in the injury factors and place those trends in the relevant context that is
informative of the injury suffered by the domestic industry, taking into account the relevant evidence
and explanations that are on its record. 479 The precise contours of this analysis will vary on a
case-by-case basis, depending on the evidence and explanations on the record of the investigating
authority. Where the evidence on the investigating authority's record suggests alternative readings
of the trends observed, an objective examination would include considering that evidence, and
reconciling it with the authority's reading of the trends it observes.480
7.353. While an investigating authority must assess the factors listed in Article 3.4, this provision
does not require all factors to be indicative of injury. An investigating authority may find that some
factors are not relevant, or have limited relevance, and explain the basis for such findings.481 And it
is possible for an investigating authority to conclude that there is injury to the domestic industry
where some of the relevant individual factors are not indicative of injury, provided that the authority
adequately explains how its evaluation of the relevant economic factors and indices support the
overall determination of injury.482
7.8.2 Whether the NTC's examination of the impact of the dumped imports on the
domestic industry was inconsistent with Articles 3.1 and 3.4
7.354. As we outlined at paragraph 7.345 above, the United Arab Emirates argues that the NTC
acted inconsistently with Articles 3.1 and 3.4 on three grounds. Below, we discuss the merits of each
of the three grounds in turn, as follows: first, whether the NTC failed to evaluate the "magnitude of
the margin of dumping" (section 7.8.2.1); second, whether the NTC failed to evaluate seven of the
injury factors objectively and based on positive evidence (section 7.8.2.2); and third, whether the

475 Merriam-Webster Dictionary online, definition of "evaluate" www.merriam-webster.com, v.,
meaning 2.
476 Panel Report, EC – Bed Linen (Article 21.5 – India), para. 6.162. See also Panel Report, Egypt –
Steel Rebar, paras. 7.43-7.44.
477 Panel Report, Korea – Certain Paper, para. 7.268.
478 Previous panels and the Appellate Body have considered that an investigating authority is not
required to include a separate record of the evaluation of each of the injury factors listed in Article 3.4.
Whether there is sufficient and credible record evidence to satisfy a panel that a factor has been evaluated,
even though a separate record of the evaluation of that factor has not been made, will depend on the particular
facts of each case. (Panel Report, Thailand – H-Beams, para. 7.237; Appellate Body Report, EC – Tube or Pipe
Fittings, paras. 157 and 161). Since Article 3.4 does not stipulate how an investigating authority shall set out
its evaluation of the relevant economic factors and indices, we agree with this reasoning.
479 Panel Report, China – Broiler Products, para. 7.554. See also Appellate Body Report, China – GOES,
paras. 149-150.
480 An examination of the impact of the dumped imports on the state of the domestic industry, under
Article 3.4, is part of the overall framework of an injury analysis under Article 3. Under Article 3.4, an
investigating authority is required to examine what the impact of the dumped imports on the domestic industry
is, and not to demonstrate that the dumped imports have caused injury to the domestic industry: the latter is
required under Article 3.5.
481 See e.g. Panel Reports, EC – Bed Linen (Article 21.5 – India), para. 6.162; Russia – Commercial
Vehicles, para. 7.111.
482 See e.g. Panel Report, Thailand – H-Beams, paras. 7.236 and 7.249. See also Panel Report, China –
Cellulose Pulp, para. 7.129.

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NTC failed to adequately explain why it concluded that, overall, the domestic industry had suffered
injury (section 7.8.2.3).
7.8.2.1 Whether the NTC failed to evaluate the "magnitude of the margin of dumping"
7.355. The United Arab Emirates argues that the NTC acted inconsistently with Article 3.4 by failing
to evaluate the magnitude of the margin of dumping in its examination of the impact of the dumped
imports on the domestic industry.483 The United Arab Emirates acknowledges that the NTC set out
its calculation of the margins of dumping in another section of its Report on final determination, but
argues that this did not meet the required standard under Article 3.4.484
7.356. Pakistan agrees that the NTC did not explicitly analyse the magnitude of the marg in of
dumping in its injury analysis. However, Pakistan points us to the section of the Report on final
determination in which the NTC set out the margins of dumping 485, and argues that in assessing
injury the NTC implicitly considered the magnitude of the margins of dumping and concluded that
they were indicative of injury. Pakistan asserts that the NTC's practice is to consider an explicit
analysis superfluous where the margins of dumping are as high as they were in this case ( 24.32%
to 59.67%).486 Pakistan also argues that it is especially obvious in the context of a commodity
product that dumping margins of this magnitude "will significantly contribute to material injury".487
7.357. We recall that Article 3.4 does not prescribe the manner in which an investigating authority
must examine and present its evaluation of the relevant economic factors and indices in its published
documents. An investigating authority may undertake an "implicit analysis" of a factor, provided
that the record contains sufficient and credible evidence that the factor has been evaluated.488
7.358. We now turn to assess whether the NTC indeed undertook an implicit analysis of the
magnitude of the margin of dumping.
7.359. In the portion of the Report on final determination that Pakistan points us to, towards the
end of the section on "determination of dumping", the NTC lists, in a table, the margins of dumping
for each relevant source. 489 There is no accompanying discussion or analysis, explicit or implicit,
associated with this table. In our view, this does not satisfy the requirements of Article 3.4 because
the evaluation of the factors listed in Article 3.4 requires investigating authorities to exercise their
judgment, i.e. to assess the role, relevance, and relative weight of each factor.490

483 United Arab Emirates' first written submission, paras. 373-375.
484 United Arab Emirates' first written submission, paras. 376-377; opening statement at the
first meeting of the Panel, paras. 63-64; second written submission, para. 177; and written opening statement,
para. 80.
485 Pakistan's first written submission, para. 3.435 (referring to Report on final determination (2013),
486 Pakistan's first written submission, paras. 3.435-3.436; response to Panel question No. 65; and
second written submission, paras. 2.243-2.245.
487 Pakistan's first written submission, para. 3.436.
488 See fn 478 above.
489 Report on final determination (2013), public version, (Exhibit ARE-2), para. 30.4.
490 See para. 7.351 above; see also Panel Report, EC – Bed Linen (Article 21.5 – India), para. 6.162.
Past panels have also taken this position (see, e.g. Panel Reports, Russia – Commercial Vehicles, para. 7.161;
China – X-Ray Equipment, paras. 7.183-7.184; and China – HP-SSST (Japan) / China – HP-SSST (EU),
para. 7.160). In support of its arguments, Pakistan refers to the Panel Report in Russia – Commercial Vehicles,
in which that panel stated that Article 3.4 does not require that the magnitude of the margin of dumping be
evaluated in any particular way or be given any particular weight, and that the Anti-Dumping Agreement does
not provide any guidance as to how the investigating authority's evaluation should be set out in its
determination. (Pakistan's response to Panel question No. 65 (referring to Panel Report, Russia – Commercial
Vehicles, para. 7.159)). However, in that same report, the panel stated as follows:
In the present case, in section 4.1 of the Investigation Report, the [Department for Internal Market
Defence of the Eurasian Economic Commission ] was addressing the issue whether the margin of
dumping for each of the countries potentially subject to a cumulative assessment was greater than
de minimis (2%). There is no discussion of the impact of dumped imports on the domestic industry,
or the magnitude of the m argin of dumping in that context. There is no basis for us to conclude
that the analysis in section 4.1 for the purposes of Article 3.3 was relevant to, or considered in,
the context of the Article 3.4 examination. Section 4.1 of the Investigation Report d oes not,

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7.360. While Pakistan asserts that with dumping margins of this magnitude the injurious effect is
obvious, especially for a commodity product, there is nothing on the NTC's record to suggest that
this was, in fact, the NTC's implicit reasoning. In reaching this conclusion, we note that the table that
Pakistan refers to appears in the section of the report involving the calculation of the margin of
dumping, and not that on injury to the domestic industry. Moreover, the NTC does not connect that
information to the injury analysis in any way.
7.361. We conclude that the NTC did not evaluate the magnitude of the margin of dumping in the
context of its injury analysis, explicitly or implicitly. Therefore, we find that the NTC acted
inconsistently with Article 3.4 of the Anti-Dumping Agreement, by failing to evaluate all the relevant
factors listed in that provision.
7.8.2.2 Whether the NTC failed to objectively evaluate seven of the economic factors and
indices having a bearing on the state of the domestic industry
7.362. The United Arab Emirates claims that the NTC's evaluation of seven of the economic factors
and indices having a bearing on the domestic industry did not involve an objective examination of
positive evidence. We assess the United Arab Emirates' arguments regarding each of the factors in
turn.
7.8.2.2.1 Market share
7.363. The United Arab Emirates contends that the NTC acted inconsistently with Articles 3.1
and 3.4 in finding that the domestic industry had suffered injury on account of market share, because
the NTC based this finding on the single year in which the domestic industry's market share declined
somewhat while the market share of dumped imports increased, and disregarded the fact that the
domestic industry's market share increased during the rest of the POI, including the last half year.491
The United Arab Emirates argues that the NTC thus failed to take into account evidence contradicting
its conclusions and to explain why, despite that evidence, the facts still supported its conclusions.492
7.364. Pakistan responds that the NTC considered data from the entire POI, and that the data
supported its finding that the domestic industry's market share declined on account of dumped
imports. Pakistan asserts that the NTC merely attached particular significance to data observed
in 2009 (while not ignoring the rest of the POI) because it was the most recent full year in the POI.493
Pakistan also argues that data relating to the period January to June 2010 supports the
NTC's finding, because the domestic industry's market share increased at th e same time as the
volume of dumped imports declined.494
7.365. In its Report on final determination, the NTC set out the year -on-year changes in the
domestic market share of the domestic industry and the sources under investigation. 495 This data
showed that the domestic industry's market share increased in 2008 (from 2007) and January to
June 2010 (from January to June 2009), as well as overall from the beginning of the POI (2007) to
the end of the POI (January to June 2010). The NTC th en commented that the domestic
industry's market share had increased in 2008 but decreased in 2009, when the share held by
dumped imports increased, and concluded, without more, that the domestic industry had suffered
material injury on account of the dumped imports.496
7.366. We recall that Articles 3.1 and 3.4 require a determination to "be based on positive evidence"
and "involve an objective examination" of, among others, the impact of dumped imports on the state
of the domestic industry, including market share.497 To perform an objective examination based on

therefore, contain an evaluation of the magnitude of the margin of dumping for purposes of
Article 3.4.
(Panel Report, Russia – Commercial Vehicles, para. 7.161 (fn omitted))
On this basis, we agree with the United Arab Emirates that the Panel Report in Russia – Commercial
Vehicles does not support Pakistan's view.
491 United Arab Emirates' first written submission, paras. 386-391.
492 United Arab Emirates' first written submission, para. 391.
493 Pakistan's first written submission, paras. 3.445-3.448.
494 Pakistan's first written submission, para. 3.448.
495 Report on final determination (2013), public version, (Exhibit ARE-2), table-XI.
496 Report on final determination (2013), public version, (Exhibit ARE-2), paras. 37.2-37.5.
497 See paras. 7.257-7.259 and 7.349 above.

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positive evidence, an investigating authority must, among other things, take into account conflicting
evidence and explain how the evidence supported its conclusions.498
7.367. In the case before us, the NTC was fa ced with an increasing market share of the domestic
industry during the first and last part of the POI, and a decrease in 2009; and vice versa for the
market share of the dumped imports. The NTC chose to base its findings on market share exclusively
on 2009, the only portion of the POI during which the domestic industry's market share decreased.
We cannot find any explanation on the record of how the NTC took into account the conflicting data
from the earlier and later parts of the POI. This is not consistent with the requirement to perform an
objective examination pursuant to Articles 3.1 and 3.4.
7.368. Regarding data from the last portion of the POI, i.e. January to June 2010, Pakistan argues
that the NTC "was … within … its … discretion to discount the upward tick" during this period because
half-year data was "inherently less reliable" than the most recent full year (2009) and the increase
in market share observed in January to June 2010 could not outweigh the preceding decline. 499
Further, Pakistan points out t hat data for this period actually showed a link between the dumped
imports and domestic industry's market share, because the increase in the domestic
industry's market share coincided with a decline in the market share of the dumped imports. 500
However, Pakistan has not pointed us to any evidence that these explanations formed part of the
NTC's own reasoning in the domestic proceedings, and therefore we cannot rely on them in assessing
the authority's determination.
7.369. We therefore find that in concluding that the domestic industry had suffered injury on
account of market share, the NTC acted inconsistently with Articles 3.1 and 3.4, because it focused
on the single year in which market share declined and gave no explanation of how it took into
account the conflicting evidence from the rest of the POI.
7.8.2.2.2 Profits
7.370. The United Arab Emirates submits that the NTC's evaluation of "profits" was inconsistent
with Articles 3.1 and 3.4 for three reasons. First, the United Arab Emirates argues that there were
unexplained dis crepancies between the data relied upon by the NTC and that reflected in the
domestic producer's annual reports , which called into question the profit data underlying the
NTC's analysis.501 Second, the United Arab Emirates asserts that it is questionable whether the slight
declines in profits and the absence of losses support ed a finding of "material injury". 502 Third, the
United Arab Emirates argues that the NTC failed to consider other explanations identified by Taghleef
and enumerated in the domestic producer's annual reports that could have explained the declines in
profits.503
7.371. Pakistan responds that, first, there are no discrepancies between the data relied upon by
the NTC and th ose in the domestic producer's annual reports. Rather, the domestic
producer's annual reports reflect its consolidated profit data, while the NTC's Report on final
determination only reflects profit data relating to BOPP film. 504 Second, Pakistan asserts that the
Anti-Dumping Agreement does not preclude the NTC from concluding that small declines in profits,
and absence of losses, were indicative of injury. 505 Third, Pakistan argues that the NTC was not
required to evaluate the alternative explanations for the declines in profits because the domestic
producer's annual re ports contained consolidated business information, and therefore the

498 See also e.g. Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), paras. 93-94
and 97.
499 Pakistan's first written submission, paras. 3.445-3.447.
500 Pakistan's first written submission, para. 3.448.
501 United Arab Emirates' first written submission, para. 401 (referring to Taghleef's post-hearing
submission, (Exhibit ARE-13), p. 24; 2009 Tri-Pack Films' Annual Report, (Exhibit ARE-24b (revised)), pp. 1
and 10; and 2010 Tri-Pack Films' Annual Report (excerpt), (Exhibit ARE-26), pp. 14 and 17).
502 United Arab Emirates' first written submission, para. 399; second written submission, para. 191.
The United Arab Emirates subsequently conceded a finding of injury may be warranted even absent losses.
(United Arab Emirates' second written submission, para. 192).
503 United Arab Emirates' first written submission, paras. 402-403; second written submission,
para. 193.
504 Pakistan's first written submission, para. 3.463; response to Panel question No. 66.
505 Pakistan's first written submission, paras. 3.459 and 3.462.

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explanations therein did not necessarily relate to BOPP film and Taghleef had not substantiated its
assertions.506
7.372. On the first issue, the parties agree that the profit data in the domesti c producer's annual
reports varied from that reflected in the Report on final determination. The parties also agree that
the domestic producer's annual reports related to consolidated data. 507 However, the
United Arab Emirates argues that, because the domestic producer mainly produced BOPP film, the
profit data in its annual reports were relevant to BOPP film, and that, considering that Taghleef
raised its concerns during the investigation, the NTC acted inconsistently with Articles 3.1 and 3.4
by not examining whether the profit data underlying its determination were accurate.508
7.373. We note that during the investigation Taghleef raised its concerns as to the accuracy of the
profit data.509 The NTC acknowledged these concerns in its Report on final determination510, but did
not address these particular concerns in the Report. Pakistan argues that during the verification visit
the NTC verified that the profit data underlying its analysis relat ed to BOPP film only, and that the
NTC was therefore entitled to disregard Taghleef's arguments.511
7.374. In this regard, we note that in its Report on final determination, the NTC stated that the
profit data therein were "duly adjusted (explained in on -the-spot investigation report of domestic
industry)".512 We also note that in the verification report, the NTC did not specifically explain its
adjustment to profit data. The NTC did state generally that the verification report "contains mostly
the information on B OPP Film in as far as it can be identified with the domestic like product
(BOPP Film). In case of information or data that cannot be identified with the domestic like product
the information is for the products group, which also include [cast polypropylene] Film".513 The NTC
also stated that the profit data were verified from the profit and loss statements of the domestic
producer.514
7.375. Thus, the NTC's Report on final determination and the verification report do not clarify
whether, indeed, the differences in the profit data can be explained by the supposed disaggregation
of the data. In our view, Taghleef proffered sufficient evidence to substantiate 515 its assertions in
order to warrant an explicit response from the NTC. Taghleef indexed the pro fit data in the annual
reports, observed that they differed from the trends presented by the NTC in its Report on
preliminary determination, and pointed out to the NTC that the two sets of data differed.516 The NTC
acknowledged these concerns in its Report on final determination517, but does not appear to have
addressed them. On this basis, we agree with the United Arab Emirates that the NTC was "put on
notice"518 of the differences in the data. In our view, failing to address Taghleef's concern regarding
the accuracy of the profit data was not consistent with Articles 3.1 and 3.4.519
7.376. We now turn to the second issue, which is whether the NTC acted inconsistently with
Articles 3.1 and 3.4 by finding that the trends in profits were indicative of injury, despite slight
declines in profits.
7.377. We note that Article 3.4 does not necessarily preclude an investigating authority from finding
the existence of material injury where it observes minor negative trends with regard to some of the
individual factors. We understand the materiality of injury to attach to the overall state of the
domestic industry, and not the individual factors. Therefore, the United Arab Emirates has not

506 Pakistan's first written submission, para. 3.464; response to Panel question No. 67.
507 United Arab Emirates' second written submission, para. 194.
508 United Arab Emirates' second written submission, para. 194.
509 Taghleef's post-hearing submission, (Exhibit ARE-13), p. 24.
510 Report on final determination (2013), public version, (Exhibit ARE-2), p. 68.
511 Pakistan's response to Panel question No. 67.
512 Report on final determination (2013), public version, (Exhibit ARE-2), para. 41.1.
513 Report on Tri-Pack Films verification visit, (Exhibit ARE-23), para. 3.2.
514 Report on Tri-Pack Films verification visit, (Exhibit ARE-23), para. 16.
515 Pakistan's response to Panel question No. 67.
516 Taghleef's post-hearing submission, (Exhibit ARE-13), p. 24.
517 Report on final determination (2013), public version, (Exhibit ARE-2), p. 68.
518 United Arab Emirates' second written submission, para. 194.
519 We recall that investigating authorities are required to base their determinations on "positive
evidence". i.e. evidence that is, inter alia, accurate, affirmative, objective, verifiable, and credible. See
para. 7.257 above.

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established that the NTC acted inconsistently with Article 3.4 by relying on slight declines in profits
in support of its finding of injury.
7.378. We now turn to the final issue, which is whether the NTC objectively evaluated whether the
decline in profits was the result of the dumped imports. In its Report on final determination, the NTC
set out the trend s in profit and loss data, and concluded that the domestic industry had suffered
material injury during the POI for dumping.520 The United Arab Emirates argues that the NTC failed
to address alternative factors that could have explained the decline in profi ts, i.e. the increase in
raw material costs, which could not be passed onto consumers due to availability of cheap smuggled
film; and the increased financial costs.521 We note that these factors were identified in the domestic
producer's annual report, which formed part of the record of the investigation 522, and were raised
by Taghleef during the investigation.523
7.379. Pakistan concedes that the NTC did not address these arguments in its Report on final
determination. However, Pakistan argues that the NTC was not required to do so because the annual
reports of the domestic producer contained consolidated data, not limited to BOPP film524, and it was
therefore "clear to the NTC that Taghleef 's arguments had no validity for the issue at hand ".525
We note, first, that the evidence before us does not indicate that this was the NTC's reasoning.
7.380. Second, we note that the domestic producer stated as follows in the portion of its annual
report pointed to by Taghleef:
Decline in net profit is mainly on account of increase in raw material cost which could
not be fully passed on to our customers due to availability of smuggled film at cheaper
rates. Our financial cost also increased as a result of higher mark-up rates and financing
requirements during the current period.526
7.381. While the domestic producer's annual report related to its consolidated business, the same
report also stated that:
While we struggled to survive in such difficult business environment, cheap availability
of smuggled BOPP film created an unfair competition directly hitting our domestic sales
and margins.527
7.382. The wording of these statements indicates that they were relevant to the NTC's evaluation
of the profitability of the domestic BOPP film industry during the POI. They therefore do not support
Pakistan's assertion that the NTC disregarded Taghleef's argument on the basis that the statements
in the domestic producer's annual report were not specific to BOPP film.
7.383. For these reasons, we are of the view that the NTC was sufficiently put on notice that the
domestic producer considered that its profits from the domestic like product had declined mainly
due to the increase in raw materials and financial costs; it disregarded this evidence, which conflicted
with its own conclusions; and it did not offer any explanation for doing so. Therefore, by disregarding
these alternative explanations when evaluating whether the decline in profits was the "impact of the
dumped imports", the NTC acted inconsistently with Articles 3.1 and 3.4.
7.8.2.2.3 Sales
7.384. The United Arab Emirates submits that the NTC's analysis of the injury factor "sales" was
inconsistent with Articles 3.1 and 3.4 for two reasons. First, the United Arab Emirates argues that

520 Report on final determination (2013), public version, (Exhibit ARE-2), section 41.
521 United Arab Emirates' first written submission, para. 402 (referring to 2009 Tri-Pack Films' Annual
Report, (Exhibit ARE-24b), p. 18).
522 2009 Tri-Pack Films' Annual Report, (Exhibit ARE-24b), p. 18.
523 Taghleef's post-hearing submission, (Exhibit ARE-13), pp. 24-25; Taghleef's comments on statement
of essential facts, (Exhibit ARE-25), section 1(g) (referring to 2009 Tri-Pack Films' Annual Report,
(Exhibit ARE-24b), p. 18).
524 Pakistan's first written submission, para. 3.464.
525 Pakistan's response to Panel question No. 66.
526 2009 Tri-Pack Films' Annual Report, (Exhibit ARE-24b), p. 18. (emphasis added)
527 2009 Tri-Pack Films' Annual Report, (Exhibit ARE-24b), p. 17. (emphasis added)

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the NTC observed only marginal declines in sales, which did not support a finding that the domestic
industry had suffered "material injury". 528 Second, the United Arab Emirates argues that the NTC
failed to evaluate other evidence on its record that could explain the decline in sales on the domestic
market, including the domestic industry's increased export sales and other reasons enumerated in
the domestic producer's annual reports.529
7.385. Pakistan responds, first, that the Anti-Dumping Agreement does not prescribe any minimum
quantum of decline in the individual injury factors, and materiality of injury depends on the "overall,
holistic examination of all the injury factors taken together".530 Second, Pakistan argues that the
NTC properly established that the impact of the dumped imports included the declin e in sales.
Pakistan asserts that the NTC's findings on "sales" must be seen in the context of its previous
findings that the volume of dumped imports had increased in 2009, and that the NTC was not
required to "repeat" these facts at every step of its analysis.531
7.386. Regarding the extent of the decline in sales, we recall that materiality of injury attaches to
the overall state of the domestic industry, and not to the individual factors, and that Article 3.4 does
not set a threshold below which a decline in an individual factor cannot be indicative of injury. On this
basis, we are of the view that merely by invoking the limited extent of the decline in sales, the
United Arab Emirates has not established that the NTC acted inconsistently with Article 3.4.
7.387. We now turn to the alternative explanations for the domestic industry's decline in sales on
the domestic market, which the United Arab Emirates argues that the NTC failed to take into account.
7.388. Beginning with export sales, we note that during the investigation Taghleef noted that the
domestic producer's total sales had grown during the POI , but argued that from January 2009 to
June 2010 the company's export sales had grown at the expense of its domestic sales. 532 Taghleef
relied upon the report on the domestic producer's verification visit, which indeed supported
Taghleef's statement.533
7.389. Pakistan argues that the NTC considered the e ffect of the domestic industry's export sales
in its non-attribution analysis.534 We note that in the context of its non-attribution analysis, the NTC
considered the domestic industry's export sales as follows:
Export performance of the domestic industry w as better in 2009 and 2010. Therefore,
this to some extent diluted the effects of dumping and was not a factor causing injury
to domestic industry.535
7.390. This statement is premised on the assumption by the NTC that injury was the effect of
dumped imports , and asserts that increased export sales diluted the injurious effects of those
dumped imports. It does not reflect a consideration of whether, in the first place, the decrease in
domestic sales was "the impact of the dumped imports" , as envisaged by Article 3.4, or whether it
rather reflected a shifting of sales to export markets.
7.391. Given the above, the record in this dispute indicates that the NTC did not address information
and argument that Taghleef submitted to the NTC that suggested that the decline in domestic sales
could be attributed to factors other than dumping. In order to comply with the obligations of
Articles 3.1 and 3.4, the NTC would have been required to take into account this alternative
explanation in its evaluation of whether the decline in sales was "the impact of the dumped imports".
By not doing so, the NTC acted inconsistently with the requirement to make an "objective

528 United Arab Emirates' first written submission, para. 393; second written submission, para. 188.
529 United Arab Emirates' first written submission, para. 395 (referring to Report on Tri-Pack Films
verification visit, (Exhibit ARE-23), section 10; 2009 Tri-Pack Films' Annual Report, (Exhibit ARE-24b), p. 17);
530 Pakistan's first written submission, paras. 3.453-3.454; second written submission,
paras. 2.226-2.227.
531 Pakistan's first written submission, para. 3.455.
532 Taghleef's post-hearing submission, (Exhibit ARE-13), p. 21 (referring to Report on Tri-Pack Films
verification visit, (Exhibit ARE-23), section 10).
533 Report on Tri-Pack Films verification visit, (Exhibit ARE-23), section 10.
534 Pakistan's first written submission, para. 3.456 (referring to Report on final determination (2013),
535 Report on final determination (2013), public version, (Exhibit ARE-2), para. 48.1(vi).

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examination" of "the impact of the dumped imports on the domestic industry", pursuant to
Articles 3.1 and 3.4.
7.392. Next, the United Arab Emirates argues that other explanations for the domestic
industry's decline in sales were set forth in the domestic producer's annual report and raised by
Taghleef during the investigation536, but the NTC did not take these into account, either. Specifically,
the United Arab Emirates notes that in its annual report, the domestic producer indicated that it
"struggled to survive" in 2009 because of "deteriorating economy, electricity crisis, rupee
devaluation, uncertain political situation and security conditions", compounded by "cheap availability
of smuggled BOPP film … directly hitting our domestic sales and margins".537
7.393. Again, this evidence suggested that the decline in sales might not have been "the impact of
the dumped imports" and yet the NTC neither acknowledged nor addressed it. In our view, this is
not consistent with the requirement for an objective examination of the impact of the dumped
imports, set forth in Articles 3.1 and 3.4.538
7.8.2.2.4 Productivity
7.394. The United Arab Emirates argues that the NTC's evaluation of the "productivity" factor was
inconsistent with Articles 3.1 and 3.4 for two reasons. First, the United Arab Emirates asserts that
the NTC did not make a finding that the domestic industry suffered injury on account of productivity,
but then listed this factor as supporting the overall injury determination. 539 Second, the
United Arab Emirates asserts that in evaluating productivity the NTC failed to address the constituent
factors of productivity, namely production and employment540: although the increase in employment
appeared to explain the decrease in productivity, the NTC assumed that this was due to the dumped
imports instead.541
7.395. In response to the United Arab Emirates' first argument, Pakistan maintains that it was clear
from the "content and thrust" of the NTC's analysis that the NTC considered the decline in
productivity to be indicative of injury.542 In response to the United Arab Emirates' second argument,
Pakistan maintains that the decline in productivity c oincided with an increase in dumped imports,
and therefore "it was not necessary for the NTC to repeat" the "crucial role played" by the increase
in dumped imports during the "most significant part of the POI"543; and that the NTC was not required
to analyse the constituents of productivity in its evaluation of the factor "productivity".544
7.396. We begin by considering the United Arab Emirates' second argument, namely that the NTC
erred by disregarding the fact that the decrease in productivity was directly related to the increase
in number of employees of the domestic industry.
7.397. The NTC observed that productivity declined through the P OI545, and then included the
"negative effect on productivity " in the list of factors that supported its findings that the domestic
industry had suffered material injury.546
7.398. We note that the NTC calculated productivity as production per worker. 547 During the POI,
the level of production remained rather stable, whereas the number of employees increased steadily,

536 Taghleef's post-hearing submission, (Exhibit ARE-13), pp. 21-22 (referring to 2009 Tri-Pack
Films' Annual Report, (Exhibit ARE-24b), p. 17).
537 2009 Tri-Pack Films' Annual Report, (Exhibit ARE-24b), p. 17.
538 We have addressed at paras. 7.381-7.382 above Pakistan's objection that the annual report refers to
the domestic producer's consolidated business.
539 United Arab Emirates' first written submission, para. 407.
540 United Arab Emirates' first written submission, para. 409.
541 United Arab Emirates' first written submission, paras. 407-412; second written submission,
paras. 170 and 196.
542 Pakistan's first written submission, para. 3.468.
543 Pakistan's first written submission, para. 3.469.
544 Pakistan's first written submission, para. 3.470.
545 Report on final determination (2013), public version, (Exhibit ARE-2), paras. 43.2 and 43.4.
546 Report on final determination (2013), public version, (Exhibit ARE-2), paras. 47.1(vii) and 50(vi);
Report on final determination (2013), (Exhibit PAK-1 (BCI)), table-XX and para. 47.2(vii).
547 Report on final determination (2013), public version, (Exhibit ARE-2), p. 45.

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directly resulting in the decrease in productivity observed by the NTC. 548 Yet, in discussing
productivity, the NTC did not acknowledge the increase in the number of employees, and did not
consider how it should affect its consideration of "productivity" as "the impact of the dumped
imports".
7.399. Pakistan argues that the NTC based this part of its analysis on productivity alone, not its
constituent parts (production and employment), which it examined separately. 549 This argument is
unconvincing. Indeed, the NTC did observe (in the same section in which it discussed productivity)
that employment increased, and that the domestic industry did not suffer injury o n account of
employment.550 However, when observing (in the sentence that immediately followed) that during
the same period productivity decreased, it failed even to acknowledge the link between the increase
in number of employees and the decrease in productivity.
7.400. This failure to address evidence that conflicted directly with its own reading of the data was
not consistent with the NTC's duty to carry out an objective examination of the impact of dumped
imports under Articles 3.1 and 3.4. Having reached this finding, we do not address the
United Arab Emirates' argument that the NTC did not even make a finding that productivity was a
negative injury factor.
7.8.2.2.5 Salaries and wages
7.401. The United Arab Emirates submits that the NTC's evaluation of salaries and wages was
inconsistent with Articles 3.1 and 3.4 for two reasons. First, the United Arab Emirates asserts that
the NTC did not make a finding as to whether the increase in salaries and wages observed during
the POI was indicative of injury, but listed this factor as supporting the overall injury
determination.551 Second, the United Arab Emirates asserts that the NTC failed to explain why it
considered an increase in salaries and wages to be indicative of injury.552
7.402. Pakistan responds, first, that the totality of the NT C's analysis of the evolution of salaries
and wages reveals that the NTC effectively concluded that the trends were indicative of injury 553;
and, second, that an increase in salaries and wages increases the COP of a company, and is therefore
indicative of injury to the domestic industry.554
7.403. We begin with the United Arab Emirates' second line of argument, namely that the NTC failed
to explain how an increase in salaries and wages could be indicative of injury. We note that in its
Report on final determination, the NTC found that salaries and wages per unit of production increased
across the POI.555 Without more, the NTC then listed "negative effect on salaries & wages" as one
of the factors on account of which the domestic industry had suffered material injury.556
7.404. Thus, the NTC did not provide any discussion or analysis of how the increase in salaries and
wages was indicative of injury. Yet, i ncreased wages and salaries may be a sign of a prosperous
domestic industry. Thus, an objective examination under Articles 3.1 and 3.4 would have required
at least an explanation of how an apparently positive trend could be regarded as supporting a finding
of injury.
7.405. Pakistan asserts t hat the NTC considered increases in salaries and wages per unit of
production to be indicative of injury because they increased the COP. However, Pakistan does not
point us to any part of the NTC's record from which we can infer that the explanation it pre sents
was the NTC's own reasoning.

548 Report on final determination (2013), (Exhibit PAK-1 (BCI)), table-XVII.
549 Pakistan's first written submission, para. 3.470.
550 Report on final determination (2013), public version, (Exhibit ARE-2), paras. 43.2 and 43.4.
551 United Arab Emirates' first written submission, para. 414.
552 United Arab Emirates' first written submission, paras. 415-416; second written submission,
paras. 170 and 197.
553 Pakistan's first written submission, para. 3.473.
554 Pakistan's first written submission, para. 3.474; response to Panel question No. 70.
555 Report on final determination (2013), public version, (Exhibit ARE-2), paras. 43.3-43.4. The
confidential version of the report indicates the magnitude of the increase.
556 Report on final determination (2013), public version, (Exhibit ARE-2), para. 47.1(viii); Report on final
determination (2013), (Exhibit PAK-1 (BCI)), table-XX and para. 47.2(viii).

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7.406. Therefore, we find that the United Arab Emirates has established that the NTC's evaluation
of salaries and wages was inconsistent with Articles 3.1 and 3.4. We therefore do not address the
United Arab Emirates' argument that the NTC did not even make a finding that salaries and wages
were a negative injury factor.
7.8.2.2.6 Return on investment
7.407. The United Arab Emirates argues that the NTC's evaluation of the domestic
industry's "return on investment" (ROI) was inconsistent with Articles 3.1 and 3.4 because the NTC
failed to offer any analysis or explanation of the data and of how the data supported its conclusion
of material injury; the narrative description of the ROI data in the Report on final determination was
inconsistent with the data presented in the same report; and the data in the Report on final
determination were inconsistent with the data in the Report on the verification visit.557
7.408. Pakistan responds that the NTC's evaluation was adequate because the data showed that
the ROI decreased during the POI558; that the internal inconsistency in the NTC's report was due to
a typographical error559; and that although there was a discrepancy with the data in the verification
report, that discrepancy had no impact on the NTC's analysis b ecause both datasets showed a
decrease in the ROI starting in 2009.560
7.409. We note that as set out in the NTC's Report on final determination, the NTC's analysis was
limited to the following561: the NTC listed a figure for each year's ROI as provided by the domestic
industry, stated that ROI "decreased during the POI as compared to … 2007 and 2008", and
"concluded that the domestic industry suffered material injury on account of" this factor.562
7.410. As we observed above563, merely setting out data and making conclusory statements is not
sufficient for purposes of Articles 3.1 and 3.4. The NTC provided no explanation, let alone a reasoned
and adequate one, of how the data supported its conclusion that the domes tic injury had suffered
injury on account of the ROI, and thus acted inconsistently with Articles 3.1 and 3.4. Having reached
this finding, we do not consider it necessary to address the United Arab Emirates' arguments
regarding the inconsistencies within the Report on final determination and between the data in the
Report on final determination and the data in the Report on the verification visit.
7.8.2.2.7 Cash flow
7.411. The United Arab Emirates challenges the NTC's evaluation of "cash flow" as inconsistent with
Articles 3.1 and 3.4 on four grounds. First, the United Arab Emirates points out that cash flow dipped
in 2008 but then returned to its 2007 level in 2009, and while decreasing again in the first half
of 2010, it was still greater than in 2008; yet the NTC failed to "acknowledg[e] these trends in a fair
and complete manner", finding injury merely on the basis of a "significant decrease" in cash flow in
January to June 2010.564 Second, the United Arab Emirates points out that the industry's cash flow
position worsened when the allegedly dumped imports decreased, and vice versa, yet the NTC failed
to explain why it nonetheless considered the changes in cash flow to be "the impact of the dumped
imports".565 Third, the United Arab Emirates argues that the cash flow data relied upon by the NTC
are contradicted by the data in the domestic producer's annual reports. 566 Fourth, the

557 United Arab Emirates' first written submission, paras. 420-422.
558 Pakistan's first written submission, para. 3.477.
559 The NTC report states that the ROI "increased during year 2009", though the data in the report show
the opposite. (Report on final determination (2013), public version, (Exhibit ARE-2), table-XVIII and
para. 44.2). According to Pakistan, "increased" was a typographical error and the report should read
"decreased". (Pakistan's first written submission, para. 3.477).
560 Pakistan's response to Panel question No. 72.
561 In addition to the sentence that Pakistan argues contained a typographical error, and which was
indeed inconsistent both with the data in the report and with Pakistan's current arguments. See fn 559 above.
562 Report on final determination (2013), public version, (Exhibit ARE-2), paras. 44.1-44.3.
563 See para. 7.351 above.
564 United Arab Emirates' first written submission, para. 426.
565 United Arab Emirates' first written submission, paras. 426-427; second written submission,
paras. 170 and 200.
566 United Arab Emirates' first written submission, para. 428 (referring to 2009 Tri-Pack Films' Annual
Report, (Exhibit ARE-24b), p. 36; and 2010 Tri-Pack Films' Annual Report (excerpt), (Exhibit ARE-26), p. 18);
second written submission, para. 170.

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United Arab Emirates points out that the NTC changed its conclusion on cash flow be tween the
preliminary and final determination, based on the same data and with no explanation.567
7.412. Pakistan responds that: there was a time lag between the increase in dumped imports and
the decrease in cash flow because of the "mechanics of contractual interaction"568; the NTC used the
domestic producer's cash flow from operating activities as set out in the annual reports 569; and the
discrepancy between preliminary and final determination was due to the fact that, the NTC had
inadvertently failed to include the 2010 cash flow data in its preliminary determination.570
7.413. We begin with the United Arab Emirates' first argument, i.e. in summary, that the NTC failed
to acknowledge trends "in a fair and complete manner". We note that, as the United Arab Emirates
points out, the data in the Report on final determination showed a decidedly positive trend for cash
flow in 2009, the year in which dumped imports had increased. 571 Yet the NTC dismissed this fact
merely on the basis that there had been a "significant decrease" in cash flow in the first half
of 2010.572 When viewed in the context of its overall injury determination, in which the NTC
systematically decided not to rely on data for January to June 2010 and to focus instead on data
for 2009, the NTC's choice to do the opposite in the context of cash flow, an d to provide no
explanation for doing so, does not constitute an "objective examination" under Articles 3.1 and 3.4.
7.414. We now turn to the United Arab Emirates' second – and related – argument, namely that
the NTC failed to evaluate "the impact of the dumped imports" on cash flow. We note that, as the
United Arab Emirates points out, the NTC's data show that cash flow improved when allegedly
dumped imports increased, and vice versa. Yet, the NTC entirely failed to contend with this fact.
Pakistan argues that the decrease in cash flow (observed in January to June 2010) lagged behind
the increase in dumped imports (observed in 2009) because of the "mechanics of contractual
interactions"573, but has been unable to point us to anything in the record evidencing that this was
the NTC's reasoning. We consider that the NTC's failure to contend, at all, with evidence
contradicting its conclusion that the negative trends in cash flow were the impact of the dumped
imports does not constitute an objective examination as required by Articles 3.1 and 3.4.
7.415. The United Arab Emirates' third argument is that the cash flow data in the Report on final
determination is contradicted by the data in the domestic producer's annual reports, which " show
that its net cash flows increased considerably and consistently through 2009 and 2010".574 Pakistan
responds that it is not certain which cash flow figures the United Arab Emirates is referring to, that
the NTC relied on cash flow from operating activities and that, "for instance", one can verify the
accuracy of the figures for 2008 and 2009 from the 2009 annual report.575 However, the issue that
the United Arab Emirates points to is that while the NTC relied on a decrease in cash flow in 2010,
which apparently led it to disregard the increas e in 2009, the annual report for 2010 shows an
increase in cash flow in both years. 576 Although the figures in the annual report related to the full
year 2010, the fact that they showed an overall increase should have been a further reason for the
NTC to explain its choice to rely so heavily on the decrease in cash flow during the first half of 2010,
whereas, as seen, the NTC gave no explanation at all for its choice. Therefore, these facts confirm
our finding that the NTC failed to perform an objective exam ination as required by Articles 3.1
and 3.4.
7.416. Having found that the NTC's consideration of cash flows was inconsistent with Articles 3.1
and 3.4, we do not consider it necessary to address the United Arab Emirates' further argument that

567 United Arab Emirates' first written submission, para. 429.
568 Pakistan's first written submission, para. 3.482; response to Panel question No. 68.
569 Pakistan's first written submission, para. 3.483.
570 Pakistan's response to Panel question No. 69.
571 Report on final determination (2013), public version, (Exhibit ARE-2), table-XVI.
572 Report on final determination (2013), public version, (Exhibit ARE-2), para. 42.2. Moreover, as the
United Arab Emirates also points out, the NTC's own data show that cash flow during this last half year was still
greater than in full year 2008. (Report on final determination (2013), public version, (Exhibit ARE-2),
table-XVI; Report on final determination (2013), (Exhibit PAK-1 (BCI)), table-XVI).
573 Pakistan's first written submission, para. 3.482.
574 United Arab Emirates' first written submission, para. 428.
575 Pakistan's first written submission, para. 3.483.
576 2010 Tri-Pack Films' Annual Report (excerpt), (Exhibit ARE-26), p. 18.

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the NTC failed to explain the fact that it reached opposite conclusions on cash flow in the preliminary
and final determinations, based on the same data.
7.8.2.3 Whether the NTC failed to make a holistic assessment of the state of the industry
7.417. The United Arab Emirates argues that th e NTC failed to make a holistic assessment of the
state of the domestic industry, explaining why the facts taken together supported its finding of
material injury despite conflicting evidence. 577 The United Arab Emirates points out that: the NTC
found that six of the factors it evaluated under Article 3.4 were not indicative of injury578; the other
injury factors displayed only "minor negative developments" 579; the domestic market share of the
domestic industry was consistently between 80% and 85%, sales were consistently high despite
reduced consumption, and ex-factory prices and production were high580; and yet the NTC provided
no overall analysis explaining why, in light of these facts taken together, it determined that the
domestic industry was suffering material injury.
7.418. Pakistan responds that: the United Arab Emirates is engaging in a "numbers game" 581; the
NTC acknowledged the positive factors582; an authority is not required to dissect every positive factor
to explain why it does not affect its finding of injury583; certain factors play a "particularly pronounced
role in any injury analysis", such as profits, cash flow, market share and domestic sales, and these
all trended negatively in this case584; and the NTC included volume and price effects under Article 3.2
in its holistic analysis and these further strengthened the finding of material injury.585
7.419. To assess the question before us, we turn to the NTC's determination. As both parties point
out, the NTC found that the domestic industry was not suffering injur y on account of six of the
factors it examined. In subsequently concluding that the domestic industry had suffered material
injury, the NTC either did not refer to these factors at all (in the public version of its Report on final
determination) or listed them as factors on account of which the domestic industry had not suffered
material injury (in the confidential version of its report). 586 However, there is no indication
whatsoever of how the NTC took into account these positive factors in reaching its overall conclusion.
7.420. Article 3.4 expressly provides that no particular factor "can … necessarily give decisive
guidance": there is no requirement for all factors, or a defined number of factors, to display negative
trends. However, faced with evidence that co ntradicts its conclusions, an investigating authority
must at least explain how it took that evidence into account in reaching its conclusions.587
7.421. In this case, the NTC failed to provide any explanation. Pakistan argues that the factors
displaying negative trends were those that play a particularly important role in an injury analysis,
but this argument finds no reflection in the NTC's reasoning. Pakistan also argues that the
NTC's conclusions were strengthened by its consideration of the volume and price e ffects pursuant
to Article 3.2, but this does not excuse an authority from explaining how it has taken into account
evidence that conflicts with its ultimate conclusions, here in the form of a number of injury factors
displaying positive trends.
7.422. We therefore find that by failing to provide any explanation – or even indication – of how it
took into account the factors displaying positive trends in reaching its conclusion that the domestic
industry had suffered material injury, the NTC failed to perform an o bjective examination based on

577 United Arab Emirates' first written submission, paras. 432-439.
578 United Arab Emirates' first written submission, para. 433.
579 United Arab Emirates' first written submission, para. 434.
580 United Arab Emirates' first written submission, para. 436.
581 Pakistan's first written submission, para. 3.487.
582 Pakistan's first written submission, para. 3.490.
583 Pakistan's first written submission, para. 3.489.
584 Pakistan's first written submission, paras. 3.492-3.493.
585 Pakistan's first written submission, para. 3.491.
586 Report on final determination (2013), public version, (Exhibit ARE-2), paras. 47.2-47.5; Report on
final determination (2013), (Exhibit PAK-1 (BCI)), table-XX. This table does not appear in the public version of
the Report on final determination.
587 See also Panel Report, Thailand – H-Beams, para. 7.249, calling for a "compelling explanation". See
also Panel Report, China – Cellulose Pulp, para. 7.129.

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positive evidence of the impact of the dumped imports on the domestic industry, and therefore acted
inconsistently with Articles 3.1 and 3.4.
7.8.3 Conclusion under Articles 3.1 and 3.4
7.423. In sum, we find that the NTC acted inconsistently with Articles 3.1 and 3.4, because it failed
to evaluate the magnitude of the margin of dumping; it failed to carry out an objective examination
of seven of the injury factors and to provide a reasoned and adequate explanation of its finding that
the negative trends in those factors were the impact of the dumped imports; and it failed to explain
how it took into account the positive trends in its evaluation of the overall impact of the dumped
imports on the domestic industry.
7.9 Causation: Articles 3.1 and 3.5 of the Anti-Dumping Agreement
7.424. The United Arab Emirates claims that the NTC's causation analysis was inconsistent with
Articles 3.1 and 3.5 based on three sets of arguments: first, because it was based on findings that
were inconsistent with Articles 3.1, 3.2, and 3.4588; second, because the NTC failed to ensure that
it would not attribute to the dumped imports the injury caused by other known factors, namely the
global financial crisis and factors set out in the domestic produc er's annual report589; and third,
because of other flaws in the causation analysis.590
7.425. Pakistan responds that: first, inconsistencies with Articles 3.2 and 3.4 do not necessarily
render a causation analysis inconsistent with Article 3.5591; second, the NTC a scertained that the
global financial crisis was not injuring the domestic industry 592 and, as for the other factors,
Taghleef's had not "substantiate[d] its assertions" that they were injuring the domestic industry593;
and third, the United Arab Emirates' other allegations concerning the NTC's causation analysis are
unfounded.594
7.426. As set out below, we find that the United Arab Emirates has established that the
NTC's causation analysis was inconsistent with Articles 3.1 and 3.5 of the Anti-Dumping Agreement
based on the first two sets of arguments set out above, and we do not address the third set of
arguments made by the United Arab Emirates.
7.427. We structure our discussion as follows: first, we set out the applicable requirements of
Article 3.5 (section 7.9.1), having already discussed Article 3.1 in section 7.6.1 above; second, we
apply those requirements to the facts of this case to assess whether Pakistan acted inconsistently
with Articles 3.1 and 3.5 (section 7.9.2); and third, we conclude that Pakistan acted inconsistently
with those provisions (section 7.9.3).
7.9.1 The applicable requirements of Article 3.5
7.428. Article 3.5 of the Anti-Dumping Agreement provides:
It must be demonstrated that the dumped imports are, through the effects of dumping,
as set forth in paragraphs 2 and 4, causing injury within the meaning of this Agreement.
The demonstration of a causal relationship between the dumped imports and the injury
to the domestic industry shall be based on an examination of all relevant evidence
before the authorities. The authorities shall also examine any known factors other than
the dumped imports which at the same time are injuring the domestic industry, and the

588 United Arab Emirates' first written submission, paras. 460-462.
589 United Arab Emirates' first written submission, paras. 469-473; second written submission,
paras. 215-221.
590 United Arab Emirates' first written submission, paras. 464-465; opening statement at the
first meeting of the Panel, paras. 69-70; second written submission, paras. 213-214; and
written opening statement, paras. 91-92.
591 Pakistan's first written submission, paras. 3.515 -3.516.
592 Pakistan's first written submission, paras. 3.541-3.545. See also Pakistan's response to Panel
question No. 75.
593 Pakistan's first written submission, paras. 3.547-3.550; second written submission,
paras. 2.277-2.284.
594 Pakistan's first written submission, paras. 3.519-3.531. See also Pakistan's second written
submission, paras. 2.271-2.275.

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injuries caused by these other factors must not be attributed to the dumped imports.
Factors which may be relevant in this respect include, inter alia, the volume and prices
of imports not sold at dumping prices, contraction in demand or changes in the patterns
of consumption, trade restrictive practices of and competition between the foreign and
domestic producers, developments in technology and the export pe rformance and
productivity of the domestic industry.
7.429. Article 3.5 thus requires Members to ascertain whether the dumped imports are causing
injury to the domestic industry ("causation") and, as part of that causation analysis, it also requires
Members to ensure that they do not attribute to dumped imports the injury caused by known factors
other than dumping ("non-attribution").
7.430. The first sentence of Article 3.5 requires that an investigating authority demonstrate that
dumped imports are, "through the effects of dumping, as set forth in paragraphs 2 and 4", causing
injury. This text thus requires the authority to bring together the findings arrived at under
Articles 3.2 and 3.4 to ascertain whether "the dumped imports are … causing injury".595
7.431. The second se ntence of Article 3.5 requires the authorit y to demonstrate the causal
relationship between the dumped imports and injury "based on an examination of all relevant
evidence before [it]".
7.432. The third sentence of Article 3.5 requires an investigating authority to examine "any known
factors" that are causing injury at the same time as dumped imports, and ensure that it does not
attribute the injury caused by those other factors to the dumped imports. The fourth sentence of
Article 3.5 lists some of the factors other than dumped imports that "may be relevant", and makes
it clear, by using the words "include, inter alia", that the list is not exhaustive.
7.433. Article 3.5 requires an authority to examine injurious factors other than dumping only when
the factors are "known" to them. The ordinary meaning of "known" includes "[t]hat has become an
object of knowledge; that is or has been apprehended mentally" and "[t]hat is known of; known to
exist; that is or has come within the scope of knowledge".596 Thus, for a factor to be "known" it must
have "come within the scope of knowledge" of the authority, which is typically the case when
interested parties have substantiated the existence of such a factor during the anti -dumping
proceedings.597 Consistent with this ordinary meaning, it has been observed in the past that "a factor
is either 'known' to the investigating authority, or it is not 'known'; it cannot be 'known' in one stage
of the investigation [such as in the dumping and injury analyses] and unknown in a subsequent
stage [such as the causation analysis]".598
7.434. Once the other factors are "known" to it, the authority must "examine" them and "not …
attribute[] to the dumped imports" "the injuries caused by these other factors".599 This requires the
authority to identify, and "separat[e] and distinguish[,] the injurious effects of the other factors from
the injurious effects of the dumped imports" 600, because unless it does so, the authority will not
have a rational basis to ensure that it does not attribute those injuries to the dumped imports.601
7.435. Article 3.5 does not set out a specific methodology for investigating authorities to follow.
However, the methods applied by an investigating authority must comport with the overarching
obligation in Article 3.1 to undertake an objective examination based on positive evidence602, which
we have discussed in section 7.6.1 above.

595 See also e.g. Appellate Body Report, China – GOES, para. 128.
596 Oxford Dictionaries online, definition of "known"
https://www.oed.com/search?searchType=dictionary&q=known&_searchBtn=Search (accessed
27 October 2020), adj., meanings A1a and A1b.
597 See also, a contrario, Panel Reports, China – X-Ray Equipment, para. 7.267; China – Autos (US),
598 Appellate Body Report, EC – Tube or Pipe Fittings, para. 178.
599 Article 3.5 of the Anti-Dumping Agreement.
600 Appellate Body Report, US – Hot-Rolled Steel, para. 223.
601 See also e.g. Appellate Body Report, US – Hot-Rolled Steel, paras. 223 and 226.
602 See also Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.141.

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7.9.2 Whether the NTC's examination of causation was inconsistent with Articles 3.1
and 3.5
7.436. As we outlined at paragraph 7.424 above, the United Arab Emirates argues that the NTC
acted inconsistently with Articles 3.1 and 3.5 on three grounds. Below, we discuss , first, whether
the United Arab Emirates has established that the NTC's causation analysis was inconsistent with
Articles 3.1 and 3.5 because it was based on findings that were, in turn, inconsistent with
Articles 3.1, 3.2, and 3.4 (section 7.9.2.1). Second, we discuss whether the United Arab Emirates
has established that the NTC's causation analysis was inconsistent with Articles 3.1 and 3.5 also
because the NTC failed to carry out the necessary non-attribution analysis (section 7.9.2.2). Having
found that the Un ited Arab Emirates has established inconsistencies with Articles 3.1 and 3.5 on
both these grounds, we do not proceed to examine the United Arab Emirates' additional arguments
against the NTC's causation analysis (see section 7.9.2.3).
7.9.2.1 Whether the NTC's reliance on findings that were inconsistent with Articles 3.1,
3.2, and 3.4 renders its causation analysis inconsistent with Articles 3.1 and 3.5
7.437. The United Arab Emirates argues that because the NTC relied, in its causation analysis, on
findings that are inconsistent with Articles 3.1, 3.2, and 3.4, the NTC's causation analysis is
consequently inconsistent with Articles 3.1 and 3.5.603
7.438. Pakistan responds that inconsistencies in underlying analyses do not necessarily render the
evaluation of causation inconsistent with Article 3.5, and that whether they do give rise to an
inconsistency with Article 3.5 must be determined case by case.604
7.439. We recall that Article 3.5 requires an investigating authority to demonstrate that dumped
imports are causing injury "through the effects of dumping, as set forth in paragraphs 2 and 4",
which indicates that the examination of causation is based, among others, on the findings arrived at
under Articles 3.2 and 3.4.
7.440. We also note that the NTC's findings of the volume of dumped imports, the effects of those
imports on prices, and the impact of the dumped imports on the domestic industry are integral to
its causation analysis. In its causation analysis, the NTC found a "strong time correlation" between
the increased volume of dumped imports and injury to the domestic industry, particularly to each of
three injury factors – market share, domestic sales and profitability. In its causation analysis, the
NTC also took into account its finding that the dumped imports had depressed prices to a significant
degree.605
7.441. We have found above606 that the NTC's examination of each of these underlying factors was
inconsistent with Articles 3.1, 3.2, and 3.4. Conse quently, those errors undermine the
NTC's determination of causation. On this basis, we find that the NTC's causation analysis is
inconsistent with Articles 3.1 and 3.5.
7.9.2.2 Whether the NTC failed to ensure that injury caused by other factors was not
attributed to the dumped imports
7.442. We now turn to the United Arab Emirates' arguments relating to non -attribution. The
United Arab Emirates argues that the NTC failed to ensure that the injurious effects of (a) the global
financial crisis of 2009 607, and (b) all other factors identified by Taghleef during the domestic
proceedings were not attributed to the dumped imports.608 We address these two in turn.

603 United Arab Emirates' first written submission, paras. 460-462.
604 Pakistan's first written submission, paras. 3.515-3.516.
605 Report on final determination (2013), public version, (Exhibit ARE-2), para. 48.2.
606 See paras. 7.287, 7.322, 7.329, and 7.344.
607 United Arab Emirates' first written submission, paras. 468-470; second written submission,
para. 221.
608 United Arab Emirates' first written submission, paras. 471-472.

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7.9.2.2.1 The global financial crisis
7.443. It is not disputed that interested parties had raised the global financial crisi s of 2008
and 2009 as a factor causing injury to the domestic industry.609
7.444. The United Arab Emirates argues that the NTC failed to adequately evaluate whether the
global financial crisis was injuring the domestic industry, and to provide a reasoned and adeq uate
explanation of how it ensured that the injury caused by the global financial crisis was not attributed
to the dumped imports.610 The United Arab Emirates points out that the NTC's analysis was limited
to an assertion that domestic demand had increased slightly in 2009, and that this demonstrated
that the global financial crisis had not injured the domestic industry. The United Arab Emirates
further points out that the NTC failed to evaluate the injurious effects of the global financial crisis on
prices, particularly the price declines observed in 2009.611
7.445. Pakistan responds that it was reasonable for the NTC to conclude that there was no evidence
that the global financial crisis had "any discernible effect" on the Pakistani market, given that th e
domestic market experienced minor fluctuations in 2007 and 2008, and "ultimately nudge[d]
upwards"612 in 2009, "at the height of the global crisis".613
7.446. To assess the question before us, we turn to the NTC's determination. The NTC's entire
discussion of the effect of the global financial crisis reads:
It may be pointed out no other factor was pointed out by any interested party which
may be causing injury to domestic industry except the international crisis during 2008
and 2009. It may be noted from Table – XI that market share [sic] of BOPP Film reduced
marginally but it increased during 2009. Hence this factor cannot be considered
effecting domestic market.614
7.447. We understand that the NTC's reference to "market share" was a clerical error, and that the
intended reference was to the size of the domestic market 615, which, in that year, increased
by 0.98%.616 Thus, the NTC took the view that the global financial crisis could not be considered to
affect the domestic market solely on the basis that the size of the domestic market had increased
by 0.98% in 2009, after fluctuating in the earlier part of the POI.
7.448. First, we note that the NTC provided no explanation of why the trends in the size of the
domestic market led it to exclude that the global financial crisis had any injurious effect on the
domestic market.
7.449. Second, certain exchanges between the interested parties and the NTC during the domestic
proceedings indicate that the NTC was aware of the opposite, i.e. of the fact that the global financial
crisis had had an injurious effect on prices. Specifically, during the domestic proceedings, Taghleef
submitted that "the slight change [in the domestic industry's prices] in 2009 was due to the global
financial crisis"617 and "the reduction in prices [in 2009] was experienced by industries worldwide
due to the deteriorating market conditions".618 The NTC responded that it had "determined that price
depression faced by the domestic industry was due to dumped imports and other global economic

609 In its Report on final determination, the NTC describes it as the only other factor raised. (Report on
final determination (2013), public version, (Exhibit ARE-2), para. 48.1).
610 United Arab Emirates' first written submission, para. 468.
611 United Arab Emirates' first written submission, para. 470; second written submission, para. 221.
612 Pakistan's first written submission, paras. 3.542-3.543 and 3.545.
613 Pakistan's response to Panel question No. 75. See also Pakistan's written opening statement,
para. 92.
614 Report on final determination (2013), public version, (Exhibit ARE-2), para. 48.1.
615 See e.g. Pakistan's first written submission, para. 3.542; and United Arab Emirates' first written
submission, para. 470.
616 Report on final determination (2013), public version, (Exhibit ARE-2), para. 37.2.
617 Taghleef's post-hearing submission, (Exhibit ARE-13), p. 16.
618 Report on final determination (2013), public version, (Exhibit ARE-2), annexure-III, p. 66. See also
Taghleef's post-hearing submission, (Exhibit ARE-13), p. 18; and Taghleef's comments on statement of
essential facts, (Exhibit ARE-25), section 1(e). Taghleef also stated that "the price of the Domestic Like Product
recovered to previous levels as the effects of the global financial crisis lessened in the first half of 2010".
(Taghleef's comments on statement of essential facts, (Exhibit ARE-25), section 1(e)).

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developments".619 In other words, in discussing price effects under Article 3.2, the NTC went so far
as acknowledging that "global economic developments" had depressed the domestic prices.
However, when assessing causation 620, the NTC then ruled out that the global financial crisis had
any effect at all and failed to even consider its injurious effects on prices.
7.450. In its non -attribution analysis, the NTC thus failed to identify – let alone separate and
distinguish – the injurious effects of the global financial crisis, although the crisis was a known factor
and although elsewhere in its analysis the NTC had acknowledged that "global economic
developments" had depressed the domestic industry's prices. It provided a bare assertion that the
trends in the size of the domestic market showed the financial crisis had not affected the domestic
industry, with no explanation. By so doing, the NTC acted inconsistently with the requirements of
non-attribution and objective examination based on positive evidence set out in Articles 3.5 and 3.1.
7.9.2.2.2 Other factors set out in the domestic producer's annual report and identified by
Taghleef
7.451. We recall that the NTC stated in its determination that the only other known factor that may
have been causing injury to the domestic industry was the global financial crisis.621
7.452. The United Arab Emirates argues that other known factors were, individually or collectively,
injuring the domestic industry at the same time as dumped imports. Those other known factors were
the deteriora ting economy, electricity crisis, rupee devaluation, uncertain political situation,
heightened security conditions, and cheap availability of smuggled goods. The United Arab Emirates
argues that those factors were set out in the 2009 annual report of the d omestic producer, which
was on the NTC's record in the domestic proceedings, and that Taghleef had specifically pointed to
them, and yet the NTC disregarded them.622
7.453. Pakistan concedes that the NTC did not undertake a non -attribution analysis for these
factors. However, Pakistan contends that the NTC was not required to make any finding with respect
to these factors because Taghleef had failed to provide sufficient arguments and evidence to the
effect that these other factors were injuring the domestic indust ry.623 Pakistan maintains that the
factors in the annual report were "generally-worded", and without further explanations or evidence
from Taghleef, it was not clear how those factors injured the domestic industry. 624 Pakistan also
argues that the statements in the domestic producer's annual report were not relevant because they
were not made in the context of the domestic anti-dumping proceedings625, and because the annual
report related to the domestic producer 's consolidated business, which was not limited to BOPP
film.626 Thus, in essence, Pakistan is arguing that the factors in question were not known to the NTC
as other factors causing injury to the domestic industry.

619 Report on final determination (2013), public version, (Exhibit ARE-2), annexure-III, p. 66
(emphasis added). See also ibid. annexure-IV, p. 72.
620 As noted at para. 7.433 above, when a factor is "known" to the authority in the context of one part
of its analysis, it cannot then be regarded as "unknown" in the context of the causation analysis.
621 Report on final determination (2013), public version, (Exhibit ARE-2), para. 48.1.
622 United Arab Emirates' first written submission, paras. 471-472 (referring to Taghleef's post-hearing
submission, (Exhibit ARE-13), pp. 21-22; and Report on final determination (2013), public version,
(Exhibit ARE-2), para. 48.1); opening statement at the first meeting of the Panel, para. 71; and second written
submission, paras. 215-221. See also United Arab Emirates' response to Pakistan's written opening statement,
paras. 38 and 40.
623 Pakistan's responses to Panel question Nos. 73 and 74 (referring to Appellate Body Report, EC –
Tube or Pipe Fittings, paras. 177-178; and Panel Reports, China – X-Ray Equipment, para. 7.267; EU – Fatty
Alcohols (Indonesia), para. 7.188); second written submission, paras. 2.277-2.279; written opening
statement, paras. 87-89; and response to United Arab Emirates' written opening statement, paras. 56-61.
624 Pakistan's response to United Arab Emirates' written opening statement, paras. 57-61.
625 Pakistan argues that publicly-listed companies face "many potential obligations and incentives" when
preparing their annual reports, and that as a result these companies may include in their annual reports
"potential but unconfirmed factors that may affect the company's future performance, especially if those
developments may be adverse", which makes the statements in their annual reports less relevant when not
accompanied by additional evidence. (Pakistan's response to United Arab Emirates' written opening statement,
paras. 57-58).
626 Pakistan's second written submission, paras. 2.280-2.281. See also Pakistan's response to Panel
question No. 73.

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7.454. We note that during the domestic proceedings, Taghleef argued to the NTC that in its annual
report the domestic producer had "attribute[d] the decrease in its domestic sales" to certain other
factors.627
7.455. In the cited sections of its annual report, the domestic producer stated as follows:
The year 2009 started with challenging business conditions. We faced de teriorating
economy, electricity crisis, rupee devaluation, uncertain political situation and security
conditions. While we struggled to survive in such difficult business environment, cheap
availability of smuggled BOPP film created an unfair competition directly hitting our
domestic sales and margins.628
7.456. As Pakistan submits, Taghleef referred to the factors cited in the domestic producer's annual
report and did not provide additional explanations or evidence in support. However, we disagree
with Pakistan t hat Taghleef made "theoretical" 629/"bare assertions" 630 to the NTC.
Taghleef's assertions were supported by evidence – the domestic producer's annual report, where
the domestic producer itself identified those other factors. The domestic producer is in the best place
to know what factors have injured it. Tri-Pack Films, the domestic producer, enumerated conditions
that were harming its business, and did so in its annual report, which is a formal company document.
In our view, these statements in the domestic producer's own annual report were sufficient evidence
to require the NTC to evaluate whether the factors in question were also injuring the domestic
industry.
7.457. Pakistan argues that the fact that these statements were reflected in the annual report of
the domestic producer cast doubt on their probative value . Pakistan maintains that publicly listed
companies like Tri-Pack face different obligations and incentives when preparing their annual reports
which "might require the disclosure of certain information to shareholders, including potential but
unconfirmed factors that might affect the company's future performance ". Thus, Pakistan argues
that t hese circumstances limit the value of annual reports as evidence of other causal factors,
especially when presented without any further evidence. 631 This argument misses the point. The
question is whether certain factors other than dumped imports were known to the authority to cause
injury to the domestic industry. Taghleef raised these factors in the domestic proceeding s and
referred to the domestic producer's annual report as evidence. The fact that the annual report was
not prepared by the domestic producer for purposes of the investigation does not disqualify it as
evidence of other factors causing injury to the domestic industry. In our view, in the circumstances
of this case, this evidence was sufficient, at a minimum, to warrant a consideration by the NTC.632
7.458. Next, Pakistan argues that the statements in the annual report were not relevant because
the annual report re lates to the domestic producer's consolidated business, which includes more
than BOPP film. We note, however, that the quoted statement refers specifically to BOPP film. Thus,
whatever other businesses the domestic producer was also referring to, the state ment in question
also relates to BOPP film.633
7.459. Moreover, taking into account the NTC's statement that "no other factor was pointed out by
any interested party which may be causing injury to domestic industry except the international

627 Taghleef's post-hearing submission, (Exhibit ARE-13), pp. 21-22 (referring to 2009 Tri-Pack
Films' Annual Report, (Exhibit ARE-24b), p. 17).
628 2009 Tri-Pack Films' Annual Report, (Exhibit ARE-24b), p. 17.
629 Pakistan's response to Panel question No. 74.
630 Pakistan's response to United Arab Emirates' written opening statement, para. 57.
631 Pakistan's written opening statement, para. 89; response to United Arab Emirates' written opening
statement, paras. 57-58.
632 We make this finding specifically in the circumstances of this case. We emphasise that we do not
suggest that any evidence, no matter its quality, would be sufficient to warrant a non-attribution analysis.
Whether evidence is sufficient must be determined on a case-by-case basis.
633 In addition, we note that BOPP film was the predominant part of the domestic producer's business.
The total installed capacity for BOPP film was 27,800 metric tonnes per annum, while that of cast
polypropylene film was 7,000 metric tonnes per annum. (2009 Tri-Pack Films' Annual Report,
(Exhibit ARE-24b), p. 3). See also United Arab Emirates' second written submission, para. 194).

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crisis"634, we are of the view that the explanations now provided by Pakistan, which we have
dismissed, were not the NTC's own reasoning.
7.460. We therefore consider that the factors identified by the domestic producer as harming its
business in 2009 were "known" to the NT C within the meaning of Article 3.5. Therefore, by failing
to "examine" them and ensure that "the injuries caused by these other factors" were not "attributed
to the dumped imports", the NTC acted inconsistently with Article 3.5. As a consequence, it also
failed to carry out an objective examination based on positive evidence, as required by Article 3.1.
7.9.2.3 Whether the NTC otherwise failed to demonstrate a causal relationship between
the dumped imports and the injury to the domestic industry
7.461. The United Arab Emirates further argues that the NTC's determination that dumping was
causing injury was also inconsistent with Articles 3.1 and 3.5 because the NTC based its analysis on
a "few negative trends in injury factors"; failed to take into account factors such as the high market
share held by the domestic industry, its continued profitability , and the "overall lack of negative
effects in the last six months of the POI"635; and did not objectively establish the coincidence in time
of the dumped imports and the evolut ion of trends in the three injury factors examined in the
NTC's causation analysis, namely market share, domestic sales, and profits.636
7.462. Pakistan responds that the NTC had assessed all injury factors in reaching its determination
of injury and was not requi red to assess all factors again in its causation analysis , including those
that did not support a finding of injury 637; that the data on the NTC's record supported the
NTC's conclusion that there was a strong correlation between the volume of dumped imports and
the key injury indicators; and that the United Arab Emirates was essentially questioning the way the
NTC had weighed the data before it, without demonstrating that it had exceeded its discretion.638
7.463. Having found that the NTC's causation analysis was inconsistent with Articles 3.1 and 3.5 on
several grounds, we do not examine these additional grounds of inconsistency raised by the
United Arab Emirates.
7.9.3 Conclusion under Articles 3.1 and 3.5
7.464. In sum, we find that the United Arab Emirates has established that the NTC's causation
analysis was inconsistent with Articles 3.1 and 3.5, both because it was based on findings that were
inconsistent with Articles 3.1, 3.2, and 3.4, and because the NTC failed to ensure that it did not
attribute to the dumped imports the injury caused by other known factors.
7.10 Duration of the original investigation: Article 5.10 of the Anti-Dumping Agreement
7.465. We refer to the facts set out in paragraphs 2.1-2.5 above.
7.466. The United Arab Emirates claims that Pakistan acted inconsistently with Article 5.10 by
exceeding the peremptory 18 -month time -limit applying to original investigations.
The United Arab Emirates makes two alternative arguments in support of this claim.
The United Arab Emirates' principal argument is that the NTC initiated the investigation on
23 April 2012 and concluded it on 9 April 2015, thus taking almost exactly three years.639

634 Report on final determination (2013), public version, (Exhibit ARE-2), para. 48.1. (emphasis added)
635 United Arab Emirates' first written submission, para. 464; second written submission, para. 208. See
also United Arab Emirates' opening statement at the first meeting of the Panel, para. 69; and written opening
statement, para. 91.
636 United Arab Emirates' first written submission, paras. 464-465; second written submission,
paras. 213-214. See also United Arab Emirates' opening statement at the first meeting of the Panel, para. 70;
637 Pakistan's first written submission, para. 3.522. See also second written submission,
paras. 2.271-2.272.
638 Pakistan's first written submission, paras. 3.524-3.531; second written submission,
paras. 2.265-2.275.
639 See e.g. United Arab Emirates' second written submission, paras. 78 and 82-87; and responses to
Panel question Nos. 23-24.

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7.467. The United Arab Emirates' alternative argument is that the investigation started on
27 September 2010 and ended on 4 February 2013. More precisely, the United Arab Emirates
argues that, should we take the view that the NTC concluded the investigation into BOPP film in
February 2013, we must take into account that the NTC could not have done so without the
investigative steps undertaken after the first initiation of 27 September 2010, which was
subsequently declared void by the Pakistani courts. Therefore, according to the
United Arab Emirates' alternative argument, the NTC took from 27 September 2010 to
7 February 2013 to conclude the investigation, i.e. a little over two years and four months.640
7.468. Pakistan responds that the NTC initiated the investigation on 23 April 2012 and concluded it
with the final determination on 4 February 2013, thus taking little more than nine months.641
7.469. Below, we first set out the applicable requirements of Article 5.10 (section 7.10.1); we then
apply that standard to the facts of this case, i.e. we ascer tain the date of "initiation"
(section 7.10.2.1) and the date the investigation was "concluded" (section 7.10.2.2); on that basis,
we find that Pakistan has not exceeded the time-limits set forth in Article 5.10 (section 7.10.2.3).
7.10.1 The applicable requirements of Article 5.10
7.470. Article 5.10 provides:
Investigations shall, except in exceptional circumstances, be concluded within one year,
and in no case more than 18 months, after their initiation.642
7.471. We consider that Article 5.10 "preserves predictability for the interested parties in an
investigation"643 by ensuring that when an investigation is initiated, interested parties are not left in
the uncertainty about the outcome of the investigation for more than one year "and in no case more
than 18 months".
7.472. The parties do not dispute the peremptory nature of the 18 -month time -limit, which is
apparent from the text of Article 5.10 ("in no case"644). Instead, the parties disagree on when the
clock under Article 5.10 starts and stops.
7.473. Article 5.10 identifies the process to which the time -limit applies as "investigations", and it
identifies the beginning and end of investigations, respectively, as "initiation" and the time when
investigations are "concluded". The questions of legal interpretation in this case, then, are: (a) when
are investigations initiated; and (b) when are investigations concluded, within the meaning of
Article 5.10? We discuss these two questions in turn.
7.10.1.1 When do the time-limits in Article 5.10 start running?
7.474. Article 5.10 requires investigations to be concluded "within … in no case more than
18 months, after their initiation".645 Thus, the text of this provision is clear that the starting point
for the 18 -month time -limit is the initiation of the relevant investigation. F ootnote 1 of the
Anti-Dumping Agreement defines initiation as follows:
The term "initiated" as used in this Agreement means the procedural action by which a
Member formally commences an investigation as provided in Article 5.646
7.475. Initiation is thus (a) a procedural action (b) by which a Member (c) formally (d) commences
(e) an investigation as provided in Article 5.

640 See e.g. United Arab Emirates' second written submission, paras. 79 and 88-90; and response to
Panel question No. 20.
641 See e.g. Pakistan's second written submission, paras. 2.33-2.51; and responses to Panel
question Nos. 20 and 23.
642 Emphasis added.
643 Panel Report, Morocco – Hot-Rolled Steel (Turkey), para. 7.74.
644 See also Panel Report, Morocco – Hot-Rolled Steel (Turkey), para. 7.72.
645 Emphasis added.
646 Emphasis added.

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7.476. Beginning with this last element, i.e. what is commenced, the investigations provided for in
Article 5 are those "to determine the existence, degree and effect of any alleged dumping"
(Article 5.1), which are initiated following an application ( Article 5.1) or on the authority's own
motion (Article 5.6).
7.477. Turning to the third and fourth elements, i.e. "formally commences", the ordinary meaning
of "commence" includes "to begin (an action); to enter upon; esp. in legal use, to commence an
action".647 The word "commences" in footnote 1 is qualified by the adjective "formally". The ordinary
meaning of "formally" includes "in formal r espects", "with regard to the form, as opposed to the
matter of reasoning", " [i]n prescribed or customary form ; with the formalities required to give
validity or definiteness to the action", "[a]s a matter of form".648 Thus, the focus of the definition in
footnote 1 is on when "the procedural action" that commences the investigation " as a matter of
form" has taken place.
7.478. Article 12.1 of the Anti -Dumping Agreement sheds some light on what is required "as a
matter of form" for the procedural action that commen ces the investigation: "interested parties …
shall be notified and a public notice shall be given" of initiation.
7.479. Further, footnote 1 specifies that initiation is the procedural action by which the "Member"
in question commences an investigation. This makes it relevant to look into that Member's municipal
law for guidance to identify the precise date of initiation, as the panel in Guatemala – Cement II
did.649 In that case, Mexico and Guatemala differed on what the date of initiation was. The panel
relied on the definition in footnote 1 and took into account: the provisions of the domestic legal
instrument underlying decisions to initiate anti-dumping investigations (which provided that the date
of initiation was that of publication in the Official Journal); the text of a domestic resolution stating
that initiation would take effect from the date of publication in the Official Journal; and the fact that
"deadlines for interested parties to respond to the initiation were activated" on the date of publication
in the Official Journal. 650 On this basis, the panel considered that "the action by which the
investigation was formally commenced is the date of publication of the notice of initiation [in the
Official Journal]".651
7.480. To sum up, the time -limits in Article 5.10 start running under the express terms of
Article 5.10, from "initiation", and initiation, in turn, is the "procedural action" that "formally
commences an investigation". The context provided by Article 12.1 highlights one element of what
is required "as a matter of form" to commence an investigation, namely the notification to interested
parties, and publication of a notice of initiation. Further, because footnote 1 refers to the procedural
action "by which a Member" formally commences an investigation, do mestic legislation can be
among the facts that are relevant to resolve questions concerning the date of initiation.
7.481. The United Arab Emirates urges us to take into account, in our interpretation, the "interests
being protected" by Article 5.10.652 Specifically, the United Arab Emirates points out that the
purpose of Article 5.10 is to ensure that parties to an anti -dumping investigation are not "left in
uncertainty" for too long. We agree: as another panel before us has pointed out, Article 5.10
"preserves predictability for the interested parties in an investigation".653 Yet, Article 5.10 sets forth
the precise terms in which predictability is to be preserved, and it does so by setting, as a starting
point, the procedural action that commences an investigatio n as a matter of form. This does not,
therefore, lead us to a different interpretive result from that set out above.

647 Oxford Dictionaries online, definition of "commence"
https://www.oed.com/view/Entry/37004?rskey=Sc3jks&result=2&isAdvanced=false#eid (accessed
11 October 2020), v., meaning 1.a. (emphasis omitted)
648 Oxford Dictionaries online, definition of "formally"
https://www.oed.com/view/Entry/73440?redirectedFrom=formally#eid (accessed 11 October 2020),
meanings 1, 1.a ("in logic"), 6, and 8.
649 Panel Report, Guatemala – Cement II, para. 8.82.
650 Panel Report, Guatemala – Cement II, para. 8.82.
651 Panel Report, Guatemala – Cement II, para. 8.82.
652 United Arab Emirates' second written submission, para. 90.
653 Panel Report, Morocco – Hot-Rolled Steel (Turkey), para. 7.74.

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7.10.1.2 When are investigations "concluded" under Article 5.10?
7.482. The end -point of the period that must not exceed 18 months is the date on which an
"investigation[]" is "concluded".
7.483. What must be "concluded" under Article 5.10 are "investigations". As we have just seen, the
remainder of Article 5 provides context for identifying the investigations at issue: these are
investigations "to determine the existence, degree and effect of any alleged dumping" (Article 5.1),
which are initiated either on an application that includes evidence of dumping, injury, and a causal
link between them (Articles 5.1 and 5.2), or on the authority's own motion if the authorit y has
sufficient evidence of dumping, injury, and a causal link (Article 5.6). In other words, these are the
original investigations to ascertain the existence of the three elements necessary to impose
anti-dumping measures.
7.484. The ordinary meaning of the verb "to conclude" includes "[t]o bring to a close or end"654 and
"[t]o bring or come to a decision, settle, decide, determine" . An original investigation to ascertain
the existence of the three elements necessary to impose anti -dumping measures may arguably be
"ended" in several ways, as illustrated by the context provided by other provisions of the
Anti-Dumping Agreement.
7.485. Thus, Article 12.2.2 refers expressly to the "conclusion … of an investigation", setting forth
the requirements applying to the "public notice of conclusion … of an investigation in the case of an
affirmative determination providing for the imposition of a definitive duty or the acceptance of a
price undertaking".655 We thus learn from this provision that an investigation may be concluded with
"an affirmative determination providing for the imposition of a definitive duty or the acceptance of
a price undertaking".
7.486. Article 12.2.2 is part of the broader Article 12.2, which disciplines more generally the public
notice of "any preliminary or final determination, whether affirmative or negative"656, thus including
final determinations that dumping causing injury was, or was not, established. We thus learn that
an investigation may also be concluded with a "negative" determination.
7.487. Further, the Anti -Dumping Agreement does not prevent Members from terminating an
investigation without reaching a final determination, "affirmative or negative", of dumping causing
injury. Thus, an investigation may also be "concluded" with a decision by the Member concerned to
terminate the investigation without reaching a determination regarding the existence of dumping
causing injury.
7.488. Taken together, these provisions therefore indicate that an "investigation" initiated under
Article 5 may be "concluded" in particular in the following ways 657: (a) with a final affirmative
determination of injurious dumping that stipulates any measures to be imposed; (b) with a final
negative determination (that injurious dumping is not established); or (c) with a decision to
terminate without having determined whether injurious dumping existed.
7.489. Further, the context provided by Articles 11.4 and 13 underlines the difference between the
conclusion of an original investigation under Article 5.10, and further steps that may instead consist
of changed circumstances or sunset reviews, as well as judicial review – a difference that is important
in the current case.
7.490. Article 11.4 regulates separately the duration of changed circumstances and sunset reviews
(which "shall normally be conc luded within 12 months" of their initiation). This confirms that

654 Oxford Dictionaries online, definition of "to conclude"
https://www.oed.com/view/Entry/38300?rskey=Yslm9m&result=2&isAdvanced=false#eid (accessed
11 October 2020), v., meaning II.5.a (transitive).
655 Emphasis added.
656 Emphasis added. While Article 12 is broader in scope, the "investigations" at issue in Article 5.10 are
those identified earlier in Article 5, namely, as we have already noted, "investigation[s] to determine the
existence, degree and effect of any alleged dumping". (Article 5.1).
657 We are not concerned in this case with price undertakings.

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Article 5.10 pertains specifically to original investigations658, and not generically to any investigation
or review under the Anti-Dumping Agreement.
7.491. Article 13 requires Members to maintain "judicial, arbitral or administrative tribunals or
procedures" for the review of, among others, "administrative actions relating to final
determinations".659 This provision thus underlines the distinction between, on the one hand, "final
determinations" and, on the other, "judicial, arbitral or administrative" review of administrative
actions relating to those determinations. Judicial review is a distinct process, for which Article 5.10
does not set out a time-limit – nor, indeed, does any other provision of the Anti-Dumping Agreement,
including Article 13.660
7.492. In our view, this context confirms that the time -limits in Article 5.10 apply to original
investigations, and not to a time period encompassing their possible subsequent judicial review, and
that therefore it is the date of conclusion of original investigations that is the relevant date under
Article 5.10.
7.10.2 Whether Pakistan exceeded the 18-month time-limit in Article 5.10
7.493. To ascertain whether Pakistan exceeded the 18-month time-limit in Article 5.10 we need to
identify the date of "initiation" of the investigation and the date the investigation was "concluded".
7.10.2.1 The date of "initiation"
7.494. We recall that initiation is "the procedural action by which a Member formally commences
an investigation", i.e. commences it "as a matter of form" 661, and that the domestic law of the
Member in question is among the facts that are relevant to answer the enquiry as to what is the
procedural action by which that Member formally commences an investigation.662
7.495. In the present case, the parties agree that the "formal date of initiation of the
investigation … is … 23 April 2012" 663, i.e. that the procedural action by which Pakistan formally
commenced the relevant investigation was the Notice of initiation of 23 April 2012.
7.496. As set out below, we, too, consider that the procedural action that "formally commence[d]"
the relevant investigation was the publication of the Notice of initiation on 23 April 2012.
7.497. We begin by considering Pakistan's municipal law, since we must ascert ain what is "the
procedural action by which [Pakistan] formally commences an investigation".664
7.498. Pakistan has indicated, and the United Arab Emirates has not contested, that initiation is
governed by the Anti -Dumping Duties Ordinance, 2000 (Ordinance of 200 0), Sections 20-28, and
the Anti-Dumping Duties Rules, 2001, Rules 3 -6.665 Of these, the provisions that offer the most
useful guidance to the question at hand are Section 27 of the Ordinance of 2000 and Rule 6 of the
Anti-Dumping Duties Rules, 2001.
7.499. First, Section 27 of the Ordinance of 2000 provides that when the NTC "has decided to
initiate an investigation, it shall … publish a … notice" of initiation in at least one issue of a widely

658 See para. 7.483 above. See also paras. 7.474-7.476 above.
659 As well as "administrative actions relating to … reviews of determinations within the meaning of
Article 11".
660 To the contrary, though the context is not identical, footnote 20 to Article 9.3.1 contains an explicit
recognition that it "may not be possible" to observe the time-limits set forth in Article 9.3.1 of the
Anti-Dumping Agreement in case of "judicial review proceedings".
661 Emphasis added. See paras. 7.474-7.477 above.
662 See para. 7.479 above.
663 United Arab Emirates' second written submission, para. 90; response to Panel question No. 20; and
Pakistan's response to Panel question No. 20.
664 Fn 1 of the Anti-Dumping Agreement.
665 Ordinance No. LXV of 2000, (Exhibit PAK-27); and Anti-Dumping Duties Rules, (Exhibit PAK-29),
respectively. See also Pakistan's response to Panel question No. 5. Pakistan also cited the Act No. XXIII
of 2011 (amending the Ordinance of 2000: Amendment of the Ordinance No. LXV of 2000, (Exhibit PAK-28)).
This Act, however, amends a provision of the Ordinance of 2000 that does not directly concern initiation.
(Ibid.).

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circulated newspaper in English and a widely circulated newspaper in Urdu, and initiation "shall be
effective on the date" of publication in those newspapers .666 On 23 April 2012 the NTC published a
notice of initiation in the requisite newspapers 667, reciting, in accordance with Section 27, that the
"[d]ate of initiation of investigation" is "[t]he date of publication of this notice in the newspapers in
Pakistan".668 Thus, on 23 April 2012, the NTC took the step by which "Pakistan formally commences"
an investigation, i.e. publication of a notice of initiation in the requisite newspapers in Pakistan.
7.500. More generally, Section 27 of the Ordinance of 2000 provides that when the NTC "has
decided to initiate an investigation, it shall give notice" to interested parties, including all exporters,
and publish a copy of the notice in the Official Gazette, as well as in the newspapers mentioned
above. In addition to publishing the Notice of initiation on 23 April 2012, the evidence before us
shows that the NTC also gave notice to the investigated United Arab Emirates exporter, Taghleef669;
we also presume, and no party has disputed, that it gave notice to other interested parties.
7.501. These steps undertaken by the NTC in April 2012, i.e. publishing and notifying the notice of
initiation, are also required "as a matter of form" under WTO rules when initiating an investigation.670
7.502. Further, Rule 6 of the Anti -Dumping Duties Rules, 2001, sets forth the items on which the
notice of initiation must contain information. These are similar to the items in Article 12.1.1 of the
Anti-Dumping Agreement, and include the name of the countries of export, the identification of the
product, a description of the alleged dumping and of the factors on which the allegations of injury
are based, the address and time -limits for interested parties to ma ke their views known, and the
proposed schedule for the investigation. Without prejudice to an assessment of the adequacy of the
information in the notice, the notice issued on 23 April 2012 does contain some mention of
information regarding each of the items set forth in Rule 6.
7.503. Finally, Rule 8 of the Anti -Dumping Duties Rules, 2001, provides that "upon initiation,
the [NTC] shall send questionnaires", and it shall give "at least thirty days for reply", it being deemed
that the questionnaire is received "one week from the day on which it was sent"; these requirements
are similar to those set out in Articles 6.1 and 6.1.1 of the Anti-Dumping Agreement. We note that
indeed, four days after 23 April, on 27 April 2012, the NTC transmitted to Taghleef a questionnaire,
informing Taghleef that it had 37 days from the date of "issuance" of the letter (30 days plus one
week, the minimum set forth in Rule 8) to provide new information using that questionnaire.671 Thus,
formally at least672, the NTC took the steps envisaged by Rule 8 "upon initiation".
7.504. Therefore, the initiation of 23 April 2012 bears the hallmarks envisaged in domestic law
(which, in turn, is similar to the Anti-Dumping Agreement) for initiation, as "the procedural action
by which [Pakistan] formally commences an investigation".673
7.505. However, the United Arab Emirates argues that regardless of the formal date of initiation,
Pakistan subjected interested parties to a continuum of investigative steps that carried over from
the fir st investigation, initiated on 27 September 2010, to the second investigation, initiated on
23 April 2012.674 For this reason, the United Arab Emirates argues that the time-limit in Article 5.10
must run from 27 September 2010, the date the first investigation was initiated, regardless of "the
formal date of initiation" of the second investigation, which led to the challenged measures. 675
The United Arab Emirates explains that one cannot ignore "the special and unique situation of this
case, where a new investigation incorporates the results of so many investigative steps taken in
another case, prior to initiation", and that to do otherwise would go against the "interests being

666 Ordinance No. LXV of 2000, (Exhibit PAK-27), Section 27. (emphasis added)
667 Notice of initiation (2012), (Exhibit ARE-5); Pakistan's response to Panel question No. 86.
668 Notice of initiation (2012), (Exhibit ARE-5).
669 In a letter to Taghleef of 27 April 2012, the NTC indicates that it has already sent the notice to
Taghleef. (NTC's letter of 27 April 2012, (Exhibit ARE-6)).
670 See paras. 7.477-7.478 above.
671 NTC's letter of 27 April 2012, (Exhibit ARE-6).
672 In terms of content, the questionnaire was identical to that sent out after the first initiation of
27 September 2010. (Pakistan's response to Panel question No. 22).
673 Anti-Dumping Agreement, fn 1. See also Panel Report, Guatemala – Cement II, para. 8.82, for a
similar conclusion.
674 For the sequence of events, see paras. 2.1-2.3 above.
675 United Arab Emirates' second written submission, para. 90.

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protected" by Article 5.10, namely parties' interest in not being "left in unc ertainty" beyond the
time-limits set forth in Article 5.10.676
7.506. Indeed, important investigative steps were undertaken in the first investigation and relied
upon in the second one. It is during the first investigation, initiated on 27 September 2010, that the
NTC obtained Taghleef's questionnaire response, Taghleef's responses to three deficiency letters,
and a further submission from Taghleef on level of trade adjustments, all of which the NTC relied
upon in reaching its final determination in February 2013.677 It is also during the first investigation
that the NTC conducted its sole on -the-spot verification visit of the domestic applicant,
Tri-Pack Films; again, the NTC relied on the results of the verification visit in reaching its final
determination in February 2013.678
7.507. During the second investigation, the NTC did not require parties to submit a new
questionnaire response, and relied upon Taghleef's previously submitted responses to the
questionnaire and deficiency letters. 679 The new materials the NTC recei ved from Taghleef were,
with one exception, submitted after the preliminary determination in the second investigation, and
to a large extent consisted of arguments that the NTC rejected, including on the choice of POI and
on level of trade adjustments.680
7.508. The question for us, then, is which was the procedural step by which Pakistan formally
commenced the relevant investigation, within the meaning of footnote 1 and therefore of
Article 5.10. Neither party disputes that the first investigation was initiated on 27 September 2010,
i.e. that, at the time, the publication of the notice of initiation was the procedural action that formally
commenced that investigation. Nor do the parties dispute that that initiation was subsequently
declared void by a Pakistani court, leading to a new initiation on 23 April 2012.681
7.509. As we have underlined in discussing the requirements of Article 5.10, the emphasis in
Article 5.10, read together with footnote 1, is on the procedural action that "formally commences an
investigation".682 In the case before us, where a first initiation was declared void, and a new Notice
of initiation was published to commence, formally, a new investigation, it is the latter – publication
of the Notice of initiation on 23 April 2012 – that designates the b eginning of the time period to
which the deadlines in Article 5.10 apply.
7.510. Thus, we find that "initiation" within the meaning of footnote 1 and Article 5.10 took place
on 23 April 2012.
7.10.2.2 The date the investigation was "concluded"
7.511. To recall, first, one of th e ways in which an "investigation" initiated under Article 5 may be
"concluded" is with a final affirmative determination of injurious dumping that stipulates any
measures to be imposed .683 Second, the Anti -Dumping Agreement distinguishes between
investigations initiated under Article 5 and subsequent steps, including judicial reviews of the
determinations that may be adopted as a result of those investigations, and it is the investigations

676 United Arab Emirates' second written submission, para. 90.
677 Pakistan's response to Panel question No. 85 (referring to Taghleef's questionnaire response,
(Exhibit ARE-16 (BCI)); Taghleef's response to third deficiency letter, (Exhibit ARE-18c (BCI));
Taghleef's response to second deficiency letter, (Exhibit ARE-20b (BCI)); Taghleef's letter of 31 May 2011,
(Exhibit ARE-22 (BCI)); and Taghleef's response to deficiency letter, (Exhibit PAK-50)).
678 Report on Tri-Pack Films verification visit, (Exhibit ARE-23); Report on final determination (2013),
public version, (Exhibit ARE-2), section 16.2.
679 Pakistan's response to Panel question No. 85; Report on final determination (2013), public version,
(Exhibit ARE-2), e.g. section 15.2.
680 Pakistan's response to Panel question No. 85 (referring to Taghleef's letter of 25 June 2012,
(Exhibit ARE-8); Taghleef's post-hearing submission, (Exhibit ARE-13); Taghleef's letter of 30 November 2012,
(Exhibit ARE-19 (BCI)); Taghleef's comments on statement of essential facts, (Exhibit ARE-25);
Taghleef's letter of 19 December 2012, (Exhibit ARE-40 (BCI)); Taghleef's email of 18 December 2012,
(Exhibit PAK-12A (BCI)); and Appendix to Taghleef's email of 18 December 2012, (Exhibit PAK-12B (BCI))).
681 Order of Islamabad High Court, (Exhibit PAK-31); Report on final determination (2013), public
version, (Exhibit ARE-2), paras. 5.2-5.3.
683 See para. 7.488 above.

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initiated under Ar ticle 5, and not subsequent steps, that are subject to the time -limits in
Article 5.10.684
7.512. On 4 February 2013, the NTC adopted a Report on final determination685 that recounted the
23 April 2012 initiation 686, set out the findings of the investigation, conclu ded that there was
dumping, injury, and a causal link between them687 and, on that basis, provided for the imposition
of definitive anti -dumping duties. 688 On 7 February 2013, Pakistan issued a "Notice of Final
Determination and levy of Definitive Antidumping Duties"689, which set forth the NTC's conclusion of
injurious dumping and imposed the definitive anti-dumping duties690 provided for in the Report on
final determination.
7.513. Thus, the notice of 7 February 2013 and the report of 4 February 2013 serve as the "public
notice" and "separate report" 691, respectively, of an affirmative final determination of injurious
dumping, which set forth the definitive anti-dumping duties to be imposed on that basis. Therefore,
that final determination "concluded" the investigation initiated on 23 April 2012, within the meaning
of Article 5.10.692
7.514. After adoption of this final determination on 4 February 2013693, domestic judicial
proceedings led to its annulment (though not to the refund of anti -dumping duties collected
thereunder694), to remand to the NTC, and to the adoption of a new final determination
on 9 April 2015. The United Arab Emirates argues that this determination o f 9 April 2015, and not
the determination of 4 February 2013, "concluded" the investigation within the meaning of
Article 5.10.
7.515. However, as seen earlier, the Anti -Dumping Agreement distinguishes between final
determinations and the judicial review of those determinations, the latter being a separate step, the
duration of which is not included in the time period disciplined by Article 5.10.695 Therefore, the fact
that the final determination of 4 February 2013 was subject to judicial review and then formally
replaced (though "ratified") by a determination adopted on remand does not mean that the clock
under Article 5.10 continued ticking throughout judicial review.
7.516. In support of its contrary argument, the United Arab Emirates emphasizes that the
determination of 9 April 2015 was a "fresh start"; that the February 2013 determination is "officially
valid" only because it was "ratified" by the 9 April 2015 determination; and that the latter imposed
duties only prospectively and was entitled "final determination". 696 However, none of these points
would mean that the time -limit in Article 5.10 should apply to the su m total of the time taken to
reach the first final determination and the time taken for its subsequent judicial review and the time
taken to reach a new determination on remand, as a result of judicial review.697

684 See paras. 7.489-7.492 above.
685 Report on final determination (2013), public version, (Exhibit ARE-2); Report on final
determination (2013), (Exhibit PAK-1 (BCI)).
686 Report on final determination (2013), public version, (Exhibit ARE-2), para. 5.3.
687 Report on final determination (2013), public version, (Exhibit ARE-2), para. 50.
688 Report on final determination (2013), public version, (Exhibit ARE-2), paras. 51 and 54.
689 Notice of final determination (2013), (Exhibit ARE-10).
690 As well as collecting definitively the anti-dumping duties imposed on the basis of the provisional
determination. (Notice of final determination (2013), (Exhibit ARE-10)).
691 Article 12.2 of the Anti-Dumping Agreement.
693 See fn 26 above.
694 Pakistan's response to Panel question No. 15(b)(ii).
695 See para. 7.491 above.
696 United Arab Emirates' responses to Panel question Nos. 23-24.
697 Less importantly, we note that the facts do not support the view that the 2015 determination was a
"fresh start": the NTC made no new analysis and did not reopen the record, taking the view that the only step
that had been set aside was the act of adopting the final determination; the duties collected under the
February 2013 determination were not refunded; and the April 2015 determination only imposed duties until
the end date originally envisaged in the February 2013 determination. (Report on final determination (2015),
public version, (Exhibit PAK-49), paras. 3-5; Pakistan's response to Panel question No. 15(b)(ii)).

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7.10.2.3 Conclusion under Article 5.10
7.517. Pakistan init iated the investigation on 23 April 2012 and concluded that investigation on
4 February 2013. Therefore, the United Arab Emirates has not established that Pakistan exceeded
the 18-month time-limit set forth in Article 5.10 for investigations initiated "as provided in Article 5".
7.11 Due process rights and the 2015 determination: Article 6.2 of the
Anti-Dumping Agreement
7.518. We refer to the facts set out in paragraphs 2.4-2.5 above.
7.519. The United Arab Emirates claims that in the process leading to the adoption of the
determination of 9 April 2015, Pakistan failed to provide interested parties with a full opportunity for
the defence of their interests as required by Article 6.2. The United Arab Emirates points out that
the NTC gave parties no opportunity to make their views known and gave them no notice that it
intended to reconsider its determination of 4 February 2013.698
7.520. Pakistan responds that the determination adopted on remand from the domestic court in
April 2015 was limited to rectifying a purely formal defect, arisen under domestic law, in the
February 2013 determination, with no substantive changes, and that the refore no obligation to
involve interested parties was triggered under Article 6.2.699
7.521. Among the third parties, the European Union argues that "the type of analysis carried out
on remand is determinative": Article 6.2 will not give interested parties a right to comment again if
the authority "simply repeated the initial analysis", but it will if the authority "engaged in an analysis
different from the original one".700
7.522. Below, we first set out the applicable requirements of Article 6.2 (section 7.11.1). We then
apply that standard to the facts of this case, discussing whether the steps taken on remand by the
NTC triggered obligations under Article 6.2 that the NTC failed t o abide by, and we find that the
United Arab Emirates has not established that Pakistan acted inconsistently with Article 6.2
(section 7.11.2).
7.11.1 The applicable requirements of Article 6.2
7.523. The opening clause of Article 6.2, on which the United Arab Emirates relies701, provides:
Throughout the anti -dumping investigation all interested parties shall have a full
opportunity for the defence of their interests.
7.524. By providing that interested parties be given a full opportunity for the defence of their
interests, Article 6.2 sets forth one of the "fundamental due process rights to which interested parties
are entitled in anti -dumping investigations and reviews". It provides for "liberal opportunities for
respondents to defend their interests"; however, it does not provide "for 'indefinite' rights" and does
not give parties the right to make submissions or otherwise participate "as and when they choose".702

698 United Arab Emirates' first written submission, para. 484; second written submission,
paras. 223-225; and response to Panel question No. 23, paras. 17-20.
699 Pakistan's first written submission, paras. 3.553-3.574; second written submission,
paras. 2.287-2.296.
700 European Union's third-party submission, para. 16; third-party statement, paras. 11-13.
701 The remainder of Article 6.2 relates to hearings in the context of anti-dumping proceedings, with or
without other parties. The United Arab Emirates does not make arguments specifically with regard to hearings.
702 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 241.

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7.525. The United Arab Emirates' arguments in this case raise the question of the extent to which
Article 6.2 applies outside703 the scope of original investigations and interim and sunset reviews.704
7.526. As fundamental due process rights, the rights set forth in Article 6.2 must be available in
any process leading to the imposition of anti-dumping measures by a Member. However, not every
step taken by an investigating authority will trigger an obligation for the authority to give parties an
opportunity to submit their views.
7.527. We agree with how the panel in Korea – Certain Paper (Article 21.5 – Indonesia) addressed
a similar question to the one before us, in the context of a compliance redetermination.705 That panel
held that the extent to which "a procedural obligation set forth under Article 6" applied anew to the
compliance redetermination depended on "the steps taken" by the domestic a uthority in the
redetermination.706
7.528. The panel in Korea – Certain Paper ( Article 21.5 – Indonesia) relied on the fact that, in
compliance proceedings, the original determination and the compliance redetermination form part
of a continuum of events.707 That panel observed that when a procedural obligation under Article 6
had already been complied with in the original proceedings, ruling that it had to be "re-observed" in
the implementation proceedings would have meant the panel was imposing on the respondent
"procedural obligations that had no … connection with the implementation of the
DSB recommendations and rulings at issue", "unless the steps taken by the [investigating authority
of the respondent] made it necessary". This would be the case, for example, where the investigating
authority had to perform a new analysis, even if that analysis was based on the same facts already
relied upon in the original proceedings.708
7.529. The reasoning in that case was specific to compliance redeterminations. However, there are
commonalities with the situation before us, namely: a "first" final determination had already been
adopted; it was either not contested that the authority had complied with Article 6.2 (in our case),
or the complainant had not established otherwise (in the o riginal proceedings in Korea – Certain
Paper); a "second" final determination was then adopted, replacing the former, and the question
was to what extent the authority had to take steps in adopting the second determination to ensure
that parties had a full opportunity for the defence of their interests under Article 6.2. In such
circumstances, we consider that also when a determination is remanded to the domestic authority
as a result of domestic judicial proceedings rather than as a result of WTO dispute s ettlement, the
question under Article 6.2 is whether the steps taken on remand by the investigating authority make
it necessary to give parties a further opportunity to make their views known.
7.11.2 Whether Pakistan acted inconsistently with Article 6.2
7.530. The NTC adopted a first final determination on 4 February 2013. A Pakistani court then set
aside the February 2013 determination because of a defect in the composition of the NTC at the time
the determination was adopted. On remand from the court, the NTC adopted a new determination

703 In the second written submission, the United Arab Emirates emphasizes that Article 6.2 requires a
full opportunity for parties to defend their interests "'throughout' [the anti-dumping] investigation".
(United Arab Emirates' second written submission, para. 227 (emphasis added)). This, however, does not
appear to address the question at hand, which is the extent to which Article 6.2 requires separate opportunities
for comment in the context of a remand redetermination.
704 For interim and sunset reviews, Article 11.4 expressly provides: "[t]he provisions of Article 6
regarding evidence and procedure shall apply to any review carried out under this Article."
705 That is, in the context of a determination adopted to implement the recommendations and rulings of
the DSB relating to anti-dumping measures adopted by Korea.
706 Panel Report, Korea – Certain Paper (Article 21.5 – Indonesia), para. 6.74. In its
third-party submission, the European Union points out that that panel clarified that the fact of relying on the
same factual basis as relied upon in the original proceedings is not determinative, as one "cannot assume that
the same factual basis would in all cases lead to the same analysis". (Ibid. para. 6.79 (quoted in Indonesia
third-party submission, para. 14)).
707 Panel Report, Korea – Certain Paper (Article 21.5 – Indonesia), para. 6.74 (quoting Appellate Body
Report, Mexico – Corn Syrup (Article 21.5 – US), para. 121).
708 Panel Report, Korea – Certain Paper (Article 21.5 – Indonesia), paras. 6.74 and 6.79-6.80
(emphasis added). The panel found that this was precisely the case before it: because compliance with its
recommendations and rulings under Article 3.4 required the authority to perform a new analysis, the authority
was required to provide parties with an opportunity to make their views known, even though that new analysis
was based on an unchanged factual record. (Ibid. para. 6.79).

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on 9 April 2015, which was formally distinct but, in its own words, "ratified" the determination of
February 2013, including the entirety of the underlying findings and the imposition of duties.709
7.531. The United Arab Emirates claims that the NTC failed to give parties a full opportunity for the
defence of their interests in adopting the determination of 9 April 2015, because it gave parties no
opportunity to make their views known and gave them no notice that it intended to reconsider its
determination of 4 February 2013.710
7.532. As set out in discussing the requirements of Article 6.2 of the Anti -Dumping Agreement
above, the question is whether, under this provision, the adoption of the 9 April 2015 determination
in lieu of the 4 February 2013 determination triggered an obligation on the part of Pakistan to afford
interested parties an additional o pportunity for the defence of their interests, and specifically
whether it required Pakistan to give notice of the impending adoption of a new determination and
opportunities for the parties to make their views known.
7.533. The Report on final determination of 9 April 2015 states that the NTC "re -considered,
re-appreciated and re -appraised the facts of the investigation". 711 Despite this language, the NTC
not only did not reopen the record of the investigation, but also it carried out absolutely no new or
further analysis of the facts already on the record. Instead, the NTC observed that the determination
of February 2013 had been annulled solely on the basis of a formal defect in the composition of the
NTC ("only on the issue of quorum"712), and that "only the final determination" had been set aside.713
Therefore, the now "properly constituted" 714 NTC considered that only the last step of adopting a
final determination had to be repeated, and it therefore "ratified" the earlier findings and the
consequent imposition of duties.715
7.534. Thus, on the face of the determination716, what the NTC did in April 2015 was to readopt a
determination that was identical 717 to that of February 2013, but whereas in February 2013 one
member of the NTC had overstayed its mandate under domestic law, in April 2015 the composition
of the NTC was proper under domestic law.
7.535. On this basis, we do not consider that the United Arab Emirates has demonstrated that
Article 6.2 of the Anti -Dumping Agreement required Pakistan to give parties a new o pportunity to
make their views know before the adoption of the 2015 determination, additional to the opportunities
provided in the process that led to the adoption of the 2013 determination. We therefore find that
the United Arab Emirates has not demonstra ted that Pakistan acted inconsistently with Article 6.2
of the Anti-Dumping Agreement.
7.12 Sunset review: Articles 11.1 and 11.3 of the Anti-Dumping Agreement
7.536. The United Arab Emirates claims that Pakistan's sunset review determination of
1 December 2016 is inc onsistent with Articles 11.1 and 11.3 of the Anti -Dumping Agreement on
multiple grounds.

709 See paras. 2.3-2.5 above. The only substantive difference consists of the fact that the determination
of 9 April 2015 only imposed duties with effect from that date. (Notice of final determination (2015),
(Exhibit ARE-1), p. 2). The end date of the duties under the determinations of February 2013 and April 2015
was the same (14 August 2015), and the duties collected under the determination of February 2013 were not
refunded following the annulment of that determination. (Notice of final determination (2013),
(Exhibit ARE-10), p. 1; Notice of final determination (2015), (Exhibit ARE-1), p. 2; and Pakistan's response to
Panel question No. 15(b)(ii)).
710 See para. 7.519 above.
711 Report on final determination (2015), public version, (Exhibit PAK-49), para. 4. The same language
is contained in the Notice of final determination (2015), (Exhibit ARE-1), p. 1.
712 Report on final determination (2015), public version, (Exhibit PAK-49), para. 4.
713 Report on final determination (2015), public version, (Exhibit PAK-49), para. 3.
714 Notice of final determination (2015), (Exhibit ARE-1), p. 1; Report on final determination (2015),
715 Report on final determination (2015), public version, (Exhibit PAK-49), para. 4. Also the end date of
the anti-dumping duties remained the same as under the determination of February 2013. See
para. 2.5 above.
716 Notice of final determination (2015), (Exhibit ARE-1); Report on final determination (2015), public
version, (Exhibit PAK-49).
717 See fn 709 above.

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7.537. We begin by recalling the applicable requirements of Articles 11.1 and 11.3 of the
Anti-Dumping Agreement (section 7.12.1). We then apply those requirements to the facts of this
case, and we structure our discussion as follows: first, we examine whether the United Arab Emirates
has established that the NTC's determination that dum ping was likely to continue or recur was
inconsistent with Article 11.3, and we find that it has so established (section 7.12.2); second, we
examine whether the United Arab Emirates has established that the NTC's determination that injury
was likely to recur was inconsistent with Article 11.3, and we find that it has so established
(section 7.12.3); third, we decline to decide whether the sunset review determination is also
inconsistent with Article 11.3 as a result of inconsistencies in the determination under which the
anti-dumping duties were first imposed (section 7.12.4); and, finally, we exercise judicial economy
under Article 11.1 (section 7.12.5).
7.12.1 The applicable requirements of Articles 11.1 and 11.3
7.538. Article 11.1 provides that:
An anti-dumping duty shall remain in force only as long as and to the extent necessary
to counteract dumping which is causing injury.
7.539. The ordinary meaning of "counteract" includes "act against … or contrary to", "hinder or
defeat by contrary action", and "neutralize the action or effect of".718 Thus, on its face, Article 11.1
provides that an anti-dumping duty may remain in force only "as long as and to the extent" that it
is necessary to act against, or neutralize the action or effect of, "dumping which is causing injury".
7.540. Article 11.1 is the first paragraph of Article 11, which is a provision on the "Duration and
Review of Anti-Dumping Duties" and sets forth disciplines for so -called changed circumstances
reviews and sunset reviews. 719 Thus, we agree with other panels which have taken the view that
Article 11.1 establishes an overarching principle that duties may only continue to be imposed as long
as they remain necessary, which is operationalized in the procedures for changed circumstances and
sunset reviews set out in the remainder of Article 11.720
7.541. Article 11.3 is the central provision governing sunset reviews. Article 11.3 reads in relevant
part:
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.721
7.542. Article 11.3 thus requires that anti -dumping duties be terminated within five years, unless
an investigating authority "determine[s], in a review … that the expiry of the duty would be likely to
lead to continuation or recurrence of dumping and injury".722
7.543. The ordinary meaning of "determine" includes to "bring to an end a … doubtful matter; to
conclude, settle, decide, fix", to "conclude from reasoning, investigation", and to "ascertain definitely

718 Oxford Dictionaries online, definition of "counteract"
https://www.oed.com/view/Entry/42649?redirectedFrom=counteract#eid (accessed 12 October 2020), v.,
meanings 1-2.
719 Article 11.1 is followed by Articles 11.2 and 11.3, which discipline so-called changed circumstances
reviews and sunset reviews; Article 11.4, which extends certain procedural provisions to both type of reviews;
and Article 11.5, which explains that these disciplines also apply to the duration and review of price
undertakings.
720 Panel Reports, US – Shrimp II (Viet Nam), para. 7.363; EU – Cost Adjustment Methodologies II
(Russia), para. 7.567; Ukraine – Ammonium Nitrate, paras. 7.7, 7.34, and 7.46; US – Corrosion-Resistant
Steel Sunset Review, paras. 7.28, 7.95, and 7.300; and EC – Tube or Pipe Fittings, para. 7.113. See also
721 Emphasis added.
722 Emphasis added.

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by observation, examination" 723; and the ordinary meaning of "review" includes an "inspection,
examination".724 Further, the ordinary meaning of the word "likely" includes "having a high chance
of occurring; probable", and "that looks as if it would happ en, be realized, or prove to be what is
alleged or suggested; probable".725 Together, these terms indicate that a Member may not rely solely
on assumption or speculation when conducting a likelihood analysis during a sunset proceeding but
must, instead, conduct its examination on the basis of positive evidence so as to arrive at a reasoned
determination, resting on a sufficient factual basis 726, that dumping and injury are "likely" –
i.e. probable and not merely possible727 – to continue or recur.
7.544. Regarding the likelihood that dumping will continue or recur, one of the questions before us
is whether and to what extent Article 2 applies in the context of reviews conducted under
Article 11.3. We note that Article 11.3 does not require a determination of dumping, but rather a
determination that expiry of the duty would be likely to lead to continuation or recurrence of
dumping. Thus, an investigating authority is not required to determine a margin of dumping in the
context of a sunset review.728 However, in determining likelihood of dumping, an authority may rely
on margins of dumping. If it does so, those dumping margins must then conform to the requirements
of Article 2, because Article 2.1 of the Anti -Dumping Agreement sets forth a single definition of
dumping "[f]or the purpose of this Agreement". Similar to the view taken in previous disputes , we
are therefore of the view that under Article 11.3, when an authority is in a position to rely on dumping
margins, and it chooses to rely on dumping margins t o determine the likelihood of continuation or
recurrence of dumping, it must do so in a way that conforms to the disciplines of Article 2.729
7.545. Similar to dumping, we note that Article 11.3 does not require a determination of injury, but
rather a determinati on of whether the expiry of a duty would be likely to lead to continuation or
recurrence of injury. Therefore, in a sunset review, an investigating authority is not required to make
a determination of injury within the meaning of Article 3.730 However, to d etermine likelihood of
injury, an authority may choose to, or even have to, evaluate certain of the factors mentioned in
Article 3 and conduct analyses akin to those mandated by Article 3.731 To that extent, the disciplines
in Article 3 may be relevant to i nterpret the obligation to determine likelihood of injury under
Article 11.3.732
7.546. Finally, Article 11.3 requires the authority to "determine … that the expiry of the duty would
be likely to lead to continuation or recurrence of dumping and injury".733 Thus, Article 11.3 requires
the authority to ascertain whether there is a relationship (or "nexus" 734) between the expiry of a
duty, on the one hand, and continuation or recurrence of dumping and injury, on the other, such
that the former "would be likely to lead to" the latter.

723 Oxford Dictionaries online, definition of "determine"
https://www.oed.com/view/Entry/51244?redirectedFrom=determine#eid (accessed 8 October 2020), v.,
meanings II.4, II.10, and II.11.
724 Oxford Dictionaries online, definition of "review"
https://www.oed.com/view/Entry/164850?rskey=3wbCMT&result=1&isAdvanced=false#eid (accessed
8 October 2020), n., meaning I.4.a.
725 Oxford Dictionaries online, definition of "likely"
https://www.oed.com/view/Entry/108315?rskey=Wod6SQ&result=1&isAdvanced=false#eid (accessed
8 October 2020), adj., meanings II.2.a and II.2.d.
726 Panel Reports, US – Corrosion-Resistant Steel Sunset Review, para. 7.271; Ukraine – Ammonium
Nitrate, para. 7.16; Appellate Body Reports, US – Corrosion-Resistant Steel Sunset Review, paras. 110-115;
and US – Oil Country Tubular Goods Sunset Reviews, paras. 179-180.
727 See also e.g. Appellate Body Reports, US – Corrosion-Resistant Steel Sunset Review, para. 111; and
US – Oil Country Tubular Goods Sunset Reviews, para. 308.
728 See also Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, paras. 123 and 127;
Panel Reports, EU – Cost Adjustment Methodologies II (Russia), para. 7.270; and US – Shrimp II (Viet Nam),
para. 7.306.
729 Appellate Body Reports, US – Corrosion-Resistant Steel Sunset Review, para. 127; US – Zeroing
(Japan), paras. 183-185. Panel Reports, EU – Cost Adjustment Methodologies II (Russia), para. 7.270;
Ukraine – Ammonium Nitrate, para. 7.130; and US – Shrimp II (Viet Nam), para. 7.306.
730 See also Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 279; and
Panel Report, Ukraine – Ammonium Nitrate, para. 7.166.
731 See also Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 284.
732 See also e.g. Panel Report, EU – Cost Adjustment Methodologies II (Russia), paras. 7.381-7.383.
733 Emphasis added.
734 Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods, para. 108. See
also ibid. para. 123.

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7.12.2 Whether the NTC's likelihood of dumping determination is inconsistent with
Article 11.3
7.547. The United Arab Emirates argues that the NTC's determination that dumping from the
United Arab Emirates was likely to continue or recur is inco nsistent with Article 11.3 on multiple
grounds. In particular, the United Arab Emirates argues that : in making its likelihood of dumping
determination, the NTC relied on dumping margins that were inconsistent with Article 2 of the
Anti-Dumping Agreement735; two of the other three factors relied upon by the NTC did not support
the NTC's finding that dumping was likely to continue or recur if the duties expired736; and the NTC
failed to take into consideration that during the period of review the prices of the subject imports
had increased significantly and had consistently been higher than those of the domestic producers,
even before accounting for the anti -dumping duties.737 Below, we consider the first two of these
three sets of arguments and find that the United Arab Emirates has established, on that basis, that
the NTC's determination of likelihood of dumping is inconsistent with Article 11.3. We therefore do
not proceed to consider the remainder of the United Arab Emirates' arguments against the
NTC's likelihood of dumping determination.
7.12.2.1 Whether the NTC acted inconsistently with Article 11.3 by relying on a dumping
margin that did not conform to Article 2 of the Anti-Dumping Agreement
7.548. In determining that dumping was likely to continue or recur, the NTC relied on what it called
"likely dumping margins". The United Arab Emirates argues that these dumping margins 738 were
inconsistent with Article 2 of the Anti-Dumping Agreement and therefore that, by relying on them to
determine that dumping was likely to continu e or recur, the NTC acted inconsistently with
Article 11.3.739
7.549. Pakistan responds that the NTC did not calculate company -specific dumping margins, but
"likely dumping margins" at the country level, i.e. estimates or proxies for likely country-wide pricing
behaviour. Pakistan argues that, therefore, the disciplines of Article 2 do not apply.740
7.550. The parties' arguments raise two questions, which we examine in turn: (a) were what the
NTC called "likely dumping margins" subject to the requirements of Article 2 of t he
Anti-Dumping Agreement; and (b) if so, were those "likely dumping margins" inconsistent with
Article 2 and, therefore, with Article 11.3? We answer both questions in the affirmative.
7.12.2.1.1 Whether the NTC's "likely dumping margins" are subject to Article 2
7.551. We first consider whether what the NTC referred to as likely dumping margins are subject
to the substantive requirements of Article 2, as the United Arab Emirates argues.
7.552. According to Pakistan, the NTC did not calculate individual dumping margins in the sense of
Article 2741, but rather "country-wide estimates"742 of "the likely future pricing behaviour of exporters

735 See e.g. United Arab Emirates' first written submission, paras. 490 and 532-538; second written
submission, paras. 235-237 and 248-251.
736 See e.g. United Arab Emirates' first written submission, para. 541; second written submission,
paras. 238 and 252-254.
737 United Arab Emirates' first written submission, para. 540; response to Panel question No. 78. See
also United Arab Emirates' second written submission, para. 234; written opening statement, para. 111; and
response to Pakistan's written opening statement, para. 49.
738 Specifically, the dumping margin calculated for BOPP film from the United Arab Emirates, since the
United Arab Emirates challenges the anti-dumping measures on BOPP film from the United Arab Emirates.
739 United Arab Emirates' first written submission, paras. 532 and 534. See also
United Arab Emirates' opening statement at the first meeting of the Panel, para. 78;
second written submission, paras. 235 and 249; written opening statement, para. 107; response to Panel
question No. 92, para. 15; and comments on Pakistan's response to Panel question No. 92, p. 11.
740 Pakistan's first written submission, paras. 3.637-3.644; second written submission, section 2.11.2.3;
written opening statement, paras. 112-119; response to United Arab Emirates' written opening statement,
paras. 72-73; comments on United Arab Emirates' response to Panel question No. 92; and response to Panel
question No. 92, paras. 32-33.
742 Pakistan's second written submission, para. 2.307.

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from the relevant countries". 743 Pakistan argues that, therefore, the NTC's calculations are not
subject to the rules of Article 2.744
7.553. To make our assessment, we turn to the NTC's determination.
7.554. The NTC explained in its Report on sunset determination that "[t]o determine likelihood of
recurrence or continuation of dumping … the [NTC] has considered"745 several factors, among which
"[l]ikelihood of dumping and calculation of likely dumping margins for exporters/foreign producers
of the Exporting Countries". 746 It explained how it calculated t hese "likely dumping margins" in a
section entitled "Determination of dumping and calculation of dumping margins for exporters/foreign
producers of the Exporting Countries".747 While the specific manner in which a Member designates
its actions in domestic law does not conclusively determine how those actions can properly be
characterized under the covered agreements, we note that the NTC described what it was doing as
a "calculation of likely dumping margins" and a "determination of dumping".
7.555. In explaining how it determined these likely dumping margins, the NTC began by quoting
Sections 4, 5, and 6(1) of the Pakistani Anti -Dumping Duties Act (2015), which define dumping
(Section 4), normal value (Section 5), and alternative bases for determining normal value
(Section 6(1)) in Pakistani law 748, and are similar to Articles 2.1 and 2.2 of the
Anti-Dumping Agreement. The text of these provisions is also identical to that of the provis ions
quoted at the outset of the section on "Determination of Dumping" in the Report on final
determination of 4 February 2013.749
7.556. After quoting Sections 4, 5 , and 6(1) of the Anti -Dumping Duties Act (2015), the NTC
explained in its report that it had received responses to the questionnaire from two exporters from
Dubai and Oman – i.e. Taghleef ( Taghleef LLC, Dubai ) and Taghleef SAOC ( Taghleef SAOC,
Oman).750 It further explained that the "likely normal value for Oman, Saudi Arabia, and
United Arab Emirates for the [period of review] is constructed on the basis of cost to make and sell
of Taghleef LLC, Dubai, and Taghleef SAOC, Oman, which they have provided in response to the
questionnaire".751 It appears that the NTC constructed a single normal value based on the combined
costs to make and sell of the two cooperating exporters for the year 2014, which it then assigned to
each of the three aforementioned countries. 752 The NTC then compared 753 the constructed normal
value754 with country-wide export price s determined for each country separately on the basis of
import statistics obtained from PRAL.755 The NTC also listed a number of adjustments it had made

743 Pakistan uses various formulations. It argues that the NTC sought to analyse "likely country-wide of
pricing behaviour", and to that effect calculated "proxies for likely future pricing behaviour", "country-wide
estimates of likely dumping", "likely future dumping proxy figure[s]", "country-wide pricing behaviour proxies",
"country-wide dumping trends", and "other dumping-type calculations". (Pakistan's first written submission,
paras. 3.612, 3.639, and 3.644; second written submission, paras. 2.307, 2.311, and 2.314).
744 Pakistan's first written submission, para. 3.639. See also ibid. para. 3.612; written opening
statement, paras. 115 and 117; response to Panel question No. 92, paras. 32-33; and comments on
United Arab Emirates' response to Panel question No. 92, paras. 23 and 25.
745 Report on sunset determination, public version, (Exhibit ARE-4), para. 25.
746 Report on sunset determination, public version, (Exhibit ARE-4), para. 25(ii). (emphasis added)
747 Report on sunset determination, public version, (Exhibit ARE-4), section 28. (emphasis added)
748 Report on sunset determination, public version, (Exhibit ARE-4), pp. 12-13.
749 In the Report on final determination of 4 February 2013, the NTC quoted at the outset of the
section of the report on "Determination of Dumping", among other provisions, Sections 4, 5, and 6(1) of the
Anti-Dumping Duties Ordinance (2000), which are identical, word-for-word with Sections 4, 5, and 6(1) of the
Anti-Dumping Duties Act (2015), as quoted in the Report on sunset determination. (Report on final
determination (2013), (Exhibit PAK-1 (BCI)), pp. 22-23; Report on sunset determination, public version,
(Exhibit ARE-4), pp. 12-13. See also United Arab Emirates' opening statement at the first meeting of the Panel,
para. 78; second written submission, para. 248 (referring to Report on final determination (2013),
(Exhibit PAK-1 (BCI)), pp. 22-24)).
750 Report on sunset determination, public version, (Exhibit ARE-4), paras. 28.3-28.4.1.
751 Report on sunset determination, public version, (Exhibit ARE-4), para. 28.4.2.
752 NTC's explanation of sunset methodology, (Exhibit ARE-27 (BCI)), section 4.1; Report on sunset
determination, (Exhibit PAK-2 (BCI)), annex-II and table-VI.
753 Report on sunset determination, (Exhibit PAK-2 (BCI)), table-VI.
754 We note that the NTC used the phrase "constructed normal value". (NTC's explanation of sunset
methodology, (Exhibit ARE-27 (BCI)), section 4.1; Report on sunset determination, (Exhibit PAK-2 (BCI)),
annex-II).
755 NTC's explanation of sunset methodology, (Exhibit ARE-27 (BCI)), section 4.2; Report on sunset
determination, (Exhibit PAK-2 (BCI)), para. 28.5, table-V, and annex-IV.

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to the export price "to reach at ex -works level for like to like comparison of the normal value and
export price".756 Further, before setting out the results of its calculations of "normal value", "export
price", and "dumping margin" for each of the four investigated exporting countries757, the NTC
quoted the definition of "dumping margin" from the Anti -Dumping Duties Act (2015), stating that
"[t]he Act defines 'dumping margin' in relation to a product as 'the amount by which its normal value
exceeds its export price'".758
7.557. In support of its position that the NTC was not calculating margins of dumping, Pak istan
points out that the NTC's calculations were country-wide.759 However, as described above, the steps
actually taken by the NTC to calculate the "likely dumping margins" at issue , the provisions of
domestic law invoked by the NTC, and the manner in which the NTC described its determination, all
indicate that the NTC calculate d margins of dumping 760 and rel ied on these margins when
determining whether dumping was likely to continue or recur. The question of the consistency of
these margins with the applicable requirements is a separate one.
7.558. Pakistan also points out that it did not modify the anti -dumping duty rates to reflect the
"likely dumping margins" at issue here; instead, it left anti-dumping duty rates unchanged after the
sunset review.761 However, th is does not change the outcome of our analysis. If in determining
whether dumping is likely to continue or recur, an authority is in a position to rely on dumping
margins and chooses to do so, then Article 11.3 requires it to abide by the requirements of Article 2
in calculating those dumping margins.762 This does not depend on whether those margins are then
also used as a basis to update the anti-dumping duty rates.
7.559. Finally, Pakistan submits that the NTC would not have been able to calculate individual
dumping margins because its exporter questionnaire in the sunset review did not request
transaction-specific data from exporters, but rather aggregate values and volumes of domestic and
export sales. 763 The UAE responds that the sunset review questionnaire required "the same
categories of data … that the NTC relied on in … calculating dumping margins in the original
investigation".764 Pakistan appears to confuse the question whether Article 2 applies, wit h the
separate and logically subsequent question whether the dumping margins are consistent with
Article 2. If an authority calculates dumping margins in a manner that is not consistent with Article 2,
that does not mean that Article 2 does not apply. Therefore, with reference to this specific argument
by Pakistan, if an authority collects data from exporters that would not allow it to calculate dumping
margins in a manner consistent with Article 2, that does not mean that Article 2 does not apply.
7.560. In sum, the calculations performed by the NTC, the provisions the NTC invoked and the
wording it used in its determination, taken together, indicate that the NTC calculated margins of
dumping and relied upon them in determining whether dumping was likely to contin ue or recur.
Thus, the NTC first calculate d normal values, and in order to do so, it turned to the questionnaire
responses of the cooperating exporters and stated that it would construct normal value on the basis
of the cost data submitted by those exporte rs. It then calculate d an export price , and derive d
margins of dumping by comparing the normal values and export prices it had so established. In doing
so, it cited provisions of domestic law concerning the definition and determination of dumping,
normal value, and dumping margins. We note, in addition, that the NTC set out the results of this
exercise in a table entitled "Dumping Margins". 765 All of these elements taken together, which we

756 NTC's explanation of sunset methodology, (Exhibit ARE-27 (BCI)), section 4.2; Report on sunset
determination, public version, (Exhibit ARE-4), para. 28.5. (emphasis added)
757 Report on sunset determination, public version, (Exhibit ARE-4), table-IV.
758 Report on sunset determination, public version, (Exhibit ARE-4), para. 28.6.1. (emphasis original)
759 Pakistan's written opening statement, para. 117. See also ibid. paras. 114 and 118; responses to
Panel question No. 87, paras. 6 and 8, and No. 92, para. 32; and comments on United Arab Emirates' response
to Panel question No. 92, paras. 22-24.
760 This is without prejudice to the question of the consistency of those margins of dumping with the
applicable requirements.
761 Pakistan's first written submission para. 3.640; second written submission, para. 2.313. See also
Pakistan's written opening statement, paras. 114 and 118; response to Panel question No. 87, para. 6; and
comments on United Arab Emirates' response to Panel question No. 92, para. 24.
762 See para. 7.544 above.
763 Pakistan's first written submission, para. 3.641; second written submission, para. 2.312; and written
opening statement, para. 115.
764 United Arab Emirates' second written submission, para. 248.
765 Report on sunset determination, (Exhibit PAK-2 (BCI)), table-VI.

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have described in more detail above, indicate that the NTC calculated margins of dumping. 766
Immediately after setting out its calculations of dumping margins, the NTC stated that "[o]n the
basis of above information and analysis the [NTC] has reached the conclusion [that] there is
likelihood of continuation or recurrence of dumping of the product under review if antidumping duties
imposed on it are terminated" 767: that is, it relied on those margins in determining that dumping
was likely to continue or recur. While Article 11.3 does not require authorities to calculate
(or otherwise rely upon) dumping margins in a sunset review, when an authority is in a position to
rely on dumping margins and chooses to rely on dumping margins under Article 11.3, these must
conform to the requirements of Article 2.768 Therefore, given that the NTC chose to calculate and
rely upon dumping margins in determining whether dumping was likely to continue or recur, these
dumping margins are subject to the requirements of Article 2.
7.12.2.1.2 Whether the dumping margin that the NTC relied upon for the
United Arab Emirates is inconsistent with Article 2
7.561. Having found that, in determining that dumping from the United Arab Emirates was likely to
continue or recur, the NTC relied upon a margin of dumping that was subject to the requirements of
Article 2, we now examine whether the United Arab Emirates has established that that dumping
margin does not conform with the requirements of Article 2. The United Arab Emirates argues that
the margin of dumping that the NTC relied upon for the United Arab Emirates was inconsistent with
Article 2 for the following reasons: (a) because the NTC constructed normal value when the
conditions for doing so were not met769 or, in the alternative, because the NTC did not en sure that
the costs of production it used pertained to the product sold in the United Arab Emirates770;
(b) because the NTC established the export price using data from its official import statistics rather
than data submitted by the investigated exporters 771; and (c) because the NTC failed to ensure a
fair comparison between normal value and export price.772
7.562. Below, we find that the NTC constructed normal value without establishing that the
conditions for doing so were met. Because the resulting margin of dum ping was therefore
inconsistent with Article 2, the determination that dumping was likely to continue or recur was
inconsistent with Article 11.3. We therefore do not proceed to examine the
United Arab Emirates' additional arguments regarding the export pr ice and the fairness of the
comparison between the normal value and the export price.
7.12.2.1.2.1 Normal value
7.563. The NTC constructed a single normal value on the basis of the data submitted by Taghleef
(Taghleef LLC, Dubai) and Taghleef SAOC (Taghleef SAOC, Oman), which it then assigned, among
others, to the United Arab Emirates.773 The NTC did not explain why it chose to construct normal
value.
7.564. The United Arab Emirates recalls that normal value can be constructed only in one of the
three situations set out in Article 2.2, which are: (a) when there are no sales in the exporting country
of the like product in the ordinary course of trade; (b) when sales in the exporting country's market
do not permit a proper comparison because of the particular market situation; and (c) when sales

766 This is without prejudice to the consistency of the NTC's calculations with Article 2, which we
consider in the following section.
767 Report on sunset determination, public version, (Exhibit ARE-4), para. 28.7.
768 See para. 7.544 above.
769 United Arab Emirates' first written submission, para. 535. See also United Arab Emirates' second
written submission, paras. 235, 249, and 251; and written opening statement, para. 107.
770 United Arab Emirates' first written submission, para. 536; second written submission, para. 250. See
also United Arab Emirates' written opening statement, para. 108.
771 United Arab Emirates' first written submission, paras. 537-538; second written submission,
paras. 237 and 250. See also United Arab Emirates' first written submission, para. 533; opening statement at
the first meeting of the Panel, para. 78; written opening statement, paras. 107 and 109; response to Panel
question No. 92, para. 15; and comments on Pakistan's response to Panel question No. 92, p. 11.
772 United Arab Emirates' first written submission, para. 537; second written submission paras. 237
and 250; and written opening statement, para. 109.
773 Report on sunset determination, public version, (Exhibit ARE-4) para. 28.4.2; Report on sunset
determination, (Exhibit PAK-2 (BCI)), para. 28.4.2; and annex-II. See also NTC's explanation of sunset
methodology, (Exhibit ARE-27 (BCI)), section 4.1.

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in the exporting country's market do not permit a proper comparison because of their low volume.
The United Arab Emirates argues that "[t]here is no evidence or explanation [of] which of these
three situations justified the construction of normal value", and therefore the NTC was not justified
in constructing normal value.774
7.565. Pakistan responds that "the NTC did not have to explain why it chose to construct the normal
value proxy … or follow the rules governing when an investigating authority may rely on constructed
normal value"775, because the NTC's calculation of "likely dumping margins" was not subject to the
disciplines of Article 2.
7.566. We have found above that the NTC relied upon margins of dumping that are subject to the
requirements o f Article 2. However, the NTC constructed normal value without establishing the
existence of any of the three situations in which an authority may construct normal value pursuant
to Article 2.2. Therefore, the NTC constructed normal value inconsistently with Article 2.2. It was on
the basis of this normal value that the NTC calculated the margin of dumping that it relied on to
determine that dumping was likely to continue or recur.776 As a result, the NTC's determination that
dumping was likely to continue or recur was inconsistent with Article 11.3.777
7.567. The United Arab Emirates' alternative argument that the NTC made no attempt "to ensure
that the costs of production used were those for the product as sold in the United Arab Emirates and
not for other markets"778 is premised on us finding that the NTC's decision to construct normal value
was justified, and we therefore do not consider it.
7.12.2.1.2.2 Conclusion on the dumping margin that the NTC relied upon
7.568. We have found that in determining that dumping from the United Arab Emirates was likely
to continue or recur, the NTC relied on a margin of dumping, and that in establishing this margin of
dumping the NTC constructed normal value without establishing that the conditions for doing so
were met. As a result, that margin of dumping is inconsistent with Article 2 and, therefore, the
determination that dumping was likely to continue or recur, which was based on that margin of
dumping, is inconsistent with Article 11.3.
7.569. Having so found, we do not examine the United Arab Emirates' additional arguments
regarding the export price and the fairness of the comparison between the normal value and the
export price.
7.12.2.2 Whether the NTC acted inconsistently with Article 11.3 in finding that the
stability of export destinations and the existence of exportable surplus supported its
determination that dumping was likely to continue or recur
7.570. In addition to asserting that the NTC relied on dumping margins that were inconsistent with
Article 2, the United Arab Emirates also argues that the NTC's determination that dumping was likely
to continue or recur did not otherwise rest on a sufficient factual basis 779 and was not adequately
explained.780
7.571. In addition to relying on the dumping margin discussed in the previou s section, the NTC
considered three other factors as part of its likelihood of dumping analysis 781: (a) whether exports
to Pakistan had continued or stopped after the imposition of duties 782; (b) whether the exporters

774 United Arab Emirates' first written submission, para. 535. See also United Arab Emirates' second
written submission, paras. 235, 249, and 251; and written opening statement, para. 107.
775 Pakistan's first written submission, para. 3.642. See also Pakistan's response to Panel question
No. 87, para. 6.
776 Report on sunset determination, (Exhibit PAK-2 (BCI)), para. 28.4.2 and table-VI. See also
ibid. annex-II.
777 See para. 7.544 above.
778 United Arab Emirates' first written submission, para. 536; second written submission, para. 250. See
also United Arab Emirates' written opening statement, para. 108.
779 United Arab Emirates' first written submission, para. 531. See also ibid. paras. 489-490, 529, 539,
and 544.
780 United Arab Emirates' first written submission, para. 539.
781 Report on sunset determination, public version, (Exhibit ARE-4), para. 25.
782 Report on sunset determination, public version, (Exhibit ARE-4), section 27.

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developed other export markets after the imposition of duties783; and (c) whether the exporters had
an exportable surplus of the product under review. 784 The United Arab Emirates challenges the
findings made by the NTC with respect to the second and third of these factors785, arguing that they
do not support a finding of likelihood of dumping.786 We discuss them in turn, below.
7.12.2.2.1 The NTC's reliance on its finding that "major export destinations of the
exporting countries remained same/similar after imposition of duties"
7.572. In assessing whether dumping was likely to continue or recur, the NTC reviewed the
investigated countries' exports to their "major export destinations" in 2012 and 2015, and found
that their "major export destinations … remained same/similar after imposition of anti -dumping
duties".787
7.573. According to the United Arab Emirates, "this … confirmed that there was not going to be a
reason to expect major shifts back towards the Pakistan market if duties were terminated", as it
indicated that the duties had no impact on export trends. 788 The United Arab Emirates argues that
the NTC "failed to incorporate this finding in its overall assessment or to explain why this fact did
not detract from its likelihood determination".789
7.574. Pakistan responds that the stability of the export market suggests that the "exporters chose
not to develop new markets for the export volumes previously destined for Pakistan while the
[anti-]dumping measure was in place", which "in turn, suggests that the production capacity
previously dedicated to exports to Pakistan – not havin g any alternative outlet market – would
presumably be available and could easily be used again for exports to Pakistan if the duties were
removed".790 While this explanation may potentially have been a plausible one, it is not reflected in
the NTC's determination, or in its separate report, and Pakistan has not pointed to other elements
of the record showing that this was the NTC's reasoning. Hence, we are unable to accord any weight
to this particular explanation.
7.575. We note that the NTC did not provide any explanation of how its finding that "major export
destinations … remained same/similar"791 supported, or related to, its final conclusion that dumping
was likely to continue or recur. In reaching that conclusion, the NTC merely asserted that it was
based on the "information and analysis" in the preceding paragraphs.792 Therefore, we find that the
NTC failed to provide a reasoned and adequate explanation of how its finding that major export
destinations remained stable related to its final conclusion that dumpi ng was likely to continue or
recur if duties were terminated.
7.12.2.2.2 The NTC's reliance on its finding of exportable surplus
7.576. The NTC found that the exporting Members concerned had exportable surplus of the product
under review and relied on this finding to support its determination that dumping was likely to
continue or recur.793
7.577. We note that the NTC based its finding that the United Arab Emirates, among others, had
exportable surplus, on:

783 Report on sunset determination, public version, (Exhibit ARE-4), section 29.
784 Report on sunset determination, public version, (Exhibit ARE-4), section 30.
785 United Arab Emirates' first written submission, paras. 541-543; second written submission,
paras. 238 and 252; response to Pakistan's written opening statement, paras. 55-56; and comments on
Pakistan's response to Panel question No. 93, pp. 13-14.
786 United Arab Emirates' first written submission, para. 541; second written submission, para. 238.
787 Report on sunset determination, public version, (Exhibit ARE-4), para. 29.3.
788 United Arab Emirates' first written submission, para. 541; second written submission, para. 238.
789 United Arab Emirates' first written submission, para. 541.
791 Report on sunset determination, public version, (Exhibit ARE-4), para. 29.3.
792 Report on sunset determination, public version, (Exhibit ARE-4), para. 30. See also ibid. para. 31.
793 Report on sunset determination, public version, (Exhibit ARE-4), para. 30.

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a. a statement from the website of the Taghleef Industries Group, which we describe in more
detail below794; and
b. a table listing the investigated countries' quantities of exports of the "product group which
includes the product under review"795 for 2012 and 2015.796
7.578. The United Arab Emirates argues that the NTC's finding of exportable surplus was not
supported by sufficient facts, because it was based on a generic statement on Taghleef's website to
the effect that it had grown since its inception in 2006, and on non-specific data on the export trends
of the i nvestigated countries. 797 The United Arab Emirates also argues that the NTC's finding of
exportable surplus lacked a reasoned and adequate explanation.798
7.579. Pakistan responds that the NTC relied on statements from the exporters' websites "attesting
to the increase in their productive capacity" 799 and that the "only reasonable conclusion that could
be drawn from the statement [from Taghleef's website] was that Taghleef had increased its capacity
during the [period of review]".800 Pakistan further argues that the NTC did not have information on
exports of BOPP film from the investigated countries and considered that export trends for the
product group that included BOPP film provided "meaningful information" also with respect to BOPP
film.801
7.580. We begin our analysis b y considering the statements from the website of the Taghleef
Industries Group, which includes Taghleef. After indicating that the Taghleef Industries Group was
"one of the largest global manufacturers" of BOPP film and various other types of film, it read:
Since its inception, the Ti Group has grown by both acquiring in strategic manufacturing
entities around the world and investing in new capacities for its organic growth strategy.
Today, Ti has nine manufacturing facilities on five continents: 2 faciliti es in
Asia/Middle East (Dubai, Oman), 3 in Europe (Italy, Hungary and Spain) and one each
in Australia (Wodonga), Africa (Egypt), USA (Indiana), and Canada (Québec).802
7.581. From this, the NTC inferred that Taghleef had increased its installed capacity and there fore
had exportable surplus.803 The United Arab Emirates argues that this statement does not constitute
positive evidence supporting these inferences. 804 The United Arab Emirates points out, first, that
Taghleef Industries Group's "inception" was in 2006, well before the period of review805 and, second,
that it has had since its inception only two "two manufacturing 'facilities in Asia/Middle East (Dubai,

794 Report on sunset determination, public version, (Exhibit ARE-4), para. 30.2. The NTC also relied on
statements from the websites of two Saudi Arabian producers. (Ibid. paras. 30.3-30.4). Pakistan takes issue
with the fact that the United Arab Emirates does not address the statements relating to Saudi Arabia in its
arguments. (Pakistan's first written submission, para. 3.664). However, the United Arab Emirates' challenge is
limited to anti-dumping measures on BOPP film from the United Arab Emirates. When reviewing the
NTC's determination that dumping from the United Arab Emirates was likely to continue or recur, the website
statements relating to Saudi Arabia are not relevant.
795 Report on sunset determination, public version, (Exhibit ARE-4), para. 30.5. (emphasis added)
796 Report on sunset determination, public version, (Exhibit ARE-4), para. 30.5 and table-VIII. In
responding to a question from the Panel, Pakistan indicated that the NTC's finding of exportable surplus also
rested on its separate finding that the exporting countries continued to export BOPP film to Pakistan, which
meant they had maintained business links to Pakistan, and could increase exports to Pakistan on relatively
short notice once the duties were revoked. However, this explanation is not reflected in the NTC's report.
(Pakistan's response to Panel question No. 77).
797 United Arab Emirates' first written submission, para. 542; second written submission, para. 238; and
comments on Pakistan's response to Panel question No. 93, p. 13.
798 United Arab Emirates' first written submission, para. 542; second written submission, para. 238; and
comments on Pakistan's response to Panel question No. 93, p. 13.
799 Pakistan's response to Panel question No. 93, para. 39.
800 Pakistan' written opening statement, para. 122. See also ibid. para. 121; Pakistan's first written
submission, para. 3.663; and response to Panel question No. 77.
801 Pakistan's response to Panel question No. 77. See also Pakistan's response to Panel question No. 93,
paras. 37-38.
802 Report on sunset determination, public version, (Exhibit ARE-4), para. 30.2.
803 Report on sunset determination, public version, (Exhibit ARE-4), paras. 30.2 and 30.
804 United Arab Emirates' first written submission, para. 543; second written submission, paras. 238
and 254.
805 United Arab Emirates' first written submission, para. 543; second written submission, para. 254. See
also United Arab Emirates' response to Pakistan's written opening statement, para. 55.

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Oman)", and has not added any other facilities in the countries subject to the anti-dumping
measures.806
7.582. In our view, it is not clear from the statement quoted by the NTC to what extent, when, and
in which countries the Taghleef Industries Group increased its production capacity. Therefore, in the
absence of further information or explanation, this statement does not constitute positive evidence
supporting the NTC's finding that the United Arab Emirates had exportable surplus.807
7.583. In answer to a question we posed during the written exchange that replaced the second
substantive meeting, Pakistan pointed out that the questionnaire replies of cooperating exporters
contained data on a number of variables including production capacity, and indicated that the NTC
relied on those data in reaching its finding of exportable surplus. 808 We note th at the Report on
sunset determination refers generically to "information" submitted by "cooperating exporters ",
including "Taghleef Dubai"809, but only discusses and appears to rely upon the web site statements
referred to above.810
7.584. We now turn to the data on exports in 2012 and 2015. The NTC listed the following data on
the investigated countries' exports of a "product group which includes the product under review …
before and after the imposition of antidumping duties"811:
Table-VIII
Export of the Exporting Countries (MT)
Exporting country 2012 2015
China 299,100 358,763
Oman 36,569 44,284
[Kingdom of
Saudi Arabia]
80,375 84,069
UAE 58,103 47,377
Source: www.trademap.org
7.585. The United Arab Emirates argues that because the data related to a broader product group
than BOPP film it did not constitute positive evidence on export trends for BOPP film 812, and that
there is no explanation as to how this data supported the finding that there was an exportable
surplus of BOPP film and the ultimate conclusion that dumping was likely to continue or recur.813
7.586. We note that the NTC indeed stated in its report that data for BOPP film alone were not
available, and that it therefore relied on "broadly categorized" data for "the product group [that]
includes" BOPP film, obtained from the International Trade Centre (www.trademap.org).814
7.587. Pakistan argues that in the absence of more precise data "the NTC concluded that the trends
observed with respect to the six-digit level provided meaningful information also with respect to the
eight-digit level sub -products"815, but has not explained why this is the case, nor is such an
explanation found in the report.

806 United Arab Emirates' response to Pakistan's written opening statement, para. 55.
807 Report on sunset determination, public version, (Exhibit ARE-4), para. 30.
808 Pakistan's response to Panel question No. 93, para. 35.
809 Report on sunset determination, public version, (Exhibit ARE-4), paras. 30.1-30.2.
810 See also United Arab Emirates' comments on Pakistan's response to Panel question No. 93.
811 Report on sunset determination, public version, (Exhibit ARE-4), para. 30.5 and table-VIII.
(emphasis added)
812 United Arab Emirates' first written submission, para. 542. See also United Arab Emirates' second
written submission, paras. 238 and 253; and comments on Pakistan's response to Panel question No. 93,
p. 13.
813 See e.g. United Arab Emirates' second written submission, para. 253. See also United Arab Emirates'
first written submission, para. 541.
814 Report on sunset determination, public version, (Exhibit ARE-4), para. 30.5. See also
ibid. para. 29.1.
815 Pakistan's response to Panel question No. 77, p. 33.

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7.588. As already noted, in answer to a question we posed during the written exchange that
replaced the second substantive meeting, Pakistan indicated that in reaching its finding of exportable
surplus the NTC also relied upon certain data in the questionnaire replies of cooperating exporters,
which included data on export sales. 816 However, we note that in discussing the "information on
exports of the product under review from the Exporting Countries" as part of its analysis of
exportable surplus, the NTC relied exclusively on the data from the International Trade Center,
pertaining to a broader product group than BOPP film.817
7.589. We therefore find that by basing its findings on data for a broader product group than the
product under review, and in the absence of any additional explanation of why t hose data were
nonetheless representative of trends for BOPP film, the NTC failed to rely on positive evidence.
7.590. To recall, the United Arab Emirates also argues that, in any event, there is no explanation
of how the data supported the finding that there was exportable surplus and the ultimate conclusion
that dumping was likely to continue or recur.818
7.591. Pakistan submits that the data relied on by the NTC "indicates that every country that was
subject to the original anti -dumping duties, except for the UAE, increased its exports from the
beginning of the [period of review] (2012) to the end of the [period of review] (2015)".819 Pakistan
further argues that "[t]he NTC observed that even though exports increased throughout the [period
of review], they increased to existing markets of the exporting countries".820 According to Pakistan,
the fact that the "exporters did not develop new markets to which they could export the increased
quantities of BOPP Film they had at their disposal" supported the NTC's finding "that there was an
increased availability in these countries of the investigated product for export sales".821
7.592. We note that we have been offered no record evidence that NTC explained how the data set
out in table-VIII supported its finding that there was exportable surplus and therefore that dumping
was likely to continue or re cur, but rather merely cited that data. Therefore, we are unable to
consider Pakistan's explanations on the significance of that data, made in the context of this dispute,
in assessing the NTC's explanation of its findings.822
7.593. We therefore also find that th e NTC failed to explain how the data it relied upon supported
its finding that there was exportable surplus and therefore that dumping was likely to continue or
recur.
7.12.2.3 Conclusion under Article 11.3 on the NTC's likelihood of dumping determination
7.594. As summa rized above, the NTC relied on four factors in its analysis of likelihood of
continuation or recurrence of dumping. 823 We have found deficiencies in the NTC's analysis with
respect to the three of those four factors, as discussed in the preceding sections. First, we have
found that the NTC's calculation of dumping margins did not conform with the requirements of
Article 2 and, therefore, was inconsistent with Article 11.3.824 Second, we have found that the NTC
failed to provide any explanation of how its finding that major export destinations of the investigated
countries remained the same or similar related to its conclusion that dumping was likely to continue
or recur.825 Third, we have found that the NTC's finding of exportable surplus was not based on

816 Pakistan's response to Panel question No. 93, para. 35.
817 Report on sunset determination, public version, (Exhibit ARE-4), para. 30.5. See also
United Arab Emirates' comments on Pakistan's response to Panel question No. 93.
818 See e.g. United Arab Emirates' first written submission, para. 542; and second written submission,
819 Pakistan's response to Panel question No. 93, para. 38. (emphasis original)
820 Pakistan's response to Panel question No. 93, para. 38 (emphasis original). We note that Pakistan
appears to be referring to the NTC's finding (in a different section of the report) that the "major export
destinations of the exporting countries remained same/similar after imposition of anti-dumping duties". (Report
on sunset determination, public version, (Exhibit ARE-4), para. 29.3).
821 Pakistan's response to Panel question No. 93, para. 38.
822 Panel Reports, US – Supercalendered Paper, para. 7.6; Korea – Pneumatic Valves (Japan),
823 See para. 7.571 above.
824 See para. 7.568 above.
825 See para. 7.575 above.

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positive evidence826, and also that the NTC failed to explain how the export data it relied upon
supported its conclusion that dumping was likely to continue or recur.827
7.595. We therefore conclude that the NTC's determination that dumping was likely to continue or
recur is inconsistent with Article 11.3 of the Anti-Dumping Agreement.
7.12.3 Whether the NTC's likelihood of injury determination is inconsistent with
Article 11.3
7.596. The United Arab Emirates argues that the NTC's determination that injury was likely to recur
was based on unwarranted inferences and assumptions, i.e. that the NTC failed to reach a reasoned
determination based on a sufficient factual basis, and to establish that the recurrence of injury was
likely rather than merely possible.828
7.597. In particular, the United Arab Emirates argues that the NTC acted inconsistently with
Article 11.3 in determining that if duties were terminated, it was likely that imports would increase,
domestic production would decrease, the market share of the domestic industry would decrease,
and the domestic industry would suffer price undercutting and price depression. We examine each
of these arguments in turn (sections 7.12.3.1 to 7.12.3.3), and we find that the
United Arab Emirates has established that the NTC's determination of likelihood of injury is
inconsistent with Pakistan's obligations under Article 11.3.
7.598. The United Arab Emirates also argues that the NTC's likelihood of injury determination was
inconsistent with Article 11.3 on a number of other grounds. However, having already found multiple
flaws in the NTC's analysis, we do not proceed to examine these further grounds put forward by the
United Arab Emirates (section 7.12.3.4).
7.12.3.1 Likely volume of imports and effects on domestic production
7.599. The NTC found that after the imposition of anti-dumping duties, there had been a significant
decline in imports from the countries subject to measures, imports from other sources remained in
the same range, and domestic production had significantly increased. From this, the NTC concluded
that if duties were terminated, imports of the product under review were likely to increase, which in
turn would likely "affect adversely" the domestic production of the like product.829
7.600. The United Arab Emirates argues that these conclusions of the NTC were mere assertions,
not supported by sufficient facts or analysis, and that the NTC did not establish that the increase in
imports and reduction in domestic production were likely, rather than merely possible.830
7.601. Pakistan responds that the "NTC reasoned that import volumes had declined significantly
after the introduction of the anti-dumping duties in 2013 and that, therefore, it was the anti-dumping
duties that triggered the rapid decline of imports" .831 Pakistan adds that the NTC had found
elsewhere that "after duty removal, exporters would seek to regain market share by lowering their
prices"832, and concluded that this would lead to an increase in import volumes833, which in turn
would result in a contraction in domestic sales and domestic production.834 According to Pakistan,

826 See paras. 7.582 and 7.589 above.
827 See para. 7.593 above.
828 United Arab Emirates' first written submission, paras. 529-530, 546, 548, 550, and 560. See also
United Arab Emirates' opening statement at the first meeting of the Panel, para. 79; second written
submission, paras. 239-240; written opening statement, paras. 110 and 112; and response to
Pakistan's written opening statement, para. 49.
829 Report on sunset determination, public version, (Exhibit ARE-4), paras. 34.1-34.4.
830 United Arab Emirates' first written submission, para. 551; second written submission, para. 240. See
also United Arab Emirates' opening statement at the first meeting of the Panel, para. 79; second written
submission, para. 246; and written opening statement, paras. 112 and 119.
831 Pakistan's first written submission, para. 3.679.
832 Pakistan's first written submission, para. 3.679 (referring to Report on sunset determination,
(Exhibit PAK-2 (BCI)), para. 36.1.2).
833 Pakistan's first written submission, para. 3.680.
834 Pakistan's first written submission, para. 3.680.

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the United Arab Emirates has not demonstrated that this examination did not meet the standard of
Article 11.3.835
7.602. We recall that, under Article 11.3, an authority must determine that the continuation or
recurrence of injury is likely, and not merely possible, and that this determination must be based on
positive evidence and not on assumption.836
7.603. We note that the NTC reasoned that, since after the imposition of anti -dumping duties
imports had declined and dome stic production had increased, it was likely that the opposite would
happen if the duties were removed.837 While the fact that imports declined significantly and domestic
production increased significantly after the imposition of the anti-dumping duties suggests that it is
possible that the opposite could happen upon removal of the duties, the NTC did not explain why it
considered these developments to be likely to occur (and not just possible) . Given the absence of
any further explanation in this regard, we are of the view that the NTC's finding that "termination of
antidumping duties will likely result in an increase in imports of the product under review which will
affect adversely … the productions of the domestic like product" 838 was essentially conclusor y in
nature. We therefore find that the NTC failed to provide a reasoned and adequate explanation to
support its finding that imports of BOPP film would likely increase in the event anti -dumping duties
on these imports were to be removed.
7.604. We have also not ed Pakistan's argument that the NTC relied on its conclusion reached
elsewhere that exporters would seek to regain market share by lowering their prices, as a basis for
finding a likely increase in dumped imports .839 However, the Report on sunset determinat ion
indicates that the NTC's reasoning was the reverse: that is, the report indicates that the NTC relied
on its finding that imports from the investigated countries were likely to increase as a basis for
finding that exporters from the investigated countries were likely to lower their prices.840 Moreover,
we find below that that the NTC's conclusion that the investigated exporters would lower their prices
was also not supported by a reasoned and adequate explanation.841
7.12.3.2 Likely effects on market share
7.605. The NTC found that after the imposition of anti -dumping duties, the market share of the
domestic industry had increased, the market share of the dumped imports had decreased
significantly, and the market share of imports from other sources had remained stable. 842 On that
basis, the NTC concluded that expiry of the anti-dumping duties would likely lead to an increase in
imports of the product under review and therefore in the market share of the dumped imports, and
"therefore" would "likely affect adversely" the domestic industry's market share.843
7.606. The United Arab Emirates argues that these conclusions are not supported by analysis or
evidence844, and that the NTC did not establish that the effects in question were likely rather than
merely possible. 845 The United Arab Emirates also points o ut that the NTC determined that the
market share of the domestic industry was in the range of 94% to 97% during the period of

835 See e.g. Pakistan's first written submission, para. 3.681.
836 See para. 7.543 above.
837 See para. 7.599 above, summarizing Report on sunset determination, public version,
(Exhibit ARE-4), paras. 34.1-34.4.
838 Report on sunset determination, public version, (Exhibit ARE-4), para. 34.4.
839 See para. 7.601 above. Pakistan's first written submission, para. 3.679 (referring to Report on
sunset determination, (Exhibit PAK-2 (BCI)), para. 36.1.2). See also Pakistan's first written submission,
para. 3.680.
840 Report on sunset determination, public version, (Exhibit ARE-4), para. 36.1.2.
841 See paras. 7.614-7.615 below.
842 Report on sunset determination, public version, (Exhibit ARE-4), paras. 35.1-35.3.
843 Report on sunset determination, public version, (Exhibit ARE-4), para. 35.4.
844 United Arab Emirates' first written submission, para. 552; second written submission, para. 240.
845 United Arab Emirates' first written submission, para. 552; second written submission, para. 240.

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review846, and argues that the NTC failed to ascertain the probability of recurrence of material injury
in light of this "quasi-monopoly situation".847
7.607. Pakistan responds that the domestic industry was already experiencing financial losses and
"given the price-based competition common to commodity products like BOPP, no particular level of
market share protects an industry from aggress ive price competition from exporters" 848, and
therefore "the domestic industry's high market share in no way insulates [it] from sudden potential
injury".849 We note that this reasoning is not reflected in the NTC's determination.
7.608. We further note that similar to its findings on imports and domestic production 850, the NTC
appears to have assumed that, because dumped imports had decreased and the market share of
the domestic industry had increased following the introduction of the anti -dumping duties, the
opposite would happen upon removal of the duties. We therefore find that the NTC did not provide
a reasoned and adequate explanation of why these developments were likely to occur, and not just
possible.851
7.609. We do not examine the United Arab Emirates' additional argument that the NTC should also
have taken into account the large market share of the domestic industry.
7.12.3.3 Likely price effects
7.610. The NTC's analysis indicates that during the period under review there had been no
undercutting and no price depression, but that both would likely occur if duties were removed.852
7.611. The United Arab Emirates argues that the NTC was merely making assumptions and did not
establish, based on facts and analysis, that it was likely that price undercutting and price depression
would occur.853
7.612. Pakistan responds that the NTC's reasoning had been that if duties were removed, "the
exporters' logical strategy to restore their previous market share would be to reduce their prices, at
the expense of the domestic industry", and for this reason price undercutting and depression were
likely.854 Pakistan argues that this was reasonable given that for "a commodity like BOPP,
competition is overwhelmingly price-based"855, and that the NTC had not made this reasoning explicit
in its determination only because all interested parties were aware that the market for BOPP film is
a commodity market. 856 Pakistan adds that neither Taghleef nor the United Arab Emirates had
offered an "alternative 'forward looking analysis'".857
7.613. As regards price undercutting, we note that the NTC found that during the period of review,
the "landed cost of the product under review was above the price of the domestic like product even
without incidence of the antidumping duties". 858 It then asserted that, "however", if duties were

846 United Arab Emirates' first written submission, para. 531. See also United Arab Emirates' first written
submission, paras. 552-553 and 558; opening statement at the first meeting of the Panel, para. 81;
second written submission, paras. 240 and 256; and written opening statement, para. 111.
847 United Arab Emirates' first written submission, paras. 552-553 and 558; second written submission,
para. 240. See also United Arab Emirates' first written submission, para. 531; opening statement at the
first meeting of the Panel, para. 81; second written submission, para. 256; and written opening statement,
para. 111.
848 Pakistan's first written submission, para. 3.683.
849 Pakistan's first written submission, para. 3.683.
850 See paras. 7.599, 7.602, and 7.603 above.
851 See para. 7.543 above.
852 Report on sunset determination, public version, (Exhibit ARE-4), paras. 36.1.1-36.2.3.
853 United Arab Emirates' first written submission, para. 554; opening statement at the first meeting of
the Panel, para. 80; and second written submission, paras. 240 and 247.
854 Pakistan's first written submission, para. 3.599.
855 Pakistan's first written submission, para. 3.687.
856 Pakistan's second written submission, para. 2.324.
857 Pakistan's first written submission, para. 3.688.
858 Report on sunset determination, public version, (Exhibit ARE-4), para. 36.1.2. When indexed, taking
the applicant's price in 2009 as 100, the landed cost of the product under review, after deducting the
anti-dumping duty, compared with the prices of the applicant as follows: 177.40 (product under review)
and 144.63 (applicant) from April 2012 to March 2013; 202.82 (product under review) and 158.19 (applicant)

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removed, the volume of dumped imports was likely to increase, and therefore the price of dumped
imports was likely to decrease for those imports "to get their share in the market", and there was
thus "a likelihood of price undercutting".859
7.614. Thus, we note that faced with evidence that the price of the product under review was
considerably higher than that of the domestic industry throughout the period of review, the NTC
(a) referred to its earlier assumption that upon removal of the duties the imports of th e product
under review would likely increase 860; (b) assumed that the sources of the product under review
would decrease their prices to regain market share; and (c) assumed that the result would be price
undercutting, i.e. that those prices would be reduced to a level lower than the applicant's price.
7.615. We recall that to extend duties under Article 11.3, a Member must determine, based on
positive evidence, that injury is likely to continue or recur, and not merely that it is possible, and
that this requires a reasoned determination based on positive evidence, and not solely on
assumptions. Instead, every step in the reasoning that led the NTC to conclude that the removal of
the duties was likely to lead to price undercutting appears to have been premised on as sumption.
We therefore find that the NTC failed to provide a reasoned and adequate explanation of why it
considered that price undercutting was likely to occur if duties were removed.
7.616. As regards price depression, the NTC found that during the period of review there had been
an overall increase861 in the ex-factory price of the domestic like product 862, and asserted that this
was due to the absence of price pressure from dumped imports. 863 The NTC then asserted that,
"however", as the volume of dumped imports w as likely to increase if duties were removed, there
would be pressure on the domestic industry to reduce prices, and therefore price depression was
likely to occur.864
7.617. Thus, starting from evidence that the price of the like domestic product had increased, the
NTC asserted that this was due to the absence of price pressure from dumped imports; it then relied
again on its earlier assumption that imports of the product under review would likely increase, and
assumed that the domestic industry would likely reduce its price to retain market share, leading to
price depression.
7.618. We therefore observe that, in assessing the likelihood of price depression, the NTC again
appears to have relied on assumptions about how the market would develop, without grounding
them in positive evidence, and without explaining why the developments it foresaw were likely,
rather than merely possible. We therefore find that the NTC failed to provide a reasoned and
adequate explanation to support its conclusions on the likelihood of price undercutting and price
depression.
7.619. With regard to both price undercutting and price depression, we note Pakistan's explanation
that the NTC's reasoning is explained by the fact that BOPP film is a commodity product.865 Assuming
that this was the NTC's own reasoning, the fact that a product is a commodity does not, alone, allow
an authority to conclude that price undercutting or price depression is likely to occur based only on
a series of assumptions.
7.12.3.4 Other aspects of the determination of likelihood of injury
7.620. The United Arab Emirates also argues that the NTC acted inconsistently with Article 11.3
because it found that the expiry of the duties was likely to lead to recurrence of injury, despite the

from April 2013 to March 2014; 203.39 (product under review) and 156.50 (applicant) from April 2014 to
March 2015. (Report on sunset determination, public version, (Exhibit ARE-4), para. 36.1.1 and table-IX).
859 Report on sunset determination, public version, (Exhibit ARE-4), paras. 36.1.2-36.1.3.
860 See paras. 7.599 and 7.603 above.
861 Paragraph 36.2.2 of the Report on sunset determination mistakenly refers to a "decrease".
(Report on sunset determination, public version, (Exhibit ARE-4), para. 36.2.2; compare with ibid. table-X).
862 Report on sunset determination, public version, (Exhibit ARE-4), para. 36.2.2. When indexed, taking
the applicant's ex-factory price in 2009 as 100, the applicant's ex-factory price developed as follows:
144.63 from April 2012 to March 2013; 158.19 from April 2013 to March 2014; and 156.50 from April 2014 to
March 2015. (Report on sunset determination, public version, (Exhibit ARE-4), para. 36.2.1, table-X).
863 Report on sunset determination, public version, (Exhibit ARE-4), para. 36.2.2.
864 Report on sunset determination, public version, (Exhibit ARE-4), paras. 36.2.2-36.2.3.
865 See para. 7.612 above.

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fact that the domestic industry had more than doubled its prod uction capacity during the period of
review866 and therefore any injury it was suffering was self -inflicted.867 Pakistan responds that an
investigating authority is not precluded from taking into account financial harm arising from capacity
utilization868, and that provided that there is a likelihood of injury from imports after the removal of
the duties, "it does not matter that other factors, current or past, may also be part of the reason
why injury would likely recur or continue".869
7.621. Further, the United Arab Emirates also challenges other aspects of the determination of
likelihood of injury, inter alia arguing that the NTC considered that every factor that had developed
positively during the period of review would deteriorate, and that factors that had dev eloped
negatively would also be negatively affected.870
7.622. However, having already found multiple flaws in the NTC's determination that injury was
likely to recur, we do not proceed to examine these additional arguments.
7.12.3.5 Conclusion under Article 11.3 on the NTC's likelihood of injury determination
7.623. We thus conclude that the NTC's determination that injury was likely to recur is inconsistent
with Pakistan's obligations under Article 11.3, because the NTC based its findings that expiry of the
duties was likely to lead to an increase in volume of imports, a decrease in domestic production, a
decrease in the domestic industry's market share, price undercutting, and price depression, on a
series of assumptions that were not grounded in positive evidence, and failed t o provide reasoned
and adequate explanations of why the developments it foresaw were likely to occur, rather than
merely possible.
7.12.4 Whether the sunset review determination is inconsistent with Article 11.3 as a
consequence of the inconsistencies in the original determination
7.624. The United Arab Emirates also argues that the sunset review determination of
1 December 2016 is inconsistent with Article 11.3871 because the determination on the basis of which
anti-dumping duties on BOPP film were imposed in the first p lace was itself inconsistent with the
Anti-Dumping Agreement.872 Pakistan responds that inconsistencies in the original determination do
not automatically result in the sunset review determination being inconsistent with Article 11.3873,
and that in any event the United Arab Emirates has failed to "articulate any cognizable claim under
Article 11.3" in this regard.874

866 The NTC found that "the installed production capacity of the domestic industry increased
considerably by 140 percent above the original capacity after imposition of antidumping duties", and
"[c]urrently the installed production capacity of domestic industry is much more than domestic demand of the
BOPP Film". (Report on sunset determination, public version, (Exhibit ARE-4), para. 37.2; see also
ibid. table-XII).
867 United Arab Emirates' first written submission, paras. 556-557. See also
United Arab Emirates' opening statement at the first meeting with the Panel, para. 82; second written
submission, paras. 240, 257, 259, and 261; written opening statement, paras. 111 and 120; and response to
Pakistan's written opening statement, paras. 49-52.
868 Pakistan's first written submission, para. 3.685. See also Pakistan's second written submission,
869 Pakistan's second written submission, para. 2.330. See also Pakistan's written opening statement,
para. 125.
870 United Arab Emirates' first written submission, para. 555; opening statement at the first meeting of
the Panel, para. 7; and second written submission, para. 240. See also United Arab Emirates' first written
submission, paras. 529, 548, 550-551, 554 and 559-560; second written submission, para. 241; and written
opening statement, para. 112.
871 The United Arab Emirates' argument that inconsistencies in the original determination also render the
sunset review determination inconsistent with the Anti-Dumping Agreement is mainly made in connection with
Article 11.1. However, as indicated in section 7.12.5, we exercise judicial economy on the
United Arab Emirates' claim that the sunset review determination is inconsistent with Article 11.1.
872 United Arab Emirates' first written submission, paras. 487-488 and 527; opening statement at the
first meeting of the Panel, para. 73; second written submission, paras. 231-232; written opening statement,
873 Pakistan's first written submission, paras. 3.622, 3.625, 3.627, and 3.632; written opening
statement, paras. 102-104. See also Pakistan's second written submission, paras. 2.305-2.306.
874 Pakistan's first written submission, para. 3.631. See also ibid. paras. 3.618 and 3.630.

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7.625. Having already found that the sunset review determination is inconsistent with Article 11.3
on multiple grounds, we do not proceed to examine this additional ground for inconsistency put
forward by the United Arab Emirates.
7.12.5 Judicial economy under Article 11.1
7.626. We have found that the United Arab Emirates has established that the sunset review
determination is inconsistent with Article 11.3 on a number of grounds. On the basis of some of the
same grounds 875, th e United Arab Emirates also claims that the sunset review determination is
inconsistent with Article 11.1.
7.627. We have already found that the sunset determination is inconsistent with Article 11.3, and
we do not consider that these additional findings sought b y the United Arab Emirates under
Article 11.1 are necessary to resolve the dispute.876 We therefore exercise judicial economy on the
United Arab Emirates' claim under Article 11.1.
7.13 Sunset review: Article 11.4 of the Anti-Dumping Agreement
7.628. The NTC initiated a sunset review of the anti-dumping measures on BOPP film from Pakistan
on 4 August 2015 and concluded it on 1 December 2016, i.e. almost 16 months later.877 Pakistan
explains, and the NTC stated in its Report on sunset determination, that this was because domestic
judicial proceedings had led to the suspension of all work of the NTC for a number of months
in 2016.878
7.629. Specifically, following litigation in unrelated anti-dumping proceedings, on 15 March 2016879,
the Lahore High Court held that one member of the NTC did not meet the qualification requirements
set forth in Pakistani law. The Lahore High Court therefore ordered the suspension of the proceedings
in the context of which the domestic legal challenge had been brought. 880 The NTC decided, "by
analogy", to suspend all pending anti -dumping proceedings until the defect in its composition was
cured, i.e. until 5 September 2016.881
7.630. The United Arab Emirates argues that the NTC thus acted inconsistently with the
second sentence of Article 11.4 of the Anti -Dumping Agreement, because it took more than
12 months to conclude the sunset review, in the absence of abnormal circumstances that justified

875 These grounds are: that because the original determination was inconsistent with the
Anti-Dumping Agreement, the sunset review determination extending the duties is inconsistent with
Article 11.1 (United Arab Emirates' first written submission, paras. 487-488 and 524-528; opening statement
at the first meeting of the Panel, paras. 73 and 77; second written submission, paras. 231-233 and 244-245;
written opening statement, paras. 105 and 114; and response to Pakistan's written opening statement,
paras. 45-48); and that the NTC relied on a dumping margin that was inconsistent with Article 2
(United Arab Emirates' first written submission, para. 534).
876 See para. 7.49 above.
877 Notice of initiation of sunset review, (Exhibit ARE-30); Notice of conclusion of sunset review,
(Exhibit ARE-3). The NTC adopted its Report on sunset determination three days before issuing the Notice of
conclusion, on 28 November 2016. (Report on sunset determination, public version, (Exhibit ARE-4)).
878 Pakistan's first written submission, paras. 3.695, 3.715, and 3.726; Report on sunset determination,
public version, (Exhibit ARE-4), paras. 3-4.
879 The parties disagree as to the date of the judgment. According to the United Arab Emirates, the date
of the judgment was 15 March 2016, whereas Pakistan argues it was 27 April 2016. (United Arab Emirates'
response to Pakistan's written opening statement, para. 59; comments on Pakistan's response to Panel
question No. 94, pp. 14-15; Pakistan's response to Panel question No. 94, paras. 42-44; see also Pakistan's
response to Panel question No. 94, paras. 43-44). We note that in its own Report on sunset determination, the
NTC indicated that the judgment was dated 15 March 2016. We further note that the NTC considered that the
time during which the work of the NTC was suspended because of the judgment was to be considered an
"injunction period" that extended the statutory time-limit for the sunset review under Pakistani law, and that
the total extension thus granted (20 January 2017 instead of 3 August 2016) totalled 170 days, which is
almost exactly the period between 15 March 2016 and 5 September 2016 (173 days); if the NTC had
considered the date of the judgment to be 27 April 2016 rather than 15 March 2016, it would not be possible to
explain the length of the extension. (Report on sunset determination, public version, (Exhibit ARE-4),
paras. 3-4). We thus refer to 15 March 2016 as the date of the judgment. In any event, the precise date of the
judgment does not affect our ultimate findings.
880 Report on sunset determination, public version, (Exhibit ARE-4), para. 3; Judgment of Lahore High
Court, (Exhibit PAK-22).
881 Report on sunset determination, public version, (Exhibit ARE-4), para. 4.

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doing so, and without providing a reasoned and adequate explanation of the abnormal circumstances
warranting the delay.882 Further, the United Arab Emirates argues that, for the same reasons, the
NTC acted inconsistently with the requirement to carry out reviews "expeditiously", also set forth in
the second sentence of Article 11.4.883
7.631. Pakistan responds that Article 11.4 requires sunset reviews to be completed " normally"
within 12 months, and that the judgment leading to the suspension of all the work of the NTC was
an abnormal circumstance, with the consequence that the NTC was allowed to take more than
12 months to conclude the sunset review. 884 Pakistan adds that Article 11.4 does not contain the
separate explanation requirement that the United Arab Emirates reads into it885, and also that, to
the extent the United Arab Emirates is seeking to establish a separate inconsistency with the
requirement to carry out reviews "expeditiously", the United Arab Emirates has failed to make a
prima facie case in that regard.886
7.632. Below, we firs t set out the applicable requirements of Article 11.4 of the
Anti-Dumping Agreement (section 7.13.1). We then apply those requirements to the facts of this
case to assess whether Pakistan acted inconsistently with Article 11.4 (section 7.13.2), and we
conclude that it did (section 7.13.3).
7.13.1 The applicable requirements of Article 11.4
7.633. The second sentence of Article 11.4 provides that any review conducted under Article 11
"shall be carried out expeditiously and shall normally be concluded within 12 months of the date of
initiation of the review".
7.634. Thus, this provision requires authorities to carry out reviews under Article 11 "expeditiously",
and to conclude them "normally … within 12 months" from initiation.
7.635. The ordinary meaning of "expeditiously" includes "in an expeditious manner; speedily, with
expedition"887, and in turn the ordinary meaning of "expeditious" includes "speedily performed". 888
Hence, the first clause of the second sentence of Article 11.4 provides that investigating authorities
must carry out reviews under Article 11 "in an expeditious manner", "speedily".
7.636. The second clause of the second sentence of Article 11.4 lays down a specific timeframe for
completion of reviews, i.e. 12 months, but qualifies it with the term "normally". The ordinary
meaning of this term is "under normal or ordinary conditions; as a rule, ordinarily "889 and, in turn,
the ordinary meaning of "normal" includes "constituting or conforming to a type or standard; regular,
usual, typical; ordinary, conventional".890

882 United Arab Emirates' first written submission, paras. 563, 572-577, and 587; opening statement at
the first meeting of the Panel, para. 83; second written submission, paras. 264 and 266; written opening
statement, paras. 123 and 125; and response to Pakistan's written opening statement, para. 57.
883 United Arab Emirates' first written submission, paras. 574 and 587; opening statement at the
first meeting of the Panel, para. 83; second written submission, paras. 265 and 277-278; written opening
statement, para. 124; and response to Pakistan's written opening statement, para. 57.
884 See e.g. Pakistan's first written submission, paras. 3.696-3.697, 3.713-3.714, and 3.726-3.727;
second written submission, paras. 2.335 and 2.342; and response to Panel question No. 94, para. 46.
885 Pakistan's first written submission, para. 3.725. See also Pakistan's response to
United Arab Emirates' written opening statement, para. 84.
886 Pakistan's first written submission, para. 3.724; written opening statement, para. 128. See also
Pakistan's first written submission, paras. 3.722-3.723.
887 Oxford Dictionaries online, definition of "expeditiously"
https://www.oed.com/view/Entry/66493?redirectedFrom=expeditiously#eid (accessed 8 October 2020), adv.
888 Oxford Dictionaries online, definition of "expeditious"
https://www.oed.com/view/Entry/66492?redirectedFrom=expeditious#eid (accessed 8 October 2020), adj.,
meaning 1.
889 Oxford Dictionaries online, definition of "normally"
https://www.oed.com/view/Entry/128277?redirectedFrom=normally#eid (accessed 8 October 2020), adv.,
meaning 2.
890 Oxford Dictionaries online, "normal"
https://www.oed.com/view/Entry/128269?redirectedFrom=normal#eid (accessed 8 October 2020), adj.,
meaning A.I.1.a.

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7.637. Therefore, the use of the term "normally" in the second sentence of Article 11.4 indicates
that there are certain conditions under which the 12 -month deadline may be exceeded ; such
conditions are those that are not "normal", i.e. not conforming to a standard, not regular, usual,
typical, or ordinary.
7.638. The Appellate Body and panels in past disputes have similarly construed the use of the term
"normally", as it appears in other provisions of the Anti -Dumping Agreement891 and other
WTO instruments892, to indicate that a rule qualified by this term admits of derogation under
circumstances that are not "normal or ordinary".893
7.639. Pakistan points out that other provisions in the Anti -Dumping Agreement lay down a
time-limit that applies as a rule, while providing for some flexibility. 894 Article 5.10 provides that
original investigations "shall, except in special circumstances, be concluded within one year, and in
no case more than 18 months". Articles 9.3.1 and 9.3.2 provide for the determination of final liability
for payment of anti-dumping duties, and refunds, to take place "normally within 12 months, and in
no case more than 18 months, after … a request", with an express exception in the event of judicial
review proceedings.895 Pakistan also points out that each of these provisions sets out, in addition to
a normal or non -exceptional 12 -month time -limit, "a firm and unconditional outer limit of
18 months", while Article 11.4 does not.896 We agree with this observation. In our vie w, however,
the fact that provisions other than Article 11.4 set forth an outer limit of 18 months does not address
the question that is decisive in this case, namely what circumstances are abnormal and would
therefore justify exceeding the 12-month time-limit set out in Article 11.4.
7.13.2 Whether the NTC acted inconsistently with Article 11.4
7.640. It is not disputed that the NTC took more than 12 months to complete the sunset review in
question, from 4 August 2015 to 1 December 2016.897 The first question before us is whether the
circumstances of this case fell within the scope of the qualifier "normally" in Article 11.4898: if the
circumstances were "normal", then Pakistan acted inconsistently with the requirement to conclude
reviews "normally … within 12 months".
7.641. Pakistan argues that the judgment of the Lahore High Court ordering the suspension of
proceedings was an abnormal circumstance within the meaning of the second sentence of
Article 11.4, because it was an event that was extraneous to the ordinary conduct of sunset reviews
and outside the control of the investigating authority, and prevented completion of the review within
12 months.899 Pakistan emphasizes that court proceedings are not part of the normal sequence of
events during a sunset review, that the dome stic legal challenge in question had been brought in
the context of anti-dumping proceedings that were unrelated to those at issue before us, and that
the NTC had no choice but to suspend all its work until properly composed.900
7.642. Pakistan argues that the context of Article 11.4, and specifically Articles 13 and footnote 20
of the Anti -Dumping Agreement, confirm that a court ruling ordering suspension is an abnormal
circumstance that justifies exceeding the 12 -month time-limit. According to Pakistan, by makin g
separate provision for judicial proceedings, Article 13 "confirms that [they] do not form part of the
'normal' or 'usual' conduct of those investigations or reviews" .901 Pakistan also argues that

891 Article 2.2.1.1 of the Anti-Dumping Agreement.
892 Doha Ministerial Decision, para. 5.2.
893 Panel Reports, Australia – Anti-Dumping Measures on Paper, para. 7.111; EU – Biodiesel (Argentina),
para. 7.227; and China – Broiler Products, para. 7.161; Appellate Body Report, US – Clove Cigarettes,
para. 273.
894 Pakistan's first written submission, paras. 3.693, 3.699, and 3.717.
895 Fn 20 of the Anti-Dumping Agreement, on which see para. 7.650 below.
896 Pakistan's first written submission, paras. 3.699 and 3.717.
897 See fn 877 above.
898 Having answered this question in the affirmative, we do not proceed to address the further questions
raised by the United Arab Emirates' additional arguments. (See para. 7.652 below).
899 Pakistan's first written submission, paras. 3.706-3.707, 3.709, and 3.713-3.716; second written
submission, paras. 2.335 and 2.341. See also Pakistan's written opening statement, para. 135; and response
to United Arab Emirates' written opening statement, paras. 79 and 82.
900 Pakistan's first written submission, paras. 3.695 and 3.709-3.716; second written submission,
para. 2.339; written opening statement, paras. 130-131; and response to United Arab Emirates' written
opening statement, para. 82.
901 Pakistan's first written submission, para. 3.710.

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footnote 20, by providing that the time-limits in Articles 9.3.1 and 9.3.2 may not be complied with
in case of judicial review proceedings, shows that "the Anti-Dumping Agreement recognizes explicitly
that judicial proceedings may affect the ability of the investigating authority to adhere to
treaty-prescribed time limits".902
7.643. The United Arab Emirates argues instead that the circumstances were not abnormal within
the meaning of Article 11.4. According to the United Arab Emirates, "internal administrative issues
such as the proper constitution of the investigating authority as a matter of domestic law, are not in
principle a sufficient reason for … violating the WTO obligation to conclude the review in
12 months".903 Referring to Article 27 of the Vienna Convention on the Law of Treaties 904, the
United Arab Emirates argues that a WTO Member may not invoke domestic law to justify a failure to
perform a treaty.905
7.644. Pakistan responds that it is not invoking domestic law to justify a violation of Article 11.4.906
Rather, Pakistan's position is that it is pointing to the domestic judicial proceedings as a factor for
determining whether the circumstances in which the sunset review was carried out were normal: if
the circumstances were not normal, no violation arises and the rule of state responsibility referred
to by the United Arab Emirates does not apply.907
7.645. The United Arab Emirates further argues that problems with the proper constitution of the
NTC were not an unusual event, because in the context of the BOPP film proceedings alone, such
problems had already arisen twice before, in 2011 and 2013.908 To this, Pakistan answers that what
is "normal" under Article 11.4 does not hinge on whether the relevant event has already occurred
on previous occasions.909
7.646. We agree with Pakistan that the text of Article 11.4 does not establish an outer time-limit in
which an investigating authority mu st conclude a sunset review. We also agree that the text of
Article 11.4 does not, as a general matter, provide definitive guidance regarding the nature of the
facts or circumstances that may be considered to be sufficiently "abnormal" to permit an
administering authority to take longer than the "normal" 12-months period to conclude a sunset
review. Given this, we are of the view that what may be considered "abnormal" in a proceeding for
the purposes of Article 11.4 will depend on the unique set of facts an d circumstances that are
associated with the proceeding, and that those facts will necessarily vary from case to case.
7.647. Turning to the particular facts of this proceeding, we note Pakistan's argument that the NTC
was justified in not completing its sunset review within the normal 12-month period because the
review was the subject of judicial proceedings and rulings that were extraneous to the ordinary
conduct of sunset reviews and outside of the NTC's control. 910 We also note Pakistan's statement
that court proceedings are generally not part of the normal sequence of events in Pakistan during a
sunset review.911
7.648. Notwithstanding this, we also observe that this dispute presents a unique constellation of
facts that we must consider when assessing whether the spec ific Lahore High Court decision that
Pakistan relies upon could, in fact, justify exceeding the 12-month "normal" time-limit in light of the
history and circumstances of the BOPP proceeding. Specifically, we observe that: (a) Pakistan
determines the compos ition of the NTC, through procedures governed by Pakistani law; (b) the
record of this dispute indicates that the composition of the NTC was the subject of at least three

902 Pakistan's first written submission, para. 3.711.
903 United Arab Emirates' first written submission, para. 578. See also ibid. para. 581; opening
statement at the first meeting of the Panel, para. 85; second written submission, paras. 267 and 273; and
response to Pakistan's written opening statement, para. 58.
904 Article 27 reads in relevant part: "[a] party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty."
905 United Arab Emirates' first written submission, para. 582.
906 Pakistan's first written submission, paras. 3.718-3.719.
907 Pakistan's first written submission, para. 3.719. See also Pakistan's second written submission,
para. 2.337; and response to United Arab Emirates' written opening statement, para. 81.
908 United Arab Emirates' first written submission, para. 585; opening statement at the first meeting of
the Panel, para. 85; and second written submission, paras. 269 and 276.
909 Pakistan's written opening statement, para. 137.
910 See para. 7.641 above.
911 See para. 7.641 above.

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court challenges during the pendency of the BOPP film proceedings, each of which found successive
defects in the composition of the NTC 912; (c) in the BOPP film proceedings alone, these challenges
led to the suspension or termination of proceedings, or to a determination being set aside, on at
least three occasions913; and (d) the Lahore High Court decision that Pakistan relies on as "abnormal"
resulted from the third in this series of court challenges. Considering all these facts taken together,
we are of the view that the judgment of the Lahore High Court that led to the suspension of the
sunset review proceedings cannot be considered to be a circumstance that is "abnormal" within the
meaning of Article 11.4 in the context of the BOPP film proceedings as a whole.
7.649. In support of its argument that judicial review proceedings fall outside what i s "normal"
within the meaning of Article 11.4, Pakistan refers to Article 13 and footnote 20 of the
Anti-Dumping Agreement.914 We agree with Pakistan that Article 13 shows that the
Anti-Dumping Agreement envisages judicial (or equivalent) review proceedings as separate915 from
the investigations and reviews conducted by the investigating authorities. However, Article 13 does
not automatically render the acts of the judiciary "extraneous" or "outside the control of" a Member,
in a way that always turns those acts into abnormal or extraordinary events within the meaning of
Article 11.4.
7.650. As for footnote 20, this is an instance in which Members have expressly agreed that certain
time-limits can be exceeded in case of judicial review proceedings. In the case of th e reviews
regulated by Article 11, Members have not included a provision equivalent to footnote 20.
7.651. We therefore find that, because of the particular constellation of facts before us in this case,
the judgment of the Lahore High Court, which Pakistan invokes as an abnormal circumstance under
which it could not conclude the sunset review within 12 months, does not qualify as a circumstance
that is not "normal" for purposes of Article 11.4, and that Pakistan acted inconsistently with
Article 11.4 by concluding the sunset review in more than the 12-month limit that "normally" applies
under Article 11.4.
7.652. Having so found, we will not consider the United Arab Emirates' additional arguments to the
effect that (a) Pakistan acted inconsistently with Article 11.4 by failing to provide an explanation of
the abnormal circumstances that justified exceeding the time -limits; and that (b) Pakistan acted
inconsistently with Article 11.4 by not carrying out the review "expeditiously".916
7.13.3 Conclusion under Article 11.4
7.653. We find that Pakistan acted inconsistently with Article 11.4 by concluding the sunset review
in more than 12 months, in the absence of abnormal circumstances within the meaning of this
provision.
7.14 Public notice and explanation of determinations: Articles 12.1, 12.2, and 12.3 of the
Anti-Dumping Agreement
7.654. The United Arab Emirates claims that Pakistan's final determination of 9 April 2015, which
"ratified"917 the final determination of 4 February 2013, was inconsistent with Articles 12.1 and 12.2
of the Anti-Dumping Agreement. In support of these claims, the United Arab Emirates argues that
the Notice of initiation of 23 April 2012918 did not provide the factual basis on which dumping is

912 See e.g. United Arab Emirates' first written submission, para. 585; second written submission,
paras. 269 and 276; Report on final determination (2013), public version, (Exhibit ARE-2), para. 5.2;
Order of Islamabad Hight Court, (Exhibit PAK-31); Report on final determination (2015), public version,
(Exhibit PAK-49), p. 2; Judgment of the Anti-Dumping Appellate Tribunal, (Exhibit PAK-10); Report on
sunset determination, public version, (Exhibit ARE-4), paras. 3-4; and Judgment of Lahore High Court,
(Exhibit PAK-22).
913 See fn 912 above.
914 See para. 7.642 above.
915 See also para. 7.491 above, in the context of our analysis under Article 5.10. We note that under
Article 5.10, we reviewed the different question whether the time taken for judicial review of a final
determination that had already been adopted should be counted against the time-limit set out in Article 5.10.
916 See paras. 7.630 above.
917 Report on final determination (2015), public version, (Exhibit PAK-49), para. 4; Notice of final
determination (2015), (Exhibit ARE-1), p. 2.
918 Notice of initiation (2012), (Exhibit ARE-5).

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alleged, contrar y to Article 12.1.1(iii)919; that the Notice of final determination did not disclose
essential information with respect to the NTC's dumping calculation, contrary to Article 12.2920; and
that the separate Report on final determination did not sufficiently explain the basis for the
NTC's findings of dumping and injury, contrary to Article 12.2.921
7.655. The United Arab Emirates also claims that Pakistan's sunset review determination of
1 December 2016 was inconsistent with Articles 12.2 and 12.3. In su pport of these claims, the
United Arab Emirates argues that the Notice of conclusion of sunset review 922 and the Report on
sunset determination923 did not provide in sufficient detail the findings and conclusions reached on
material aspects of the sunset review.924
7.656. Pakistan responds that United Arab Emirates' claims under Articles 12.1, 12.2, and 12.3 do
not fall within the Panel's terms of reference.925 In the alternative, Pakistan argues that the NTC did
not act inconsistently with Article 12.1 because, according to Pakistan, the Notice of initiation and
the Initiation memorandum should be read together with the application, and the application set
forth the factual basis on which dumping was alleged. 926 Pakistan also argues that the
United Arab Emirates does not advance any arguments in support of its claims under Articles 12.2
and 12.3 other than those already raised with regard to its claims of inconsistency with the
substantive obligations it invokes.927
7.657. We recall that we may exercise judicial economy under one or more claims if we have already
found that the same measure is inconsistent with one or more provisions of a covered agreement,
and findings under the additional claims are not necessary to resolve the dispute.928
7.658. We have found that Pakistan's final determination of 9 April 2015 and sunset review
determination of 1 December 2016 are inconsistent with a number of provisions of the
Anti-Dumping Agreement. Having reached those findings, we do not consider it necessary for the
resolution of this dispute to assess whether the same determinations are also inconsistent with
Articles 12.1, 12.2, and 12.3 of the Anti -Dumping Agreement, and we therefore do not decide on
Pakistan's terms of reference objection regarding these claims.
7.15 Consequential claims: Articles 1 and 18.1 of the Anti -Dumping Agreement and
Articles VI:1 and VI:2 of the GATT 1994
7.659. The United Arab Emirates claims that, as a consequence of the inconsistencies that the
United Arab Emirates has sought to establish, (a) Pakistan's final determination of 9 April 2015,
which "ratified" the final determination of February 2013, is also inconsistent with Articles 1 and 18.1
of the Anti -Dumping Agreement, and Articles VI:1 and VI:2 of the GATT 1994; and

919 United Arab Emirates' first written submission, para. 602. See also United Arab Emirates' second
written submission, para. 281.
920 United Arab Emirates' first written submission, paras. 603-605.
921 United Arab Emirates' first written submission, para. 606 (referring to Report on final
determination (2013), public version, (Exhibit ARE-2)). In its first written submission, the United Arab Emirates
argued that the NTC did not make available a separate report supporting the 2015 final determination. In the
alternative, and to the extent that the 2013 Report on final determination was the relevant "separate report",
that report did not provide sufficient information. (United Arab Emirates' first written submission, para. 606
(referring to Report on final determination (2013), public version, (Exhibit ARE-2)). Subsequently, the
United Arab Emirates argued that the Report on final determination (2015), which Pakistan presented during
these panel proceedings, was not made public and did not provide all relevant information in sufficient detail to
support the final determination. (United Arab Emirates' second written submission, para. 296 (referring to
Report on final determination (2015), (Exhibit PAK-26)).
922 Notice of conclusion of sunset review, (Exhibit ARE-3).
923 Report on sunset determination, public version, (Exhibit ARE-4).
924 United Arab Emirates' first written submission, paras. 607-609.
925 Pakistan's first written submission, paras. 3.736-3.738; response to Panel question No. 80; and
written opening statement, paras. 143-152.
926 Pakistan's response to Panel question No. 82; written opening statement, paras. 154-156.
927 Pakistan's first written submission, paras. 3.748-3.750; written opening statement, para. 157.
928 See para. 7.49 above.

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(b) Pakistan's sunset review determination of 1 December 2016 is also inconsistent with Articles 1
and 18.1 of the Anti-Dumping Agreement.929
7.660. We refer to the conditions under which we may exercise judicial economy. 930 The
United Arab Emirates' claims under Articles 1, 18.1, VI:1, and VI:2 are merely consequential on the
claims we have already reviewed. They challenge the same measures and the same aspects of the
same measures as the claims under which we have already reached findings of inconsistency,
above. We therefore exercise judicial economy on the United Arab Emirates' claims under Articles 1,
18.1, VI:1, and VI:2.
7.16 The Panel's duty under Article 12.11 of the DSU
7.661. Article 12.11 of the DSU requires that in cases in which "one or more of the parties is a
developing country Member":
[T]he panel's report shall explicitly indicate the form in which account has been taken
of relevant provisions on differential and more -favourable treatment for developing
country Members that form part of the covered agreements which have been raised by
the developing country Member in the course of the dispute settlement procedures.
7.662. In this dispute, Pakistan has raised Article 12.10 of the DSU931, which provides, in relevant
part:
[I]n examining a complaint against a developing country Member, the panel shall accord
sufficient time for the developing country Member to prepare and present its
argumentation.
7.663. We took account of both parties' status as a developing country Member in adopting and
reviewing the Working Procedures and timetable. The Panel's timetable provided Pakistan
eight weeks to file its own first written submission after having received the complainant 's first
written submission, as requested by Pakistan, and it provided the United Arab Emirates five weeks
after the organizational meeting to prepare its first written submission, as requested by the
United Arab Emirates. We have also taken into account the status of the parties as developing
country Members when subsequently revising the timetable and the Working Procedures, including
when granting Pakistan's request for an extension to file its second written submission.
8 CONCLUSIONS
8.1. For the reasons set out in this Report, we conclude as follows:
a. The United Arab Emirates has established that the final determination of 9 April 2015,
which ratified the final determination of February 2013, is inconsistent with:
i. Article 5.3 of the Anti-Dumping Agreement, because Pakistan did not assure itself that
there was sufficient evidence to justify initiation of an investigation;
ii. Article 2.1 of the Anti-Dumping Agreement, because Pakistan made a determination
of dumping without evidence of current dumping;
iii. Article 3.1 of the Anti -Dumping Agreement, because Pakistan did not base its
determination of injury on evidence of current injury;
iv. Articles 3.1 and 3.2 of the Anti -Dumping Agreement, because Pakistan did not
objectively consider whether the volume of dumped imports in absolute terms and
relative to domestic production had increased significantly during the POI, and whether

929 United Arab Emirates' first written submission, paras. 612-621; second written submission,
paras. 298-300.
930 See para. 7.49 above.
931 Pakistan's comments on the proposed timetable and Working Procedures of 17 September 2019.

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the effect of the dumped imports on prices of the like product had been significant
price undercutting and significant price depression during the POI;
v. Articles 3.1 and 3.4 of the Anti -Dumping Agreement, because Pakistan did not
evaluate all the injury factors listed in Article 3.4, and did not objectively evaluate the
impact of the dumped imports on the state of the domestic industry; and
vi. Articles 3.1 and 3.5 of the Anti -Dumping Agreement, because Pakistan based its
causation analysis on findings that were inconsistent with Articles 3.1, 3.2 and 3.4,
and did not ensure that injury caused by other known factors was not attributed to the
dumped imports.
b. The United Arab Emirates has not established that the final determination of 9 April 2015,
which ratified the final determination of February 2013, is inconsistent with:
i. Articles 2.2, 2.2.1, 2.2.1.1, and 2.2.2 of the Anti-Dumping Agreement with regard to
the cost data relied upon to determine whether sales were in the ordinary course of
trade;
ii. Article 2.4 of the Anti-Dumping Agreement with regard to the denial of an adjustment
for level of trade;
iii. Article 5.10 of the Anti-Dumping Agreement with regard to the duration of the original
investigation; and
iv. Article 6.2 of the Anti -Dumping Agreement with regard to the adoption, in 2015, of
the final determination of 9 April 2015 ratifying the final determination of
February 2013.
c. We exercise judicial economy on the United Arab Emirates' claims that the final
determination of 9 April 2015, which ratified the final determination of February 2013, is
also inconsistent with Articles 1, 5.2, 5.8, 9.1, 9.3, 11.1, 12.1, 12.2, and 18.1 of the
Anti-Dumping Agreement, and Articles VI:1 and VI:2 of the GATT 1994.
d. The United Arab Emirates has established that the sunset determination of
1 December 2016 is inconsistent with:
i. Article 11.3 of the Anti -Dumping Agreement, because in determining that dumping
and injury were likely to continue or recur, Pakistan relied on a margin of dumping
calculated inconsistently with Article 2, failed to rely on positive evidence, did not
explain how the data supported its findings and how its findings supported its
conclusions; and
ii. Article 11.4, because Pakistan did not conclude the sunset review within 12 months
from initiation, in the absence of abnormal circumstances within the meaning of this
provision.
e. We exercise judicial economy on the United Arab Emirates' claims that the sunset
determination of 1 December 2016 is also inconsistent with Articles 1, 11.1, 12.2, 12.3,
and 18.1 of the Anti-Dumping Agreement.
9 RECOMMENDATION AND SUGGESTION
9.1. Pursuant to Article 19.1 of the DSU, we recommend that Pakistan bring its measures into
conformity with its obligations under the Anti-Dumping Agreement.

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9.2. The United Arab Emirates also asks us to suggest ways in which Pakistan could implement this
recommendation. Specifically, the United Arab Emirates asks us to suggest that Pakistan "terminate
the duties imposed"932 and "refund the anti-dumping duties collected".933
9.3. Pursuant to the second sentence of Article 19.1, "[i]n addition to [our] recommendations, [we]
may suggest ways in which the Member concerned could implement the recommendations". Thus,
we have discretion to suggest ways to implement our recommendation.934
9.4. Many panels before us have declined to exercise this discretion to make suggestions, observing
in particular that "the implementation of DSB recommendations and rulings is left, in the first
instance, to the discretion of the implementing Member".935 Some panels, however, have chosen to
exercise their discretion to suggest ways to implement their recommendations. 936 Of these ,
three WTO panels suggested the revocatio n of anti -dumping duties, having found inconsistencies
that were "of a fundamental nature and pervasive". 937 On the other hand, so far, the WTO panels
asked to suggest refund of anti-dumping duties have rejected such requests.938
9.5. In the case before us, we have found fundamental and pervasive inconsistencies, extending to
the evidence on the basis of which the authority initiated the investigation, the chosen POI for the
original investigation, multiple aspects of the determination of injury in the original investigation,
and multiple aspects of the sunset determination.
9.6. Because of the fundamental nature and pervasiveness of the inconsistencies we have found,
we suggest that Pakistan implement our recommendation by withdrawing the anti-dumping
measures it has imposed on BOPP film from the United Arab Emirates. We decline however to
suggest that Pakistan refund the anti-dumping duties already paid.

Continued Zeroing, para. 389.
935 See e.g. Panel Report, Australia – Anti-Dumping Measures on Paper, para. 8.6.
936 Panel Reports, Argentina – Poultry Anti-Dumping Duties, paras. 8.3-8.7; US – Offset Act (Byrd
Amendment), para. 8.6; US – Cotton Yarn, paras. 8.4-8.5; Guatemala – Cement II, paras. 9.4-9.6; US –
Underwear, paras. 8.1-8.3; Mexico – Steel Pipes and Tubes, paras. 8.7-8.12; Ukraine – Passenger Cars,
paras. 8.7-8.8; US – Lead and Bismuth II, para. 8.2; India – Quantitative Restrictions, paras. 7.1-7.7; EC –
Bananas III (Article 21.5 – Ecuador), paras. 6.154-6.159; EC – Trademarks and Geographical Indications
(Australia) and EC – Trademarks and Geographical Indications (US), paras. 8.4-8.5; EC – Export Subsidies on
Sugar (Australia); EC – Export Subsidies on Sugar (Brazil); and EC – Export Subsidies on Sugar (Thailand),
paras. 8.6-8.8.
937 Panel Reports, Argentina – Poultry Anti-Dumping Duties, para. 8.6; Guatemala – Cement II,
para. 9.6; Mexico – Steel Pipes and Tubes, paras. 8.9-8.12 (the latter with slightly different language). For the
same rationale applied to a safeguard measure, see Panel Report, Ukraine – Passenger Cars, para. 8.8. The
Panel in Guatemala – Cement I had also suggested revocation, but was reversed on other grounds.
(Panel Report, Guatemala – Cement I, para. 8.6).
938 Panel Reports, US – Hot-Rolled Steel, paras. 8.7 and 8.11-8.13; Guatemala – Cement II,
paras. 9.6-9.7. Similarly, the panel in US – Softwood Lumber IV (Article 21.5 – Canada) declined to suggest
the refund of countervailing duties. (Panel Report, US – Softwood Lumber IV (Article 21.5 – Canada),
paras. 5.6-5.7).