MOROCCO – ANTI-DUMPING MEASURES ON CERTAIN HOT-ROLLED STEEL FROM TURKEY REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 31 October 2018
Document codes: WT/DS513/R
Complainant: Turkey
Respondent: Morocco
Third parties: China, Egypt, EU, India, Japan, Kazakhstan, South Korea, Oman, Russia, Singapore, UAE, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. 5.10, 6.8, Annex II, 6.9, 3.1, 3.4  Anti-dumpingArt. VI:6  GATT 1994Art. 6.5, 6.5.1, 18.1  Anti-dumpingArt. I:1, X:3(a), XI:1  GATT 1994Art. 3.2, 3.3  Import LicensingArt. VI  GATT 1994Art. 1, 18  Anti-dumping

MOROCCO – ANTI-DUMPING MEASURES ON CERTAIN HOT-ROLLED
STEEL FROM TURKEY
REPORT OF THE PANEL
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LIST OF ANNEXES
ANNEX A
WORKING DOCUMENTS OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures on Business Confidential Information 9
Annex A-3 Interim Review 11
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of Turkey 20
Annex B-2 Integrated executive summary of the arguments of Morocco 42
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of the European Union 59
Annex C-2 Integrated executive summary of the arguments of Japan 61
Annex C-3 Integrated executive summary of the arguments of the United States 64

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CASES CITED IN THIS REPORT
Short title Full case title and citation
Argentina – Import Measures Appellate Body Reports, Argentina – Measures Affecting the Importation of
Goods, / / , adopted
26 January 2015, DSR 2015:II, p. 579
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 – Apples Appellate Body Report, Australia – Measures Affecting the Importation of
Apples from New Zealand, , adopted 17 December 2010,
DSR 2010:V, p. 2175
Australia – Tobacco Plain
Packaging
Panel Reports, Australia – Certain Measures concerning Trademarks,
Geographical Indications and other Plain Packaging Requirements
applicable to Tobacco Products and Packaging, , Add.1 and
Suppl.1 / , Add.1 and Suppl.1 / , Add.1 and
Suppl.1 / , Add.1 and Suppl.1, circulated to WTO Members
28 June 2018 [appeal pending]
Brazil – Aircraft Appellate Body Report, Brazil – Export Financing Programme for Aircraft,
WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, p. 1161
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut,
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167
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
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 – 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 – Publications and
Audiovisual Products
Panel Report, China – Measures Affecting Trading Rights and Distribution
Services for Certain Publications and Audiovisual Entertainment Products,
WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by
Appellate Body Report WT/DS363/AB/R, DSR 2010:II, p. 261
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of
Various Raw Materials, WT/DS394/AB/R / WT/DS395/AB/R /
WT/DS398/AB/R, adopted 22 February 2012, DSR 2012:VII, p. 3295
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 Appellate Body Report, European Communities – Regime for the
Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted
25 September 1997, DSR 1997:II, p. 591
EC – Bed Linen Panel Report, European Communities – Anti-Dumping Duties on Imports of
Cotton-Type Bed Linen from India, WT/DS141/R, adopted 12 March 2001,
as modified by Appellate Body Report WT/DS141/AB/R, DSR 2001:VI,
p. 2077
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

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Short title Full case title and citation
EC – Countervailing Measures
on DRAM Chips
Panel Report, European Communities – Countervailing Measures on
Dynamic Random Access Memory Chips from Korea, WT/DS299/R,
adopted 3 August 2005, DSR 2005:XVIII, p. 8671
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) Panel Report, European Communities – Definitive Anti-Dumping Measures
on Certain Iron or Steel Fasteners from China, WT/DS397/R and Corr.1,
adopted 28 July 2011, as modified by Appellate Body Report
WT/DS397/AB/R, DSR 2011:VIII, p. 4289
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products
(Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998,
DSR 1998:I, p. 135
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumping Measure on Farmed
Salmon from Norway, WT/DS337/R, adopted 15 January 2008, and Corr.1,
DSR 2008:I, p. 3
EC – Selected Customs
Matters
Appellate Body Report, European Communities – Selected Customs
Matters, WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX,
p. 3791
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 and certain member
States – Large Civil Aircraft
Appellate Body Report, European Communities and Certain Member
States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R,
adopted 1 June 2011, DSR 2011:I, p. 7
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) 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
EU – Biodiesel (Indonesia) Panel Report, European Union – Anti-Dumping Measures on Biodiesel from
Indonesia, WT/DS480/R and Add.1, adopted 28 February 2018
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) Appellate Body Report, European Union – Countervailing Measures on
Certain Polyethylene Terephthalate from Pakistan, WT/DS486/AB/R and
Add.1, adopted 28 May 2018
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding
Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November
1998, DSR 1998:IX, p. 3767
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 – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical and
Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998,
DSR 1998:I, p. 9
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports
of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000,
DSR 2000:I, p. 3
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

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

Short title Full case title and citation
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 – Olive Oil Panel Report, Mexico – Definitive Countervailing Measures on Olive Oil
from the European Communities, WT/DS341/R, adopted 21 October 2008,
DSR 2008:IX, p. 3179
Russia – Commercial Vehicles Appellate Body Report, Russia – Anti-Dumping Duties on Light Commercial
Vehicles from Germany and Italy, WT/DS479/AB/R and Add.1, adopted
9 April 2018
Thailand – H-Beams Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes
and Sections of Iron or Non-Alloy Steel and H-Beams from Poland,
WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 2701
US – Anti-Dumping and
Countervailing Duties (China)
Appellate Body Report, United States – Definitive Anti-Dumping and
Countervailing Duties on Certain Products from China, WT/DS379/AB/R,
adopted 25 March 2011, DSR 2011:V, p. 2869
US – Anti-Dumping
Methodologies (China)
Appellate Body Report, United States – Certain Methodologies and Their
Application to Anti-Dumping Proceedings Involving China, WT/DS471/AB/R
and Add.1, adopted 22 May 2017
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain
Corrosion-Resistant Carbon Steel Flat Products from Germany,
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX,
p. 3779
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
US – Cotton Yarn Appellate Body Report, United States – Transitional Safeguard Measure on
Combed Cotton Yarn from Pakistan, WT/DS192/AB/R, adopted
5 November 2001, DSR 2001:XII, p. 6027
US – Countervailing and
Anti-Dumping Measures
(China)
Appellate Body Report, United States – Countervailing and Anti-Dumping
Measures on Certain Products from China, WT/DS449/AB/R and Corr.1,
adopted 22 July 2014, DSR 2014:VIII, p. 3027
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 – Gasoline Appellate Body Report, United States – Standards for Reformulated and
Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I,
p. 3
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 – 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 – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of
Poultry from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V,
p. 1909
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

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

Short title Full case title and citation
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
US – Stainless Steel (Korea) Panel Report, United States – Anti-Dumping Measures on Stainless Steel
Plate in Coils and Stainless Steel Sheet and Strip from Korea,
WT/DS179/R, adopted 1 February 2001, DSR 2001:IV, p. 1295
US – Steel Plate Panel Report, United States – Anti-Dumping and Countervailing Measures
on Steel Plate from India, WT/DS206/R and Corr.1, adopted 29 July 2002,
DSR 2002:VI, p. 2073
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton,
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3
US – Washing Machines Appellate Body Report, United States – Anti-Dumping and Countervailing
Measures on Large Residential Washers from Korea, WT/DS464/AB/R and
Add.1, adopted 26 September 2016
US – Washing Machines Panel Report, United States – Anti-Dumping and Countervailing Measures
on Large Residential Washers from Korea, WT/DS464/R and Add.1,
adopted 26 September 2016, as modified by Appellate Body Report

US – Wheat Gluten Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Wheat Gluten from the European Communities,
WT/DS166/AB/R, adopted 19 January 2001, DSR 2001:II, p. 717
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of
Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted
23 May 1997, and Corr.1, DSR 1997:I, p. 323
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
TUR-1 Notice of initiation Ministère marocain de l'industrie, du commerce et des nouvelles
technologies, Avis public n° 01/13, Relatif à l'ouverture d'une enquête
antidumping sur les importations de tôles d'acier laminées à chaud
originaires ou exportés des pays de l'Union Européenne et de la Turquie
(22 janvier 2013)
(Moroccan Ministry of Industry, Trade and New Technologies, Public
Notice No. 01/13, concerning the initiation of an anti-dumping
investigation on imports of hot-rolled steel sheet originating in or
exported from countries of the European Union and Turkey
(22 January 2013))
TUR-2 Initiation report Ministère marocain de l'industrie, du commerce et des nouvelles
importations de tôles d'acier laminées à chaud originaires ou exportés
(Moroccan Ministry of Industry, Trade and New Technologies, Report on
the initiation of an anti-dumping investigation on imports of hot-rolled
steel sheet originating in or exported from countries of the European
Union and Turkey)
TUR-5 Joint decision
No. 2986-13 imposing
provisional
anti-dumping duties
l'investissement et de l'économie numérique et du ministre de
tôles d'acier laminées à chaud originaires de l'Union européenne et de la
Turquie, Bulletin Officiel, n° 6206 (21 novembre 2013)
(Joint Order of the Minister of Industry, Trade, Investment and the
Digital Economy and the Minister of the Economy and Finance
No. 2986-13 of 23 Hijjah 1434 (29 October 2013) imposing a provisional
anti-dumping duty on imports of hot-rolled steel sheet originating in the
European Union and Turkey, Official Journal No. 6206
(21 November 2013))
TUR-6 Preliminary
determination
importations de tôles d'acier laminées à chaud originaires de
l'Union Européenne et de la Turquie, Détermination préliminaire de
(Moroccan Ministry of Industry, Trade and New Technologies,
Preliminary report of the anti-dumping investigation on imports of
hot-rolled steel sheet originating in the European Union and Turkey,
Preliminary determination of dumping, injury and causal link)
TUR-7 Public notice of the
preliminary
determination
importations de tôles d'acier laminées à chaud originaires de
l'Union Européenne et de la Turquie, Détermination préliminaire de
(30 octobre 2013)
(Moroccan Ministry of Industry, Trade and New Technologies, Public
Notice No. 12/13, Anti-dumping investigation on imports of hot-rolled
steel sheet originating in the European Union and Turkey, Preliminary
determination on the existence of dumping, injury and causal link
(30 October 2013))
TUR-8
(BCI)
Verification Report for
Erdermir
Group/Isdemir
technologies, Mission de vérification dans le cadre de l'enquête anti-
dumping sur les importations de tôles d'acier laminées à chaud
originaires de l'Union européenne et de la Turquie, Rapport de mission,
Erdemir Group/Isdemir (22 avril 2014)
(Moroccan Ministry of Industry, Trade and New Technologies, Verification
mission as part of the anti-dumping investigation on imports of
hot-rolled steel sheet originating in the European Union and Turkey,
Mission Report, Erdemir Group/Isdemir (22 April 2014))

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

Exhibit Short title Description
TUR-9
(BCI)
Verification Report for
Colakoglu
technologies, Mission de vérification dans le cadre de l'enquête anti-
dumping sur les importations de tôles d'acier laminées à chaud
originaires de l'Union européenne et de la Turquie, Rapport de mission,
Çolakoğlu Metalurji (22 avril 2014)
(Moroccan Ministry of Industry, Trade and New Technologies, Verification
mission as part of the anti-dumping investigation on imports of
hot-rolled steel sheet originating in the European Union and Turkey,
Mission Report, Çolakoğlu Metalurji (22 April 2014))
TUR-10 Draft final
determination
importations de tôles d'acier laminées à chaud originaires de
l'Union Européenne et de la Turquie, Détermination finale de l'existence
(Moroccan Ministry of Industry, Trade and New Technologies, Final
report of the anti-dumping investigation on imports of hot-rolled steel
sheet originating in the European Union and Turkey, Final determination
of dumping, injury and causal link (20 June 2014))
TUR-11 Final determination Ministère marocain de l'industrie, du commerce et des nouvelles
importations de tôles d'acier laminées à chaud originaires de
l'Union Européenne et de la Turquie, Détermination finale de l'existence
(Moroccan Ministry of Industry, Trade and New Technologies, Final
report of the anti-dumping investigation on imports of hot-rolled steel
sheet originating in the European Union and Turkey, Final determination
of dumping, injury and causal link (12 August 2014))
TUR-12 Public notice of the
final determination
technologies, Avis public n° 16/14, Relatif à l'enquête antidumping sur
les importations de tôles d'acier laminées à chaud originaires de
l'Union Européenne et de la Turquie, Détermination finale de l'existence
(12 août 2014)
(Moroccan Ministry of Industry, Trade and New Technologies, Public
Notice No. 16/14 concerning the anti-dumping investigation on imports
of hot-rolled steel sheet originating in the European Union and Turkey,
Final determination of dumping, injury and causal link, and termination
of the investigation (12 August 2014))
TUR-13 Joint Decision
No. 3024-14 imposing
definitive
anti-dumping duties
l'investissement et de l'économie numérique et du ministre de
importations de tôles en acier laminées à chaud originaires de l'Union
européenne et de la Turquie, Bulletin Officiel, n° 6296 (2 octobre 2014)
(Joint Order of the Minister of Industry, Trade, Investment and the
Digital Economy and the Minister of the Economy and Finance
No. 3024-14 of 30 Shawwal 1435 (27 August 2014) imposing a
definitive anti-dumping duty on imports of hot-rolled steel sheet
originating in the European Union and Turkey, Official Journal No. 6296
(2 October 2014))
TUR-18 Letter dated 18 August 2014 from the MDCCE to the Government of
Turkey
TUR-19
(BCI)
Erdemir Group's
comments on the
draft final
determination
Erdemir Group's comments on the draft final determination
(10 July 2014)
TUR-20
(BCI)
Colakoglu's comments
on the draft final
determination
Colakoglu's comments on the draft final determination (11 July 2014)
TUR-25 Correspondence
December
2013-January 2014
Email correspondence from 31 December 2013 to 10 January 2014
between the MDCCE and Erdemir Group
TUR-26
(BCI)
Addendum to
questionnaire
response
Excerpt from Erdemir Group's addendum to questionnaire response
(13 January 2014)
TUR-28
(BCI)
Letter of the CIB to
the MDCCE
Letter dated 6 March 2014 from the Turkish Steel Exporters' Association
to the MDCCE

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

Exhibit Short title Description
TUR-29
(BCI)
Correspondence with
customs and
commercial
documents from
Erdemir Group
Email dated 24 June 2014 from Erdemir Group to the MDCCE; and email
response dated 7 July 2014 from the MDCCE to Erdemir Group with
customs and commercial documents
TUR-30
(BCI)
Correspondence with
customs and
commercial
documents from
Colakoglu
Email dated 24 June 2014 from Colakoglu to the MDCCE; and email
response dated 7 July 2014 from the MDCCE to Colakoglu with customs
and commercial documents
TUR-48 Excerpt from
USITC's preliminary
determination on
Lime Oil from Peru
Excerpt from USITC, Lime Oil from Peru, Determination of the
commission in investigation No. 303-ta-16 (preliminary) under the tariff
act of 1930, together with the information obtained in the investigation
(July 1985)
TUR-51 Maghreb
Steel's financial
report 2012
Maghreb Steel, Mise à jour du dossier d'information relatif à
l'exercice 2012
(Maghreb Steel, Update to the information file for the financial
year 2012)
TUR-57
(BCI)
Turkey's explanation
on Morocco's table of
allegedly unreported
transactions
Exhibit MAR-11 (BCI) with Turkey's explanation of the alleged
discrepancy
TUR-58
(BCI)
Movement certificates
and commercial
invoices
Movement certificates and commercial invoices for line items 2-6, 9,
11-17, 29-32, and 35-40 of exhibit TUR-57 (BCI)
TUR-69 International Accounting Standard 7, Statement of cash flows
(24 March 2010)
TUR-70 International Accounting Standard 1, Presentation of Financial
Statements
MAR-8 Excerpt from Maghreb Steel's questionnaire response, section G
MAR-11
(BCI)
 Table of non-declared transactions
MAR-15 Excerpt from Maghreb Steel's questionnaire response, section F

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
BCI Business Confidential Information
C&F cost and freight
CIB Turkish Steel Exporters' Association
Colakoglu Çolakoğlu Metalurji and Çolakoğlu Dis Ticaret A.S
DCE Ministère de l'lndustrie, du Commerce et des Nouvelles Technologies,
Département du Commerce Extérieur
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
Erdemir Group Ereğli Demir ve Çelik Fabrikaları T.A.Ş and İskenderun Demir ve Çelik A.Ş
(İSDEMİR)
GATT 1994 General Agreement on Tariffs and Trade 1994
Hot-rolled steel products hot-rolled steel
MDCCE Ministère délégué auprès du Ministre de l'Industrie, du Commerce, de
l'Investissement et de l'Économie Numérique chargé du Commerce Extérieur
SCM Agreement Agreement on Subsidies and Countervailing Measures
USITC United States International Trade Commission
Vienna Convention Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969,
1155 UNTS 331; 8 International Legal Materials 679
WTO World Trade Organization

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

1 INTRODUCTION
1.1 Complaint by Turkey
1.1. On 3 October 2016, Turkey requested consultations with Morocco pursuant to Article 4 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and
Article 17.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994 (Anti-Dumping Agreement), Article XXIII:1 of the General Agreement on Tariffs and
Trade 1994 (GATT 1994 ), and Article 6 of the Agreement on Im port Licensing Procedures with
respect to the measures and claims set out below.1
1.2. Consultations were held on 18 and 28 November 2016, but failed to resolve the dispute.
1.2 Panel establishment and composition
1.3. On 12 January 2017, Turkey requested the establishment of a panel pursuant to Articles 4.7
and 6 of the DSU with standard terms of reference.2 At its meeting on 20 February 2017, the Dispute
Settlement Body (DSB) established a panel pursuant to the request of Turkey, in accordance with
Article 6 of the DSU.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 disp ute, the matter referred to the DSB by Turkey in document
WT/DS513/2 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 8 May 2017, Turkey requested the Director -General to determine the composition of the
panel, pursuant to Article 8.7 of the DSU . On 17 May 2017 , the Director -General accordingly
composed the Panel as follows:
Chairperson: Ms Usha Dwarka-Canabady

Members: Mr Gustav Brink
 Mr Renê Guilherme da Silva Medrado

1.6. China, Egypt, the European Union, India, Japan, Kazakhstan, the Republic of Korea, Oman, the
Russian Federation, Singapore, the United Arab Emirates, and the United States reserved their rights
to participate in the Panel proceedings as third parties.
1.3 Panel proceedings
1.7. After consulting the parties, the Panel:
a. adopted its Working Procedures5 and timetable on 22 August 2017;
b. revised the timetable on 4 December 2017, on 15 May 2018, and on 4 July 2018; and
c. adopted, on 22 August 2017, additional procedures for the protection of Business
Confidential Information (BCI).6
1.8. The Panel held a first substantive meeting with the parties on 29 and 30 November 2017. A
session with the third parties took place on 30 November 2017. The Panel held a second substantive

1 Request for consultations by Turkey, WT/DS513/1, G/ADP/D114/1, G/L/1152, G/LIC/D/51.
2 Request for the establishment of a panel by Turkey, WT/DS513/2.
3 DSB, Minutes of the meeting held on 20 February 2017 (5 April 2017), WT/DSB/M/392.
4 Constitution note of the Panel, WT/DS513/3.
5 See the Panel's Working Procedures in Annex A-1.
6 See the Additional Working Procedures of the Panel concerning Business Confidential Information in
Annex A-2.

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

meeting with the parties on 11 and 12 April 2018. On 1 June 2018, the Panel issued the descriptive
part of its Report to the parties. The Panel issued its Interim Report to the parties on 9 August 2018.
The Panel issued its Final Report to the parties on 4 October 2018.
2 FACTUAL ASPECTS
2.1 The measures at issue
2.1. This dispute concerns the definitive anti-dumping measures imposed by Morocco on imports of
certain hot-rolled steel products (hot-rolled steel) from Turkey.
2.2. On 21 January 2013, the "Ministère de l'lndustrie, du Commerce et des Nouvelles Technologies,
Département du Commerce Extérieur" (DCE) initiated an investigation with respect to dumping of
hot-rolled steel from, among others, Turkey.7
2.3. Morocco imposed provisional anti-dumping duties on the imported products at issue8, following
the preliminary affirmative determination by the "Ministère délégué auprès du Ministre de l'Industrie,
du Commerce, de l'Investissement et de l' Économie Numérique chargé du Commerce Extérieur"
(MDCCE) of dumping, injury and causation, dated 29 October 2013.9
2.4. On 12 August 2014, the MDCCE published the final affirmative determination of dumping,
injury, and causation.10 The definitive measure came into force on 26 September 2014.11
3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATION
3.1. Turkey requests the Panel to find that12:
a. the MDCCE acted inconsistently with Article 5.10 of the Anti-Dumping Agreement, because
the duration of the investigation at issue exceeded the maximum time limit envisaged in
this provision;
b. the MDCCE used facts available to determine dumping margins for Ereğli Demir ve Çelik
Fabrikaları T.A.Ş and İskenderun Demir ve Çelik A.Ş (İSDEMİR) (Erdemir Group ) and
Çolakoğlu Metalurji and Çolakoğlu Dis Ticaret A.S (Colakoglu) in a manner inconsistent
with Article 6.8 a nd paragraphs 1, 3, 5, 6, and 7 of Annex II to the
Anti-Dumping Agreement;
c. the MDCCE acted inconsistently with Article 6.9 of the Anti-Dumping Agreement by failing
to disclose all "essential facts" with respect to its decision to use facts available to
determine dumping margins for Erdemir Group and Colakoglu in a timely manner;
d. the MDCCE's determination that the domestic industry (Maghreb Steel) was
"unestablished" is inconsistent with Article VI:6(a) of the GATT 1994 as well as footnote 9
to Article 3 and Articles 3.1 and 3.4 of the Anti-Dumping Agreement;
e. the MDCCE's determination that the domestic industry (Maghreb Steel) suffered injury in
the form of material retardation is inconsistent with Articles 3.1 and 3.4 of the
Anti-Dumping Agreement; and
f. the MDCCE acted inconsistently with Articles 6.5, 6.5.1 , and 6.9 of the
Anti-Dumping Agreement by failing to disclose information concerning the break -even
threshold in its analysis of whether the domestic industry was "established".

7 Notice of initiation, (Exhibit TUR-1); Initiation report, (Exhibit TUR-2).
8 Joint decision No. 2986-13 imposing provisional anti-dumping duties, (Exhibit TUR-5).
9 Preliminary determination, (Exhibit TUR-6); Public notice of the preliminary determination,
(Exhibit TUR-7).
10 Final determination, (Exhibit TUR-11); Public notice of the final determination, (Exhibit TUR-12).
11 Joint decision No. 3024-14 imposing definitive anti-dumping duties, (Exhibit TUR-13).
12 Turkey's first written submission, paras. 11.1-11.2.

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

3.2. Turkey also requests the Panel to exercise its discretion under Article 19.1 of the DSU and to
suggest that Morocco bring its measures into conformity with its WTO obligations by immediately
revoking the anti-dumping measure at issue.
3.3. Morocco requests that the Panel reject all of Turkey's claims in this dispute. Morocco also
requests that the Panel rule that certain claims are outside the Panel's terms of reference.
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 19 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 20 of the Working Procedures adopted
by the Panel (see Annexes C-1, C-2, and C-3). China, Egypt, India , Kazakhstan, the Republic of
Korea, Oman, the Russian Federation, Singapore , and the United Arab Emirates did not submit
written or oral arguments to the Panel.
6 INTERIM REVIEW
6.1. On 28 August 2018 , Turkey and Morocco each submitted written requests for the review of
precise a spects of the Interim Report. Neither party requested an interim review meeting. On
12 September 2018, both parties submitted comments on each other's requests for review . The
Panel's discussion and disposition of those requests are set out in Annex A-3.
7 FINDINGS
7.1 General principles
7.1.1 Treaty interpretation
7.1. Article 3.2 of the DSU provides that the WTO dispute settlement system serves to clarify the
existing provisions of the covered Agreements "in accordance with customary rules of interpretation
of public international law". Article 17.6(ii) of the Anti-Dumping Agreement similarly requires panels
to interpret that Agreement's provisions in accordance with the customary rules of interpretation of
public international law. Articles 31 and 32 of the Vienna Convention on the Law of Treaties codify
in part these customary rules.13
7.1.2 Standard of review
7.2. Article 11 of the DSU provides that:
[A] panel should make an objective assessment of the matter bef ore it, including an
objective assessment of the facts of the case and the applicability of and conformity
with the relevant covered Agreements.
In addition, Article 17.6 of the Anti -Dumping Agreement sets out the special standard of review
applicable to disputes under the Anti-Dumping Agreement:
(i) in its assessment of the facts of the matter, the 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 evaluation was unbiased and objective, even though the panel might have
reached a different conclusion, the evaluation shall not be overturned;

13 Appellate Body Report, US – Gasoline, DSR 1996:I, p. 16.

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(ii) the panel shall interpret the relevant provisions of the Agreement in accordance
with customary rules of interpretation of public international law. Where the panel finds
that a relevant provision of the Agreement admits of more than one permissible
interpretation, the panel shall find the authorities ' measure to be in conformity with
the Agreement if it rests upon one of those permissible interpretations.
Thus, Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement together establish the
standard of review that a panel must apply with respect to both the factual and the legal aspects of
the present dispute. This means that in reviewing the investigating authority's determination in this
dispute, we must:
a. examine whether the authority has provided a reasoned14 and adequate15 explanation as
to:
i. how the evidence on the record supported its factual findings16; and
ii. how those factual findings support the overall determination17;
b. not conduct a de novo review of the evidence or substitute our judgment for that of the
investigating authority;
c. limit our examination to the evidence that was before the investigating authority during
the investigation18;
d. take into account all such evidence submitted by the parties to the dispute19; and
e. not simply defer to the conclusions of the investigating authority; our examination of those
conclusions must be "in-depth" and "critical and searching".20
7.1.3 Burden of proof
7.3. In WTO dispute settlement "the burden of proof rests upon the party, whether complaining or
defending, who asserts the affirmative of a particular claim or defence".21 Where a party "adduces
evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the
other party, who will fail unless it adduces sufficient evidence to rebut the presumption". 22 A
complaining party establishes a prima facie case where, absent effective refutation by the defending
party, a panel has as a matter of law to rule in favour of the complaining party.23

14 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 93: "[t]he
panel's scrutiny should test whether the reasoning of the authority is coherent and internally consistent".
15 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 93: "[w]hat is
'adequate' will inevitably depend on the facts and circumstances of the case and the particular claims made,
but several general lines of inquiry are likely to be relevant".
16 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 93: "[t]he panel
must undertake an in-depth examination of whether the explanations given disclose how the investigating
authority treated the facts and evidence in the record and whether there was positive evidence before it to
support the inferences made and conclusions reached by it".
17 Appellate Body Reports, US – Countervailing Duty Investigation on DRAMS, para. 186; US – Lamb,
para. 103. See also Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 93: "[t]he
panel must examine whether the explanations provided demonstrate that the investigating authority took
proper account of the complexities of the data before it, and that it explained why it rejected or discounted
alternative explanations and interpretations of the record evidence".
18 Anti-Dumping Agreement, Article 17.5(ii); Appellate Body Report, US – Countervailing Duty
Investigation on DRAMS, para. 187.
19 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS, para. 187.
20 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 93.
21 Appellate Body Report, US – Wool Shirts and Blouses, DSR 1997:I, p. 335.
22 Appellate Body Report, US – Wool Shirts and Blouses, DSR 1997:I, p. 335.
23 Appellate Body Report, EC – Hormones, paras. 98 and 104.

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

7.2 Terms of reference
7.4. Morocco argues that the following claims of Turkey fall outside the Panel 's terms of reference
and requests the Panel not to rule on them:
a. the claims under footnote 9 to Article 3 of the Anti-Dumping Agreement, Articles 3.1 and
3.4 of the Anti-Dumping Agreement24, and Article VI:6(a) of the GATT 1994 in respect of
the MDCCE's finding that the domestic industry was not "established";
b. the claims under Articles 3.1 and 3.4 of the Anti -Dumping Agreement in respect of the
MDCCE's finding of "material retardation" of the establishment of the domestic industry;
c. the claims under Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement in respect of the
confidential treatment of the domestic industry's (Maghreb Steel) break-even threshold;
and
d. the claim under Article 6.9 of the Anti-Dumping Agreement in respect of the alleged failure
to disclose the essential facts pertaining to the domestic industry 's (Maghreb Steel)
break-even threshold.
7.2.1 Evaluation
7.2.1.1 Article 6.2 of the DSU: Claim under footnote 9 to Article 3 of the
Anti-Dumping Agreement
7.5. In its first written submission, Turkey advanced a claim under footnote 9 to Article 3 concerning
the MDCCE's finding that the domestic industry was not "established". On its face, Turkey's request
for the establishment of a panel (panel request) does not, however, refer to a claim under footnote 9.
Paragraph 4(a) of the panel request states:
The Investigating Authority acted inconsistently with Articles 3.1 and 3.4 of the
Anti-Dumping Agreement and Article VI:6(a) of the GATT 1994 by finding that the
domestic industry was not "established", and by determining that the establishment of
that industry was retarded[.]25
7.6. Morocco argues that Turkey 's footnote 9 claim falls outside the Panel 's terms of reference
because Turkey did not provide a "brief summary of the legal basis" for this claim in the panel
request, contrary to the requirements of Article 6.2 of the DSU.26
7.7. Turkey contends that its footnote 9 claim is within the Panel's terms of reference.27 According
to Turkey, although the panel request does not mention footnote 9 , it nevertheless provided the
requisite "brief summary of the legal basis" for the following reasons:
a. Footnote 9 is a "definitional provision" and, as such, applies to all instances where the
Anti-Dumping Agreement references the term "injury". Therefore, by citing Articles 3.1
and 3.4 in the panel request, Turkey also referred to footnote 9.28
b. In the panel request, Turkey used the language of footnote 9 when referring to the
MDCCE's determination that the domestic industry was not "established" and that the
establishment of the domestic industry was "retarded". 29 It was thus clear that Turkey

24 Morocco's jurisdictional objection includes Turkey's claims under Articles 3.2 and 3.5. Although the
request for consultations listed such claims, Turkey limited its claims in the panel request to Articles 3.1
and 3.4. We therefore do not further address Articles 3.2 and 3.5.
25 Fn omitted.
26 Morocco's response to Panel question No. 1.4(a), paras. 31-36; second written submission,
paras. 38-46.
27 Turkey's second written submission, paras. 2.12-2.19.
28 Turkey's response to Panel question No. 1.4(a), paras. 38 and 40-41; second written submission,
para. 2.15.
29 Turkey's response to Panel question No. 1.4(a), paras. 40-41 and 44-45; second written submission,
paras. 2.16-2.17.

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was asserting a footnote 9 claim.30 In line with the Appellate Body's findings in Thailand –
H-Beams, Turkey only needed to cite the language and refer to key factors of footnote 9
in order to "provide a brief summary of the legal basis".31
c. At any rate, the panel request mentions Article VI:6(a) of the GATT 1994 and thereby also
referred to "the general definition provided in [f]ootnote 9".32
7.8. Article 6.2 of the DSU provides, in relevant part:
The request for the establishment of a panel shall be made in writing. It shall indicate
whether consultations were held, identify the specific measures at issue and provide a
brief summary of the legal basis of the complaint sufficient to present the problem
clearly.
7.9. The requirements to "identify the specific measure(s)" at issue and to "provide a brief summary
of the legal basis of the complaint sufficient to present the problem clearly " are central to the
establishment of a panel's jurisdiction. The measure(s) and the legal basis of the complaint – i.e. the
claim(s) – constitute the "matter referred to the DSB"33, which forms the basis of the panel's terms
of reference.34 In defining the scope of the dispute, the panel request establish es and delimits the
panel's jurisdiction, but it also fulfils a due process objective to the benefit of the respondent and
third parties.
7.10. With respect to the requirement that a panel request "provide a brief summary of the legal
basis of the complaint sufficient to present the p roblem clearly", the panel request must "[a]s a
minimum requirement … list the articles(s) of the covered Agreement(s) claimed to have been
violated".35 At the same time, deciding whether a claim is sufficiently set out in the panel request is
not a mechanical task. Rather, a panel needs to read the panel request in its entirety; it may, in
certain cases, infer the statement of a claim from the totality o f a panel request, such that a
complainant's failure to list a specific provision would not necessarily deprive a panel of jurisdiction
to address a claim under that provision.36
7.11. In all cases, however, the panel request must "plainly connect" the challenged measure with
the provisions of the covered Agreements claimed to have been violated in order "to present the
problem clearly".37 This connection enables the respondent to know what case it has to answer, and
to prepare its defence accordingly. Whether the panel request met the requirements of Article 6.2
must, also in every case, be demonstrated "on [its] face".38
7.12. In this dispute, we need to resolve whether the statement of claims in the panel request under
Articles 3.1, 3.4, and VI:6(a), in conjunction with the narrative in paragraph 4(a), provided a "brief
summary of the legal basis" of the claim under footnote 9 sufficient to clearly present a "problem"
concerning the alleged violation of footnote 9.
7.13. Footnote 9 is substantively connected wi th Articles 3.1 and 3.4 because footnote 9 defines
the term "injury" used in those (and other) provisions. However, this does not mean that a statement
of claims under Articles 3.1 and 3.4 necessarily implies a claim under footnote 9. Footnote 9 is
attached to the heading of Article 3, rather than to Article 3.1 or 3.4 specifically. Footnote 9 therefore

30 Turkey's response to Panel question No. 1.4(a), para. 41.
31 Turkey's response to Panel question No. 1.4(a), paras. 42-44 (referring to Appellate Body Report,
Thailand – H-Beams, para. 90).
32 Turkey's response to Panel question No. 1.4(a), paras. 46 and 48.
33 See Article 7.1 of the DSU.
34 Appellate Body Reports, EC and certain member States – Large Civil Aircraft, para. 639 (referring to
Appellate Body Reports, Guatemala – Cement I, paras. 72-73; US – Carbon Steel, para. 125; US – Continued
Zeroing, para. 160; US – Zeroing (Japan) (Article 21.5 – Japan), para. 107; and Australia – Apples,
35 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China), paras. 4.8 (referring
to Appellate Body Reports, Korea – Dairy, paras. 123-124, in turn referring to Brazil – Desiccated Coconut,
DSR 1997:I, p. 186; EC – Bananas III, paras. 145 and 147; India – Patents (US), paras. 89 and 92-93; and
36 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China), para. 4.33.
37 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 162.
38 Appellate Body Report, US – Carbon Steel, para. 127.

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applies to all of the provisions of Article 3 – and, by its express terms, more generally to all instances
where the term "injury" is used "[u]nder this Agreement". We do not consider that a statement of
claim under any provision in the Anti -Dumping Agreement that includes the term "injury", by the
mere use of this term, necessarily directs to, and includes, a claim under footnote 9. Nor do we
consider that the text of Article 3.1 or 3.4 suggest s that claims under these provisions specifically
imply a further claim under footnote 9.
7.14. Turkey asserts that footnote 9 contains a substantive obligation that Morocco violated. In the
jurisdictional context, however, Turkey argues that footnote 9 serves as a "definitional provision" in
determining the meaning of "injury" and thus "is an integral part of the claims under Articles 3.1
and 3.4".39 Turkey is correct in pointing out that the "determination of injury must be made in
accordance with the definition of 'injury ' provided in Footnote 9". 40 Yet, it does not follow from
Turkey's jurisdictional arguments that an independent claim of violation of an obligation in footnote 9
was identifiable from the panel request when it referred to Articles 3.1 and 3.4. In Turkey 's own
words, footnote 9 was only "part of the claims under Articles 3.1 and 3.4", not a separate and
independent claim. However, Turkey has clearly and repeatedly claimed that the
MDCCE's determination that the industry was no t "established" was inconsistent with
Morocco's obligations set forth in footnote 9, among other provisions. 41 It has also requested us to
"find" that the MDCCE 's determination that the domestic industry was not "established" is
inconsistent with footnote 9.42 To pursue a substantive claim under footnote 9, Turkey had to include
that claim in its panel request.
7.15. According to Turkey, the narrative language in paragraph 4(a) of the panel request provided
sufficient clarity with regard to the inclusion of a footnote 9 claim.43 We, however, read this narrative,
first and foremost, in the context of the provisions expressly cited in paragraph 4(a) of the panel
request, namely Articles 3.1, 3.4, and Article VI:6(a). Article VI:6(a) contains the general obligation
that "[n]o contracting party shall levy any anti -dumping … duty … unless it determines that the
effect of dumping … is such … as to retard materially the establishment of a domestic industry". The
narrative language in paragraph 4(a) therefore closely connects with Article VI:6(a). Turkey argues
that, as in US – Anti-Dumping Methodologies (China) 44, the narrative of its panel request
"unequivocally resembled that of the legal provision invoked" because it used words "found only in
Footnote 9".45 However, the language used in paragraph 4(a) also resembles the language used in
Article VI:6(a) and that paragraph of the panel request even mentions Article VI:6(a).
Turkey's argument therefore fails.
7.16. In light of the panel request expressly citing Articles 3.1, 3.4, and VI:6(a), and using language
that resembles the language in Article VI:6(a), we do not consider that the panel request , on its
face, "plainly connects" the challenged measure, which includes in the case at hand the
determination that the domestic industry was not "established", with the provision that was allegedly
violated, in this case footnote 9. We are thus not persuaded that the panel request presented any
problem regarding an alleged violation of footnote 9 with sufficient clarity.
7.17. Turkey also relies on the report of the Appellate Body in Thailand – H-Beams. In that case,
the Appellate Body found that the panel request at issue provided a "brief summary of the legal
basis" for claims under specific paragraphs of Article 3. According to the Appellate Body, the panel
request did so by mentioning Article 3 in combination with its narrative citing the language of
Article 3.1 and referring to volume and price effects and the impact on the domestic industry. The
dispute in Thailand – H-Beams did not present the Appellate Body with the same legal issue currently
before us. That case concerned the question whether a general reference to a treaty article, in that
instance Article 3, was sufficient to "provide a brief summary of the legal basis" in respect of claims
of violation under more specific paragraphs of that article. Here, however, we mus t resolve a

39 Turkey's response to Panel question No. 1.4(a), paras. 38, 40, and 45.
40 Turkey's second written submission, para. 2.15.
41 Turkey's first written submission, paras. 1.2, 1.4, 8.1-8.85, and 11.1; opening statement at the
first meeting of the Panel, paras. 4.1-4.13; and response to Panel's question No. 4.3(a), para. 92.
42 Turkey's first written submission, para. 11.1.
43 Turkey's response to Panel question No. 1.4(a), paras. 40-41 and 44-45; second written submission,
paras. 2.16-2.17.
44 Turkey's second written submission, para. 2.16 (quoting Appellate Body Report, US – Anti-Dumping
Methodologies (China), para. 5.169).
45 Turkey's second written submission, para. 2.17. (emphasis added)

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different question, that is, whether the references to the specific paragraphs of Articles 3.1 and 3.4
in the panel request were sufficient for purposes of stating a claim under footnote 9.
7.18. On the basis of the above, we conclude that in respect of the claim under footnote 9
Turkey's panel request did not "provide a brief summary of the legal basis of the complaint sufficient
to present the problem clearly", as required by Article 6.2 of the DSU. Turkey's footnote 9 claim
therefore falls outside our terms of reference.
7.2.1.2 Article 4.4 of the DSU: Claims under Articles 3.1 and 3.4 of the
Anti-Dumping Agreement
7.19. At paragraph 5 of the request for consultations, Turkey made the following claims, which
include Articles 3.1 and 3.4:
Injury/Causation Determination: The Moroccan authorities failed to provide a reasoned
and adequate explanation of their finding of injury and causation and therefore acted
inconsistently with Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement.46
7.20. At paragraphs 4(a) and (b) of the panel request, Turkey then stated the following claims
under Articles 3.1 and 3.4 concerning the MDCCE 's findings of "establishment", "material
retardation", and the injury factors:
The Investigating Authority acted inconsistently with Articles 3.1 and 3.4 of the
Anti-Dumping Agreement and Article VI:6(a) of the GATT 1994 by finding that the
domestic industry was not "established", and by determining that the establishment of
that industry was retarded[.]47
The Investigating Authority acted inconsistently with Article 3.4 of the
Anti-Dumping Agreement by failing to assess all the relevant injury factors set out in
that provision. Moreover, the Investigating Authority failed to conduct an appropriate
examination of each of the factors it analysed, as well as an objective and unbiased
assessment of all these factors collectively.
7.21. Morocco argues that the claims under Articles 3.1 and 3.4, as set out in paragraphs 4(a) and
(b) of the panel request, fall outside the Panel 's terms of reference. At paragraph 5 of the request
for consultations, Turkey failed to provide an "indication of the legal basis" of the cl aims under
Articles 3.1 and 3.4 in respect of the MDCCE 's findings concerning "establishment", " material
retardation", and the injury factors, contrary to the requirement of Article 4.4 of the DSU.48 In this
regard, Morocco contends that:
a. Compared to the pa nel request, the request for consultations merely referred to
Articles 3.1 and 3.4, which is insufficient for an "indication of the legal basis" of the claims
at issue. The request for consultations did not mention the issues of "establishment" and
"material retardation " of the domestic industry .49 It also did not mention the
MDCCE's findings in relation to the injury factors.50
b. The reference in the request for consultations to a "failure to provide a reasoned and
adequate explanation" is overly generic and, in any event, refers to the standard of review
of the Panel, not to an obligation of the MDCCE.51
7.22. According to Morocco, without an "indication of the legal basis" in the request for
consultations, the consultations did not cover the claims in the form ultimately pursued. As a result,

46 Emphasis original.
47 Fns omitted.
48 Morocco's second written submission, para. 17.
49 Morocco's responses to Panel question No. 1.1, para. 2, and No. 1.2(a), para. 14; second written
submission, paras. 17 and 19.
50 Morocco's responses to Panel question No. 1.1, para. 3, and No. 1.2(a), para. 15; second written
submission, para. 21.
51 Morocco's responses to Panel question No. 1.1, para. 4, and No. 1.2(a), paras. 13 and 16;
second written submission, paras. 13 and 22.

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they did not evolve from the request for consultations because they expanded the scope of the
dispute and changed its essence.52
7.23. Turkey contends that its claims under Articles 3.1 and 3.4 are within the Panel 's terms of
reference. The request for consultations satisfied the requirements of Article 4.4 of the DSU.
Paragraph 5 of the request for consultations contains a section titled "Injury/Causation
Determination" and mentions, inter alia, claims under Articles 3.1 and 3.4. As the MDCCE's injury
determination took the form of "material retardation of the establishment of the domestic industry",
the reference in the request for consultations to the injury determination logically relates to the
finding of injury in th at form.53 The request for consultations thus indicated the legal basis for the
claims which the panel request then elaborated upon at paragraphs 4(a) and (d). 54 It also follows
that the claims at issue in the panel request did not change the essence of the dispute.
7.24. We recall that Articles 4.4 and 6.2 of the DSU require different levels of specificity for the
identification of claims in the request for con sultations and the panel reques t.55 While the
complainant must only give an "indication of the legal basis" in the request for consultations, it must
provide "a brief summary of the legal basis sufficient to present the problem clearly" in the panel
request. Neither "precise and exact identity" between the claims in the request for consultations and
the panel request is required, nor should "too rigid a standard" of identity be imposed.56 In particular,
"Article 4.4 of the DSU requires only that a request for consultations contain 'an indication of the
legal basis for the complaint '. … [Which] is a lesser requirement tha n that of Article 6.2, and may
well be satisfied in a particular case by listing the Articles allegedly violated".57
7.25. Considering the above, we note that Turkey cited the provisions at issue, Articles 3.1 and 3.4,
at paragraph 5 of its request for consultations and expressly challenged the "injury determination".
7.26. Morocco argues that the request for consultations should also have mentioned that Turkey
was taking issue with the MDCCE's analysis of "establishment", "material retardation", and the injury
factors. In its view, "[i]t was not for Morocco to guess what aspects [of] its injury determination
Turkey sought to challenge".58 Indeed, the request for consultations did not expressly refer to the
MDCCE's findings in respect of "establishment", "material retardation", and the injury factors.
Bearing in mind the requirements of Article 4.4 of the DSU, though, we consider that
Turkey's concern with these issues was sufficiently clear ly indicated by its reference to the
MDCCE's "injury determination" . This " injury determination " was exclusively based on an injury
finding in the form of "material retardation of the establishment of the domestic industry ".
Necessarily, the request for consultations referred to the "injury determination" in that form. Further,
the reference in the request for consultations to Article 3.4, which concerns the examination of the
injury factors, made sufficiently clear that the request for consulta tions challenged the findings
concerning those injury factors. As a matter of law, the c omplainant must explain succinctly in the
panel request, not in the request for consultations, how or why the measure at issue is considered
by the complainant to violate the WTO obligation in question. 59 To require, as Morocco suggests,
even greater precis ion in the request for consultations in respect of the claims under Articles 3.1
and 3.4 would effectively substitute the legal standard of Article 4.4 with that of Article 6.2.
7.27. On the basis of the foregoing, paragraph 5 of the request for consultations ad equately
indicated the legal basis of the claims under Articles 3.1 and 3.4. These legal bases in the request
for consultations were also sufficiently broad to include the claims under Articles 3.1 and 3.4, as
subsequently set out in the panel request. The reference in the request for consultations to an

52 Morocco's response to Panel question No. 1.2(a), paras. 12-17; second written submission, para. 23.
53 Turkey's response to Panel question No. 1.2(a), para. 11; second written submission, para. 2.9.
54 Turkey's opening statement at the first meeting of the Panel, para. 4.27; response to Panel question
No. 1.2(a), paras. 8-10.
55 Panel Reports, US – Poultry (China), para. 7.43; EC – Fasteners (China), para. 7.206; see also
Appellate Body Report, Argentina – Import Measures, para. 5.9.
56 Appellate Body Reports, Brazil – Aircraft, para. 132; US – Upland Cotton, para. 293; and Mexico –
Anti-Dumping Measures on Rice, paras. 137-138. This applies to the extent that the panel request does not
expand the scope of the dispute, or change its essence.
57 Panel Report, EC – Fasteners (China), paras. 7.207 and 7.322; see also ibid. para. 7.206, and
Panel Report, US – Poultry (China), para. 7.43.
58 Morocco's opening statement at the second meeting of the Panel, para. 15.
59 Appellate Body Reports, EC – Selected Customs Matters, para. 130; China – Raw Materials,

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alleged failure "to provide a reasoned and adequate explanation" does not detract from the
sufficiency of the "indication of the legal basis". The text of Articles 3.1 and 3.4 does not refer to an
obligation to give a "reasoned and adequate explanation". Yet, this phrase does not conflict with the
claims, or the obligations, under Articles 3.1 and 3.4. Nor does the language in the request for
consultations exclude the claims under Articles 3.1 and 3.4 in the form subsequently pursued in the
panel request.
7.28. It follows from the above that in respect of the claims under Articles 3.1 and 3.4 the request
for consultations gave the required "indication of the legal basis". We thus reject
Morocco's arguments in this regard. As a result, we also do not accept Morocco's argument that the
claims under Articles 3.1 and 3.4, as set out in the panel request, could not have evolved from the
request for consultations.
7.29. Accordingly, Turkey's claims under Articles 3.1 and 3.4 fall within our terms of reference.
7.2.1.3 The "evolution" of certain claims in the panel request from the request for
consultations
7.2.1.3.1 Factual background
7.30. For purposes of finding injury in the form of "material retardation of the establishment of the
domestic industry", the MDCCE determined that the domestic industry, composed of the sole
Moroccan producer and petitioner Maghreb Steel, was not "established". In doing so, the MDCCE
analysed Maghreb Steel 's break-even (or profitability) threshold. The MDCCE trea ted this
break-even threshold as confidential, and redacted it from in its determination.60
7.2.1.3.2 Claims under Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement
7.31. In the request for consultations, Turkey did not make any claims under Articles 6.5 and 6.5.1
concerning the MDCCE 's confidential treatment of the domestic industry 's break-even threshold.
Turkey subsequently added claims under these provisions in paragraph 4(d) of the panel request,
which states:
The Investigating Authority acted inconsistently wi th Articles 6.5 and 6.5.1 of the
Anti-Dumping Agreement by failing to require the applicant to submit a non-confidential
summary of the "profitability threshold" used for its finding of material retardation of
the establishment of the domestic industry, or an explanation of why it could not be
summarized.
7.32. According to Morocco, given that the request for consultations did not mention Articles 6.5
and 6.5.1, nor the break-even threshold or its confidential treatment , the claims included in the
panel request had not been the subject of consultations. Morocco asserts that the claims under
Articles 6.5 and 6.5.1 set forth in the panel request therefore could not have evolved from any of
the claims in the request for consultations.61
7.33. Turkey argues that the claims under Articles 6.5 and 6.5.1 evolved from the Article 3.1 claim
set forth at paragraph 5 of the request for consultations, cited at paragraph 7.19. above. According
to Turkey:
a. The confidential treatment of the break-even threshold was inconsistent with Articles 6.5
and 6.5.1, such that the MDCCE did not act in accordance with the basic principle of
fundamental fairness and thereby did not conduct an "objective examination" within the
meaning of Article 3.1.62 A close connection thus existed between, on the one hand, the

60 Preliminary determination, (Exhibit TUR-6), para. 86, as confirmed in the Final determination,
(Exhibit TUR-11), paras. 97-100.
61 Morocco's first written submission, paras. 31 and 36; responses to Panel question No. 1.1, para. 6,
and No. 1.2(b), paras. 18-19; and second written submission, paras. 28-37.
62 Turkey's response to Panel question No. 1.2(b), para. 16.

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claims under Articles 6.5 and 6.5.1 and, on the other hand, the claim under Article 3.1,
and the factual aspect of the injury determination that was subject to consultations.63
b. Unduly redacting critical information on the break-even threshold meant that the MDCCE
did not give a "reasoned and adequate explanation of its injury finding", such that the
claims under Articles 6.5 and 6.5.1 naturally evolved from Turkey 's request for
consultations, at paragraph 5.64
c. In respect of the break-even threshold, Articles 3.1, 6.5, and 6.5.1 relate to the treatment
of the same information, with Articles 6.5 and 6.5.1 being more specific in respect of the
confidential treatment of a sub-set of information.65
d. The request for consultations took issue with the "Injury Determination" , which included
the determination of the break-even threshold.66
e. The claims at issue naturally evolved from Turkey's injury claims "as, during consultations,
the (important) role of the break -even threshold in the MDCCE 's injury determination
became clear".67
7.34. Morocco argues that, because Articles 6.5 and 6.5.1 were not referred to in the requ est for
consultations, the subsequent claims under these provisions in the panel request could not have
evolved from the request for consultations. In our view, however, simply because the provisions at
issue are not expressly mentioned in the request for consultations does not necessarily mean that
claims under those provisions could not have evolved from the request for consultations. T he
provisions in the panel request need not be identical to those set out in the request for consultations.
Claims under additional provisions may be included in the panel request provided that the "legal
basis" in the panel request evolved from the "legal basis" that formed the subject of consultations.68
In order to evaluate such "new" claims under its jurisdiction, a panel must examine whether the
complainant, by adding these claims, expanded the scope or changed the essence of the dispute in
its panel request as compared to its consultations request.69
7.35. In order to resolve Morocco 's jurisdictional objection, we theref ore consider whether the
claims under Articles 6.5 and 6.5.1 in the panel request evolved from the claim under Article 3.1 in
the request for consultations, without expanding the scope of the dispute or changing its essence.
In assessing whether a claim in the panel request has evolved in such a manner , we examine all
elements that form the basis of the complaint. In this regard, we consider that "at the very least,
some connection must exist between the claims set forth in the panel request and those ident ified
in the request for consultations in terms of either the provisions cited, the obligation at issue or [the]
issue in dispute, or the factual circumstances leading to the alleged violation".70
7.36. We first turn to a potential "connection" in terms of the pr ovisions cited. The claims in
Turkey's panel request relate to Article 6. This article, titled "Evidence", sets out rules on evidence
as well as procedural and due process rights of interested parties in anti-dumping investigations. In
contrast, Article 3 is titled and concerned with the "Determination of Injury". The legal bases in the
panel request and in the request for consultations thus concern entirely different provisions
governing different aspects of anti-dumping investigations.
7.37. In respect of a "co nnection" in terms of the obligations at issue, Article 6.5 contains the
requirement that any information which is by nature confidential or which is provided on a

63 Turkey's response to Panel question No. 1.2(b), para. 16.
64 Turkey's opening statement at the second meeting of the Panel, para. 4.5.
65 Turkey's second written submission, paras. 2.23-2.24.
66 Turkey's second written submission, para. 2.21.
67 Turkey's response to Panel question No. 1.2(b), para. 17; see also opening statement at the
first meeting of the Panel, para. 4.29.
68 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 138.
69 Appellate Body Reports, Mexico – Anti-Dumping Measures on Rice, para. 138; Argentina – Import
Measures, para. 5.13.
70 Panel Report, China – Broiler Products, para. 7.224. The panels in EU – Biodiesel (Argentina),
paras. 7.48, 7.54, and 7.62; and China – Publications and Audiovisual Products, para. 7.122, relied on similar
considerations. See also Australia – Tobacco Plain Packaging, Preliminary ruling of the Panel, WT/DS458/18,
para. 3.46 (appeal of panel report pending).

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confidential basis shall be treated as confidential upon good cause shown .71 According to
Article 6.5.1, an investigating authority shall require interested parties providing confidential
information to furnish non -confidential summaries thereof. 72 Articles 6.5 and 6.5.1 thus relate to
procedural obligations concerning the treatment of confident ial information in anti -dumping
investigations. In contrast, Article 3.1 concerns the obligation that a determination of injury shall be
based on positive evidence and shall involve an objective examination of the volume and price effects
of dumped imports and their impact on the domestic industry. This provision establishes a
substantive obligation concerning the determination of injury. It follows that the obligations of the
claims in the panel request and in the request for consultations are of different nature and apply in
respect of different actions of the investigating authority.
7.38. Turkey argues that the alleged violation of Articles 6.5 and 6.5.1 affects the "objective
examination" under Article 3.1, thus resulting in a close connection between the claims. We disagree.
The "objective examination" requirement of Article 3.1 concerns the investigative process. The term
"examination" relates to the gathering and evaluation of evidence. This examination must be
"objective" in that it is unbiased and "must c onform to the dictates of the basic principles of good
faith and fundamental fairness". 73 Treating information or evidence as confidential inconsistently
with the requirements of Article 6.5 and 6.5.1 does not necessarily impinge on the gathering and
evaluation of that information or evidence. Regardless of an improper confidential treatment, an
investigating authority may nevertheless examine that information or evidence in an unbiased
manner. Therefore, an "objective examination" does not, without more, de pend on, nor is affected
by, the treatment – whether proper or not – of information as confidential. We are thus not convinced
that Turkey has established, in this case, a "close connection" between the obligations in Articles 6.5
and 6.5.1 and the "objective examination" obligation under Article 3.1.
7.39. Turkey also contends that the alleged improper treatment of the break-even threshold as
confidential equates to the alleged failure "to provide a reasoned and adequate explanation of [the]
finding of injury", challenged in the request for consultations. It queries: "how could the MDCCE
have provided 'a reasoned and adequate expla nation' for the 'establishment ' analysis if it unduly
redacted critical information on the break-even threshold?"74
7.40. We consider that Turkey's position is in error for several reasons. First, and fundamentally,
the phrase that Turkey relies upon in the request for consultations, referring to a failure to provide
a "reasoned and adequate explanation", is not, in itself, a legal basis from which the claims under
Articles 6.5 and 6.5.1 could have evolved. Second, the full narrative of "adequate and reasoned
explanation of [the] finding of injury"75 makes clear that this phrase relates to an aspect of the
anti-dumping investigation that is removed from the claims under Articles 6.5 and 6.5.1. It refers
to the MDCCE 's explanation of the findings reached in the inju ry determination , be that in the
preliminary or final determination. In contrast, the obligations under Articles 6.5 and 6.5.1 pertain
to the treatment of confidential information by the MDCCE and the provision of a non -confidential
summary of that information by the interested parties in the investigation. They apply throughout
the investigation, including before the investigating authority reaches its findings. Third,
Turkey's argument confuses the requirement for an investigating authority to give a "reasoned and
adequate explanation" of its findings with the distinct issue of (proper) treatment of information as
confidential. The requirement to give a reasoned and adequate explanation pertains to the content
of an explanation , and its adequacy and su fficiency, in respect of an investigating
authority's conclusions and determinations as set out in the written report (and supporting
documents).76 In reasonably and adequately explaining its conclusions and determinations, an
investigating authority may need to rely on information that is confidential and that is therefore
redacted in the public version of its written report. 77 An improper treatment of information as

71 Article 6.5 also has a second sentence which is not relevant for present purposes.
72 Article 6.5.1 also has additional sentences which are not relevant for present purposes.
73 Appellate Body Report, US – Hot-Rolled Steel, para. 193.
74 Turkey's opening statement at the second meeting of the Panel, para. 4.5.
75 Emphasis added.
76 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.255.
77 Concerning the issue whether "the reasoning supporting the determination be 'formally or explicitly
stated' in documents in the record of the investigation to which interested parties (and/or their legal counsel)
have access at least from the time of the final determination", the Appellate Body found that the requirements
of Article 3.1 do "not imply that the determination must be based only on reasoning or facts that were
disclosed to, or discernible by, the parties to an anti-dumping investigation". (Appellate Body Report,
Thailand – H-Beams, paras. 107 and 111 (emphasis original)). This situation differs from the issue whether

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confidential, and thus the redaction of this information in the explanations set out in the public
version of the written report, does not in itself render the content of the explanations unreasoned
or inadequate.
7.41. In any case, the failure to provide a "reasoned and adequate explanation" of the injury
findings may be a basis to conclude that an in vestigating authority failed to comply with its
substantive obligations under Article 3. It does not, however, necessarily entail, or connect with, a
violation of its procedural obligation to accord proper confidential treatment under Articles 6.5
and 6.5.1.
7.42. Turkey further argues that, in this instance, Articles 3.1, 6.5, and 6.5.1 relate to the treatment
of the same information, the break-even threshold, such that the claims under Articles 6.5 and 6.5.1
evolved from the Article 3.1 claim. Turkey seems to suggest that the factual basis for the claims,
the information at issue, is the same and that there is therefore a sufficient "connection" in terms of
the underlying factual circumstances. Moreover, t he request for consultations took issue with the
"injury determination" which , as Turkey correctly points out, included findings in respect of the
break-even threshold. In our view, however, the factual basis of the Article 3.1 claim concerns the
MDCCE's analysis, including but not limited to the break-even threshold, undertaken in the
substantive injury determination. In contrast, the factual basis of the claims under Articles 6.5
and 6.5.1 relates to the MDCCE's confidential treatment of the break-even threshold as a procedural
step in the investigation ; it do es not concern the determination of injury on the basis of the
break-even threshold. The same evidence, here information in respect of the break-even threshold,
may be relevant to the analyses of issues arising under distinct provisions. However, identical
evidence does not in and of itself signify a sufficient connection between the factual circumstances
that give rise to the alleged violations. We thus consider that the factual bases of the claims at issue
are in fact different.
7.43. Turkey asserts that the claims at issue naturally evolved from Turkey 's injury claims "as,
during consultations, the (important) role of the break -even threshold in the MDCCE 's injury
determination became clear". 78 A complaining party may indeed come to know of additional
information during consultations – for example, it may develop a better understanding of the
operation of a challenged measure – that could warrant revising the list of treaty provisions with
which the measure is alleged ly inconsistent.79 We limit our examination t o the text of the request
for consultations without inquiring into the actual consultations that took place .80 Nevertheless, we
observe that, in the facts of this case , Turkey would likely have been aware of the break-even
threshold's significance and its c onfidential treatment by the MDCCE since the issuance of the
preliminary determination on 30 October 2013, in which the break-even threshold was redacted.
This was long before consultations took place on 18 and 28 November 2016. Turkey had no apparent
reason not to include claims under Articles 6.5 and 6.5.1 in the request for consultations, if it took
issue with the MDCCE's confidential treatment of the break-even threshold.
7.44. In light of the above, the claims under Articles 6.5 and 6.5.1 in the panel request are not
sufficiently closely and clearly connected with the claim under Article 3.1 in the request for
consultations. Rather, these claims are distinct and unrelated in terms of the provisions, obligations,
and factual circumstances at issue. Moreover, the additional claims under Articles 6.5 and 6.5.1 in
fact modified the nature and substance of the dispute from one concerning the MDCCE's compliance
with the substantive disciplines on injury determination to one that also encompasses a challenge
to the MDCCE's procedural conduct.
7.45. As a consequence, Turkey in its panel request introduced new claims under Articles 6.5
and 6.5.1 that expanded the scope of the dispute and changed its essence. Accordingly, these claims
did not evolve from the claim under Article 3.1 subject to consultations. The claims under Articles 6.5
and 6.5.1 thus fall outside our terms of reference.

reasoning or facts, not disclosed in the public report, even formed part of the contemporaneous investigation
record. (Appellate Body Report, Russia – Commercial Vehicles, paras. 5.120-5.145).
78 Turkey's response to Panel question No. 1.2(b), para. 17; see also opening statement at the
first meeting of the Panel, para. 4.29.
79 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 138.
80 Appellate Body Report, US – Upland Cotton, para. 287.

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7.2.1.3.3 Claim under Article 6.9 of the Anti -Dumping Agreement concerning the
break-even threshold
7.46. At paragraph 4(c) of its panel request, Turkey advanced a claim under Article 6.9 in respect
of the alleged failure by the MDCCE to inform the Turkish interested parties of the essential facts
concerning the break-even threshold used in finding that the domestic industry was not
"established". Paragraph 4(c) of the panel request reads:
The Investigating Authority also acted inconsistently with Article 6.9 of the
Anti-Dumping Agreement by failing properly to provide the "profitability threshold" used
for its finding of material retardation of the establishment of the domestic industry, or
alternatively a non-confidential summary of that information.
7.47. In the request for consultations, Tur key had not made this specific claim in relation to the
break-even threshold. Paragraph 3 of the request for consultations provides:
Disclosure of Essential Facts : The Moroccan authorities acted inconsistently with
Article 6.9 of the Anti -Dumping Agreement by failing to disclose essential facts with
respect to the decision to use facts available.81
7.48. Morocco argues that Turkey 's Article 6.9 claim concerning the break-even threshold in
paragraph 4(c) of the panel request is outside the Panel's terms of reference. It did not evolve from
either the Article 6.9 claim in respect of facts available in paragraph 3, nor from the claims under
Articles 3.1 and 3.4 in paragraph 4(a) of the request for consultations.82 According to Morocco, the
request for consultations con tains a claim under Article 6.9 that is limited to the disclosure of the
essential facts pertaining to facts available. Also, the reference to Articles 3.1 and 3.4, or the failure
to provide a "reasoned and adequate explanation" in the request for consultations is overly generic
and concerns obligations that are different from Article 6.9.83
7.49. Turkey argues that its Article 6.9 claim concerning the break-even threshold evolved from the
claim in the request for consultations " that Morocco failed to provide a reasoned and adequate
explanation of the injury determination".84
7.50. The issue before us is whether Turkey 's Article 6.9 claim in respect of the break-even
threshold evolved from a legal basis in the request for consultations, without expanding the scope
of the dispute or changing its essence.
7.51. Turkey argues that "the claim under Article 6.9 is a natural evolution of … the claim [at
paragraph 4(a)] in the consultations request that Morocco failed to provide a reasoned and adequate
explanation of the injury deter mination".85 Turkey's argument is problematic for the following
reasons, which are in part similar to those already set out above at paragraph 7.40.
7.52. First, the phrase referring to a failure to provide a "reasoned and adequate explanation" is
not, in itself, a legal basis from which the Article 6.9 claim could have evolved. Second, the obligation
to inform all interested parties of the essential facts pursuant to Article 6.9 does not connect with
the requirement to provide a "reasoned and adequate explanation " of the investigating
authority's findings in its determinations . Article 6.9 concerns the MDCCE 's obligation to make
available the essential facts, not any e xplanations of the findings, through a disclosure during the
investigation "before a final determination is made".86 In this context, Turkey also relies on the
reports of the Appellate Body in China – HP-SSST (Japan) / China – HP-SSST (EU) to argue that
investigating authorities have an "overarching obligation" to provide a reasoned and adequate

81 Emphasis original.
82 See paragraph 7.5. above.
83 Morocco's first written submission, paras. 31 and 35; responses to Panel question No. 1.1, para. 5,
and No. 1.2(c), paras. 21-23; and second written submission, paras. 28-37.
84 Turkey's response to Panel question No. 1.2(c), para. 23; second written submission, para. 2.26; see
also opening statements at the first meeting of the Panel, para. 4.29, and at the second meeting of the Panel,
para. 4.6.
85 Turkey's response to Panel question No. 1.2(c), para. 23.
86 Emphasis added.

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explanation of their findings.87 Irrespective of whether such an "overarching obligation" exists, the
Appellate Body in China – HP-SSST (Japan) / China – HP-SSST (EU) referred to "the requirement
that the investigating authority provide a 'reasoned and adequate' explanation for its conclusions …
in its report on the determination" .88 Therefore, in any event, the Appellate Body was concerned
with findings or conclusions as set out in the "report on the determination" , not the disclosure of
essential facts that are at issue here.89 Third, paragraph 4(a) of the request for consultations refers
to the phrase of "reasoned and adequate explanation" in the context of Turkey's claims under
Articles 3.1, 3.2, 3.4, and 3.5. None of these provisions, however, are related to the Article 6.9
claim; and Turkey neither asserted, nor demonstrated that they are. They concern substantive
obligations on the MDCCE in its injury and causatio n determination, not a procedural requirement
that the MDCCE must observe in the investigative process, such as that under Article 6.9.
7.53. We therefore find that Turkey 's Article 6.9 claim concerning the break-even threshold could
not, and did not evolve from the reference in the request for consultation to the alleged failure to
provide a "reasoned and adequate explanation" of the injury determination.
7.54. Further, although not elaborated by Turkey, we consider whether an "evolution" took place
from the Article 6.9 claim that Turkey set forth at paragraph 3 of its request for consultations. 90 At
paragraph 3, Turkey claimed that the MDCCE violated Article 6.9 "by failing to disclose essential
facts with respect to the decision to use facts available". Here, Turkey linked its Article 6.9 claim
specifically to essential facts in respect of facts available. Paragraph 3, including its reference to
facts available, must also be read in the context of paragraph 2 of the request for consultations that
concerns the use of f acts available in the determination of dumping margins. In the request for
consultations, Turkey thus narrowed the scope of its Article 6.9 claim to specific essential facts
(concerning facts available) in respect of a specific aspect of the determination (the determination
of the dumping margin). It did not frame this claim more generally as relating to a wider set of
essential facts, for example by tracking more closely the language of Article 6.9 ("essential facts
under consideration which form the basis for the decision whether to apply definitive measures").
7.55. Although concerning the same provision and obligation, the additional Article 6.9 claim in the
panel request relates to different essential facts (concerning the break-even threshold) in respect of
a different aspect of the determination (the injury determination) . The Article 6.9 claims therefore
concerned different factual bases. Nothing in the Article 6.9 claim in the request for consultations
pointed to the factual basis of the subsequently added Article 6.9 claim. If anything, the very specific
formulation of the Article 6.9 claim in the request for consultations may have led Morocco to assume
in good faith that the essential facts concerning other aspects of the determination were not at issue.
In contrast, Turkey formulated other claims in its request for consultations very broadly. For
instance, the claims under Articles 3.1, 3.2, 3.4, and 3.5 only referred to the alleged failure to
provide a "reasoned and adequate explanation" of the injury and causation findings.
7.56. That said, we also consider that the "new" Article 6.9 claim modified the nature of the dispute.
It went beyond the matter circumscribed in the request for consultations (essential facts in respect
of facts available in the context of the determination of the margin of dumping) and added the
distinct issue of the essential facts concerning the break-even threshold in the context of the injury
determination.
7.57. In light of the express limitation of Turkey's Article 6.9 claim in the request for consultations
to facts available in respect of the dumping margin determination , and absent a ny arguments
advanced by Turkey , we therefore find that the Article 6.9 claim in respect of the break-even
threshold cannot be based on paragraph 3 of the req uest for consultations, nor has evolved from
the legal basis in that paragraph, without expanding the scope of the dispute or changing its essence.

87 Turkey's second written submission, paras. 2.27-2.28 (referring to Appellate Body Reports, China –
HP-SSST (Japan) / China – HP-SSST (EU), para. 5.255).
88 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.255.
89 Article 6.9 concerns the disclosure, before a final determination is made, of the essential facts under
consideration which form the basis for the decision whether to apply definitive measures. It is not concerned
with informing interested parties of the ultimate findings or conclusions.
90 It is well established that panels are authorized, and even required, to address and resolve
jurisdictional issues, if necessary on their own motion (see, e.g. Appellate Body Report, Mexico – Corn Syrup
(Article 21.5 – US), para. 36).

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7.58. In addition to the above, Turkey repeats the argument that it became aware of the
circumstances underlying the Article 6.9 claim during consultations.91 For the same reason set out
above92, we do not find Turkey's assertion credible. Moreover, Turkey must have been aware of the
alleged failure to disclose the break-even threshold in the disclosure since the disclosure was made
on 20 June 2014.
7.59. In light of the foregoing, Turkey's Article 6.9 claim concerning the alleged failure to inform all
interested parties of the break-even threshold falls outside our terms of reference.
7.2.1.4 Claim under Article VI:6(a) of the GATT 1994
7.60. Morocco asserts that Turkey 's claim of inconsistency with Article VI:6(a) of the GATT 1994
concerning the MDCCE 's finding of "establishment" of the domestic industry falls outside the
Panel's terms of reference because the request for consultations did not give an "indication of the
legal basis" in respect of this claim. It also contends that therefore this claim could not have evolved
from the request for consultations.93
7.61. Turkey argues that its claim under Article VI:6(a) is within the Panel's terms of reference. The
references to Articles 3.1 and 3.4 in the request for consultations entail a reference to Article VI:6(a)
of the GATT 1994. The Article VI:6(a) claim also did not expand the scope, or change the es sence,
of Turkey's injury claims.94
7.62. We do not, however, consider it necessary to resolve Morocco 's jurisdictional objection. We
decline to make findings regarding Turkey 's Article VI:6(a) claim for procedural reaso ns.
Paragraph 6 of the Panel's Working Procedures requires that:
Before the first substantive meeting of the Panel with the parties, each party shall
submit a written submission in which it presents the facts of the case and its arguments,
in accordance with the timetable adopted by the Panel.95
7.63. It is pertinent to recall the procedural history in respect of Turkey 's claim under
Article VI:6(a):
a. At paragraph 4(a), the panel request set out a claim under Article VI:6(a) in respect of
the MDCCE's findings of "establishment" and "material retardation".
b. In its first written submission, Turkey did not mention any claim of inconsistency under
Article VI:6(a).
c. Likewise, Turkey did not advance any claim under Article VI:6(a) in its opening or closing
statements of the first substantive meeting, or in i ts oral responses to the Panel during
this meeting.
d. Following the first substantive meeting, the Panel issued written questions to the parties.
In response, Turkey for the first time alleged a violation of Article VI:6(a) in addition to its
claims under footnote 9 and Article 3.1.96
7.64. In this instance, Turkey asserted its claim under Article VI:6(a) only in response to our written
questions. It articulated this claim only after the parties had provided us with written submissions,
had attended a substantive meetin g and orally responded to the same questions which later
prompted Turkey in its written reply to advance an Article VI:6(a) claim. A statement of claim made
so late in the proceedings does not comply with the due process requirement of paragraph 6 of our
Working Procedures. Similarly, the Appellate Body in EC – Fasteners (China) found that "[w]e do
not find that assertions made so late in the proceedings, and only in response to questioning by the

91 Turkey's response to Panel question No. 1.2(c), para. 23.
92 See above para. 7.43.
93 Morocco's second written submission, paras. 24-27.
94 Turkey's opening statement at the second meeting of the Panel, para. 4.4.
95 Working Procedures of the Panel, adopted on 22 August 2017, Annex A-1.
96 Turkey's responses to Panel question No. 4.3(a), para. 92, and No. 4.3(b), para. 93.

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Panel, can comply with either Rule 4 of the Panel's Working Procedures, or the requirements of due
process of law".97
7.65. For procedural grounds, we therefore decline to rule on Turkey's Article VI:6(a) claim, and we
will neither consider it further nor resolve it.
7.2.2 Conclusion
7.66. For the reasons stated above, we conclude t hat the claims under Articles 3.1 and 3.4 in
respect of the MDCCE 's findings of "establishment", "material retardation" , and the injury factors
are within our terms of reference. The following claims fall outside our terms of reference:
a. the claim under foo tnote 9 to Article 3 in respect of the MDCCE 's finding of
"establishment";
b. the claims under Articles 6.5 and 6.5.1 in respect of the confidential treatment of the
domestic industry's (Maghreb Steel) break-even threshold; and
c. the claim under Article 6.9 in respect of the alleged failure to disclose the domestic
industry's (Maghreb Steel) break-even threshold.
7.67. For procedural reasons, we decline to rule on the claim under Article VI:6(a) of the GATT 1994
in respect of the MDCCE's finding of "establishment".
7.3 Article 5.10 of the Anti -Dumping Agreement: The MDCCE's conclusion of the
investigation beyond 18 months after initiation
7.68. The MDCCE concluded the underlying investigation in 18 months and 22 days after its
initiation. Turkey claims that, in concluding the investigation in more than 18 months, the MDCCE
exceeded the maximum time limit permissible for conclusion of investigations under Article 5.10 of
the Anti-Dumping Agreement, and therefore acted inconsistently with that provision.98
7.3.1 Provision at issue
7.69. Article 5.10 provides:
Investigations shall, except in special circumstances, be concluded within one year, and
in no case more than 18 months, after their initiation.
7.3.2 Evaluation
7.70. The MDCCE initiated the underlying investigation on 21 Janua ry 2013, and concluded it on
12 August 2014, that is, 18 months and 22 days after initiation. 99 Turkey claims that the MDCCE
acted inconsistently with Article 5.10 of the Anti-Dumping Agreement because the MDCCE failed to
conclude the underlying investigation within the 18-month maximum time limit permissible under
that provision, having exceeded that time limit by 22 days. 100 Morocco does not dispute that the

97 Appellate Body Report, EC – Fasteners (China), para. 574 (Rule 4 of the panel's Working Procedures
in that case is essentially equivalent to paragraph 6 of our Working Procedures). Panels have also declined to
rule on claims that were not advanced in accordance with the equivalent to paragraph 6 of the Panel's Working
Procedures. (Panel Reports, EU – Biodiesel (Indonesia), para. 7.141; US – Washing Machines,
paras. 7.82-7.84).
98 Turkey also claims that the MDCCE acted inconsistently with Article 5.10 of the
Anti-Dumping Agreement because it exceeded by 6 months and 22 days the 12-month deadline set out under
that provision for concluding the underlying investigation, without identifying any special circumstances that
justified that extension. (Turkey's first written submission, paras. 5.19-5.20). We note, however, that
Turkey's panel request does not include that claim. Further, Turkey does not request us to make a finding in
regard to that claim. We will therefore not address that claim in these proceedings.
99 Notice of initiation, (Exhibit TUR-1); Public notice of the final determination, (Exhibit TUR-12); and
Letter dated 18 August 2014 from the MDCCE to the Government of Turkey, (Exhibit TUR-18).
100 Turkey's first written submission, paras. 5.10 and 5.19-5.20; opening statement at the first meeting

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MDCCE exceeded the 18-month deadline for the conclusion of an anti-dumping investigation set out
in Article 5.10, but contends that Article 5.10 should be interpreted flexibly and should not be
understood as establishing a rigid 18-month deadline.101
7.71. We must therefore evaluate whether, in concluding the underlying investigation 22 days after
the maximum permissible time limit of 18 months under Article 5.10, the MDCCE acted inconsistently
with that provision.
7.72. We note that Article 5.10 states that investigations shall "in no case" be concluded in more
than 18 months. The words "in no case" make it clear that an investig ating authority may not, in
any case, conclude its investigation in more than 18 months, and therefore, allow for no exceptions
in adherence to this time limit. Further, we note that our reading of Article 5.10 is consistent with
that of the Appellate Body and past panels. The Appellate Body has indicated that the time limits for
concluding investigations set out in Article 5.10 are "mandated" under the Anti-Dumping Agreement,
while a previous panel has found that these time limits are "strict".102 In particular, one past panel
considered that Article 11.11 of the Agreement on Subsidies and Countervailing Measures
(SCM Agreement), which carries an obligation regarding conclusion of subsidies investigations that
is identical to the one pertaining to anti -dumping investigations in Article 5.10 of the
Anti-Dumping Agreement, does not permit prolonging the 18-month time limit under any
circumstances.103
7.73. Morocco however, draws our attention to language used in certain "other contexts" of the
WTO Agreements which is similar to that in Article 5.10 of the Anti-Dumping Agreement.104 Morocco
contends, in particular, that the language on deadlines for concluding appellate proceedings in
Articles 17.5 of the DSU, and panel proceedings in Articles 12.8 and 12.9 of the DS U, is similar to
that in Article 5.10, and yet the Appellate Body and panels have "interpreted" those DSU provisions
so as to allow them to exceed those deadlines.105 Morocco argues that the same flexibility with which
the time frames for concluding Appellate Body and panel proceedings have been interpreted, must
apply to interpreting the time frame under Article 5.10. Turkey contends, in response, that
Articles 17.5, 12.8 , and 12.9 of the DSU carry obligations which are different from those in
Article 5.10, and are therefore irrelevant for interpreting Article 5.10. Turkey, agreeing with the
European Union 's views, argues that the DSU provisions in quest ion impose deadlines on the
WTO bodies, rather than on individual WTO Members, with a view to contributing to the prompt
resolution of disputes. Article 5.10, in contrast, imposes obligations on investigating authorities to
protect the rights of other Members ' exporters.106 Morocco dismisses these differences as being
"artificial", contending that WTO disputes too are initiated to secure the rights of exporters, and like
anti-dumping investigations, involve competing interests and are subject to similar due process
considerations.107
7.74. We consider that the DSU provisions that Morocco cites cannot serve as context for
interpreting Article 5.10 of the Anti -Dumping Agreement. Morocco, notably, itself refers to these
DSU provisions as appearing in "other contexts" of the WTO Agreements.108 In particular, we agree
with Turkey and the European Union that the DSU provisions in question impose deadlines on the
WTO bodies, rather than on individual WTO Members, with a view to contributing to the prompt
resolution of disputes, whereas Article 5.10 imposes obligations on investigating authorities to
protect the rights of other Members ' exporters. As Turkey argues, the conduct of the WTO dispute
settlement proceedings, including the time frame for concluding them, is subject to the supervision
of the DSB.109 The conduct of national anti -dumping investigations, in contrast, is not. We agree
with Turkey that, in such a situation, it cannot be envisaged that investigating authorities conducting
anti-dumping investigations would be permitted to "unilaterally deprive exporters of their rights".110

101 Morocco's first written submission, para. 48.
102 Appellate Body Report, US – Hot-Rolled Steel, para. 73; Panel Report, US – Softwood Lumber V,
para. 7.333.
103 Panel Report, Mexico – Olive Oil, paras. 7.121 and 7.123.
104 Morocco's first written submission, paras. 44-45.
105 Morocco's first written submission, paras. 44-46.
106 Turkey's second written submission, para. 3.4 (referring to European Union's third-party submission,
para. 10).
107 Morocco's second written submission, para. 210.
108 Morocco's first written submission, paras. 44-45.
109 Turkey's second written submission, para. 3.4.
110 Turkey's second written submission, para. 3.4.

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Interpreting the 18-month time limit in Article 5.10 as a flexible time limit, as Morocco considers the
Panel should do, would mean that an investigating authority could, in principle, indefinitely delay an
investigation, leaving exporters, whose commercial decisions depend on the outcome of the
investigation, without any recourse in WTO law. We consider that such an interpretation is
inconceivable under Article 5.10. The text of that provision leaves no room for flexibility in the strict
obligation to adhere to the 18 -month time limit and, in so doing, preserves predictability for the
interested parties in an investigation . We therefore reject Morocco 's argument for interpreting the
time limit under Article 5.10, in light of the DSU provisions, which operate in an altogether different
context.
7.75. Moreover, although Morocco asks us to interpret Article 5.10 in light of the DSU provisions, it
is, effectively, asking us to do so in view of WTO dispute settlement practice. Morocco refers not to
any formal interpretation of these provisions by the Appellate Body or panels, but to cases where
the Appellate Body and the panels have exceeded the time limit s set out in the relevant DSU
provisions.111 In our view, there is no case for importing into the adherence of the time limit under
Article 5.10 flexibility from WTO dispute settlement practice, which as stated above , is subject to
DSB supervision.
7.76. Morocco further argues that the delay in concluding the investigation beyond 18 months from
its initiation resulted from the MDCCE 's decision to grant interested parties ' requests for additional
time for their submissions or additional meetings as well as the MDCCE 's need to review additional
information that t he respondents allegedly submitted "very late" in the investigation. 112 Turkey
rejects this argument, contending that the strict time limit s in Article 5.10 circumscribe any
extension that the investigating authority may accord to interested parties. In this regard, it cites
the panel's finding in Mexico – Olive Oil that there is "no basis … to prolong an investigation beyond
18 months for any reason, including requests from interested parties".113 Turkey further argues that
the MDCCE's alleged need for additional time to analyse information that the interested parties
submitted in their comments to the draft final determination does not justify the delay in concluding
the investigation, as the MDCCE itself allowed only a month before the end of the 18-month deadline
for its own review of those comments.114
7.77. We note that the panel in Mexico – Olive Oil clearly found that requests from interested parties
during the investigation proceedings did not justify a delay beyond 18 months in concluding the
investigation.115 We agree. In Mexico – Olive Oil, similar to the case at hand, the respondent had
argued before the panel that the delay in concluding the investigation was justified by requests for
extension from interested parties , and additional information that the investigating authority
considered interested parties had submitted at allegedly "late" stages in the investigation.116 In our
view, an investigating authority may consider such requests from interested parties as part of its
due process obligations under Article 6 of the Anti-Dumping Agreement; however, as the Appellate
Body has recognized, the investigating authority 's need to "'control the conduct' of its inquiry and
to 'carry out the multiple steps' required to reach a timely completion " of the proceeding
circumscribes its due process obligations.117 The Appellate Body noted, in particular, that Article 5.10
"requires" that investigations be completed in no more than 18 months, and that consonant with
that requirement, Article 6.14 of the Anti -Dumping Agreement states that none of the procedures
set out under Article 6 is intended "to prevent the authorities of a Member from proceeding
expeditiously" in reaching their determinations. 118 Therefore, we consider that an investigating
authority must plan and conduct its investigation in such a way that it will conclude the investigation
within the time limits set out in Article 5.10. In doing so, the investigating authority must, throughout
the investigation, balance the interested parties' due process interests with the need to control and
expedite the investigating process.119 More specifically, an investigating authority has the obligation,

111 Morocco's first written submission, fns 34-35.
112 Morocco's opening statement at the first meeting of the Panel, para. 13.
113 Turkey's opening statement at the first meeting of the Panel, para. 2.4 (quoting Panel Report,
Mexico – Olive Oil, para. 7.121).
114 Turkey's opening statement at the first meeting of the Panel, para. 2.5.
115 Panel Report, Mexico – Olive Oil, para. 7.121.
116 Panel Report, Mexico – Olive Oil, para. 7.119.
117 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 282 (quoting Appellate Body
Report, US – Oil Country Tubular Goods Sunset Reviews, para. 242, quoting in turn Appellate Body Report,
US – Hot-Rolled Steel, para. 73, quoting in turn Panel Report, US – Hot-Rolled Steel, para. 7.54).
118 Appellate Body Report, EC – Fasteners (China), para. 611.
119 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.74.

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as Turkey argues, to balance the granting of requests for additional time with the strict obligation
to conclude the investigation within the maximum time limit.120 Similarly, an investigating authority
must plan the receipt of submissions from interested parties in such a way that while it has sufficient
time to review the information submitted by the respondents, that period for review does not cause
it to exceed the 18-month maximum time limit for concluding the investigation.
7.78. Considering the text of Article 5.10, which, as past panels have confirmed, clearly allows for
no exceptions in adherence to the 18-month time limit, as well as the Appellate Body's recognition
of the mandatory nature of obligations in that provision, we take the view that requests from
interested parties in the underlying investigation did not justify a delay in concluding the
investigation beyond 18 months after initiation. We therefore find that the MDCCE acted
inconsistently with Article 5.10 in exceeding that time limit.
7.4 Article 6.8 of the Anti -Dumping Agreement and paragr aphs 1, 3, 5, 6, and 7 of
Annex II: Facts available in respect of the investigated Turkish producers
7.79. Turkey's claims under Article 6.8 of the Anti-Dumping Agreement and paragraphs 1, 3, 5, 6,
and 7 of Annex II concern the MDCCE's use of facts available in establishing the margins of dumping
for the two investigated Turkish producers, Erdemir Group and Colakoglu (the producers).
7.4.1 Factual background
7.80. On 29 October 2013, the MDCCE imposed provisional anti -dumping duties on imports of
hot-rolled steel from Turkey. It assigned a 0% provisional duty rate to subject imports from the
two producers. In the preliminary determination, the MDCCE calculated their margins of dumping
using their reported information, without resort to facts available.
7.81. In an email of 31 December 2013 sent to Erdemir Group, but not to Colakoglu , the MDCCE
indicated that the producers had reported 18,800 ton nes of export sales to Morocco for the period
of investigation, while Moroccan import statistics registered 29,000 ton nes of imports from Turkey
for that period.121 In that email, the MDCCE identified five traders not reported by the producers and
asked Erdemir Group to provide clarification in respect of them and the origin of their exports. In
response, Erdemir Group explained that it did not have any information in respect of these traders
as they were not customers of Erdemir Group for the subject product.122
7.82. At a public hearing on 4 February 2014, the Turkish Steel Exporters ' Association (CIB)
addressed the issue of the discrepancy in export sales of approximately 10,000 tonnes. As reiterated
in its letter of 6 March 2014 to the MDCCE, the CIB confirmed that the two producers were the sole
exporters to Morocco during the period of investigation and that Turkish exports to Morocco did not
exceed 19,000 tonnes as reported by the producers.
7.83. The MDCCE did not p ursue the matter of the disc repancy of approximately 10,000 tonnes
further with either of the producers.123 In particular, it did not investigate the alleged discrepancy
during its verification visits at the producers in March and April 2014.
7.84. In the draft final determination124 issued on 20 June 2014, the MDCCE, however, referred to
the discrepancy of "approximately 10,000 tonnes".125 It explained that a review of detailed evidence
indicated that unreported export sales from Turkey had been made through third-party traders and
that movement certificates (certificates of origin) established that these sales originated from the
two producers. The producers had therefore failed to report the entirety of their export sales to

120 Turkey's second written submission, para. 3.6.
121 Correspondence December 2013-January 2014, (Exhibit TUR-25).
122 Addendum to questionnaire response, (Exhibit TUR-26 (BCI)), p. 5.
123 In its final determination, the MDCCE refers to a visit to a "public institution", which Morocco
identified as the Moroccan Customs, following the issuance of the preliminary determination. During this visit,
the MDCCE obtained sales information concerning the allegedly missing 10,000 tonnes. (Final determination,
(Exhibit TUR-11), paras. 21 and 56). The MDCCE indicated that it relied on this sales information, comprising
customs and commercial documents, to consider that the allegedly missing export sales originated from the
Turkish producers. (Final determination, (Exhibit TUR-11), para. 57).
124 Through the draft final determination, the MDCCE purported to disclose the essential facts to the
producers.
125 Draft final determination, (Exhibit TUR-10), para. 51.

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Morocco. For this reason, the MDCCE rej ected all of the producers ' reported information and
established their margins of dumping using the petition rate of 11% as facts available.126
7.85. On 24 June 2014, the two producers asked the MDCCE to provide the underlying documents
on which the MDCCE based its finding that the producers had failed to report the entirety of their
export sales. On 7 July 2014, the MDCCE provided them with redacted co pies of movement
certificates and commercial invoices.127 In the MDCCE's view, these documents established that the
allegedly missing export sales originated from the producers . The volume of the transactions for
which the MDCCE provided these documents amou nted to [[ ***]] ton nes. The MDCCE did not
provide any information in respect of any other allegedly unreported export sales, in particular in
respect of the remainder of the approximately 10,000 tonnes.
7.86. Within the deadline for disclosure comments on 11 Jul y 2014 , the producers submitted
movement certificates, customs invoices and commercial invoices that, in their view, demonstrated
that they had reported the [[***]] tonnes of allegedly unreported export sales in their original
questionnaire responses.128
7.87. In the final determination, the MDCCE repeated the findings set out in the draft final
determination. It also found that the information provided by the producers as part of their disclosure
comments did not allow it to clearly establish whether or not the re levant export sales had been
reported by the producers. Faced with "doubt and uncertainty" on this issue, the MDCCE maintained
its decision to use facts available.129
7.4.2 Provision at issue
7.88. Article 6.8 of the Anti-Dumping Agreement provides:
In cases in which any interested party refuses access to, or otherwise does not provide,
necessary information within a reasonable period or significantly impedes the
investigation, preliminary and final determinations, affirmative or negative, may be
made on the basis of the facts available. The provisions of Annex II shall be observed
in the application of this paragraph.
7.4.3 Evaluation
7.89. Turkey advances claims of inconsistency under Article 6.8 and paragraphs 1, 3, 5, 6, and 7
of Annex II. We first address Turkey's claim under Article 6.8, and then turn to Turkey's remaining
Annex II claims.
7.4.3.1 Claim under Article 6.8 of the Anti-Dumping Agreement
7.90. Article 6.8 allows for the use of facts available when an interested party refuses access to, or
otherwise does not provide, necessary i nformation within a reasonable period , or significantly
impedes the investigation . The present claim concerns an alleged failure by the two producers to
provide certain necessary information in the form of export sales. The main issue in dispute is
whether or not the MDCCE properly established that the two producers had failed to provide any
such information.
7.91. In order to resort to facts available as a result of a failure by the producers to report certain
export sales, the MDCCE was required to determine af firmatively that these producers had in fact
failed to report the relevant export sales. In the draft final determination, the MDCCE made such a
determination.130 However, in light of the additional evidence provided by the producers, it did not
maintain that determination in the final determination. Rather, in the final determination, the MDCCE
stated that the explanations and evidence provided by the producers did "not allow [the MDCCE] to

126 Draft final determination, (Exhibit TUR-10), paras. 51-58.
127 Correspondence with customs and commercial documents from Erdemir Group, (Exhibit TUR-29
(BCI)); Correspondence with customs and commercial documents from Colakoglu, (Exhibit TUR-30 (BCI)).
128 Erdemir Group's comments on the draft final determination, (Exhibit TUR-19 (BCI));
Colakoglu's comments on the draft final determination, (Exhibit TUR-20 (BCI)).
129 Final determination, (Exhibit TUR-11), paras. 59-61.
130 Draft final determination, (Exhibit TUR-10), para. 56.

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clearly establish" whether or not the producers had reported the exp ort sales at issue. The MDCCE
referred to "doubt and uncertainty" in this regard.131 The MDCCE thus did not affirmatively determine
that the producers had in fact failed to report particular export sales. As Morocco stated, "[t]he
[MDCCE] could not rule out that the respondent companies had underreported their sales" and
"therefore decided to maintain its conclusion to resort to facts available".132 Without any affirmative
determination that the producers had in fact failed to report the necessary information, the MDCCE
lacked a proper basis for recourse to facts available.
7.92. In our view, the MDCCE 's inability to make an affirmative determination of under -reporting
by the producers results from the MDCCE 's failure to engage meaningfully with the producers on
this issue. In this regard, w e recall that the investigating authority and the interested party from
whom information is requested must cooperate; such cooperation is a "two -way process involving
joint effort". 133 Failure by an interested party to cooperate only gives rise to the consequences
envisaged by Article 6.8 if the investigating authority itself acted in a reasonable, objective, and
impartial manner.134 Thus, where an investigating authority has legitimate concerns regarding the
information provided, it must take reasonable steps to investigate and clarify.135 This is reflected in
the Anti-Dumping Agreement itself. For example, under paragraph 3 of Annex II, an investigating
authority must seek to determine whether this information is verifiable before rejecting submitted
information, be that through on -the-spot verification s, further requests for information or other
means.136 Pursuant to paragraph 6 of Annex II , if the investigating authority rejects evidence or
information, it should inform the supplying interested party forthwith, give an opportunity to provide
further explanations and consider those explanations.
7.93. In this case, "in the preliminary phase of the investigation" 137 the MDCCE identified a
discrepancy of approximately 10,000 tonnes and, in December 2013, sought additional information
in respect of unreported third-party traders from Erdemir Group – but not from Colakoglu. Erdemir
Group stated that it could not provide any additional information as these traders were not its
customers. The MDCCE did not pursue this matter further with Erdemir Group. According to Morocco,
in a public hearing on 4 February 2014, the CIB "clarified that no other Turkish producers had
exported to Morocco during the period of investigation. From this statement, the [MDCCE]
understood that the missing sales could only originate from Erdemir Group and from Colakoglu".138
Thus, since the public hearing on 4 February 2014, and well before verifications at the producers
took place, the MDCCE "understood" that the discrepancy arose from unreported export sales of the
producers. The MDCCE conducted verifications at the producers between 31 March and 4 April 2014.
Nothing in the verification reports indicates, and Morocco does not contend, that the MDCCE pursued
the issue of the discr epancy during those verifications. 139 Nor did the MDCCE engage in any other
way with the producers on this issue. Instead, in its draft final determination of 20 June 2014, the
MDCCE informed the producers that it would apply facts available because they had failed to report
certain export sales . The MDCCE issued its draft final determination without indicating to the
producers which export sales it considered that they had failed to report. It was only after the
producers asked for clarification in this rega rd that the MDCCE provided documentary evidence
identifying [[***]] tonnes of sales that the producers had allegedly failed to report . The producers
responded with documentary evidence of their own to argue that such sales had in fact been
reported.
7.94. Morocco contends that the MDCCE did not need to, and could not, address the issue of the
discrepancy during verification at the producers. It suggests that verifications are limited to verifying

131 Final determination, (Exhibit TUR-11), paras. 60-61.
132 Morocco's opening statement at the first meeting of the Panel, para. 25. (emphasis added)
133 Appellate Body Report, US – Hot-Rolled Steel, para. 104.
134 Panel Report, Guatemala – Cement II, para. 8.251.
135 We recall that "in conducting its investigation, an investigating authority 'must actively seek out
pertinent information' and may not remain 'passive in the face of possible shortcomings in the evidence
submitted'". (Appellate Body Report, EU – PET (Pakistan), para. 5.130 (referring to Appellate Body Report,
US – Washing Machines, para. 5.268, quoting in turn Appellate Body Report, US – Wheat Gluten, paras. 53
and 55, which refers to Appellate Body Reports, US ‒ Corrosion-Resistant Steel Sunset Review, para. 199;
US – Anti-Dumping and Countervailing Duties (China), para. 344; and Panel Report, China – Broiler Products,
para. 7.261)).
136 Panel Reports, US – Steel Plate, para. 7.71; EC – Salmon (Norway), paras. 7.358-7.360.
137 Morocco's first written submission, paras. 82 and 96.
138 Morocco's opening statement at the first meeting of the Panel, para. 21. (fn omitted)
139 Verification Report for Erdermir Group/Isdemir, (Exhibit TUR-8 (BCI)); Verification Report for
Colakoglu, (Exhibit TUR-9 (BCI)).

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submitted information and do not extend to collect ing new information.140 Moreover, "[t]o require
an investigating authority to examine the omission of information in verification would unreasonably
expand the scope of verification to essentially proving any negative". 141 We disagree. According to
paragraph 7 of Annex I of the Anti-Dumping Agreement, the main purpose of verifications is also
"to obtain further details". This provision also envisages that there may be "further information which
needs to be provided" during verification. Verifications are therefore not limited to verifying
previously reported information. 142 Moreover, the MDCCE itself considered the purpose of its
verifications to encompass verifying the completeness of the reported export sales data
("exhaustivité des données") which belies Morocco's argument.143
7.95. Further, in Morocco's view, in order to clarify the issue of the missing export sales, and to
verify the information or documents submitted by the producers, the MDCCE would have needed to
conduct verifications at the third -party traders through whom these sales were made. On at least
11 occasions in these proceedings , Morocco asserts that the MDCCE could not conduct such
verifications because these third-party traders did not participate in the investigation . In doing so,
Morocco does not even once refer to the record of the investigation where the MDCCE set out this
specific consideration.144 In fact, nowhere in its findings did the MDCCE consider that it could neither
resolve the issue of the discrepancy, nor verify the information from the producers because it could
not conduct verifications at third-party traders. Morocco's argument is thus an impermissible ex post
explanation that we do not accept . Moreover, considering that the allegation concerns additional
unreported sales of the producers, we agree with Turkey that:
Whether some of the sales were indeed unreported could easily have been determined
by checking the reported sales quantities and values against the companies' accounting
documents. This is not an open -ended exercise. Instead, it is the firs t and most basic
step in verifying an exporter's database.145
In any case, without any basis to properly determine that the two producers had themselves failed
to report any export sales, the MDCCE could not have reasonably applied facts available as a result
of the MDCCE's inability to verify export sales information at third-party traders.
7.96. Morocco argues that the movement certificates and commercial invoices provided by the
producers in response to the draft final determination were different from those relied upon by the
MDCCE and thus, in the MDCCE's view, did not sufficiently establish that the allegedly missing export
sales had been reported. 146 In these proceedings, Morocco pointed to a certain number of alleged
differences between the set of documents of the producers, on the one hand, and that of the MDCCE,
on the other hand.147
7.97. We do not exclude that certain differences alluded to by Morocco might have called into
question the explanations and evidence provided by the producers. However, the MDCCE's final
determination does not refer to any such differences .148 Nor is there any indication in the final

140 Morocco's response to Panel question No. 7.5, para. 18.
141 Morocco's response to Panel question No. 7.5, para. 18.
142 Morocco's position implies that at verification an investigating authority could simply seek to confirm
the information that an interested party had previously furnished, even in case when the investigating
authority has a concrete suspicion of under-reporting by that interested party. This, however, would strike us
as incompatible with the fundamental task of an investigating authority to "investigate".
143 According to Morocco, the "exhaustivité des données" referred only to the data set provided by the
producers and did not concern whether the entirety of sales data had been reported. Morocco's argument is
entirely implausible and contradicted by the MDCCE's inquiry in this context, e.g. into stocks and production.
(Verification Report for Erdermir Group/Isdemir, (Exhibit TUR-8 (BCI)), p. 3; Verification Report for Colakoglu,
(Exhibit TUR-9 (BCI)), p. 5).
144 Morocco's first written submission, paras. 70, 85, 108, and 115; responses to Panel question
second written submission, para. 72; and opening statement at the second meeting of the Panel, para. 43.
145 Turkey's comments on Morocco's response to Panel question No. 7.5, p. 9.
146 Morocco's responses to Panel question No. 2.3, paras. 47-48, No. 2.5(a), para. 59, No. 2.5(d),
147 Morocco's responses to Panel question No. 2.3, paras. 47-48, No. 2.5(a), paras. 59-60, No. 2.5(c),
statement at the second meeting of the Panel, para. 32.
148 Absent any reasons given by the MDCCE in its determination of why the producers' explanations and
evidence were insufficient, we may not, on our own, assess these explanations and evidence. Nor may we

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determination that these differences were in fact the reason that led the MDCCE to reject the
producers' explanations and evidence. Furthermore, Turkey has explained that at least some of the
differences alluded to by Morocco had already been identified and explained by one of the producers,
Colakoglu, in its disclosure comments. 149 In these circumstances, we do not accept
Morocco's argument that the relevant differences justified the MDCCE's recourse to facts available.
7.98. The facts set out above demonstrate that the MDCCE had ample time to explore the issue of
alleged under -reporting by the producers. Instead of doing so, the MDCCE issued a draft final
determination applying facts available, and only began to engage meaningf ully with the producers
as a result of their reaction to that draft final determination. The comments and documentary
evidence submitted by the producers resulted in "doubt and uncertainty" on the part of the MDCCE.
Whatever differences, as explained above , the MDCCE may have identified in respect of that
documentary evidence, those differences were not such as to remove that "doubt and uncertainty".
7.99. In our view, there is even greater "doubt and uncertainty" regarding the producers ' alleged
failure to report any additional, unidentified export sales that made up the remainder of the
approximately 10,000 tonnes mentioned in the final determination. The final determination does not
contain any reasoning or evaluation in respect of such additional, unidentified export sales. Nor did
the MDCCE engage with the producers in respect of these sales after issuance of the draft final
determination, despite the producers ' request to see the underlying documents for all allegedly
unreported export sales identified by the MDCCE. There was no engagement by the MDCCE with the
parties in respect of such sales at all.
7.100. Morocco does not deny that the MDCCE did not provide any detailed information in respect
of export sales other than the [[***]] tonnes. Morocco contends that the MDCCE could not disclose
information in respect of the remainder of the allegedly unreported export sales, in particular the
underlying customs and commercial documents on which the MDCCE relied. According to Morocco,
these documents were confidentia l because they "indicated traders other than those declared in
Erdemir Group's and Colakoglu's questionnaire responses".150 We do not find Morocco 's argument
persuasive. As the MDCCE found at paragraph 57 of the final determination, the documents that the
MDCCE disclosed to the producers in respect of the [[ ***]] tonnes also pertained to export sales
made through unreported traders. This, however, did not prevent the MDCCE from disclosing a
redacted version of the relevant documents to the producers. Further, the determination does not
reflect that the MDCCE could not provide the documents at issue for confidentiality reasons. It is
entirely silent on these sales. Even when transmitting the underlying information in respect of the
[[***]] tonnes on 7 July 2014 , the MDCCE remained silent on any additionally unreported export
sales, or any confidentiality issue that may have prevented it from disclosing information in respect
of these sales. We therefore reject Morocco's assertion as an ex post explanation.
7.101. Morocco submitted Exhibit MAR -11 (BCI) to demonstrate that the MDCCE had properly
established that the producers had failed to report not only the identified [[***]] tonnes of export
sales, but also additional, unidentified export sales.151 Turkey argues that this exhibit relates to
export sales that were properly reported by the producers and to other export sales that fall outside
the scope of the investigation. 152 We note that Exhibit MAR-11 (BCI) contains a table with 40 line
items of imports from Turkey to Morocco with a total volume of [[***]] tonnes. It does not contain
any reference to Erdemir Group and Colagoklu, or otherwise indicate the specific producers of the
listed export sales. The exhibit thus does not demonstrate that the MDCCE found that the lis ted
sales: (a) originated from Erdemir Group and Colagoklu; (b) had not been reported by them; or (c)
served as the basis for the MDCCE's recourse to facts available. Indeed, if this document had served
as the basis for finding that the producers had failed to report certain export sales, we query why
the total amount of sales in this document amounts t o [[ ***]] tonnes, whereas the
MDCCE's determination refers to a discrepancy of only "approximately 10,000 tonnes". Morocco has

determine, exclusively on the basis of our own appreciation of these explanations and evidence, whether the
MDCCE's conclusion to disregard the producers' explanations and evidence was one that an objective and
unbiased investigating authority could have reached.
149 Colakoglu's comments on the draft final determination, (Exhibit TUR-20 (BCI)), p. 7; Turkey's
first written submission, para. 6.76.
150 Morocco's response to Panel question No. 2.3(b)(ii), para. 55; second written submission, para. 60.
151 Morocco's response to Panel question No. 2.1, paras. 39-40; second written submission, para. 65.
152 Turkey's second written submission, paras. 4.5-4.22; Turkey's explanation on Morocco's table of
allegedly unreported transactions, (Exhibit TUR-57 (BCI)); and Movement certificates and commercial invoices,
(Exhibit TUR-58 (BCI)).

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provided us no convincing resp onse in this regard. 153 We therefore consider that Exhibit MAR -11
(BCI) could not have constituted a proper basis for the MDCCE's recourse to facts available. Further,
in any event, according to Morocco, this exhibit constitutes an internal working document of the
MDCCE. It was not disclosed to the producers during the investigation. The exhibit therefore does
not detract from the fact that the MDCCE failed entirely to engage with the producers in respect of
any additional, unidentified sales that the producers allegedly failed to report.
7.102. Morocco also refers to the MDCCE 's finding that the CIB had informed the MDCCE that
Erdemir Group and Colakoglu were the only producers with exports to Morocco during the period of
investigation.154 According to Morocco, the MDCCE thus properly established that the entire
discrepancy of approximately 10,000 tonnes, and not only the identified [[***]] tonnes, constituted
unreported export sales originating from the producers. However, we share Turkey 's view that
Morocco selectively quotes from the CIB's statement.155 In the final determination, the MDCCE more
fully reflected that statement according to which the CIB had confirmed that the Turkish exports to
Morocco were not in excess of the 19,000 ton nes reported by the producers. 156 The information
provided by the CIB thus contradicts, rather than supports, Morocco's assertion that the export sales
constituting the discrepancy of approximately 10,000 tonnes, in addition to the reported 18,800
tonnes, pertained to (unreported) export sales of the producers.
7.103. Finally, Turkey argues that the MDCCE could not, without more, reject and replace all the
sales information that the producers had reported.157 We agree. In order to reject the entirety of the
export sales data reported by the producers, the MDCCE was required to explain why the alleged
failure to report certain sales tainted, or rendered unusable, the sales data that had been reported.158
The MDCCE, however, failed to do so. In particular, the MDCCE did not indicate how the alleged
failure to report certain export sales might have affected the inf ormation on the reported
18,800 tonnes of export sales, and more broadly all of the reported information on domestic and
export sales. Morocco argues that given the fact that the unreported sales constituted around 50%
of the reported sales and 30% of the total sales, the MDCCE was entitled to reject all of the reported
information.159 Morocco's explanation, however, is not reflected in the f inal determination as a
consideration of the MDCCE to disregard all information, and we reject it as an ex post explanation.
Morocco also relies on statements in the final determination to the effect that the pro ducers had
failed to report all their sales, that this amounted to a failure to cooperate and that their explanations
were insufficient.160 These statements, however, provide no basis to rebut Turkey 's claim that the
MDCCE failed to establish that it was entitled to reject all reported information.
7.104. For all of the above reasons, we conclude that the MDCCE 's recourse to facts available in
respect of the producers ' alleged failure to report the entirety of their export sales is inconsistent
with Article 6.8.

153 We are not persuaded by Morocco's assertion (Morocco's oral response to the Panel's question at the
second meeting of the Panel; response to Panel question No. 7.2, para. 9) that the reference to "approximately
10,000 tonnes" served as an approximation for [[***]] tonnes, a figure that would exceed the proxy by about
20%. Moreover, the [[***]] tonnes are difficult to reconcile with the MDCCE's finding that the import volume
from Turkey totalled 29,028 tonnes (Preliminary determination, (Exhibit TUR-6), table 4; this figure was not
revised in the final determination), and not [[***]] tonnes (18,800 tonnes of the producers' reported export
sales + [[***]] tonnes).
154 Morocco's responses to Panel question Nos. 2.2(a) and (b), paras. 41-42, and No. 7.1, para. 4;
second written submission, para. 65 (referring to Final determination, (Exhibit TUR-11), para. 54); and
opening statement at the second meeting of the Panel, para. 38.
155 Turkey's second written submission, para. 4.23; comments on Morocco's response to Panel question
No. 7.1, p. 4.
156 Final determination, (Exhibit TUR-11), para. 54; Letter of the CIB to the MDCCE,
(Exhibit TUR-28 (BCI)).
157 Turkey's first written submission, paras. 6.107-6.108 and 6.127; second written submission,
paras. 4.50-4.51 and 4.66.
158 Panel Report, US – Steel Plate, para. 7.75.
159 Morocco's response to Panel question No. 2.7, para. 90.
160 Morocco's opening statement at the second meeting of the Panel, para. 53 (quoting Final
determination, (Exhibit TUR-11), paras. 57-58 and 60).

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7.4.3.2 Claims under Annex II to the Anti-Dumping Agreement
7.105. Turkey also advances claims of inconsistency under paragraphs 1, 3, 5, 6 , and 7 of
Annex II.161 The main issues raised by Turkey as part of these claims relate to the assertions that
the producers fully cooperated and provided all of their export sales, that the MDCCE did not provide
sufficient information in relation to the totality of the allegedly missing export sales, that it did not
engage with the explanations and evidence provided by the producers, that it did not sufficiently
explain why it rejected the submitted information , and that it rejected more submitted information
than it was entitled to.
7.106. Turkey's claims under paragraphs 1, 3, 5, 6, and 7 of Annex II thus concern essentially the
same factual issues already addressed in the context of the Article 6.8 claim. Therefore, we do not
need to also evaluate the additional claims under paragraphs 1, 3, 5, 6, and 7 of Annex II in order
to effectively resolve this dispute or provide guidance in the event this issue arises in
implementation.
7.4.4 Conclusion
7.107. Based on the above, we find that Morocco acted inconsistently with Article 6.8 in resorting
to facts available to establish the margins of dum ping for the two Turkish producers. In this light,
we do not consider it necessary to make additional findings as to whether the MDCCE, in resorting
to facts available, also acted inconsistently with its obligations under paragraphs 1, 3, 5, 6, and 7 of
Annex II.
7.5 Article 6.9 of the Anti-Dumping Agreement: Disclosure of essential facts in respect of
the alleged failure to report export transactions
7.108. Turkey claims that Morocco violated Article 6.9 of the Anti-Dumping Agreement by failing to
inform the two investigated Turkish producers, Erdemir Group and Colakoglu, of the essential facts
regarding the MDCCE's recourse to facts available in respect of their alleged failure to report the
entirety of their export sales. Turkey's challenge under Article 6.9 is two-fold: (a) certain essential
facts regarding the MDCCE 's determination were not disclosed at all ; and (b) other essential facts
were not disclosed in sufficient time to allow the producers to defend their interests.
7.5.1 Factual background
7.109. On 20 June 2014, the MDCCE issued its final draft determination , in which the MDCCE
purported to inform all interested parties of the essential facts under consideration forming the basis
for its decision to apply definitive duties. In the draft final determination, and later in the final
determination, the MDCCE referred to a discrepancy of "approximately 10,000 tonnes" between the
export sales reported by the two producers and the official Moroccan import statistics. It explained
that a review of detailed evidence indicated that unreported export sales from Turkey had been
made through third-party traders and that movement certificates (certificates of origin) established
that these sales originated from the two producers. It found that the producers had therefore failed
to report the entirety of the export sales to Morocco. For this reason, the MDCCE rejected all of the
reported information, resorted to facts available , and established the margins of dumping for the
producers using the petition rate of 11%.162
7.110. With regard to the rate of 11%, the draft final determination refers to the report on the
initiation of the investigation (initiation report). The initiation report mentions that in calculating this
rate, the petitioner had adjusted initial cost and freight ( C&F)-based prices in respect of logistical
costs, commission of intermediaries, and financing costs to arrive at ex-factory level export prices.163
The initiation report indicates a specialized industry publication as one of the sources for the C&F
prices. It does not provide more detailed information or data in respect of the C&F prices or the
adjustments. The initiation report mentions, however, that the MDCCE veri fied the export prices

161 Turkey's first written submission, paras. 6.92-6.128; second written submission, paras. 4.42-4.68.
162 Draft final determination, (Exhibit TUR-10), paras. 51-56 and 58.
163 Initiation report, (Exhibit TUR-2), p. 5.

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used in the petition on the basis of a comparison with average price information that the MDCCE
had derived using import values from import statistics.
7.111. Following the draft final determination, t he producers asked the MDCCE to provide the
underlying documents on which the MDCCE had relied in finding that they had not reported certain
of their export sales. On 7 July 2014, the MDCCE provided movement certificates and associated
commercial invoices to the producers in respect of [[***]] tonnes of export sales that, according to
the MDCCE, had not been reported by the exporters.164 The MDCCE did not provide any information
in respect of any other export sales that the exporters had allegedly failed to report.
7.5.2 Provision at issue
7.112. Article 6.9 of the Anti-Dumping Agreement provides:
The authorities shall, before a final determination is made, inform all interested parties
of the essential facts under consideration which form the basis for the decision whether
to apply definitive measures. Such disclosure should take place in sufficient time for the
parties to defend their interests.
7.5.3 Evaluation
7.5.3.1 Claims that certain essential facts were not disclosed at all
7.113. Turkey claims that the MDCCE failed, contrary to the requirements of Article 6.9, to disclose:
(a) the precise basis for its decision to resort to facts available ; and (b) the facts that it used to
replace the missing informa tion.165 In particular, the MDCCE failed to disclose the following three
sets of information that Turkey considers to be "essential facts":
a. The essential facts on the basis of which the MDCCE determined that the producers had
failed to report export sales other than the [[***]] ton nes identified in the
MDCCE's communication of 7 July 2014 (referred to hereinafter as "additional, unidentified
export sales").166
b. The data used in arriving at the margin of dumping – based on facts available in the
petition – of 11%, in particular the data for the underlying C&F prices and the
adjustments.167
c. The data and methodology used by the MDCCE in cross-checking the facts available
pertaining to the margin of dumping in the petition.
In the following, we will examine Turkey's claims in respect of each set of information.
7.5.3.1.1 Essential facts in respect of the alleged failure to report additional, unidentified
export sales
7.114. With regard to Turkey's claim concerning the first set of information, we recall our findings
under Article 6.8 that the MDCCE did not properly establish the producers ' failure to report the
entirety of their export sales, including any additional, unidentified export sales.168 In the context of
this Article 6.9 claim, the issue is thus w hether the MDCCE disclosed the essential facts pertaining
to those additional, unidentified export sales.

164 Correspondence with customs and commercial documents from Erdemir Group, (Exhibit TUR-29
(BCI)); Correspondence with customs and commercial documents from Colakoglu, (Exhibit TUR-30 (BCI)).
165 Turkey's first written submission, para. 7.17 (relying on the legal standard elaborated in Panel
166 Turkey's first written submission, para. 7.15; responses to Panel question No. 3.1(a), paras. 55-58,
and No. 3.2, para. 70; second written submission, para. 52; and opening statement at the second meeting of
the Panel, para. 3.25.
167 Turkey's first written submission, para. 7.16; responses to Panel question No. 3.1(a), para. 63,
No. 3.3(a), paras. 71, and No. 3.3(b), para. 72; and second written submission, para. 5.3.
168 See paras. 7.90. and 7.104. above.

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7.115. "Essential facts" refer to those facts that are significant or salient in the process of reaching
the decision whether or not to apply definitive measures. 169 Whether a particular fact is in this
manner "essential" "depends on the nature and scope of the particular substantive obligations, the
content of t he particular findings needed to satisfy the substantive obligations at issue, and the
factual circumstances of each case, including the arguments and evidence submitted by the
interested parties".170 In this regard, an investigating authority must disclose information that is
sufficiently precise to enable an interested party "to comment on the completeness and correctness
of the facts being considered by the investigating authority, provide additional information or correct
perceived errors, and comment on or make arguments as to the proper interpretation of those
facts".171 The panel in China – Broiler Products also held that when applying Article 6.9 in the context
of Article 6.8, the essential facts that an investigating authority is expected to disclose include:
(i) the precise basis for its decision to resort to facts available, such as the failure by an
interested party to provide the information that was requested; (ii) the information
which was requested from an interested party; and (iii) the facts which it used to replace
the missing information.172
Both parties have relied on this legal standard in their submissions to us. We agree with this legal
standard and apply it in the present case.
7.116. Turkey argues that the MDCCE failed to disclose the "precise basis" for its finding that the
producers had failed to report any additional, unidentified export sales, and thus the basis for its
decision to use facts available in respect of such sales. 173 In order to disclose the "precise basis",
Turkey considers that the MDCCE could have disclosed, for instance, the precise transactions at
issue, the movement certificates and commercial invoices listing the allegedly unreported sales, and
the names of the traders that had allegedly executed those sales.174
7.117. Morocco argues that Article 6.9 did not require the MDCCE to disclose the underlying customs
and commercial documents for the additional, unidentified export sales . In accordance with
Article 6.5, the MDCCE could no t disclose those documents because they were confidential. 175
Nevertheless, the MDCCE disclosed the "precise basis for its decision to resort to facts available" in
respect of additional, unidentified export sales in the draft final determination and in the final
determination.176 In particular, Morocco refers to parts in the draft final determination indicating
that the MDCCE resorted to facts available because it had found a discrepancy in export sales of
approximately 10,000 ton nes originating from the Turkish producers, made through unreported
traders.177 In Morocco's view, the draft final determination only needed to provide a summary of the
fact that the MDCCE had established the existence of unreported sales.
7.118. We disagree with Morocco's arguments. First, Morocco's reliance on the final determination
is insufficient for a disclosure "before a final determination is made", as required by Article 6.9. We
also reject Morocco's assertion that the MDCCE disclosed the "precise basis" for its recourse to facts
available by informing the producers in the draft final determination that they had failed to report
"approximately 10,000 tonnes" of export sales. The MDCCE certainly had a large margin of discretion
on how to inform the producers of the relevant essential facts.178 In this instance, there might have
been any number of ways to do so, be that through the disclosure of the underlying customs and
commercial documents, through a summary of the relevant information, or others. In the draft final

169 Appellate Body Reports, China – GOES, para. 240; China – HP-SSST (Japan) / China – HP-SSST
(EU), para. 5.130.
170 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.130 (referring to
Appellate Body Report, China – GOES, para. 241).
171 Appellate Body Report, China – GOES, fn 390 (quoting Panel Report, EC – Salmon (Norway),
para. 7.805).
172 Panel Reports, China – Broiler Products, para. 7.317; China – Broiler Products (Article 21.5 – US),
paras. 7.368 and 7.401.
173 Turkey' first written submission, paras. 7.2, 7.12, and 7.17.
174 Turkey's response to Panel question No. 3.1(a), para. 56; second written submission, para. 5.2.
175 Morocco's first written submission, para. 151; second written submission, paras. 106-109.
176 Morocco's first written submission, paras. 137-138 and 147; second written submission, paras. 95
and 102-105.
177 Morocco's first written submission, paras. 137 and 147; second written submission, paras. 95
and 103 (quoting Draft final determination, (Exhibit TUR-10), paras. 51 and 55).
178 Panel Report, China – Broiler Products (Article 21.5 – US), para. 7.370.

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determination, the MDCCE however referred only in very broad and approximate terms to
"approximately 10,000 ton nes" of allegedly unreported export sales. Although the MDCCE
subsequently provided more information concerning a subset of [[ ***]] tonnes, it did not provide
any specific information in respect of the additional, unidentified export sales. Without any precision
at all on the factual underpinnings of these additional, unidentified export sales, it is not apparent
how the very general information in the draft final determination could have allowed the exporters
to understand, and therefore comment on, the precise factual basis on which the MDCCE concluded
that they had failed to report additional, unidentified export sales.179
7.119. Morocco also argues that the MDCCE disclosed the names of the traders in the email to
Erdemir Group on 31 December 2013.180 Morocco's assertion that this communication constituted a
disclosure for purposes of Article 6.9 raises a number of concerns. But in any event, nothing
suggests, and the parties do not assert, that simply listing the names of the traders would have
allowed the producers to precisely identify the allegedly unreported sales at issue.
7.120. Finally, Morocco also argues that the underlying customs and sales documents in respect of
the additional, unidentified export sales that the producers allegedly failed to report were confidential
and thus could not be disclosed.181 Morocco notes that Turkey does not challenge the treatment of
this information as confidential under Article 6.5.182 Regardless of the MDCCE 's compliance with
Article 6.5, which is not at issue here, we have already found in the context of Article 6.8 that
Morocco's reliance on the alleged confidentiality of the underlying documents is not persuasive. 183
In particular, we recall that the MDCCE did disclose redacted versions of similar documents for the
[[***]] tonnes. Moreover, as also explained in that context, M orocco's assertion in respect of the
confidentiality of the information is not reflected in the record of the investigation. It is thus an ex
post rationalization that we do not consider further.
7.121. As a result of the above, Turkey has established its claim that the MDCCE failed to disclose
the "precise basis for its decision to resort to facts available" in respect of any additional, unidentified
export sales that the MDCCE considered the producers to have failed to report. We therefore uphold
Turkey's claim that Morocco acted inconsistently with Article 6.9.
7.5.3.1.2 Essential facts in respect of the calculation of the facts available rate
7.122. The second part of Turkey's claim concerns the MDCCE's alleged failure to disclose the data
used to determine the producers ' margins of dumping. These margins were based on the rate of
11% identified in the petition, which the MDCCE relied on as facts available. Turkey claims in
particular that the MDCCE failed to disclose the C&F prices and the adjustments applied by the
petitioner for purposes of determining export prices at the ex-factory level.
7.123. Morocco argues that information as to how the MDCCE calcula ted the facts available rate
of 11% relates to "reasoning, calculation or methodology" , none of which constitute essential
facts.184 According to Morocco, the MDCCE also disclosed sufficient information about the sources of
the data used in arriving at the 11% rate in the initiation report and in the draft final

179 It strikes us that Morocco asserted – in response to our questions concerning the reference in the
draft final determination and the final determination to "approximately 10,000 tonnes" – that the MDCCE
intended this reference as an approximation for a total of [[***]] tonnes of allegedly unreported export sales.
(Morocco's oral response to the Panel's question at the second meeting of the Panel; response to Panel
question No. 7.2, para. 9). It is already difficult to imagine how, in the circumstances of this case, a mere
reference to "approximately 10,000 tonnes" could sufficiently disclose the "precise basis" for the sales making
up those approximately 10,000 tonnes. But we entirely fail to see how a reference to approximately
10,000 tonnes could adequately disclose the "precise basis" in respect of even [[***]] tonnes. In order to
disclose the "precise basis", we would expect the MDCCE to disclose the exact total amount of the allegedly
unreported export sales and to find a way of allowing the producers to understand precisely how that amount
has been determined and what individual export sales transactions are at issue.
180 Morocco's first written submission, paras. 146 and 149; second written submission, paras. 110-111.
182 Morocco's second written submission, paras. 107-109.
183 See para. 7.100. above.
184 Morocco's first written submission, para. 152.

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determination.185 Moreover, the sources of the data used for the petition ra te are public
information.186
7.124. The "e ssential facts " to be disclosed under Article 6.9 include the underlying data for
particular elements that ultimately comprise normal value and export price, and any adjustments.187
In the context of recourse to facts availa ble, essential facts also include those "facts … used to
replace the missing information". 188 In this case, the petition rate was based on an export price
calculation in which adjustments were applied to C&F prices to arrive at an ex-factory level. The C&F
prices are important elements for the calculation of the export price. The adjustments made for
netting back to ex -factory level represent "adjustments for differences which affect price
comparability", and are required by Article 2.4 of the Anti-Dumping Agreement. Moreover, both the
C&F prices and the adjustments (including the underlying data for the adjustments) are " facts …
used to replace the missing information". A s a result, we consider that the C&F prices and the
adjustments were "essential facts" that the MDCCE had to disclose.
7.125. The draft final determination does not provide any information on the C&F prices or the
adjustments applied to them. Morocco correctly points out that the initiation report, to which the
draft final determination refers189, indicates the sources of the information for the C&F prices.190 The
initiation report also indicates that adjustments were made in relation to logistical costs, commission
of intermediaries, and financing costs. Further, Morocco refers to a table in the initiation report,
listing ex -factory export prices, ex -factory normal values, amounts of dumping , and margins of
dumping.191 However, none of this information in the initiation report conveys the data for the C&F
prices and for the adjustments used in order to arrive at the ex-factory export prices.192 Without this
information on C&F prices and the adjustments, the producers could not ascertain the accuracy of
the petition rate used by the MDCCE a s facts available, which they would need to do in order to
defend their interests.
7.126. As a result, we find that the MDCCE acted inconsistently with Article 6.9 by failing to disclose
the data for the C&F prices and for the adjustments used in establishing the producers' margins of
dumping based on facts available.
7.5.3.1.3 Essential facts used by the MDCCE in cross-checking the facts available rate
7.127. Concerning the third set of information , Turkey posits that Article 6.9 required the MDCCE
to disclose how it cross-checked the petition rate based on information from import statistics as well
as the data it used for that purpose. In particular, Turkey argues that the MDCCE should have
disclosed the specific import values against which it checked the petition 's export prices as well as
information in respect of the transactions and the time periods on which those import values were
based.193

185 Morocco's second written submission, paras. 113-118.
186 Morocco's second written submission, paras. 115 and 117.
187 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.131; Panel
188 See fn 175 above.
189 Draft final determination, (Exhibit TUR-10), para. 58; Initiation report, (Exhibit TUR-2), pp. 4-5.
Turkey does not take issue with the fact that the MDCCE cross-referenced the initiation report in making its
disclosure for purposes of Article 6.9. (Turkey's response to Panel question No. 3.1(a), paras. 61 and 65).
190 Morocco's second written submission, para. 115.
191 Morocco's second written submission, para. 116.
192 With respect to the C&F prices, Morocco refers to the reference in the initiation report to a specialized
publication, "Tribune de la Sidérurgie", as a relevant and publicly available source of information.
Morocco's reliance on the reference to this publication is not persuasive. We do not need to consider whether a
disclosure under Article 6.9 of particular essential facts could be made by simply referring to an external
source, that is apparently not even part of the investigation record, where those essential facts can somehow
be retrieved. In any event, the publication at issue was only one of two sources mentioned in the initiation
report in respect of the C&F prices – the other being a mere reference to "intermediaries" – and only covered
data for one of two months at issue (data for October 2012 was obtained from the publication, data for
March 2012 from "intermediaries"). This means that any disclosure whatsoever would have been incomplete,
at best.
193 Turkey's responses to Panel question No. 3.1(a), paras. 59 and 64, and No. 3.3(a), para. 71;
second written submission, para. 5.3.

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7.128. Morocco argues that the data that the MDCCE used in cross -checking the petition rate are
public information.194
7.129. We recall that we declined, for procedural reasons, to rule on Turkey 's claim under
Article VI:6(a) of the GATT 1994.195 Turkey asserted its Article VI:6(a) claim only in response to our
written questions, and thus contrary to paragraph 6 of the Panel's Working Procedures that requires
the parties to present the facts of the case and the arguments in the first written submission before
the first substantive meeting.
7.130. The same consideration applies to Turkey 's Article 6.9 claim in respect of how the MDCCE
cross-checked the petition rate, and the data used for that purpose. Turkey's first written submission
did not include a statement of this claim. Turkey asserted this claim for the first time in its responses
to our written questions, and then in its second written submission.196
7.131. We therefore rely on paragraph 6 of our Working Procedures to decline ruling on this
Article 6.9 claim concerning any "essential facts" used by the MDCCE in cross -checking the facts
available rate.
7.5.3.2 Claim that certain essential facts were not disclosed in sufficient time to allow
producers to defend their interests
7.132. Turkey argues that the disclosure of the movement certificates and commercial invoices
pertaining to the [[ ***]] tonnes of export sales, through communication on 7 July 201 4, did not
take place in sufficient time for the producers to defend their interests, contrary to the requirements
of Article 6.9.197
7.133. Turkey's claim at issue here concerns the timing198 of the disclosure which, according to the
first sentence of Article 6.9, shall be "before the final determination", and, pursuant to the second
sentence of Article 6.9, "should take place in sufficient time for the parties to defend their interests".
Turkey makes three arguments in this respect. First, the investigation exceeded the deadlines set
out in Article 5.10. Second, the MDCCE did not meaningfully assess the producers' comments, such
that the disclosure itself did not take place in sufficient time for the producers to defend their
interests. Third, the producers only had five working days to respond after receiving the underlying
documents identifying the [[***]] tonnes of export sales, which was much shorter than the 21-day
period provided for by domestic Moroccan law.
7.134. Morocco does not deny that Turkey 's claim relates to "essential facts" 199, but asserts that
the relevant disclosure took place in sufficient time to allow exporters to defend their interests. The
producers had 15 working days from the draft final determination to comment. Even when counting
from 7 July 2 014, they had five working days to respond and in fact provided comments and
additional documentation, without requesting an extension, and thus defended their interests.200
7.135. We are not persuaded by Turkey 's arguments. Turkey 's first argument regarding the
MDCCE's failure to comply with the time limits for conducting the investigation under Article 5.10 is
unrelated to the issue whether the producers had sufficient time to defend their interests in response
to the disclosure. Nothing indicates that the MDCCE 's non-compliance with the deadlines for the
investigation could have somehow impaired the producers ' ability to defend their interests in
responding to the disclosure. Regarding the second argument, Turkey appears to suggest that the

194 Morocco's second written submission, paras. 115 and 117.
195 See para. 7.65. above.
196 Turkey's responses to Panel question No. 3.1(a), paras. 59 and 64, and No. 3.3(a), para. 71;
second written submission, para. 5.3.
197 Turkey's first written submission, paras. 7.2 and 7.19; see also response to Panel
question No. 3.1(b), paras. 67-69; and second written submission, paras. 5.6-5.7.
198 Turkey's responses to Panel question No. 3.1(b), para. 67, and No. 3.2, para. 70; second written
submission, para. 5.5; and opening statement at the second meeting of the Panel, para. 3.24.
199 The MDCCE relied on the customs and commercial documents at issue in order to establish that the
producers had failed to report [[***]] tonnes of export sales. On this basis, and absent any arguments by the
parties to the contrary, we have no reason to doubt that these documents, or at least that information
contained therein establishing – in the MDCCE's view – the existence of unreported export sales, constituted
essential facts within the meaning of Article 6.9.
200 Morocco's first written submission, para. 153; second written submission, paras. 119-122.

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MDCCE's failure to enga ge with the disclosure comments demonstrates the "rush" with which the
investigation was concluded.201 However, neither a failure to engage with the disclosure comments,
nor a rush in the conclusion of the investigation establish es that the MDCCE had not dis closed the
essential facts in sufficient time to allow the producers to defend their interests . Turkey's
third argument concerns the limited deadline of five working days to respond to the underlying
customs and commercial documents , short of the 21 -day period available under Moroccan law to
comment on the disclosure of essential facts. We cannot, however, determine in the abstract, based
on a specific minimum number of days for giving comments, whether interested parties were
afforded sufficient opportunity to defend their interests.202 This will depend on the circumstances of
a given case.
7.136. In this instance, we consider that Turkey has not established on the basis of the specific
circumstances of this case that the disclosure did not take place in sufficient time for the producers
to defend their interests. Turkey does not explain how the deadline of five working days – counting
from 7 July 2014 when the MDCCE provided the underlying documents for the [[***]] tonnes of
allegedly missing export sales – limited the opportunity of the two producers to defend their interests
in time to prepare and submit comments on the essential facts disclosed by the MDCCE . Simply
because the underlying documents were made available with only five working days to comment
does not demonstrate that the producers could not comment on, challenge, or provide additional
information in respect of the essential facts, such that they were unable to defend their interests.203
In its claims under Article 6.8 and Annex II, Turkey asserts that the Turkish producers proffered
explanations and evidence in their disclosure comments establishing that the allegedly missing
export sales had been reported. Notwithstanding the short deadline, it thus rather appears that the
producers were able to defend their interests, but that based on their comments, the MDCCE did not
come to the conclusions that the Turkish producers and Turkey would have liked it to reach.
7.137. As a result of the above, we find that Turkey has not established its claim under Article 6.9
in respect of the alleged failure to disclose the essential facts pertaining to the [[ ***]] tonnes of
export sales in sufficient time for the Turkish producers to defend their interests.
7.5.4 Conclusion
7.138. In light of the above, in respect of Turkey's claims under Article 6.9 we find that:
a. Turkey has established its claim that the MDCCE acted inconsistently with Article 6.9 by
failing to inform all interested parties of any essential facts in respect of the additional,
unidentified export sales that the MDCCE considered the producers to have failed to report.
b. Turkey has established its claim that the MDCCE acted inconsistently with Article 6.9 by
failing to inform all interested parties of the data for the C&F prices and for the adjustments
used in arriving at the producers' margins of dumping using facts available.
c. Turkey has not established its claim that the MDCCE acted inconsistently with Article 6.9
by failing to inform all interested parties of the movement certificates and commercial
invoices in respect of the [[***]] tonnes of allegedly unreported export sales in sufficient
time for the producers to defend their interests.
7.139. Based on paragraph 6 of our Working Procedures, we decline ruling on Turkey's Article 6.9
claim concerning any "essential facts" used by the MDCCE in cross-checking the facts available rate.

201 Turkey's response to Panel question No. 3.1(b), para. 69.
202 In this regard, the minimum period for comments on the disclosure established by municipal law has
also no bearing on a Member's compliance with Article 6.9.
203 Appellate Body Reports, China – GOES, fn 390; China – HP-SSST (Japan) / China – HP-SSST (EU),
fn 316.

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7.6 Articles 3.1 and 3.4 of the Anti-Dumping Agreement: The MDCCE's determination that
the domestic industry was unestablished
7.140. In the underlying investigation, the MDCCE found that the domestic industry, which it defined
as comprising of the sole domestic producer, Maghreb Steel 204, had suffered injury in the form of
"material retardation of the establishment of the domestic industry". 205 In arriving at this
determination, the MDCCE followed a two -step analysis: it first examined, applying five criteria,
whether the domestic industry was established. Having found that the domestic industry was
unestablished, it proceeded to examine whether the establishment of that industry had been
materially retarded.206
7.141. In determining whether the domestic industry was established, the MDCCE applied the
following five criteria: (a) how long the domestic industry had been producing the domestic like
product; ( b) the market share of the domestic like product; ( c) whether the domestic
industry's production had been stable; ( d) whether the domestic industry had reached
profitability/break-even point; and ( e) whether the domestic industry constituted a "new"
industry.207 The MDCCE noted, in its final determination, that it had reached its finding that the
domestic industry was unestablished based on a separate and collective consideration of its
conclusions on these criteria.208
7.142. Turkey claims that the MDCCE's determination that the domestic industry was unestablished
is inconsist ent with Article 3.1 and footnote 9 to Article 3 of the Anti -Dumping Agreement, and
Article VI:6(a) of the GATT 1994, because that determination was not based on positive evidence
and objective examination. In particular, Turkey contends that the MDCCE 's findings in relation to
each of the five criteria that it relied on for determining whether the domestic industry was
established were flawed.
7.143. Turkey further claims that consequent to incorrectly determining that the domestic industry
was unestablished, the MDCCE erroneously conducted an injury analysis in the form of "material
retardation of the establishment of the domestic industry", instead o f material injury to an
established domestic industry, and therefore acted inconsistently with Articles 3.1 and 3.4 of the
Anti-Dumping Agreement.
7.6.1 Provisions at issue
7.144. Article 3.1 of the Anti-Dumping Agreement provides as follows:
A determination of injury for purposes of Article VI of GATT 1994 shall be based on
positive evidence and involve an objective examination of both (a) the volume of the
dumped imports and the effect of the dumped imports on prices in the domestic market
for like products, and (b) the consequent impact of these imports on domestic producers
of such products.
7.145. Article 3.4 of the Anti-Dumping Agreement provides as follows:
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 d omestic prices; the magnitude of the margin of dumping;
actual and potential negative effects on cash flow, inventories, employment, 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.

204 Final determination, (Exhibit TUR-11), para. 30; Preliminary determination, (Exhibit TUR-6),
paras. 22 and 53.
205 The parties in this case do not dispute whether the domestic producer, Maghreb Steel, constituted a
domestic industry.
206 Final determination, (Exhibit TUR-11), paras. 80 and 111.
207 Final determination, (Exhibit TUR-11), paras. 83 and 111.

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7.6.2 Evaluation
7.146. Turkey challenges the MDCCE's determination that the domestic industry was unestablished
under Article 3.1 and footnote 9 to Article 3 of the Anti-Dumping Agreement, and Article VI:6(a) of
the GATT 1994. How ever, we recall as falling outside our terms of reference, Turkey 's claim that
the MDCCE's determination that the domestic industry was unestablishe d is inconsistent with
footnote 9 to Article 3 of the Anti-Dumping Agreement. We also recall that for procedural reasons,
we decline to rule on Turkey 's claim under Article VI:6(a) of the GATT 1994 in respect of the
MDCCE's finding of "establishment". 209 In light of those jurisdictional and procedural grounds, we
will evaluate Turkey's claim under Article 3.1 alone.
7.147. That " Article 3.1 is an overarching provision that sets forth a Member's fundamental,
substantive obligation with respect to the injury determination", is well settled.210 Article 3.1 requires
that the injury determination be based on positive evidence and involve an objective examination of
both: (a) the volume of 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 prod ucts.211 Article 3.1 thus requires , inter alia, that an investigating authority
base, on objective examination and positive evidence, its inquiry into the impact of dumped imports
on domestic producers. It follows that Article 3.1 requires that an investigating authority also base,
on objective examination and positive evidence, any of its findings that form part of that inquiry into
the impact of dumped imports on domestic producers.
7.148. In the underlying investigation, the MDCCE 's finding that the domestic ind ustry was
unestablished, and that the establishment of the domestic industry was materially retarded, formed
part of the MDCCE's inquiry into the impact of dumped imports on domestic producers. In particular,
the MDCCE proceeded to examine whether the domestic industry had suffered injury in the form of
material retardation of its establishment, rather than material injury, only upon finding that the
domestic industry was unestablished.212 Given that the MDCCE, in examining the impact of dumped
imports on domestic producers, relied on its finding that the domestic industry was unestablished,
we consider that Article 3.1 required the MDCCE to base that finding on positive evidence and
objective examination.213 In the event that the record of the underlying investigation shows that the
MDCCE did not base that finding on positive evidence and objective examination, we will then
conclude that the MDCCE acted inconsistently with Article 3.1.
7.149. This approach finds support in the findings of other panels and the Appellate Body. I n
Argentina – Poultry Anti-Dumping Duties , the panel examined inconsistency with Article 3.1
independently of other provisions of Article 3.214 Similarly, the Appellate Body and several prior
panels found violations of Article 3.1, in a first step of their evaluation, independent of any
assessment of consistency with other provisions of Article 3. Having found a violation of Article 3.1,
they subsequently proceeded to find consequential violation s of certain other provisions of
Article 3.215 Further, in EC – Countervailing Measures on DRAM Chips, the panel refrained from taking
the view that Article 15.1 of the SCM Agreement, which is the equivalent of Article 3.1 of the

209 See para. 7.67. above.
210 Appellate Body Report, US – Hot-Rolled Steel, para. 192 (referring to Appellate Body Report,
Thailand – H-Beams, para. 106).
211 Article 3.1, read in light of footnote 9 to Article 3, imposes obligations on an investigating authority
with respect to its "injury determination", which extend to cases where the injury determined takes the form of
material retardation of the establishment of a domestic industry.
212 Final determination, (Exhibit TUR-11), paras. 69 and 195; Preliminary determination,
(Exhibit TUR-6), para. 92.
213 The parties disagree over whether the Anti-Dumping Agreement requires an investigating authority
to determine that the domestic industry is unestablished in the context of making a determination that the
establishment of that industry is materially retarded. (Turkey's response to Panel question No. 4.2,
paras. 86-87; Morocco's response to Panel question No. 4.2, para. 94). However, in this dispute, we do not
need to address that question because in the underlying investigation the MDCCE did determine that the
domestic industry was unestablished as part of its analysis of the material retardation of the establishment of
the domestic industry. The relevant question, as set out in paragraph 7.148. above, is therefore whether
the MDCCE's determination that the domestic industry was unestablished was based on positive evidence and
objective examination.
214 Panel Report, Argentina – Poultry Anti-Dumping Duties, paras. 7.283-7.285.
215 Appellate Body Report, US – Hot-Rolled Steel, paras. 211-214; Panel Reports, EU – Biodiesel
(Argentina), paras. 7.413, 7.415, and 7.431; Mexico – Anti-Dumping Measures on Rice, paras. 7.65
and 7.86-7.87.

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Anti-Dumping Agreement, does not impose any independent obligations in its own right. It
considered that "if an investigating authority lacks positive evidence and has not examined the
evidence before it objectively, then the investigating authority would have acted inconsistently with
Article 15.1, regardless of any conclusions that might be reached about the other – more specific –
obligations under Article 15."216
7.150. We have also considered carefully the report of the panel in China – Cellulose Pulp concerning
this issue. The panel , in that case, took the view that the "basic principles" in Article 3.1 that a
determination of injury be based on positive evidence and objective examination do not establish
independent obligations, which can be judged separately from the substantive requirements set out
in the remainder of Article 3 of the Anti -Dumping Agreement.217 We note, however, that these
observations of the panel were obiter, and did not form a basis of its findings. Further, the panel
qualified those observations by stating that a claim of inconsistency with Article 3.1 may not
"normally" be made independently of other provisions of Article 3.218 We consider that through the
use of the word "normally", the panel indicated that in certain cases, claims could be made under
Article 3.1 independently of other provisions of Article 3. Indeed, the panel recognized that "a
general claim of bias on the part of the investigating authority would fall squarely under
Article 3.1".219 The panel further suggested that whether an investigating
authority's decision-making process was biased can be determined only by scrutinizing the specific
decisions that the authority took in the context of its injury analysis. 220 In the underlying
investigation, the MDCCE's finding that the domestic industry was unestablished formed part of the
MDCCE's injury analysis. In evaluating the consistency of that finding with Article 3.1, we would thus
review, as the panel in China – Cellulose Pulp suggested, a specific decision that the MDCCE took in
the context of its injury analysis.
7.151. We therefore agree with Turkey that Article 3.1 can be violated independently when an
erroneous act or omission, such as an erroneous finding that the domestic industry in question is
unestablished, taints the overall injury analysis. 221 We thus evaluate in this dispute Turkey 's claim
in question under Article 3.1 independently of any other provision in Article 3.
7.6.2.1 Whether the MDCCE acted inconsistently with Article 3.1 in finding that the
domestic industry was unestablished
7.152. We note that the MDCCE recognized that an analysis of "material retardation of the
establishment of the domestic industry" applies not only to cases where the domestic industry had
not yet started producing the like product in question, but also to cases where the domestic industry
had not yet reached "une présence stable" (a stable presence) on the market.222 In the underlying
investigation, the domestic industry, Maghreb Steel, had already started producing the like product
(hot-rolled steel) during the injury period.223 The MDCCE's inquiry into whether Maghreb Steel was
an established industry therefore entailed examining whether Maghreb Steel had achieved a stable
presence on the market. We note that Turkey does not challenge the use of the standard of stability
of presence for purposes of examining whether an "already producing" industry is established. In
particular, Turkey does not challenge the MDCCE 's application of that standard of establishment to
determine whether Maghreb Steel, which had already started production, was established. Turkey
recognizes the possibility of "exceptional circumstances" in which an industry, which has already
started producing, is not yet established.224 Turkey asserts that such a determination must however,

216 Panel Report, EC – Countervailing Measures on DRAM Chips, fn 218.
217 Panel Report, China – Cellulose Pulp, para. 7.13.
218 Panel Report, China – Cellulose Pulp, para. 7.15.
219 Panel Report, China – Cellulose Pulp, fn 47.
220 The panel observed that whether the decision-making process of the investigating authority was
unbiased can "only be determined on the basis of a careful scrutiny of the decisions made by the investigating
authority in reaching a conclusion on the question of whether dumped imports caused injury, as set out in the
relevant determination and other documents". (Panel Report, China – Cellulose Pulp, para. 7.17).
221 Turkey's second written submission, paras. 6.13-6.14.
223 The injury period in the underlying investigation ran from January 2009 until December 2012. (Final
determination, (Exhibit TUR-11), para. 11). Maghreb Steel began production of hot-rolled steel in 2010.
224 Turkey submits that the breadth of the term "establishment of the industry", read in conjunction with
"création d'une branche de la production nationale" and "creación de esta rama de producción" in the French
and Spanish versions, respectively, is closer to "bringing into existence" of an industry rather than making the
industry "firm or stable". (Turkey's first written submission, para. 8.26). At the same time, Turkey accepts the

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be grounded in positive evidence and involve an objective examination, as required under Article 3.1
of the Anti-Dumping Agreement.225
7.153. The issue we must resolve therefore is whether the MDCCE, consistent ly with Article 3.1,
evaluated, objectively and on the basis of positive evidence, the five criteria enumerated in
paragraph 7.141. that it used in finding that the domestic industry was unestablished.
7.154. We recall that "positive evidence" refers to the facts underpinning and justifying the injury
determination. It relates t o quality of the evidence that authorities may rely upon in making a
determination. The word "positive", in particular, means that the evidence must be of an affirmative,
objective, and verifiable character , and it must be credible. 226 The term "objective ex amination"
relates to the conduct of the investigation generally . It requires an injury investigation to conform
to the dictates of the basic principles of good faith and fundamental fairness, and that the domestic
industry, and the effects of dumped impor ts, be investigated in an unbiased manner, without
favouring the interests of any interested party. 227 Further, the "positive evidence" to be examined
by the investigating authority must pertain to the particular substantive elements relevant to the
determination made, and the "objective examination" must relate to the consideration and
evaluation of that evidence in the investigation at issue.228
7.155. Similar to the Appellate Body 's views, our view is that Article 3.1 does not prescribe a
particular methodology that an investigating authority must follow in assessing whether a domestic
industry is established.229 While an investigating authority enjoys a certain degree of discretion in
adopting a methodology to guide its analysis, it may, within the bounds of that discretion, have to
rely on reasonable assumptions or draw inferences. The exercise of this discretion must nonetheless
comply with the requirements of Article 3.1. Accordingly, when an investigating
authority's determination rests upon assumptions, these assumptions should be derived as
reasonable inferences from a credible basis of facts, and should be sufficiently explained so that
their objectivity and credibility can be verified. An investigating authority that uses a methodology
premised on unsubstant iated assumptions does not conduct an examination based on positive
evidence. An assumption is not properly substantiated when the investigating authority does not
explain why it would be appropriate to use it in the analysis.230
7.156. We will apply these consider ations in evaluating whether the MDCCE 's finding that the
domestic industry was unestablished was based on positive evidence and objective examination. In
our evaluation, we will examine the MDCCE's assessment of each of the five criteria that formed the
basis of its finding that the domestic industry was unestablished.
7.6.2.1.1 Whether the MDCCE did not properly assess the temporal criterion in its
establishment analysis
7.157. In determining whether Maghreb Steel was established, the MDCCE took into consideration
how long the domestic industry had been producing the domestic like product, hot-rolled steel. The
MDCCE considered , in particular, the time that had lapsed between when Maghreb Steel began
producing and marketing that product , and when it filed its petition co ntaining evidence of injury
with the MDCCE. 231 In its final determination, the MDCCE noted that Maghreb Steel had provided
data that did not go back more than 30 months for hot-rolled steel sheets232, and only 8 months for

possibility of exceptional circumstances in which an "already producing industry" is not yet established.
(Turkey's first written submission, para. 8.28).
225 Turkey's first written submission, para. 8.28.
226 Appellate Body Report, US – Hot-Rolled Steel, para. 192.
227 Appellate Body Report, US – Hot-Rolled Steel, para. 193.
228 Panel Report, China – Cellulose Pulp, para. 7.16.
229 Appellate Body Report, Russia – Commercial Vehicles, para. 5.52.
230 Appellate Body Report, Russia – Commercial Vehicles, para. 5.52 (referring to Appellate Body Report,
Mexico – Anti-Dumping Measures on Rice, paras. 204-205).
231 In its preliminary determination, the MDCCE found that Maghreb Steel had been producing hot-rolled
steel sheets for 28 months before filing its petition, and thick sheets for eight months before the underlying
investigation was initiated. (Preliminary determination, (Exhibit TUR-6), paras. 73-74).
232 The MDCCE noted in its final determination that its findings on injury to the domestic industry
pertained to the entire range of products mentioned in the application by the domestic producer. The MDCCE
stated, however, that it made a distinction between the various product segments (i.e. hot-rolled steel sheets
and thick sheets) when this proved useful for a better understanding of the data. (Final determination,

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thick sheets, and considered that time frame as not long enough to permit an assessment of material
injury.233 In this regard, the MDCCE reasoned that, based on international practice, a material injury
analysis requires a review of historical data for at least three years .234 However, in appl ying the
temporal criterion to determine whether Maghreb Steel was established, the MDCCE also considered
that the application of the temporal criterion should be analysed on a case -by-case-basis and take
into account the nature of the industry in question. In this regard, the MDCCE noted that in the case
at hand, the starting up of production and the marketing of a product such as hot-rolled steel sheets
requires a lead time of more than two years, in view of the difficulty of mastering a heavy industry
such as hot-rolling, as well as high-entry costs and the scale of the investment. It further stated that
the marketing of steel products involves particular time frames owing to the difficulties inherent in
the commercial negotiations, long delivery lead tim es, and transportation, among others .235 The
MDCCE thus reached its finding that Maghreb Steel had not been producing and selling hot -rolled
steel for a period sufficient for it to be considered an established industry.
7.158. In order to assess whether the MDCCE's finding that Maghreb Steel had not been producing
and selling hot-rolled steel for a period adequate for it to be considered an established industry was
based on positive evidence and objective examination, we must evaluate the MDCCE 's reasoning,
set out in the preceding paragraph, for that finding.
7.159. We will therefore first assess whether the MDCCE properly concluded that a material injury
analysis requires a review of historical data for at least three years . In its final determination, the
MDCCE stated that this conclusion was not arbitrary, but was based on international practice.236 At
the outset, we consider that an unbiased and objective investigating authority would not have
concluded that international practice did require that a determination of material injury be based on
three years of data. Given the absence of any requirement in the WTO covered Agreements that a
material injury analysis be based on a review of data for at least three years, international practice
could not have set out that requirement and bound the MDCCE in that regard. We therefore consider
that the MDCCE did not objectively conclude that a material injury analysis requires a review of
historical data for at least three years.
7.160. Turkey argues that the MDCCE's conclusion that a material injury analysis requires a review
of historical data for at least three years runs contrary to the Recommendation concerning the
Periods of Data Collection for Anti -Dumping Investigations (hereinafter "the Recommendation")
adopted by the Committee on Anti -Dumping Practices. 237 Turkey contends that although the
Recommendation lays down a general rule that the period of investigation of injury should be at
least three years, it recognizes the possibility that a shorter period may be chosen if data is available
for a shorter period. Morocco contends, in response, that the Recommendation did not legally bind
WTO Members, and therefore did not preclude the MDCCE from concluding that given historical data
for a period of less than three years, it could not a ssess material injury in the underlying
investigation.238 Turkey submits that it refers to the Recommendation, not to ask the Panel to apply
it as binding law, but as evidence of the recognition by a WTO body, composed of all WTO Members,
that injury periods may effectively be shorter than three years.239
7.161. We note that the record of the investigation does not indicate that the MDCCE took the
Recommendation into consideration in determining whether it had data covering a period that was
sufficiently long for it to assess material injury. Nor did the Anti -Dumping Agreement or the
covered Agreements require the MDCCE to take the Recommendation into consideration because,
as Morocco argues, it does not legally bind WTO Members .240 Past panels have recognized that the

(Exhibit TUR-11), paras. 122-123). There is no dispute among the parties regarding the coverage of the
product under consideration, which in this case is hot-rolled steel. In our analysis, we refer to the specific
sub-products, i.e. hot-rolled steel sheets and thick sheets, rather than the product under consideration, i.e.
hot-rolled steel, only where the MDCCE specifically refers to those specific sub-products in its determination.
233 Final determination, (Exhibit TUR-11), paras. 84-85.
237 Turkey's first written submission, para. 8.41 (referring to Recommendation Concerning the Periods of
Data Collection for Anti-Dumping Investigations, G/ADP/6 (5 May 2000), para. 1).
238 Morocco's first written submission, para. 180 (referring to Appellate Body Report, Mexico –
Anti-Dumping Measures on Rice, para. 169).
239 Turkey's opening statement at the first meeting of the Panel, para. 4.2.
240 Panel Report, Mexico – Anti-Dumping Measures on Rice, para. 7.62.

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Recommendation is "a non-binding guide to the common understanding of Members on appropriate
implementation of the AD Agreement".241 Given that even as a "guide", the Recommendation is
non-binding, we do not consider it necessary for purposes of resolving th e issue at hand, to assess
whether the MDCCE 's consideration that a material injury analysis requires a review of historical
data for at least three years , did run contrary to the Recommendation. We therefore reject
Turkey's argument in this regard.
7.162. We will next evaluate whether the MDCCE's conclusion that the starting up of production and
the marketing of hot-rolled steel sheets requires a lead time of more than two years was based on
positive evidence. Turkey argues that the MDCCE did not substantiate that conclusion with any
evidence on the record.242 Morocco contends, in response, that certain statements in the report of
the initiation of the investigation, addressing Maghreb Steel's investment and certain difficulties that
the company faced in its first year of producing hot -rolled steel, do substantiate that
consideration.243 Morocco asserts that the MDCCE stated that:
In 2010, the company Maghreb Steel undertook a major investment to build a
hot-rolling complex comprising two hot-rolling mills for the production of coil and thick
sheet, with capacities of one million tonnes and 500,000 tonnes, respectively, and an
electric steel plant with a capacity of one million tonnes.244
7.163. In the same report, the MDCCE stated that:
The analysis of the injury indicators, above, shows that Maghreb Steel is encountering
numerous difficulties during the start-up years of its hot-rolling activity.245
7.164. We note that the first statement addresses Maghreb Steel 's investment towards the
production of hot-rolled steel. The second statement addresses difficulties Maghreb Steel faced in
its first year after having started production of hot -rolled steel . Neither statement , however,
substantiates the MDCCE's consideration that the starting up of the production and marketing of a
product such as hot-rolled steel sheet requires, in particular, a period of time of more than two years.
7.165. Further, the same report in which these two statements appear states that Maghreb
Steel's achievements in ter ms of production and sales during the years 2011 and 2012
(1st semester) stood well below the objectives of its investment project foreseen in the
company's Business Plan.246 This statement, notably, appears in the part of the report discussing
injury caused by dumped imports. This statement, and its appearance in the context of a discussion
of injury caused by dumped imports under the section entitled " Conclusion sur les élém ents du
dommage", indicates that Maghreb Steel was forecasted to perform better than it actually did. 247

241 Panel Report, US – Hot-Rolled Steel, fn 152.
242 Turkey's first written submission, paras. 8.43-8.45.
243 Morocco's first written submission, para. 183.
244 The MDCCE's original statement in French is as follows:
d'un complexe de laminage à chaud comprenant deux laminoirs à chaud de bobines et de tôles
fortes, de capacités respectives d 'un million de tonnes et 500 000 tonnes, et d 'une aciérie
(Initiation report, (Exhibit TUR-2), p. 5).
245 The MDCCE's original statement in French is as follows:
L'analyse des indicateurs de dommage, ci -dessus, montre que MAGHEB [sic] STEEL rencontre
beaucoup de difficultés au cours des premières années de démarrage de son activité de laminage
à chaud.
(Initiation report, (Exhibit TUR-2), p. 11).
246 The statement in question set out in the report on the initiation of the investigation is as follows:
Les réalisations de MAGHREB STEEL en termes de production e t de ventes au cours des
de son projet d'investissement.
(Initiation report, (Exhibit TUR-2), p. 11).
report on the initiation of the investigation states that:
dans le plan d'affaires ayant justifié son investissement, le DCE considère qu 'il y a effectivement

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The "difficulties" faced by Maghreb Steel that the report of initiation of the investigation refers to,
reflect the norm in the hot -rolled steel industry, which belies Morocco's reliance on that reference,
as reflecting difficulties that companies generally faced in their first year after having started
production of hot-rolled steel. Therefore, we consider that the MDCCE's conclusion that the starting
up of production and the marketing of hot -rolled steel shee ts requires a lead time of more than
two years was not based on positive evidence.
7.166. Based on the foreg oing, we consider that the MDCCE did not properly find that Maghreb
Steel had produced hot-rolled steel for a period inadequate to consider it an established industry.
7.6.2.1.2 Whether the MDCCE did not properly assess the market share criterion in its
establishment analysis
7.167. In determining whether Maghreb Steel was established as an industry, the MDCCE declined
to consider Maghreb Steel 's share in total domestic consumption of the domestic like product that
the company had secured through its sales to th e merchant market, as well as certain transfers to
its captive market. The MDCCE did so after initially setting out "market share" as a relevant indicator
of establishment. The MDCCE did not take into consideration Maghreb Steel 's total market share
because it considered that the merchant market was the only market where imports could compete
with the domestic like product. 248 The MDCCE further rejected considering Maghreb Steel 's share
even in the merchant market on the basis that the company had secured tha t share through
loss-making sales, and therefore that market share could not be taken as indicating the
company's stability.249 For these reasons, the MDCCE decided not to rely on Maghreb Steel's market
share in determining whether the domestic industry was established.250 Turkey asserts that Maghreb
Steel had secured 70% of the total market, and 40% of the merchant market, for the domestic like
product in 2012. Morocco does not contest these figures.251
7.168. According to Turkey, the MDCCE offered no meaningful explanation for disregarding Maghreb
Steel's total market share in assessing whether the domestic industry was established. Turkey
argues that whether Maghreb Steel dedicated part of its production to captive consumption was
irrelevant to the issue of whether it was established.252 Morocco responds that the MDCCE did explain
that the merchant market was the only market where domestic products could compete with imports
and therefore the MDCCE considered it appropriate to focus on the merchant market for pur poses
of determining whether the domestic industry was established.253
7.169. We will first evaluate whether the MDCCE improperly disregarded Maghreb Steel 's total
market share in determining whether the company was established because that total market share
included Maghreb Steel's captive production.
7.6.2.1.2.1 Whether the MDCCE improperly disregarded Maghreb Steel 's total market
share
7.170. At the outset, we note that the MDCCE had undertaken to consider the market share of the
"domestic industry" for purposes of assessing whether the "domestic industry" was established. The
MDCCE sought to make this assessment within the broader context of its "determination of injury"
under Article 3, and particularly in order to ascertain whether the domestic industry had suffered
injury in the form of "material retardation of the establishment of the domestic industry".254 The

chaud et que par conséquent, MAGHREB STEEL a subi un d ommage au sens de l 'Article 3 de
l'Accord Antidumping.
(Initiation report, (Exhibit TUR-2), p. 11).
251 Turkey's first written submission, para. 8.50; Morocco's first written submission, paras. 185-189. We
note that Turkey also asserts that Maghreb Steel had secured a share of over 37% in the merchant market
in 2011. (Turkey's second written submission, para. 6.36; response to Panel question No. 8.8, para. 14).
Morocco rejects Turkey's assertion in this regard, and submits that Maghreb Steel's share in the merchant
market in 2011 stood at 24% instead. (Morocco's comments on Turkey's response to Panel's question No. 8.8).
252 Turkey's first written submission, paras. 8.51-8.52.
253 Morocco's first written submission, para. 186.
254 Final determination, (Exhibit TUR-11), paras. 68 and 111.

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term "domestic industry" within the context of an injury determination under Article 3, however, has
to be understood as meaning the domestic industry in totality, and does not distinguish between the
captive market and the merchant market. The Appellate Body has made it clear, in this regard, that
captive production may not be excluded from either the definition of the domestic industry or from
the injury analysis.255 In US – Hot-Rolled Steel, the Appellate Body explained that it follows clearly
from the definition of injury in footnote 9 to Article 3 of the Anti-Dumping Agreement that the focus
of the injury determination is the state of the "domestic industry", which, read in light of Article 4.1
of the Anti-Dumping Agreement, is the domestic industry in totality.256 The Appellate Body further
noted that while nothing in the Anti -Dumping Agreement prevents investigating authorities from
examining a domestic industry by part, sector or segment, Article 3.1 requires that such sectoral
examination be conducted in an "objective" manner. This requirement means that in cases where
investigating authorities examine one part of a domestic industry, they should, in principle, examine
in like manner all of the other parts that make up the industry, as well as examine the industry as
a whole. Alternatively, the investigating authorities should provide a satisfactory explanation as to
why it is not necessary to examine directly or specifically the other parts of the domestic industry.257
The Appellate Body reasoned that different parts of the domestic in dustry may exhibit different
economic performance within a particular period. To examine only the parts of an industry which
are performing poorly may result in highlighting the negative data in the poorly performing part
without drawing attention to the positive data in other parts of the industry.258
7.171. We agree with the Appellate Body 's reasoning, and consider that it also applies in the
particular context of the MDCCE 's establishment analysis. A determination of "material retardation
of the establishment of the domestic industry" under Article 3.1 would not be based on an "objective
examination", if an investigating authority found, as part of that determination, that the domestic
industry in question was unestablished , having examined only a part and not th e totality of that
domestic industry. In examining only one part of the domestic industry, the authority may well have
examined the part with less operational stability without also examining a part that was more
operationally stable, leading the authority to conclude that the industry is unestablished. Examining
the industry in totality, however, may have led the authority to reach a different conclusion regarding
the state of establishment of the industry.259 We therefore consider that an objective and unbiased
authority, in assessing the domestic industry 's market share for purposes of determining whether
that industry is established, would take into consideration the market share for both the captive and
merchant market segments, or alternatively, would give a satisfactory explanation for why it could
not do so. In the underlying investigation, the MDCCE failed to do either.
7.172. As noted in paragraph 7.167. , the MDCCE declined to consider Maghreb Steel's total market
share in assessing whether the domestic industry was established because it considered that the
merchant market was the only market where imports could compete with the domestic like
product.260 In a separate part of its final determination, the MDCCE explained that having examined
the data from the domestic industry, it considered that captive sales of hot -rolled steel did not
compete with imports for two reasons: First, captive production is transferred within Maghreb Steel
without any price being paid. According to the MDCCE, the absence of pricing in internal transactions
indicated that captive sales were not marketed under the same conditions as on the merchant
market. Second, the cold-rolled steel downstream unit of Maghreb Steel has practically stopped
purchasing hot-rolled steel sheet from independent suppliers since Maghreb Steel can itself produce
hot-rolled steel sheet. 261 Morocco argues that t hese reasons formed the basis for the
MDCCE's conclusion that Maghreb Steel's captive transfers of hot-rolled steel did not compete with
imports, and led the MDCCE to disregard the company's total market share.262
7.173. In our view, even if the MDCCE was correct that captive transfers of hot-rolled steel did not
compete with imports , an unbiased an d objective authority would not, for that reason alone,
disregard the domestic industry's captive transfers in assessing whether the domestic industry was
established. Recalling the MDCCE 's standard of stability of presence for purposes of examining

255 Appellate Body Report, US – Cotton Yarn, para. 102.
256 Appellate Body Report, US – Hot-Rolled Steel, para. 190.
257 Appellate Body Report, US – Hot-Rolled Steel, para. 204.
258 Appellate Body Report, US – Hot-Rolled Steel, para. 204.
259 We recall here that the MDCCE had sought to apply a standard of stability of presence for purposes
of examining whether Maghreb Steel was established.
262 Morocco's response to Panel question No. 4.12, para. 108.

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whether Maghreb Steel was established, we consider that a domestic industry may be established,
in the sense of having stable operations, even if it engages primarily in captive transfers. Indeed,
the McLellan report, upon which the MDCCE had relied in its findings in the investigation, had
concluded that almost half of Maghreb Steel's production, which was directed to the captive market,
had access to "un marché garanti" (a guaranteed market) and would therefore hold " bonnes
perspectives commerciales" (good commercial prospects) for the domestic industry.263 In our view,
an unbiased and objective investigating authority, in analysing the market share of the domestic
industry for purposes of determining the stability of its operations, would not disregard a guaranteed
market which accounted for half of that industry 's production. This was because, as the McLellan
report itself recognized, the fact that the captive market was guaranteed held good commercial
prospects for the domestic industry, which in turn, poi nted to the overall viability – and therefore
stability – of the domestic industry.
7.174. Furthermore, even if we were to accept the MDCCE 's reasoning that it is the domestic
industry's presence in the merchant market which determines whether that industry is established,
in our view, a domestic industry may be willing to divert "captive sales" to the "merchant market" if
it is more profitable for it to do so. Maghreb Steel had secured 70% of the total market in Morocco
for hot-rolled steel towards the end of the injury period. Even if a certain percentage of that share
was dedicated to the captive market, an unbiased and objective authority would have questioned
whether Maghreb Steel had the option to, if it wished, divert some or all of its captive production to
the merchant market. Particularly in the context of assessing whether Maghreb Steel was an
established industry, it was relevant for the MDCCE to have considered that it may well be easier for
a company currently making "captive sales" of a product to enter the merchant market than it would
be for a company with no production of that product. The MDCCE, however, did not do so.
7.175. Therefore, we consider that the MDCCE did not act objectively in concluding that it could not
consider Maghreb Steel's total market share of hot-rolled steel in its establishment analysis because
that share consisted of captive transfers of hot-rolled steel.
7.176. We recall further that the MDCCE, in assessing whether the domestic industry was
established, rejected considering even Maghreb Steel's market share in respect of its merchant
market sales, on the basis that those sales were made at a loss. We will next evaluate the
MDCCE's basis for not considering Maghreb Steel's merchant market share in assessing whether the
domestic industry was established.
7.6.2.1.2.2 Whether the MDCCE improperly rejected Maghreb Steel 's share in the
merchant market
7.177. Turkey argues that the MDCCE 's conclusion that Maghreb Steel 's share in the merchant
market did not indicate stability because Maghreb Steel made its sales to that market at a loss, was
flawed. In particular, Turkey contends that the MDCCE did not substantiate with positive evidence
on the record its assertion that those sales were made at a loss.264 Further, in dismissing Maghreb
Steel's merchant market share in its analysis of establishment, the MDCCE extrapolated its finding
that sales in 2012 were made at a loss to apply to the full injury period.265 Morocco responds that
because the MDCCE noted that sales were made at a loss in the context of addressing the year 2012
does not mean that the MDCCE's finding regarding sales at a loss was made solely for 2012. In this
regard, Morocco refers to certain statements in the final determination, where the MDCCE addressed
the sales made at a loss without reference to a specific year.266
7.178. We note that the MDCCE, in referring in its final determination to Maghreb
Steel's loss-making sales as a basis for not considering Maghreb Steel's merchant market share, did
not expressly refer to any evidence to substantiate its conclusion that those sales were made at a
loss.267 The MDCCE also did not specify which year(s) in the injury period the company had incurred
those losses. Turkey asserts that in certain parts of its final determination the MDCCE stated that

264 Turkey's opening statement at the first meeting of the Panel, para. 4.4.
265 Turkey's second written submission, para. 6.40.
266 Morocco's opening statement at the second meeting of the Panel, para. 83 (referring to Final
determination, (Exhibit TUR-11), paras. 95 and 180).

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sales at a loss occurred only in 2012.268 In particular, Turkey refers to the MDCCE's statement below,
in the context of the MDCCE's analysis of the volume of dumped imports:
Over the period 2010-2012, even if the share of imports declined by 13%, it still always
remained above non -negligible levels, and still held more than half of the merchant
market in 2012 (57.34%). It should also be recalled that Maghreb Steel's market share
in 2012 was only obtained thanks to below-cost sales.269
7.179. We note that the above statement indicates that although the MDCCE assessed the trend in
the share of imports over the entire period 2010 -2012, in noting that Maghreb Steel had secured
market share only due to sales at losses, the MDCCE referred only to 2012.
7.180. Turkey further asserts that in analyzing Maghreb Steel 's sales volumes in its final
determination, the MDCCE stated:
It should be pointed out that almost all the sales in 2012 were made at a loss (99%).270
7.181. We note that the above statement indicates that the MDCCE, once again, referred only to
losses in 2012 and not in the remaining period of investigation. Turkey argues that the above
statements indicate that the MDCCE extrapolated its finding that sales in 2012 were made at a loss
to apply to the full injury period.271
7.182. We consider that while these statements do not conclusively indicate that the MDCCE, as
Turkey argues, extrapolated its finding that sales in 2012 were made at a loss to apply to the full
injury period, they do rais e a doubt as to whether the MDCCE found that Maghreb Steel incurred
losses only in 2012 or also in the rest of the injury period. We note, in particular, that there is no
determination by the MDCCE that sales to the merchant market were made at a loss in 2 010
and 2011.
7.183. In this regard , Morocco posits that the fact that the sales were made at a loss is
demonstrated by Maghreb Steel's failure to reach its break-even threshold.272 In particular, Morocco
points to the MDCCE's statement that Maghreb Steel's production in 2012 represented barely 63%
of its break-even point, which left the company far from a level where it would not realize a loss.273
Morocco further asserts that the MDCCE had explained in its determinations that Maghreb Steel had
"never" met its break-even threshold, and points to Maghreb Steel 's questionnaire response as
support for this conclusion. Morocco submits that as the record evidence demonstrated that Maghreb
Steel had never met its break -even threshold, the MDCCE properly concluded tha t its sales were
made at a loss.274
7.184. We agree with Turkey , however, that nothing in the MDCCE 's record demonstrates that
Maghreb Steel's failure to meet its break-even threshold meant that the company 's sales incurred
losses.275 The MDCCE did not explain, either in its determination or elsewhere in the record of the
underlying investigation, how it had arrived at Maghreb Steel's break-even threshold: in particular,
it remains unclear what price the MDCCE assigned to transfers of hot -rolled steel to the capt ive
market in Morocco. Without that information, we have no basis to conclude that Maghreb

268 Turkey's second written submission, para. 6.38.
269 The MDCCE's original statement in French is as follows:
en 2012 n'a été possible que grâce à des ventes à perte.
270 The MDCCE's original statement in French is as follows: "[i]l est à préciser que la quasi-totalité des
ventes de 2012 été faite à perte (99%)". (Final determination, (Exhibit TUR-11), para. 176).
271 Turkey's second written submission, para. 6.40.
273 Morocco's second written submission, para. 148 (referring to Preliminary determination,
274 Morocco's response to Panel question No. 4.17, para. 119 (referring to Preliminary determination,
(Exhibit TUR-6), paras. 86-87 and Final determination, (Exhibit TUR-11), para. 100).
275 Turkey's second written submission, paras. 6.43-6.44.

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Steel's failure to meet the break-even threshold meant that the company had incurred a loss in any
year of the injury period, including 2012.
7.185. The MDCCE understood a company to meet its break-even threshold when its total revenue
equals its total costs.276 However, in Maghreb Steel's case, at least part of the company's production
of hot -rolled steel could not have brought revenue because the MDCCE had found that it was
transferred to the captive market free of charge.277 That being the case, the question arises whether,
in determining whether Maghreb Steel 's total costs were equal to its total revenue, the MDCCE
compared the company's total costs, which included the cost of producing the domestic like product
that the company transferred to its captive market and that which it sold to the merchant market,
with revenue only from the sales to the merchant market, as those were the only revenue -making
sales. In such comparison, the cost side of the equation would be incongruent with the revenue side
because the cost of production pertains to the cost of Maghreb Steel 's total production but the
revenue pertains to only part of its production . As Turkey argues, such comparison w ould yield
unreasonable results.278 Morocco contends, however, that the break-even threshold did consider the
revenues from Maghreb Steel 's total production. 279 Morocco asserts , in particular, that Maghreb
Steel's questionnaire response states clearly that in determining whether the company had met its
break-even threshold, the company took into account "les ventes intersites" (transfers to the captive
market). Morocco further asserts that the MDCCE had relied upon Maghreb Steel 's questionnaire
response in determining that the company had not met its break-even threshold.280
7.186. We note, at the outset, that the contents of Maghreb Steel's questionnaire response do not
amount to a determination by the MDCCE. Nor does the MDCCE 's determination clearly show that
the MDCCE relied on that questionnaire response in determining that Maghreb Steel had not met its
break-even threshold. The MDCCE in its determination simply refers to "[d]onnées collectées auprès
de Maghreb Steel" (data from Maghreb Steel ) as a source for in formation on the
company's break-even threshold, without specifically referring to the company 's questionnaire
response.281 We consider however that, even if we were to accept Morocco's assertion that Maghreb
Steel's questionnaire response serves as evidence that the MDCCE did, in calculating total revenue,
include transfers to the captive market in terms of volume of production transferred, the record does
not indicate the price which the MDCCE assigned to those transfers in order to arrive at the revenue.
This is particularly puzzling considering the MDCCE 's statement in its determination that those
transfers to the captive market were made without a price.282 In our view, the price assigned to the
transfers was critical in determining revenue earned because revenue is a function of price. The total
revenue would be lower, higher or equal to the total cost, depending on the price assigned to the
transfers, therefore having a direct bearing on whether the MDCCE would consider Maghreb Steel to
have met its break-even threshold.
7.187. Morocco asserts that a "hypothetical price" was assigned to the transfers to the captive
market, which was equivalent to the market price. 283 We consider, however, that nothing in the
MDCCE's determination or record shows that the MDCCE, or even Maghreb Steel, had assigned such
a "hypothetical price" to those transfers in arriving at the total revenue for the domestic like product.
In response to the Panel 's question asking Morocco to identify record evidence showing that the
MDCCE had assigne d a "hypothetical price" to captive transfers, Morocco points to the "[p]rix de
vente unitaire" (unit price), set out in certain tables pertaining to "Détail du calcul du seuil de
rentabilité et point mort"284 in Maghreb Steel's questionnaire response. Morocco submits that these
tables indicate the "[p]rix de vente unitaire" (unit price) without differentiating between the captive
or merchant markets. Morocco further asserts that below the tables, Maghreb Steel explains that

277 Final determination, (Exhibit TUR-11), paras. 110 and 138. Further, Morocco has not presented any
evidence to show that any revenue was attributed to these transfers in Maghreb Steel's books. Indeed,
Morocco confirms that Maghreb Steel's hot-rolled steel production branch did not charge for the transfer of
hot-rolled steel to the cold-rolled steel branch. (Morocco's response to Panel question No. 9.8, para. 70).
278 Turkey's opening statement at the first meeting of the Panel, para. 4.5.
279 Morocco's second written submission, paras. 153-154.
280 Morocco's second written submission, para. 155.
281 Preliminary determination, (Exhibit TUR-6), para. 86 and table 2.
283 Morocco's second written submission, para. 157.
284 "Details of the calculation of the profitability threshold and break-even point".

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"[t]he break-even threshold in 2012 amounts to around [] tons against real sales (including internal
sales) of [] tons", and that internal transfers were thus included in this calculation.285
7.188. We consider however, that nothing in the term "[p]rix de vente unitair e" (unit price), or in
the explanation following the table indicating that the "ventes réelles" (real sales) included "les
ventes intersites" (internal sales), establishes either that Maghreb steel had assigned a "hypothetical
price" to captive transfers, or that that hypothetical price was equivalent to the market price. We
cannot assume, in the absence of a finding by the MDCCE, that the "[p]rix de vente unitaire" (unit
price) was applicable also to Maghreb Steel 's captive transfers, particularly in light of the
MDCCE's finding that these transfers were made without a price. In light of that finding, if such a
hypothetical price had been applied to the captive transfers, the application of that price should have
been clear from the MDCCE's determination. Given Morocco 's failure to identify in the
MDCCE's determination any express and clear reference to the price assigned to captive transfers,
we reject Morocco's argument in this regard as ex post rationalization, and conclude that the record
evidence does not show that the MDCCE's conclusion that Maghreb Steel had not met its break-even
threshold was based on positive evidence. Because there was inadequate evidence on the record to
support the MDCCE 's conclusion that Maghreb Steel had failed to meet its bre ak-even threshold,
that unfounded conclusion could not have served as a proper basis for finding that the company had
sold to the merchant market at a loss.
7.189. Further, even if there was evidence on the MDCCE 's record that Maghreb Steel had sold to
the merchant market at a loss, that fact in itself would not have justified disregarding the domestic
industry's market share in assessing whether the industry was est ablished. Turkey asserts that
a 40% merchant market share is indicative of establishment, as the f act that Maghreb Steel
succeeded in securing 40% of merchant sales with respect to a product that used to be totally
imported prior to 2009, is because the company had well -established selling and distribution
channels in the market place.286
7.190. In considering the issue of establishment in the context of the stability of an
industry's presence, an objective and impartial investigating authority would be expected to consider
whether an industry 's ability to capture as much as 40% of the merchant market , even thr ough
selling at a loss, nevertheless indicates that the presence of that industry is sufficiently stabilized.
In our view, once a certain share of the market is secured, the fact that sales are made at a loss
does not necessarily preclude a determination t hat the presence of an industry is sufficiently
stabilized for that industry to be established (in which case the sales at a loss would be considered
in the context of an assessment of material injury). On the one hand, sales at a loss may not be
sustainable, and therefore indicative of a lack of stability. On the other hand, the fact that an industry
accounts for as much as 40% of the merchant market might suggest stability in the sense of
established selling operations, market presence, and client base. These latter considerations may be
particularly relevant given the MDCCE 's finding that the marketing of steel products involves
particular time frames owing to the difficulties inherent in the commercial negotiations, long delivery
lead times, and transportation, among others.287 These are but some of the issues that an objective
examination by the MDCCE might have addressed.
7.191. For the foregoing reasons, we consider that the MDCCE did not act objectively in dismissing
Maghreb Steel 's merchant market shar e based on the reasoning that the company 's sales were
allegedly made at a loss. We consider that the MDCCE improperly dismissed Maghreb Steel 's total
market share in assessing whether the domestic industry was established. Further, we conclude that
the MDCCE improperly disregarded Maghreb Steel's merchant market share.

285 The original statement of the MDCCE is as follows: "[l]e point mort en tonnes en 2012 s'élève à
environ [] T contre des ventes réelles (y compris les ventes intersites) de [] T". (Morocco's response to Panel
question No. 9.11, paras. 77-78 (quoting Excerpt from Maghreb Steel's questionnaire response, section G,
(Exhibit MAR-8), p. 9)).
286 Turkey's first written submission, para. 8.52.

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7.6.2.1.3 Whether the MDCCE in its establishment analysis did not properly conclude that
Maghreb Steel had not met its break-even threshold
7.192. For the reasons discussed in paragraphs 7.183. -7.188. above we consider that the
MDCCE's determination does not show that its conclusion that Maghreb Steel had not met its
break-even threshold was based on positive evidence.
7.193. Further, we note that contrary to Morocco 's assertion that Maghreb Steel had "never" met
its break-even threshold288, Turkey argues that the MDCCE's determination does not demonstrate
that the MDCCE had assessed whether the company had failed to meet its break -even threshold
throughout the injury period . Turkey contends that the MDCCE improperly based its finding that
Maghreb Steel had not met the break -even threshold on a comparison between only the level of
production in 2012 and the break -even threshold.289 In its preliminary determination, the MDCCE
specified that Maghreb Steel's production in 2012 amounted to barely 63% of its break-even point
under normal market conditions. 290 The MDCCE noted further that, based on that information, it
must be concluded that Maghreb Steel had not yet reached its break-even point.291 Turkey argues
that these statements of the MDCCE show that the MDCCE took into account only the data pertaining
to 2012 to assess whether Maghreb Steel's production had reached the break-even threshold.292 We
consider that these statements of the MDCCE do not conclusively show that the MDCCE had assessed
whether Maghreb Steel had failed to meet its break-even threshold in each year of the injury period.
7.194. Morocco points to the MDCCE's statement in its final determination that Maghreb Steel "is
far from having reached its break -even point"293, as evidence of a general finding by the authority
that Maghreb Steel had not reached its break-even threshold.294 That statement, however, does not
specify the particular years in which Maghreb Steel failed to reach its break -even threshold and ,
therefore, also does not conclusively show that the MDCCE had assessed whether Maghreb Steel
had failed to meet its break-even threshold in each year of the injury period. Further, we recall that
Morocco submits that the MDCCE 's finding that Maghreb Steel had never met the break -even
threshold was based on Maghreb Steel 's questionnaire response. Maghreb Steel 's questionnaire
response, however, does not provide a break-even threshold for the years 2010 and 2011. 295 This
indicates that the MDCCE could not have assessed whether Maghreb Steel had failed to meet its
break-even threshold for the years 2010 and 2011, and objectively concluded, solely on the basis
of the data provided for 2012, that Maghreb Steel had faile d to meet its break -even threshold
throughout the injury period.
7.195. We further recall that Morocco has confirmed in these proceedings that the break -even
threshold was calculated only for 2012.296 In light of that fact, we fail to comprehend how the MDCCE
could have assessed whether Maghreb Steel had failed to meet its break-even threshold throughout
the injury period.
7.196. In this regard, w e understand Morocco to contend that comparing Maghreb
Steel's break-even threshold, set out in table 2 of the MDCCE's preliminary determination, with the

288 Morocco's response to Panel question No. 4.17, para. 119 (referring to Preliminary determination,
(Exhibit TUR-6), paras. 86-87; and Final determination, (Exhibit TUR-11), para. 100).
289 Turkey's first written submission, para. 8.61 (referring to Preliminary determination, (Exhibit TUR-6),
292 Turkey's second written submission, para. 6.62.
293 The MDCCE's original statement in French is as follows: "[M]aghreb Steel est encore loin d'avoir
(Exhibit TUR-11), para. 100).
294 Morocco's response to Panel question No. 8.9(a), para. 49 (referring to Final determination,
(Exhibit TUR-11), para. 100).
295 We note that Morocco has confirmed, in response to our questions, that Maghreb
Steel's questionnaire response provides the break-even threshold only for 2012. (Morocco's response to Panel
question No. 8.9(b), para. 50 (referring to Excerpt from Maghreb Steel's questionnaire response, section G,
(Exhibit MAR-8), p. 8)). Maghreb Steel's questionnaire response sets out a "0" (zero) with respect to the
break-even threshold for 2010 and 2011. Morocco submits that the "0" refers to the fact that Maghreb Steel
calculated only one break-even threshold, and did not calculate separate thresholds for 2010 and 2011.
(Morocco's response to Panel question No. 8.9(c), para. 51).
296 Morocco's responses to Panel question No. 8.9(b), para. 50 (referring to Excerpt from Maghreb
Steel's questionnaire response, section G, (Exhibit MAR-8), p. 8); and No. 8.9(c), para. 51.

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indexed actual production volumes in 2010 and 2011, set out in table 7 of the MDCCE's preliminary
determination, shows that Maghreb Steel failed to meet the break -even threshold in 2010
and 2011.297 Turkey argues in response that table 2, based on Morocco's own submission, is based
on Maghreb Steel's questionnaire response, which provides the break-even threshold only for 2012.
Therefore table 2 does not support Morocco's arguments that the MDCCE assessed the break -even
threshold for the whole injury period. Further, table 7 provides data on production volume only,
while the break-even threshold was derived from a comparison of the totality of revenues against
the totality of costs. Turkey contends that it remains unclear from table 7 how it is possible to derive
the break-even threshold from information on production volumes only.298
7.197. Morocco's arguments fail to persuade us. Morocco's position is based on conclusions drawn
from piecing together distinct elements of the MDCCE's preliminary determination, without any
indication that such exercise was actually undertaken by the MDCCE. Further, even if such analysis
was undertaken by the MDCCE, it would not provide a proper assessment of Maghreb
Steel's break-even threshold for 2010 and 2011. As noted, Morocco has confirmed that the
break-even threshold was calculat ed only for 2012. 299 Morocco has failed to demonstrate how the
actual production volumes in 2010 and 2011 respectively can be compared with the break -even
threshold calculated for 2012, a different year, to show that Maghreb Steel failed to break even, and
suffered losses, in 2010 and 2011. Considering that the MDCCE understood a company to meet its
break-even threshold when its total revenue equals its total costs300, and given that costs and selling
prices may vary across different years, Morocco has not presented us with any basis in the
MDCCE's determination to conclude that the break-even threshold calculated for 2012 served as an
appropriate benchmark against whic h to assess whether Maghreb Steel broke even in 2010
and 2011. Absent such demonstration and in order to meaningfully assess whether or not a company
had broken even in a particular year, an unbiased and objective authority would not compare a
company's actual volumes sold in that year to the break-even threshold for another year, where that
break-even threshold is calculated on the basis of cost and selling price data for that other year.
7.198. As Morocco did not identify on the record evidence based on which the MDCCE found that
Maghreb Steel had not met its break-even threshold throughout the injury period, we consider that
the MDCCE improperly made that finding.
7.6.2.1.4 Whether the MDCCE did not properly assess the production stability criterion in
its establishment analysis
7.199. In the underlying investigation, the MDCCE assessed Maghreb Steel 's monthly production
data for the domestic like product over the period 2010-2012, to find that the company's production
had fluctuated significantly month -on-month, reaching as m uch as 60% of production from one
month to the next, and had completely stopped in February 2012 .301 The MDCCE concluded that
sharp and significant variations in Maghreb Steel 's monthly production over the injury period
indicated that the company's production had not stabilized. The MDCCE reached this conclusion even
though Maghreb Steel's production had increased from 2010 to 2012.302

297 Morocco submits that Maghreb Steel's failure to meet its break-even threshold in all three years of
the injury period, including 2010 and 2011, is evident from tables 2 and 7 read together with paragraph 87 of
the MDCCE's preliminary determination. Table 2 sets out Maghreb Steel's break-even threshold, in terms of
volume of production. Table 7 provides Maghreb Steel's actual production levels for 2010, 2011, and 2012.
Paragraph 87 sets out, in relevant part, the MDCCE's finding that Maghreb Steel's production in 2012
represented barely 63% of its break-even point. Morocco argues that as the production in 2010 was
significantly lower than in 2012, table 7 read together with paragraph 87 shows that the profitability threshold
was not met in 2010. Although production in 2011 was higher than in 2010, reading table 7 together with
paragraph 87 shows that the difference in production volumes between 2011 and 2012 was not sufficient to
overcome the 63% shortfall between actual production and the profitability threshold identified in
paragraph 87. (Morocco's response to Panel question No. 8.9(a), para. 48).
298 Turkey's comments on Morocco's response to Panel question No. 8.9(a).
299 Morocco's response to Panel question No. 8.9(b), para. 50 (referring to Excerpt from Maghreb
Steel's questionnaire response, section G, (Exhibit MAR-8), p. 8), and No. 8.9(c), para. 51.
302 Final determination, (Exhibit TUR-11), paras. 102-104; Preliminary determination, (Exhibit TUR-6),
paras. 90-91. Turkey asserts that the monthly average production in 2010, 2011, and 2012 was well above the
starting point. (Turkey's response to Panel question No. 4.18, para. 140). Morocco does not contest this
assertion.

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7.200. Turkey argues that some monthly fluctuation in the production of hot -rolled steel is
expected, considering the nature of that product and the variations of demand for it, as is confirmed
by the variations in the volumes of hot-rolled steel imports over the injury period.303 Turkey further
asserts that Maghreb Steel's production of hot -rolled steel fluctuated within a "reasonable range"
during the months within the period June 2010-2012 because these fluctuations, when viewed on
the basis of average monthly production, were in line with global and domestic demand and prices.304
Turkey also observes that, even in difficult eco nomic times affecting the global steel industry,
Maghreb Steel was able to increase its domestic sales by 9.3% to the detriment of imports.305
7.201. Morocco contends in response that neither footnote 9, assuming it requires a determination
of establishment, nor Article 3.4 of the Anti -Dumping Agreement, required the MDCCE to inquire
into factors such as demand and other market conditions in the context of assessing whether the
domestic industry was established. This was because these "other factors" were non -attribution
factors, which an investigating authority must evaluate while analysing the causation of injury under
Article 3.5 of the Anti -Dumping Agreement, and Turkey has not brought a claim under that
provision.306 Morocco also argues that the Anti -Dumping Agreement does not require a
determination of non -establishment to include an assessment of trends in the volume of imports
(other than the analysis of the volume of dumped imports contemplated in Article 3.2).307
7.202. We recall that in the underlying investigat ion the MDCCE had examined Maghreb
Steel's stability of production as one of the criteria for determining whether the domestic industry
was established. We accept that the question of stability of production has an important bearing on
the broader question of whether or not the operations of an industry are sufficiently stabilized to
consider that industry as being established. That said, the stability of production must be viewed in
light of the industry at issue and the prevailing market conditions 308, for even a well -established
industry of long standing will not be able to maintain stable production when the prevailing market
conditions, or the cyclical nature of an industry, do not allow it. In this regard, we note that Morocco
does not respond to Turkey 's specific argument that the variations in monthly average production
were in line with the variations in Morocco's demand for hot-rolled steel over the 2010-2012 period,
and that imports over that period experienced similar variability. Nor does Morocco r espond to
Turkey's specific argument that any fluctuations in production should also be viewed in light of
Maghreb Steel's ability to increase its domestic sales by 9.3% over the same period. An objec tive
and impartial investigatin g authority would weigh a ny instability suggested by production
fluctuations against variability in the prevailing market conditions, as evidenced on the record, and
against the broader operational stability suggested by the increase in sales.
7.203. Rather than addressing the substance of Turkey's arguments, Morocco contends that "if the
issue is whether the trend in imports is a reason why domestic production did not stabilize", this
would be precisely the kind of non-attribution analysis contemplated in Article 3.5. Morocco asserts
that the MDCCE did assess the trends of the import volumes and their effect on Maghreb
Steel's production levels in its causation analysis, and refers to certain statements pertaining to the
trend in volume of dumped imports that the MDCCE made in that context.309
7.204. The issue here however is not whether the MDCCE examined whether the trend in imports
was a reason why domestic production did not stabilize. The issue, instead, is whether the MDCCE
assessed the trend in import volumes of hot -rolled steel to ascertai n whether imports underwent
fluctuations similar to those experienced in respect of Maghreb Steel's production, so as to analyse
the perceived lack of stability in Maghreb Steel's production in its proper context. In our view, import
fluctuations, as evidenced on the record, would be an important element to assess whether the
industry's production fluctuations were a reflection of the market conditions. We therefore reject
Morocco's argument in this regard.

303 Turkey's opening statement at the first meeting of the Panel, para. 4.9.
304 Turkey's second written submission, para. 6.73; response to Panel question No. 4.18(b),
paras. 144-147 (referring to Preliminary determination, (Exhibit TUR-6), p. 103 and table 5; and Maghreb
Steel's financial report 2012, (Exhibit TUR-51), pp. 47, 56, and 60).
305 Turkey's second written submission, para. 6.73; response to Panel question No. 4.18(b), para. 149.
306 Morocco's response to Panel question No. 4.16(c), paras. 115-117.
307 Morocco's response to Panel question No. 8.3, para. 26.
308 In respect of captive production, it may also be necessary to consider any variability in light of
variability in upstream operations.
309 Morocco's response to Panel question No. 8.3, paras. 28-31.

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7.205. We note further that Turkey asserts that at least one interested party had argued before the
MDCCE, during the investigation, that the monthly fluctuation in Maghreb Steel 's production of
hot-rolled steel simply reflected the evolution of demand, among certain other constraints (prices of
raw materials, maintenance of facilities et al).310 Morocco contends in response that the MDCCE did
address that argument by stating in the context of its causation analysis that it had not found any
correlation between the evolution of domestic demand and injury suffered by Maghreb Steel.311
7.206. We consider that at issue here is whether the MDCCE assessed the relationship between,
among others, domestic demand and, specifically, the fluctuations in Maghreb Steel's production of
hot-rolled steel, rather than between domestic demand and injury to Maghreb Steel.312 We therefore
reject Morocco's argument that suggests that, in assessing the correlation between the evolution of
domestic demand and injury suffered by Maghreb Steel, the MDCCE also analysed the relationship
between domestic demand and fluctuations in Maghreb Steel 's hot-rolled steel production. Nothing
in the record indicates that the MDCCE undertook the latter analysis.
7.207. We therefore consider that the MDCCE did not properly conclude that Maghreb
Steel's production was unstable.
7.6.2.1.5 Whether the MDCCE did not properly assess the "new industry" criterion in its
establishment analysis313
7.208. In assessing whether Maghreb Steel was a "new" and therefore unestablished industry, the
MDCCE noted that international practice distinguishes between cases where an industry expands its
activities by introducing a new product line alongside old ones, and those where the industry
concerned invests in the creation of a new industry.314 In this regard, the MDCCE referred, among

310 Turkey's response to Panel question No. 4.18(c), para. 150 (quoting Maghreb Steel's financial
report 2012, (Exhibit TUR-51), p. 53).
311 Morocco's response to Panel question No. 4.16(b), paras. 113-114.
312 In a similar vein, the Appellate Body noted, in the context of the price effects analysis under
Article 3.2 of the Anti-Dumping Agreement, that an investigating authority may not disregard evidence
regarding elements that call into question the "explanatory force" of dumped imports for significant price
suppression. The Appellate Body stated:
The inquiry into whether dumped imports have "explanatory force" for significant suppression of
domestic prices under Article 3.2 of the Anti -Dumping Agreement is distinct from the injury
causation and non-attribution analysis under Article 3.5 of the Anti-Dumping Agreement. While the
assessments under both Article 3.2 and 3.5 are interlinked elements of the single, overall injury
analysis, the inquiry into each provision has a distinct focus. The analysis under Article 3.2 focuses
on the relationship between dumped imports and domestic prices. In contrast, the analysis under
Article 3.5 focuses on the causal relationship between dumped imports and injury to the domestic
industry.
…
The examination under Article 3.5, by definitio n, covers a distinct and broader scope than the
scope of the elements considered in relation to price suppression under Article 3.2.
(Appellate Body Report, Russia – Commercial Vehicles, paras. 5.53-5.54 (referring to Appellate Body Reports,
China – GOES, paras. 136, 147, and 152; and China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.141)
(emphasis original; fns omitted)).
313 In response to the Panel's question, the parties commented on the relevance of the Ad Note to
Article XVIII of the GATT 1994 in interpreting the term "establishment" in Article VI:6(a) of the GATT 1994 and
footnote 9 to the Anti-Dumping Agreement. Turkey argues that the Ad Note to Article XVIII has limited
relevance for purposes of the present dispute as Article XVIII is available exclusively to developing country
Members. (Turkey's response to Panel question No. 8.10, paras. 16-17). Morocco does not dispute that
Article XVIII is only available to developing country Members, but argues that it is capable of providing
contextual interpretive guidance. (Morocco's comments on Turkey's response to Panel question No. 8.10,
para. 18). We see no basis for interpreting the term "establishment" under Article VI:6(a) of the GATT 1994
and footnote 9 to the Anti-Dumping Agreement in terms of the clarification in the Ad Note to Article XVIII of
the GATT 1994 pertaining to "the establishment of particular industries". That clarification was developed, and
would apply, in the specific context of "the establishment of particular industries", with a view to securing
economic development in certain limited types of economies. In contrast, Article VI:6(a) and footnote 9 to the
Anti-Dumping Agreement, and any requirements therein regarding the determination of injury in the form of
material retardation of the establishment of the domestic industry, apply equally to all Members.
314 The MDCCE's original statement in French is as follows:
de déterminer si une industrie est établie, les autorités internationales distinguent deux cas de

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others, to the United States International Trade Commission 's (USITC) decision in Lime Oil from
Peru. In that case, the USITC found tha t unlike a new entrant, the petitioner (domestic industry)
had been in the business of selling lime oil for years and could utilize existing customer contacts and
distribution infrastructure in introducing distilled lime oil. The USITC found that rather th an
establishing an industry, the petitioner was introducing a new product line which has established a
stable presence in the market.315 The question of whether a new industry is being created, or merely
a new product line introduced, is relevant, for the in troduction of a new product line presupposes
that the industry introducing that line is already established.
7.209. The MDCCE dismissed an interested party's argument that Maghreb Steel had, in beginning
to produce hot-rolled steel sheet, simply added a new product line to an already established domestic
industry. The MDCCE dismissed that argument based on the reasoning that the absence of
production of a like product in the domestic market indicated the existence of a "new industry".316
In other words, as there wer e no competitors producing products like hot -rolled steel sheet in
Morocco, the beginning of production of hot -rolled steel sheet by Maghreb Steel constituted the
creation of a new industry. The MDCCE further stated that the same conclusion could be reached on
the basis of factors, such as the physical separation of the production centres, the scale of
investment made, or the different client networks and distribution channels.317 The MDCCE cited to
an academic paper as support for this conclusion.318 The MDCCE did not elaborate further on its
conclusions.
7.210. We recall that in concluding that Maghreb Steel should be regarded as a "new" industry
because there was no pre-existing production of a like product, the MDCCE was assessing whether
Maghreb Steel's hot-rolled unit was a "new" industry for purposes of determining whether Maghreb
Steel's hot-rolled unit was established. Morocco argues that in concluding that Maghreb Steel was a
new industry, the MDCCE relied not only on the absence of competitors in the market, but also
considered the physical separation of production facilities of hot-rolled and cold-rolled steel, the size
of investment undertaken by Maghreb Steel, and the different networks of clients and distribution
channels.319 Turkey contends in response that the MDCCE failed to provide, in light of evidence on
the record, any reasoned or adequate explanation of these three factors. 320 We must therefore
examine the basis of the MDCCE's conclusions in regard to each of these factors.
7.211. We note, at the outset, that we do not pronounce ourselves on these factors or whether they
are either prescriptive or definitive for determining whether the domestic industry is unestablished.
We accept that a relevant factor may be whether the domestic industry is the only producer of the
like product in question in the market. At the same time, we note that whilst there could be only
one producer of that product in the market, where that product constitutes merely a new "product
line" of an existing industry and benefits from the e xisting production, marketing and other
operations, such shared operations may play an important role in determining whether a distinct
new industry has been established. If an existing industry chooses to introduce a new product unlike
any other product currently being produced, the introduction of that new product will not necessarily
result in the creation of a new industry. It may still be perceived as the introduction of a new product
line into the existing industry, depending on the degree to which the overall infrastructure (including
the productive, commercial, research , and administrative assets) of the existing industry is
implicated. The greater the degree of overlap in the use of overall infrastructure, the less likely the
perception that the introduction of the new product marks the establishment of a new industry. The
fact that a domestic industry is defined by Article 4.1 of the Anti-Dumping Agreement by reference
to like product , and that there are no pre -existing producers of that like produc t in the domestic
market, does not preclude the possibility of that domes tic industry utilizing existing infrastructure,

(Final determination, (Exhibit TUR-11), para. 105 (fn omitted)).
315 Excerpt from USITC's preliminary determination on Lime Oil from Peru, (Exhibit TUR-48), fn 19.
316 Final determination, (Exhibit TUR-11), paras. 106-107.
317 Final determination, (Exhibit TUR-11), paras. 108-109.
318 Final determination, (Exhibit TUR-11), fn 51 (referring to Dong Woo S, "Material retardation standard
in the US antidumping law", Law and Policy in international business, Harvard Law School (1992)).
319 Morocco's second written submission, para. 166.
320 Turkey's first written submission, paras. 8.77 and 8.80.

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such as customer contacts and distribution channels, in its introduction of that like product in the
domestic market.321
7.212. Recalling Moroc co's argument322 that the MDCCE did not rely solely on the absence of
pre-existing production of hot -rolled steel in Morocco in finding that Maghreb Steel was a new
industry, but did consider certain additional factors in making that finding, we now turn to evaluate
the MDCCE's consideration of those factors.
7.213. Morocco argues that in concluding that Maghreb Steel was a new industry, the MDCCE also
considered the physical separation of Maghreb Steel 's production facilities for hot-rolled and
cold-rolled steel . Morocco further asserts 323 that the MDCCE 's finding as regards the physical
separation of production facilities found support in the report on the initiation of the investigation,
which provided that:
In 2010, the company MAGHREB STEEL undertook a major inve stment to build a
hot-rolling complex comprising two hot-rolling mills for the production of coil and thick
sheet, with capacities of one million tonnes and 500,000 tonnes, respectively, and an
electric steel plant with a capacity of one million tonnes.324
7.214. In our view, this statement could be construed to indicate that Maghreb Steel had
constructed a separate facility for producing hot-rolled steel. However, whilst a separate production
facility may play an important role in determining whether a new industry has been established, we
note at the same time that a company may well establish a production facility, separate from its
other production facilities, even for the production of a new product line. The MDCCE did not provide
any reasoning as to why the creation of a separate production facility would necessarily indicate that
the hot-rolled steel unit was a new industry rather than a new product line.
7.215. Morocco identifies the same statement in the report on the initiation of the investigation,
referred to in paragraph 7.213. above, as support for the MDCCE's finding as regards the size of
investment.325 Morocco also submits326 that the statement below sh ows that the MDCCE took into
consideration that the production of hot-rolled steel required two major investments:
[P]rior to making two such large investments, one of DH1.6 billion to develop hot-rolled
coil operations, and the other of DH1.2 billion for the development of hot -rolled thick
sheet operations, the company made sure of the viability of the activity through the

321 We note that the Panel had posed a question to the parties regarding whether the concept of "new
industry" should consider the definition of domestic industry, provided in Article 4.1 of the
Anti-Dumping Agreement, which, in turn, is linked to the concept of like product. In its response, Morocco
notes that Article 4.1 defines "domestic industry" as "the domestic producers as a whole of the like products or
to those of them whose collective output of the products constitutes a major proportion of the total domestic
production of those products". Morocco further submits that the terms "domestic industry" and "such industry"
in footnote 9 to Article 3 of the Anti-Dumping Agreement must be understood to refer to the domestic industry
as defined by the investigating authority pursuant to Article 4.1. Morocco argues that if Turkey disagrees with
the manner in which the MDCCE defined the domestic industry in the underlying investigation, it should have
raised a claim under Article 4 of the Anti-Dumping Agreement. Morocco further asserts that since Turkey has
not raised that claim, it is not open for the Panel to "second-guess" the MDCCE's definition of the domestic
industry in the underlying investigation. (Morocco's response to Panel question No. 4.24, para. 125).
322 Morocco's second written submission, para. 166.
323 Morocco's response to Panel question No. 4.20, para. 123 (referring to Initiation report,
(Exhibit TUR-2), p. 5).
324 The MDCCE's original statement in French is as follows:
d'un complexe de laminage à chaud comprenant deux laminoirs à chaud de bobines et de tôles
fortes, de capacités respectives d 'un million de tonnes et 500 000 tonnes, et d 'une aciérie
(Initiation report, (Exhibit TUR-2), p. 5).
325 Morocco's response to Panel question No. 4.21, para. 123 (referring to Initiation report,
(Exhibit TUR-2), p. 5).
326 Morocco's first written submission, para. 207 (referring to Preliminary determination,
(Exhibit TUR-6), para. 121).

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creation of this plan, based on objective and generally accepted economic
parameters.327
7.216. We consider that the statements in question do refer to Maghreb Steel 's investments
towards its production of hot -rolled steel. We agree with Turkey, however, that investments are
required even where a company adds a new product line, and a company's investment to produce a
different product line should not automatically lead to the conclusion that the company is creating
"a new industry".328 The MDCCE did not provide any reasoning as to why the investments in question
indicated that the hot -rolled steel unit was necessarily a new industry rather than a n ew product
line.
7.217. In support of the MDCCE's conclusion regarding the different client networks and distribution
channels, Morocco points to Maghreb Steel's questionnaire response.329 The MDCCE's determination
does not show that it relied on Maghreb Steel's questionnaire response in determining that Maghreb
Steel's hot-rolled steel sheet unit used client networks and distribution channels which were different
from Maghreb Steel's pre-existing client networks and distribution channels. We note that, in any
event, contrary to Morocco 's assertion, the relevant exhibit in Maghreb Steel 's questionnaire
response does not show any differences that might exist in the client network and distribution
channels of Maghreb Steel 's hot-rolled and existing cold -rolled steel production. For the foregoing
reasons, we consider that the MDCCE's conclusion that the different client networks and distribution
channels indicated that Maghreb Steel was a new industry, was unsupported by evidence on the
record.
7.218. Although the record does indicate the level of investment that Maghreb Steel made towards
production of hot-rolled steel, the MDCCE has not explained why that investment was at a scale that
should necessarily signify that the investment in question was towards a "new industry", and not
towards a new product line. Further, the MDCCE failed to provide an analysis of why the factors that
it considered in its analysis of the new industry criterion, indicated that Maghreb Steel was a new
industry.330 We recall that it is not for the Panel to conduct a de novo review based on the factual
elements available on the investigation record, but rather to assess whether the investigating
authority objectively examined the issues and gave a reasoned and adequate explanation for its
findings. We conclude that the MDCCE, in light of the evidence on the record, did not give a reasoned
and adequate explanation for its finding that Maghreb Steel was a new industry.
7.6.2.1.6 Conclusion
7.219. In light of the flaws in the MDCCE 's reasoning and findings in respect of the criteria that
formed part of its five -tiered test, we conclude that the MDCCE did not assess, based on positive
evidence and an objective examination, whether the domestic industry was established. While these
flaws considered individually may not be determinative, taken together they indicate that the MDCCE
did not properly examine the question of the domestic industry 's establishment. We therefore find
that the MDCCE acted inconsistently with Article 3.1 of the Anti-Dumping Agreement in determining
that the domestic industry was unestablished.

327 The MDCCE's original statement in French is as follows:
en vue du développement de l 'activité du laminoir à chaud de bobines (LAC) et l 'autre, de
1,2 milliard de DH pour le développement de l 'activité du laminoir à chaud de tôles fortes (TF),
l'entreprise s'est assurée de la viabilité de l'activité au moyen de l'élaboration dudit plan, fondé sur
des paramètres économiques objectifs et communément acceptés.
328 Turkey's opening statement at the first meeting of the Panel, para. 4.10.
329 Morocco's response to Panel question No. 4.23, para. 124 (referring to Excerpt from Maghreb
Steel's questionnaire response, section F, (Exhibit MAR-15)).
330 We recall the Appellate Body's observation that "when an investigating authority's determination
rests upon assumptions, these assumptions should be derived as reasonable inferences from a credible basis of
facts, and should be sufficiently explained so that their objectivity and credibility can be verified".
(Appellate Body Report, Russia – Commercial Vehicles, para. 5.95).

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7.6.2.2 Whether the MDCCE acted inconsistently with Articles 3.1 and 3.4 in failing to
conduct the "correct" injury analysis
7.220. Upon finding that the domestic industry was unestablished, the MDCCE proceeded to
examine whether the establishment of that industry was materially retarded. Towards this end, the
MDCCE undertook to compare Maghreb Steel 's actual performance levels against the
company's projected performance levels across certain economic indicators over the injury peri od.
These projections were set out in Maghreb Steel's 2008 Business Plan.331
7.221. Turkey argues that the MDCCE, having erroneously determined that the domestic industry
was unestablished, failed to conduct the correct injury analysis in comparing the industry 's actual
performance with its projected performance levels , and therefore acted inconsistently with
Articles 3.1 and 3.4 of the Anti -Dumping Agreement.332 Morocco contends, in response, that the
MDCCE properly found that the domestic industry was unestablished in accordance with footnote 9
to Article 3 and Article 3.1 of the Anti -Dumping Agreement, and therefore the MDCCE was correct
in conducting its injury analysis in the form of "material retardation of the establishment of the
domestic industry" (material retardation). Morocco further states that Turkey 's claim is completely
consequential to its claims under footnote 9 and Article 3.1.333
7.222. We note that the MDCCE stated that it saw fit to categorize Maghreb Steel as an
"unestablished industry" and accordingly, to conduct its injury analysis in the form of material
retardation.334 The MDCCE's reasoning that it had to conduct a material retardation analysis was
therefore premised on its finding that Maghreb Steel was unestablished. We recall, however, our
conclusion that the MDCCE 's finding that Maghreb Steel was unestablished was flawed . We
accordingly find that the MDCCE improperly proceeded to conduct its injury analysis in the form of
material retardation, and thus acted inconsistently with Articles 3.1 and 3.4 of the
Anti-Dumping Agreement.
7.7 Articles 3.1 and 3.4 of the Anti-Dumping Agreement: The MDCCE's determination that
the establishment of the domestic industry was materially retarded
7.223. In examining whether the establishment of the domestic industry , consisting of Maghreb
Steel, had been materially retarded, the MDCCE compare d that industry 's actual performance
against the industry 's projected performance across nine economic indicators over the injury
period.335 The MDCCE obtained the industry 's projected perfor mance levels from Maghreb
Steel's 2008 Business Plan, which was based on a pre -feasibility report (the McLellan report)
prepared for Maghreb Steel by McLellan and Partners Ltd., an independent consulting firm. Turkey
claims that the MDCCE acted inconsistently with Articles 3.1 and 3.4 of the Anti-Dumping Agreement
because, in analysing whether the establishment of the domestic industry had been materially
retarded:
a. the MDCCE failed to examine 6 of the 15 injury factors listed in Article 3.4;
b. the MDCCE excluded, without providing a satisfactory explanation, data pertaining to
Maghreb Steel's captive production of hot-rolled steel; and
c. the MDCCE relied on the McLellan report for the domestic industry's projected performance
levels, despite having found certain "miscalculations" in that report.

331 Final determination, (Exhibit TUR-11), paras. 148-150; Preliminary determination, (Exhibit-TUR-6),
para. 133.
332 Turkey's first written submission, para. 8.82.
333 Morocco's first written submission, paras. 210-211.
334 Final determination, (Exhibit TUR-11), para. 69; Preliminary determination, (Exhibit TUR-6),
para. 92.
335 The injury period in the underlying investigation ran from January 2009 until December 2012. In its
final determination, the MDCCE noted however, that given that injury cannot be attributed prior to the
beginning of the marketing of the domestic like product, it considered it preferable to select definitively the
period 2010-2012 as the injury period. (Final determination, (Exhibit TUR-11), paras. 11 and 121).

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7.7.1 Provisions at issue
7.224. Article 3.1 of the Anti-Dumping Agreement provides as follows:
A determination of injury for purposes of Article VI of GATT 1994 shall be based on
positive evidence and involve an objective examination of both (a) the volume of the
dumped imports and the effect of the dumped imports on prices in the domestic market
for like products, and (b) the consequent impact of these imports on domestic producers
of such products.
7.225. Article 3.4 of the Anti-Dumping Agreement provides as follows:
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, employment, 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.
7.7.2 Evaluation
7.226. In its final determination, the MDCCE noted that Article 3 of the Anti -Dumping Agreement
does not set out specific criteria for the analysis of material retardation of the establishment of the
domestic industry (material retardation) .336 The MDCCE further noted its view that the full
transposition of "l'exame n de dommage classique" (the classic injury analysis ) to material
retardation cases was not appropriate. According to the MDCCE, international practice considers that
some of the factors listed in Article 3.1 of the Anti-Dumping Agreement, namely, the increase in the
volume of dumped imports and the consequent impact of these imports on domestic producers, are
not properly adapted to all material retardation cases. 337 The MDCCE noted that the investigating
authority of another WTO Member, when assessing material retardation, examines certain "relevant"
economic factors.338 Based on the MDCCE 's statement in this regard, we note that these factors
include only some, but no t all, of the injury factors listed in Article 3.4 of the
Anti-Dumping Agreement.
7.227. The MDCCE proceeded to analyse the impact of dumped imports on the domestic industry
by comparing the actual performance of the industry against projected performance levels in respect
of nine economic indicators: production; production capacity and production utilization; sales;
market share; productivity; employment; inventory; profitability; and importance of the margin of
dumping. The projections pertaining to these econ omic indicators were set out in Maghreb
Steel's 2008 Business Plan.
7.228. We will first assess whether the MDCCE failed to evaluate, consistently with the requirements
of Article 3.4, 6 out of the 15 injury factors listed in that provision. We will then examin e whether
the MDCCE acted inconsistently with Articles 3.1 and 3.4 in excluding from its injury analysis, data
pertaining to the captive market. Finally, we will evaluate whether the MDCCE acted inconsistently
with Articles 3.1 and 3.4 in relying on the McLellan report.
7.7.2.1 Whether the MDCCE evaluated all injury factors listed in Article 3.4
7.229. In its determination, the MDCCE made no express reference to 6 of the 15 injury factors
listed in Article 3.4: return on investments, actual and potential negative effects on cash flow, wages,
growth, factors affecting domestic prices, and ability to raise capital or investmen ts. The
parties disagree over whether the MDCCE evaluated the six injury fa ctors at issue. Turkey
contends that the MDCCE failed to assess the six fac tors and therefore acted inconsistently with

337 Final determination, (Exhibit TUR-11), paras. 113-114; Preliminary determination, (Exhibit TUR-6),
para. 126.

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Articles 3.1 and 3.4.339 Morocco asserts in response that the MDCCE did evaluate the six factors,
implicitly, by way of analysing certain other factors.340
7.230. The issue we must resolve therefore is whether the MDCCE, in the underlying investigation,
failed to evaluate each of the six injury factors at issue, and therefore acted inconsistently with
Articles 3.1 and 3.4 of the Anti-Dumping Agreement.
7.231. Turkey argues that Article 3.4 requires that an investigating authority evaluate the 15 injury
factors listed in Article 3.4 in every case regardless of the form of injury at issue, and invokes
previous panel and Appellate Body findings in support.341 Although Morocco argues that the MDCCE
did evaluate all 15 injury factors listed in Article 3.4, it also contends that, as the MDCCE had noted,
the relevance of the factors listed in Article 3.4 will vary between an analysis of material injury and
that of material retardation. Morocco asserts that requiring an investigating authority to address the
Article 3.4 factors "with the same rigor" in a material retardation analysis, as in a material injury
analysis, would blur the distinction between the two concepts and would ignore the practical
limitations confronting an investigating authority in its material retardation analysis.342
7.232. We note that Article 3.4 states that "[t]he examination of the impact of the dumped imports
… shall include an evaluation of all relevant economic factors and indices having a bearing on the
state of the industry" including the 15 listed factors. The words "shall include" mean that Article 3.4
requires an investigating authority to evaluate all rel evant factors, including the 15 listed factors,
when examining the impact of dumped imports. Our view in this regard is consistent with that of
the Appellate Body and several panels that it is mandatory for an investigating authority to evaluate
each of the 15 injury factors listed in Article 3.4.343 These factors are "deemed to be relevant in
every investigation" and "must always be evaluated by the investigating authorities".344
7.233. Further, we consider that the obligation in Article 3.4 to evaluate each of the listed 15 injury
factors applies as much to an investigation of injury in the form of material retardation as it does to
that of material injury or threat of material injury. This is so for the following reason: Article 3.1,
read in light of footnote 9 of the Anti-Dumping Agreement, requires that a determination of material
retardation be based on positive evidence and objective examination of inter alia "the consequent
impact of [dumped] imports on domestic producers". As explained above, the examination of the
impact of dumped imports on domestic industry, in turn, must, in accordance with the terms of
Article 3.4, include an evaluation of all relevant factors including the 15 injury factors listed in that
provision.345 It follows that a determination of material retardation must be based on an examination
of the impact of dumped imports on domestic producers, and that examination must include an
evaluation of the 15 injury factors listed in Article 3.4. Our approach is consistent with the finding
by the panel in Egypt – Steel Rebar that "the Article 3.4 factor s must be examined in every
investigation, no matter which particular manifestation or form of injury is at issue in a given
investigation".346 Nothing in the text of Article 3 supports Morocco's argument that an investigating

339 Turkey's first written submission, para. 9.16.
340 Morocco's first written submission, paras. 228-237; second written submission, paras. 176-187.
341 Turkey's first written submission, para. 9.15 (referring to Panel Report, Egypt – Steel Rebar,
para. 7.93); second written submission, para. 7.4 (referring to Appellate Body Reports, China – HP-SSST
(Japan) / China – HP-SSST (EU), para. 5.203; US – Hot-Rolled Steel, para. 194; and Thailand – H-Beams,
para. 128).
342 Morocco's first written submission, para. 238.
343 Appellate Body Reports, Thailand – H-Beams, para. 125; China – HP-SSST (Japan) / China –
HP-SSST (EU), para. 5.203; Panel Reports, China – X-Ray Equipment, para. 7.179; EC – Bed Linen
344 Appellate Body Report, US – Hot-Rolled Steel, para. 194.
345 The Appellate Body in US – Hot-Rolled Steel stated that:
[A]n important aspect of the "objective examination" required by Article 3.1 is further elaborated
in Article 3.4 as an obligation to "examin[e] the impact of the dumped imports on the domestic
industry" through "an evaluation of all relevant economic factors and indices having a bearing on
the state of the industry."
(Appellate Body Report, US – Hot-Rolled Steel, para. 194).
Further, the panel in China – Cellulose Pulp explained that "Article 3.4 sets out a series of 'relevant
economic factors and indices having a bearing on the state of the industry', which must be evaluated by the
investigating authority in all cases when examining the consequential impact of dumped imports on that
industry, as required by Article 3.1". (Panel Report, China – Cellulose Pulp, para. 7.20).
346 Panel Report, Egypt – Steel Rebar, para. 7.93 (emphasis original); see also Appellate Body Report,

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authority is not required to ad dress the Article 3.4 factors "with the same rigor" in a material
retardation analysis as in a material injury analysis.
7.234. As a starting point in examining whether the MDCCE did evaluate the six injury factors in
question, we take into consideration Turkey's assertion that the MDCCE did not consider that a "full
transposition" of a material injury analysis to material retardation cases would be appropriate.347 We
recall that the MDCCE considered that reliable information on the volume of dumped imports and
the consequent impact of these imports on domestic producers, factors set out in Article 3.1, is only
available in cases where the domestic industry has maintained production over a significant period
of time and has managed to stabilize its production opera tions. As noted in paragraph 7.233. , an
examination of the impact of dumped imports on domestic producers under Article 3.1 is carried out
through, inter alia, an evaluation of the 15 injury factors listed in Article 3.4. The MDCCE's statement
that reliable information on factors listed in Article 3.1 was available only where the domestic
industry stabilizes its production and maintains it for a long period suggests therefore that the
MDCCE effectively considered that reliable information on the injury factors listed in Article 3.4 was
also available only in those cases, as distinct from the underlying investigation where it had found
that the domestic industry did not meet those criteria. The MDCCE's statement in this regard is not
determinative of the issue of whether the MDCCE evaluated all 15 factors listed in Article 3.4. That
statement, read together with the absence of any express reference to 6 of the 15 injury factors in
the MDCCE's determination, does suggest, however, that the MDCCE sought to lay down, in its final
determination, a justification for not evaluating all injury factors listed in Article 3.4. Further, we
note that Morocco confirms that the MDC CE considered that "the relevance of the factors listed in
Article 3.4 will vary between an ordinary injury analysis and an analysis of material retardation".348
Morocco further submits that the MDCCE noted that the investi gating authority of another
WTO Member had considered only certain of the 15 injury factors listed in Article 3.4 in their material
retardation analysis.349 As Morocco itself points out, "the MDCCE referred to international practice in
determining that all the factors mentioned in Article 3 may not be appropriate in the injury test for
material retardation".350
7.235. We consider that in referring to the MDCCE's statement that a priori suggested that not all
factors listed in Article 3.4 were relevant, and that reliable information in respect of tho se factors
was unavailable in an analysis of material retardation, Turkey makes a prima facie case that
the MDCCE did not evaluate the six injury factors at issue listed in Article 3.4, and therefore
the MDCCE acted inconsistently with that provision . We w ill now consider whether Morocco has
rebutted this prima facie case.351
7.7.2.1.1 Return on investments, actual and potential negative effects on cash flow, and
ability to raise capital or investments
7.236. The MDCCE made no explicit reference to "return on investments", " actual and potential
negative effects on cash flow" , and "ability to raise capital or investments" in its analysis of the
impact of dumped imports on the domestic industry, as set out in its final and preliminary
determinations. Morocco argues that in disc ussing, in its determinations, Maghreb
Steel's break-even threshold, the MDCCE "necessarily" also evaluates the domestic industry's return
on investments, actual and potential negative effects on cash flow, and ability to raise capital or
investments.352 Morocco contends in particular that failure to meet the break-even threshold means
that sales are made at a loss, which in turn, "necessarily" means negative cash flow and negative
return on investments. Further, negative cash flow and return on investment "n ecessarily" mean
difficulty in raising capital or investment. 353 Turkey argues in response that the MDCCE addressed
the break-even threshold in its analysis of whether the industry was "established" and not in its
analysis of "the impact of dumped imports on the domestic industry" as required under Article 3.4.

347 Turkey's first written submission, paras. 9.11-9.12.
348 Morocco's first written submission, para. 238.
349 Morocco's first written submission, para. 214.
350 Morocco's first written submission, para. 214.
351 We bear in mind the observations of a past panel that in the context of an anti-dumping investigation
"a Member is placed in a difficult position in rebutting a prima facie case that an evaluation [under Article 3.4
of the Anti-Dumping Agreement] has not taken place if it is unable to direct the attention of a panel to some
contemporaneous written record of that process". (Panel Report, Egypt – Steel Rebar, para. 7.49 (emphasis
original)).
352 Morocco's first written submission, para. 229.
353 Morocco's first written submission, paras. 230-233.

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Turkey argues that Morocco therefore fails to explain how the MDCCE actually assessed cash flow,
return on investments , and ability to raise capital, and asserts that the MDCCE never undertook
those evaluations.354 Turkey contends that Morocco assumes that Maghreb Steel 's failure to meet
the break-even threshold necessarily amounted to the company 's negative performance in respect
of those injury factors. Turkey contends that this is an ex post rationalization, as the MDCCE, itself,
did not make any such "evaluation".355
7.237. We note that, as Morocco asserts, the Appellate Body has clarified that Article 3.4 does not
regulate the manner in which an investigating authority sets out the results of the "e valuation" of
each factor in its published documents. Therefore, an investigating authority is not required in every
anti-dumping investigation to make a separate record of the evaluation of each of the injury factors
listed in Article 3.4.356 The Appellate Body further stated that whether a panel conducting an
assessment of an anti-dumping measure is able to find in the record sufficient and credible evidence
to satisfy itself 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. 357 As regards the
nature of "evaluation" of injury factors that Article 3.4 requires an investigating authority to
undertake, the Appellate Body clarified that only because t he analysis of a factor is implicit in the
analyses of other factors does not necessarily lead to the conclusion that such a factor was not
evaluated.358
7.238. In view of the Appellate Body's findings discussed in the preceding paragraph, we consider
that even if an investigating authority did not make a separate record of the evaluation of a particular
factor, and had implicitly evaluated that factor through its evaluation of other factors, the record
would need to show that the authority did in fact implicitly evaluate that factor. At issue here
therefore is whether the record of the underlying investigation shows that the MDCCE, in addressing
the domestic industry's break-even threshold, implicitly evaluated that industry 's cash flow, return
on investment, and ability to raise capital or investments.
7.239. We note, at the outset, that Morocco 's argument that Maghreb Steel 's failure to meet the
break-even threshold "necessarily" meant that the industry's cash flow, return on investment , and
ability to raise capital experienced negative performance is premised on the assumption that failure
to meet the break -even threshold means that sales are made at a loss. However, the
MDCCE's discussion of Maghreb Steel's failure to meet its break-even threshold did not conclusively
show that Maghreb Steel had sold at a loss during the injury period.359 Therefore, the basic premise
of Morocco's argument is flawed.
7.240. Further, even if the MDCCE 's discussion of Maghreb Steel 's failure to meet the break -even
threshold did show that Maghreb Steel had sold at a loss, Morocco fails to persuade us that losses
suffered by a company necessarily mean that the company will also experience negative cash flow
and return on investment.360
7.241. Morocco argues that sales made at a loss "necessarily" mean negative cash flow over the
same period because the company in question is spending more paying for its costs than it is
receiving in sales revenues. 361 Turkey contends in response that cash flow and profits are two
different concepts. Turkey points out tha t the concept of cash flow pertains to "the ability of the
entity to generate cash and cash equivalents and the needs of the entity to utilise those cash
flows".362 Profit or loss, in contrast, is defined as "the total of income less expenses, excluding the
components of other comprehensive income".363 Turkey asserts that a company incurring loss during

354 Turkey's second written submission, paras. 7.6-7.7.
355 Turkey's second written submission, para. 7.7.
356 Morocco's second written submission, para. 178 (referring to Appellate Body Report, EC – Tube or
Pipe Fittings, para. 161).
357 Appellate Body Report, EC – Tube or Pipe Fittings, para. 161.
358 Appellate Body Report, EC – Tube or Pipe Fittings, para. 160.
359 See para. 7.184. above.
360 In any event, the MDCCE's determination does not show that it analysed the trends in any losses
suffered by the domestic industry throughout the injury period.
361 Morocco's first written submission, para. 230.
362 Turkey's response to Panel question No. 9.1, para. 38 (referring to International Accounting
Standard 7, Statement of cash flows (24 March 2010), (Exhibit TUR-69), p. 1).
363 Turkey's response to Panel question No. 9.1, para. 38 (referring to International Accounting
Standard 1, Presentation of Financial Statements, (Exhibit TUR-70), p. 2).

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a particular year could, for instance, generate positive cash flow over the same year by way of
incoming cash from its sales of goods produced in a previous year.364 Morocco does not contest the
plausibility of this example per se, but questions its relevance for this case, noting that Turkey has
not identified record evidence showing that Maghreb Steel would have generated positive cash flow
through the sale of ho t-rolled steel produced in previous years. 365 Further, Morocco posits that it
would be "highly unlikely" that a start-up, like Maghreb Steel, the domestic industry in the underlying
investigation, would have a positive cash flow despite incurring losses.366 Turkey does not disagree
that it would be "highly unlikely" for a start -up to have a positive cash flow despite incurring
losses.367
7.242. In our view, Morocco 's proposition that sales made at a loss "necessarily" mean negative
cash flow implies that it is impossible for a company to register a positive cash flow while it is
incurring losses. However, in response to the Panel's questioning, Morocco submits that it would be
"highly unlikely" that a start -up, such as Maghreb Steel, would ha ve a positive cash flow despite
incurring losses. In advancing that argument, Morocco itself acknowledges that it is not impossible
that a start-up has a positive cash flow despite incurring losses, thus implying that sales made at a
loss do not "necessarily" mean negative cash flow. Given that Morocco itself suggests that sales at
a loss by a start -up do not "necessarily" mean negative cash flow, Morocco 's defence fails . We
therefore consider that Morocco has not shown how the MDCCE actually evaluated Magh reb
Steel's cash flow during the injury period. Further, we consider that any reasoning that Morocco
presents before us in these proceedings, explaining why Maghreb Steel could not have generated
positive cash flow because it had incurred losses, would nee d to have been part of the
MDCCE's determination because that reasoning is specific to the particular facts of the underlying
investigation. Since Morocco's reasoning is not part of the MDCCE 's determination, we reject it as
ex post rationalization.
7.243. As regards Morocco's argument that sales made at a loss " necessarily" mean a negative
return on investment, Turkey contends that it is possible that a company can have a positive return
on investment despite suffering losses. According to Turkey, this is because a company, despite its
losses, may earn income from other sources such as property and stocks, which, although unrelated
to the ordinary business activity of the company, would have a bearing on the return on investment
made in the company.368 We note that Morocco states, in response to the Panel's questions in these
proceedings, that it would be "very difficult" to have a positive return on investment despite suffering
losses during the same period, especially for a start -up company like Maghreb Steel. M orocco
acknowledges that it is possible that a company could have receivables from previous years that are
paid during the year at issue and that these exceed the costs for current production. Morocco
contends that this scenario would however be "highly un likely" in the context of a start -up
company.369 Turkey contends in response that in stating that "[i]t would be very difficult", Morocco
appears to accept that it is not impossible "to have a positive return on investment despite suffering
losses during the same period".370 We agree. We understand Morocco to accept that it is "very
difficult" and "highly unlikely", but not impossible "to have a positive return on investment despite
suffering losses during the same period", and by implication, that sales made a t a loss do not
"necessarily" mean a negative return on investment. Given that Morocco itself suggests that sales
at a loss do not "necessarily" mean negative return on investment, Morocco 's defence fails. We
therefore consider that Morocco has not shown h ow the MDCCE actually evaluated Maghreb
Steel's return on investment during the injury period. Further, we consider that any reasoning
explaining why Maghreb Steel, in the particular facts of this case, could not have a positive return
on investment because it had incurred losses would need to have been part of the
MDCCE's determination. Since Morocco 's reasoning is not part of the MDCCE's determination, we
dismiss it as ex post rationalization.
7.244. Morocco further argues that negative cash flow and return on investment, which is
"necessarily" implicit in the MDCCE 's discussion of Maghreb Steel's failure to meet the break -even
threshold, mean difficulty i n raising capital or investment. H owever, since we have found that
Morocco has failed to advance arguments p ersuading us that the MDCCE's discussion of Maghreb

364 Turkey's response to Panel question No. 9.1, para. 39.
365 Morocco's comments on Turkey's response to Panel question No. 9.1, para. 30.
366 Morocco's response to Panel question No. 9.1, para. 54.
367 Turkey's comments on Morocco's response to Panel question No. 9.1.
368 Turkey's response to Panel question No. 9.2(b), para. 45.
369 Morocco's response to Panel question No. 9.2(b), para. 56.
370 Turkey's comments on Morocco's response to Panel question No. 9.2(b).

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Steel's failure to meet the break -even threshold "necessarily" means that the industry was
experiencing negative cash flow and negative return on investment, we decline to rule on whether
its analysis of the break-even threshold would "necessarily" have indicated negative performance
on the ability to raise capital or investments.
7.245. We consider that t he MDCCE's determination does not show , and Morocco has failed to
explain, that the MDCCE evaluat ed actual and potential negative effects on cash flow, return on
investment, and ability to raise capital or investments . We therefore conclude that Morocco has
failed to rebut the prima facie case made by Turkey that the MDCCE did not evaluate "return on
investments", "actual and potential negative effects on cash flow", and "ability to raise capital or
investments", and therefore acted inconsistently with Articles 3.1 and 3.4.
7.7.2.1.2 Growth
7.246. The MDCCE made no explicit reference to "growth" in its injury analysis, as set ou t in its
final and preliminary determinations. Morocco asserts that the MDCCE addressed in its final
determination trends in certain of the factors listed in Article 3.4 – production, capacity utilization,
market share, sales volume, employment, productivi ty, stocks, and profitability – and found that
Maghreb Steel had not reached its reasonably anticipated levels with regard to any of them in the
injury period. Relying on the Appellate Body's findings in EC – Tube or Pipe Fittings, Morocco argues
that, in doing so, the MDCCE also evaluated the growth factor. 371 Morocco also notes that in
Egypt – Steel Rebar, the panel found that the investigating authority in question had addressed
growth by addressing sales volume and market share.372 Turkey recognizes that an investigating
authority's analysis of growth may flow, to some extent, from its analysis of sales and market share,
but the analysis of sales and market share, alone, does not offer a conclusion on growth.373 Turkey
posits that equating growth with sales and market share effectively reads "growth" out of Article 3.4
as an independent injury factor. In certain cases where the analysis of growth may be consequential,
the investigating authority must state so expressly in its published determination.374
7.247. We must therefore assess whether, in addressing trends in certain of the factors listed in
Article 3.4 in its injury analysis, the MDCCE also evaluated the growth factor.
7.248. Morocco asserts that the Appellate Body found in EC – Tube or Pipe Fittings that growth can
be reflected in the performance of certain other injury factors listed in Article 3.4, and therefore the
analysis of these other factors would satisfy the requirement to evaluate growth. 375 We disagree
with Morocco's characterization of the Appellate Body 's findings in EC – Tube or Pipe Fittings . We
understand the Appellate Body in that case to reason that while the evaluation of the growth factor
necessarily entails an analysis of certain other factors listed in Article 3.4, an eval uation of those
factors "could", but does not necessarily, amount to the evaluation of the growth factor.376 Whether
or not an evaluation of certain factors listed in Article 3.4 may also be considered to amount to an
evaluation of the growth factor, will depend on the particular facts of each case and on whether the
record of the investigation in question contains " sufficient and credible evidence " to demonstrate
that the growth factor has been evaluated. 377 In view of the particular facts of the case before i t,
the Appellate Body in EC – Tube or Pipe Fittings found it reasonable for the panel to have concluded
that the European Commission had addressed and evaluated growth.
7.249. The facts of this dispute make it clear that the MDCCE did not explicitly evaluate gro wth.
The question is whether the MDCCE did so implicitly. In order to resolve this matter, we will examine,
as did the Appellate Body, whether the record of the underlying investigation contains " sufficient
and credible evidence" to show that the MDCCE evaluated growth, even though the MDCCE did not
make a separate record of the evaluation of that factor.

371 Morocco's response to Panel question No. 9.5(a), paras. 58-60 (referring to Appellate Body Report,
EC – Tube or Pipe Fittings, para. 165).
372 Morocco's response to Panel question No. 9.5(a), para. 58 (referring to Panel Report, Egypt – Steel
Rebar, para. 7.37).
373 Turkey's response to Panel question Nos. 9.5(a) and (b), para. 53.
374 Turkey's second written submission, para. 7.11.
375 Morocco's response to Panel question No. 9.5(a), para. 58 (referring to Appellate Body Report, EC –
376 Appellate Body Report, EC – Tube or Pipe Fittings, para. 162.
377 Appellate Body Report, EC – Tube or Pipe Fittings, para. 161.

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7.250. The evidence on record in this dispute, as distinct from that in EC – Tube or Pipe Fittings
and Egypt – Steel Rebar, indicates that the MDCCE made a statement in its determination, as noted
in paragraph 7.234. , suggesting that reliable information on the impact of dumped imports on
domestic producers, and therefore on the injury factors set out in Article 3.4, is not available in
material retardati on cases. We recall that in referring to that statement, Turkey sets out a
prima facie case that the MDCCE did not evaluate, among others, the growth factor. Morocco points
to nothing on the record that rebuts that prima facie case. Morocco asserts that in evaluating certain
of the factors listed in Article 3.4 – production, capacity utilization, market share, sales volume,
employment, productivity, stocks, and profitability – the MDCCE also evaluated growth.378 However,
consistent with the views of the Appel late Body in EC – Tube or Pipe Fittings , we consider that an
evaluation of these other factors listed in Article 3.4 that Morocco points to could, but does not
necessarily, amount to the evaluation of the growth factor. Therefore, we consider that
Morocco's assertion in this regard is insufficient to rebut the prima facie case made by Turkey that
the MDCCE did not evaluate "growth" and therefore acted inconsistently with Articles 3.1 and 3.4.
7.7.2.1.3 Wages
7.251. The MDCCE made no explicit reference to "wages" in its in jury analysis. In its final
determination, the MDCCE stated, in the context of evaluating employment in the domestic industry,
that in 2012 Maghreb Steel announced the laying off of more than 3 00 workers, which took place
in 2013.379
7.252. Morocco argues that the MDCCE's reference to Maghreb Steel 's announcement in 2012
regarding a loss of more than 300 jobs sufficed as an evaluation of "wages" under Article 3.4,
because such a "massive layoff" would certainly exert downward pressure on wages. 380 Turkey
contends that Article 3.4 lists "employment" and "wages" separately, and a decline in employment
does not necessarily mean a reduction in wages.381
7.253. We agree with Turkey that a decline in employment does not necessarily mean a fall in
wages. As Turkey argues, government-set minimum wages or agreed minimum wages with labour
unions may prevent companies from lowering wages even in dire economic conditions. 382 Further,
we consider that, in any event, the MDCCE's determination did not explain how a loss of jobs in 2013,
that is after the injury period, had an impact on the wages during the injury period. In response to
the Panel's question in this regard, Morocco contends that the announcement in 2012 of a loss of
jobs in 2013 would already have exerted a downward pressure o n wages in 2012, or at the very
least, have had a "chilling effect" on them.383 We note however, that the MDCCE itself did not make
that analysis in its determinations, in the absence of which, we reject Morocco's argument as an ex
post rationalization. Morocco also contends, referring to the MDCCE 's preliminary determination,
that Maghreb Steel had "announced layoff of 400 employees in 2012".384 However, in its preliminary
determination, the MDCCE refers only to Maghreb Steel 's consideration that at least 400 people at
the company's existing level of production would be seriously threatened with redundancy, and does
not refer to any particular announcement of a "layoff" by Maghreb Steel. 385 We therefore do not
accept Morocco's assertion in this regard.
7.254. Therefore, we conclude that Morocco has failed to rebut the prima facie case made by Turkey
that the MDCCE di d not evaluate "wages", and therefore acted inconsistently with Articles 3.1
and 3.4.
7.7.2.1.4 Factors affecting domestic prices
7.255. The MDCCE made no explicit referenc e to "factors affecting domestic prices" in its injury
analysis. Under the section of its final determination addressing the impact of dumped imports on

378 Morocco's response to Panel question No. 9.5(a), paras. 59-60.
380 Morocco's first written submission, para. 234.
381 Turkey's opening statement at the first meeting of the Panel, para. 4.16.
382 Turkey's opening statement at the first meeting of the Panel, para. 4.16.
383 Morocco's response to Panel question No. 5.8, para. 152; second written submission, para. 184.
384 Morocco's second written submission, para. 184 (referring to Preliminary determination,
(Exhibit TUR-6), para. 150).

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prices of the domestic like product, the MDCCE , however, found that the dumped imports of
hot-rolled steel had a non -negligible impact on the undercutting of the domestic industry 's selling
prices.386 In its causation analysis as set out in the final determination, the MDCCE addressed certain
comments from interested parties regarding an alleged increase in p rices of raw materials, and
stated that an increase in raw material prices had affected the entire global steel industry, and that
the effect of that increase on Maghreb Steel would not have been much less significant in the absence
of dumped imports.387
7.256. Turkey argues that the MDCCE did not evaluate "factors affecting domestic prices" and
therefore acted inconsistently with Articles 3.1 and 3.4. 388 Morocco responds that the MDCCE did
evaluate factors affecting domestic prices, in finding that the dumped imports of hot-rolled steel had
a non -negligible impact on the undercutting of the domestic industry 's selling prices, and by
assessing an alleged i ncrease in the price of raw materials in its causation analysis. 389 Turkey
contends that the statements that Morocco refers to appear in different parts of the challenged
determinations and in different contexts, which pertain to the MDCCE 's inquiry under Articles 3.2
and 3.5, and are unrelated to the analytical inquiry required under Article 3.4.390
7.257. Morocco argues in response that the precise location of the analysis is not determinative of
the issue of whether a certain factor has been analysed. Morocco contends that the Appellate Body
has clarified that Article 3.4 does not regulate the manner in which the results of the analysis of
each injury factor are to be set out in the published documents391, and in general, Article 3 does not
provide a prescribed forma t or template that an investigating authority must adhere to in making
its injury determination.392 Turkey acknowledges that in certain cases an investigating authority may
analyse evidence relevant to one or more Article 3.4 factors under another provision of Article 3.
However, in such case the authority may refer to the factual analysis set out in another section in
order to avoid repetition, but the authority is not absolved of the obligation to evaluate each of the
relevant factors under Article 3.4. Turkey takes the view that in such case, the authority must still
ensure that the relevant factor is explicitly mentioned in the analysis of the injury factors, even if
there is a reference to the factual discussion in another part of the report.393
7.258. We must therefore examine whether the MDCCE evaluated factors affecting domestic prices
by way of the following statements:
a. the MDCCE's statement that dumped imports had a non -negligible impact on the
undercutting of the domestic industry's selling prices394; and
b. the MDCCE's statement addressing an alleged increase in the price of raw materials.395
7.259. We recall that Article 3 does not provide a prescribed template or format that an
investigating authority must adhere to in making its determination of injury, provided that its
determination comports with the disciplines that apply under the discrete paragraphs of Article 3.396
Therefore, we agree with Morocco that what is material for our assessment is not the location of the
statements at issue in the MDCCE 's determinations, but whether those statements show that the
MDCCE did evaluate factors affecting domestic prices, as required under Article 3.4.
7.260. We turn first to examine the MDCCE's statement that dumped imports had a non-negligible
impact on the undercutting of the domes tic industry's selling prices. We note that this statement
shows that the MDCCE assessed the effect of dumped imports on domestic prices, which in our view,

387 Final determination, (Exhibit TUR-11), paras. 221-225.
388 Turkey's first written submission, para. 9.10.
389 Morocco's first written submission, para. 235 (referring to Final determination, (Exhibit TUR-11),
paras. 145 and 221-225).
390 Turkey's opening statement at the first meeting of the Panel, para. 4.17.
391 Morocco's response to Panel question No. 5.7, para. 149 (referring to Appellate Body Report,
EC – Tube or Pipe Fittings, para. 161).
392 Morocco's response to Panel question No. 5.7, para. 149 (referring to Appellate Body Reports,
China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.141).
393 Turkey's second written submission, para. 7.5.
396 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.141.

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does amount to an evaluation of at least one factor affecting domestic prices. 397 In addition, the
MDCCE had also considered the effect of an alleged increase in raw material prices which is also a
factor affecting domestic prices. 398 Turkey's argument that the MDCCE failed to evaluate factors
affecting domestic prices suggests, on the contrary, that the MDCCE failed to evaluate any factors
affecting domestic prices. Therefore, we consider that Turkey 's argument that the MDCCE failed to
evaluate factors affecting domestic prices rests on a factually incorrect premise. We further note
that Morocco argues that Turkey has not identified which other factors affecting prices the MDCCE
should have analysed.399 In response to that argument, Turkey contend s that Article 3.4 requires
that an investigating authority always evaluate all relevant factors in every investigation and "if the
authority is not aware of other relevant factors affecting prices, it must say so explicitly in its
published report".400 We disagree with Turkey. We consider, consistent with the observations of the
panel in EU – Footwear (China), that nothing in Article 3.4 provides any guidance as to the scope of
"factors affecting domestic prices", nor how or based on what information, an investigating authority
must proceed to evaluate this injury factor.401 In light of the lack of specific obligations in that regard
in Article 3.4, we consider that the manner in which an investigating authority decides to evaluate
factors affecting domestic prices falls within the bounds of the authority's discretion. We thus do not
read in Article 3.4, as does Turkey, an obligation for an investigating authority to make an express
statement in its determination to the effect that the authority is "not aware of other relevant factors
affecting prices".
7.261. For the foregoing reasons, we reject Turkey's claim that the MDCCE did not evaluate "factors
affecting domestic prices", and therefore do not find that the MDCCE acted inconsistently with
Articles 3.1 and 3.4 in that regard.
7.7.2.1.5 Conclusion
7.262. Based on the foregoing, we conclude that the MDCCE acted inconsistently with Articles 3.1
and 3.4 of the Anti -Dumping Agreement in failing to evaluate 5 of the 15 injury factors listed in
Article 3.4, in particular, return on investments, actual and potential negative effects on cash flow,
wages, growth, and ability to raise capital or investments. We do not find that the MDCCE acted
inconsistently with Articles 3.1 and 3.4 by failing to evaluate factors affecting domestic prices.
7.7.2.2 Whether the MDCCE acted inconsistently with Articles 3.1 and 3.4 in excluding,
from its injury analysis, Maghreb Steel's captive production
7.263. Turkey claims that the MDCCE acted inconsistently with Articles 3.1 and 3.4 because, in
analysing the injury factors listed in Article 3.4, the MDCCE excluded, without providing a
satisfactory explanation, data pertaining to the captive market and considered data pertaining to
only the merchant market.402
7.264. Morocco argues that the MDCCE had "focused" on the merchant market in its injury analysis,
and asserts that the MDCCE did explain, reasonably and adequately, why it had focused on that
market.403 Morocco contends further that even though the MDCCE focused on the merchant market
in its injury analysis, it did not entirely ignore the captive market, as Maghreb Steel's captive sales

397 We note that the panel in EU – Footwear (China) took a similar view in finding that the investigating
authority "did address at least one factor affecting domestic prices, when it concluded that dumped imports
undercut the prices of the domestic like product, and that the domestic industry's sales prices were
depressed". (Panel Report, EU – Footwear (China), para. 7.445). Further, we note that the Appellate Body
found that the results of the inquiries, pursuant to Articles 3.2 and 3.5 of the Anti-Dumping Agreement, are
also relevant to the impact analysis required under Article 3.4, given that this provision requires the evaluation
of all relevant economic factors and indices having a bearing on the state of the industry, including factors
affecting domestic prices. (Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU),
para. 5.209).
398 Turkey has not challenged, and therefore the Panel has not considered, whether the MDCCE
objectively examined the effect of dumped imports or the alleged increase in raw material prices on domestic
prices.
399 Morocco's response to Panel question No. 5.7, para. 151.
400 Turkey's second written submission, para. 7.12.
401 Panel Report, EU – Footwear (China), para. 7.445.
402 Turkey's first written submission, paras. 9.28-9.29; opening statement at the first meeting of the
Panel, para. 4.19.
403 Morocco's first written submission, paras. 242-243; opening statement at the first meeting of the
Panel, para. 69.

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were factored into the company's break-even threshold.404 In its second written submission, Morocco
posits that the MDCCE "expressed misapprehension" about considering the captive market in the
injury analysis.405 It further contends that because the MDCCE had taken into consideration the
captive market in analysing the break -even threshold, it "necessarily" also took into consideration
the captive market in analysing the domestic industry 's return on investment, actual and potential
negative effects on cash flow, and the ability to raise capital or investments. Further, Morocco
contends that the MDCCE did not distinguish between the captive and merchant markets in analysing
the domestic industry's employment, and therefore also did not make that distinction in analysing
wages. Finally, Morocco asserts that the MDCCE also took the captive market into consideration in
evaluating the domestic industry's production.406
7.265. Turkey rejects Morocco's arguments, and pointing to the MDCCE 's final determination,
asserts that the MDCCE did state that the exclusion of the captive market from the assessment of
the injury factors was perfectly justified. 407 Further, Turkey asserts that Morocco did confirm that
the MDCCE "considered [that] it was not necessary to examine directly or specifically the captive
market in its retardation analysis".408
7.266. We note that the MDCCE 's determinations do not demonstrate whether or not the MDCCE
excluded the captive market in analysing each of the nine factors listed in Article 3.4 that it expressly
referred to in its injury analysis. In particular, the MDCCE does not clearly state in its determinations
whether it had excluded the captive market in analysing these factors. In its final determination, in
the section addressing volume of dumped imports, the MDCCE stated that it considered that the
exclusion of captive sales was completely justified insofar as the domestic market is characterized
by a clear separation between the captive market and the merchant market, and because Maghreb
Steel's captive sales do not compete directly with imports.409 However, the MDCCE appears to have
made that statement specifically in the context of analysing changes in volume of imports in relation
to domestic production and consumption, and not in the context of its injury analysis as a whole.
Further, in analysing the domestic industry 's production, the MDCCE noted that part of "this"
production is destined for internal consumption within Maghreb Steel, suggesting th at the MDCCE
took Maghreb Steel's captive production into consideration in that particular analysis. 410 Therefore,
while the MDCCE's determinations do not conclusively show that the MDCCE excluded the captive
market in analysing every factor that it evaluate d as part of its injury analysis, they do show that
the MDCCE excluded the captive market in analysing changes in volume of imports in relation to
domestic production and consumption.
7.267. Further, even Morocco does not argue that the MDCCE took the captive ma rket into
consideration in analysing all the injury factors that the MDCCE assessed. As evident from
Morocco's assertions set out in paragraph 7.264. , the MDCCE took the captive market into account
only in some but not all injury factors listed in Article 3.4. Further, in response to the Panel's question
regarding the MDCCE's evaluation of the domestic industry's profitability, Morocco confirmed that in
analysing the profitability factor, the MDCCE did not take the captive market into account. 411 We
therefore consider that regardless of whether the MDCCE excluded the captive market in analysi ng
all injury factors, based on the record and Morocco 's submissions412, it follows that the MDCCE
excluded the captive market in analysing at least some of them. We will therefore evaluat e
Turkey's claim on the basis that our assessment pertains to the MDCC E's analysis of those injury
factors in respect of which the MDCCE did exclude the captive market.
7.268. Turkey argues, invoking the Appellate Body 's findings in US – Hot-Rolled Steel, that, by
excluding the captive market from the scope of the industry, the MD CCE conducted a "selective

404 Morocco's first written submission, paras. 244-245; opening statement at the first meeting of the
Panel, para. 70.
405 Morocco's second written submission, para. 189.
406 Morocco's second written submission, para. 193 (referring to Preliminary determination,
407 Turkey's opening statement at the first meeting of the Panel, para. 4.19 (referring to Final
determination, (Exhibit TUR-11), para. 137).
408 Turkey's second written submission, para. 7.14 (quoting Morocco's opening statement at the first
411 Morocco's response to Panel question No. 5.4, para. 135.
412 Morocco's response to Panel question No. 5.3(a), para. 133; second written submission, para. 193.

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examination of one part of a domestic industry" and therefore acted inconsistently with Articles 3.1
and 3.4 of the Anti -Dumping Agreement.413 Turkey contends, based on the Appellate
Body's reasoning, that while the MDCCE was not precluded from splitting its analysis of the state of
the industry into the merchant and captive markets, it was required to provide an even -handed
explanation of each of these market segments. Turkey further contends that the MDCCE failed to
satisfactorily explain why it was not necessary to examine the part of the domestic industry
concerning the captive market.414
7.269. Based on Turkey 's argument, the main issue before us is whether the MDCCE acted
inconsistently with Articles 3.1 and 3.4 of the Anti -Dumping Agreement in disregarding, in its
analysis of certain injury factors, data pertaining to the captive market.
7.270. We note that the facts and issue before the Appellate Body in US – Hot-Rolled Steel are
similar to the facts and issue before the Panel in this dispute. In that case, the USITC did not analyse
data pertaining to the domestic industry's captive market in its injury investigation.415 Similar to the
facts in this dispute, the domestic like product that domestic producers internally transferred to the
captive market was used by an integrated producer to manufacture a downstream product, and did
not generally enter the merchant market. Domestic producers whose production was captive,
therefore did not compete directly with imports.416 The issue before the Ap pellate Body, inter alia,
was whether the USITC, in failing to analyse the domestic industry 's captive market in its injury
investigation, acted inconsistently with Articles 3.1 and 3.4 of the Anti-Dumping Agreement.
7.271. We recall that the Appellate Body foun d that in the absence of a satisfactory explanation,
Article 3.1 of the Anti -Dumping Agreement does not entitle investigating authorities to conduct a
selective examination of one part of the domestic industry. 417 At the outset, the Appellate Body
noted that it follows clearly from the definition of injury in footnote 9 to Article 3 of the
Anti-Dumping Agreement that the focus of the injury determination is the state of the "domestic
industry", which read in light of Article 4.1 of the Anti-Dumping Agreement, is the domestic industry
in totality. An investigating authority, in its investigation, may therefore not focus on simply one
part, sector or segment of the domestic industry.418
7.272. The Appellate Body reasoned that the standard of objectivity in Article 3.1 called upon an
investigating authority to examine all parts of the domestic industry to ensure that the authority
would not focus only on parts that were performing poorly as distinct from those that were
performing well, or vice versa. An investigating aut hority, by focusing only on poorly performing
parts to the exclusion of parts performing well, would raise the likelihood, as a result of the
fact-finding or evaluation process, of determining that the domestic industry is injured.419
7.273. We consider the Appell ate Body 's reasoning applicable to the facts of this dispute. The
MDCCE, in focusing in its injury analysis on data pertaining exclusively to the merchant market,
selectively examined the performance of only one part of the domestic industry, that is, the part
that was supplying to the merchant market. In doing so, it excluded evaluating Maghreb
Steel's performance in the captive market, a part of the domestic industry which was shielded from
competition with imports, and which the MDCCE cited the McLellan report as finding, had secured a
guaranteed market. 420 In particular, as noted earlier in paragraph 7.173. above, the McLellan
report, upon which the MDCCE had relied in the underlying investigation, itself concluded that almost
half of Maghreb Steel 's production, which was directed to the captive marke t, had access to a
guaranteed market, and would therefore hold "bonnes perspectives commerciales" (good
commercial prospects) for the domestic industry. 421 In our view, an unbiased and objective
investigating authority, in analysing the state of the domestic industry, would not disregard a
guaranteed market which held "good commercial prospects" for the domestic
industry's performance, and which accounted for half of that industry 's production, and would

413 Turkey's first written submission, para. 9.18 (referring to Appellate Body Report, US – Hot-Rolled
Steel, para. 214).
414 Turkey's first written submission, para. 9.24.
415 Appellate Body Report, US – Hot-Rolled Steel, para. 212.
416 Appellate Body Report, US – Hot-Rolled Steel, para. 181.
417 Appellate Body Report, US – Hot-Rolled Steel, para. 214.
418 Appellate Body Report, US – Hot-Rolled Steel, paras. 189-190.
419 Appellate Body Report, US – Hot-Rolled Steel, paras. 196 and 204.

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therefore have taken that captive market into considera tion in its analysis. We agree with Turkey
that in the underlying investigation this consideration is particularly pertinent, given that the
McLellan report, a study on which the MDCCE had relied in its injury analysis, itself recognized the
significance of the captive market in the overall viability of the domestic industry.422
7.274. In failing to evaluate each of the two parts that made up the hot -rolled steel domestic
industry in Morocco, the MDCCE failed to even-handedly evaluate the domestic industry as a whole,
and therefore failed to meet the requirement of objectivity set out in Article 3.1 of the
Anti-Dumping Agreement. Further, we consider that the requirement of objectivity in Article 3.1
applies to the MDCCE's evaluation of each injury factor that forme d part of its injury analysis, and
therefore required the MDCCE to evaluate data pertaining to the captive market in its evaluation of
each of those injury factors. This is because the overarching obligation in Article 3.1 that an
investigating authority conduct its investigation based on objective examination extends to the injury
analysis as a whole, and therefore to the authority's evaluation of all rather than only certain injury
factors that form part of its analysis.
7.275. Morocco argues that the Appellate Body in US – Hot-Rolled Steel stated that it is permissible
for an investigating authority not to examine all of the other parts that make up the industry if it
provides an explanation as to why it is not necessary to examine, directly or specifically, the other
parts of the domestic industry. It contends further that the MDCCE did explain why it focused on the
merchant market in its injury analysis, and therefore in focusing on that market in its analysis, it did
not act inconsistently with Articles 3.1 and 3.4.423
7.276. We note that the MDCCE explained that it considered that the exclusion of captive sales was
completely justified insofar as the domestic market is characterized by a clear separation between
the captive market and the merchant market, and because M aghreb Steel's captive sales do not
compete directly with imports. 424 However, as Turkey points out, the Appellate Body in
US – Hot-Rolled Steel considered that it may be "highly pertinent for investigating authorities to
evaluate the relevance of the fact that a significant proportion of the domestic production of the like
product is shielded from direct competition with imports, and that the part of the domestic industry
that is most likely to be affected by the imports is limited to the merchant market". 425 Therefore,
this explanation, which the MDCCE set out as a justification for not evaluating the domestic
industry's performance in the captive market, is for the Appellate Body a "highly pertinent" ground
for evaluating the domestic industry 's performance in the captive market. We agree with the
Appellate Body's reasoning that the absence of competition with imports constitutes a ground for
evaluating, rather than disregarding, the performance of a particular domestic industry in the captive
market, and apply it in the present case.
7.277. In the case at hand, the domestic like product destined for the captive market which was
"shielded from direct competition with imports" amounted to about 50% of the domestic
production.426 That a significant part the domestic production of the like product was shielded from
direct competition with imports would, in our view, have led an objective and unbiased authority to
inquire into whether that part of the domestic production was performing positively. An unbiased
and objective investigating authority would thus have understood the absence of competition with
imports as a ground for, and not against, examining the captive market in analysing the state of the
industry. We therefore consider that the MDCCE's explanation that Maghreb Steel's captive sales do
not compete directly with imports did not serve as a satisfactory explanation based on which the
MDCCE could exclude the captive market from its injury analysis.
7.278. Based on the foregoing, we conclude that the MDCCE acted inconsis tently with Articles 3.1
and 3.4 of the Anti-Dumping Agreement in disregarding the captive market in its injury analysis.

422 Turkey's first written submission, para. 9.27.
423 Morocco's first written submission, paras. 241-243.
425 Appellate Body Report, US – Hot-Rolled Steel, para. 198.

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7.7.2.3 Whether the MDCCE acted inconsistently with Articles 3.1 and 3.4 in relying on
the McLellan report
7.279. As noted in paragraph 7.227. , in its injury analysis, the MDCCE compared projected
performance levels for the domestic industry against the actual performance of the industry across
nine injury factors. These projections were set out in Maghreb Steel's 2008 Business Plan (Business
Plan), which was based on a pre -feasibility report (the McLellan report). 427 The MDCCE considered
both the McLellan report and the Business Plan in its analysis.428 The MDCCE enumerated, however,
certain projections in Maghreb Steel's Business Plan that it noted had proved inaccurate pertaining
specifically to domestic demand, sales of downstream products, and the price of slab, a raw material
used in manufacturing hot -rolled steel. In its final determination, the MDCCE noted the need to
assess these inaccurate projections in light of actual developments, and proceeded to explain why
it considered that the inaccuracies were not significant. 429 After undertaking that assessment, t he
MDCCE stated its decision to rely on the projections in the Business Plan and the McLellan report as
valid benchmarks against which to compare the domestic industry 's actual performance.430 In its
final determination, the MDCCE found that the domestic industry had suffered injury in the form of
material retardation because, among others, the domestic industry 's actual performance fell short
of its projected performance.431
7.280. Turkey contends that the " miscalculations" in the McLellan report identified by the M DCCE
had an impact on the MDCCE 's injury analysis, as the projections in that report formed the
benchmark against which the MDCCE compared the domestic industry's actual performance in order
to assess injury.432 Turkey argues that since the MDCCE failed to properly assess the relevance and
consequences of these miscalculations, the MDCCE's reliance on the McLellan report was incorrect,
and therefore its overall analysis which was based on that study, is inconsistent with Articles 3.1
and 3.4 of the Anti -Dumping Agreement.433 Morocco contends in response that the MDCCE found
that some of the projections in the Business Plan were imprecise rather than incorrect, and in any
event, the MDCCE did not simply accept the projections but assessed them in light of actual
developments. Morocco argues that therefore the MDCCE was correct in relying on the Business Plan
and McLellan report, and did not act inconsistently with Articles 3.1 and 3.4.434
7.281. We must evaluate whether the MDCCE, in relying on the Business Plan (which was based on
the McLellan report), despite having found certain inaccuracies in it, made an injury determination
which was inconsistent with Articles 3.1 and 3.4 of the Anti-Dumping Agreement. In particular, we
must examine whether an unbiased and objective i nvestigating authority would have relied on the
Business Plan despite having found the inaccuracies that the MDCCE found in that document.
7.282. The first inaccuracy in the Business Plan that the MDCCE addressed pertains to the projected
increase in domestic con sumption of hot -rolled steel. The MDCCE found that the Business Plan
forecast an increase in domestic consumption of hot -rolled steel of 10% per year which was not
reached. It noted, however, that domestic consumption of hot -rolled steel did indeed increas e by
6.3% between 2010 and 2012, in contrast to the trend in Europe. It further stated that the total rise
in domestic consumption of hot -rolled steel sheet had, nevertheless, reached 10% between 2010
and 2012.435
7.283. Turkey asserts that the projected domestic demand was about 40% higher than the actual
figure.436 In our view, a projection on domestic consumption of a product would, in the normal
course, affect projections of sales, investment decisions, inventories, among others, of the industry
manufacturing that product. An unbiased and objective investigating authority would therefore have
considered that an overestimation of the projected domestic consumption of hot-rolled steel would,
in all likelihood, lead to an overestimation in the projections of certain factors relevant to the injury
analysis. Morocco contends, however, that the MDCCE analysed what had actually happened in the

429 Final determination, (Exhibit TUR-11), paras. 159-162.
432 Turkey's first written submission, para. 9.32.
433 Turkey's first written submission, para. 9.38.
434 Morocco's first written submission, para. 248.
436 Turkey's first written submission, para. 9.33.

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market, in particular that the domestic consumption of hot -rolled steel had still grown by 6.3%. In
light of that analysis, the MDCCE considered that the inaccuracy at issue, which was only a "slight"
overestimation of demand, did not affect the overall projection. It therefore decided that the use of
these inaccurate projections was appropriate.437 We consider however that the i naccuracy at issue
would have led an unbiased and objective investigating authority to question, and further
investigate, the impact of the inaccuracy on the actual and projected performance of the hot-rolled
steel industry in respect of the relevant injur y factors before dismissing that inaccuracy as
insignificant. The MDCCE however, did not do so. We therefore consider that the MDCCE did not act
objectively in dismissing the inaccuracy in the forecasted domestic consumption of hot -rolled steel
in the Business Plan.
7.284. The second inaccuracy that the MDCCE addressed pertains to projections for the sales of the
downstream product, cold-rolled steel. In particular, the MDCCE found that sales of the downstream
product did not increase by 10% as the Business Plan had forecast. The MDCCE 's determination
indicates that the sales of the downstream product, on the contrary, actually decreased. 438 Turkey
asserts that information on sales of downstream products is critical for a producer of intermediate
goods because an in crease in sales of the downstream products will mean an increase in sales of
the intermediate goods. Turkey argues that therefore the "miscalculation" in the sales of downstream
products in the Business Plan will have had effects on the projections of the hot-rolled steel
industry's production, sales, market share, return on investment, and cash flow, among others.439
7.285. We agree with Turkey that an increase in sales of a downstream product, here cold -rolled
steel, is likely to mean an increase in sales of the intermediate good, here hot-rolled steel, which is
used in the manufacture of that downstream product . T his is because an increase in sales of
cold-rolled steel would imply an increase in demand for the intermediate good, hot -rolled steel. In
the underlying investigation, the MDCCE found that the sales of cold-rolled steel did not increase as
forecasted, but actually declined. Morocco contends that the MDCCE did note that the decrease in
the level of sales of cold-rolled steel however did not lead to slow -down in internal consumption of
hot-rolled steel, which remained "very solid" throughout the period. 440 We understand the
MDCCE's statement that Morocco points to as indicating that the internal consumption of hot-rolled
steel remained strong despite the decr ease in sales of cold -rolled steel. However, that statement
does not indicate that the MDCCE found that the internal consumption of hot -rolled steel remained
"unaffected" by the decrease in sales of cold-rolled steel. In particular, the MDCCE's statement does
not indicate whether the internal consumption of hot-rolled products remained at the same level as
it would have if the sales of cold -rolled steel had risen to the projected level. Therefore, the
MDCCE's statement in question does not suffice as an analysis of the impact of the inaccuracy at
issue on the actual and projected performance of the hot -rolled industry, which we consider an
unbiased and objective investigating authority would have undertaken, before deciding to rely on
the Business Plan.
7.286. The third inaccuracy that the MDCCE identified in the Business Plan pertained to the price of
slab, a raw material used to manufacture hot-rolled steel. The MDCCE noted that the Business Plan
had forecast the price of slab to stand at about US D 440/tonne, whereas the price of slab actually
reached USD 550/tonne during the period under investigation. Turkey asserts that considering that
slab is an intermediate product used to manufacture hot-rolled steel, the price of slab forms part of
the cost-structure of hot-rolled steel. An incorrect projection of the price of slab therefore means an
incorrect projection of the cost -structure of the hot -rolled industry, and must have had an impact
on business decisions, such as investment and production capacity, among o thers.441 Morocco
contends in response that the MDCCE found that the inaccurate projection of the price of slab did
not have a major effect in Maghreb Steel 's overall operations because the MDCCE considered that
Maghreb Steel quickly reduced its purchases of slab as its electric steel plant was put into operation
in 2012.442
7.287. In our view, an unbiased and objective investigating authority would consider that an
inaccurate projection of the price of slab, given that it is an intermediate product used to

437 Morocco's first written submission, para. 249.
439 Turkey's first written submission, para. 9.34.
440 Morocco's first written submission, para. 250 (referring to Final determination, (Exhibit TUR-11),
para. 161).
441 Turkey's first written submission, para. 9.36.
442 Morocco's first written submission, para. 251.

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manufacture hot-rolled steel, would affect the projected cost of production of hot -rolled steel, and
therefore the projections of the hot-rolled industry's performance. Such an authority would consider
that because the domestic industry's actual performance was compared against those projections of
the domestic industry 's performance to analyse injury to the industry, an inaccurately projected
price of slab could affect the overall injury analysis. In the case at hand, the MDCCE dismissed the
significance of the inaccuracy in the projected price of slab on the basis that Maghreb Steel quickly
stopped purchasing slab. We consider that the MDCCE's explanation was not reasoned and adequate.
As Turkey asserts 443, Maghreb Steel 's electric works were implemented in 2012, whic h even
assuming that the works were implemented in January 2012, was 19 months after the company
began producing hot -rolled steel. We recall that the entire 19 -month period fell within the injury
period.444 We agree with Turkey that in those 19 months, the i naccuracy in the projected price of
slab was likely to have had an impact on Maghreb Steel 's performance. We therefore consider that
the MDCCE did not act objectively in dismissing the significance of the inaccuracy in the projected
price of slab, without investigating the actual impact of the inaccuracy on the hot -rolled steel
industry's performance.
7.288. Based on the foregoing, we take the view that the inaccuracies in the Business Plan were of
a nature that an unbiased and objective investigating authority would not have relied on them,
without further analysis. The MDCCE dismissed the significance of the inaccuracies in the Business
Plan, without further investigating the impact of those inaccuracies on Maghreb Steel 's actual and
projected performance level s, and did so based on explanations that were not reasoned and
adequate. Therefore, the MDCCE improperly relied on the McLellan report (on which the Business
Plan was based). As a result, we find that the MDCCE's overall injury analysis, which was based on
that report, is inconsistent with Articles 3.1 and 3.4 of the Anti-Dumping Agreement.
7.7.3 Overall Conclusion
7.289. For the foregoing reasons, we conclude that:
a. The MDCCE acted inconsistently with Articles 3.1 and 3.4 of the Anti-Dumping Agreement
in failing to evaluate 5 of the 15 injury factors listed in Article 3.4, in particular, return on
investments, actual and potential negative effects on cash flow, growth, wages, and ability
to raise capital or investments. T he MDCCE did not act inconsistently with Articles 3.1
and 3.4 by failing to evaluate factors affecting domestic prices.
b. The MDCCE acted inconsistently with Articles 3.1 and 3.4 of the Anti-Dumping Agreement
in disregarding the captive market in its injury analysis.
c. The MDCCE, in relying in its injury analysis on the McLellan report (on which the Business
Plan was based) without properly investigating the significance of inaccuracies in that
report, did not base its injury determination on an objective examination, and therefo re
acted inconsistently with Articles 3.1 and 3.4 of the Anti-Dumping Agreement.
8 CONCLUSIONS AND RECOMMENDATION
8.1. For the reasons set out in this Report, we conclude that the following claims of Turkey are
outside our terms of reference:
a. the claim under foot note 9 to Article 3 of the Anti-Dumping Agreement in respect of the
MDCCE's finding of "establishment";
b. the claims under Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement in respect of the
confidential treatment of the domestic industry's (Maghreb Steel) break-even threshold;
and

443 Turkey's first written submission, para. 9.37.
444 See fn 347 above.

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

c. the claim under Article 6.9 of the Anti-Dumping Agreement in respect of the alleged failure
to inform all interested parties of the domestic industry 's (Maghreb Steel) break-even
threshold.
8.2. For the procedural reasons set out in this Report, we decline to rule on:
a. the claim under Article VI:6(a) of the GATT 1994 in respect of the MDCCE's finding of
"establishment"; and
b. the claim under Article 6.9 of the Anti -Dumping Agreement in respect of any "essential
facts" used by the MDCCE in cross-checking the facts available rate.
8.3. For the reasons set out in this Report, we conclude that Turkey has established that Morocco
acted inconsistently with:
a. Article 5.10 of the Anti-Dumping Agreement by failing to conclude the investigation within
the 18-month maximum time limit set out in that provision;
b. Article 6.8 of the Anti -Dumping Agreement by rejecting the reported information and
establishing the margins of dumping for the two investigated Turkish producers on the
basis of facts available;
c. Article 6.9 of the Anti -Dumping Agreement by failing to inform all interested parties of :
(i) any essential facts in respect of the additional, unidentified export sales that the MDCCE
considered the producers to have failed to report; and (ii) the essential facts in respect of
the data for the C&F prices and for the adjustments used in arriving at the
producers' margins of dumping using facts available;
d. Article 3.1 of the Anti-Dumping Agreement in determining that the domestic industry was
"unestablished";
e. Articles 3.1 and 3.4 of the Anti-Dumping Agreement by improperly conducting the injury
analysis in t he form of "material retardation of the establishment of the domestic
industry"; and
f. Articles 3.1 and 3.4 of the Anti -Dumping Agreement by: (i) failing to evaluate 5 of the
15 injury factors listed in Article 3.4; (ii) disregarding the captive market in th e injury
analysis; and (iii) relying in the injury analysis on the McLellan report without properly
investigating the significance of inaccuracies in that report.
8.4. For the reasons set out in this Report, we conclude that Turkey has not established that Morocco
acted inconsistently with:
a. Article 6.9 of the Anti-Dumping Agreement by failing to inform all interested parties of the
movement certificates and commercial invoices in respect of the [[ ***]] tonnes of
allegedly unreported export sales in sufficient time for the two investigated Turkish
producers to defend their interests; and
b. Articles 3.1 and 3.4 of the Anti -Dumping Agreement by failing to evaluate "factors
affecting domestic prices".
8.5. We do not consider it necessary to address Turkey's claims under paragraphs 1, 3, 5, 6, and 7
of Annex II of the Anti-Dumping Agreement.
8.6. Pursuant to Article 3.8 of the DSU, in cases where there is an infringement of the obligations
assumed under a covered Agreement, the action is considered prima facie to constitute a case of
nullification or impairment of benefits under that Agreement. Accordingly, to the extent the MDCCE
has acted inconsistently with certain provisions of the Anti -Dumping Agreement, we conclude that
Morocco has nullified or impaired benefits accruing to Turkey under this Agreement.

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

8.7. Pursuant to Article 19.1 of the DSU, we recommend that Morocco bring its measures into
conformity with its obligations under the above-mentioned Agreement.
8.8. In light of the inconsistencies of the measures with the Anti -Dumping Agreement, including
with Article 5.10, Turkey also requests the Panel to exercise its discretion under the second sentence
of Article 19.1 of the DSU and to suggest that Morocco bring its measures into conformity with its
WTO obligations by immediately revoking the anti-dumping measure at issue.445
8.9. We consider that Article 19.1 of the DSU allows, but does not require, us to suggest ways in
which the Member concerned could implement the Panel's recommendations.446 Further,
implementation of DSB recommendations and rulings is left, in the first instance, to the discretion
of the implementing Member.447 We therefore deny Turkey's request.

Rolled Steel, para. 8.11.