Document: WT/DS397/R Page B-1 ANNEX B EXECUTIVE SUMMARIES OF THIRD PARTIES' WRITTEN SUBMISSIONS Contents Page Annex B-1 Executive Summary of the Third Party Written Submission of Brazil  B-2 Annex B-2 Executive Summary of the Third Party Written Submission of
Document codes: WT/DS397/R
Complainant: China
Respondent: EU
Third parties: Brazil, Canada, Chile, Colombia, India, Japan, Norway, Taiwan, Thailand, Turkey, U.S.
Dispute stage: Implementation & Compliance
Agreements cited: Art. 6, 9, 5, 2, 3, 4  Anti-dumpingArt. I, X:3(a), VI:1  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

ANNEX B

EXECUTIVE SUMMARIES OF THIRD PARTIES'
WRITTEN SUBMISSIONS

Contents Page
Annex B-1 Executive Summary of the Third Party Written Submission of
Brazil B-2
Annex B-2 Executive Summary of the Third Party Written Submission of
Colombia B-5
Annex B-3 Executive Summary of the Third Party Written Submission of
Japan B-9
Annex B-4 Executive Summary of the Third Party Written Submission of
Norway B-14
Annex B-5 Executive Summary of the Third Party Written Submission of
Turkey B-19
Annex B-6 Executive Summary of the Third Party Written Submission of
the United States B-21

ANNEX B-1

EXECUTIVE SUMMARY OF THE THIRD PARTY WRITTEN
SUBMISSION OF BRAZIL

Article 6.2 of the DSU and the Panel's Terms of Reference

1. The first issue that Brazil would like to rai se in its written submission refers to arguments
made by the European Union concerning Article 6.2 of the DSU and the Panel's terms of reference.
Brazil has a systemic interest in such issue and submits the following remarks to the Panel's
consideration.

2. In light of the two functions of a panel request – enabling the respondent to prepare its
defense and setting the panel's jurisdiction – past jurisprudence has distinguished the threshold
question of whether a request fulfills those functions satisfactorily from the substantive issues dealt in
the dispute. As per the Appellate Body (AB), DSU Article 6.2 only requires the complainant to
indicate "the nature of the measure and the gist of what is at issue".
1 The complainant must articulate
its claims clearly in the panel request, but n eed not develop legal arguments at that point. 2 Whereas
defects in panel requests cannot be "cured" by later clarification, panels ar e entitled to rely on the
parties written submissions in order to interpret th e panel request and define the precise scope of its
jurisdiction.

3. In brief, the European Union (EU) argues that a number of claims articulated by China
concerning the "Basic AD Regulation" are outside the Panel's terms of reference, since there is no
connection between the measure at issue – wh ich relates to the imposition of individual AD duties –
and the corresponding legal provisions – which rela te to: the determination of an individual margin
of dumping (Article 6.10), the proper level of anti-dumping duties (Article 9.3), the level of anti-
dumping duties where sampling is used (Article 9.4), and the administration of laws, regulations,
decisions and rulings.

4. In Brazil's view, the approach proposed by th e EU conflates the threshold examination of the
Panel Request (relating to its "due process" and "j urisdictional" functions ) with the substantive
analysis of China's claims (whi ch takes into account the arguments and the evidence produced by the
parties throughout the proceedings). From the Pane l Request, Brazil understands China to argue that
the aforementioned legal provisions relate – each fro m a different perspective – to the basic measure
China challenges. Brazil considers that this understanding of the " gist of what is at issue" is
confirmed by China's First Written Submission.

5. In addition, based on the thorough rebuttal of all China's claims as contained in the EU's
FWS, Brazil fails to see any compromise to EU's due process rights. Moreover, case law has stated
that the burden of proof lies on the respondent to establish such compromise.
3 At a minimum, it has
been made clear that the "mere assertion" that th e panel request does not perform its "due process"
function is not enough to exclude cl aims from the terms of reference. 4 Although the European Union
has certainly presented "supporting arguments" to back its assertions, Brazil's view, as explained
before, is that those arguments relate to the substa ntive analysis of the clai ms China advanced rather

1 See US – Continued Zeroing (AB Report, paragraph 169, emphasis added).
2 See Canada – Wheat (Panel Report, paragraph 6.10).
3 See EC – Computer Equipment (AB Report, paragraphs 58-65), Korea – Dairy (AB Report,
paragraphs 114-131), and Canada – Wheat (Panel Report, paragraph 6.10).
4 See US – OCTG Sunset Reviews (Panel Report, paragraph 7.71).

than to the threshold examination pertaining to the consistency of the Panel Request with Article 6.2
of the DSU.

6. One example of this conflation between the two distinct analyses can be seen where it is
stated that "China's Panel Request fails to explain how the 'provisions' of Article 9(5) of Council
Regulation No 384/96 are not administered in a uni form, impartial and reasonable manner" (emphasis
in the original).
5 This is essentially the argument rejected by the Panel in Canada – Wheat , when it
found that the US was not required to set forth in its panel request why and how the challenged
measure was inconsistent with Article XVII of the GATT 1994.6

Analysis of consistency of Article 9(5) of th e Basic AD Regulation "as such" with the AD
Agreement

7. Another important issue raised in this dispute is the alleged inconsiste ncy of Article 9(5) of
the Basic AD Regulation with provisions of the ADA, namely Articles 6.10, 9.2, 9.3 and 9.4. It is
Brazil's understanding that, in light of the ADA, of China's Protocol of Accession and of WTO
jurisprudence, the requirements of Article 9(5), seen in its overall context, are consistent with the
Agreements and with their underlying economic logic.

8. First of all, it may be recalled that the ADA deals, in distinct provisions, with the
determination of dumping margins (Articles 2 and 6.10) and with the imposition of anti-dumping
duties (Article 9). Although complementary, these provisions do not create obligations vis-à-vis one
another.

9. As regards the dumping margin, Article 2 and its paragraphs contain rules about
determination of normal value, export price and comparability. Article 6.10 establishes that the
investigating authority "shall, as a rule, determ ine an individual margin of dumping for each known
exporter or producer". Article 6.10 also contempl ates exceptions in this regard, allowing, for
example, for "sampling" in cases where the number of exporters or producers is so large as to make
the determination of individual margins impracticable.

10. Such methodologies, however, are only applicable in situations where prices and costs – the
parameters for determining both the normal value and export price – are established according to
market-economy (ME) rules.

11. For this reason, Article 2.7 of the ADA and its references establish an important exception to
the methodologies generally accepted by the ADA. In brief, it states that whenever ME rules do not
prevail in the country of the investigated exporters or producers, the investigating authority may resort
to a methodology that does not take into account internal costs and prices of that country.

12. In the particular case of China, this conclusi on is further supported by paragraph 15(a)(ii) of
its Protocol of Accession. Pursuant to this pr ovision, authorities investigating exports of Chinese
products may use, in determining the margin of dumping, a different methodology than the one
established in Article 2 of the ADA, unless the inves tigated Chinese producer demonstrates that, in its
specific case, ME conditions prevail. However, the relevant provisions (GATT 1994 Article VI,
ADA and China's Accession Protocol) offer no guidelin es as to what such methodology should be.
Therefore, the investigating authority of a Member may enjoy a level of discretion in establishing its
methodology.

13. It should be noted that, if the investigated company is able to demonstrate that it does not
suffer significant interference from the State, it is entitled to an individual dumping margin as

5 EU's FWS, paragraph 67.
6 See Canada – Wheat (Panel Report, paragraph 6.10).

provided by ADA Article 6.10, calculated within the methodologies of Article 2. This consequence is
logical, given that, if price comparability as required by Article 2.4 is not affected, ME treatment
should be applicable.

14. In non-market economies (NMEs), it can be presumed that decisions of companies involving
production and marketing are closely dependent from governmental decisions, as the individual
companies' objectives intersect, at least to a significant extent, with the objectiv es of that State. This
commonality of objectives would allow investigating authorities to consider NME-based exporters
and producers involved in anti-dumpi ng investigations as a single entity and, therefore, subject to a
single dumping margin. An analogy can be found, in ME countries, in the case of distinct companies
which are part of the same conglomer ate. Drawing on WTO jurisprudence
7, it has been accepted, in
many situations, for the investigating authorit y to consider distinct companies as a single
producer/exporter.

15. In the case of NMEs, the burden of proof shif ts towards the investigated exporter to establish
its exception from country-wide treatment. Thus, the f act that the EC maintains legislation with clear
and specific criteria for eligibility to that exception does not run counter any AD provision, and seems
to provide adequate opportunity for Chinese exporters to discharge their burden of proof properly.

Determination of anti-dumping duties: scope and limits

16. Another issue to be addressed is the dete rmination of the anti-dumping duty. The imposition
of an anti-dumping duty requires that the investigating authority finds positive dumping margins that
are above de minimis, according to the methodology described above.

17. In the light of Article 9 of the ADA, which pe rtains to the "Imposition and Collection of Anti-
Dumping Duties", it can be inferred that: (i) the imposition of an anti-dumping duty by a Member is
voluntary. Therefore, the existence of a positiv e dumping margin does not necessarily imply the
imposition of an anti-dumping duty; (ii) however, if the Member's authority decides to impose an
anti-dumping duty, it shall be equal to or less than the dumping margin; (iii) there is no explicit
obligation to determine an individual anti-dumping duty per exporter/producer; and, (iv) it is
desirable that the imposed anti-dumping duty be less that the dumping margin, if such lesser duty is
adequate to remove the injury to the domestic industry (lesser duty rule).

18. In what regards the determination of anti- dumping duties, the ADA does not set any specific
rule pertaining to the methodology of such determ ination, except that the result shall not be higher
that the dumping margin.

19. Finally, it is important to hi ghlight that the obligation stated in Article 9.2 of the ADA, in
what refers to the naming of the concerned supplie rs, does not establish any other obligation than the
naming itself. In other words, the fact that the investigating authority has to name the concerned
suppliers (or the supplying countries) does not mean, under any hypothesis, that this authority is
obliged to determine individual dumping margins to each of the suppliers. As shown above, the
applied dumping duty needs only to conform to the established dumping margin, being permitted that
it be the same to all listed suppliers, as long as it be less than such margin.

7 See Korea — Anti-Dumping Duties on Imports of Certain Paper from Indonesia (Panel Report,
paragraph 7.161).

ANNEX B-2

EXECUTIVE SUMMARY OF THE THIRD PARTY WRITTEN
SUBMISSION OF COLOMBIA

1. Colombia thanks the Panel and the Parties fo r this opportunity to present its views in this
proceeding. While not taking a final position on the specific facts of this case, Colombia provides its
views on some of the legal claims advanced by the Parties to the dispute. First, Colombia will address
in this submission the alleged violations to Article I:1 of the General Agreement on Tariffs and
Trade 1994 (the "GATT 1994"), and Articles 6.10 and 9.2 of the Agreement on the Implementation of
Article VI of the General Agreement on Tariffs and Trade 1994 (the "ADA") by the European Union,
through the imposition of specific requirements fo r the application of individual treatment to
producers and exporters from non-market econom y countries in anti-dumping proceedings, as
provided in article 9 (5) of Council Regulation (EC) No. 384/96, as amended. Second, the challenges
raised by China against the definitive anti-dumping duty on imports of certain iron and steel fasteners
from China with respect to: i) the determination of domestic industry in light of Articles 3.1 and ii)
Article 4.1 of the ADA; and the determination of "like produc t" in light of Articles 2.1 and 2.6 of
the ADA.

2. In line with the above mentioned , the second interpretative note to paragraph 1 of Article VI
of the GATT 1994 reflects the position of the GATT member States, later accepted by the
WTO Members, by means of which the price comp arability of States with non-market economies can
be done on a different basis to the one of States with market economies. This rule is included, for
purposes of systematic interpretation, in Article 2.7 of the ADA. This differential treatment, entails a
lawful differentiation between Member States of the WTO, which is not contrary to the provision of
Article I:1 of the GATT 1994.

3. This differential treatment has been accorded to certain States in their process of accession to
the WTO. This is the case of China, whose Protocol on Accession has specific provisions
1 related to
the effects of its production conditions over pri ce comparability in anti-dumping proceedings
undertaken by other WTO Member States. It is very important to bear in mind that section 15 of the
Chinese Protocol on Accession provides that WTO Member States before 2016 can decide to
unilaterally recognize that China is a country that meets the conditions of a market economy and thus
render inapplicable the transitional provisions fo r alternative price comparability in anti-dumping
proceedings established in that section.

4. The first measure at issue identified by Ch ina is Article 9(5) of Council Regulation (EC)
No. 384/96
2, as amended, since according to the claimant, should be declared incompatible, "as such",
with certain provisions of the GATT 1994 and the ADA.

5. Rather than focus on the procedural discussion he ld by the parties, Colombia will elaborate on
the substantive legal debate on this fi rst measure. In this respect, China claims that article 9(5) of the
Council Regulation (EC) No. 1255/09 is providing a differential treatment that is contrary to
Article I:1 of the GATT 1994 . The European Union considers that the claim brought by China
regarding a violation of Article I:1 of the GATT 1994, depends on the consiste ncy of Article 9(5) of
the Council Regulation (EC) No. 1255/09 with the ADA. Therefore, pursuant to the lex specialis

1 Section 15 of China's Protocol on Accession to the WTO (WT/L/432).
2 China's First Written Submission, Exhibit CHN-1.

principle, Article II:2(b) of the GATT 1994 and the General Interpretative Note to Annex 1A of the
WTO Agreement, since the challenged measure is consistent with the ADA, it could not breach
Article I:1 of the GATT 1994.

6. Colombia agrees with the arguments presen ted by the European Union, and additionally
considers that it can also be said that the co nditions required in Article 9(5) of Council
Regulation (EC) No. 1255/09, are under the scope of application of the second interpretative note to
the first paragraph of Article VI of the GATT 1994 , and thus of Article 2.7 of the ADA. Hence, in
Colombia's view, Article 9(5) of Council Regulation (EC) No. 1255/09 is consistent with Article I:1
of the GATT.

7. China claims that establishing additional re quirements to the determination of individual
dumping margins and individual anti-dumping duti es, by means of Article 9(5) of Council
Regulation (CE) No. 1255/09 constitutes a breach of the European Union's obligations under
Articles 6.10 and 9.2 of the ADA. The European Union first rebutted that Article 9(5) of the Council
Regulation (EC) No. 1255/09 is not subject to th e scope of application of Article 6.10 of the ADA.
Alternatively, the European Union claims that the general rule enshrined in Article 6.10 of the ADA, is
subject to at least two exceptions: i) the use of sa mpling, and ii) the general identification of various
producers under a single entity. Based on the second exception, the European Union considers that
Article 9(5) of the Council Regulation (EC) No. 1255/09 fully complies with Article 6.10 of the ADA.

8. Colombia considers that the view of the Eu ropean Union is correct, and points out that it
cannot be overseen, that when conducting the assessme nt of the relation between the producers and
the State (i.e. via a requirement like the one set forth in Article 9(5) of the Council Regulation (EC)
No. 1255/09), the national authority and the producers involved in the investigation are bound by the
provisions of Article 6.8 of the ADA. Hence, Colombia considers th at Article 9(5) of the Council
Regulation (EC) No. 1255/09 is consistent with the obligations arising from Article 6.10 of the ADA.

9. China considers that the obligation contained in Article 9.2 of the ADA relative to individually
naming all the suppliers of the product concerne d, tantamount to an obligation of individually
collecting and imposing anti-dumping duties. Under this understanding, China deems that
Article 9(5) of the Council Regulation (EC) No. 125 5/09 prevents the application of individual anti-
dumping duties, on a company to company basis, and is thus contrary to Article 9.2 of the ADA.
The European Union rebuts China' s claim in a two-fold manner. On the one hand it claims that
Article 9(5) of the Council Regulation (EC) No. 1255/09 does not fall within the purview of
Article 9.2 of the ADA, since this provision deals with the collection and not with the determination of
anti-dumping duties; and on the other hand it claims that in any case the challenged measure is
consistent with Article 9.2 of the ADA, since its application renders the duty appropriate and effective.

10. While agreeing with the arguments of the European Union, Colombia considers that
Article 9(5) of the Council Regulation (EC) No. 1255/ 09 is consistent with the obligations arising
from Article 9.2 of the ADA.

11. The second measure challenged by Chin a is Council Regulation (EC) No. 91/2009 3, through
which the European Union has im posed a definitive anti-dumping duty on imports of certain iron or
steel fasteners originating in China. According to China this measure violates numerous substantive
and procedural provisions of the ADA, but Colombia's submission will focus on the alleged violations
of Articles 3.1 and 4.1 (relative to the definition of the domestic industry), and, 2.1 and 2.6 (relative to
the like product determination) of such instrument.

3 See China's First Written Submission, para. 122 and Exhibit CHN- 4.

12. China claims that the European Union's dete rmination of the "domestic industry" violates
Articles 4.1 and 3.1 of the ADA. Particularly by not attending the limitation to the investigating
authorities' discretion established on Articles 4.1(i) and 4.1(ii) of the ADA. Additionally, China
claims that the European Union did not include domestic producers whose collective output of the like
product constituted a major proportion of the total domestic production. Finally, China claims that the
sample used by the European Union to determine the injury, is not a major proportion of the total
domestic productions.

13. In response to these claims the European Un ion contends that they are flawed mainly
because: pursuant to Article 4.1 of the ADA, it is possible to determine the domestic production
through the identification of a "major proportion" of it. The European Union did this through
sampling a percent, which in its view constitutes a "major proportion" of the domestic industry. The
European Union also notes that Article 4.1 do es not impose an obligation on sampled producers to
represent a major proportion of total domestic production.

14. Colombia shares the interpretation of the Eur opean Union when considering that the purpose
of Article 4.1 of the ADA is to ensure that the domestic industry is defined in such a way that either all
eligible producers (domestic industry as a whole) are included or those producers that represent "a
major proportion" of the eligible domestic production. It is Colombia's view that for the purposes of
the injury determination in an investigation, th e national authorities should interpret the concept of
"domestic industry" according to both articles 3.1 and 4.1 of the ADA; however this does not prevent
authorities of sampling during an investigation, bearing in mind that such sampling is sufficiently
representative of the domestic industry. In this re gard, it is required from the authorities to perform
both the investigation, and the injury determin ation in an objective manner based on positive
evidence. In the context of Articles 3.1 and 4.1 of the ADA, this means that the decisions taken during
these stages should be justifiable and credible.

15. China claims that the finding of the Eur opean Union expressed in Council Regulation (EC)
No. 91/2009, that all fasteners produced and sold in the European Community, in China or in the
analogue country (India) are like, is contrary to the provisions of Article 2.1 and 2.6 of the ADA. This
claim is grounded in the fact that acco rding to China, Article 2.6 of the ADA establishes that the like
product analysis has to be narrowly construed, a nd in the case at hand, the European Union did not
respect such a threshold by not recognizing the di fferences between standard (those produced in
China) and special fasteners (those produced in th e European Union) for th e purposes of determining
and applying the anti-dumping duties.

16. In response to China's claims , the European Union clarifies that the Articles 2.1 and 2.6 of
the ADA do not contain specific obligations regarding the determination of the product concerned or
the like product , since they merely indicate the circumstances in which dumping occurs and the
definition of a like product. It also claims that the like product determination was between fasteners
(standard and special) produced by the domestic indus try, produced and sold in China, produced in
the analogue country, and produced in China and sold in the European Union. Thus, China's claims
lack factual and legal grounds.

17. Colombia will comment on the flexibility that national authorities enjoy in order to select,
based on the evidence available in the investigation, which is the
product concerned and although not
fully discussed by the European Union, which is th e standard of likeness that should be applied in
anti-dumping investigations in accordance with the WTO law. The determination of the product
concerned is not subject of a specific obligation under Articles 2.1 and 2.6 of the ADA. Rather, when
analyzing the likeness comparison between the product concerned (freely fixed by the national
authority) and the like domestic product for the purposes of establishing the existence of dumping,
national authorities are bound to follow the terms a nd conditions set in both Articles 2.1 and 2.6 of
the ADA. It is Colombia's view that the application of Article 2.6 should be framed in a reasonable

context. Indeed, the definition of the scope of 'like product' in an anti-dumping investigation could
not be limited to either identical products or a single group of products sharing just physical
characteristics with the product under consideration. Colombia observes that this provision actually
entails the possibility of using, not just the "physical characteristics" criteria, but also other criteria of
likeness accepted in the context of the GATT 1994 and the different covered agreements, bearing that
the investigating authorities construed such crite ria in a reasonable manner trying to preserve the
scope and spirit of the ADA.

18. As a final point and in order to recap, Colo mbia considers that this case raises important
questions on the interpretation of Articles I:1 of the GATT 1994 as well as various provision of
the ADA. While not taking a final position on the merits of the case, Colombia requests this Panel to
carefully review the scope of the claims in light of the observations made in this submission.
Colombia reserves its right to make further comment s at the third party session of the first substantive
meeting with the Panel.

ANNEX B-3

EXECUTIVE SUMMARY OF THE THIRD PARTY WRITTEN
SUBMISSION OF JAPAN

I. ISSUES PERTAINING TO THE CALCULATION OF INDIVIDUAL DUMPING
MARGINS AND THE IMPOSITION AND COLLECTION OF INDIVIDUAL ANTI-
DUMPING DUTIES

1. In the present case, the People's Republic of Chin a ("China") suggests that Article 15(a)(ii) of
the Protocol on the Accession of the People's Republic of China ("China Accession Protocol ") and
paragraph 151 of the Report of the Working Party on the Accession of China (" Working Party
Report") do not permit the European Union to act incons istently with Articles 6.10, 9.2, 9.3, and 9.4
of the Agreement on Implementation of Article VI of the GATT (the " AD Agreement ") through
Article 9(5) of Council Regulation (EC) No. 384/96, as amended, and as codified and replaced by
Council Regulation (EC) No. 1225/2009 (the "Basic AD Regulation").

2. In Japan's view, Article 15(a)(ii) of the China Accession Protocol raises two questions in the
present case: (i) whether items (a)-(e) provided in Article 9(5) of the Basic AD Regulation may be
deemed to be conditions to show that "market economy conditions prevail in the industry"; and
(ii) whether the calculation of a country-wide dumping margin and AD duty based on a comparison
between the normal value established for an analogue country with the average export price of the
cooperating exporting producers in the country concer ned may be considered as "a methodology that
is not based on a strict comparison with domestic prices or costs in China".

3. Japan considers that the European Union did not violate Articles 6.10, 9.2, 9.3, and 9.4 of the
AD Agreement through Article 9(5) of the Basic AD Regulation if: (i) pursuant to the first question,
items (a)-(e) in Article 9(5) of the Basic AD Regula tion may be considered as conditions to show that
"market economy conditions prevail in the industry" under Article 15(a)(ii) of the China Accession
Protocol; and (ii) pursuant to the second question, th e calculation of a country-wide dumping margin
and AD duty by comparing the normal value establis hed for an analogue country with the average
export price of the cooperating exporting producers in the country concerned may be considered as "a
methodology that is not based on a strict comparis on with domestic prices or costs in China" under
Article 15(a)(ii) of the China Accession Protocol.

4. Japan asks that the Panel clarify the relationship between Article 15(a)(ii) of the China
Accession Protocol and Article 9(5) of the Basic AD Regulation, and that it carefully take into
account the issues raised above in its cons ideration of Article 15(a)(ii) of the China Accession
Protocol, Articles 6.10, 9.2, 9.3, and 9.4 of AD Agreement, and Article 9(5) of the Basic
AD Regulation.

5. In addition, Japan queries whether satisfyin g the criteria listed in paragraph 151 of the
Working Party Report is sufficient for a WTO Member to use "a methodology that is not based on a
strict comparison with domestic prices or co sts in China" pursuant to Article 15(a)(ii) of the China
Accession Protocol.

6. With respect to the obligation to determin e an individual dumping margin, Japan considers
that the first sentence of Article 6.10 of the AD Agreement establishes an obligation to determine an
individual dumping margin for each individua l exporter or producer concerned, with only one

exception to that rule. That exception is specifi ed in the second sentence of Article 6.10, which
permits sampling "where the number of exporters, producers, importers or types of products involved
is so large as to make such a determination imprac ticable". This view is consistent with past
WTO jurisprudence.
1

7. Japan agrees with the Europ ean Union's view that it is permissible to calculate a single
dumping margin for legally distinct but related entiti es to the extent that they may be considered a
single "exporter" or "producer" within the meaning of the first sentence of Article 6.10. That is also
in line with the panel's considerations in Korea – Ceramic Paper .2 However, this issue relates to the
definition of an "exporter" or a "producer" within the meaning of Article 6.10 of the AD Agreement;
it has no bearing on the relationship between the first and second sentences of Article 6.10.

II. ISSUES PERTAINING TO THE CONDUCT OF ANTI-DUMPING
INVESTIGATIONS

(i) "Domestic Industry" – Articles 4.1 and 3.1 of the AD Agreement

8. In Japan's view, China's argumen ts relating to Article 4.1 of the AD Agreement raise the
following key issues: whether the European Union violated Article 4.1 of the AD Agreement (i) by
excluding from the definition of the domestic industry all those companies that did not support the
investigation
3; (ii)since the domestic industry, as defined by the European Union, did not include
domestic producers whose collective output of the like product constituted a major proportion of the
total domestic production 4; and (iii) since the sample select ed by the European Union does not
represent a major proportion of total domestic pr oduction because the European Union selected a
sample of domestic producers, namely 6 producers amounting to only 17.5 per cent of the total
EU production, and whether European Union violated Article 3.1 of the AD Agreement since this
sample cannot be regarded as representative of the total domestic production.5

9. As regards the first issue , Japan's primary concern is ensu ring fairness in the investigation
process. Japan believes that domestic producers that do not support an AD complaint but fully
cooperate in an AD investigation may not be exclud ed from the definition of the domestic industry.
European Union's interpretation of "domestic industr y" could allow investigating authorities to define
the domestic industry in a results-oriented way. Th is would be inconsistent with the obligation of
Article 3.1 of the AD Agreement to conduct an "objective examination" of injury.

10. The Appellate Body in US – Hot-Rolled Steel
6 and in EC – Bed Linen (Article 21.5 – India) 7
recognized that investigating authorities must conduct an impartial investigation without favouring the
interests of any interested party. Moreover, inv estigating authorities are not entitled to conduct their
investigation in such a way that an affirmative injury determination becomes more likely.

11. In addition, there is a ge neral obligation to conduct AD inv estigations in an unbiased and
objective manner. This is borne out by Article 17.6(i) of the AD Agreement.

1 See Panel Report, Argentina Ceramic Tiles, paras. 6.89, 6.90; Panel Report, Argentina Poultry Anti-
Dumping Duties, para. 7.214.
2 See Panel Report, Korea – Certain Paper, para. 7.161.
3 First Written Submission of China, paras. 233-245.
4 First Written Submission of China, paras. 246-268.
5 First Written Submission of China, paras. 273-282.
6 Appellate Body Report, US – Hot Rolled Steel, para. 196.
7 Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 114, quoting Appellate Body
Report, US – Hot Rolled Steel, para. 192.

12. Moreover, the European Union's approach is st ructurally problematic to the extent that it
allows domestic producers themselves to tailor the "domestic industry" by designating those
companies for which injury is more likely to be found as supporting the complaint, whereas those
companies for which injury is less likely to be found as not supporting the complaint.

13. As regards the second issue , Japan agrees neither with Chin a's argument that 27 per cent of
domestic production a priori does not constitute a "major proportion" nor with the European Union's
argument that 25 per cent is a priori sufficient to reach the "major proportion" threshold.
8 The panel
in Argentina – Poultry Anti-Dumping Duties found that the "major proportion" requirement of
Article 4.1 of the AD Agreement does not mean that the domestic industry has to account for at least
50 per cent of domestic production, but that an " important, serious or significant " proportion of
production is sufficient. 9 In Japan's view, it is sufficient th at the investigating authority assess what
constitutes a major proportion on a case-by-case basis in an unbiased and objective manner.

14. As regards the third issue , although there are no clear provisions in the AD Agreement that
permit investigating authorities to engage in sampling of the domestic industry
10, the AD Agreement
allows authorities to conduct sampling on the domes tic industry where there are so many domestic
industry members that individual examinati on of all of them would be impracticable. 11 T h e
requirement imposed by Article 4.1 of the AD Agreement that the collective output of the domestic
industry must constitute at least a "major proporti on" of total domestic production must be clearly
distinguished from the requirements for the selection of a sample.

15. Japan believes that the second sentence of Article 6.10 would be helpful also in the context of
sampling for the injury determination. In Japan's view, the primary requirement for the selection of a
sample for the injury determination is that, the sample must be sufficiently representative of the
domestic industry.12

(ii) "Product under Consideration" and "Like Product" – Articles 2.1 and 2.6 of the
AD Agreement

16. Japan asks the Panel to first carefully examine whether the European Union correctly defined
the "product under consideration", taking into account the arguments and exhibits of both parties.

17. Next, Japan asks the Panel to carefully c onsider whether the European Union properly
compared products that were "like" the "produ ct under consideration" with the product under
consideration. In particular, Japan asks the Panel to carefully consider whether the products produced
and sold in the analogue country (India) in the dumping context were "like" the products produced in
China and exported to the European Union.

18. Whether two products are "like" is de termined pursuant to Article 2.6 of the AD Agreement.
Article 2.6 defines "like product" to mean "a product which is identical, i.e. alike in all respects to the
product under consideration, or in the absence of such a product, another product which, although not
alike in all respects, has characteristics closely resembling those of the product under consideration".

19. In this respect, Japan cons iders the finding of the panel in Indonesia – Autos in the context of
a case under the Agreement on Subsidies and Countervailing Measures ("SCM Agreement ") as

8 See First Written Submission by the European Union, para. 340 et seq.
9 See Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.341.
10 Footnote 13 of the AD Agreement appears to provide for the possibility of sampling domestic
producers before initiation of an anti-dumping investigation.
11 Panel Report, EC – Salmon (Norway), para. 7.129.
12 Panel Report, EC – Salmon (Norway), para. 7.130.

equally applicable under the AD Agreement , which note the statement of the Appellate Body in
Alcoholic Beverages (1996).
13

20. In the present case, Japan asks the Panel to take into consideration all factors and to make its
best judgment as to whether the products produced and sold in the analogue country (India) are "like"
the product under consideration under the AD Agreement.

(iii) Injury Determination: Volume of Dumped Imports – Articles 3.1, 3. 2, 3.4 and 3.5 of the
AD Agreement

21. In Japan's view, China's arguments relating to Articles 3.1, 3.2, 3.4 and 3.5 of the
AD Agreement raise two key issues: (i) whether the European Union violated Articles 3.1 and 3.2 of
the AD Agreement by failing to exclude the imports of two Chinese exporting producers, found to be
not dumping, from the volume of dumped imports
14; and (ii) whether the European Union violated
Articles 3.1 and 3.2 of the AD Agreement by including in the volume of dumped imports all imports
from non-sampled exporting producers that were not individually examined.15

22. As regards the first issue , Japan believes that "dumped imports" in Article 3 means that the
injury determination set forth in Article 3 must re flect the authorities' assessment of only "dumped
imports", and not imports that were not found to have been "dumped."
16

23. It follows that, to the extent that the Eu ropean Union considered non-dumped imports as
having been "dumped" for the injury and causation analyses, it violated Articles 3.1 and 3.2 of the
AD Agreement in light of past WTO jurisprudence.

24. As regards the second issue , Japan believes that the European Union did not violate
Articles 3.1 and 3.2 of the AD Agreement by including in the volume of "dumped imports" all imports
from non-sampled exporting producers that were not individually examined. That is because the
European Union found that all sampled exporting producers were engaged in dumping 17, and
accordingly, its determination that all non-sampled exporting producers that were not individually
examined were also engaged in dumping may be considered as based on "positive evidence" and an
"objective examination" without additional inquiry.

25. Investigating authorities have a right to appl y sampling in the circumstances described in the
second sentence of Article 6.10 as long as they "satis fy the requirements of 'positive evidence' and an
'objective examination', without having to investigate each producer or exporter individually".18

26. In Japan's view, these requirements are not vi olated where the findings concerning the sample
are extrapolated to all non-sampled producers that were not individually examined. 19 Indeed, the
approach of extrapolating the findings of the samp le to all companies that were not individually
examined is "unbiased" and does not "favour the interests" of any interested party in the investigation.

14 First Written Submission of China, paras. 402-408.
15 First Written Submission of China, paras. 409-417.
16 Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.303. Panel Report, EC – Bed Linen,
para. 6.138. Appellate Body Report, EC – Bed Linen (Article 21.5 – India), paras. 111, 112 and 115.
17 First Written Submission by the European Union, para. 535.
18 Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 117.
19 Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 137.

27. Moreover, Japan stresses that there is no requirement anywhere in the AD Agreement that
requires investigating authorities to take into account information from outside the sample when
extrapolating the findings of the sample to non-examined producers outside of the sample.20

(iv) Injury Determination: Ca usation and Non-Attribution Factor s – Articles 3.1 and 3.5 of the
AD Agreement

28. Under Article 3.5 of the AD Agreement , as explained by the Appellate Body in US – Hot-
Rolled Steel , investigating authorities must separate and distinguish the injurious effects of the
dumped imports from the injurious effects of other known factors.21

29. Japan considers it of paramount importance that the principle of "separating and
distinguishing" the effects of other known factor s be upheld in every anti-dumping investigation.
Accordingly, Japan requests that the Panel carefully review whether the Euro pean Union adhered to
this principle in the present case.

(v) Procedural Issues – Article 6.1.1 of the AD Agreement

30. Japan shares the European Union' s view that Article 6.1.1 of the AD Agreement applies only
to the initial questionnaire ( i.e., the initial dumping questionnaire)
22; the AD Agreement does not
require that investigating authorities provide respon dents with a minimum 30-day period to reply to
all possible information requests, "questionnaires" or claim forms.23

31. Indeed, given the procedural and practical time restraints of an anti-dumping investigation, it
would be unreasonable and unworka ble to impose a minimum 30-day period for respondents to be
able to submit information other than the response to the initial questionnaire.
24

32. In effect, Article 6.1.1 of the AD Agreement is a mere application of the general principle
reflected in the chapeau of Article 6.1 of the AD Agreement that respondents must be given sufficient
time to present their views in writing. Thus , while the chapeau of Article 6.1 of the AD Agreement
reflects the understanding that it may be necessar y to impose different deadlines on a case-by-case
basis for responding to certain information request s in the course of an anti-dumping investigation,
Article 6.1.1. of the AD Agreement requires that there must in any event be a minimum time period
for responding to the initial questionnaire.25

33. Japan stresses that information requ ests other than the initial questionnaire, e.g., a sampling
questionnaire and MET/IT claims, should not be cons idered subject to the 30-day period imposed by
Article 6.1.1 of the AD Agreement.

20 Panel Report, EC – Salmon (Norway), para. 7.634 and fn. 780.
21 Appellate Body Report, US – Hot-Rolled Steel, paras. 222-223 (emphasis added).
22 First Written Submission by the European Union, para. 783.
23 See Panel Report, Egypt – Steel Rebar, para. 7.276.
24 Appellate Body Report, US – Hot Rolled Steel, para. 73.
25 Panel Report, Egypt – Steel Rebar, para. 7.277.

I. INTRODUCTION

1. As a third party to this dispute, Norway would in the following like to address certain
interpretative issues, discussed in the First Written Submissions of China and the EU.

II. THE DETERMINATION OF THE DOMESTIC INDUSTRY

2. Norway will first address the EU's exclusion of certain categories of domestic EU producers,
that produced the domestic "like product" during the relevant period, from the determination of the
domestic industry. The EU seems to argue that an investigating authority has the discretion to
exclude whichever producers it wishes, provided th at the remaining producers represent a "major
proportion" of the industry.
1 Norway strongly disagrees that Article 4.1 of the Anti-Dumping
Agreement permits such a determination, which woul d prevent an objective examination of the
industry, as required by the Anti-Dumping Agreement. The only category of producers that may be
entirely excluded from the industry according to Article 4.1 is "related" producers. The focal point of
Article 4.1 is the totality of the domestic indus try, ensuring that the determination made is
representative of the domestic industry as a whole. 2 The injury determination is one of the pre-
conditions for the imposition of anti-dumping duti es, which protect all domestic producers. An
authority cannot impose duties unless that is warranted by the need to protect the domestic producers,
as a whole, and not just a select group of them.

3. Accordingly, the investigating authority cannot define the industry "on a selective basis" that
involves examination of just "one part" of the industry.
3 Nor can it define the industry in such a way
that an injury determination becomes "more likely" or such that it "favours the interests of any
interested party"4, something that would typically be the case if the domestic industry is restricted to
the complainants only. The panel in EC – Salmon thus found that Article 4.1 does not permit the
exclusion from the domestic industry of a group of producers who did not express a view during the
investigation.5

4. Hence, it is Norway's firm view that an i nvestigating authority cannot exclude categories of
producers from the definition of the domestic industry, whether these categories are based on the
production of a particular type or model of the "lik e product" or their opposition or silence in respect
of the investigation.

III. THE DETERMINATION OF THE PRODUCT SCOPE

5. China claims that the EU failed to determin e the "product under consideration" and the "like
product" consistently with Articles 2.1 and 2.6 of the Anti-Dumping Agreement.
6 Norway points to
consistent jurisprudence that establishes that i nvestigating authorities must make determinations
consistently with any definiti ons in the covered agreements. 7 Panels and the Appellate Body have
furthermore frequently interpreted words that were not defined in the covered agreements. 8 T h e
notion that Articles 2.1 and 2.6 do not impose obligations should therefore be rejected.

1 First Written Submission of the EU, paras. 296-297.
2 Appellate Body Report, US – Hot-Rolled Steel (AB), para. 190.
3 Appellate Body Report, US – Hot-Rolled Steel (AB), paras. 190 and 211.
4 Appellate Body Report, US – Hot-Rolled Steel (AB), paras. 193 and 196.
6 First Written Submission by China, para 300.
7 Appellate Body Report, US – Lamb , para. 96, Panel Report, Argentina – Poultry , para. 7.338,
Panel Report, EC – CVDs on DRAMS, paras. 8.1 (a), 8.1 (b) and 8.1 (c).
8 Panel Report, US – Hot-Rolled Steel , para. 7.108 and Appellate Body Report, US – Hot-Rolled
Steel (AB), para. 139.

6. According to Articles 2.1 and 2.6 of the Anti-Dumping Agreement , the pricing comparison
must be made between home and exported products that are " identical", or, by way of exception,
"closely resembling" products. Hence, where an authority wishes to group multiple products together
in a single investigation, Article 2.6 requires that any given category of the "like product" must be
"like" each and every category of the product under considerati on. Article 2.6 contains no exception,
or other qualifying language, that allows an au thority to establish likeness with respect to one
category of the product under consideration, but not with respect to other categories.

7. The term "product under consider ation" thus has an ordinary meaning that does not permit the
bundling of "non-like" products. The authorities can of course choose to sub-divide the investigated
product into models for purposes of comparison. Howe ver, in that event, the different models cannot
involve different products that are not like. Rather , the models must all be sub-categories of a group
of products that meet the definition of likeness.
9 The authorities must thus ensure likeness within the
entire group of sub-products that constitutes the investigated product.

8. If this was not so, the importing Member could manipulate the product scope of an
investigation to secure dumping and injury determinati ons that would not otherwise be possible. As a
result, the carefully drafted disciplines on dumping and injury determinations could be easily
undermined, contrary to the object and purpose of the Anti-Dumping Agreement, and the GATT 1994.

9. It is Norway's view that all models of th e "product under consideration" are required to be
"like" each other. To the extent that the Panel finds that standard and special fasteners are not in fact
"like" each other, this would in Norway's opini on entail a breach of Articles 2.1 and 2.6 of the Anti-
Dumping Agreement.

IV. THE DETERMINATION OF INJURY

10. Norway will address the claim that the EU im properly considered the displacement of EU
products by imports from China in some market seg ments as being relevant. Article 3.1 of the Anti-
Dumping Agreement requires the investigating authority to determine the impact of the dumped
products on the domestic producers of the "like products ". In this case, the EU had determined the
product scope to be standard and special fastener s. Once this is determined, the product scope
remains constant throughout the investigation.
10 The reference in Article 3.1 to the "like product"
entails an obligation to look at the product as a wh ole, not certain segments or models within the
product.11

11. It follows from this that injury cannot be found to result from a displacement of sales from
one segment to another, within the same "like product" . It would be contrary to Article 3.1 to find the
displacement of sales from one segment to another to be a factor in the determination of injury.

V. THE EXAMINATION OF THE VOLUME OF DUMPED IMPORTS

12. Norway will first comment on the EU's failure to exclude imports from two Chinese
producers that were found not to have dum ped, in the volume of dumped imports.
12 As the text of
Articles 3.1, 3.2 and 3.5 shows, it is only the dumped imports that are to be included in the
determination of injury. The Anti-Dumping Agreement does not provide any exceptions to this rule.

9 Appellate Body Report, EC – Bed Linen (AB), para. 58.
10 Panel Report, EC – Tube or Pipe Fittings, para 7.149.
11 Appellate Body Report, US – Softwood Lumber V , para. 99 and Panel Report, EC – Salmon ,
para. 7.54.
12 First Written Submission by China, paras. 397 and 402.

Several panels and the Ap pellate Body have confir med this interpretation. 13 I n EC – Salmon , the
panel rejected the EC's argument that the inclusion of imports from companies with de minimis
margins in the volume of dumped imports for injury analysis was appropriate as the exclusion of these
imports would not have had any signifi cant effect on the injury analysis. 14 The panel stated that the
term "dumped imports" in Article 3 of the Anti-Dumping Agreement could not be interpreted so as to
allow the inclusion of imports attributab le to producers/exporters for which a de minimis margin had
been calculated, and therefore found the EC to have acted inconsistently with Articles 3.1 and 3.2.15

13. Hence, the imports of the two Chinese produ cers that were found not to be dumping should
clearly have been treated as non-dumped, and s hould have been excluded from the volume of dumped
imports.

14. Secondly, China argues that the EU erred in treating the imports of all non-sampled and non-
examined Chinese exporting producers as being dumpe d, for purposes of the injury determination.
16
Article 3.1 of the Anti-Dumping Agreement requires an "objective examination" of "the volume of the
dumped imports", based on "positive evidence". Importantly, the text does not contain any exceptions
from this obligation. Jurisprudence has c onfirmed the strict nature of Article 3.1. 17 By automatically
considering that the volume of imported products from all non-sampled and non-examined producers
is at dumped prices, it becomes more likely that an investigating authority w ill find that the domestic
industry is injured. In light of this, the Appellate Body has stated that su ch an approach, which is
applied irrespective of whether there are examined or sampled exporting producers found not to be
dumping, cannot be objective. 18 Accordingly, the panel in EC – Salmon found that the investigating
authority erred in concluding that all examined producers were dumping, as one producer had been
found not to be dumping, and further extrapolating this conclusion to all imports.19

15. This is parallel to the case before this Pane l. Whether it is established through sampling or
through individual examination that there are produ cers that are not dumping is irrelevant for the
determination. The investigating authority faces the same uncertainty regarding the non-sampled and
non-examined exporting producers in both cases. The expansion of the investigation from the original
sample to allow two more companies individual treatment, and the results from the investigation of
these companies (being that no dumping took place), implies that an automatic extrapolation from the
original sample was not warranted. Further eviden ce would be required before an extrapolation from
the original sample would be justified.

VI. PROCEDURAL REQUIREMENTS

16. Norway will not go into the factual details of the case, but rather outline how to interpret the
requirements of Articles 6.2, 6.4 and 6.9 of the Anti-Dumping Agreement.

17. Article 6.2 of the Anti-Dumping Agreement sets out that all interested parties shall have a "full
opportunity for the defence of their interests", throughout the anti-dumping investigation. As opposed
to what the EU's approach seems to be
20, it is Norway's view that when an investigating authority

13 Panel Report, EC – Bed Linen, para. 6.138; Appellate Body Report, EC – Bed Linen (Article 21.5 –
India), para. 115; Panel Report Argentina – Poultry , para. 7.303, Panel Report, EC – Salmon , paras. 7.627-
7.628.
16 First Written Submission by China, para. 410.
17 Appellate Body Report, US – Hot-Rolled Steel (AB) , paras. 192, 193 and 196, Appellate Body
Report, EC – Bed Linen (Article 21.5 – India), para. 133.
18 Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 132.
20 First Written Submission of the EU, paras. 684-687.

violates Article 6.4 and/or 6.9, it also violates Article 6.2 of the Anti-Dumping Agreement . The
requirements of Articles 6.4 and 6.9 – the opportunity to see all releva nt and used information and the
proper disclosure of essential facts – serve, among others, the purpose of enabling interested parties to
defend their interests as set forth in Article 6.2.

18. Article 6.4 of the Anti-Dumping Agreement confers on interested parties a right of access to
evidence in the non-confidential record of the inves tigation. The Appellate Body has ruled that the
relevance of information must be assessed fro m the perspective of the interested parties.
21 A n
authority cannot, therefore, second-guess whether a par ticular document could be "relevant" to an
interested party's "presentation". The Appellate Body has also held that the phrase "used by the
authorities" in Article 6.4 refers to information that the authority must evaluate in making its
determinations.22 An authority must evaluate all of the in formation submitted to it that relates to its
determinations, and cannot ignore any of it.23

19. Article 6.9 of the Anti-Dumping Agreement requires the investigating authority, before the
final determination is made, "to inform all inter ested parties of the essential facts under consideration
which form the basis for the decision whether to apply definitive measures". Panels have held that the
requirement to disclose essential facts cannot be complied with simply by providing access to all
information in the file.
24 Rather, the investigating authority mu st actively identify the facts on which
it will rely in making its determination. 25 Panels have distinguished "facts" from "reasons". 26 The
duty of disclosure thus relates to evidence. As to what evidence the i nvestigating authority has an
obligation to disclose, the words "essential" and "form the basis of" indicate that the duty relates to the
important facts that provide the foundation on which the final determination is constructed.27

20. Under the second sentence of Article 6.9, di sclosure must occur "in sufficient time for the
parties to defend their interests". Absent disclosur e of the essential facts, interested parties cannot
make effective comments on the factual basis for the authority's intended decision.

VII. CONCLUSION

21. Norway respectfully requests the Panel to take account of the considerations set out above in
interpreting the relevant provisions of the covered agreements.

21 Appellate Body Report, EC – Tube or Pipe Fittings (AB), para. 145.
22 Appellate Body Report, EC – Tube or Pipe Fittings (AB), para. 145.
24 Panel report, Guatemala – Cement II, para. 8.230.
25 Panel report, Argentina – Ceramic Tiles, para. 6.125.

ANNEX B-5

EXECUTIVE SUMMARY OF THE THIRD PARTY WRITTEN
SUBMISSION OF TURKEY

I. INTRODUCTION

1. Turkey takes no position as to the defense and allegations presented by the parties. Turkey
wishes to contribute by focusing on two major issues, namely Market Economy Treatment and
Individual Treatment Assessments within the framework of dumping margin calculation.

II. MARKET ECONOMY TREATMENT (MET )/INDIVIDUAL TREATMENT (IT)
ASSESSMENTS WITHIN THE FRAMEWORK OF DUMPING MARGIN
CALCULATION

2. According to Article 2.1 of the Anti-Dumping Agreement, an investigating authority has to
work on two data groups (normal va lue and export price) to determine whether dumping is present.
Accordingly, the investigating authority is legally obliged to make a fair comparison based on the
rules and standards stipulated in Article 2.4 of the Anti-Dumping Agreement between normal value
and export price.

3. Furthermore, GATT 1994 Article VI, Ad Article VI.1, paragraph 2 and Articles 2.2 and 2.3 of
the Anti Dumping Agreement point out certain sour ces which the investigating authority shall take
into consideration if either the normal value or the export price can not be determined from the data
provided by the producer/exporter due to the reason that the internal sales do not permit a proper
comparison or because of the absence or unreliable nature of export prices.

4. In Turkey's view, Ad Article VI.1, para graph 2 of GATT 1994 and Anti Dumping Agreement
Article 2.2 permits the investigating authority to rely on an unbiased calculation method in order to
determine the normal value in the event of exports from a country in which the prices are not set by
dynamics of a free-market economy.

5. In addressing the IT assessment, it is underst ood that Article 9.5 of the EU Basic Regulation
envisages the use of the export price of the prod ucer/exporter itself if it can fulfill the criteria
stipulated in the Article. If the exporter/producer fails, however, the EU investigating authority has
the option to employ weighted average export pr ice of cooperating producer/exporter companies for
comparison.
1

6. Therefore, the IT assessment is not solely an evaluation whether the producer/exporter has
properly proved that it is fulfilling the criteria of Artic le 9.5, but a legal instrument directly affecting
the calculation of the dumping margin by determining data group to be used as the export price which
has been argued to be an indispensable component of the dumping margin calculation pursuant to the
GATT 1994 Article VI and Article 2.2 of the ADA.

7. In this regard, both the MET and IT assessment are instruments that directly relate to the
calculation of the dumping margin which provides the investigating authority with alternative routes
on the question of which group of data will be used to determine the normal value and export price.

III. SETTING A THRESHOLD IN ORDER TO PROVIDE FOR INDIVIDUAL
TREATMENT

8. It can be clearly understood from Article 6. 10 of the Anti Dumping Agreement that individual
treatment, i.e. calculation of individual dumping margin for each known exporter/producer is a
general rule. However there are always exceptions to general rules when the conditions prevail. The
PRC rightly mentions that the second sentence of the Article 6.10, i.e. sampling, provides an
exception to the general rule of individual treatment.

9. The legal question here is whether sampling is the sole exception to the general rule of IT, or
Members can require in their domestic legislation some conditions to have met in order to provide IT.
Turkey is of the view that this may not be the sole exception.

10. The Anti Dumping Agreement provides rules for economies operating in market economy
conditions. There are no specific rules or excep tions for economies that are not operating under
market economy conditions. It is not reasonabl e to look for a non-market economy exception in
Article 6.10 itself.

11. Furthermore, Ad Article VI .1, paragraph 2 of GATT 1994 provides a special provision for the
calculation of prices regarding countries that do not operate under full ma rket economy conditions.
This provision mentions that, in the case of im ports from a country which has a complete or
substantially complete monopoly of its trade and where all domestic prices are fixed by the State,
special difficulties may exist in determining price comparability and in such cases importing
contracting parties may find it necessary to take into account the possibility that a strict comparison
with domestic prices in such a country may not always be appropriate.

12. When the object and purpose of Ad Articl e VI.1, paragraph 2 of GATT 1994 and paragraph
150 of PRC's Working Party Report (WT/ACC/CHN/49) are considered; it is understood that these
paragraphs are included as an exception to the ge neral rule of "strict comparison with domestic
prices" for counties that are not operating in full market economy conditions.

13. Moreover, taking into account the AB Report in the US – Corrosion Resistant Steel , and
Panel Report in the Korea – Certain Paper cases , Turkey understands that treating several distinct
legal entities as a single entity, in the event where the conditions require to do so, is approved by case-
law and sampling is not the only exception to the general rule of IT.

IV. CONCLUSION

14. Turkey reserves its rights to make further comments at the third party session of the first
substantive meeting of the Panel. Turkey thanks the Panel for the opportunity to present its views in
this proceeding and welcomes any questions that Panel may have.

ANNEX B-6

EXECUTIVE SUMMARY OF THE THIRD PARTY
WRITTEN SUBMISSION OF
THE UNITED STATES

1. The United States addresses in this submissi on the proper interpretation of the following
provisions: (1) Article 6.10 and Article 9 of the Agreement on Article VI of the General Agreement on
Tariffs and Trade 1994 (the "AD Agreement"); (2) Article X:3(a) of the General Agreement on
Tariffs and Trade 1994 (the "GATT 1994"); (3) Article 5.4 of the AD Agreemen t; (4) Articles 2.1
and 2.6 of the AD Agreement; (5) Article 3.1 of th e AD Agreement; and (6) Articles 6.1.1, 6.2, 6.4,
and 6.5 of the AD Agreement.

I. ARTICLE 9(5) OF COUNCIL REGULATION NO. 1225/2009 UNDER THE
AD AGREEMENT

A. A
RTICLE 6.10 OF THE AD AGREEMENT

2. According to China, Article 6.10 of the AD Ag reement requires an investigating authority to
calculate an individual margin of dumping for ever y interested party that identifies itself as an
exporter or producer. China misunderstands th e obligations found in Article 6.10 of the
AD Agreement.

3. The United States notes that the AD Agreement neither defines "exporter" or "producer", nor
sets out criteria for the investigating authority to ex amine before concluding that a particular firm or
group of firms constitutes an "exporter" or "producer ". Therefore, an investigating authority is
permitted to conclude, based on the facts on the record, which entities constitute an individual
"producer" or "exporter" as a condition precedent to calculating an individual dumping margin. This
includes the right of the investigating authority to establish those factors that may be relevant to
identifying an "exporter" or "producer", including by reference to the actual commercial activities and
relationships of companies rather than their status as legally distinct entities. The reasoning of the
panel in Korea – Paper directly supports this interpretation of Article 6.10 of the AD Agreement.

4. An inquiry into the relationship between companies and the reality of their respective
commercial activities is particularly relevant in the context of producers and exporters from a non-
market economy. In a non-market economy, such as China, the government's interference in the
functioning of market principles could lead to the government making business decisions for the
individual companies, the government forcing the companies to harmonize their business activities to
fulfill the government's objectives, or the govern ment shifting production between the companies.
Consistent with the panel report in Korea – Paper , each of these factors would support a finding by
the investigating authority that companies should be treated as a single exporter and subject to a single
dumping margin.

5. Furthermore, given the presumption of governme nt interference reflected in paragraph 15 of
Part I of the Protocol of the Accession of the People's Republic of China ("Protocol"), it would make
little sense for an investigating authority to assign an individual dumping margin to an exporting
company in a non-market economy country without first confirming, at the very least, that the
company functions as an exporter separate from the government. Otherwise, if the exporter's prices

were set by the government, there would be no objective basis for assigning that company its own
dumping margin.

B. A
RTICLE 9 OF THE AD AGREEMENT

6. As an initial matter, the United St ates notes that Article 9 discusses the imposition of
antidumping duties with respect to products, not individual exporters or producers. In this regard, the
concept of imposing antidumping duties on an individual exporter or producer, as advanced by China,
is found nowhere in Article 9 of the AD Agreement.

7. Furthermore, it does not follow from China's inte rpretation of Article 9 that an investigating
authority would necessarily be required to impose or apply an individual antidumping duty for each
company. As in the case of its Article 6.10 clai m, China fails to recognize that the decision as to
whether a group of companies functions as a single entity is one that an investigating authority must
make before it can know how duties should be applied to those companies' imports. If it concludes
that multiple companies are closely related and f unction as a single entity, an investigating authority
may apply a single duty to all of those companies' imports, even under China's reading of Article 9.

II. ARTICLE 9(5) OF COUNCIL REGULATION NO. 1225/2009 UNDER
ARTICLE X:3(A) OF THE GATT 1994

8. To the extent that China is challenging Artic le 9(5) under Article X:3(a) of the GATT 1994,
the United States submits that this measure does not fall within the scope of Article X:3(a). The
Appellate Body has recognized that laws and regulations themselves may be challenged under
Article X:3(a) only where they reflect the administration of an instrument set out in Article X:1.
However, Article 9(5) appears to provide substa ntive rules on how antidumping duties are to be
imposed rather than embody the administration of any other legal instrument. The United States
therefore agrees with the EU that , under these circumstances, Article 9(5) itself cannot be found to
breach GATT Article X:3(a).

III. ARTICLE 5.4 OF THE AD AGREEMENT

9. While it takes no position on the merits of Ch ina's factual allegations, the United States shares
China's view that, pursuant to Article 5.4, an investigating authority may not initiate an investigation
unless it has conducted an examination of the eviden ce and determined that the requisite industry
support exists. This determination and th e underlying examination must take place prior to the
authority's decision whether to initiate an investiga tion, and thus must be based on evidence available
to the investigating authority prior to initiation. It would be neither consistent with the terms of
Article 5.4 nor logical for an investigating authority to take into account facts that are revealed
subsequent to its initiation decision in order to bolster its examination of the degree of industry
support that is required prior to initiation.

IV. ARTICLES 2.1 AND 2.6 OF THE AD AGREEMENT

10. While it takes no position on the merits of Ch ina's factual allegations, the United States
disagrees with China's understanding of the definition of "like product" in antidumping proceedings.
The United States notes, first, that as a purely de finitional article, Article 2.6 itself imposes no
obligation on WTO Members. This provision alone therefore provides no basis for a finding of
inconsistency.

11. Second, Article 2.6 calls for a comparison between the " product under consideration" and the
"like product". As recognized by the panels in US – Softwood Lumber AD Final and EC – Salmon ,
there is no requirement that each individual item within the "like product" be "like" each individual

item within the imported product subject to consider ation. This is confirmed by the context of
Article 2.6, including Articles 2.4 and 6.10.

V. ARTICLE 3.1 OF THE AD AGREEMENT

12. As the Appellate Body has recognized, "an ' objective examination' requires that the domestic
industry, and the effects of dumped imports, be investigated in an unbiased manner, without favoring
the interests of any interested party, or group of interested parties, in the investigation ". In light of
this understanding of Article 3.1, an investigati ng authority's inclusion of only supportive domestic
firms, to the exclusion of other domestic firms, in its examination of the domestic industry appears to
show a selection bias ab initio. Furthermore, where an investigating authority has failed to conduct an
"objective examination" as required by Article 3.1, that error permeates the investigating authority's
analyses of market share, price effects, impact, and causation under Articles 3.2, 3.4, and 3.5,
respectively. Similarly, once an investigating au thority defines which entities comprise the "domestic
industry" that will form the basis for its injury an alysis, an "objective examination" requires that the
authority seek and, to the extent possible, use a cons istent data set reflecting the performance of those
entities.

VI. CHINA'S CLAIMS UNDER ARTICLE 6 OF THE AD AGREEMENT

13. China claims that the EU violated certain disclosure and procedural requirements found in
Article 6 of the AD Agreement. While it tak es no position on the merits of China's factual
allegations, the United States respectfully requests the Panel to take into account the following general
points in assessing the claims of China under Article 6 of the AD Agreement.

A. A
RTICLES 6.2 AND 6.4

14. The Appellate Body has recognized that the "r elevancy" of the information covered by Article
6.4 is to be determined from the perspective of the interested party, not the investigating authority.
The United States therefore agrees with China that Ar ticle 6.4 generally requires that an investigating
authority give interested parties access to all non- confidential information that is submitted during an
investigation. Failure to provide such access would not only be inconsis tent with Article 6.4, but also
Article 6.2, because without access to information described in Article 6.4, an interested party is
necessarily denied "a full opportunity for the defense of their interests".

15. In an antidumping investigation, the ability of an interested party to defend its interests is
especially critical with respect to information rela ted to the calculation of normal value and the price
comparisons that are conducted. The United States therefore agrees with China that where such
information is not disclosed, and the interested parties are therefore not able to see relevant
information, those parties may be denied a full opportunity to defend their interests as required by
Article 6.2 of the AD Agreement.

B. A
RTICLE 6.5

16. China also raises a claim with respect to Artic le 6.5 of the AD Agreement, which requires that
information which is by nature confidential, or whic h is provided on a confidential basis by parties to
an investigation, shall be treated as such by the investigating authorities upon a showing of good
cause. While it takes no position on the merits of China's factual allegation, the United States agrees
with China that, where an investigating authorit y accepts information being submitted as confidential,
the authority's failure to so treat that information, in particular by disclosing it to interested parties
other than each of the exporting producers that fu rnished the information, is inconsistent with
Article 6.5 of the AD Agreement.

C. A
RTICLE 6.1.1

17. The United States agrees with the EU that China's claim under Article 6.1.1 of the
AD Agreement is premised on a funda mental misunderstanding of the scope of that provision. China
appears to assume that the term "qu estionnaires" in Article 6.1.1 encompasses any request for
information made by an investigating authority, as a result of which an exporter or foreign producer
should be given at least 30 days to respond to ev ery such request made in the course of an
investigation.

18. However, as the panel in Egypt – Rebar explained, the context of Article 6.1.1, in particular
paragraphs 6 and 7 of Annex I to the AD Agreemen t, reveals that the term "questionnaire" for
purposes of the AD Agreement refers to the original antidumping questionnaire in an investigation.
Given the breadth of information requested in this initial antidumping questionnaire, it is logical that
the Agreement seeks to provide a minimum time period for respondent firms to collect the
information needed to be responsive to the investiga ting authority. The obligation in Article 6.1.1 to
provide thirty days for reply therefore applies onl y to the original antidumping questionnaire and not
to the MET and IT claim forms that are the subject of China's claim under this provision.

19. The United States notes that, notwithstanding the Article 6.1.1 claim advanced by China in
this dispute, at least China's investigating aut hority appears to recognize that the 30-day time period
for reply does not apply to every request for info rmation made by an investigating authority.
Article 12.1.1 of the SCM Agreement is worded almost identically to Article 6.1.1 of the
AD Agreement, setting out the requirement for 30 days to respond to questionnaires in CVD
investigations. In an ongoing CVD investigation on Grain-Oriented Electrical Steel (GOES) from the
United States, the Chinese Bureau of Fair Trade fo r Imports and Exports (BOFT) has issued multiple
requests for information to the US Government following the original questionnaire. For none of
these requests for information, attached at Exhi bit US-1, did China provide an initial period of
30 days to respond.