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 REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 18 January 2018
Document codes: WT/DS427/RW
Complainant: U.S.
Respondent: China
Third parties: EU, Japan, Norway, Thailand, Saudi Arabia, Chile, Mexico
Dispute stage: Panel
Agreements cited: Art. 2.2, 2.2.1.1, 2.4, 6.8, 12.2.1, 12.2, 6.9, 12.7  Anti-dumpingArt. 12.7  Subsidies and Countervailing Measures (SCM)Art. VI:3  GATT 1994Art. 19.4, 22.3, 22.4, 22.5, 12.8  Subsidies and Countervailing Measures (SCM)Art. 3.1, 3.2, 3.5, 6.4  Anti-dumpingArt. 15.5, 12.3  Subsidies and Countervailing Measures (SCM)Art. 3.4  Anti-dumpingArt. 15.1, 15.2, 12.4.1  Subsidies and Countervailing Measures (SCM)Art. 6.2  Anti-dumpingArt. VI  GATT 1994Art. 1  Anti-dumpingArt. 10  Subsidies and Countervailing Measures (SCM)

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
REPORT OF THE PANEL

LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL AND INTERIM REVIEW
Contents Page
Annex A-1 Working Procedures of the Panel A-2
Annex A-2 Additional Working Procedures of the Panel concerning Business Confidential
Information
A-6
Annex A-3 Interim Review A-8
ANNEX B
ARGUMENTS OF THE UNITED STATES
Contents Page
Annex B-1 Executive summary of the First Written Submission of the United States B-2
Annex B-2 Executive summary of the Second Written Submission of the United States B-10
Annex B-3 Executive summary of the Opening Oral Statement of the United States at the
Substantive Meeting of the Panel
B-18
ANNEX C
ARGUMENTS OF CHINA
Contents Page
Annex C-1 Executive summary of the First Written Submission of China C-2
Annex C-2 Executive summary of the Second Written Submission of China C-10
Annex C-3 Executive summary of the Oral Statements of China at the Substantive Meeting
of the Panel
C-18
ANNEX D
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex D-1 Integrated executive summary of the arguments of the European Union D-2
Annex D-2 Integrated executive summary of the arguments of Japan D-4
ANNEX E
PRELIMINARY RULING
Contents Page
Annex E-1 Ruling by the Panel on jurisdictional issues dated 22 March 2017 E-2

CASES CITED IN THIS REPORT
Short title Full case title and citation
Argentina – Hides and
Leather (Article 21.3(c))
Award of the Arbitrator, Argentina – Measures Affecting the Export of Bovine
Hides and the Import of Finished Leather – Arbitration under Article 21.3(c) of
the DSU, , 31 August 2001, DSR 2001:XII, p. 6013
Canada – Aircraft
(Article 21.5 – Brazil)
Appellate Body Report, Canada – Measures Affecting the Export of Civilian
Aircraft – Recourse by Brazil to Article 21.5 of the DSU, WT/DS70/AB/RW,
adopted 4 August 2000, DSR 2000:IX, p. 4299
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 – 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
China – HP-SSST (Japan) /
China – HP-SSST (EU)
Panel Reports, China – Measures Imposing Anti-Dumping Duties on
High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan /
China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless
Steel Seamless Tubes ("HP-SSST") from the European Union, WT/DS454/R and
Add.1 / WT/DS460/R, Add.1 and Corr.1, adopted 28 October 2015, as modified
by Appellate Body Reports WT/DS454/AB/R/ WT/DS460/AB/R
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 – 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)
Appellate Body 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/AB/RW, adopted 24 April 2003, DSR 2003:III, p. 965
EC – Bed Linen
(Article 21.5 – India)
Panel Report, European Communities – Anti-Dumping Duties on Imports of
Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSU by
India, WT/DS141/RW, adopted 24 April 2003, as modified by Appellate Body
Report WT/DS141/AB/RW, DSR 2003:IV, p. 1269
EC – 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 – Fasteners (China)
(Article 21.5 – China)
Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China – Recourse to
Article 21.5 of the DSU by China, WT/DS397/AB/RW and Add.1, adopted
12 February 2016
EC – Fasteners (China)
(Article 21.5 – China)
Panel Report, European Communities – Definitive Anti-Dumping Measures on
Certain Iron or Steel Fasteners from China – Recourse to Article 21.5 of the
DSU by China, WT/DS397/RW and Add.1, adopted 12 February 2016, as
modified by Appellate Body Report WT/DS397/AB/RW
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

Short title Full case title and citation
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the
Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July 1998,
DSR 1998:V, p. 2031
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 – 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
EU – Biodiesel (Argentina) Appellate Body Report, European Union – Anti-Dumping Measures on Biodiesel
from Argentina, WT/DS473/AB/R and Add.1, adopted 26 October 2016
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
India – Quantitative
Restrictions
Panel Report, India – Quantitative Restrictions on Imports of Agricultural,
Textile and Industrial Products , WT/DS90/R, adopted 22 September 1999,
upheld by Appellate Body Report WT/DS90/AB/R, DSR 1999:V, p. 1799
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
Russia – Commercial
Vehicles
Panel Report, Russia – Anti-Dumping Duties on Light Commercial Vehicles from
Germany and Italy, WT/DS479/R and Add.1, circulated to WTO Members
27 January 2017 [appealed by Russia 20 February 2017]
Thailand – H-Beams Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections
of Iron or Non-Alloy Steel and H-Beams from Poland, WT/DS122/R, adopted
5 April 2001, as modified by Appellate Body Report WT/DS122/AB/R,
DSR 2001:VII, p. 2741
Ukraine – Passenger Cars Panel Report, Ukraine – Definitive Safeguard Measures on Certain Passenger
Cars, WT/DS468/R and Add.1, adopted 20 July 2015
US – Clove Cigarettes Appellate Body Report, United States – Measures Affecting the Production and
Sale of Clove Cigarettes, WT/DS406/AB/R, adopted 24 April 2012,
DSR 2012: XI, p. 5751
US – COOL Appellate Body Reports, United States – Certain Country of Origin Labelling
(COOL) Requirements, WT/DS384/AB/R / WT/DS386/AB/R, adopted
23 July 2012, DSR 2012:V, p. 2449
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 – Large Civil Aircraft
(2nd complaint)
(Article 21.5 – EU)
Panel Report, United States – Measures Affecting Trade in Large Civil Aircraft
(Second Complaint) – Recourse to Article 21.5 of the DSU by the European
Union, WT/DS353/RW and Add.1, circulated to WTO Members 9 June 2017
[appealed by the European Union 29 June 2017]
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

Short title Full case title and citation
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
US – Softwood Lumber IV
(Article 21.5 – Canada)
Appellate Body Report, United States – Final Countervailing Duty Determination
with Respect to Certain Softwood Lumber from Canada – Recourse by Canada
to Article 21.5 of the DSU, WT/DS257/AB/RW, adopted 20 December 2005,
DSR 2005:XXIII, p. 11357
US – Softwood Lumber IV
(Article 21.5 – Canada)
Panel Report, United States – Final Countervailing Duty Determination with
Respect to Certain Softwood Lumber from Canada – Recourse by Canada to
Article 21.5 [of the DSU], WT/DS257/RW, adopted 20 December 2005, upheld
by Appellate Body Report WT/DS257/AB/RW, DSR 2005:XXIII, p. 11401
US – Softwood Lumber V Appellate Body Report, United States – Final Dumping Determination on
Softwood Lumber from Canada, WT/DS264/AB/R, adopted 31 August 2004,
DSR 2004:V, p. 1875
US – Softwood Lumber 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 – 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 – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Certain Steel Products, WT/DS248/AB/R, WT/DS249/AB/R,
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R,
WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003, DSR 2003:VII,
p. 3117
US – 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

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
AUV Average unit values
CIF Cost, insurance, freight
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
GATT 1994 General Agreement on Tariffs and Trade 1994
JT&N Jincheng Tongda & Neal
Keystone Keystone Foods, LLC
MOFCOM Ministry of Commerce of the People's Republic of China
Pilgrim's Pride Pilgrim's Pride Corporation
POI Period of investigation
Redetermination Ministry of Commerce, Notice No. 44 of 8 July 2014 of the Redetermination of
the Reinvestigation on the Anti -dumping and Countervailing Measures Imposed
on the Broiler Products Originating in the US
SCM Agreement Agreement on Subsidies and Countervailing Measures
Steptoe Steptoe & Johnson LLP
RMB Chinese Renminbi
Tyson Tyson Foods, Inc.
Vienna Convention Vienna Convention on the Law of Treaties, Do ne at Vienna, 23 May 1969,
1155 UNTS 331; 8 International Legal Materials 679
WTO World Trade Organization

1 INTRODUCTION
1.1 Complaint by the United States
1.1. This compliance dispute concerns the challenge by the United States to measures taken by
China to comply with the rulings and recommendations of the Dispute Settlement Body (DSB) in
the original proceeding China – Anti-Dumping and Countervailing Duty Measures on Broiler
Products from the United States.
1.2. Paragraph 1 of the Agreed Procedures under Articles 21 and 22 of the Understanding on
Rules and Procedures Governing the Settlement of Disputes (DSU) reached between the
United States and China states that "[s]hould the United States consider that the situation
described in Article 21.5 of the DSU exists, the United States will request that China enter into
consultations with the United States." The United States considered that China's measures taken
to comply with the recommendation s and rulings of the DSB in China – Anti-Dumping and
Countervailing Duty Measures on Broiler Products from the United States are not consistent with
the covered a greements and therefore requested, on 17 May 2016, that China enter into
consultations.
1.3. Consultations were held on 24 May 2016, but failed to resolve the dispute.
1.2 Panel establishment and composition
1.4. On 27 May 2016 , the United States requested the establishment of a panel pursuant to
Articles 6 and 21.5 of the DSU with standard terms of reference.1
1.5. At its meeting on 22 June 2016 , the DSB referred this dispute, if possible , to the original
Panel, in accordance with Article 21.5 of the DSU.
1.6. The Panel's terms of reference are the following:
To examine, in the light of the relevant provisions of the cove red agreements cited by
the parties to the dispute, the matter referred to the DSB by the United States in
documents WT/DS427/11 and WT/DS427/11/Corr.1 and to make such findings as will
assist the DSB in making the recommendations or in giving the rulings provided for in
those agreements.2
1.7. In accordance with Article 21.5 of the DSU, the Panel was composed on 18 July 2016 as
follows:
Chairperson: Mr Faizullah Khilji
Members: Mr Serge Fréchette
 Ms Claudia Orozco
1.8. Brazil, Ecuador, the European Union, and Japan reserved their rights to participate in the
Panel proceedings as third parties.
1.3 Panel proceedings
1.3.1 General
1.9. After consulting the parties, the Panel:
a. adopted its Working Procedures3 and timetable on 9 November 2016;
b. revised the timetable on 1 December 2016, and again on 4 July 2017; and

1 Request for the establishment of a panel by the United States, WT/DS427/11 and
WT/DS427/11/Corr.1 (United States' panel request).
2 Constitution note of the Panel, WT/DS427/12.
3 See the Panel's Working Procedures in Annex A-1.

c. adopted, on 22 November 2016, additional procedures for the protection of Business
Confidential Information (BCI).4
1.10. The Panel held its substantive meeting with the parties on 25 and 26 April 2017 . A session
with the third parties took place on 26 April 2017 . The Panel issued its Interim Report to the
parties on 22 September 2017 . The Panel issued its Final Report to the parties on
17 November 2017.
1.11. In these panel proceedings, each party raised concerns regarding the late submission of
exhibits by the other party, outside of the deadlines prescribed by the Working Procedures adopted
by the Panel. 5 As necessary and appropriate, we address the substance of the se concerns in our
findings below. We do , however, stress the importance of adherence by all parties and
third parties to the time -limits for filing submissions provided for in the timetable, including
exhibits, in the interests of fairness and the orderly conduct of panel proceedings.
1.3.2 Preliminary ruling
1.12. In its first and second written submissions, China requested the Panel to rule that certain
claims addressed by the United States are not within the scope of its request for the establishment
of a panel in this dispute and are therefore not within the juri sdiction of this Panel. The
United States responded to China's request in its second written submission.
1.13. By communication dated 22 March 2017, the Panel issued a preliminary ruling , set out in
Annex E-1.
2 THE MEASURES AT ISSUE
2.1. This dispute concerns measures taken by China to implement the DSB recommendations and
rulings in China – Anti-Dumping and Countervailing Duty Measures on Broiler Products from the
United States. These measures comprise the Ministry of Commerce of the People 's Republic of
China ( MOFCOM)'s r edetermination6 issued on 8 July 2014 and the continued imposition of
anti-dumping and countervailing duties on imports of broiler products from the United States.
3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1. The United States requests that the Panel find that the measures at issue are inconsistent
with the following provisions7:
a. Articles 3.1 and 3.2 of the Agreement on Impleme ntation of Article VI of the General
Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement ), and Articles 15.1
and 15.2 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement),
because MOFCOM's analysis of the alleged price effects of imports under investigation
did not involve an objective examination of the record and was not base d on positive
evidence. For example, MOFCOM:
i. failed to account for differences in the product mix between the average unit value
(AUV) of subject imports and the AUV of domestic sales;
ii. failed to explain how it collected product -specific pricing data in the reinvestigation,
why data was solicited from only four domestic producers, and what proportion of
total domestic industry sales were covered by the data;

4 See Additional Working Procedures of the Panel concerning Business Confidential Information,
Annex A-2.
5 United States' general comments on China's response to Panel questions, paras. 2-4; China's letter
dated 12 June 2017 to the Chairperson of the Panel.
6 Ministry of Commerce, Notice No. 44 of 8 July 2014 of the Redetermination of the Reinvestigation on
the Anti-dumping and Countervailing Measures Imposed on the Broiler Products Originating in the US
(Redetermination), (Exhibit CHN-1 (translated version), also submitted as Exhibit USA-9 (translated version)).
7 As set out in the United States' panel request.

iii. failed to explain how the alleged price underselling could have suppressed domestic
prices in the fir st half of 2009 when similar underselling had no price suppressive
effects at other points during the period of investigation (POI); and
iv. failed to address evidence that prices for domestically produced products that
competed with subject imports declined f ar less than prices for other domestic
products in the first half of 2009.
b. Articles 3.1 and 3.4 of the Anti -Dumping Agreement, and Articles 15.1 and 15.4 of the
SCM Agreement , because MOFCOM's findings that subject imports had an adverse
impact on the dome stic industry did not involve an objective evaluation of all relevant
economic factors and indices having a bearing on the state of the industry. For example,
MOFCOM did not address economic evidence and factors that contradicted its finding
that the industry was suffering material injury on account of US imports.
c. Articles 3.1 and 3.5 of the Anti -Dumping Agreement, and Articles 15.1 and 15.5 of the
SCM Agreement , because MOFCOM's determination that subject imports were causing
injury to the domestic industr y was not based on an examination of all relevant
evidence, including that subject import volume did not increase at the expense of the
domestic industry and that a large portion of subject imports consisted of products that
could not have been injurious, and was based on MOFCOM's flawed price and impact
analyses.
d. Articles 6.4 and 6.5 of the Anti -Dumping Agreement, and Articles 12.3 and 12.4 of the
SCM Agreement, because during the reinvestigation MOFCOM did not provide interested
parties timely opportuniti es to see all non -confidential information that was relevant to
their case and that was used by the investigating authority, and MOFCOM treated
information as confidential absent good cause. For example, MOFCOM failed to disclose
the questionnaires it subm itted to Chinese domestic producers during the
reinvestigation.
e. Article 6.1 of the Anti -Dumping Agreement and Article 12.1 of the SCM Agreement
because during the reinvestigation MOFCOM did not provide notice of the information
that MOFCOM required and did not provide interested parties ample opportunity to
present in writing all evidence they considered relevant. For example, MOFCOM did not
disclose the questionnaires it submitted to Chinese domestic producers during the
reinvestigation.
f. Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the SCM Agreement
because MOFCOM failed to inform interested Members and parties of the essential facts
under consideration which form the basis for its decision to apply definitive measures.
For example, MOFCOM did not disclose the calculations utilized to determine the
dumping and subsidy margins for US producers.
g. Articles 12.2 and 12.2.2 of the Anti-Dumping Agreement, and Articles 22.3 and 22.5 of
the SCM Agreement , because MOFCOM failed to provide in sufficien t detail the findings
and conclusions reached on all issues of fact and law it considered material, all relevant
information on matters of fact and law and the reasons which led to the imposition of
final measures, and the reasons for the acceptance or rejection of relevant arguments or
claims. For example, MOFCOM's explanations with respect to its findings for its material
injury determination fail to address key arguments made by interested parties.
h. Articles 2.2 and 2.2.1.1 of the Anti -Dumping Agreement because MOFCOM improperly
calculated the cost of production for US producers, failed to calculate costs on the basis
of the records kept by the US producers under investigation, and did not consider all
available evidence on the proper allocation of costs . For example, MOFCOM allocated
production costs of non -subject merchandise to subject merchandise and failed to
properly allocate processing costs for subject merchandise.
i. Article 9.4 of the Anti -Dumping Agreement because MOFCOM applied to imports from
producers and exporters not included in the examination – and to which the application

of facts available was not warranted – an anti-dumping duty that exceeded the weighted
average margin of dumping established with respect to the selected exporters or
producers. For example, MOFCOM failed to correctly c alculate dumping margins for
US interested parties, and then applied a rate to imports from producers and exporters
not included in the examination that exceeded the selected exporters or producers'
weighted average margin of dumping.
j. Article 6.8 and Annex II of the Anti -Dumping Agreement (including, inter alia ,
paragraphs 1, 3, 5, and 6) because MOFCOM made determinations for US producers on
the basis of the facts available even though it:
i. failed to specify i n detail the information required from interested parties and the
manner in which it should be structured;
ii. did not take into account verifiable and appropriately submitted information; and
iii. failed to provide supplying parties of the reasons evidence or info rmation was
rejected and an opportunity to provide further explanations.
k. Article 1 of the Anti -Dumping Agreement as a consequence of the breaches of the
Anti-Dumping Agreement described above.
l. Article 10 of the SCM Agreement as a consequ ence of the breaches of the
SCM Agreement described above.
m. Article VI of the General Agreement on Tariffs and Trade (GATT) 1994 as a consequence
of the breaches of the Anti -Dumping Agreement and the SCM Agreement described
above.
3.2. China requests that the Panel reject the US claims in this dispute in their entirety.
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 18 of the Working Procedures.8
5 ARGUMENTS OF THE THIRD PARTIES
5.1. The arguments of the European Union and Japan are reflected in their executive summaries,
provided in accordance with paragraph 19 of the Working Procedures.9 Brazil and Ecuador did not
submit written or oral arguments to the Panel.
6 INTERIM REVIEW
6.1. We issued the Interim Report to the parties on 22 September 2017. On 28 September 2017
China requested a one week extension of the deadline for submitting written requests for the Panel
to review aspects of the interim report.10 On 29 September 2017 we sought comments from the
United States. On 2 October 2017 the United States submitted a response in which it agreed to
China's request for an extension on condition that there be no change in the date for the release of
the Final R eport.11 On 3 October 2017, the Chair of the Panel transmitted the following
communication to the parties:
I refer to China's letter of 28 September 2017 and the response of the United States
in its letter of 2 October 2017. China requests that the Panel ex tend the time -period
for comments on the Interim Report from 6 October to 13 October 2017, to
accommodate a Chinese national holiday. In the event China's request is acceded to,

8 See the parties' executive summaries in Annexes B-1 to B-3 and C-1 to C-3.
9 See the European Union's and Japan's executive summaries in Annexes D-1 and D-2.
10 Letter dated 28 September 2017 from China to the Panel.
11 Letter dated 2 October 2017 from the United States to the Panel.

the United States requests a commensurate extension of the deadline for commen ts
without further delay in the issuance of the final report.
My colleagues and I are sensitive to the importance of accommodating national
holidays in timetables where possible. It may be recalled, for instance, that following
their comments at the organizational meeting, the parties' requests to avoid domestic
holiday periods (Thanksgiving, Christmas and Chinese New Year) were accommodated
in setting the dates for the first and second written submissions.
It may also be kindly recalled that both parties were provided with the final revised
timetable on 4 July 2017. China did not raise any concerns about the timetable at that
time or, indeed, at any point before its letter of 28 September 2017. In its letter,
China merely requests a one-week delay in the deadline for submission of requests for
interim review. It neither explains why it failed to alert the Panel earlier of the
possible impact of the Chinese National Day holiday on its ability to comment on the
Interim Report, nor explains why it failed to do so at this point until nearly a week
after it received the Interim Report.
It needs emphasizing that the Panel is mindful of the importance of national holidays,
and recalls that it took such holidays into account in establishing the original timetable
in this dispute. However, the Panel is also concerned with preserving the integrity of
dispute settlement procedures and protecting the rights of both parties. In this regard,
the Panel considers that it is necessary, as a rule, for a party to a dispute to:
1. raise procedural objections at the earliest point at which it becomes
or ought to become aware of the facts underlying those objections;
and

2. if it is unable to do so, set out clearly in its request for a remedy
the reason why it could not have made its objections earlier.
China's letter of 28 September 2017 came very late in the proceedings – well after
China knew, or should have known, of the potential conflict with its holiday. China's
letter contains no explanation or justification for raising its objection so late in the
proceedings, more than two months after the final revised timetable was issued to the
parties. Please note that the Unite d States requests a commensurate extension of the
deadline for comments, in the event that China's request is acceded to, but further
asks that the issuance of the final report not be delayed. It is not possible for the
Panel to accommodate both parties in this matter. In these circumstances, and having
considered the interests of both parties and of orderly proceedings and the needs of
the Panel, the Panel has decided on balance to deny China's request for an extension
of time to request review of precise aspects of the interim report.
The dates for the remainder of this dispute, as set forth in the Timetable circulated to
the parties on 4 July 2017 are therefore confirmed:
 Deadline for parties to request review of part(s) of the report and
to request interim review meeting: 6 October 2017, 5 p.m.
 Interim review meeting, if requested – If no meeting requested,
deadline for comments on requests for review: 20 October 2017,
5 p.m.
 Issuance of final report to the parties: 17 November 20 17,
5 p.m.12
6.2. The parties s ubmitted their written requests for the Panel to review aspects of the interim
report and subsequent comments on those requests in accordance with the established deadlines.

12 Emphasis original.

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.13 Articles 31 and 32 of the Vienna Convention on the Law
of Treaties codify in part these customary rules. 14 Finally, WTO M inisters have recognized with
respect to the Anti -Dumping Agreement and Part V of the SCM Agreement, "the need for the
consistent resolution of disputes arising from anti-dumping and countervailing duty measures".15
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 before 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;
(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 Agreemen t 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 is required to 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 reasoned16 and adequate17 explanation as
to:

13 Article 17.6(ii) also provides that if a panel finds that a provision of the Anti-Dumping Agreement
admits of more than one permissible interpretation, it shall uphold a measure that rests upon one of those
interpretations.
14 Appellate Body Report, US – Gasoline, p. 17.
15 Declaration on Dispute Settlement Pursuant to the Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 or Part V of the Agreement on Subsidies and Countervailing
Measures.
16 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."
17 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."

i. how the evidence on the record supported its factual findings18, and
ii. how those factual findings support the overall determination19;
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 course of the investigation20;
d. take into account all such evidence submitted by the parties to the dispute21; 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".22
7.1.3 Burden of proof
7.3. In WTO dispute settlement, "the burd en of proof rests upon the party, whether complaining
or defending, who asserts the affirmative of a particular claim or defence". 23 Where a party
"adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then
shifts to th e other party, who will fail unless it adduces sufficient evidence to rebut the
presumption".24 A complaining party establishes a prima facie case where, in the absence of
effective refutation by the defending party, a panel is required as a matter of law t o rule in favour
of the complaining party.25
7.1.4 Article 21.5 proceedings
7.4. A panel in an Article 21.5 proceeding related to anti -dumping and countervailing
investigations has three key and closely related responsibilities. It is charged with making findings
as to whether:
a. the measures found inconsistent with the WTO Agreement have been brought into
conformity;
b. the "measures taken to comply" 26 are otherwise substa ntively consistent with the
WTO Agreement27; and
c. in seeking to bring itself into compliance, the investi gating authority observed the
procedural protections of the relevant WTO agreements in the compliance
investigation/determination/proceedings.

18 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."
19 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."
20 Anti-Dumping Agreement, Article 17.5(ii); Appellate Body Report, US – Countervailing Duty
Investigation on DRAMS, para. 187.
21 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS, para. 187.
22 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 93.
23 Appellate Body Report, US – Wool Shirts and Blouses, p. 14.
24 Appellate Body Report, US – Wool Shirts and Blouses, p. 14.
25 Appellate Body Report, EC – Hormones, paras. 98 and 104.
26 Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 77; and Panel
Reports, US – Softwood Lumber IV (Article 21.5 – Canada), para. 4.41; US – Large Civil Aircraft
(2nd complaint) (Article 21.5 – EU), paras. 7.160 and 7.165.
27 Appellate Body Report, Canada – Aircraft (Article 21.5 – Brazil), paras. 40-41.

7.5. In a compliance reinvestigation and redetermination it is not enough for an investigating
authority to only addre ss specific items of concerns identified by a panel in its original report
finding inconsistency/ies. Although resolving problems identified by a panel in an original
proceeding may well be the sine qua non in bringing the measure at issue into conformity, an
adopted panel report requires a Member to bring its measu re into conformity with the
WTO Agreement/s at issue, and not just the specific findings.
7.2 Article 2.2.1.1 of the Anti-Dumping Agreement: the proper allocation of costs
7.2.1 Introduction
7.2.1.1 Our findings in the original report
7.6. In the original report, we made certain findings under the first and the second sentences of
Article 2.2.1.1 of the Anti-Dumping Agreement, which provide:
For the purpose of paragraph 2, costs shall normally be calculated on the basis of
records kept by the exporter or producer under investigation, provided that such
records are in accordance with the generally accepted accounting principles of the
exporting country and reasonably refl ect the costs associated with the production and
sale of the product under consideration. Authorities shall consider all available
evidence on the proper allocation of costs, including that which is made available by
the exporter or producer in the course of the investigation provided that such
allocations have been historically utilized by the exporter or producer, in particular in
relation to establishing appropriate amortization and depreciation periods and
allowances for capital expenditures and other development costs.
The issue before us in this proceeding is whether, in its redetermination, MOFCOM complied with
the second sentence of Article 2.2.1.1. Given the structure of the provision and the arguments of
the parties in these proceedings, it is useful to briefly revisit our findings under both sentences of
Article 2.2.1.1:
First sentence
a. The two conditions of the first s entence of Article 2.2.1.1 are cumulative 28: for the
requirement to use the respondents' books and records to apply, those books and
records must be both consistent with Generally Acceptable Accounting Principles and
reasonably reflect costs associated with production and sale.29
b. An investigating authority is required to explain why it has declined to use a
respondent's books and records.30
c. MOFCOM did not explain its decision not to use the books and records of Keystone
Foods, LLC ( Keystone) and Tyson Foods, Inc. (Tyson), but in respect of Pilgrim's Pride
Corporation (Pilgrim's Pride) it specifically found "the data as originally submitted was
irreconcilable and that the information to correct the errors was untimely".31
d. China acted inconsistently with the first sentence of Article 2.2.1.1 when MOFCOM
declined to use Keystone's and Tyson's books and records in calculating the cost of
production for determining normal value.
e. With respect to Pilgrim's Pride, MOFCOM explained its reasons for departing from the
norm and declining to use Pil grim's Pride books and records. Therefore, with respect to

28 Panel Report, EC – Salmon (Norway), para. 7.483.
29 Panel Report, China – Broiler Products, para. 7.166.
30 Panel Report, China – Broiler Products, para. 7.161.
31 Panel Report, China – Broiler Products, para. 7.173.

Pilgrim's Pride, the United States did not establish that China acted inconsistently with
the first sentence of Article 2.2.1.1.32
Second sentence
a. The requirement to "c onsider" evidence goes beyond merely taking note of evidence; it
entails examining, and weighing the merits of, relevant evidence.33
b. An investigating authority is required to engage in "some degree of deliberation" in
considering "all available evidence … s o as to ensure that there is a proper allocation of
costs".34
c. Although an investigating authority will not always have to examine and weigh the
merits of evidence relating to alternative allocation methodologies, the circumstances of
a particular case may r equire such consideration in o rder to act co nsistently with
Article 2.2.1.135 and this must be reflected in the record of its decision.36
d. "Given the explanations and alternative cost methodologies proposed to MOFCOM by the
respondents, there was 'compelling evidence' that more than one allocation methodology
potentially may be appropriate. Therefore, MOFCOM was required to reflect on and
weigh the merits of the various allocation methodologies".37
e. MOFCOM acted inconsistently with the second sentence of Article 2.2.1.1 because there
was "no evidence on the record of the investigation that the merits of the alternative
allocation methodologies put forward by the respondents after the Preliminary
Anti-Dumping Determination were weighed or reflected upon".38
f. MOFCOM's straight allocation of total processing costs to all products necessarily means
that it included costs solely associated with processing certain subject broiler products in
its calculation of costs to all subject broiler products.39
g. Evidence relied upon b y China did not support its position that "the per pound costs
assigned to each product were derived from total cost minus the costs associated with
the production of the products derived from a chicken that are not in the list".40
h. MOFCOM acted inconsistently with the second sentence of Article 2.2.1.1 also because it
"improperly allocated costs from certain products derived from a chicken to other
products derived from a chicken".41
7.2.1.2 MOFCOM's redetermination
7.2.1.2.1 Tyson
7.7. For certain product models, the volume of like products sold in the domestic market
accounted for less than 5% of Tyson's total volume of "the product concerned" 42 exported to
China. Accordingly, MOFCOM proceeded to construct the normal value "by using weighted average
production cost, plus reasonable expenses and profit".43

32 Panel Report, China – Broiler Products, para. 7.175.
33 Panel Report, China – Broiler Products, para. 7.187.
34 Panel Report, China – Broiler Products, para. 7.188.
35 Panel Report, China – Broiler Products, para. 7.190.
36 Panel Report, China – Broiler Products, para. 7.192.
37 Panel Report, China – Broiler Products, para. 7.193. (emphasis added)
38 Panel Report, China – Broiler Products, para. 7.195. (emphasis added)
39 Panel Report, China – Broiler Products, para. 7.196.
40 Panel Report, China – Broiler Products, para. 7.197.
41 Panel Report, China – Broiler Products, para. 7.197. (emphasis added)
42 We understand that by "product concerned", the determination is referring to chicken feet and not the
subject products as a whole.
43 Redetermination, (Exhibit CHN-1 (translated version)), p. 28. (emphasis added)

7.2.1.2.1.1 Tyson's initial value-based cost allocation
7.8. At the time of the original investigation, Tyson was transitioning from one accounting system
to another. Under the new system 44, it allocated costs to various broiler product models on the
basis of their value in the US domestic market. Wing -tips, feet, and gizzards – some of the broiler
product models exported to China – were classified as "offal", which has a low value in the
US market45; costs were allocated accordingly, with additiona l adjustments for freight and
processing. MOFCOM found that "excessive meat cost were [ sic] allocated to certain products
disproportionately, while other products were allocated almost no meat cost".46
7.9. In the reinvestigation, MOFCOM "conducted further inves tigation on the allocation method of
meat cost and on the processing cost of each product model" for Tyson.47 MOFCOM found that:
a. In respect of certain broiler product models (such as chicken feet) valued and costed as
offal, "export sales prices were much h igher than the prices of other offal products sold
in the domestic market".48
b. Tyson did not allocate costs on the basis of "overall sales price" to those broiler product
models, but rather costs on the basis of their domestic price.49
c. Tyson did not allocate various other common costs (such as feed and common
processing) to these broiler product models.
MOFCOM determined that Tyson's records did not "reasonably reflect the production cost
associated with the product concerned".50
7.2.1.2.1.2 MOFCOM's weight-based cost allocation
7.10. In the original investigation, MOFCOM found that:
a. "it was not able to distinguish which feeds were specifically used to produce which parts
of the product concerned";
b. "weight-based method could be more objective and more reasonable than the
value-based method … [to] reflect the production cost associated with the product
concerned"51; and
c. "[t]he weight-based methodology … would not allocate too much meat costs to a part of
products, while allocate almost none of meat cost to other part of the products".52
In its comments in the original investigation and then again in the questionnaire response to the
reinvestigation, Tyson argued that:
[I]f the Ministry of Commerce insists to use the weight -based cost allocation method
in the final determination, it shall consider all products gener ated from live chickens,
and use the cost data re-submitted by Tyson company.53
MOFCOM considered Tyson's approach "not reasonable"54 because:

44 Tyson "transitioned from a fully-absorbed cost system to a standard cost system" during the POI.
(United States' first written submission, para. 123). "Tyson explained that it used standard costs for the
first half of 2009, rather than for the entire period of investigation, because those were the only standard costs
available during the reinvestigation." (United States' first written submission, para. 124).
45 Redetermination, (Exhibit CHN-1 (translated version)), p. 28.
46 Redetermination, (Exhibit CHN-1 (translated version)), p. 29.
47 Redetermination, (Exhibit CHN-1 (translated version)), p. 30.
48 Redetermination, (Exhibit CHN-1 (translated version)), p. 30.
49 We will refer to this as a domestic-value-only cost allocation.
50 Redetermination, (Exhibit CHN-1 (translated version)), p. 31.
51 Redetermination, (Exhibit CHN-1 (translated version)), p. 33.
52 Redetermination, (Exhibit CHN-1 (translated version)), p. 35.
53 Redetermination, (Exhibit CHN-1 (translated version)), p. 36.
54 Redetermination, (Exhibit CHN-1 (translated version)), p. 36.

a. Tyson's methodology did not account for weight loss due to dead birds or birds
"inappropriate for processing"55;
b. "during the original investigation and re -investigation, the Investigating Authority
calculated the production costs of each model of the products concerned … this
production cost didn't include that of the non -concerned pro ducts, such as feather,
blood, etc. … [t]he cost allocation method for other products generated from the live
chicken products (e.g. feather, blood, deep processed product, cooked product) is not
the target of this investigation"56;
c. "costs of live chickens were monthly different during the period of the investigation. The
Company did not explain in details [sic] which parts of live chickens were used for the
production of the product concerned, and which parts were used for the production of
other products"57; and
d. "by using the method claimed by the Company to calculate the cost, the total cost of the
product concerned would be lower than the total cost of the product concerned in the
Company's accounting book, but the Company did not explain in details what c ost was
reduced therefrom".58
7.11. MOFCOM then issued detailed supplemental questionnaires in the reinvestigation to
ascertain processing costs per product model. It found that, "the production cost data submitted
by the Company in the responses to the original investigation and the re -investigation could not
fully and truly reflect the actual production cost of all models of the product concerned". 59
Accordingly, it determined that:
a. "the meat cost for all models of the product concerned should be calculated by using the
weight based methodology";
b. "processing cost of common process should be allocated to all products by using the
weight-based methodology";
c. "processing cost incurred for the particular product should be allocated to the particular
product"; and
d. "production costs for all models of the product concerned should be determined on the
basis of facts available and best information available".60
7.2.1.2.2 Pilgrim's Pride
7.12. MOFCOM determined that:
Since the Dispute Settlement Report does not address the determination of the
investigating authority on the Company's normal value, export price, price adjusted
items and [cost, insurance, freight (CIF)] price, the investigating au thority decides in
the re -investigation to maintain the determination of the original investigation with
respect to the Company's normal value, export price, price adjusted items and CIF
price.61
7.13. In the reinvestigation, MOFCOM sought to comply with the Pane l's findings regarding
disclosure in its original report. In doing so, MOFCOM "found a calculation mistake" and proceeded
to correct the error. 62 In its redetermination, MOFCOM stressed that it did not "change the

55 Redetermination, (Exhibit CHN-1 (translated version)), p. 36.
56 Redetermination, (Exhibit CHN-1 (translated version)), fn 30. (emphasis added)
57 Redetermination, (Exhibit CHN-1 (translated version)), p. 37.
58 Redetermination, (Exhibit CHN-1 (translated version)), p. 37.
59 Redetermination, (Exhibit CHN-1 (translated version)), p. 42.
60 Redetermination, (Exhibit CHN-1 (translated version)), p. 43 (emphasis added). This indicates that
blood, feathers, and viscera were excluded from the calculation.
61 Redetermination, (Exhibit CHN-1 (translated version)), p. 54.
62 Redetermination, (Exhibit CHN-1 (translated version)), p. 54.

determination method and source of data wit h respect to the normal value and the export price in
the original investigation", but rather corrected faulty calculations.63
7.2.2 Main arguments of the parties
7.2.2.1 United States
7.14. MOFCOM failed to ensure a proper cost allocation in respect of Tyson and Pilgrim's Pride and
therefore acted inconsistently with the second sentence of Article 2.2.1.1.64
7.2.2.1.1 Tyson
7.15. In the redetermination, MOFCOM purported to apply a weight -based cost allocation
methodology to determine the cost of production of the products at issue. It calcula ted the
per-pound cost of production by dividing the total cost of producing a chicken by the weight of the
chicken less the weight of certain by -products; specifically, it excluded the weight of blood,
feathers, and organs, on the basis that they were not "used for human consumption".
7.16. MOFCOM's approach is inconsistent with the second sentence of Article 2.2.1.1, which
requires a " proper allocation of costs". A "proper" cost allocation must be internally coherent. If
MOFCOM applies a weight-based cost allocation methodology, it must fully account for all products
that are produced from the live birds, including by-products. To do so, MOFCOM would have had to
divide the total cost of the live birds by their total weight. 65 Tyson did report this total cost in t he
event that MOFCOM rejected Tyson's value -based allocation approach and decided instead to
adopt a weight -based allocation. 66 MOFCOM's exclusion of by -products not "used for human
consumption" is not relevant in this context "since the joint costs of the chicken are used to
produce non-subject merchandise – and they are being distributed to only certain products".67
7.2.2.1.2 Pilgrim's Pride
7.17. MOFCOM failed to consider any alternative allocation methodologies for Pilgrim's Pride. 68
The Panel in its original report found that "there was insufficient evidence of consideration [by
MOFCOM] of alternative allocation methodologies presented by the respondents". 69 "The
respondents" included Pilgrim's Pride. 70 MOFCOM was required "to address that deficiency in its
redetermination, and its failure to do so is inconsistent with China's WTO obligations". 71 To ensure
"a neutral, fact -driven consideration of the 'proper' allocation of costs", MOFCOM was required to
"consider[] data submitted by Pilg rim's Pride – whether flawed or not". 72 Regardless of whether
the Panel in its original report had made this finding specifically in respect of Pilgrim's Pride,
because the measure is within its terms of reference, the Panel is required to address the claim.
7.2.2.2 China
7.2.2.2.1 Tyson
7.18. In its original report, the Panel did not "engage in any specific interpretation of what the
word 'proper' in Article 2.2.1.1 meant, or what specific obligation that word created". 73 While
"some of the Panel's language in the original report c ould be read to suggest a substantive

63 Redetermination, (Exhibit CHN-1 (translated version)), p. 55; see also Redacted Version of Disclosure
Narrative Provided to Pilgrim's Pride, (Exhibit CHN-46), p. 1.
64 In its panel request, the United States also cited Article 2.2 of the Anti-Dumping Agreement. The
United States does not develop any arguments in any of its submissions in respect of an alleged violation of
Article 2.2. We therefore do not further address the claim in respect of Article 2.2.
65 United States' first written submission, para. 93.
66 United States' response to Panel question No. 24(c), para. 60.
67 United States' response to Panel question No. 24(a), para. 57.
68 United States' first written submission, para. 102.
69 United States' first written submission, para. 101 (referring to Panel Report, China – Broiler Products,
paras. 7.193 and 7.198).
70 United States' second written submission, para. 118.
71 United States' second written submission, para. 116.
72 United States' second written submission, para. 119.
73 China's response to Panel question No. 31, para. 118.

obligation"74, the Panel in the original report "did not present any interpretation that focused
specifically on the legal issue of whether the second sentence of Article 2.2.1.1 imposes a
substantive obligation or the nature of that obligation". For this reason, this "is the legal issue that
the Panel should address anew in this proceeding".75
7.19. First, the only obligation in the second sentence of Article 2.2.1.1 is to consider all available
evidence; there is no substant ive obligation to allocate costs properly.76 MOFCOM did consider all
available evidence on the proper allocation of costs, including Tyson's proposed cost allocation
methodology. The redetermination discusses Tyson's proposed cost allocation methodology,
satisfying the three -part test set out by the Panel in its original report for "consideration" within
the meaning of second sentence of Article 2.2.1.1.77
7.20. Second, the information at issue is not "evidence" because it was not "historically
utilized"78; therefore, there was no obligation to consider it.79
7.21. Third, even if the second sentence of Article 2.2.1.1 contains substantive obligations, the
Panel in its original report did not define the term "proper".80
7.22. Fourth, the Panel's "finding in [paragraph] 7.198 [of its original report] was based on the
Panel's understanding of the facts at that time. These facts have been significantly clarified during
the re-investigation and this Article 21.5 proceeding".81
7.23. MOFCOM met the requirements of Article 2.2.1.1 because it:
a. asked Tyson "for the breakdown of sales into subject and non -subject merchandise",
adding a clarification with respect to "non -subject merchandise" that "products not for
human consumption, such as chicken feather, chicken blood, internal organs" are not
subject products82;
b. sought Tyson's own allocation method for dividing subject and non -subject products83
and accepted Tyson's division84;
c. found that Tyson "reasonably drew distinctions between higher revenue and lower
revenue products" 85 and accepted "Tyson's normal accounting approach for this initial
distinction into subject and non-subject merchandise"86;
d. considered "the evidence about the proper way to allocate costs among the specific
products within the subset of edible subject products" 87 and "realized tha t the Tyson's
[sic] value -based method in fact introduced a distortion by using a very low value of

74 China's response to Panel question No. 31, para. 119.
75 China's response to Panel question No. 31, para. 119.
76 China's first written submission, para. 147.
77 China's first written submission, paras. 164-165.
78 China's response to Panel question No. 31, para. 128.
79 China's first written submission, para. 166; response to Panel question No. 31, para. 128.
80 China's response to Panel question No. 31, para. 125.
81 China's response to Panel question No. 31, para. 127. Specifically, according to China, the
United States incorrectly alleges that "MOFCOM did not allocate any costs to blood and feather":
China believes the Panel now has a sufficient factual basis to d ismiss that U.S. fiction. As
discussed extensively in response to Question 24(g) above, MOFCOM simply left in place the
assignment of costs to blood and feathers that Tyson itself has used in the ordinary course of
business.
82 China's response to Panel question No. 24(a), para. 63.
83 China's response to Panel question No. 24(a), para. 64.
84 China specifically argues that MOFCOM accepted "as the initial step the division of products into
subject and non-subject, and the Tyson assignment of total costs into those two buckets." (China's second
written submission, para. 175 (emphasis added)). China acknowledges that Tyson's breakdown was based on
MOFCOM's own product definition: "According to MOFCOM's request in the re-investigation, Tyson confirmed
that the reported cost of the subject products in the original investigation did not cover the cost of the
non-subject products, such as feathers and blood." (China's response to Panel question No. 24(b), para. 65).
85 China's second written submission, para. 175.
86 China's second written submission, para. 175.
87 China's second written submission, para. 176.

offal (or price of waste products) to establish costs for the certain products (like chicken
paws)"88; and
e. rejected Tyson's proposed cost allocation methodology as not correctly reflecting costs.89
Article 2.2.1.1 focuses on the "product under consideration" . Therefore, including products not
under consideration, such as the by-products at issue here, would not "reasonably reflect" the cost
of the products at issue.90 The US approach would require that " even though Tyson had itself
assigned few costs to inedible waste products, MOFCOM had to go back and take costs that Tyson
had itself allocated to edible broiler parts, and reallocate them back to the inedible waste products
based on weight. "91 MOFCOM accepted the total meat costs of the subject products reported by
Tyson, and then allocated that total meat cost to individual models of the subject broiler products
based on weight.92
7.2.2.2.2 Pilgrim's Pride
7.24. The claim is not within the Panel's terms of reference. Even if it were:
a. the Panel in its original report "never found any inconsistency with the second sentence
of Article 2.2.1.1 with regard to MOFCOM's determination for Pilgrim's Pride"93;
b. the reference to "respondents " in the original report is only to Tyson and Keystone 94
because:
i. the Panel's summary of the arguments does not refer to Pilgrim's Pride95,
ii. the Panel's analysis does not mention Pilgrim's Pride96,
iii. the only finding specific to Pilgrim's Pride was in respect of the first sentence of
Article 2.2.1.197, and
iv. the Panel in its original report could not have found that MOFCOM should have
considered Pilgrim's Pride's alternative methodologies, because "[t]he errors in the
[sic] Pilgrim's Pride data rendered any alternative allocations largely irrelevant, since
they would have been based on fundamentally flawed information that had not been
corrected on a timely basis"98;
c. because the Panel did not find any inconsistencies in an original panel report, China
cannot b e found not to have implemented a finding in a subsequent Article 21.5
dispute99; and
d. if there are any ambiguities in the original report, they should be resolved in favour of
China because "it would be unfair to penalize China for not specifically addressi ng an
issue not raised in the Panel Report".100

88 China's second written submission, para. 176. We will refer to the product concerned, variously
described as chicken "feet" or "paws", as "chicken feet".
89 China's first written submission, para. 166: "In particular, in both the original determination and the
redetermination, MOFCOM expressly considered and rejected the alternative cost allocation method which
Tyson proposed."
90 China's first written submission, para. 171.
91 China's second written submission, para. 177.
92 China's response to Panel question No. 24(h), para. 98.
93 China's first written submission, para. 136.
94 China's first written submission, para. 137.
95 China's first written submission, para. 138.
96 China's first written submission, para. 138.
97 China's first written submission, para. 138.
98 China's first written submission, para. 139.
99 China's first written submission, para. 136.
100 China's first written submission, para. 142.

7.2.2.3 Main arguments of the third parties
7.25. The European Union argues that in respect of the first claim, the second sentence of
Article 2.2.1.1 contains a substantive obligation of proper cost allocation. A cost alloc ation
methodology must be applied in a coherent manner. In case of a weight -based cost allocation
methodology, costs which occur with regard to the whole chicken must, in principle, be spread
over all broiler products according to their weight.101
7.26. In respect of the second claim, the findings made by the Panel in the original report in
relation to the second sentence of Article 2.2.1.1 also relate to Pilgrim's Pride. But even if this
should not be the case, the redetermination would nevertheless be subject to scrutiny in these
compliance proceedings regarding the issue in dispute.102
7.2.3 Evaluation
7.2.3.1 The law
7.27. Article 2.2.1.1 of the Anti -Dumping Agreement provides (for ease of reference, we set out
the three sentences separately):
For the purpose of paragraph 2, costs shall normally be calculated on the basis of
records kept by the exporter or producer under investigation, provided that such
records are in accordance with the generally accepted accounting principles of the
exporting country and reasonably reflect the costs associated with the production and
sale of the product under consideration.
Authorities shall consider all available evidence on the proper allocation of costs,
including that which is made available by the exporter or producer in the course of the
investigation provided that such allocations have been historically utilized by the
exporter or producer, in particular in relation to establishing appropriate amortization
and depreciation periods and allowances for cap ital expenditures and other
development costs.
Unless already reflected in the cost allocations under this sub -paragraph, costs shall
be adjusted appropriately for those non -recurring items of cost which benefit future
and/or current production, or for ci rcumstances in which costs during the period of
investigation are affected by start-up operations.
7.28. "Paragraph 2", referred to in the first sentence is Article 2.2 of the
Anti-Dumping Agreement, which provides:
When there are no sales of the like product in the ordinary course of trade in the
domestic market of the exporting country or when, because of the particular market
situation or the low volume of the sales in the domestic market of the exporting
country, such sales do not permit a proper comparison, the margin of dumping shall
be determined by comparison with a comparable price of the like product when
exported to an appropriate third country, provided that this price is representative, or
with the cost of production in the country of origin plus a re asonable amount for
administrative, selling and general costs and for profits.103
Thus, by its own terms Article 2.2.1.1 sets out parameters for a methodology for arriving at a
proper allocation of costs necessary to arrive at a "cost of production" that may be used in
constructing a normal value for purposes of the comparison required under Article 2.2. This
requires, in the context of the second sentence of Article 2.2.1.1, the investigating authority to
"consider … all available evidence on the proper allocation of costs".

101 European Union's third-party submission, paras. 29-30.
102 European Union's third-party submission, paras. 33-34.
103 Emphasis added; fn omitted.

7.2.3.1.1 Consider
7.29. The first sentence of Article 2.2.1.1 requires that "costs shall normally be calculated on the
basis of records kept by the exporter or producer under investigation". The use of the term
"normally" in a legal obligation indicates a rule from which derogations are permitted subject to
the conditions set out in the legal provision. 104 In respect of Article 2.2.1.1, this means that to
calculate cost of production for the purposes of Article 2.2 , the rule for the information to be used
is that the investigating authority relies on the records kept by the exporter or producer under
investigation, except where the conditions for the application of the rule, set out in the
provision105, are not met.
7.30. The second sentence relates to the methodology for allocating costs: an investigating
authority must "consider" all evidence on proper cost allocation. This consideration is not to be
undertaken in the abstract. In context, its purpose is clear: to ensure that cost elements for the
subject product are properly determined for, we recall, purposes of constructing a normal value for
that product. The consideration of evidence as to cost allocation methodology goes to the heart of
what Article 2.2.1.1 is about: coming up with a properly allocated cost of production for the
product under investigation for use by an investigating authority in constructing a normal value for
that product. This is further confirmed by the third sentence: "[u]nless already reflected in the cost
allocations under this sub -paragraph". Fundamentally, a normal value for a product cannot be
properly constructed unless costs of production are properly allocated to that product, and a
proper allocation of costs cannot happen without consideration of all available evidence on the
proper allocation of costs.
7.31. Accordingly, Article 2.2.1.1 sets out an integrated obligation to calculate a cost of
production for purposes of the comparison required under Article 2.2, with two elements:
a. in the first sentence, the rule as to the information t o be used, including allocated costs;
and
b. in the second sentence, the method for resolving issues of allocation when those records
cannot be used in this respect:
i. consideration of all evidence as to proper allocation; and
ii. choosing an appropriate methodo logy to ensure a proper allocation of costs of
production to the subject product in constructing normal value.
7.2.3.1.2 All available evidence
7.32. Where an investigating authority constructs normal value on the basis of cost of production,
and determines that the recor ds of an exporter or a producer are not appropriate for purposes of
properly allocating costs to the subject product, the second sentence sets out the evidentiary basis
for the investigating authority's choice of a cost allocation methodology. The investig ating
authority is required to "consider":
a. all;
b. available;
c. evidence;
d. on the proper allocation of costs:

104 Panel Report, China – Broiler Products, para. 7.161. See also Appellate Body Report, US – Clove
Cigarettes, para. 273.
105 Those conditions are that those records are "in accordance with the generally accepted accounting
principles of the exporting country" and "reasonably reflect the costs associated with the production and sale of
the product under consideration".

i. including that which is made available by the exporter or producer in the course of
the investigation; and
ii. provided that such allocations have been historically utilized by the exporter or
producer, in particular in relation to establishing appropriate amortization and
depreciation periods and allowances for capital expenditures and other development
costs.
7.33. The term "evidence" is not defined in the An ti-Dumping Agreement. It is not necessary for
us to do so in this case; at a minimum, it encompasses information provided to an investigating
authority by an interested party, whether or not positive, accurate or adequate. Nothing in the
Anti-Dumping Agreement, or the WTO Agreement as a whole, suggests that information loses its
character as "evidence" by virtue of failing to meet certain criteria. Whether the evidence meets
these criteria is a separate matter for the investigating authority to consider.
7.34. First, given the requirements of Article 2.2.1.1, the evidence must be "on the proper
allocation of costs". The qualifier "proper" has a range of meanings, not all of which are relevant
for the purposes of the Anti -Dumping Agreement; it is in the context in which the term is found
and with a view to giving effect to Article 2.2.1.1 that the relevant "ordinary meaning" is revealed:
a. The first sentence of Article 2.2.1.1 refers to "records [that] reasonably reflect the costs
associated with the production and sale of the product under consideration".106
b. The last sentence of the same subparagraph provides that "costs shall be adjusted
appropriately" for certain items or in respect of certain circumstances.107
c. Article 2.2.2 refers to costs that are "based on actual d ata pertaining to production and
sales in the ordinary course of trade" of the product at issue.
7.35. Thus, for example, evidence that a particular allocation methodology reasonably reflects the
cost of production of the product at issue, evidence of "appropria te" adjustments to costs, or
evidence that certain costs relate to production of the product in question, is evidence "on the
proper allocation of costs". We do not mean to suggest that in every instance, there is a single
"correct" allocation to be determ ined upon considering the evidence on cost allocation
methodologies. Indeed, the use of the term "proper" suggests due deference to the circumstances
of a product's life -cycle or a producer's or an exporter's production line and business model, as
well as the availability of data and different accounting systems used.108
7.36. Second, the reference to "all available" evidence requires, in our view, consideration of all
evidence that is available to the investigating authority. The phrase beginning "including" makes
clear that certain types of evidence must be considered if available, but does not limit the scope of
"all available evidence" that must be considered in any event. Rather, it establishes, for instance,
that an investigating authority must consider evidence on the proper allocation of costs made
available by the exporter or producer where such allocations have been historically utilized, even if
that exporter or producer's records were rejected as the basis for calculating costs under the first
sentence of Article 2.2.1.1. Merely because an investigating authority determines that the records
kept by an exporter or producer are not in accordance with the general ly accepted accounting
principles of the exporting country or do not reasonably reflect the costs associated with the
production and sale of the product under consideration does not necessarily mean that the cost
allocation methodologies reflected in those records may not be appropriate if properly applied
using appropriate information. An investigating authority may not summarily dismiss evidence of
cost allocation provided by the exporter or producer that it had historically used.
7.37. This recognizes a comme rcial reality: the cost allocations in a company's records may be
used for multiple reasons in internal accounting systems, but not, one would expect, generally in

106 Emphasis added.
107 Emphasis added.
108 We recall also China's arguments, based on dictionary definitions, that "proper" means "suitable" and
"appropriate". (China's second written submission, para. 131). This is also consistent with China's reliance on
the equally authentic French and Spanish version: juste and adecuada, which China translates as "just, fair,
appropriate" and "suitable, appropriate". (China's second written submission, para. 132).

anticipation of an anti -dumping investigation. Where an exporter has historically utilized a cost
allocation methodology, this suggests that the methodology was, in fact, not put in place for the
sole purpose of the investigation. Thus, as noted above, even if the actual data on costs as
reported in the records are rejected under the first senten ce, the allocation methodology reflected
in those records may nonetheless result in a proper allocation of costs if applied to a different set
of data.
7.38. In the light of the above, evidence of allocation in the records of an exporter, where such
allocation is historically utilized, must be "considered" – alongside all other evidence – to arrive at
an allocation methodology that can generate a "proper allocation of costs" in calculating "cost of
production" for the "purposes of paragraph 2".
7.2.3.1.3 Conclusion
7.39. To appr eciate the import of the second sentence of Article 2.2.1.1, the entirety of the
provision should be considered as a single obligation with multiple parts:
a. When an investigating authority constructs a normal value for purposes of the
comparison under Artic le 2.2, Article 2.2.1.1 sets out two requirements for the
calculation of costs of production.
b. Where the conditions of the first sentence are met, an investigating authority must use
the information reported in the records kept by the exporter or producer i n question to
calculate cost of production for the product and the producer in question. This is the
"normal" method, and an investigating authority may not reject the records without
having first established, and explained, why the records are either not in accordance
with the generally accepted accounting principles of the exporting country or do not
reasonably reflect the costs associated with the production and sale of the product under
consideration.
c. When questions of cost allocation arise in calculating cost of production for the purposes
of constructing a normal value for purposes of the comparison under Article 2.2, whether
or not on the basis of:
i. the information in the producer's records, or
ii. an alternative set of data because the producer's recor ds are rejected under the first
sentence of Article 2.2.1.1.
d. The investigating authority must consider all available evidence related to the proper
allocation of costs.
e. This evidence includes:
i. evidence made available by exporters and producers, where the cost allocation was
historically utilized: this includes evidence of cost allocation methodologies in records
rejected under the first sentence, where the allocation is historically utilized;
ii. calculations, data, and allocation methodologies generated by a n exporter at the
behest or request of the investigating authority; and
iii. alternative allocation methodologies put forward by an exporter or producer during
the investigative process (including a reinvestigation), either on its own, or to
address concerns or questions raised by the investigating authority, in, for example
questionnaires or follow-up questions, verification, etc.
f. Article 2.2.1.1 requires an investigating authority not just to "consider" certain evidence
but to do so with a view to a proper allocation of costs for the purposes of Article 2.2.
g. There may be no single "proper" allocation of costs . An investigating authority's cost
allocation is proper when it is appropriate to the facts and circumstances of the producer

and product in question, and is arrived at following the investigating authority's
consideration of all available relevant evidence.
h. An investigating authority must adequately explain its consideration of the evidence and
its choice of allocation methodology based on that consideration as one that, if applied
properly, will result in a proper allocation of costs.
7.2.3.2 Tyson
7.40. We recall the product description set out in the redetermination:
Detailed description of the product concerned: broiler products after slaughter and
processing of living broiler chickens, including whole chickens, parts of whole chicken
after cutting, by-products of broiler chickens, regardless whether it is fresh, chilled or
frozen. Living chickens, broiler products packed in cans and other similar wa ys, broiler
sausages and similar products, cooked broiler products are all not included in the
scope of the investigation.
Main application: the main application of the broiler products in domestic market is for
human consumption, which normally reach the consumers directly or indirectly
through whole-sales or retail -sales channels such as agricultural products markets or
supermarkets, and through the catering industry.109
7.41. The product description, the exclusions, and the "usage" or "application" have not chan ged
substantially from the original investigation.110
7.2.3.2.1 Preliminary observations
7.42. At the outset, we address two arguments that appear to have formed the core of each
party's case.
7.43. The United States argues that MOFCOM's allocation methodology was not "internally
coherent" and therefore did not constitute "proper allocation" because MOFCOM used two different
cost allocation methodologies for different parts of a chicken: for feathers, blood, and inedible
viscera, MOFCOM relied on Tyson's cost allocation based on d omestic market values; for all other
models it used a weight-based allocation. Even granting that MOFCOM used two different cost
allocation methodologies, this alone does not demon strate that China acted inconsistently with
Article 2.2.1.1, for at least two reasons.
7.44. First, nothing in the text or context of Article 2.2.1.1 suggests that a "proper" allocation of
costs is necessarily one that is "consistent", "internally coherent", or follows the same "logic"
throughout. We see nothing in the text of the provision or in the concept of a "proper" allocation of
cost that would require an investigating authority to use the same cost allocation methodology in
every instance a cost allocation is necessary in an investigation. For instance, different stages of a
subject product's production cycle, or the production of different models of a subject product, or
the production of by -products in the process of producing a subject product, may all raise
questions of the proper allocation of costs. We see no inherent reason that all such questions must
be resolved by appl ying the same cost allocation methodology in a given investigation. An
interpretation that would so narrow the meaning of "proper cost allocation" would be inconsistent
with our understanding of the provisio n as requiring consideration of evidence of cost allocation
that is appropriate to the circumstances.

109 Redetermination, (Exhibit CHN-1 (translated version)), p. 2.
110 Panel Report, China – Broiler Products, fn 8:
Specific description of the subject merchandise: chicken products into which alive [ sic] broiler is
slaughtered and processed, including whole chicken without cutting into pieces, cuts and offal,
side product of chicken products, fresh, chilled or frozen. The product scope does not include live
chicken, chicken products in can or other kinds of packages or preservations, the chicken
sausage and like products, and cooked chicken products.
Major usage: Broiler products or chicken products are used in the domestic market of China for
human food directly through markets and supermarkets by retail or wholesale and indirectly
through catering.

7.45. Second, nothing in the facts of this case as presented and argued to us demonstrates why,
in the particular circumstances of this case, the use of the sam e cost allocation methodology
throughout was necessary. The US argument that MOFCOM was required to use a "consistent" or
"internally coherent" cost allocation methodology is not based on the circumstances of either
Tyson or the broiler products at issue. For one thing, nothing in the record suggests that any
evidence on whether such consistency would be necessary from an accounting or a commercial
perspective was provided to MOFCOM. For another, we can envision a variety of situations in which
strict consi stency in the application of cost allocation methodologies might not be necessary or
appropriate. For example, large manufacturing conglomerates with multiple subsidiaries, factories
and business lines may well employ different cost accounting methodologie s internally across their
operations, vertically and horizontally. It would be neither practicable nor reasonable for such a
company, in responding to an anti -dumping investigation involving one of its products, to be
required to provide cost data for that product based on a "consistent methodology" of cost
allocation. As we have stated, we see nothing in Article 2.2.1.1 or its context that would require an
investigating authority to use the same cost allocation methodology in respect of a product
throughout. Of course, to the extent that an investigating authority uses more than one cost
allocation methodology in calculating costs of production for purposes of determining normal
value, the basis for this approach would have to be reasonable and adequately e xplained in its
determination.
7.46. China asserts that it relied upon Tyson's value -based methodology for the first step of the
cost allocation exercise (allocating costs between subject and non -subject goods) and argues that
"[i]t is hard to fault MOFCOM for a ccepting Tyson's normal accounting approach for this initial
distinction into subject and non-subject merchandise".111 We recall that MOFCOM provided Tyson a
"clarification" that , according to MOFCOM, defined the scope of subject and non -subject broiler
products, i.e. those models that were and were not the subject of the investigation. 112 As we
understand it, MOFCOM was well aware of Tyson's use of value -based cost allocation methodology
– indeed, this was the very subject matter of the original case under Article 2.2.1.1, first sentence.
Thus, when MOFCOM "clarified" the scope of the subj ect product definition, it in all likelihood was
fully aware that Tyson would apply a value -based cost allocation to distinguish subject and
non-subject broiler product models. However, the fact that MOFCOM "accepted" this initial cost
allocation does not elucidate in any way the reasons for its shift to a different cost allocation
methodology at a later stage. Accordingly, we do not consider it relevant to our analysis.
7.2.3.2.2 MOFCOM's rejection of Tyson's value-based cost allocation
7.47. MOFCOM accepted Tyson's init ial cost allocation between "subject and non -subject
merchandise" on the basis of a value-based cost allocation methodology. MOFCOM did so because
it found that Tyson's value -based cost allocation between subject and non -subject products
"reasonably drew distinctions between higher revenue and lower revenue products" .113 MOFCOM
did not, therefore, apparently have any objections in principle to the use of a value -based cost
allocation in general or Tyson's value-based methodology specifically.
7.48. MOFCOM next con sidered "the evidence about the proper way to allocate costs among the
specific products within the subset of edible subject products" .114 According to China, in examining
Tyson's cost allocation among subject product models:
MOFCOM realized that the [sic] Tyson's value -based method in fact introduced a
distortion by using a very low value of offal (or price of waste products) to establish
costs for the certain products (like chicken paws).115
MOFCOM considered the use of the value of offal "a distortion" in Ty son's subject product
allocation because, unlike certain other product models valued as offal in the United States,
chicken feet had a consumer market outside the United States that valued those product models
more highly. Accordingly:

111 China's second written submission, para. 175.
112 This clarification related to the "main application" of the subject products. (See fn 110 and related
text above; and Panel Report, China – Broiler Products, fn 340).
113 China's second written submission, para. 175. (emphasis added)
114 China's second written submission, para. 176.
115 China's second written submission, para. 176.

MOFCOM then reasonab ly and objectively concluded that for this anti -dumping
investigation, a weight-based allocation was more reasonable method than the Tyson
value-based method to allocate costs among those products that were physically
subject products.116
7.49. The United States argues that, "[t]he essence of the problem is the internal inconsistency of
MOFCOM's logic concerning a weight -based methodology".117 The "logic" the United States refers
to concerns the application of MOFCOM's weight -based methodology. The United States argues,
"under that logic, an objective investigating authority would need to account for all products that
derive revenue and then allocate cost by weight to all of them ".118 That is, for the United States,
as a matter of logic, if a weight -based methodology is used to allocate costs among the subject
product models, then the same methodology should have been used to allocate costs between
subject and non-subject broiler product models, since both generated revenue.
7.50. We have found that nothing in Article 2.2.1.1 requires an investigation authority to apply
the same methodology to allocate costs at different stages of its investigation. An investigating
authority may use different cost allocation methodologies consistently with the second sentence of
Article 2.2.1.1, so long as:
a. the reasons for doing so are unbiased and reasonable in the circumstances;
b. the methodology chosen results in a proper allocation of costs; and
c. the investigating authority explains its choice as between different methodologies.
7.51. The United States does not dispute that certain subject products have value in the Chinese
consumer market that they do not have in the US market. MOFCOM's rejection of a value -based
cost allocation that does not capture the value of a product model in its pri ncipal market does not,
for the purposes of the second sentence of Article 2.2.1.1, strike us as inherently biased or
unreasonable.
7.2.3.2.3 MOFCOM's use of weight-based cost allocation
7.52. We now turn to the question of whether MOFCOM considered all available evidence before it
on the proper allocation of costs. MOFCOM decided to use a weight -based cost allocation for the
subject broiler products. The costs allocated among different models of subject broiler products
were those Tyson had allocated to all subject produc ts on the basis of its domestic value -based
methodology. MOFCOM rejected that methodology for allocating costs among the different models
of subject broiler products. We found in the original report that:
Of the two types of methodologies for doing so that were discussed in this case – one
based on relative sales value ("value -based allocation") and one based on the weight
of the products ("weight -based allocation"), the Panel is of the view that neither
method is in principle inherently unreasonable.119
Having identified a problem with an exporter's cost allocation methodology, an investigating
authority that is required to consider all available evidence may not, however, disregard evidence
related to that allocation, and use its own methodology, without an explanation of its decision that
is reasoned and adequate.
7.53. MOFCOM accepted Tyson's domestic -value-only allocation of costs between subject and
non-subject products on the basis that it drew a reasonable distinction "between higher revenue
and lower revenue products". For the allocation of cost s among subject broiler product models,
however, MOFCOM in the redetermination concluded that a weight -based allocation methodology
better reflected the costs o f production of subject product models, than a methodology based on

116 China's second written submission, para. 176.
117 United States' first written submission, para. 91.
118 United States' first written submission, para. 91. (emphasis added)
119 Panel Report, China – Broiler Products, para. 7.167. (fns omitted)

their value on the domestic market of the exporting country. In this respect, MOFCOM made the
following observations:
a. "[p]roduction cost means the necessary expenses invested by a producer to produce
products, rather than the income that a produc er can gain from sales of a product" 120;
and
b. MOFCOM "was not able to distinguish which feeds were specifically used to produce
which parts of the product concerned".121
In respect of subject product models, MOFCOM decided to allocate "the necessary expenses
invested by a producer to produce products" on the basis of the weight of the entire broiler less
the weight of feathers, blood, and viscera – because, it stated, the latter were non -subject
products.
7.54. There is no dispute between the parties that feathers, blood, and viscera are not "produced"
for human consumption. At the same time, while there is no evidence directly on the record on this
subject, it should be uncontroversial for us to take notice of the fact that feathers, blood, and
viscera are essential p arts of a live broiler, and thus they are intrinsic to the production of the
subject broiler product models. MOFCOM does not explain why the cost of "producing" feathers,
blood, and viscera is not part of "the necessary expenses invested by a producer to p roduce" the
subject product models. Nowhere in the redetermination does MOFCOM explain why it was
appropriate to exclude from its weight -based allocation of costs of producing subject product
models "necessary expenses" of producing a live bird, merely bec ause it had accepted an
allocation of costs between subject and non-subject products based on domestic market value, i.e.
"the income that a producer can gain from sales of a product".
7.55. In respect of MOFCOM's exclusion of feathers, blood, and viscera, Chin a argues that these
products were "waste". 122 We note in this regard MOFCOM's finding in the redetermination that
"offal" (which includes viscera) can be turned into "feedstuff" 123, as well as the reference to
"feather meal"124, indicating that the products at issue were perhaps low -value by-products, but
not "waste". Even if characterizing the product models at issue as "waste" were an explanation for
its choice of methodology, this clearly was not a finding that MOFCOM made.
7.56. China further argues that in the re determination, MOFCOM stressed that feathers, blood,
and viscera were not subject products. We had found otherwise in our original report125, but that is
of no moment here: in our view, the distinction between subject and non-subject products or
product models is not, in itself, determinative for the purposes of determining whether MOFCOM,
considering all evidence on the proper allocation of costs, came to a reasoned conclusion in
choosing a methodology to allocate costs to subject broiler product models. On the facts of this
case, we note:
a. MOFCOM could, and did, isolate the cost of production of a broiler;
b. in respect of a broiler, MOFCOM found that it could not distinguish between the costs of
feed used to grow breast meat and feed used to grow chicken feet;
c. feathers, blood, and viscera are broiler product models that, while according to China not
subject to the investigation, are no less intrinsic to the production of a live broiler than
subject broiler product models such as its breasts or feet; and
d. the other non-subject products comprised "[l]iving chickens, broiler products packed in
cans and other similar ways, broiler sausages and similar products, cooked broiler

120 Redetermination, (Exhibit CHN-1 (translated version)), p. 35. (emphasis added)
121 Redetermination, (Exhibit CHN-1 (translated version)), p. 33.
122 China's first written submission, paras. 123 and 166; responses to Panel question No. 24(b),
para. 65 and No. 29, para. 108.
123 Redetermination, (Exhibit CHN-1 (translated version)), p. 34 (citing with apparent approval the
petitioner's submission).
124 Redetermination, (Exhibit CHN-1 (translated version)), p. 34.
125 Panel Report, China – Broiler Products, fn 340.

products"126 – they do not form part of a single live broiler that will be slaughtered and
separated into various product models before export, and are thus not intrinsic to the
production of subject broiler product models.
7.57. Article 2.2.1.1, second sentence requires consideration of all evidence on the proper
allocation of costs, and a proper allocat ion of costs by an investigating authority is one that is
appropriate to the circumstances of the subject product/product models and the company. We
have already found that:
a. nothing in Article 2.2.1.1 requires an investigating authority to apply a single c ost
allocation methodology in all aspects of its investigation; and
b. in the facts of this case, use of both a value -based methodology and weight -based
methodology was not, in itself, unreasonable.
7.58. However, in the facts of this case, certain of the broiler p roduct models identified by
MOFCOM as "non -subject" were inseparable from and intrinsic to the production of the subject
broiler product models. In its consideration of all available evidence related to a proper cost
allocation, MOFCOM was required, at a m inimum, to explain why the concern – that allocations
must "reasonably reflect costs" of production – it relied upon to choose a weight -based cost
allocation for subject product models nonetheless allowed for the exclusion of certain parts of a
live broiler (feathers, blood, and viscera) that are necessarily part of the production of the subject
broiler product models from its cost allocation.
7.59. For this reason, we conclude that China did not act consistently with the second sentence of
Article 2.2.1.1 of the Anti-Dumping Agreement.
7.2.3.2.4 Tyson's proposed weight-based methodology
7.60. Tyson proposed a weight -based allocation methodology that took into account feathers,
blood, and viscera. MOFCOM found this approach "not reasonable".127
7.61. First, MOFCOM identified problems of an accounting nature in Tyson's proposed
weight-based cost allocation:
a. Tyson's methodology did not account for weight loss due to dead birds or birds
"inappropriate for processing"128;
b. "costs of live chickens were monthly different during the period of the investigation. The
Company did not explain in details [sic] which parts of live chickens were used for the
production of the product concerned, and which parts were used for the production of
other products"129; and
c. "by using the method claimed by the Company to calculate the cost, the total cost of the
product concerned would be lower than the total cost of the product concerned in the
Company's accounting book, but the Company did not explain in details [sic] what cost
was reduced therefrom".130
Tyson disputed that these problems justified rejecting its proposed methodology.
7.62. When an investigating authority identifies "problems" with evidence made available to it by
a producer purporting to reflect a proper cost allocation methodology and disregar ds the evidence
or the methodology on that basis, it must explain why those problems support a decision that the
proposed methodology is inappropriate. In this instance, MOFCOM nowhere explains how any of

126 Redetermination, (Exhibit CHN-1 (translated version)), p. 2.
127 Redetermination, (Exhibit CHN-1 (translated version)), p. 36.
128 Redetermination, (Exhibit CHN-1 (translated version)), p. 36.
129 Redetermination, (Exhibit CHN-1 (translated version)), p. 37.
130 Redetermination, (Exhibit CHN-1 (translated version)), p. 37.

the accounting problems it identified justified the conclusion that the weight -based cost allocation
proposed by Tyson was not reasonable.
7.63. Second, MOFCOM found that:
[D]uring the original investigation and re -investigation, the Investigating Authority
calculated the production costs of each model of the p roducts concerned … this
production cost didn't include that of the non -concerned products, such as feather,
blood, etc. … [t]he cost allocation method for other products generated from the live
chicken products (e.g. feather, blood, deep processed product , cooked product) is not
the target of this investigation.131
As MOFCOM itself acknowledged, albeit indirectly, the production costs of "each model of the
products concerned" are not separable from the production costs of the live broiler from which
both sub ject and non -subject products derive: the same feed that allows chicken breasts and
chicken feet to grow, also enables the growth and "production" of feathers, blood, and viscera,
without which neither feet nor breasts would exist. As well, MOFCOM's observ ation that "[t]he cost
allocation method for other products generated from the live chicken products … is not the target
of this investigation" is true, but not germane. This is because the distinction between subject and
non-subject products by Tyson, bas ed on domestic -value and accepted by MOFCOM, in fact
resulted in the following formula:
 Total cost of production - cost of non-subject goods = cost of subject goods
And so the cost figure that MOFCOM used in its weight -based cost allocation for subject p roducts
was inextricably linked to "[t]he cost allocation method for other [non-subject] products generated
from the live chicken products". As we have explained, Article 2.2.1.1 does not require an
investigating authority to use the same cost allocation m ethodology throughout the investigation.
Nevertheless, in respect of cost allocation to parts of a single animal, reliance on a value -based
distinction between subject and non -subject products, in a context where the costs of producing
both are entwined, d oes not suffice in itself to justify rejecting evidence of a proposed
methodology that purports to take this into account.
7.64. For these reasons, we conclude that China did not act consistently with the second sentence
of Article 2.2.1.1 of the Anti-Dumping Agreement.
7.2.3.2.5 "Historically utilized"
7.65. China argues that MOFCOM had no obligation to consider Tyson's weight -based cost
allocation methodology because it did not constitute "evidence" for the purposes of
Article 2.2.1.1.132 MOFCOM does not appear to have addresse d this point at all in the
redetermination. Indeed, MOFCOM states that it conducted the reinvestigation "[b]ased on the
evidence submitted by the interest [ sic] parties and evidence collected by the Investigating
Authority in the original investigation and re-investigation"133 and makes no distinction between
"evidence submitted" and a putative category of "information submitted that did not constitute
evidence". China's argument is thus after the fact justification and cannot play a part in our review
of the consistency of the redetermination with Article 2.2.1.1.
7.66. In any event, China's argument does not demonstrate that MOFCOM acted consistently with
the second sentence of Article 2.2.1.1, for the following two reasons.
7.67. First, nothing in the WTO Agreement d efines "evidence" or makes a distinction between
information that is "evidence" and information that is not. Information that purports to support an
asserted fact is evidence; it may be good or bad, weak or strong, relevant, or not.

131 Redetermination, (Exhibit CHN-1 (translated version)), fn 30. (emphasis original)
132 China's first written submission, paras. 163 and 166; second written submission, paras. 144
and 146.
133 Redetermination, (Exhibit CHN-1 (translated version)), p. 1.

7.68. Second, the subordinate clause starting with "including" does not limit the scope of the
evidence to be considered; rather, it confirms the breadth of the phrase "all available evidence".
This is a fortiori the case where, as here, the evidence submitted is expressly developed by an
exporter or producer a t the behest or request of an investigating authority , or in response to its
concerns. We recall that MOFCOM had rejected Tyson's data based on its historical cost allocation
methodology and demanded that Tyson generate new data based on a methodology inconsistent
with Tyson's accounting system. To read the subordinate phrase in the second sentence as
permitting an investigating authority to ignore any evidence of proper cost allocation unless it is
"historically utilized" would mean that an investigating authority could simply ignore information
and data submitted in response to its own questions and purporting to satisfy requirements
without even examining it or weighing its merits.
7.69. This strikes us as an unacceptable outcome and an unwarranted limitation of the explicit
requirement to consider "all available evidence". Having failed to do so in this case, MOFCOM could
not reje ct the data submitted by Tyson based on the methodology it developed in an effort to
conform to MOFCOM's requirements, solely because that methodology was not "historically
utilized", as China contends.
7.70. For these reasons, we conclude that China did not act consistently with the second sentence
of Article 2.2.1.1 of the Anti-Dumping Agreement.
7.2.3.3 Pilgrim's Pride
7.71. The threshold legal question before us with respect to MOFCOM's redeterm ination regarding
Pilgrim's Prid e is whether, in our original report, our findings under the second sentence of
Article 2.2.1.1 applied in respect of Pilgrim's Pride, or were limited to Tyson and Keystone. In the
original report we identified the ques tion we were to resolve as " whether MOFCOM took into
consideration 'compelling evidence' with respect to the reasonableness of its own methodology and
available alternatives".134 We then made the following observation:
China has not provided any citations to the record of the investigation where MOFCOM
deliberated or explained the weight -based methodology it chose to apply or why it
chose that methodology over the alternatives proposed by the respondents. All of the
evidence of consideration that China points to in its submissions relates to MOFCOM's
consideration of the original books and records of the respondents, rather than to the
appropriateness of MOFCOM's allocations or the alternative methodologies that
Keystone and Tyson proposed.135
7.72. According to China, this finding – including our specific references to Keystone and Tyson –
should be read against the background of our findings in respect of Pilgrim's Pride . In particular,
China relies on our findings in the original report in respect of evidence submitted by Pilgrim's
Pride as to its cost allocation methodology:
MOFCOM's basis for rejecting the costs as recorded in the respondent's books and
records is not the unreasonableness of the allocation, but rather a specific
determination that the data as originally submitted was irreconcilable and that the
information to correct the errors was untimely. … Indeed, Pilgrim's Pride's Comments
on the Preliminary Anti -Dumping Disclosure acknowledge and confirm that the data
was incorrect as Pilgrim's Pride goes into great detail describing how the errors
arose.136

134 In arriving at our findings, we relied on the statement of the Appellate Body in US – Softwood
Lumber V that:
[W]here there is compelling evidence available to the investigating authority that more than one
allocation methodology potentially may be appropriate to ensure that there is a proper allocation
of costs—the investigating authority may be required to "reflect on" and "weigh the merits of"
evidence that relates to such alternative allocation methodologies, in order to satisfy the
requirement to "consider all available evidence".
(Panel Report, China – Broiler Products, para. 7.189 (quoting Appellate Body Report, US – Softwood Lumber V,
para. 138))
135 Panel Report, China – Broiler Products, para 7.194.
136 Panel Report, China – Broiler Products, para 7.173. (emphasis added)

7.73. We note, of co urse, that these findings were made in the context of the first sentence of
Article 2.2.1.1. Nothing in our original findings suggests that the fact that an investigating
authority finds data to be "incorrect" or "irreconcilable" under the first sentence is or would be
relevant in respect of "evidence" of a "potentially … appropriate" allocation methodology that an
investigating authority would be required to "consider" under the second sentence. Nothing in our
findings in the original report referring to " respondents" could be read to exclude any respondent
on the basis that its data were rejected, consistently with the first sentence of Article 2.2.1.1, as
being not a proper basis for the determination of costs of production.
7.74. Consequently, we confirm that in the original report we found China to have acted
inconsistently with the second sentence of Article 2.2.1.1 in respect of "respondents", including
Pilgrim's Pride as well as Tyson and Keystone. MOFCOM did not reinvestigate Pilgrim's Pride in this
context or do anything else to satisfy its implementation obligations. Thus, we conclude that China
acted inconsistently with the second sentence of Article 2.2.1.1 of the Anti -Dumping Agreement
with respect to Pilgrim's Pride.
7.2.4 Conclusion
7.75. In respect of Tyson, China did not act consistently with Article 2.2.1.1 of the
Anti-Dumping Agreement because:
a. MOFCOM did not explain why the concern – that allocations must "reasonably reflect
costs" of production – it had relied upon to choose a weight -based cost allocation f or
subject product models nonetheless allowed for the exclusion of certain parts of a live
broiler (feathers, blood, and viscera) that are necessarily part of the production of the
subject broiler product models from its cost allocation; and
b. MOFCOM did not provide a reasoned and adequate explanation for its rejection of
Tyson's alternative weight-based cost allocation methodology.
7.76. In respect of Pilgrim's Pride, China did not act consistently with Article 2.2.1.1 of the
Anti-Dumping Agreement because:
a. in t he original report we found China to have acted inconsistently with the
second sentence of Article 2.2.1.1 in respect of Pilgrim's Pride; and
b. China did not in any way address this implementation obligation.
7.3 Article 3.2 of the Anti -Dumping Agreement and Article 15.2 of the SCM Agreement :
price effects
7.3.1 Introduction
7.3.1.1 Our findings in the original report
7.77. We found in the original report that:
a. an investigating authority has "a certain level of discretion" in the methodology used for
a price effects analysis137;
b. that discretion is not unbounded: Article 3.2 of the Anti -Dumping Agreement and
Article 15.2 of the SCM Agreement 138 require that "the prices being compared must
correspond to products and transactions that are comparable"139;
c. "price comparability needs to be e xamined any time that a price comparison is
performed in the context of a price undercutting analysis"140; and
d. where an investigating authority performs a price comparison on the basis of a "basket"
of products or sales transactions, it must:

137 Panel Report, China – Broiler Products, para. 7.474.
138 We will refer to these as Articles 3.2 and 15.2.
139 Panel Report, China – Broiler Products, para. 7.475. (emphasis added)
140 Panel Report, China – Broiler Products, para. 7.479. (emphasis added)

i. "ensure that the groups of products or transactions compared on both sides of the
equation are sufficiently similar so that any price differential can reasonably be said
to result from 'price undercutting' and not merely from differences in the composition
of the two baskets being compared"141, or
ii. "make adjustments to control and adjust for relevant differences in the physical or
other characteristics of the product".142
7.78. Turning to MOFCOM's determination, we took note of China's arguments that:
a. the "like product" at issue w as a broiler and nothing in the Anti-Dumping Agreement or
the SCM Agreement requires " a price comparison on the basis of product segments
within the single like product"143; and
b. "MOFCOM … considered that all chicken parts competed and were substitutable with one
another".144
7.79. We found in the original report that, as a matter of fact:
a. "the product mix varied considerably between the two sets of data compared by
MOFCOM in the investigations at issue"145; and
b. "the information before MOFCOM … revealed important price differences between the
different broiler products".146
7.80. We concluded that:
China acted inconsistently with Articles 3.1/15.1 and 3.2/15.2 because MOFCOM relied
for its findings of price undercutting on a comparison of subject import and domestic
average unit values that included different product mixes without taking any steps to
control for differences in physical characteristics affecting price comparability or
making necessary adjustments.147
7.3.1.2 The redetermination's consideration of price effects
7.3.1.2.1 Price undercutting
7.81. In the preliminary determination in the original investigation, MOFCOM had found that "the
product concerned had caused price undercutting and suppression to the like product of the
domestic industry".148 The US interested parties objected that, "ther e is apparent difference in the
product mixes between the imported product concerned and the domestic like product" .149 In
response to these concerns, in the redetermination MOFCOM considered that it "can apply
appropriate methodology based on specific facts of specific case".150 To that end, MOFCOM:
a. "conducted on-site verifications on four domestic producers in the reinvestigation";
b. "collected supplemental sales data that distinguish the different product specifications";

141 Panel Report, China – Broiler Products, para. 7.483.
142 Panel Report, China – Broiler Products, para. 7.483. See also ibid. para. 7.479: "the need for
adjustments necessarily depends on the factual circumstances of the case and the evidence before the
authority".
143 Panel Report, China – Broiler Products, para. 7.468.
144 Panel Report, China – Broiler Products, para. 7.605 (emphasis added); see also ibid. para. 7.468:
"MOFCOM's methodology … recognises the substitutability among different types of products".
145 Panel Report, China – Broiler Products, para. 7.490.
146 Panel Report, China – Broiler Products, para. 7.490.
147 Panel Report, China – Broiler Products, para. 7.494. (emphasis added)
148 Redetermination, (Exhibit CHN-1 (translated version)), p. 73.
149 Redetermination, (Exhibit CHN-1 (translated version)), p. 74.
150 Redetermination, (Exhibit CHN-1 (translated version)), p. 74.

c. "analyzed these sales data"; and
d. "cross-checked with the Customs import data of the product concerned and the data
provided in the injury questionnaire responses of the exporters".151
7.82. On the basis of its reverification of the data, MOFCOM:
a. did not consider it necessary to conduct a new underselling analysis, as it had
"confirmed" the reliability of the results of the original investigation and analysis;
b. found that "the basic facts on which the U.S. relevant claims were based are not
consistent with the actual situation"152; and
c. "considered that the selling prices of the different product specifications in the domestic
market supported by these evidences are representative".153
7.3.1.2.2 Price suppression
7.83. MOFCOM in the redetermination found that the volume and market share of imports of the
product concerned had increased continuously since 2006. It also found that the "import price of
the product concerned had significant effect on the selling prices of the like product of the
domestic industry".154 Specifically, according to MOFCOM:
[B]ecause the import volume of the product concerned increased continuously
afterwards, the import price further undercut the price of the like product of the
domestic industry, resulted in the selling price of the like product of the domestic
industry was further suppressed [sic] …
During the investigation period, the increase of the import volume of the product
concerned was obtained by making low -priced sales. Such low -prices [sic] sales
caused price undercutting to the selling prices of the like product of the domestic
industry, and further more suppressed the prices of the like product of the domestic
industry significantly … [.]155
7.84. In response to the arguments of the interested parties, MOFCOM noted that there was no
disagreement with "the trend of substantial increase of t he absolute import volume".156 MOFCOM
was not, however, required to look at increases in relative terms as well. In particular, MOFCOM:
[C]onsidered that, from 2006 to 2008, although the domestic market had a
continuously high demand in broiler products, the domestic like product also obtained
some market shares . However, that did not imply that the domestic industry did not
suffer from injury. On the contrary, because the import volume of the product
concerned increased substantially and the import price rem ained at a relatively low

151 Redetermination, (Exhibit CHN-1 (translated version)), p. 74.
152 Redetermination, (Exhibit CHN-1 (translated version)), p. 75. Because at issue is MOFCOM's
methodology, the actual numbers are not essential for the Panel's determination. For the sake of
completeness, we note that MOFCOM found that chicken feet, wings, and gizzards did not, in the Chinese
market, belong to "broiler products of lowest value". Looking specifically at certain components of its own
comparator basket of products, MOFCOM found that chicken breasts (included in the domestic basket but not
in the import basket) were actually priced lower than chicken feet. On this basis, "the product specifications
similar to the imported product concerned, as produced and sold by the domestic industry, belong to the
product specifications of relatively high price."
153 Redetermination, (Exhibit CHN-1 (translated version)), p. 74.
154 Redetermination, (Exhibit CHN-1 (translated version)), p. 70. According to MOFCOM:
During the investigation period, the dumped and subsidized imports were imported in a large
quantity and sold, which suppressed the selling price of the like product of the domestic industry
significantly, the selling price had been below the sales cost for a long period of time , and the
domestic industry could not obtain reasonable profit margin, and the like product was in losses
all the time.
(emphasis added)
155 Redetermination, (Exhibit CHN-1 (translated version)), p. 71. (emphasis added)
156 Redetermination, (Exhibit CHN-1 (translated version)), p. 72. (emphasis added)

level, resulted in significantly undercutting and suppression to the domestic like
product …
…
[T]he effect of the import volume of the product concerned on the domestic industry
should be investigated comprehensively combined with the situation of change of the
import price in the corresponding period.157
7.85. According to MOFCOM:
[T]he data indicates that the import price of the product concerned was still lower
than the price of the domestic like product, and significantly undercut th e price of the
domestic like product. Affected by this, the domestic like product was forced to reduce
the price substantially to maintain market share.158
7.3.2 Main arguments of the parties
7.3.2.1 Price undercutting
7.3.2.1.1 United States
7.86. MOFCOM's price effects analysis remains inconsistent with Articles 3.1 and 3.2 of the
Anti-Dumping Agreement and Articles 15.1 and 15.2 of the SCM Agreement159, for two reasons.
7.87. First, the Panel in the original report found that China failed to ensure price comparability
because it did not control f or differences in product mix when comparing the prices of different
chicken products. MOFCOM, however, "took no action that complied with the Panel 's
instructions".160 It based its underselling findings "on the very same comparisons of t he average
unit value of subject imports to the average unit value of domestic industry sales that the original
panel found deficient".161
7.88. Second, China does not demonstrate that data collected from only four of the 17 domestic
producers included in the dom estic industry were representative. In particular, MOFCOM did not
disclose why it narrowed down the sample, the methodology for selecting the producers , or their
share in the total domestic sales.162 The data relied on cannot be considered as "positive evidence"
and the analysis as an "objective examination" wit hin the meaning of Article 3.1 of the
Anti-Dumping Agreement and Article 15.1 of the SCM Agreement 163; MOFCOM's analysis is also
inconsistent with the requirements in Article 3.2 of the Anti -Dumping Agreement and Article 15.2
of the SCM Agreement 164 that the injury analysis focus on the "domestic industry". 165 Where
"samples" are used, they must be properly representative.
7.3.2.1.2 China
7.89. MOFCOM used AUVs rather than model -specific prices to compare price trends; the
WTO Agreement permits reliance on AUVs for price comparison purposes 166 and Articles 3.2
and 15.2 do not mandate a particular price -comparison methodology. 167 Following the Panel's
findings in the original report, MOFCOM collected additional data from four dom estic producers to
determine whether, as a factual matter, the product types exported by the United States were in

157 Redetermination, (Exhibit CHN-1 (translated version)), p. 73. (emphasis added)
158 Redetermination, (Exhibit CHN-1 (translated version)), p. 76.
159 We will refer to these as Articles 3.1, 3.2, 15.1, and 15.2.
160 United States' second written submission, para. 149.
161 United States' second written submission, para. 149.
162 United States' first written submission, paras. 135, 136, and 146.
163 We will refer to these as Articles 3.1 and 15.1.
164 We will refer to these as Articles 3.2 and 15.2.
165 United States' first written submission, para. 142.
166 China's first written submission, para. 277.
167 China's first written submission, para. 278.

fact low-value products in China's market or were high -value products.168 MOFCOM found that the
subject imports consisted of products higher in value169 than the domestic like product used in
determining AUVs. As a result, the initial use of AUVs in the original investigation was in fact
biased in favour of the respondents. In this light, MOFCOM did not need to make any adjustments
for differences in the product mix in the redetermination.170
7.90. The underselling analysis therefore remained exactly the same as in the original
investigation and is thus based on data from all domestic producers included in the original
investigation. The more limited data c ollected in the redetermination served only to confirm that
there was no bias in the original method (using aggregate AUVs rather than product-specific prices
for the underselling analysis); for this more limited purpose, collecting data from four domestic
producers was fully sufficient.
7.91. MOFCOM's choice of the four domestic firms from which it sought additional data during the
reinvestigation was based on time and resource constraints and MOFCOM's familiarity with the four
firms.171 For three of the four firms MOFCOM had conducted full verifications in the original
proceedings; the fourth was the largest of those for which it had conducted more limited
verifications. MOFCOM made a specific finding in its redetermination, based on a r eview of all the
evidence, "that the selling prices of the different product specifications in the domestic market
supported by these evidences are representative".172
7.3.2.2 Price suppression
7.3.2.2.1 United States
7.92. MOFCOM's price suppression finding relied exclusively on the flawed finding of price
underselling. Because the latter was flawed, the former was also necessarily inconsistent with
Articles 3.1, 3.2, 15.1, and 15.2.173
7.93. The underselling analysis and product -specific pricing data did not support MOFCOM's
findings of price suppression in the first half of 2009 because the evidence did not show any
correlation between the alleged underselling and price suppression.174 Specifically:
a. The long-term trend in the domestic industry's net loss does not support the conclusion
of price suppression.
i. The domestic industry's decrease in losses (due to prices increasing more than the
increase in costs) during the period 2006 to 2008 is inconsistent with a finding of
price suppression.
ii. MOFCOM failed to explain or investigate how the a lleged underselling could have
suppressed domestic prices in the first half of 2009 when similar underselling had no
price suppressive effects between 2006 and 2008.175

168 China's response to Panel question No. 45(b), para. 166.
169 China's response to Panel question No. 45(b), para. 167: "pricing evidence collected by MOFCOM
through verification during the re-investigation process further established a pricing spectrum showing
products like paws to be high value."
170 This conclusion was based on the following analysis: (a) MOFCOM identified those product models
mainly exported from the United States; (b) for those product models, MOFCOM calculated the overall average
(domestic) price from price data collected from the four domestic producers selected during the
reinvestigation; (c) this overall domestic price was relatively high; and (d) on that basis MOFCOM inferred that
the corresponding product models exported from the US belong to higher-value product models. (China's first
written submission, paras. 270-272). China further noted:
[T]he verification and data collection were used to establish price relationships across product
types, irrespective of their absolute values, to demonstrate that price differences shown in a
comparison of aggregate AUVs drawn from the industry as a whole was not merely the result of
product mix but could reasonably be attributed to price undercutting.
(China's response to Panel's question No. 45(c), para. 168)
171 China's first written submission, para. 295.
172 China's response to Panel question No. 45(c), para. 168.
173 United States' first written submission, paras. 151-157.
174 United States' first written submission, paras. 151, 158, and 159.
175 United States' first written submission, para. 158.

b. The short-term price trend for domestic product types competing directly with subject
imports compared to the price trend for other domestic product types suggests that
other factors unrelated to the dumped imports were responsible for the alleged price
suppression.176 MOFCOM disregarded evidence that prices for domestically produced
products that competed directly with most subject imports (i.e. chicken drumsticks, feet,
and gizzards) declined far less than prices for other domesti c products in the first half
of 2009.
7.3.2.2.2 China
7.94. In relation to the United States' first argument, the price suppression finding relied not only
on the underselling analysis but also on the effects of increased volumes of imports and the
combined effects of both.177
7.95. In relation to the United States' second argument:
a. The legal standard under Ar ticles 3.2 and 15.2 is not a full causation analysis but ask s
whether subject imports have "explanatory force" for the price suppression. MOFCOM
made such a showing on the basis of the correlation between domesti c and import
prices, the consistent underselling and losses of the domestic industry, the increase in
the margin of price undercutting in 2008, and the consistent increase in import
volume.178
b. Regarding the US argument on decreasing losses, losses only narro wed in 2007 which
cannot preclude a finding of price suppression on the basis of the totality of the evidence
over the full period, in particular the increase in volume and market share of subject
imports.179
c. Regarding the US argument on price suppression du ring the first half of 2009 being
driven by other factors180:
i. the US argument is not compatible with MOFCOM's aggregate approach;
ii. there was a price undercutting effect for the product as a whole and model -specific
prices fell even if the degree of the decline varied between product models; and
iii. the price decline for those product models directly competing with imports was still
"significant".
7.3.3 Evaluation
7.3.3.1 Price undercutting
7.3.3.1.1 Price comparison
7.96. We recall the second sentence of Article 3.2 of the Anti-Dumping Agreement:
With regard to the effect of the dumped imports on prices, the investigating
authorities shall consider whether there has been a significant price undercutting by
the dumped imports as compared with the price of a like produ ct of the importing
Member … [.]181

176 United States' first written submission, para. 159.
177 China's first written submission, paras. 302-310.
178 China's first written submission, paras. 317-320.
179 China's first written submission, paras. 321-322.
180 China's first written submission, paras. 323-327.
181 Emphasis added. Article 15.2 of the SCM Agreement is essentially identical.

As we observed in the original report, "price comparability has to be ensured in terms of the
various features of the products and transactions being compared". 182 We concluded that, as a
matter of law, where an authority:
[P]erforms a price comparison on the basis of a "basket" of products or sales
transactions, the authority must ensure that the groups of products or transactions
compared on both sides of the equation are sufficiently similar so that any price
differential can reasonably be said to result from "price undercutting" and not merely
from differences in the composition of the two baskets being compared. Alternatively,
the authority must make adjustments to control and adjust for relevant differences in
the physical or other characteristics of the product.183
7.97. Neither party has directed us to any developments since that would require us to revisit this
finding.
7.98. Article 3 of the Anti -Dumping Agreement and Article 15 of the SCM Agreement 184 set out
the rules and conditions that apply with respect to the determination of injury, which is one of the
fundamental prerequisites for the imposition of an anti -dumping measure. 185 The provisions of
Articles 3 and 15 requiring consideration, examination, and evaluation of various fa ctors
contemplate "a logical progression of inquiry leading to an investigating authority's ultimate injury
and causation determination". 186 The price comparison required in Articles 3.2 and 15.2 is an
important analytical step in an investigating authority 's injury a nd c ausation analysis under
Article 3.5 of the Anti -Dumping Agreement and Article 15.5 of the SCM Agreement. It requires an
investigating authority to consider whether any observed significant price undercutting is " the
effect of the dumped impo rts".187 A price comparison under Articles 3.2 and 15.2 is thus not a
static snapshot of the relationship between two prices (or averages). It requires, rather, a dynamic
consideration of two sets of prices in a specific market context and within a given tim e-frame. The
consideration must address whether observed movements in domestic prices are the effect of the
prices of the dumped imports.
7.99. The facts relevant to our Articles 3.2 and 15.2 analysis in this proceeding may be
summarized as follows:
a. In the original case, MOFCOM disagreed with the arguments of US interested parties that
imports from the United States contained "low value" products, as opposed to what the
United States characterized as "high value" domestic product models in the domestic
comparator basket.188
b. In the redetermination, MOFCOM sought to verify whether "the selling prices of the
different product specifications in the domestic market supported by these evidences
[sic] are representative".189
c. MOFCOM selected four domestic producers for additi onal verification of data and
obtained further product -specific information from these companies. The data verified
and gathered were not for the purpose of comparing prices, but rather, "to establish
price relationships across product types, irrespective of their absolute values".190

182 Panel Report, China – Broiler Products, para 7.480.
183 Panel Report, China – Broiler Products, para. 7.483. We note that the parties did not appeal our
findings.
184 We will refer to these as Articles 3 and 15.
185 Panel Report, China – Cellulose Pulp, para. 7.11.
186 Appellate Body Report, China – GOES, para. 128; Panel Report, China – Cellulose Pulp, para. 7.14.
187 Emphasis added.
188 Panel Report, China – Broiler Products, para. 7.469.
189 Redetermination, (Exhibit CHN-1 (translated version)), p. 74.
190 China's response to Panel question No. 45(c), para. 168.

d. The data gathered from the four domestic producers indicated that product models
identified by the United States as "low value" 191 or "high value" do not have similar
"values" in the Chinese market 192, at least for those producers, and could not be
considered "low value".
e. In the light of this model -specific evidence, MOFCOM considered that the domestic
benchmark AUV it used for its p rice underselling analysis was more "conservative"193
than an AUV based on a basket of product models in cluding only models in the
US-export basket.
7.100. The discussion of comparability in our original report concentrated on the following point:
to consider whether the AUV of a basket of imported goods has had the effect of undercutting the
AUV of a basket of dom estic like products, the product composition of the two baskets must be
"comparable" such that the price of the products in one basket can have an effect on the price of
the products in the other basket. This is because where the baskets are composed of di fferent
product models a consideration of the effect of the price of a basket of imported goods on the
prices of the basket of domestic goods becomes complicated: the more the divergence in
composition, the less accurate the comparison of average values an d the less reliable any
consideration of the effects of one set of prices (or AUVs) on another.
7.101. In the original investigation 194, MOFCOM's price comparison was further complicated by at
least two other factors, and these complicati ons were not addressed or rectified in the
redetermination.
7.102. First, in considering the price effects of dumped imports, MOFCOM undertook a price
comparison between two baskets of dissimilar compositions and considered the effects of the AUV
of a smaller import basket on the AUV of a larger domestic basket. In the original case MOFCOM
had found that the "like product" for the purposes of the investigation was a b roiler and not
specific product models, and that many of the product models at issue were substitutable in the
Chinese market.195 MOFCOM was thus aware of potential price effects as a result of competition
among product models within each basket. Given substitutability of the product models within the
larger domestic basket, there was some risk that price effects were the effects of competition from
product models within the domestic basket that were not in the dumped import basket.
7.103. Second, we note the observation by the United States that, "MOFCOM found that chilled
chicken cuts accounted for 40 to 47 percent of subject imports an d chicken feet accounted for
29 to 39 percent of subject imports, depending on the year". 196 We recall the model-specific prices
that MOFCOM found in the cours e of the reve rification. Given the range of prices among the
various product models and the change in the composition of the domestic basket from year to
year, it is not a given that any observed price effects are "not merely from differences in the
composition of the two baskets being compared" .197 An unbiased and objective investigating
authority would be expected to seek to control for these variations in considering the effect of the
prices of subject imports on the prices of the domestic like product.

191 Redetermination, (Exhibit CHN-1 (translated version)), p. 75: "the main product specifications
exported from the U.S. to China were frozen chicken with bones (normally most of them are chicken legs,
HS 02071411), chicken wing (HS02071421), paw (HS 02071422), gizzard (HS 05040021)".
192 Redetermination, (Exhibit CHN-1 (translated version)), p. 75:
From 2006 to first half year of 2009, the average prices of chicken legs sold by domestic
producers in domestic market were 9,676 RMB, 12,566 RMB, 13,656 RMB and 11,875 RMB per
ton, the average prices of chicken paw were 10,198 RMB, 12,142 RMB, 12,958 RMB and
12,837 RMB per ton, while at the same period the average prices of chicken breast were
9,342 RMB, 11,489 RMB, 12,573 RMB and 11,031 RMB per ton. According to the above data, the
product specifications similar to the imported product concerned, as produced and sold by the
domestic industry, belong to the product specifications of relatively high price.
193 Redetermination, (Exhibit CHN-1 (translated version)), p. 75.
194 We underline that MOFCOM did not undertake to reopen the investigation to consider price effects,
but reverified its data and gathered additional information. On this basis, it found that the AUVs it relied upon
in its consideration of price effects in the original investigation were "conservative".
195 Panel Report, China – Broiler Products, para. 7.605 (referring to the Preliminary Determination in the
original investigation, (Original Exhibit USA-2)).
196 United States' second written submission, para. 150 (referring to Redetermination, (Exhibit USA-9
(translated version), section VII(ii)(2)).
197 Panel Report, China – Broiler Products, para. 7.483.

7.104. As a matter of law, we continue to be of the view that:
a. a simple comparison of prices in respect of baskets with different compositions does not
indicate the effect of one set of prices (of the subject import basket) on the other set of
prices (the domestic basket, comprising a larger number of product models); and
b. where AUVs are based on baskets whose product mixes are not comparable, an
investigating authority is required to seek to "control for differences in physical
characteristics affecting price comparability or making necessary adjustments".198
7.105. China argues that the reverification amounted to "controlling" for the different basket
compositions, because it demonstrated that the domestic AUVs used for comparison purposes are
more "conservative" than an AUV that might be derived from a bask et composed of the same
product models as the subject imports. 199 While we might agree with China that, at least for the
four producers subject to reverification, domestic AUVs appear to be more "conservative" than the
dumped import AUVs, given our specific findings in the original case and the requirements of
Article 3.2, this alone does not suffice to demonstrate that MOFCOM controlled for the different
composition of the two baskets for the specific purpose of consideri ng the effects of the price of
subject imports on a comparator basket of the domestic like product.
7.106. In the original report, we did not find, because Articles 3.2 and 15.2 do not require, that in
a price comparison, MOFCOM had to adopt the "lower of the two" price benchmarks; our findings
were about the comparability of the baskets rather than the relativ e value of different AUVs. The
fact that a domestic AUV is more or less "conservative" or might otherwise benefit exporters or
foreign producers does not affect our analysis. Rather, at issue under Articles 3.2 and 15.2 is the
effect of subject imports on domestic like product prices during the POI. This requires that the
baskets of goods used for comparison be comparable, or at least that any price comparison
controls for or adjusts in respect of different compositions to ensure sufficient comparability.
7.107. In this light, we find that MOFCOM's "reverification" did not suffice to bring China's
measure into conformity with its obligations under Articles 3.2 of the Anti-Dumping Agreement and
15.2 of the SCM Agreement , in that it failed to address the comparability of AUVs derived from
different baskets of products for the purpose of considering the effects of prices of subject imports
on domestic like product prices.200
7.3.3.1.2 Representativeness
7.108. In response to the arguments of the United States that the data collected from four
domestic companies were not representative, China submits that in its view:
[T]he "representativeness" of the selected producers [is] a question regarding price
comparability of specific products, which was not the purpose of the MOFCOM
verification exercise and collection of supplemental information.201 …
China further argues that:
The exercise did not require any direct product price comparisons, but merely to
establish pricing relationships across product types, whatever the absolute prices may
be.202
[P]ricing evidence collected by MOFCOM through verification during the
re-investigation process further established a pricing spectrum showing products like
paws to be high value. None of the U.S. interested parties submitted any evidence or

198 Panel Report, China – Broiler Products, para. 7.494.
199 China's second written submission, para. 262; opening statement at the meeting of the Panel,
para. 46.
200 We do not mean to suggest, of course, that all MOFCOM had to do was to address the findings of the
Panel in its original report. At issue in this case is the consistency of the redetermination with "the covered
agreements".
201 China's response to Panel question No. 45(b), para. 165.
202 China's response to Panel question No. 45(b), para. 166. (emphasis added)

argument during the re -investigation process in an attempt to rebut these facts and
common knowledge.203
7.109. The question of "representativeness" arises in the context of "sampling". Sampling is an
exercise in which observations about the whole of a population are based on data collected from a
subset of that population. The methodology used to sample from a larger population depends on
the type of analysis being performed, but may include simple random sampling or systematic
sampling. Whatever the sampling methodology, in the context of the Anti -Dumping Agreement
and th e SCM Agreement, application of sampling as an analytical tool is valid where it can be
demonstrated that the sample is sufficiently representative to allow for a reasoned conclusion
about the population as a whole. 204 In this instance, MOFCOM obtained addit ional data from four
domestic producers 205 on "volume, value, and unit value on a product -specific basis" 206 in the
context of analysing "pricing relationships across product types". According to China, this was done
"to establish" such relationships, in respe ct of not only the four domestic producers subject to
verification, but also the domestic industry as defined. Moreover, according to China, "pricing
evidence collected by MOFCOM through verification during the re -investigation process further
established a pricing spectrum".207
7.110. That is, on the basis of data gathered from a sub set of the population (four producers),
MOFCOM drew certain conclusions about the population as a whole ("a pricing spectrum" or
"pricing relationships across product types" in respect of all domestic producers defined as the
domestic industry). This is, in effect, a sampling exercise, regardless of the methodology employed
by MOFCOM.
7.111. Nothing in Articles 3.2 and 15.2 – or, indeed, in Articles 3 and 15 as a whole – expressly
prohibits or permits, or specifically regulates, sampling as an analytical methodology. 208
Nonetheless, any sample that is used to "establish" a conclusion about the population a s a whole
must be representative. 209 An unbiased and objective investigating authority cannot reasonably

203 China's response to Panel question No. 45(b), para. 167. (emphasis added)
204 See in particular, Appellate Body Report, EC – Fasteners (China), para. 436:
[W]e disagree with China's contention that the only way to ensure representativeness is through
a statistically valid sample. In our view, as long a s the domestic industry is defined consistently
with the Anti-Dumping Agreement , and that the sample selected is representative of the
domestic industry, an investigating authority has discretion in deciding the method with which it
selects a sample. A statistically valid sample is a proper way to ensure the representativeness of
the sample. Yet, the Anti-Dumping Agreement imposes no obligation on an inve stigating
authority always to resort to statistically valid samples.
(emphasis added)
"Representativeness" is not about the methodology of sampling; even a randomly selected sample may need
to be controlled to ensure representativeness, such that any observations based on the sample can be validly
extended to the population as a whole.
205 There were 17 domestic producers in the "domestic industry". (Redetermination, (Exhibit CHN-1
(translated version)), pp. 26-27).
206 China's response to Panel question No. 5(c), para. 14.
207 China's response to Panel question No. 45(b), para. 167. (emphasis added)
208 Appellate Body Report, EC – Fasteners (China), para. 435:
Turning to the substance of China's claims, we note that the Anti-Dumping Agreement is silent
on the issue of whether sampling may be used for purposes of the injury determination. The
Agreement thus does not prevent an authority from using samples to determine injury, and
China does not contest this view.
And para. 436:
[B]ecause the Anti-Dumping Agreement does not specify whether sampling is allowed for
purposes of an injury determination, it also does not contain guidance on how sampling should
be conducted.
209 Sampling is generally concerned with gathering data from a sub-set of a population for the purpose
of drawing conclusions about the population as a whole. In this instance, the investigating authority already
had considerable data – not just of the sub-set, but of the population as a whole; indeed, China stresses that
the reason why MOFCOM reverified the four companies was that it knew the sub-set sampled. We are
sympathetic to MOFCOM's stated reason for the selection: given tight timelines, it is not unreasonable for an
investigating authority to seek data from producers that have already been verified and that are familiar to it.
At the same time, and especially given the lack of any explanation in the redetermination for the choice of
these producers, this sequence of events might well give rise to an appearance of selecting among domestic
producers based on their data to ensure a particular outcome, which would not be consistent with an objective
analysis of the evidence. We need not and do not make any findings on this point, but only note that
MOFCOM's approach was not without risk.

draw conclusions about a population as a whole based on data gathered from a subset that is not
representative.
7.112. The redetermination is silent as to the selection criteria, the selection process, and the
representativeness of the sample. The explanations proffered by China in its submissions do not in
any way address the question of representativeness of the sample, but rather contend that the
choice of the four companies reverified was not arbitrary. Accordingly, even if MOFCOM's
"reverification" amounted to the type of "control" required for a proper price comparison, MOFCOM
did not explain in the redetermination in what way its sample was sufficiently representative that it
could draw a reasoned conclusion about the population as a whole.
7.113. In this light, we find that China did not act consistently with Article s 3.2 of the
Anti-Dumping Agreement and 15.2 of the SCM Agreement because in conducting its
"reverification", MOFCOM failed to explain in what way the companies chosen were
"representative" such that a consideration of price effects based on data for these companies could
be generalised to the domestic industry.
7.3.3.2 Price suppression
7.114. We found in the original report that even if there were contributing factors, at a minimum
price undercutting was a factor in MOFCOM's price suppression analysis.210
7.115. For the redetermination, MOFCOM merely "confirmed" through the rever ification of the
four companies that the comparator basket was a "conservative" one a nd that its price
undercutting analysis was acc urate but left its original price effects analysis unchanged. MOFCOM
did not, in the redetermination, seek to "disentangle" price undercutting, price suppression , and
volume and market-share effects. We refer, for example, to MOFCOM's response to the argum ent
that part of the injury to the domestic industry was attributable to grain price increases:
[B]ecause the import price of the product concerned was always lower than the
average selling price of the like product of the domestic industry, it undercut th e price
of the like product significantly, resulted in the suppression on the selling price of the
domestic like product, and could not pass through the cost caused by price increase of
raw materials downward, and the due price increase of the like product which should
have occurred hadn't been realized.211
And again, responding to the pork price argument of the interested parties:
While its price was significantly lower than that of the domestic like product, it caused
apparent suppression on the price increase of the domestic like product, and the price
was lower than the production cost for a long time, and could not gain the profit
margin. Therefore, the low -priced activity of the product concerned was the direct
reason causing the injury to the like product of the domestic market [sic].212
7.116. In this light, we find that China acted inconsistently with Articles 3.2 of the
Anti-Dumping Agreement and 15.2 of the SCM Agreement because MOFCOM's consideration of
price suppression still rests on its consideration of price undercutting, such that its price
suppression analysis was undermined by a flawed analysis of price undercutting.

210 Panel Report, China – Broiler Products, para. 7.511. In arriving at this conclusion, we relied on the
findings of the Appellate Body in China – GOES to the effect that:
MOFCOM's Determinations do not separately or independently discuss the impact of the volume
and increased market share of subject imports on the ability of domestic producers to sell at
prices that would cover their costs of production. In these circumstances, we find ourselves
unable to disentangle the respective contribution, in MOFCOM's determinations, of price
undercutting and of volume and market share effects on the resulting price suppression.
(Panel Report, China – Broiler Products, para. 7.511)
211 Redetermination, (Exhibit CHN-1 (translated version)), p. 85.
212 Redetermination, (Exhibit CHN-1 (translated version)), p. 88.

7.117. Having made findings in respect of price undercutting and in the light of the foregoing, it is
not necessary or useful for us to make additional findings in respect of the second line of argument
of the United States regarding price suppression.
7.3.4 Conclusion
7.118. For the foregoing reasons, we find that:
a. China acted inconsistently with Article 3.2 of the Anti -Dumping Agreement and
Article 15.2 of the SCM Agreement in respect of price undercutting;
b. China acted inconsistently with Article 3.2 of the Anti -Dumping Agreement and
Article 15.2 of the SCM Agreement in respect of price suppression; and
c. as a consequence, China acted inconsistently with Article 3.1 of the
Anti-Dumping Agreement and Article 15.1 of the SCM Agreement.
7.4 Article 3.4 of the Anti -Dumping Agreement and Article 15.4 of the SCM Agreement :
impact on the domestic industry
7.4.1 Introduction
7.119. In our original report we found MOFCOM's consideration of price undercutting and price
suppression inconsistent with Articles 3.1 and 3.2 of the Anti -Dumping Agreement and
Articles 15.1 and 15.2 of the SCM Agreement. 213 We did not consider that making additional
findings in respect of Article 3.4 of the Anti -Dumping Agreem ent and Article 15.4 of the
SCM Agreement214 would help the parties in resolving the dispute because:
a. MOFCOM's examination of the state of the domestic industry was "inextricably linked" to
its flawed consideration of price effects; and
b. implementing the report on Articles 3.2 and 15.2 would require MOFCOM to re -examine
its the impact of subject imports.
7.120. In this implementation proceeding, the United States again asserts that MOFCOM erred in
various aspects of its examination of the impact of subject imports:
a. In its redetermination, MOFCOM limited the scope of its reinvestigation to "the
implementation of the rulings and recommendation of the DS427 Panel on the issues of
injury and causality".215
b. MOFCOM did not examine differ ent or additional information; its evaluation of all
relevant factors is not different from that in its original investigation.
In these circumstances, to assist the parties to secure a positive resolution to the current dispute,
we consider it appropriate to make findings with respect to the US claims.216
7.4.2 Main arguments of the parties
7.4.2.1 United States
7.121. MOFCOM's impact analysis did not reflect an "examination of the impact of the subject
imports on the domestic industry concerned" and an "evaluation of all relevant economic factors
and indices having a bearing on the state of the industry" as required by Articles 3.4 and 15.4, for
three reasons.

213 We will refer to these as Articles 3.1, 3.2, 15.1, and 15.2 or, where appropriate, Articles 3.2
and 15.2.
214 We will refer to these as Articles 3.4 and 15.4.
215 Redetermination, (Exhibit CHN-1 (translated version)), p. 15.
216 This also reflects Japan's suggestion to the Panel in its third-party statement, para. 5.

7.122. First, MOFCOM relied exclusively217 (or primarily218) on a flawed analysis of the decrease in
capacity utilization and an increase in end -of-year inventories, instead of evaluating all relevant
factors and taking into account evidence that nearly all other facto rs were positive for the
period 2006 to 2008.219
7.123. Regarding capacity utilization:
a. MOFCOM ignored that between 2006 and 2008 the decline in capacity utilization was due
to the fact that the domestic industry's capacity inc reased in excess of demand
growth.220
b. The decline in capacity utilization between 2006 and 2008 was also not the effect of
subject imports because their share of apparent consumption increased entirely at the
expense of non -subject imports, not at the expens e of the domestic industry, whose
share of apparent consumption also increased.221
7.124. Regarding end-of-period inventories, MOFCOM focused on an absolute increase in domestic
industry end -of-period inventories. The relative increase in end -of-period inventories, both as a
share of domestic industry production and as a share of domestic industry shipments, ranged
between only 2.9% and 3.5% for the period 2006-2008, which was not significant.222
7.125. Second:
[B]y China's own admission, MOFCOM's impact analysis focused on the first half of
2009, when the domestic industry's performance lagged, while failing to account for
the impact of subject imports on the domestic industry between 2006 and 2008, when
the domestic industry's performance strengthened.223
MOFCOM was required to consider the impact of subject imports on the domestic industry during
the entire POI, including those periods in which the industry's performance improved. 224 MOFCOM
was not entitled to "focus" its impact analysis "on the financial indicators that were c onsistently
weak throughout the period of investigation" to the exclusion of other contradictory factors.225
7.126. Third, China expressly argues that MOFCOM also considered potential future imports.
However, " future subject imports could have no impact whatsoever on the domestic industry
during the period of investigation".226
7.4.2.2 China
7.127. US arguments in respect of capacity utilization are problematic because:
a. they relate to causation, which is irrelevant under Articles 3.4 and 15.4227;
b. MOFCOM did not base its evaluation pri marily or exclusively on capacity utilization, but
evaluated "all of the injury factors, both individually and collectively"228;
c. the observed capacity expansion is in part the result of "a shift from smaller producers to
large producers", reflecting the "recent trend in the Chinese market" of "larger firms
consolidating a growing portion of the market"229; and

217 United States' first written submission, para. 170.
218 United States' first written submission, para. 182.
219 United States' first written submission, paras. 165 and 171.
220 United States' first written submission, paras. 172-173.
221 United States' first written submission, para. 174.
222 United States' first written submission, paras. 177 and 179.
223 United States' second written submission, para. 168.
224 United States' second written submission, para. 170.
225 United States' second written submission, para. 171 (quoting China's first written submission,
para. 350).
226 United States' second written submission, para. 172.
227 China's first written submission, para. 358.
228 China's second written submission, para. 301.
229 China's first written submission, para. 357.

d. the "allegation that ca pacity grew in excess of increasing consumption is not factually
true".230
7.128. In respect of inventories, the United States failed to consider that inventories were growing
in absolute and relative terms and MOFCOM had discretion on which basis to evaluate this
factor.231
7.129. In respect of US arguments on the POI, the United States focuses on the period from 2006
to 2008, and only on various non -financial indicators of the health of the domestic industry 232,
ignoring the most recent part of the POI, the first half of 2009.233 Thus, the United States:
a. improperly focused on volume indicators and ignored the weak financial indicators;
b. improperly focused on the period 2006 -2008 and ignored the most recent period, the
first half of 2009;
c. ignored the "cumulative impact of consistent pre-tax losses"234; and
d. did not take account of expected near term trends.
7.130. By contrast, in its evaluation, MOFCOM " considered all of the evidence for the period as a
whole"235 and put particular weight on236:
a. negative financial indicators over the full POI;
b. the deterioration in most injury factors during the first half of 2009237; and
c. expected negative near term trends.238
7.4.3 Evaluation
7.4.3.1 MOFCOM's redetermination
7.131. MOFCOM conducted the reinvestigation on "procedural and substantive issues which
formed the basis ofr [ sic] the original anti -dumping measure and original countervailing
measure".239 On injury, MOFCOM limited the scope of the reinvestigation to "the implementation of
the rulings and recommendation of the DS427 Panel on the issues of injury and causality". 240
MOFCOM did not examine any additional or different information in its redetermination, and based
on largely the same evaluation of the facts, reached the same conclusions regarding the impact of
subject imports on the domestic industry as in the original investigation.

230 China's first written submission, para. 356:
The United States makes a misleading comparison of percentages that are being applied to very
different base numbers – 780,700 metric tons is a 26 percent increase from 2.98 million, while
955,600 metric tons is only a 17 percent increase from 5.64 million tons. But the denominator
for the consumption increase is almost twice the size of the denominator for t he reported
domestic capacity.
(fn omitted)
231 China's first written submission, paras. 360-365.
232 China's first written submission, para. 339.
233 China's first written submission, para. 340.
234 China's second written submission, para. 312.
235 China's second written submission, para. 300.
236 China's first written submission, paras. 340-350.
237 China's first written submission, para. 342:
Aside from noting these negative indicators, the MOFCOM Redetermination also specifically
highlighted this shift in 2009 . MOFCOM noted that: " [i]n the first half of 2009, all the economic
indexes of domestic industry continued to deteriorate". The MOFCOM focus on 2009 could not be
mistaken.
(emphasis added; fn omitted)
238 China's first written submission, para. 344.
239 Redetermination, (Exhibit CHN-1 (translated version)), p. 1.
240 Redetermination, (Exhibit CHN-1 (translated version)), p. 15.

7.132. MOFCOM found that volume indicators were generally improving in 2006 -2008. Financial
indicators appeared generally weak and fluctuated over the same period. However, based on a
comparison between the first half of 2008 and the first half of 2009, all indicators showed declining
performance in the first half of 2009.
Table 1: Market trends
Factor Observed trends
Output volume of the
domestic industry
Increased throughout the 2006 -2008 period, declined (by 4.37 percen tage
points) from H1 2008 to H1 2009.
Capacity utilization Remained at around 79-80% throughout the 2006-2008 period, decreased by
9.78 percentage points from H1 2008 to H1 2009, to 66.48%.241
Sales quantities Increased throughout the 2006 -2008 per iod, dropped in H1 2009 by
7.74 percentage points compared to H1 2008.
Market share Increased slightly throughout the 2006 -2008 period (37.81% in 2006,
41.62% in 2007, 42.42% in 2008), decreased very slightly in H1 2009 to
42.19%.242
Sales price Increased in the 2006-2008 period, decreased in H1 2009.243
Gross profit margin Fluctuated over the period considered; generally negative except for 2007;
and worsened markedly in H1 2009: -2.46% in 2006, 5.03% in 2007, -0.21%
in 2008, and -4.37% in H1 2009.
Sales income Year-on-year increase of 57.62% in 2007 and 19.65% in 2008; declined
26.80% from H1 2008 to H1 2009.
Profit before tax Negative throughout the period considered: -1.208 billion RMB in
2006, -0.084 billion RMB in 2007, -1.359 billion RMB in 2008, an d -1.090
billion RMB in H1 2009. Losses grew by 1511.72% from 2007 to 2008 and by
307.28% from H1 2008 to H1 2009.
Return on investment Negative throughout the period considered: -13.42% in 2006, -0.86% in
2007, -12.18% in 2008 , and -9.10% H1 2009 over H1 2008; year-on-year
change of 12.56%, -11.31%, and -6.69% in 2007, 2008, and H1 2009.
Employment figures Increased in 2006-2008, but decreased by 11.29% in H1 2009.244
Labour productivity Remained more or less stable over POI.
Per capita payroll Rose throughout POI.
Ending inventory Increased in absolute numbers during POI, from 68,257 tons in 2006 to
91,713 tons in 2007, 98,755 tons in 2008, and 105,402 tons in H1 2009.
Year-on-year increase of 34.36% to 2007, 7.68% to 2008, and 6 .73% to
H1 2009 over H1 2008.
Net cash flows from
operating activities
Fluctuated: -218 million RMB in 2006, -10 million RMB in 2007,
+69 million RMB in 2008, -433 million RMB in H1 2009.
Source: Redetermination, (Exhibit CHN-1 (translated version)), pp. 65-68 and 78.
7.4.3.2 The law
7.133. Article 3.4 of the Anti-Dumping Agreement provides:
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 indu stry, 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.

241 The baseline is not, however, constant. Capacity expanded throughout the period.
242 MOFCOM found that the "growth rate" in the domestic industry's market share in the first half of
2009 "dropped by 4.80%" over that in the same period of 2008. It is not clear what MOFCOM means in its
references to a decrease in the "growth rate".
243 MOFCOM noted that the "growth rate in the first half of 2009 dropped by 20.65% from that in the
same period of 2008".
244 Total employment fell to 2006 levels, whereas total wages rose by over 40% in the same period.

7.134. Article 3 does not establish a strict order of analysis. It sets out substantive requirements
for the determination of injury. T he "consideration" requi red by Article 3.2 and the "examination"
set out in Article 3.4 are meant to contribute to, rather than duplicate, the determination of
causation required under Article 3.5. 245 Article 3.4 requires an "examination" of the impact of the
dumped imports including an "evaluation" of all relevant economic factors having a bearing on the
state of the domestic industry. This examination involves consideration of the "explanatory force of
subject imports for the state of the domestic industry". 246 The fifteen factors l isted in Article 3.4
are not exhaustive; other "economic factors" might well be relevant, and no one or several of the
factors examined necessarily give decisive guidance. In examining the impact of dumped imports:
a. "[T]here is no requirement in Article 3. 4 that each and every injury factor, individually,
must be indicative of injury."247
b. The factors and indices evaluated under Article 3.4 may be found to be "negative" in
terms of the state of the industry even in the absence of "an actual decline in
performance".248 Similarly, "positive" trends (that is, where there is no absolute decline)
may nonetheless be negative in terms of the state of the industry, for instance "when
those increases are significantly less than the expansion in demand".249
c. Even if there ar e no actual declines – in absolute or relative terms – an investigating
authority may consider potential negative effects or declines in the industry. At issue
when a "potential negative effect" is evaluated is still the impact of imports during the
POI on the domestic industry during the POI , and not the possible impact of future
(possible or likely) imports on the future state of the industry. 250 What is relevant is the
existence of a latent, as yet unrealized decline (again, in absolute or relative terms).
d. Nothing in Article 3.4 prohibits an investigating authority from focussing on a part of the
POI and undertaking a more detailed analysis of developments during that part of the
POI in examining the impact of imports.251

245 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.205 (referring to
Appellate Body Report, China – GOES, para. 149).
246 Appellate Body Report, China – GOES, para. 149
247 Panel Report, EC – Bed Linen (Article 21.5 – India), para. 6.163. That panel went on to observe that:
[T]he fact that one or mor e factors do not, taken individually, point toward injury, does not
preclude the possibility of a finding that there is material injury. An examination of the impact of
the dumped imports on the domestic industry under Article 3.4 includes an evaluation of all
relevant economic factors having a bearing on the state of the industry to produce an overall
impression of the state of the domestic industry.
See also Panel Report, Thailand – H-Beams, para. 7.249:
While we do not consider that such positive trends in a number of factors during the [POI] would
necessarily preclude the investigating authorities from making an affirmative determination of
injury … such positive movements in a number of factors would require a compelling explanation
of why and how, in l ight of such apparent positive trends, the domestic industry was, or
remained, injured within the meaning of the Agreement. In particular, we consider that such a
situation would require a thorough and persuasive explanation as to whether and how such
positive movements were outweighed by any other factors and indices which might be moving in
a negative direction during the [POI].
248 Panel Report, EC – Fasteners (China), para. 7.402:
Our view is supported by the text of Article 3.4, which requires investigat ing authorities to
evaluate all relevant factors, "including actual and potential decline" in certain factors, and
"actual or potential negative effects" on certain other factors. The New Shorter Oxford English
Dictionary defines "potential" as "Possible a s opp[osed] to actual; capable of coming into being
or action; latent". The use of the word "potential" in the context of the Article 3.4 non-exhaustive
list of relevant economic factors indicates to us that a decline need not have occurred during the
period under consideration in order for an investigating authority to find injury.
(fn omitted)
249 Panel Report, EC – Fasteners (China), para. 7.403.
250 The impact of future imports on the future state of the industry is a question to be examined in the
context of determining whether there is a threat of injury to the domestic industry.
251 Panel Report, Russia – Commercial Vehicles, para. 7.41 (adoption/appeal pending).

7.4.3.3 Analysis
7.4.3.3.1 Capacity utilization
7.135. As we understand it, the US argument rests on two factual bases: first, that the domestic
industry's capacity increased in excess of growth in demand; and second, that MOFCOM relied on
negative trends in inventories and capacity utilization rates without regard for positive trends in
other areas in the redetermination. The United States relies on the following data:
a. Domestic industry capacity increased by 780,000 tons, or 26.2%, in 2006-2008.
b. Domestic demand (apparent consumption) increased by 955,000 tons, or 1 7%, in
2006-2008 and the domestic industry's share of apparent consumption increased from
37.81% to 42.2% in 2006-2008.252
According to the United States, MOFCOM's reliance on capacity utilization rates without considering
that total capacity (the denominato r in the rates being compared) was actually expanding in this
period was misplaced.
7.4.3.3.1.1 MOFCOM's comparison
7.136. In discussing "capacity utilization" in the redetermination, MOFCOM sets out capacity
utilization rates for each of 2006, 2007, 2008, and the first half of 2009. It notes minor increases
in the first three years and a decline in the first half of 2009 of 9.78 percentage points compared
with the first half of 2008. 253 MOFCOM had also made the following findings in respect of
production capacity, which establishes the denominator in the calculation of capacity utilization:
a. a continuous increase of domestic demand in broiler products, resulting in
b. expansion of capacity in each covered period254:
Table 2: Production capacity
 2006 2007 2008 2009 (H1)
Capacity (tons) 2,980,700 3,525,600 3,761,400 1,978,200
Increase (over previous corresponding
period)
 18.28% 6.69% 9.70%
Source: Redetermination, (Exhibit CHN-1 (translated version)), p. 65.
7.137. In MOFCOM's discussion of the change in capacity utilization rates, there is no recognition
that industry capacity – the denominator in the calculation of capacity utilization – was increasing
throughout the POI. This is not just a question of "causation", as China argues. 255 The
US argument, as we understand it, is about the reliability of MOFCOM's comparison of capacity
utilization rates over time in evaluating the impact of subject imports on the domestic industry:
given the changing denominators, comparin g raw percentages without some examination of the
context would not enable an investigating authority to objectively evaluate capacity utilization as a
factor in the examination of the impact of imports on the domestic i ndustry, as required by
Article 3.4.
7.138. China argues that an investigating authority has discretion in its choice of analytical
methodology in examining and evaluating data related to the state of the domestic market. We
agree. However, that discretion is not unlimited: an investigating authori ty must use whatever
methodology it chooses to objectively examine the evidence before it. If either the methodology it
employs or the evidence on which it relies is not appropriate to the analytical task before it, an

252 United States' first written submission, para. 174 (referring to Redetermination, (Exhibit USA-9
(translated version)).
253 Redetermination, (Exhibit CHN-1 (translated version)), p. 65
254 Redetermination, (Exhibit CHN-1 (translated version)), p. 65.
255 Or, for that matter, non-attribution. (China's first written submission, para. 358).

investigating authority is unlikely t o be able to conduct the objective examination and evaluation
that is required by the Anti-Dumping Agreement and the SCM Agreement . Thus, for instance,
when examining trends or comparing data, an investigating authority may not rely upon
conclusions based on flawed methodology in the evaluation of a relevant economic factor;
otherwise, any "comparison" would say little about the impact of dumped or subsidized imports on
the state of the domestic industry.
7.139. A capacity utilization rate involves two figures: a numerator (the volume of production)
and a denominator (the available production capacity of the domestic industry). Rates may be
meaningfully compared for the domestic industry over a period of time where:
a. at least one factor is, or is kept, constant;
b. if both factors vary over time, at least one factor is controlled or adjusted for any
changes; or
c. if both factors vary over time and are not controlled or adjusted for any changes, a
reasonable explanation of the circumstances and any reliance on the compar ison is
provided.
We stress that there is nothing inherently wrong about comparing rates over time where both the
numerator and the denominator change. Indeed, we do not understand the United States to be
arguing that such a comparison is always faulty; t he United States does not challenge the rate
comparisons related to market share, profits or return on investment, even though in each case
both factors were in a state of flux over the POI.
7.140. Rather, the US argument is that, on the facts of this case, becau se the domestic industry
capacity increased throughout the POI, a simple comparison of rates was unreliable for the
purposes of evaluating the impact of subject imports on the domestic industry. We agree. In the
absence of any effort by MOFCOM to either co ntrol or adjust for this change, or any explanation of
the circumstances and why reliance on the comparison was nonetheless appropriate, we cannot
conclude that MOFCOM's examination was such as would be expected of an objective investigating
authority in t his context. MOFCOM merely set out figures for "apparent consumption" and
"production quantity", but did not put the capacity utilization rates in perspective. MOFCOM's
response to the objections of the interested parties during the redetermination in fact highlights its
failure to engage with the question:
[D]ata indicated that: when the domestic demand increased continuously, the
production capacity utilization rate from 2006 to 2008 was lower than 80%, but … in
the first half of 2009, the domestic deman d further increased, but the production
quantity of the like product of the domestic industry didn't increase correspondingly
with the increase of production capacity, instead, it decreased by 4.37% compared to
the same period of the previous year.256
MOFCOM did not address the problem of comparability of the rates in the light of continuous
increases in production capacity. Given those increases, it is not clear what, if anything, the
comparison of capacity utilization rates might explain in respect of the impact of imports . For
instance, MOFCOM did not take into account in its evaluation:
a. whether capacity was increasing in response to, in tandem with , or ahead of domestic
demand;
b. in what way any of these might affect the significance of any compariso n of capacity
utilization rates; or
c. how shifts in the industry from smaller producers outside the defined domestic
industry257 to larger producers within it could explain or affect the reliability of the data
before it.

256 Redetermination, (Exhibit CHN-1 (translated version)), p. 78.
257 As argued before us by China.

7.141. On the basis of the information and ex planation set out in the redetermination, we find
that MOFCOM did not provide a reasoned and adequate explanation of its examination of "capacity
utilization" rates.
7.4.3.3.1.2 Capacity utilization and overall analysis
7.142. The parties disagree about the importance of "c apacity utilization rates" in MOFCOM's
overall examination of the impact of subject imports. The United States argues that this was one
of two negative factors on which MOFCOM impermissibly relied excessively. China responds that
MOFCOM:
a. "reasonably focused on the adverse condition of the domestic industry at the end of its
period of investigation, noting the sharp deterioration in numerous indicators of domestic
industry health in the first half of 2009"258; and
b. "made a simple point about capacity util ization in its Redetermination – it was
persistently low over the period of investigation".259
7.143. China argues that "although the authority must address each factor, the authority need not
show that each individual factor by itself has been linked to subject im ports".260 We agree. 261
Under Articles 3.4 and 15.4, the necessary corollary to this observation is that an investigating
authority in examining the impact of subject imports must evaluate " all relevant economic factors"
not in isolation from , but rather in re lation to , one another. Capacity utilization is not just
"a simple point"; it is one of the factors required to be evaluated under Article 3.4. A capacity
utilization comparison that is not reasonable affects not just this one factor, but the entire
examination of the impact of subject imports. This is apparent from China's own arguments:
But regardless of the increase in domestic capacity, the rate of capacity utilization
would have been higher than it was, but for the presence of increasing volumes of
subject imports.262
Where capacity increases outstrip increases in market demand, even a constant or declining
volume of subject imports could result in a decline in capacity utilization without any decline in
domestic production. We recall that MOFCOM found th at: "When capacity utilization rate is at a
relatively high level, the production of more chicken breast means increase of production quantity
of more other broiler products." 263 Combined with China's argument about cross-price elasticity of
all broiler product models264, this would suggest that an expansion of production capacity in China
would result in greater production of other broiler product models than wings and feet, with
consequent impact on the prices of all product models. This is why an integrated examination of all
of the factors evaluated is necessary in the examination of the impact of subject imports, and thus
why a flawed capacity utilization comparison results in a flawed exa mination under Articles 3.4
and 15.4.
7.144. In this light, it is not neces sary for us to determine whether MOFCOM's capacity utilization
rate evaluation was "central" to its overall findings, as the United States argues, or a "simple
point", as China contends. Because MOFCOM's evaluation of "capacity utilization rates" was flawed,
its overall examination of all relevant economic factors was inconsistent with Articles 3.4 of the
Anti-Dumping Agreement and 15.4 of the SCM Agreement.

258 China's first written submission, para. 350.
259 China's first written submission, para. 354.
260 China's second written submission, para. 317.
261 Panel Report, EC – Bed Linen (Article 21.5 – India), para. 6.163: "there is no requirement in
Article 3.4 that each and every injury factor, individually, must be indicative of injury".
262 China's second written submission, para. 320.
263 Redetermination, (Exhibit CHN-1 (translated version)), p. 69.
264 Panel Report, China – Broiler Products, para. 7.605: "MOFCOM … considered that all chicken parts
competed and were substitutable with one another". See also para. 7.468: "MOFCOM's methodology …
recognises the substitutability among different types of products".

7.4.3.3.2 Inventories
7.145. The United States does not dispute that inventories rose in both absolute and relative
terms. Rather, according to the United States:
a. "MOFCOM focused on the purported increase in end -of-period inventories", while the
observed relative increases were not significant265; and
b. MOFCOM relied exclusively266 (or primarily267) on such flawed analysis.
We have two observations in respect of these arguments.
7.146. First, under Articles 3.4 and 15.4, an investigating authority is required to evaluate "all
economic factors" including " actual and potential negative effects on … inventories".268 The
United States does not argue that MOFCOM did not do so; nor does it argue that inventories did
not increase.269 Rather, it argues that the observed negative effects were not "significant". The
word "significant" does not appear in the text of the provis ions, and the United States has not
directed us to any authority that would require us to read a requirement to consider the
significance of negative effects on inventories into Articles 3.4 and 15.4. Even if the "significance"
of that increase were a required consideration in this context, the United States has not put
forward any argument or explanation to demonstrate that the 2.9% or 3.5% increases are not
"significant" in terms of the effect of imports on inventories in the specific context of the Chinese
broiler market.
7.147. And even if we agree that the observed inventory increases were not "significant" by
whatever measure , the United States has not explained how this observation undermines
MOFCOM's examination of the impact of subject imports in the context of its evaluati on of all
relevant economic factors. We recall that even positive trends may indicate negative effects; in
itself, an inventory increase that is not "significant" does not establish that the increase has no
negative effects.
7.148. Second, nothing in the redeterm ination suggests that its evaluation of inventories was the
sole or the primary focus of MOFCOM's examination of the impact of subject imports. After setting
out the fifteen factors, MOFCOM set out the various factors it had considered, of which the "endin g
inventories" factor was one:
However, the capacity utilization of the like product of the domestic industry during
the same period always remain [sic] at a relatively low level, the ending inventories
presented an increasing trend. Because the selling price of the like product of the
domestic industry remained below the sales cost for the long period of time, it
resulted in that the like product of the domestic industry could not obtain reasonable
profit margins, and the pre -tax profits of the like prod uct of the domestic industry
remained negative. … During the investigation period, the operational cash net flow of
the like product experienced relatively significant fluctuations, which also influenced
investment and financing activities of the domestic industry.270
The United States has not explained in what way this paragraph represents undue reliance on this
one factor.

265 United States' first written submission, paras. 177 and 179.
266 United States' first written submission, para. 170.
267 United States' first written submission, para. 182.
268 Emphasis added.
269 United States' first written submission, para. 179 (emphasis added; fn omitted):
End-of-period inventories as a share of domestic industry production increased only from
2.9 percent in 2006 to 3.3 percent in 2008, while end -of-period inventories as a share of
domestic industry shipments increased only from 3.2 percent in 2006 to 3.5 percent in 2008 .
These ratios … did not increase significantly between 2006 and 2008.
270 Redetermination, (Exhibit CHN-1 (translated version)), p. 68.

7.149. In the light of the above, we find that the United States has not established that
MOFCOM's evaluation of inventories was inconsistent with Articles 3.4 of the
Anti-Dumping Agreement and 15.4 of the SCM Agreement.
7.4.3.3.3 Focus on part of the POI
7.150. The United States argues that:
[B]y China's own admission, MOFCOM's impa ct analysis focused on the first half of
2009, when the domestic industry's performance lagged, while failing to account for
the impact of subject imports on the domestic industry between 2006 and 2008, when
the domestic industry's performance strengthened.271
The United States does not contest that industry performance "lagged" in the last half -year of the
POI. As well, the United States does not contest MOFCOM's findings that some factors evaluated
showed negative effects throughout the POI. 272 Rather, it ass erts that "the domestic industry's
performance strengthened" in 2006-2008, that MOFCOM did not adequately "focus" on this period
and that MOFCOM focused its examination of impact "on the financial indicators that were
consistently weak throughout the perio d of investigation", to the exclusion of other contradictory
factors.273
7.151. In its redetermination, MOFCOM examined the information regarding each relevant factor
and described both positive and negative developments, where relevant, in absolute and relative
terms, for the entire period:
The above evidence indicates that, during the investigation period, in order to meet
the increasing demand of the domestic market, from 2006 to 2008, the production
capacity, production quantity and sales volume of the like pro duct of the domestic
industry all increased, and the indicators including market share, employment, per
capita wages and labor productivity also increased in different degrees. However, the
capacity utilization of the like product of the domestic industry during the same period
always remain [sic] at a relatively low level, the ending inventories presented an
increasing trend. Because the selling price of the like product of the domestic industry
remained below the sales cost for the long period of time, it resulted in that the like
product of the domestic industry could not obtain reasonable profit margins, and the
pre-tax profits of the like product of the domestic industry remained negative. … In
the first half of 2009, all the economic indexes of domesti c industry continued to
deteriorate.274
7.152. Even if we were to agree with the US assertion that MOFCOM "focused" on the first half of
2009, this does not, in itself , establish that MOFCOM acted incon sistently with
Articles 3.4 and 15.4. In this respect, we make three observations.
7.153. First, nothing in Articles 3.1, 3.4, 15.1, or 15.4 prevents an investigating authority from
"focusing" on a part of the POI, as long as it does not ignore relevant data and arguments, and its
resulting determination is one that an objec tive and unbiased investigating authority could reach
based on the evidence and arguments before it and the explanations given. The United States has
not demonstrated that MOFCOM's "focus" was unreasonable or resulted in any lack of objectivity;
the fact t hat there were or might have been different trends in the preceding time -frame (which
MOFCOM did discuss) does not, without more, suggest lack of objectivity in focussing on the most
recent information.

271 United States' second written submission, para. 168.
272 Profit before tax: negative, at 2006, 2007, 2008, and H1 2009,
at -1.208 billion RMB, -0.084 billion RMB, -1.359 billion RMB and -1.09 billion RMB (i.e. increase of the loss by
1511.72% in 2008 vs 2007 and of 307.28% from H1 2008 to H1 2009).
Return on investment: negative at -13.42%, -0.86%, -12.18% and -9.10%, in 2006, 2007, 2008,
and H1 2009; year-on-year growth of 12.56%, -11.31%, and -6.69% in 2007, 2008, and H1 2009.
Net cash flows from operating activities: fluctuated: -218 million RMB in 2006, -10 million RMB in
2007, +69 million RMB in 2008, -433 million RMB in H1 2009. (Redetermination, (Exhibit CHN-1 (translated
version)), pp. 67, 68, and 78).
273 United States' second written submission, para. 171.
274 Redetermination, (Exhibit CHN-1 (translated version)), p. 68. (emphasis added)

7.154. Second, the fact that industry performance might hav e "strengthened" in the 2006 -2008
period does not, in itself, bring into question MOFCOM's determination based on its focus on 2009.
Even positive trends in earlier parts of the POI may serve as evidence of negative effects 275; here,
domestic industry perfor mance "strengthened" in some areas, though not others, and to the
extent there were positive trends, it was in the context of an expanding market. 276 At the same
time, as MOFCOM noted, in the first half of 2009, "the losses were close to that of the whole year
of 2008".277 The fact that it focused on the most recent data showing major losses does not, in
itself, demonstrate that MOFCOM's examination was not objective or unreasonable.
7.155. Third, it is not unreasonable or not objective for an investigating authority to examine the
cumulative impact of imports on a domestic industry, but focus its attention on the end of the
period examined, when dumping and/or subsidization of imports has been found.
7.156. We find therefore that the United States has not established that MOFCOM's "focus" on the
last part of the POI resulted in an examination of the impact of subject imports on the domestic
industry inconsistent with the requirements of Articles 3.4 of the Anti -Dumping Agreement
and 15.4 of the SCM Agreement.
7.4.3.3.4 "Potential" negative effect and future imports
7.157. MOFCOM had found that US exporters "may expand exports to China and will cause further
adverse impact on the domestic industry". 278 In its first written submission China argued that the
United States "improperly disregards MOF COM's discussion of the continuing trend of U.S.
exports".279 The United States replied that " future subject imports could have no impact
whatsoever on the domestic industry during the period of investigation".280
7.158. According to China, "the text of Articles 3.4 and 15.4 contemplate [sic] evaluation of both
current adverse trends but also future declines". 281 It argues that the phrase "all relevant
economic factors" in Article 3.4 is "a phrase that itself can include both present and future
trends"282, and "[t]o avoid any ambiguity, the text goes on to specify that these economic factors
include the 'actual and potential decline' in a number of specifically enumerated factors". 283 In
particular, China relies on the findings of the panel in EC – Fasteners (China) to the effect that:
a. "potential" means "poss ible as opp{osed} to actual; capable of coming into being or
action; latent"; and
b. "a decline need not have occurred during the period under consideration in order for an
investigation authority to find injury".284
7.159. We recall that in EC – Fasteners (China) the facts showed not "potential" decline but rather
relative decline.285 The panel's exploration of the meaning of "potential" was, in this light, not
essential to its findings; for that reason, we do not consider that the dis cussion is necessarily
relevant to or persuasive for our consideration of this issue. More to the point in the context of this

275 Panel Report, EC – Fasteners (China), para. 7.403.
276 A fact that the United States readily acknowledges.
277 Redetermination, (Exhibit CHN-1 (translated version)), p. 68.
278 Redetermination, (Exhibit CHN-1 (translated version)), p. 70.
279 China's first written submission, para. 344.
280 United States' second written submission, para. 172.
281 China's first written submission, para. 345.
282 China's first written submission, para. 345.
283 China's first written submission, para. 345.
284 China's first written submission, para. 346 (quoting Panel Report, EC – Fasteners (China),
para. 7.402).
285 Panel Report, EC – Fasteners (China), paras. 7.399-7.404. In that case, China alleged that since the
4.4% profit margin achieved during the investigation period was close to the 5% level the European
Commission considered appropriate, and profitability doubled between 2003 and the investigation period, there
was no basis to conclude that dumped imports had a negative effect on profitability. The panel observed that
"[t]he use of the word 'potential' in the context of the Article 3.4 non exhaustive list of relevant economic
factors indicates to us that a decline need not have occurred during the period under consideration in order for
an investigating authority to find injury". The panel concluded that the European Commission's evaluation that
the increase in profitability was disproportionately low when compared to the increase in demand, was
objective.

case is that MOFCOM's redetermination does not, in fact, appear to address "potential decline" in
the sense that term is use in Articles 3.4 and 15.4.
7.160. Articles 3.4 and 15.4 are concerned with the impact of imports during a recent past period
on the present state of the domestic industry, and not the impact of future imports on the future
state of the industry. The latter is specifically addressed in Articles 3.7 and 15.7, which establish
additional c riteria for consideration in the context of determining "threat of material injury". A
"potential decline" in the sense of Articles 3.4 and 15.4 could not, in our view, be found t o support
the view that material injury is "possible" as a result of future imports, or that future imports could
cause injury in the future. Rather, "potential decline" as a relevant factor in the examination of the
impact of subject imports on the presen t state of the domestic industry would have to be a
consequence of the dumped or subsidized imports during the period examined. "Potential decline"
exists where, despite the absence of an actual decline (in either absolute or relative terms) during
the period examined, imports during the period examined have an impact on the domestic industry
such that there is a latent or potential decline with respect to a particular factor which has not yet
become manifest.
7.161. As part of its examination of the impact of sub ject imports, MOFCOM apparently
considered the prospective impact of future imports on the state of the industry as a relevant
factor. This is not an appropriate consideration in the context of an examination of the impact of
dumped and subsidized imports on the domestic industry as part of a determination of present
material injury caused by those imports. In our view, MOFCOM's understanding of the relevance of
future imports in the context of evaluation of a "potential decline" was not consistent with a proper
reading of Articles 3.4 and 15.4. In itself, this might suggest that the "potential decline" portions
of MOFCOM's analysis are irrelevant, and nothing in the Agreements prohibits an investigating
authority from examining or evaluating irrelevant factors if this does not otherwise have an impact
on the investigating authority's overall examination and ultimate determination. In this case,
however, China itself argues that MOFCOM relied on this irrelevant factor. In this context, we
cannot conclude that MOFCOM's examination of the impact of subject imports was consistent with
Article 3.4 of the Anti -Dumping Agreement and Article 15.4 of the SCM Agreement, as we cannot
know what MOFCOM's conclusion would have been had it not relied on this irrelevant factor.
7.162. In the light of the foregoing, we find that:
a. the requirement to consider "potential decline" under Articles 3.4 and 15.4 relates to the
impact of current imports on the domestic industry such that even absent actual
declines, the potential for such dec lines to materialise may be relevant to the
examination of the present impact of subject imports; and
b. MOFCOM's overall examination and evaluation of all relevant economic factors was
affected by its examination of and reliance on an irrelevant factor – the impact of likely
future imports – such that its examination of the impact of subject imports on the
domestic industry is not consistent with Articles 3.4 and 15.4.
7.4.4 Conclusion
7.163. We find that China acted inconsistently with the requirements of Articles 3.4 of the
Anti-Dumping Agreement and 15.4 of the SCM Agreement because:
a. MOFCOM's evaluation of "capacity utilization rates" was faulty; and
b. MOFCOM relied on an irrelevant economic factor when it examined the impact of likely
future imports on "potential decline" in the domestic industry.
7.164. As a consequence, we find that China acted inconsistently with Articles 3.1 of the
Anti-Dumping Agreement and 15.1 of the SCM Agreement.
7.165. We further find that the United States has not established that China acted inconsistently
with Articles 3.1 and 3.4 of the Anti -Dumping Agreement , and Articles 15.1 and 15.4 of the
SCM Agreement because of MOFCOM's:

a. evaluation of inventories; or
b. "focus" on the last part of the POI.
7.5 Article 3.5 of the Anti -Dumping Agreement and Article 15.5 of the SCM Agreement :
causation
7.5.1 Introduction
7.166. In our original report we found MOFCOM's price undercutting and price suppression
analysis inconsistent with Articles 3.1 and 3.2 of the Anti -Dumping Agreement and
Articles 15.1 and 15.2 of the SCM Agreement. 286 In the light of the relationship between the
considerations set out in Article 3.2 of the Anti -Dumping Agreement and Article 15.2 287 of the
SCM Agreement and the demonstration of causation required by Article 3.5 of the
Anti-Dumping Agreement and Article 15.5 of the SCM Agreement 288, we were not in a position to
determine whether MOFCOM properly demonstrated the existence of a causal link between the
subject imports and injury to the domestic industry. We observed t hat because China's
implementation of the Panel's findings in the original report concerning MOFCOM's consideration of
price effects would necessarily require that it reconsider its findings of causation 289 we did not
consider it necessary for the resolution of the dispute to make additional findings u nder
Articles 3.5 and 15.5.
7.167. In this implementation proceeding, we have again found that MOFCOM's price effects
analysis was not consistent with Articles 3.2 and 15.2. We have further found that MOFCOM's
examination of the state of the industry was not cons istent with Articles 3.4 and 15.4. Solely
based on these two findings, we cannot conclude that MOFCOM properly demonstrated the
existence of a causal link between the subject imports and any injury to the domestic industry.
7.168. Having said that, we recognize that the Panel might well help the parties "secure a positive
resolution of the current dispute" if it were to " to make findings with respect to the claims of the
United States that are within the terms of reference for this compliance proceeding". 290 Therefore,
in order to enable the parties to secure a positive resolution of the dispute, whether through
implementation of DSB recommendations and rulings in this dispute or otherwise, we will consider
the pa rties' arguments and make findings on the US claims under Article 3.5 of the
Anti-Dumping Agreement and Article 15.5 of the SCM Agreement.
7.5.2 Main arguments of the parties
7.5.2.1 United States
7.169. The US claims of violation of Articles 3.5 and 15.5 rest on four arguments.
7.170. First, MOFCOM's demonstration of causation relied on its consideration of price effects, but
MOFCOM's consideration of price underselling and price suppression are WTO -inconsistent, and
there is also no evidence of price depression.
7.171. Second, MOFCOM ignored record evidence that subject import volumes did not increase at
the expense of the domestic industry:
a. the domestic industry gained market share at the same time as subject imports gained
market share291; and
b. MOFCOM did not examine or explain why such evidence did not undermine its finding of
causation, rather MOFCOM insisted that Chinese law allowed it to consider either the

286 We will refer to these as Articles 3.1, 3.2, 15.1, and 15.2.
287 We will refer to these as Articles 3.2 and 15.2.
288 We will refer to these as Articles 3.5 and 15.5.
289 Panel Report, China – Broiler Products, para. 7.584.
290 Japan's third-party statement, para. 5.
291 United States' first written submission, para. 195.

absolute volume increase or relative volume increase, but did not oblige it to conside r
both.292
7.172. Third, MOFCOM failed to reconcile its analysis with evidence that the domestic industry's
performance had improved as subject import volume and market share increased:
a. almost all indicators (market share, capacity, output, sales quantity, sales re venue,
employment, decrease in loss) show an improvement in the domestic industry's
performance between 2006 and 2008, the period during which subject import volume
increased by 47%. 293 Many performance indicators also show an improvement if the
2006 figures are compared to those for the first half of 2009294;
b. MOFCOM predicated its demonstration of causation entirely on developments in the first
half of 2009, whereas it was required to examine the causal relationship in relation to
the entire POI, not just for a selected period295; and
c. the domestic industry's lagging performance in the first half of 2009 could not have been
the result of subject imports when the bulk of the increase in subject import volume –
90% of the total increase – coincided with strengthening domestic industry performance
during the 2006-2008 period.296
7.173. Fourth, MOFCOM ignored evidence that the substantial proportion of subject imports
consisting of chicken feet could not have been injurious because domestic producers were
incapable of producing more chicken feet without increasing production of other chicken products
to uneconomic levels. Over 40% of subject imports consisted of chicken feet, which Chinese
producers were incapable of supplying in adequate quantities.297
7.5.2.2 China
7.174. MOFCOM did a proper causation analysis. It was only required to demonstrate that subject
imports contributed in some meaningful way to the injury. 298 MOFCOM based its determination of
the existence of a causal link on a number of key factors, such as the increase in subject impo rt
volume and market share, consistent underselling, price suppression, and the domestic industry's
inability to use available capacity.299 In particular:
a. MOFCOM did not ignore evidence about the domestic industry's market share. 300 Rather,
MOFCOM:
i. acknowledged and discussed the increase in market share of domestic firms; and
ii. focused on the increase in absolute volume, the drop in market share in the first half
of 2009, and low prices/price suppression, which are sufficient to establish a causal
link regardless of market share trends.
b. MOFCOM did not rely on a flawed analysis of price effects 301, and its conclusions on
import volume and price suppression stand and sufficien tly support MOFCOM's causation
analysis regardless of the Panel's findings on price undercutting.
c. MOFCOM did not fail to reconcile its analysis of subject import volume and market share
with its analysis of causation and the condition of the domestic industry302:

292 United States' first written submission, paras. 197-198.
293 United States' first written submission, paras. 203-204.
294 United States' first written submission, para. 205.
295 United States' first written submission, para. 207.
296 United States' first written submission, paras. 208-209.
297 United States' first written submission, paras. 215-216.
298 China's first written submission, para. 370.
299 China's first written submission, para. 380.
300 China's first written submission, paras. 383-387.
301 China's first written submission, paras. 388-394.
302 China's first written submission, paras. 395-402.

i. the United States wrongly focuses on the period 2006 -2008. MOFCOM drew a causal
link between the increase of subject imports and the declining conditions particularly
in the first half of 2009; and
ii. the United States selectively relies on volume indicators and downplays in particular
the sharply weaker financial performance, which MOFCOM relied upon. The
US argument that the operating loss narrowed between 2006 and 2008 ignores the
growth of the operating loss in abso lute terms (on which MOFCOM relied), the
cumulative effect of continuing losses , and the increase in operative losses when
taken as a percentage of sales.
7.5.3 Evaluation
7.5.3.1 The law
7.175. Article 3.5 of the Anti-Dumping Agreement provides:
It must be demonstrated that t he dumped imports are, through the effects of
dumping, as set forth in paragraphs 2 and 4, causing injury within the meaning of this
Agreement. The demonstration of a causal relationship between the dumped imports
and the i njury to the domestic industry sh all be based on an examination of all
relevant evidence before the authorities. The authorities shall also examine any known
factors other than the dumped imports which at the same time are injuring the
domestic industry, a nd the injuries caused by these o ther factors must not be
attributed to the dumped imports. Factors which may be relevant in this respect
include, inter alia, the volume and prices of imports not sold at dumping prices,
contraction in demand or changes in the patterns of consumption, trad e restrictive
practices of and competition between the foreign and domestic producers,
developments in technology and the export performance and productivity of the
domestic industry.303
7.176. Articles 3.5 and 15.5 thus requires that an investigating authority, on the basis of an
objective examination of positive evidence304:
a. demonstrate that subject imports are causing injury to the domestic industry; and
b. ensure that injury caused by other known factors is not attributed to the subject
imports.
In making its determ ination, the investigating authority must demonstrate a relationship of cause
and effect, such that subject imports are shown to have contributed to the injury to the domestic
industry. Subject imports need not be "the" cause of the injury suffered by the domestic industry,
provided they are "a" cause of such injury; that other factors may also have caused injury to the
domestic industry is no bar to establishing this causal relationship.305

7.177. With respect to non-attribution, Articles 3.5 and 15.5 require an investigating authority to:
a. examine other k nown factors that are causing injury to the domestic industry at the
same time as subject imports; and
b. not attribute to subject imports injury caused by such other factors.

303 Article 15.5 is substantively the same.
304 Panel Report, China – Cellulose Pulp, para. 7.26:
While the investigating authority must find a sufficiently clear contribution by dumped imports to
demonstrate that they are causing material injury, and explain its determination in that regard,
nothing in the first two sentences of Article 3.5 suggests that those imports must be the sole
cause of that injury. The langu age of Article 3.5 as a whole seems clear – the "causal
relationship" between dumped imports and material injury may exist even though other factors
are also contributing, "at the same time", to the situation of the domestic industry.
305 Panel Report, Russia – Commercial Vehicles, para. 7.178 (referring to Appellate Body Report, US –
Wheat Gluten, para. 67) (adoption/appeal pending).

Articles 3.5 and 15.5 also set out an illustrative list. For these obligations to be triggered, however,
Articles 3.5 and 15.5 require that the factor at issue be306:
a. "known" to the investigating authority;
b. a factor "other than dumped imports"; and
c. injuring the domestic industry at the same time as the dumped imports.
The investigating authority must make an assessment of such other factors that involves
"separating and distinguishing the injurious effects of the other factors from the injurious effects of
the dumped [or subsidized] imports" .307 Neither Agreement, however, sets out specific guidance
on how an investigating authority should undertake this assessment or ensure that injuries caused
by other factors are not attributed to the subject imports.
7.5.3.2 MOFCOM's redetermination
7.178. At issue before us is whether MOFCOM fulfilled the requirements of Articles 3.1, 3.5, 15.1,
and 15.5 in demonstrating causation , and examining and ensuring non -attribution of injury.
Because MOFCOM did not change its consideration of price effects, it relied on the same
consideration in determining causation and non -attribution in the redetermination as in the Final
Anti-Dumping and Countervailing Duties Determinations in the original dispute. In this section we
summarize MOFCOM's findings in the redetermination to provide f actual context for our evaluation
of the US claims.
7.5.3.2.1 Causation
7.179. MOFCOM found that throughout the POI, both the volume and the market share of subject
imports "increased continuously" 308 against a background of a "significant effect on the selling
prices of the like product of the domestic industry" of those imports.309 At the same time, MOFCOM
found that the domestic industry:
[C]ould not further reduce its losses or turn losses into profits, and both the pre -tax
profit rate and the rate of return on investment were in an extremely low level [sic].
In addition, the operational net cash flow fluctuated significantly which also affected
investment and financing activities of the domestic industry.310
7.180. MOFCOM noted that even as "the demand of the domestic market increased continuously"
in the course of the POI, the domestic industry's capacity utilization rate declined, most sharply
between the first half of 2008 (79.96%) and the first half of 2009 (66%). 311 It found a causal link

306 Panel Report, Russia – Commercial Vehicles, para. 7.179 (referring to Appellate Body Reports, US –
Hot-Rolled Steel, para. 223; China – GOES, para. 151; China – HP-SSST (Japan) / China – HP-SSST (EU),
para. 5.283; and EC – Tube or Pipe Fittings, para. 175) (adoption/appeal pending).
307 Appellate Body Reports, US – Hot-Rolled Steel, para. 223; EC –Tube or Pipe Fittings, para. 188.
308 Redetermination, (Exhibit CHN-1 (translated version)), p. 70.
309 Redetermination, (Exhibit CHN-1 (translated version)), p. 70:
During the investigation period, the developing trend of the import price of the product
concerned and the selling price of the like product of the domestic industry were completely
consistent, as they both increased from 2006 to 2008 and began to decrease in the first half of
2009. The selling prices of the like product of the domestic industry and the import prices of the
product concerned were closely related.
[The price] of the product concerned was consistently lower than the selling price of the like
product of the domestic industry, and at the mean time [sic], under the effect and support of the
U.S government's subsidies, in 2006, 2007, 2008 and the first half of 2009, was lower than the
average selling price of the like product of the domestic market … [.]
We note, however, our findings in respect of MOFCOM's price effects analysis.
310 Redetermination, (Exhibit CHN-1 (translated version)), p. 71.
311 Redetermination, (Exhibit CHN-1 (translated version)), p. 71. In particular:
The production quantity and the sales volumes of the like product of the domestic industry and
the import volume of the product concerned changed in t he opposite direction, the market share
of the like product of the domestic industry and the market share of the product concerned
changed in the opposite direction, the prices of the like production of the domestic industry and
the prices of the productio n concerned changed in the same direction, which resulted in the
sharp drop of the prices of the like product and more significant losses.

between the "large quantity" of dum ped and subsidized imports originating in the United States
and material injury to the domestic broiler product industry.312
7.181. US interested parties 313 had argued that "the absolute quantity of the product concerned
did not increase greatly, and the increased qu antity just complemented the lost market share of
other foreign producers in [sic] Chinese market".314 MOFCOM observed that China's anti -dumping
law does not require an examination of both absolute and relative trends. As well, while the
domestic like product gained market share in the first part of the POI, MOFCOM found that:
[B]ecause the import volume of the product concerned increased substantially and the
import price remained at a relatively low level, resulted in significant ly undercutting
and suppression to the domestic like product; and the domestic like product, while to
stabilize the market share, was forced to be sold at a price lower than the production
cost [sic].315
7.182. US interested parties had also argued that during the POI, "several economic indi cators
(production quantity, sales volume and sales revenue) presented a virtuously [ sic] increasing
trend".316 MOFCOM found that because:
[T]he domestic industry implemented some newly constructed projects and expansion
projects, it was normal that the prod uction capacity, production quantity, sales
volume and market share of the like product presented an increase to certain extent
[sic] in general, but this did not mean that the domestic industry did not suffer from
injury. These indicators were not decisiv e for determining the injury of the domestic
industry in its development period, and could not change the fact that the effective
use of the production capacity and the inventory of the domestic industry increased
continuously during the investigation peri od; neither could it change the worsening
financial situations of the domestic industry.317
7.5.3.2.2 Non-attribution
7.183. MOFCOM found that during the POI, the dumped imports increased even as "the quantity
of imports from other countries and regions dropped in general" 318, while "apparent consumption
of the broiler products in China increased". 319 Accordingly, MOFCOM concluded, "the material
injury currently suffered by the domestic industry was not caused by the change of demand or
change of consumption modes of the like pro duct of the domestic industry".320 MOFCOM examined
the technological competitiveness of the industry and noted that, "the industry has developed in to
a highly industrialized industry among domestic animal husbandry industries, with relatively
complete industrial system and relatively smooth -running production chain". 321 For this reason,
"[t]here was no negative impact on the domestic industry caused by backward production process
and technology and mismanagement". 322 There were, MOFCOM observed, "no policie s of limiting
trade activities of the like product of the domestic industry".323 Exports of domestic products "were
not significant enough to influence t he trend and conclusions of the relevant indicators of the like
product of the domestic industry". 324 There was no force majeure and the financial crisis had no
substantive impact on the domestic market.325
7.184. US interested parties had argued that an increase in grain prices would affect the
profitability of the broiler industry. MOFCOM noted the increased costs, but pointed out that:

312 Redetermination, (Exhibit CHN-1 (translated version)), p. 72.
313 The US Poultry and Egg Export Council and the US Government, in different submissions.
314 Redetermination, (Exhibit CHN-1 (translated version)), p. 72.
315 Redetermination, (Exhibit CHN-1 (translated version)), p. 73.
316 Redetermination, (Exhibit CHN-1 (translated version)), p. 77.
317 Redetermination, (Exhibit CHN-1 (translated version)), p. 78.
318 Redetermination, (Exhibit CHN-1 (translated version)), p. 81.
319 Redetermination, (Exhibit CHN-1 (translated version)), p. 81.
320 Redetermination, (Exhibit CHN-1 (translated version)), p. 81.
321 Redetermination, (Exhibit CHN-1 (translated version)), p. 81.
322 Redetermination, (Exhibit CHN-1 (translated version)), p. 82.
323 Redetermination, (Exhibit CHN-1 (translated version)), p. 82.
324 Redetermination, (Exhibit CHN-1 (translated version)), p. 82.
325 Redetermination, (Exhibit CHN-1 (translated version)), p. 83.

[B]ecause the import price of the product concerned was always lower than the
average selling price of the like product of the domestic industry, it undercut the price
of the like product significantly, resul ted in the suppression on th e selling price of the
domestic like product, and could not pass through the cost caused by price increase of
raw materials downward, and the due price increase of the like product which should
have occurred hadn't been realized.326
7.185. US interested parties ha d further contended that "the change of pork price was the main
reason that the price of chicken decreased during the investigation period". 327 MOFCOM concluded
that the evidence did not show a link between chicken and pork prices, observing that "the chicken
price was not affected directly by the pork price, and was mainly decided by the supply and
demand in the chicken market".328 MOFCOM stressed that:
[T]he demand of the domestic market increased continuously during the investigation
period, but the good mar ket environment didn't bring the due profit margin to the
domestic industry. On the contrary, the impact of the low-priced import of the product
concerned in a large quantity on the domestic industry was significant.329
7.5.3.3 Analysis
7.186. We recall our findings that MOFCOM's consideration of price effects was not consistent with
Articles 3.2 and 15.2. The United States argues that on that basis alone, MOFCOM's causation and
non-attribution analyses and determination are not consistent wi th Articles 3.1, 3.5, 15.1,
and 15.5. Price effects were one among a number of factors MOFCOM took into account in its
causation determination; as we observed in the original report, because its price effects
consideration was inconsistent with the relevant provisions, we cannot conclud e that MOFCOM
properly demonstrated the existence of a causal link between the subject imports and any injury
to the domestic industry. The United States raises three other arguments in this proceeding; we
address these below.
7.5.3.3.1 Subject import volumes did no t increase at the expense of the domestic
industry
7.187. The United States argues that "MOFCOM ignored evidence that subject import volume did
not increase at the expense of the domestic industry"330 because it did not consider evidence that:
a. the domestic industry gained market share at the same time as subject imports;
b. "the domestic industry gained more market share between 2006 and the first half of
2009, 4.38 percentage points, than the 3.92 percentage points gained by subject
imports over the same period"331;
c. "any increases in U.S. imports simply filled the gap left by Brazil and Argentina when
they effectively exited the China [sic] market"332; and
d. "40 percent of subject imports consisted of chicken paws that could not have injured the
domestic industry, which was incapable of increasing its production of chicken paws".333
7.188. In response to the arguments of US interested parties, MOFCOM found:
As to the above claims, the investigating authority considered that, from 2006 to
2008, although the domestic market had a conti nuously high demand in broiler
products, the domestic like product also obtained some market shares. However, that

326 Redetermination, (Exhibit CHN-1 (translated version)), p. 85.
327 Redetermination, (Exhibit CHN-1 (translated version)), p. 86.
328 Redetermination, (Exhibit CHN-1 (translated version)), p. 87.
329 Redetermination, (Exhibit CHN-1 (translated version)), p. 88.
330 United States' second written submission, para. 175.
331 United States' first written submission, para. 196. (emphasis original)
332 United States' first written submission, fn 248.
333 United States' second written submission, para. 178.

did not imply that the domestic industry did not suffer from injury. On the contrary,
because the import volume of the product concerned incr eased substantially and the
import price remained at a relatively low level, resulted in significantly undercutting
and suppression to the domestic like product; and the domestic like product, while to
stabilize the market share, was forced to be sold at a price lower than the production
cost. [sic]
…
When the market demand increased continuously, affected by the further increase of
import volume of the product concerned and the continuous decline of price of the
product concerned, the production quantity, sales volume, capacity utilization rate and
market share of the like product of the domestic market all presented a trend of
decrease or reduction of different degrees.334
7.189. Articles 3.5 and 15.5 require an examination of "all relevant evidence" to establish a
"causal relationship" between subject imports and material injury to the domestic industry. Neither
Article provides specific guidance as to how individual pieces of evi dence – such as the volume of
subject imports – should be taken into consideration in demonstrating causation.335 At a minimum,
however, where an interested party makes an argument before the investigating authority as to
the impact of a given volume of impo rts or change in the volume of imports relative to domestic
production or other imports , an objective and unbiased investigating authority may not simply
ignore the argument on the basis that it has considered the absolute volume of subject imports.
There is no disagreement between the parties that such evidence was, indeed, put before
MOFCOM; the United States argues that MOFCOM "ignored evidence that subject import volume
did not increase at the expense of the domestic industry".
7.190. We have examined MOFCOM's findings in the light of the US argument. We note that
MOFCOM started its analysis by referring directly to the argument of the US interested parties:
The U.S. Poultry and Egg Export Council claimed in Comments after the Preliminary
Determination that, from 2006 to 2008, the increase of the absolute import volume of
the product concerned was to complement sales on the domestic market in China, and
the sale volume of the domestic producers in China also increased in the
corresponding period, so the import v olume of the product concerned had a small
effect on the domestic industry. In the first half of 2009, the increase of the import
volume of the product concerned was caused by "the seasonal characteristics".336
Immediately following this paragraph, MOFCOM f ound that "because the import volume of the
product concerned increased substantially and the import price remained at a relatively low level,
resulted in significantly undercutting and suppression to the domestic like product". 337 And later,
MOFCOM noted : "When the market demand increased continuously, affected by the further
increase of import volume of the product concerned and the continuous decline of price of the
product concerned …". 338 Given that MOFCOM expressly acknowledged the argument and
responded to it, we cannot find that MOFCOM "ignored" the ev idence before it, as the
United States argues. Accordingly, we find that the United States has not established that China
acted inconsistently with Articles 3.5 and 15.5 on the ground that MOFCOM ignored ev idence of
import volumes in relation to market share.

334 Redetermination, (Exhibit CHN-1 (translated version)), p. 73.
335 See, more generally, Panel Report, China – Cellulose Pulp: "Article 3 does not provide any specific
guidance on how an investigating authority should undertake the examination of the relevant evidence in
determining whether dumped imports are causing material injury." Cf. Appellate Body Report, China –
HP-SSST (Japan) / China – HP-SSST (EU), para. 5.141 (citing Appellate Body Report, EC – Bed Linen
(Article 21.5 – India), paras. 113 and 118).
336 Redetermination, (Exhibit CHN-1 (translated version)), pp. 72-73.
337 Emphasis added.
338 Emphasis added.

7.5.3.3.2 MOFCOM failed to reconcile its analysis with evidence of improved
performance
7.191. This argument of the United States has four supporting parts; we address each in turn.
7.192. First, the United States argues that MOFCOM "failed to address" evidence that " the
increase in subject import volume coincided with a significant improvement in t he domestic
industry's performance".339 We note, however, that the period in which the United States identifies
certain "improvements" is not the entirety of the POI. MOFCOM did look at various trends in the
POI, noted absolute and relative movements up and down, and drew certain conclusions. It did not
"address" the data in the way the United States has done, but the United States has simply
reorganized data that MOFCOM did address, and appears to be arguing that MOFCOM's analysis is
deficient because it did not address the data organized in the same way. This does not, however,
suffice to demonstrate that what MOFCOM did was insufficient or inconsistent with its obligations –
merely that a different way of addressing the evidence might lead to a different outcome does not
demonstrate error where, as here, there is no necessary reason why the different way should be
preferred.
7.193. Second, the United States notes "the lack of any positive evidence linking the increase in
subject import volume during the 2006 -2008 period to any significant decline in the domestic
industry's performance ".340 MOFCOM, however, is not required to find an actual decline in the
performance of the domestic industry in order to find injury caused by dumped and subsidized
imports.341
7.194. Third, the United States argues that performance indicators show an improvement if 2006
figures are compared to those for the fir st half of 2009. Again, we see no basis on which to
conclude that MOFCOM was required to rely on such a comparison in its analysis. 342 Indeed, in
some instances, such a comparison, without due consideration of intervening trends in the data
considered, might well be misleading. The fact that certain performance indicators show
improvement when data from 2006 are compared to data from 2009 says nothing about
developments in the intervening period during which it is uncontested that the Chinese market
expanded – for instance, whether any improvement tracked or lagged market expansion would
seem to be a relevant consideration.
7.195. Fourth, the United States argues that MOFCOM predicated its causal link determination
entirely on developments in the first half of 2009. However, it is clear that MOFCOM examined
year-on-year trends in the first three years of the POI, and period -on-period movements for the
last six months. More to the point, we see no basis to conclude that MOFCOM was precluded from
focusing on the last part of the POI, for at least three reasons:
a. Performance indicators were moving in different directions throughout the first three
years of the POI; most indicators, however, trended downward in the first half of 2009.
MOFCOM was entitled to look at the info rmation before it and assess the cumulative
impact of years of dumped imports on the domestic industry during the most recent
period.
b. Information regarding the most recent period is generally most relevant for an analysis
of present material injury.
c. An investigating authority is entitled to consider the possibility of a time -lag between
dumped and subsidized imports and injury to the domestic industry through their
effects.
7.196. In the light of the foregoing, we find that the United States has not established that China
acted inconsistently with Articles 3.5 of the Anti -Dumping Agreement and 15.5 of the

339 United States' first written submission, para. 203. (emphasis original)
340 United States' first written submission, para. 204. (emphasis original)
341 Panel Report, EC – Fasteners (China), paras. 7.402-7.403.
342 Panel Report, Russia – Commercial Vehicles, para. 7.41 and fn 138 (referring to Appellate Body
Reports, US – Steel Safeguards, paras. 354-355; and Mexico – Anti-Dumping Measures on Rice, para. 166;
and Panel Report, Ukraine – Passenger Cars, para. 7.269) (adoption/appeal pending).

SCM Agreement because MOFCOM "failed to reconcile its analysis with evidence of improved
performance" in the domestic industry.
7.5.3.3.3 Constraints on domestic production of chicken feet
7.197. The United States argues that domestic producers were incapable of producing more
chicken feet without increasing production of other chicken product models to uneconomic levels.
The United States does not question t he fact, as found by MOFCOM, that the Chinese market was
expanding, or that dumped and subsidized imports from the United States were increasing. China
responds in two ways. First, it asserts that the domestic industry could " meet some of that
demand with the excess capacity. In particular, since the domestic industry consistently had
excess capacity of about 20 percen t, the domestic industry could have provided 20 percent more
chicken paws."343 China does not, however, identify where in the redetermination M OFCOM made
this finding. Second:
MOFCOM was correct when it found that subject imports of chicken paws were
adversely affecting the entire domestic industry producing the like product. The
impact was felt on both domestic production of chicken paws, but a lso domestic
production of other chicken parts.344
7.198. We recall our findings, under Article 12.2 of the Anti -Dumping Agreement and Article 22.2
of the SCM Agreement, in the original report in respect of the same US argument: " MOFCOM
acknowledged the argument in its Preliminary Determinations and indicated that it considered that
all chicken parts competed and were substitutable with one another".345 We concluded that:
MOFCOM could in our view have satisfied its obligations under Articles 12.2
and 12.2.2, and Articles 22.3 and 22.5 through a simple reference to its treatment of
the issue in the Preliminary Determination.
7.199. In the redetermination, MOFCOM noted that " [t]he Investigating Authority has analyzed
and made determination [sic] in the prelimin ary determination of the original investigation". 346
Indeed, in the preliminary determination, MOFCOM had found that:
The Investigating Authority holds that as there are some differences between the
Subject Products and the like products in terms of specific feature, usage and quality,
they may have their respective types or specifications, and the relationship between
them does not necessarily constitute a one -to-one correspondence. However, such
differences do not prevent the Investigating Authority from de eming products of
different types or specifications as the same category of product for the purpose of
investigation. In this case, chicken feet are included in scope of the Subject Products,
therefore, the Investigating Authority has carried out investiga tion on import of all
Subject Products including chicken feet, and has analyzed and examined injuries
brought to the domestic industry by the Subject Products [sic].347
7.200. We find that the United States has not established that China acted inconsistently with
Articles 3.5 of the Anti -Dumping Agreement and 15.5 of the SCM Agreement on the ground that
MOFCOM failed to adequately consider alleged market constraints on greater domestic production
of chicken feet.
7.5.4 Conclusion
7.201. We have found that MOFCOM's consideration of price effects was inconsistent with
Articles 3.2 and 15.2. MOFCOM took into account p rice effects as one element of its determination
of causation. We further find that China acted inconsistently with Articles 3.5 and 15.5 by relying,

343 China's second written submission, para. 351.(fn omitted)
344 China's second written submission, para. 354.
345 Panel Report, China – Broiler Products, para. 7.605.
346 Redetermination, (Exhibit CHN-1 (translated version)), p. 80.
347 MOFCOM, Preliminary Determination in Anti-dumping Investigation on Imported White-feather
Broiler Products from the U.S., (Exhibit USA-22 (translated version)), p. 31.

in MOFCOM's demonstration of a causal link between the subject imports and injury to the
domestic industry, on a defective consideration of price effects.
7.202. As a consequence, we find China to have acted inconsistently with Articles 3.1 of the
Anti-Dumping Agreement and 15.1 of the SCM Agreement.
7.203. We find, however, that the United States has not established that China acted
inconsistently with Articles 3.5 of the Anti -Dumping Agreement and 15.5 of the SCM Agreement
because MOFCOM:
a. did not consider the volume of dumped imports in both relative and absolute terms;
b. "failed to reconcile its analysis with evidence of improved performance" in the domestic
industry; and
c. failed to adequately consider alleged market constraints on greater domestic production
of chicken feet.
7.6 Article 6.1 of the Anti -Dumping Agreement and Article 12.1 of the SCM Agreement :
notice and ample opportunity to present written evidence
7.6.1 Introduction
7.204. In our original report, we found MOFCOM's consideration of price undercutting and price
suppression inconsistent with Articles 3.1 and 3 .2 of the Anti -Dumping Agreement and
Articles 15.1 and 15.2 of the SCM Agreement. 348 During the reinvestigation, MOFCOM sought and
collected new pricing data from four selected domestic Chinese producers and used these dat a for
the purposes of its consideration of price effects in the redetermination.
7.205. This claim concerns MOFCOM's procedural obligations under Article 6.1 of the
Anti-Dumping Agreement and Article 12.1 of the SCM Agreement 349 in respect of the interested
parties from the United States in the context of the request for pricing information from the
Chinese producers.
7.6.2 Main arguments of the parties
7.6.2.1 United States
7.206. China acted inconsistently with Articles 6.1 and 12.1 because MOFCOM did not give notice
to the investigated US producers and the US Government (US interested parties) of the
information it required, the pricing data, from the Chinese producers during the reinvestigation.350
7.207. The notice requirements in Articles 6.1 and 12.1 are not limited to the interested party to
which a request for information is directed.351 In this instance, the provisions entitle "all interested
parties", including the US interested parties, to notice of the information required from the Chinese
producers (as well as ample opportunity to present written evidence).
7.208. The notice requirements relate to making all interested parties aware of the specific
information that the investigating authority requires, including the specific questions and requests
issued.352 Also, the notice has to come in advance, such th at interested parties are afforded the
opportunity to defend their interests. These requirements were not met in this case.
7.209. China argues that read together, three documents in the reinvestigation record constitute
the "notice" required by Article s 6.1 and 12.1: the Notice of Initiation, the General Verification
Letter, and non-confidential summaries provided by the Chinese producers. Yet MOFCOM did not

348 We will refer to these as Articles 3.1, 3.2, 15.1, and 15.2.
349 We will refer to these as Articles 6.1 and 12.1.
350 United States' first written submission, paras. 40 and 42.
351 United States' first written submission, para. 40; response to Panel question No. 1, para. 6.
352 United States' response to Panel question No. 1, paras. 1 and 3.

identify the information it required of Chinese producers in any of these documents.353 They lacked
the requisite content, in particular because they did not set out MOFCOM's questions or requests
or in any other way identify the relevant information. Nor did they give notice to the US interested
parties, in p articular to the extent that they were merely made ava ilable in MOFCOM's trade
remedy public information room without informing the US interested parties.354
7.210. Without notice of the information required from Chinese producers, the US interested
parties were also necessarily denied ample opportunity to present written evidence pursuant to the
second requirement in Articles 6.1 and 12.1.355 None of the documents cited by China afforded
such an opportunity.356 Without knowledge of the required information, there coul d be no basis for
ample opportunity to present relevant evidence. 357 Interested parties cannot address through
relevant evidence what they do not know.358
7.6.2.2 China
7.211. Articles 6.1 and 12.1 do not apply to the US interested parties in respect of information
required of Chinese producers. Rather, these provisions "should be read more directly in relation to
those interested parties that are the target of information requests". 359 The obligation s to give
notice and to provide ample opportunity therefore only concern those interested parties that are
the target of an information request. 360 This position is consistent with the arguments of the
European Union. 361 Article 6.4 of the Anti -Dumping Agreeme nt and Article 12.3 of the
SCM Agreement would protect other interested parties, such as the US interested parties.
7.212. Even if applicable to interested parties not subject to an information request, the
requirement to give "notice" has a flexible meaning and can be met by different means depending
on the situation of the interested party.362 Articles 6.1 and Article 12.1 require:
a. giving advance and "active notification" in respect of the party from whom information is
required363; and
b. access to the required information, in respect of all other interested parties, for example
by placing the information provided in respo nse to the information request in a public
reading room.364
7.213. MOFCOM complied with its obligations under Articles 6.1 and 12.1 as they apply in respect
of US interested parties who were not the target of an information request. MOFCOM was not
required to provide to US interested parties the precise questions MOFCOM put to the Chinese
producers.365 MOFCOM provided appropriate notice in respect of newly solicited information and its
nature and scope, by way of366:

353 United States' second written submission, paras. 10-34.
354 United States' response to Panel question No. 1, para. 4.
355 United States' first written submission, para. 43; second written submission, paras. 8 and 10.
356 United States' second written submission, paras. 15-18, 24, 32, and 33.
357 United States' second written submission, para. 15.
358 United States' second written submission, para. 17.
359 China's response to Panel question No. 4, para. 11.
360 China's responses to Panel question No. 1(b), paras. 4-5, No. 2, para. 7, and No. 4, para. 11.
European Union is a third party in this dispute.
362 China's responses to Panel question No. 1(a), para. 2, and No. 4, para. 10.
363 China's second written submission, paras. 31-32; response to Panel question Nos. 1(a) and (b),
paras. 3-4.
364 China's second written submission, paras. 32 and 34.
365 China's second written submission, para. 35; see also comments on United States' response on Panel
question No. 1, para. 1.
366 We understand China to rely on the following three procedural steps, but not on the subsequent
injury disclosure, as relevant elements through which MOFCOM allegedly gave notice. (China's first written
submission, para. 53 ("procedural steps … before issuing the Disclosure of Injury Essential Facts dated on

a. the Notice of Initiation No. 88 (Notice of Initiation) of 25 December 2013. 367 The Notice
of Initiation indicated that evidence would be re -examined. It referred to the scope of
the Panel's finding in its original report, instead of providing interested parties with a
listing of the specific information to be requested from the Chinese producers;
b. the General Verification Letter of 19 February 2014 address ed to Chinese producers and
released in MOFCOM's trade remedy public information room , announcing on -the-spot
"verifications"368; and
c. the non-confidential summaries of the sales data provided by the four Chinese producers
made available on 20 May 2014 in MOFCOM's trade remedy public information room.369
7.214. A violation of the notice requirement does not necessarily result in a violation of the
obligation to give ample opportunity to present written evidence. 370 In this instance, MOFCOM
complied with its obligation to provide US interested parties ample opportunit y to present written
evidence because:
a. it gave adequate notice to the US interested parties; and
b. throughout the reinvestigation, US interested parties were free to present evidence, and
in fact they did so.371
7.6.3 Main arguments of the third parties
7.215. The European Union argues that to avoid overburdening investigating authorities,
Articles 6.1 and 12.1 should be interpreted narrowly. In particular the notice requirement should
only concern information requests to thos e parties that are supposed to hold the relevant
information but not to all other interested parties in an investigation. 372 Likewise, the "ample
opportunity" should not relate to opportunities to present written evidence on information provided
by other interested parties.373
7.6.4 Evaluation
7.6.4.1 The law
7.216. Article 6.1 of the Anti-Dumping Agreement provides:
All interested parties in an anti -dumping investigation shall be given notic e of the
information which the authorities require and ample opportunity to present in writing
all evidence which they consider relevant in respect of the investigation in question.
The text of Article 12.1 of the SCM Agreement is essentially identical, with references to
"interested members" in addition to "all interested parties" and "countervailing duty" rather than
"anti-dumping" investigation.

367 MOFCOM, Announcement No. 88 on Casefiling for WTO Rulings on China's Measures of Imposing
Countervailing and Antidumping Duties on White feather Broiler Chicken (25 December 2013)
(Announcement No. 88), (Exhibit USA-1(translated version)); China's first written submission, para. 54; and
second written submission, para. 36.
368 Letter from MOFCOM dated 19 February 2014 on Notification on on-spot Verifications (General
Verification Letter), (Exhibit CHN-2 (translated version)); China's first written submission, para. 56; and
second written submission, para. 37.
369 Referred to by China as the "public versions of verification exhibits and supplemental information".
(China's first written submission, para. 58; second written submission, para. 41; and Post-Verification
Supplemental Information concerning the Reinvestigation on the Anti-dumping and Countervailing Measures
Imposed on the Broiler Products Originating in the United States (20 May 2014) of Beijing Huadu,
Shandong Chunxue, Shandong Minhe, and Da Chan Wanda, (Exhibits CHN-4 through CHN-7 (translated
versions)).
370 China's response to Panel question No. 2(a), para. 8.
371 China's second written submission, paras. 52-53.
372 European Union's third-party submission, paras. 18-20; third-party statement, para. 4.
373 European Union's third-party statement, para. 6.

7.217. Each provision thus establishes two obligations on the investigating authority concerning
the conduct of the investigation:
a. to give notice to all interested parties of information required by the investigating
authorities; and
b. to provide to all interested parties ample opportunity to present relevant evidence in
writing.
7.218. Articles 6.1 and 12.1 enshrine fundamental due process rights. 374 In each provision, the
two obligations are distinct yet closely related, conferring rights on the same parties. 375 The
obligations in each provision are inextricably linked, given th at they are set out not only in the
same paragraph but also in one single sentence. They must be read together; each obligation
imparts meaning to the other. In particular, the second obligation clarifies a key purpose of giving
notice of the information r equired to all interested parties: in order to present evidence that is
"relevant in respect of the investigation in question", they need to know what the "investigation" is
about – that is, what kind of information the investigating authority requires; an d implicit in
"presenting" written evidence is preparing such evidence, which requires foreknowledge of the
contours of the investigation and time to do so.
7.219. Broken down to its constituent parts, the notice requirement has the following elements:
a. "all interested parties";
b. "shall be given notice"; and
c. "of the information which the authorities require".
Below, we consider the meaning of each of these phrases in context and in the light of the express
purpose of the requirement embedded in the provisions themselves.
7.6.4.1.1 All interested parties
7.220. "Interested parties", as defined in Article 6.11 of the Ant i-Dumping Agreement and
Article 12.9 of the SCM Agreement, include exporters or foreign producers.376 The term "interested
parties" as used in Articles 6.1 and 12.1 is m odified by the word "all". Unless otherwise defined or
indicated, "all" means everyone. Nothing in Articles 6.1 and 12.1 suggests a different meaning of
"all" in these provisions or otherwise suggests that "all" should be understood as anything other
than all for purposes of both the notice requirement and the ample opportunity to present written
evidence.
7.221. The context of the provisions supports the view that "all" means all. Where the drafters
intended to make a distinction between various interested parties i n Article 6 of the
Anti-Dumping Agreement and Article 12 of the SCM Agreement, they did so expressly. For
instance, the time -period for replies provided for in Article 6.1.1 of the Ant i-Dumping Agreement
and Article 12.1.1 of the SCM Agreement is specifically for exporters or foreign producers receiving
questionnaires.377 Had it been the intent of the drafters to limit the scope of the notice
requirement or the ample opportunity to present written evidence to the recipients of information
requests, t he drafters could have done so. This is not the case, in contrast to the immediately
following provision of Article 6.1.1 of the Anti -Dumping Agreemen t and Article 12.1.1 of the
SCM Agreement.378

374 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 241.
375 "All interested parties" and, in case of Article 12.1 of the SCM Agreement, also "interested Members".
376 Members may add to the list of who is considered an interested party set out in Article 6.11 of the
Anti-Dumping Agreement and Article 12.9 of the SCM Agreement.
377 See also Article 6.1.3 of the Anti-Dumping Agreement and Article 12.1.3 of the SCM Agreement in
respect of providing the full text of the written application to the known exporters and to the authorities of the
exporting Member, and upon request, to other interested parties.
378 We also note the absence of any qualifier in respect of from whom the information is required.
A requirement to give notice to all interested parties of "the information which the authorities require of them"
would clearly establish a narrower scope for the notice requirement, as argued by China.

7.222. Nothing in the object and purpose of the Anti -Dumping Agreement or the SCM Agreement
detracts from this conclusion.379 The provisions at issue here protect the right of interested parties
to present written evidence relevant to the investigation. To give effect to this right , all interested
parties have an interest in being given notice of the information that an investigating authority
requires – not only of them but also of other interested parties – so that they may meaningfully
participate and fully defend their interests in an investigation. Notice of information r equired is, in
this sense, fundamental to having an "ample" opportunity to prepare and present written evidence
relevant to the investigation . To limit the scope of "all interested parties" to a subgroup of
interested parties, those of whom information is required, would thus impermissibly render
Articles 6.1 and 12.1 ineffective.
7.223. In the light of the above, the meaning of "all " interested parties is properly understood
literally. Where an investigating authority requires information from a particular intere sted party,
that interested party is one of the "all interested parties" to whom notice must be given, and so
too are all other interested parties, from whom the information is not required.380
7.6.4.1.2 Shall be given notice
7.224. An obligation to give notice is a requirem ent to make aware, to transmit information –
possibly in a summary fashion – of a state of affairs. In principle, the word "notice" denotes
providing information in advance of a given event. 381 Nothing in Articles 6.1 and 12.1 establishes
any guidance regarding the content, form or timing of notice. But turning to the context we
discern some guidance in this regard.
7.225. The immediate context of the notice obligation is, of course, the second obligation in
Articles 6.1 and 12.1. As we have observed, a key purpose of the notice obligation is to ensure
that all interested parties have ample opportunity to present relevant written evidence ; implicit in
this is that to "present" evidence that is "relevant", interested parties require time to prepare such
evidence and enough information to be aware of what the investigation is about . The event in
advance of which notice is to be given is, in the light of the context of the provisions, the
"opportunities" referred to in the second half of the provision. This, in turn, means that the notice
has to come sufficiently "in advance" of the point at which interested parties are to present written
evidence in the investigation such that they have the time to do so in a meaningful fashion.382
7.226. The context of the obligat ion to give "ample opportunity" in Articles 6.1 and 12.1 and the
broader context of Article 6 of the Anti-Dumping Agreement and Article 12 of the SCM Agreement
as a whole provide additional guidance for the understanding of the obligation to "give notice":

379 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.25:
Taken as a whole, the object and purpose of the Anti -Dumping Agreement is to recognize the
right of Members to take anti -dumping measures to counteract injurious dumping while, at the
same time, imposing substa ntive conditions and detailed procedural rules on anti -dumping
investigations and on the imposition of anti-dumping measures.
This view would seem to apply equally to Part V of the SCM Agreement, which establishes substantive and
procedural rules on the investigation underlying and imposition of countervailing measures to counteract
injurious dumping.
380 In respect of the party from whom information is required, the notice of the information required is
given through the information request itself, see Article 6.1.1 of the Anti-Dumping Agreement and
Article 12.1.1 of the SCM Agreement, and thus no separate notice is needed, again supporting the conclusion
that the recipients of the notice must also be parties other than those from whom information is required.
Regarding those other interested parties, the notice of the information required does not necessarily have to be
given through the information request itself, see para. 7.233 below.
381 For instance, it is also in this sense that the term "notice" has been used when describing the
purpose of panel requests in the context of DSU Article 6.2, see e.g. Appellate Body Reports, EC and certain
member States – Large Civil Aircraft, paras. 640, 646, and 792; and US – Zeroing (Japan) (Article 21.5 –
Japan), para. 118.
382 China refers to the terms "notified" and "public notice" in Article 12 of the Anti-Dumping Agreement
and the requirement for "sufficient advance notice" in paragraph 5 of Annex I of the Anti-Dumping Agreement.
(China's response to Panel question No. 1(a), para. 3; comments on United States' response to Panel question
No. 1, para. 4). China argues that in the absence of such language in Articles 6.1 and 12.1, "notice" has
flexible meanings and in particular does not have to come in advance. In our view, however, the provisions
China cites to do not detract from the temporal aspect of "notice" in Articles 6.1 and 12.1, as evidenced by the
requirement to give "ample opportunity".

a. Article 6.1.2 of the Anti -Dumping Agreement and Article 12.1.2 of the SCM Agreement
require that written evidence provided by one interested party "shall be made available
promptly" to other participating interested parties;
b. Article 6.2 of the Anti-Dumping Agreement establishes an obligation to "provide
opportunities" for all interested parties to meet with parties with adverse interests;
c. Article 6.4 of the Anti -Dumping Agreement and Article 12.3 of the SCM Agreement
require that investigating a uthorities "provide timely opportunities" for all interested
parties to see relevant non-confidential information used; and
d. Article 6.9 of the Anti -Dumping Agreement and Article 12.8 of the SCM Agreement
require the investigating authority to "inform" all interested parties of essential facts.
7.227. Although expressed in different ways, these provisions contemplate two modes of
engagement between the investigating authority and interested parties in respect of the
information in an investigation: the use of the v erb "inform" denotes some form of "active"
engagement on the part of the investigating authority, whereas the other formulations suggest a
more "passive" obligation to provide opportunities or to make available. The obligation to "give
notice" at issue her e falls, in our view, closer to the requirement to "inform" on this spectrum of
obligation, requiring a positive action on the part of the investigating authority.
7.228. We draw the following conclusions in respect of the obligation to give notice of the
information required.
7.229. First, Articles 6.1 and 12.1 require an investigating authority to actively provide something
(in this instance "notice of the information which the authorities require") to all interested parties.
This obligation entails reaching out and m aking all interested parties aware of the information in
question. Thus, it cannot be satisfied by merely providing access to something that conveys the
required notice.
7.230. Second, Articles 6.1 and 12.1 do not set out a specific time -frame for the giving of notice,
but they do link the notice requirement with the obligation to give "ample opportunity" to present
relevant written evidence. The timing of "notice" must, therefore, be understood in that specific
context: sufficiently "in advance" that an interest ed parties will be able to prepare and present
written evidence within the deadlines set by the investigating authority for submission of written
evidence on, inter alia, the matters as to which information was sought.383
7.231. Third, Articles 6.1 and 12.1 do not set out specific requirements for the form of the notice
or the modalities by which notice is to be given. Form and modalities remain within the discretion
of the investigating authority. There might be any number of ways for an investigating authority to
give notice. In this regard, we are conscious of the concerns raised in respect of the administrative
burden associated with giving notice of the information required to all interested parties. However,
our interpretation does not require that an investigating authority give that notice immediately, or
in individual communications to all other interested parties in each instance. An investigating
authority may choose a manner of giving the required notice tha t imposes less of an
administrative burden.
7.6.4.1.3 Of the information which the authorities require
7.232. The required content of the notice follows from the requirement that notice is to be given
"of the information which the authorities require" , read in the light of the second half of the
provision. The p articular information that an investigating authority requires from interested
parties thus will determine what the notice must convey, and will vary with the circumstances. At a
minimum, a notice must convey an understanding of what information is require d in order to
enable all interested parties to prepare and submit relevant written evidence regarding the matters
as to which information is sought.

383 In respect of the party from whom information is required, the notice of the information required is
given through the information request itself. The notice to all other interested parties from whom information is
not required might be given later, possibly even as late as after the information is received, if this is sufficiently
early to allow other interested parties enough time to submit written evidence.

7.233. The obligation is to give notice of the information required; it is not an obligation to
disclose the infor mation request itself. Thus, an outline or description of the information required
may well suffice to give the requisite notice. If an investigating authority issues a questionnaire to
a particular interested party, sending or making available (to the ext ent this is made known to all
other interested parties) this questionnaire to all other interested parties would certainly be one
way of giving notice of the information the investigating authority requires. It is not, however,
what the provisions necessar ily require: nothing in Articles 6.1 and 12.1 specifically requires an
investigating authority to provide to all other interested parties the actual questions or requests
issued to a particular interested party, although this might be effective and good pr actice in this
context.
7.234. Articles 6.1 and 12.1 require notice of the information required by the investigating
authority to enable interested parties to prepare and submit relevant written evidence. For this
reason, a notice that informs other interested pa rties of the information actually submitted by the
responding interested party(ies) does not, without more, constitute notice within the meaning of
these provisions.
7.6.4.2 The facts
7.235. During the reinvestigation, MOFCOM sought and obta ined new pricing data from
four Chinese producers through on -the-spot visits (referred to by China and MOFCOM as
"verification" visits).384 These took place in early May 2014.385
7.236. MOFCOM did not provide US interested parties with the questions posed to the Chinese
producers, nor communicate in any other form directly with US interested parties in respect of the
data requested from the Chinese producers.
7.237. MOFCOM placed each of the three documents that China refers to as collectively
constituting the alleged "notice" in its trade remedy public information room for any interested
party to consult. Other than through the Notice of Initiation, MOFCOM did not, at any point,
actively inform the US interested parties that the documents would be or had been made available
in the trade remedy public information room.386
7.6.4.3 Analysis
7.6.4.3.1 Notice requirement
7.238. China and the United States agree that " the scope of the notice requirement under the
articles is not limited to the precise interested party from whom the information is requested ".387
We agree. The US interested parties were therefore entitled to notice of the information MOFCOM
required from the Chinese producers.
7.239. China argues that MOFCOM did not act inconsistently with Article s 6.1 and 12.1 because
"notice" has "flexible meanings" and can be "effected by differ ent means depending on the
situation of the interested party". 388 In respect of the interested party receiving the information
request, advance and active notice must be given. 389 For all other interested parties, those not
recipients of the information reques t, "the disclosure obligation under Articles 6.1 and 12.1 would
be satisfied as long as those parties are provided with access to the required information". 390 On
the facts of this case, China contends that MOFCOM discharged its obligation under Articles 6.1
and 12.1 to give notice in three documents taken together: the Notice of Initiation, the General

384 China's second written submission, para. 39: "MOFCOM decided to use the verification as the tool to
obtain further details on the chicken part-specific prices".
385 China's second written submission, para. 51; see also Redetermination, (Exhibit CHN-1 (translated
version)), p. 14.
386 China's second written submission, paras. 34 and 38; response to the Panel's question No. 11,
paras. 19-21.
387 China's comments on United States' response to Panel question No. 1, para. 2 (quoting
United States' response to Panel question No. 1 para. 6).
388 China's responses to Panel question No. 1(a), para. 2, and No. 4, para. 10.
389 China's second written submission, paras. 31-32; response to Panel question Nos. 1 (a) and (b),
paras. 3-4.
390 China's second written submission, para. 32.

Verification Letter, and the non -confidential summaries of the sales data provided by the Chinese
producers.
7.240. The issue before us therefore is whether the documents invoked by China constitute, when
viewed collectively 391, notice to the US interested parties of the information MOFCOM required
from the Chinese producers, pursuant to Articles 6.1 and 12.1.
7.6.4.3.1.1 Notice of Initiation
7.241. The Notice of Initiation states:
On September 25, 2013, WTO dispute settlement body passed the panel report on the
dispute case of "China's antidumping and countervailing measures against
whitefeather broiler chicken products originated in the U.S.".
… [T]he Ministry of Commerce decides t o reinvestigate this case in accordance with
the rulings an d suggestions in above relevant reports of WTO upon the date of
issuance.
The Ministry of Commerce will re -examine the evidence and information obtained in
the ori ginal anti -dumping and countervail ing investigations, and carry out
reinvestigations through questionnaires, hearings, and other measures.392
7.242. We make three observations concerning this document.
7.243. First, China asserts that the reference in the Notice of Initiation to the "panel report"
provided sufficient notice of the information required by MOFCOM in its consideration of price
effects under Article 3.2 of the Anti -Dumping Agreement and Article 15.2 of the
SCM Agreement.393 However, our findings in the original report were not limited to price e ffects.
Even if there had been a specific reference in the Notice of Initiation to our findings in the original
report under Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement, it
is not clear that that would have amounted to n otice of the information required by MOFCOM in
this reinvestigation. Indeed, our findings regarding price effects concerned the comparability of
AUVs, whereas MOFCOM's information request to Chinese producers was with respect to a different
issue.
7.244. Second, China relies on the reference to "questionnaires, hearings, and other measures" to
be carried out during the reinvestigation. This is, however, solely a reference to the means by
which MOFCOM might gather information, and says nothing about the informatio n that might or
would be required. Articles 6.1 and 12.1 do not set out a notice requirement in respect of how
information required is obtained, but in respect of what information is, in fact, required. In this
instance, stating that information may be sought through questionnaires, hearings or other means,
gives no indication of "the information" that MOFCOM requires. It is possible that conveying, or
even making available (if that is made known to the interested parties), the relevant questionnaire
to all interested parties would suffice to give notice regarding "the information" that an
investigating authority requires. By contrast, merely indicating that there may be "questionnaires"
in the document giving notice of the initiation of a proceeding conveys no understanding at all in
respect of "the information" that is or may be required in those questionnaires.
7.245. Third, China confirmed that "the earliest moment when US interested parties could learn of
the fact that MOFCOM required information from Chinese p roducers and gain an understanding of
what information was required" was through reading the General Verification Letter, dated
19 February 2014.394 In itself, this undermines China's reliance on the Notice of Initiation as one of
the documents constituting notice for the purposes of Article 6.1 of the Anti -Dumping Agreement
and Article 12.1 of the SCM Agreement.

391 We understand that China is not arguing that each document could, on its own, be characterized as
"notice" consistent with Article 6.1 of the Anti-Dumping Agreement and Article 12.1 of the SCM Agreement.
392 Announcement No. 88, (Exhibit USA-1(translated version)), p. 1; China's first written submission,
para. 54.
393 China's second written submission, para. 36.
394 China's response to Panel question Nos. 5(e) (i) and (ii), paras. 16-17.

7.246. In the light of the above, we question whether the Notice of Initiation could have
contributed to giving the required notice through the three documents at issue, considered in their
totality.395
7.6.4.3.1.2 General Verification Letter
7.247. China also relies on the General Verification Letter in support of its position that MOFCOM
fulfilled the notice requirement. China asserts that this letter was placed in MOFCOM 's tr ade
remedy public information room on 19 February 2014. The letter was addressed to the Chinese
producers subject to the on-the-spot verification and data collection.396 It states in part:
You are requested to prepare for th e verification beforehand and full y cooperate with
the Investigating Team during the verification. Please prepare all the materials and
produce relevant evidence in view of the Panel Report.397
7.248. The United States contends that the General Verification Letter constitutes neither in form
nor in substance a notice pursuant to Articles 6.1 and 12.1.398
7.249. The letter refers to a "verification" and requests the Chinese producers to "prepare all the
materials and produce relevant evidence". It does not mention that additi onal data may or will be
required; perforce, it does not identify what information might or would be required. Reference to
a "verification", "all the materials" and "relevant evidence" does not provide any understanding of
"the information" that MOFCOM required; mentioning certain sources of information ("materials",
"evidence") does not suffice to provide notice of the information required. As we have observed,
the reference to the "Panel Report", without more, does not provide additional clarification. 399
Substantively, the contribution of the letter to MOFCOM's fulfilment of the "notice" requirement is
questionable at best.
7.250. MOFCOM placed the letter in its trade remedy public information room but did not actively
inform US interested parties of the letter, nor of the fact that it was availa ble in MOFCOM's trade
remedy public information room.400 The Notice of Initiation did refer interested parties to the trade
remedy public information room. Thus, interested parties that routinely "monitored the public
reading room"401 presumably would have become aware of the letter soon after it was placed in
that room.402 The Notice of Initiation states in this regard:
Any interested parties may refer to the public evidence and information via Trade
Remedy Public Information Room of th e Ministry of Commerce. The Ministry of
Commerce will guarantee the legal rights of interested parties though such procedures
as disclosing information and providing chances for statem ent of opinions and
comments.403
Thus, as we understand it, China argues that:
a. the Notice of Initiation referred interested parties to the public information room for
access to public evidence and information;
b. MOFCOM placed the General Verification Letter in the public information room;

395 China's initial argument was that the Notice of Initiation (25 December 2013) was part of a series of
three documents that taken together amounted to a notice of the information required within the meaning of
Article 6.1 of the Anti-Dumping Agreement and Article 12.1 of the SCM Agreement.
396 General Verification Letter, (Exhibit CHN-2 (translated version)), p. 1; China's first written
submission, para. 56.
397 General Verification Letter, (Exhibit CHN-2 (translated version)), p. 1; China's first written
submission, para. 56.
398 United States' second written submission, paras. 20-23.
399 China's second written submission, para. 38.
400 China's second written submission, para. 38.
401 China's response to Panel question No. 11, para. 20.
402 China's response to Panel question No. 11, paras. 19-21.
403 Announcement No. 88, (Exhibit USA-1 (translated version)), p. 1.

c. an online index 404 was immediately updated t o list the non -confidential summaries as
available in the public information room; and
d. the General Verification Letter conveyed more precision about the information required
of the Chinese producers.
7.251. China argues that "Article 6.1 of the AD Agreement and Article 12.1 of the SCM Agreement
do not mandate the specific means that investigating authorities must follow to provide notice". 405
We agree. Nothing in Article 6.1 or 12.1 specifies the form of a notice or how it is to be given. An
investigating authority may give notice to all interested parties either individually in each instance
that information is required or through more generalized means; properly worded and transmitted,
a notice of initiation or verification letters might, singly or together, const itute "notice" within the
meaning of Article 6.1 of the Anti-Dumping Agreement and Article 12.1 of the SCM Agreement.
7.252. In this case, however, the Notice of Initiation simply refers all interested parties to the
public information room but does not indicate what would be made available and when. 406 A
general reference in the Notice of Initiation to a designated location where public information can
be consulted, in connection with subsequ ently making available at that location a document that
purports to conve y an understanding of the information required , does not suffice to give notice
within the meaning of Articles 6.1 and 12.1. MOFCOM did not inform interested parties of the
placing of the document allegedly conveying the notice of the information required in the public
reading room. Rather, int erested parties were expected "to avail themselves of the public reading
room to review themselves the public record" and thus to identify on their own the fact that a
notice of the information required of Chinese pro ducers had been given. 407 However, under
Articles 6.1 and 12.1 it is for MOFCOM to "give" the interested parties notice – an obligation
to give notice cannot be satisfied by expecting the interested parties to monitor the investigating
authority to ensure they remain informed when the interested parties are not informed that that is
the mechanism by which such notice will be given to them . China's position reduces the notice
requirement to an obligation to make a general statement that interested par ties may consult
information in the public information room. The notice requirement would be stripped of its link to
the information required; it would no longer be "of the information which authorities require". Such
"notice" would fall short of the due p rocess function of Articles 6.1 and 12.1 . A panel may not
adopt an interpretation that would render a treaty provision, or part of it, ineffective, and we do
not do so in this instance.
7.253. The fact that informatio n was only requested for what China alleges to be a "limited
purpose" does not absolve MOFCOM of the obligation to comply with Articles 6.1 and 12.1. 408 The
obligation under the notice requirement to inform all interested parties of the information required
is not subject to any limitations with respect to the purpose or use for which information is
required.
7.254. In view of the above, for at least two reasons we are not convince d that the General
Verification Letter contributed to MOFCOM giving notice to the US interested parties through the
three documents at issue considered together:
a. the letter did not convey any understanding of the additional (pricing) information
MOFCOM required from the Chinese producers and thus did not relate to the information
required; and
b. by merely placing the letter in MOFCOM's trade remedy public information room in
connection with a reference to that room in the Notice of Initiation, MOFCOM failed to
give notice.

404 According to China, the online index functions as an overview of the content accessible in the trade
remedy public information room. The online index is accessible through MOFCOM's main web page. China does
not, however, suggest that the online index provides for any mechanism that (proactively) alerts interested
parties that and when a document is made available. (China's response to Panel question No. 13,
paras. 23-24).
405 China's comments on United States' response to Panel question No. 1, para. 2.
406 Also, the Notice of Initiation does not refer to the online index.
407 China's comments on United States' response to Panel question No. 3, para. 8
408 See, however, China's second written submission, para. 39.

7.6.4.3.1.3 Non-confidential summaries
7.255. China refers to the non -confidential summaries of the data provided by the Chinese
producers as the last of the three documents through which MOFCOM allegedly satisfied the notice
requirement at issue.409 Chinese producers prepared these non -confidential summaries of
information they provided to MOFCOM, and MOFCOM placed them its trade remedy pub lic
information room on 20 May 2014.410
7.256. Even if the non-confidential summaries conveyed the information re quired, MOFCOM failed
to give US interested parties notice in respect of these documents. MOFCOM placed the
non-confidential summaries in its trade reme dy public information room. As with the General
Verification Letter, this does not fulfil China's obligation in respect of the notice requirement. China
neither alleges, nor provides evidence to suggest, that MOFCOM informed US interested parties
specifically that the non -confidential summaries would be or were available in the trade remedy
public information room. Merely making information available in this room without, in any way,
calling the attention of the interested parties to this information is, however, not sufficient for
purposes of Articles 6.1 and 12.1.
7.257. We are therefore not persuaded that the non -confidential summaries contributed to
ensuring MOFCOM's compliance with the obligation to give notice.
7.6.4.3.1.4 Conclusion
7.258. China argues that the three doc uments at issue collectively satisfy the obligation to give
"notice" pursuant to Articles 6.1 and 12.1. While each document may ha ve some connection to
China's obligation to give notice of the information required, none , in our view, makes enough of a
contribution such that, taken together, they suffice to demonstrate that MOFCOM gave notice to
US interested parties of the information required consistently with the requirements of Articles 6.1
and 12.1.
7.259. Neither the Notice of Initiation, nor the General Ver ification Letter conveyed any
understanding in respect of "the information" that MOFCOM required. In respect of the General
Verification Letter and the non-confidential summaries, MOFCOM also failed to convey to interested
parties the fact that these docum ents were available for consultation in its trade remedy public
information room. This failure was not remedied through the Notice of Initiation, which merely
informed interested parties that evidence and information would be available in that room, but in
no way informed them that notices required by Articles 6.1 and 12.1 would also be made available
in the reading room. Therefore, all three documents, even considered together, do not add up to a
complete whole whereby MOFCOM could have given the US intere sted parties notice of the
information required from the Chinese producers.
7.260. Consequently, we find that China acted inconsistently with th e notice requirement in
Article 6.1 of the Anti -Dumping Agreement and Article 12.1 of the SCM Agreement by failing to
give notice to US interested parties of the information it required of Chinese producers during the
reinvestigation.

409 Post-Verification Supplemental Information concerning the Reinvestigation on the Anti-dumping and
Countervailing Measures Imposed on the Broiler Products Originating in the United States (20 May 2014) of
Beijing Huadu, Shandong Chunxue, Shandong Minhe, and Da Chan Wanda, (Exhibits CHN-4 through CHN-7
(translated versions)).
410 In the context of Article 6.4 of the Anti-Dumping Agreement and Article 12.3 of the SCM Agreement,
the United States disputes that these summaries were made available in MOFCOM's trade remedy public
information room. China has, however, provided an internal registration document that states that
"Post-Verification Supplemental Information Concerning the Re-Investigation on the Anti-dumping and
countervailing Measures Imposed on the Broiler Products (public version)" of the four Chinese producers in
question was received by the trade remedy public information room on 20 May 2014. (Reading Room for Public
Information on Trade Remedy, Acknowledgement of Receipt of Documents (20 May 2014), (Exhibit CHN-44)).
See below, paras. 7.298-7.299.

7.6.4.3.2 Obligation to provide ample opportunity to present written evidence
7.261. The United States argues that as a consequence of MOFCOM's failure to pr ovide notice of
the required information, MOFCOM also failed to provide the US interested parties with ample
opportunity to present written evidence.
7.262. We have found that MOFCOM failed to give notice to the US interested parties and that
China thereby acted inconsistently with the notice requirement in Articles 6.1 and 12.1. In this
context, it is not necessary for us to make additional findings as to whether, as a consequence of
the violation of the notice requirement, MOFCOM also failed to give interested p arties ample
opportunity to present in writing all evidence which they consider relevant.411
7.6.5 Conclusion
7.263. The United States has established that MOFCOM did not give notice to the US interested
parties of the information it required from Chinese producers durin g the reinvestigation. We
therefore find that China acted incons istently with the notice requirement in Article 6.1 of the
Anti-Dumping Agreement and Article 12.1 of the SCM Agreement. As a consequence, it is not
necessary for us to make additional finding s in respect of the obligation to provide ample
opportunities to present written evidence under the same provisions.
7.7 Article 6.4 of the Anti -Dumping Agreement and Article 12.3 of the SCM Agreement :
timely opportunities to see information and to prepare presentations on the basis of this
information
7.7.1 Introduction
7.264. In our original report, we found MOFCOM's consideration of price undercutting and price
suppression inconsistent with Articles 3.1 and 3.2 of the Anti -Dumping Agreement and
Articles 15.1 and 15.2 of the SCM Agreement. During the reinvestigation, MOFCOM sought and
collected new pricing data from four selected Chinese domestic producers and used these data in
its consideration of price effects in the redetermination.
7.265. This claim concerns whether MOFCO M acted in accordance with its obligations under
Article 6.4 of the Anti-Dumping Agreement and Article 12.3 of the SCM Agreement to provide US
interested parties timely opportunities to see information and to prepare presentations on the
basis of this information, specifically with reference to information with respect to price effects.412
7.7.2 Main arguments of the parties
7.7.2.1 United States
7.266. MOFCOM failed to provide US interested parties timely opportunities to see information in
respect of:
a. non-confidential summaries of pricing data provided by four Chinese producers during
the reinvestigation at the request of MOFCOM413;

411 We also do not need to resolve, as a general matter, whether a violation of the obligation to give
notice of the information required necessarily results in a violation of the obligation to give ample opportunity
to present written evidence.
412 We will refer to these as Articles 6.4 and 12.3.
413 United States' first written submission, para. 53; response to Panel question No. 6(a), paras. 17-18.
At paragraph 59 of its opening statement, the United States indicates that "MOFCOM was required to disclose
not only the public summaries, but also the full data". At paragraph 56 of its second written submission, the
United States argues that the release of non-confidential summaries did not fulfil the obligation of Articles 6.4
and 12.3. In its response to Panel question No. 6(b)(i), para. 21, the United States clarifies that it is not
asserting that US interested parties were entitled to see Chinese producers' confidential data. We therefore
understand the US claim to be limited to non-confidential information, including the non-confidential
summaries.

b. the precise identities of these Chinese producers414;
c. MOFCOM's questions or requests issued to these Chinese producers415;
d. the "context "416 of these data, including "the specific products for which pricing was
requested, whether the pricing was requested and/or r eported on the basis of one sale,
quarterly sales, annual sales, or sampled invoices; and what quantity of each producer 's
sales, or of the domestic industry's sales, were represented by the pricing sample"417;
e. aggregate data reflecting the information received from the Chinese producers418; and
f. MOFCOM's "basis for selecting [the four Chinese] producers for the sample and its
methodology for collecting pricing data from them".419
7.267. MOFCOM did not make available non -confidential summaries of the pricing data provided
by the Chinese producers in MOFCOM's trade remedy public information room on 20 May 2014, as
China alleges. 420 Even if this were the ca se, MOFCOM did not give notice to the US interested
parties, as required by Articles 6.4 and 12.3. 421 Moreover, in the light of the injury disclosure on
21 May 2014 and the deadline for comments one week later, the opportunity was not "timely" for
purposes of these provisions.422
7.268. MOFCOM's failure to provide timely opportunities to see the information at issue
"necessarily" resulted in a breach of the obligation to provide timely opportunities to prepare
presentations on the basis of that information. 423 Also, a h earing that China refers to "in no way
provided interested parties with an opportunity to prepare present ations" and "itself breached
AD Agreement Article 6.4 and SCM Agreement Article 12.3".424
7.7.2.2 China
7.269. MOFCOM acted consistently with Articles 6.4 and 12.3. The se provisions do not require
active disclosure of information. 425 They contain an obligation of a passive nature that MOFCOM
satisfied by releasing the information at issue in its trade remedy public information room.
Moreover, the United States did not demo nstrate that MOFCOM had denied a request by the US
interested parties to see the information.426
7.270. Regarding the pricin g data and identities of the Chinese producers, M OFCOM provided
timely opportunities for all interested parties to see this information through non-confidential
summaries submitted by Chinese producers of the information provided by them during the
verifications. These non-confidential summaries were received by MOFCOM and made available to
US interested parties in its trade remedy public information room on 20 May 2014. 427 They

414 United States' first written submission, para. 53.
415 United States' first written submission, para. 53; responses to Panel question No. 6(b)(i), para. 21,
and No. 7, paras. 28-29.
416 United States' second written submission, para. 57.
417 United States' response to Panel question No. 6(b)(i), para. 23.
418 United States' responses to Panel question No. 6(b)(i), paras. 21 and 23, and No. 6(b)(ii), para. 25.
419 United States' first written submission, para. 150.
420 United States' response to Panel question No. 6(a), paras. 17-18; comments on China's response to
Panel question No. 11, para. 24.
421 United States' second written submission, paras. 55 and 59; responses to Panel question No. 6(a),
para. 19, No. 6(b)(i), paras. 22 and 23, and No. 10, paras. 36-37.
422 United States' second written submission, paras. 54-55; responses to Panel question No. 6(b)(i),
para. 23, and No. 9, paras. 34-35.
423 United States' first written submission, para. 62; second written submission, paras. 60 and 62.
424 United States' second written submission, paras. 61-62.
425 China's second written submission, para. 86.
426 China's second written submission, para. 87.
427 China's first written submission, para. 90.

contained indexed information on unit prices, sales quantity and value. 428 They also disclosed in
full the precise identities of the Chinese producers.429
7.271. In respect of the alleged questions or requests posed by MOFCOM, MOFCOM did not issue
any questionnaires to the Chinese producers in order to collect additional information. MOFCOM
was also not under an obligation under Articles 6.4 an d 12.3 to give opportunities to see its oral
questions or requests.430 The questions or requests posed by MOFCOM were not "information" that
was "used" by MOFCOM within the meaning of Articles 6.4 and 12.3.431
7.272. MOFCOM also afforded US interested parties the opp ortunity to prepare presentations
because it complied with its obligation to give US interested parties opportunities to see all
information.432 Also, Pilgrim's Pride met with MOFCOM in a disclosure meeting 433 and all
US interested parties in fact presented their cases in a hearing with MOFCOM.434
7.7.3 Main arguments of the third parties
7.273. The European Union argues that "relevant information" pursuant to Articles 6.4 and 12.3
includes information requests addressed to other interested parties .435 "Timely opportunities"
within the meaning of these provisions must enable interested parties to provide their comments
on content, reliability and probative value of the information (and possible counter -evidence). To
this end, the information must be made available early enough i n the process that the comments
can still be taken into account in the decision -making of the investigating authorities. 436 Making
the inform ation available in an electronic or physical reading room satisfies the obligation to
provide opportunities to see the information. There is no requirement to give notice to the
interested parties that the information is made available.437
7.7.4 Evaluation
7.7.4.1 The law
7.274. Article 6.4 of the Anti-Dumping Agreement provides:
The authorities shall whenever practicable provide timely opportunities for all
interested parties to see all information that is relevant to the presentation of their
cases, that is not confidential as defined in paragraph 5, and that is used by the
authorities in an anti -dumping investigation, and to prepare pr esentations on the
basis of this information.
The text of Article 12.3 of the SCM Agreement is essentially identical, with references to "all
interested Members and interested parties" instead of "all interested parties", "paragraph 4"
instead of "paragraph 5" and "countervailing duty" rather than "anti-dumping" investigation.

7.275. Each provision thus requires the investigating authorities to:
a. whenever practicable, provide timely opportunities for all interested parties;
b. to see all information that is:
i. relevant to the presentation of their cases,

428 China's first written submission, paras. 90 and 92.
429 China's second written submission, para. 89.
430 China's second written submission, para. 85; comments on United States' responses to Panel
431 China's comments on United States' response to Panel question No. 8, para. 18.
432 China's first written submission, para. 94.
433 China's second written submission, para. 90.
435 European Union's third-party statement, para. 5.
436 European Union's third-party submission, para. 14.
437 European Union's third-party statement, para. 5.

ii. not confidential as defined in paragraph 5, and
iii. used by the authorities in the investigation; and
c. to prepare presentations on the basis of this information.
We address each of these criteria below.
7.7.4.1.1 Whenever practicable provide timely opportunities to see
7.276. "Timely opportunities" to see information must be provided "whenever practicable"
throughout the investigation: they must be timely enough for the interested party to be able to
prepare presentations on the basis of the information seen.438 Whether "timely opportunities" have
been provided to see information must be considered in the light of the circumstances of each
case, including the specific information at issue, the step of the investigation to which such
information relates, and the practicability of disclosure at certain points in time in the investigation
vis-à-vis others.439
7.277. The obligation is to " provide … opportunities " to see all information. The verb "provide"
refers to opportunities, not to the information itself. The obligation is to give opportunities to see
the information, not to convey the information itself. At paragraphs 7.226 and 7.227 above, we
observed that the modes of engagement between the investigating authority and interes ted
parties in respect of information contemplated in Article 6 of the Anti -Dumping Agreement and
Article 12 of the SCM Agreement ranged along a spectrum from some form of active engagement
on the part of the investigating authority to "passive" obligation s. The obligation to "provide …
opportunities" falls closer to the passive end of the spectrum. Thus, the obligation to "provide …
opportunities" to see information requires an investigating authority to make available or to
provide access to the information at issue. It is not an "active" disclosure obligation in the sense
that it requires an investigating authority to reach out to the interested parties, in particular by
giving notice to, or otherwise informing the interested parties.
7.278. Nothing in Articles 6.4 and 12.3 sets out conditions for the manner in which an
investigating authority must "provide … opportunities". An investigating authority may proceed in
any number of ways, including by making available the information in a physical or electronic
reading room.
7.7.4.1.2 All information
7.279. Articles 6.4 and 12.3 refer to "all information". The provisions thus apply to a broad range
of information qualified only by three cumulative conditions: the information must be "relevant to
the presentation of [the interested parties'] cases", "not confidential" and "used by the
authorities".440 The information may take various forms, including facts or raw data submitted by
the interested parties and information that has been processed, organized or summarized by the
investigating authority.441 An investigating authority's reasoning, internal deliberations, analysis or
methodologies in respect of the information, however, do not constitute "information" subject to
the obligations under Articles 6.4 and 12.3.442
7.7.4.1.2.1 That is relevant to the presentation of their cases
7.280. Information is "relevant" for purposes of Articles 6.4 and 12.3 when the interested party
considers that the information is relevant to the presentation of its case in the context of the
investigation.443

438 Panel Report, EU – Footwear (China), paras. 7.602 and 7.650 (quoting Panel Report, EC – Salmon
(Norway), para. 7.769).
439 Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China), para. 5.122.
440 Appellate Body Report, EC – Fasteners (China), paras. 480 and 495.
441 Appellate Body Report, EC – Fasteners (China), paras. 480 and 495.
442 Appellate Body Report, EC – Fasteners (China), para. 495; Panel Report, EU – Footwear (China),
para. 7.603.
443 Appellate Body Reports, EC – Tube or Pipe Fittings, para. 145; EC – Fasteners (China), para. 479;
and EC – Fasteners (China) (Article 21.5 – China), para. 5.111.

7.7.4.1.2.2 That is not confidential as defined in paragraph 5
7.281. Articles 6.4 and 12.3 only relate to information "that is not confidential as defined in
paragraph 5 [paragraph 4 of the SCM Agreement]". Thus, information that has been accorded
confidential treatment in accordance with Article 6.5 of the An ti-Dumping Agreement or
Article 12.4 of the SCM Agreement is excluded from the scope of these provisions. If information
has been treated as confidential in a manner that does not conform to the requirements of
Article 6.5 of the Anti-Dumping Agreement or Article 12.4 of the SCM Agreement, there is no legal
basis for according it confidential treatment and such information wou ld, for the purposes of
Article 6.4 of the Anti -Dumping Agreement, be considered as information "that is not confidenti al
as defined in paragraph 5".444
7.7.4.1.2.3 That is used by the authorities
7.282. The "information" covered by Articles 6.4 and 12.3 is information that is relevant,
non-confidential and used by the authorities. The term "used" is not further defined in the
Anti-Dumping Agreement or the SCM Agreement, or indeed elsewhere in the WTO Agreement ; it
can have a broader or a narrower meaning. A narrow interpretation of the term "used" might
restrict the information at issue to only those specific items of information that an investigating
authority in fact relies upon in making its determinations. This interpretation has been rejected by
panels and the Appellate Body. 445 A broader interpretation of the term might include all
information that in one way or another comes before th e investigating authority; there are other
interpretations possible along this spectrum. For purposes of our task, it suffices to say that
nothing in the term "used" in itself tells us where to draw the appropriate line.
7.283. In this light, we turn to the imme diate context. The information, we recall, must be
non-confidential and relevant "to the presentation of [the interested parties'] cases". The term
"used" thus further limits the scope of information that is covered by the provisions. An overly
narrow inte rpretation of the term "used" could so limit the scope of such information as to
undermine the due process protection given by Articles 6.4 and 12.3, denying an interested party
the opportunity to see non-confidential information that is relevant to the presentation of its case.
7.284. We now turn to the broader context. Article 6.9 of the Anti -Dumping Agreement and
Article 12.8 of the SCM Agreement establish an obligation to disclose the essential facts under
consideration which form the basis for the decision w hether or not to apply definitive measures.
The "essential facts" for purposes of this provision are not all the facts before the investigating
authority.446 It would thus appear that where the negotiators envisaged a "narrow" scope of
information, i.e. fact s that, while they may be "used" are not necessarily "essential", they could
and did formulate their intent in precise terms. While previous decisions suggest an
unacknowledged premise that information for purposes of Articles 6.4 and 12.3 is in the nature of
data, facts or other evidence bearing on the issues to be resolved by an investigating authority, it

444 Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China), para. 5.101. The same
conclusion applies in respect of Article 12.3 of the SCM Agreement.
445 Whether the information was "used" by the authority does not depend on whether the
authority specifically relied on that information. Rather, it depends on whether the information is
related to "a required step in the anti -dumping investigation". Thus, Article 6.4 concerns
information relating to "issues which the investigating authority is required to consider under the
[Anti-Dumping Agreement], or which it does, in fact, consider, in the exercise of its discretion,
during the course of an anti-dumping investigation."
(Appellate Body Report, EC-Fasteners (China), para. 479 (quoting Appellate Body Report, EC – Tube or Pipe
Fittings, para. 147; and Panel Report, EC – Salmon (Norway), para. 7.769) (fns omitted))
446 Appellate Body Report, China – GOES, para. 240 ("Articles 6.9 and 12.8 do not require the disclosure
of all the facts that are before an authority but, instead, those that are 'essential'; a word that carries a
connotation of significant, important, or salient.") The Panel in EC – Salmon (Norway) observed that:
[E]ssential facts under consideration which form the basis of the decision whether to apply
definitive measures" are the body of facts essential to the determinations that must be made by
the investigating authority before it can decide whether to apply def initive measures. That is,
they are the facts necessary to the process of analysis and decision -making by the investigating
authority, not only those that support the decision ultimately reached.
(Panel Report, EC – Salmon (Norway), para. 7.807)

does not necessarily follow that the understanding of information "used" must be so limited.447 The
reference to information "used" in Articles 6.4 and 1 2.3, by contrast to Articles 6.9 and 12.8, thus
suggests that information "used" may be broader than facts or data relevant to the issues that
must be, or actually are, resolved in an investigation. Contextual guidance, though limited,
therefore supports t he view that a broader interpretation of the concept of information "used" is
warranted.
7.285. The purpose of Articles 6.4 and 12.3, to which we must give effect in interpreting them, is
clear: Interested parties must be able to prepare presentations on the basis of information which is
before the investigating authority which they consider relevant, and which they are to be given
opportunities to see under the first part of the provisions. Articles 6.4 and 12.3 are among the
important procedural safeguards that ensure that interested parties can defend their interests. Our
interpretation of the term "used" ought, we believe, give effect to this important purpose.
7.286. In the light of the above, we conclude that information "used" within the meaning of
Articles 6.4 of the Anti-Dumping Agreement and 12.3 of the SCM Agreement can be broader than
facts or data relating to issues which the investigating authority is required to consider, or which it
does, in fact, consider in the course of an anti -dumping or countervailing duty investigation.
Whether a particular item of information is one that is "used" by the authorities in a broader sense
will depend on the facts and circumstances of each case.
7.7.4.1.3 Provide timely opportunities … to prepare presentations on the basis of this
information
7.287. The two obligations in Articles 6.4 and 12.3 are distinct, yet related. In particular, the
second obligation concerns providing opportunities to prepare presentations "on the basis of this
information" – that is, the information that interested parties must be given timely opportunities to
see. Where an investigating authority has not provided any opportunity to see relevant and
non-confidential information that is used by it, i t perforce cannot provide any opportunity to
prepare presentations on the basis of this information . However, where an opportunity to see
information is provided, it may be found to be insufficient if it is not provided in sufficient time to
allow the interested parties seeing the information to prepare presentations based on it.
7.7.4.2 Analysis
7.288. The United States brings its claim under Articles 6.4 and 12.3 in respect of the
opportunities to see different items of "information" and to prepare presentations on the basis of
this information. We address each of these below.
7.7.4.2.1 Providing timely opportunities to see
7.7.4.2.1.1 Preliminary observations
7.289. China argues first that the US claim fails because the United States has not demonstrated
that the US interested parties requested to see the information at issue and that MOFCOM denied
such request. According to China, an investigating authority does not need to take any action at all
in order to comply with Articles 6.4 and 12.3, unless an interested party requests to see the
information at issue. It relies on the statement of the panel in EC – Fasteners (China) that:

447 But see Panel Report, EU – Footwear (China), para. 7.612. The Panel noted that "the mere fact that
information 'relates' to a particular issue that is before the investigating authority does not establish that the
information was 'used' by the authority in making its determination". It went on to observe that it failed:
[T]o see how the "sending of the questionnaires " or "requests to complete questionnaire
responses" could have constituted information per se that was "used" by Commission [sic] in the
selection of the sample, which we understand to be the relevant determination. We do not see
the relevance of the dates on whi ch questionnaires were sent to the substantive issues in volved
in selecting the sample. Indeed, we see nothing in the evidence before us that would indicate
that the Commission "used" the fact that the anti -dumping questionnaires were sent to the
sampled EU producers on 10 October 2008 in any way in the sample determination.
(Panel Report, EU – Footwear (China), para. 7.612)

[A] violation of Article 6.4 would normally require a showing that the investigating
authorities denied an interested party's request to see information used by the
authorities, which was relevant to the presentation of that interested par ty's case and
which was not confidential.448
7.290. Articles 6.4 and 12.3 contain "limited" procedural and due process rights 449; they are
limited by the requirements that providing opportunities be "practicable" and that the information
be "relevant", "not confidential" and "used". China asks the Panel to further limit the rights of
interested parties beyond the limitations already expressly set forth in the provisions by
introducing a requirement for a "request".
7.291. We do not find any basis for requiring a "re quest" to see information before a claim of
violation of Articles 6.4 and 12.3 can be made. Textually, the obligation is for investigating
authorities to "provide" opportunities. This is in contrast to other obligations in Article 6 of the
Anti-Dumping Agr eement and Article 12 of the SCM Agreement that condition the obligation to
"provide opportunities" or to "make available" on a "request":
a. Article 6.1.3 of the Anti -Dumping Agreement and Article 12.1.3 of the SCM Agreement
require that the investigating au thority "shall provide" the written application to the
known exporters and the authorities of the exporting Member (without reference to any
request), and "shall make it available, upon request , to other interested parties
involved"450; and
b. Article 6.2 of th e Anti -Dumping Agreement conditions the obligation to "provide
opportunities" to meet with adverse interests with the phrase "on request".451
The fact that the "relevance" of the information must be assessed from the perspective of the
interested party does not detract from our understanding that investigating authorities must
provide opportunities irrespective of a request to see the information being made. 452 Interested
parties that are not aware of the existence of certain information before the investigating authority
obviously cannot make a request to see that information. 453 Such interested parties may well be
most in need of the due process protection afforded by Articles 6.4 and 12.3. Yet, a requirement
for a request would render void their right to have a n opportunity to see information of which they
are unaware.454 Attributing such a meaning to a treaty provision would lead to an unreasonable
result.
7.292. The failure to provide opportunities to see certain information is a violation by omission.
There are evidentiary challenges associated with a claim based on an alleged omission. It may be
difficult to prove the absence of an opportunity to see information. From an evidentiary
perspective, it is therefore useful if a complainant can demonstrate, by reference to record
evidence, that an interested party requested to see information that the investigating authority
then failed to make available. But the absence of a request by an interested party in itself does
not, as a matter of law or fact, mean that an investig ating authority has satisfied its obligation to
provide timely opportunities to see information under Articles 6.4 and 12.3. Viewed in context, the
quotation from EC – Fasteners (China) relied on by China does not support its position to the
contrary. The panel in that case had already observed that Article 6.4 did not require an
investigating authority to "actively disclose" information, and was addressing China's argument
that "the investigating authorities were under the obligation to provide" information even in the
absence of a request. 455 The panel rejected the view that there was any obligation to actively

448 Panel Report, EC – Fasteners (China), para. 7.480; China's second written submission, para. 87; and
comments on United States' response to Panel question No. 10, para. 21.
450 Emphasis added.
451 Similarly, Article 6.2 of the Anti-Dumping Agreement and Article 12.2 of the SCM Agreement provide
a right to present information orally "[up] on justification".
452 An investigating authority may well prefer to rely on an interested party's request to assure itself of
the "relevance" of information.
453 This is particularly problematic where, as in the case at hand, the investigating authority also failed
to give interested parties notice of the information required pursuant to Article 6.1 of the
Anti-Dumping Agreement and Article 12.1 of the SCM Agreement.
454 But see Panel Report, EC – Fasteners (China) (Article 21.5 – China), para. 7.78.
455 Emphasis added.

disclose information under Article 6.4. In this context, the statement that a "violation of Article 6.4
would normally require a showing tha t the investigating authorities denied an interested party's
request to see information" in our view reflects that one way of demonstrating a violation of
Article 6.4 would be to show that a request to see information was denied. This does not, however,
mean tha t such a request (and denial) are necessary in order to demonstrate a violation of
Articles 6.4 and 12.3.
7.293. In this case, the United States does not assert that a request by the US interested parties
to see the information at issue was made and rejected. Rather, the United States points to a
statement of the US Government to MOFCOM during the reinvestigation asserting a lack of
procedural fai rness to support its contention that interested parties were not provided timely
opportunities to see information . Specifically, in respect of the information solicited from the
Chinese producers, the US Government asserted to MOFCOM that US interested par ties had no
understanding of what evidence MOFCOM had obtained and relied upon during the
reinvestigation.456 This is in our view evidence supporting the US allegation that MOFCOM did not
provide opportunities to see information.
7.7.4.2.1.2 Non-confidential pricing information
7.294. The United States claims that MOFCOM did not provide timely opportunities to see
non-confidential pricing information submitted by the Chinese producers to MOFCOM. It refers in
this regard to the fact that non -confidential summaries are not mentio ned in the injury
disclosure.457 China contends that on 20 May 2014, MOFCOM made available in its trade remedy
public information room non-confidential summaries which contained indexed pricing data from
four Chinese producers.458
7.295. There is no disagreement betw een the parties that the pricing data contained in the
non-confidential summaries constituted information that was relevant to the US interested
parties' presentations of their cases, not confidential as defined in paragraph 5 of Article 6 of the
Anti-Dumping Agreement (and paragraph 4 of Article 12 of the SCM Agreement) and used by
MOFCOM. Thus, it is clear that the information at issue falls within the scope of Articles 6.4
and 12.3.
7.296. The disagreement between the parties relates to whether, as a matter of fact, the
non-confidential summaries were made available in MOFCOM's trade remedy public information
room and, if so, whether the opportunities to see that information were "timely". We address each
issue in turn below.
7.297. First, regarding whether the non -confidential summaries were in fact made avai lable in
MOFCOM's trade remedy public information room , China contends that MOFCOM made them
available there on 20 May 2014, relying on an internal "acknowledgement of receipt" from
MOFCOM's trade remedy public information room , Exhibit CHN -44. This document, dated
20 May 2014, acknowledges "receipt of a total of four documents of Post-Verification Supplemental
Information Concerning the Re -Investigation on the Anti -dumping and countervailing Measures
Imposed on the Broiler Products (public version)" from the four Chinese producers in question.
7.298. The United States argues that Exhibit CHN -44 do es not demonstrate that the
non-confidential summaries were made available in the trade remedy public information room. The
exhibit acknowledges "receipt" of the non -confidential summaries by the trade remedy public
information room , but does not confirm that the documents were actually placed in the trade
remedy public information room .459 Moreover, while there is a signature on the receipt by the

456 Statement of the US Government for MOFCOM's Injury Hearing, (Exhibit USA-10), pp. 1-2 of the
English translation.
457 United States' response to Panel question No. 6(a), paras. 17-18.
458 Post-Verification Supplemental Information concerning the Reinvestigation on the Anti-dumping and
Countervailing Measures Imposed on the Broiler Products Originating in the United States (20 May 2014) of
Beijing Huadu, Shandong Chunxue, Shandong Minhe, and Da Chan Wanda, (Exhibits CHN-4 through CHN-7
(translated versions)).
459 United States' comments on China's response to Panel question No. 11, para. 24.

submitter, a n investigating official , there is no signature by a MOFCOM official in the requisite
signature line acknowledging receipt.460
7.299. While the United States notes that the receipt is not signed by an official of the trade
remedy public information room, the United States does not assert that the receipt was not issued
by MOFCOM's trade remedy public information room . It is not clear to us that an internal
acknowledgement issued by the "Reading Room for Public Information on Trade Reme dy" of
MOFCOM's "Trade Remedy and Investigation Bureau" loses its probative value merely because it is
not signed at the appropriate place by a responsible official. The United States further argues that
there is a distinction between an acknowledgement of receipt of the non -confidential summaries
and a confirmation that these summaries were made available. We agree. But this might well be a
formal distinction without a material difference in this case. We note, for example, that:
a. the English translation version of the redetermination provided by China refers to all
non-confidential information being "released to" MOFCOM's trade remedy public
information room during the reinvestigation461;
b. the same passages in the English translation of the redetermination submitted by the
United States refer to non-confidential information being "delivered to" the trade remedy
public information room462; and
c. both translations state that non -confidential information was "released" or "delivered" in
accordance with domestic rules on non -confidential information, information acc ess and
disclosure, so that all interested parties were able to "search for [look up], read, extract
and [photo-] copy" non-confidential information.463
In this context, in our view the references to "release", "delivery" or "receipt" refer to the making
available of non-confidential information in MOFCOM's trade remedy public information room .464
On balance, we therefore find that the acknowledgement issued by the trade remedy
public information room, understood in the light of the redetermination, supports the conclusion
that MOFCOM made the non -confidential summaries available in its trade remed y
public information room on 20 May 2014, thus giving US interested parties opportunities to see the
information at issue.465
7.300. We now turn to the second issue, whether MOFCOM provided these opportunities in a
timely fashion. T he non -confidential summaries of the pricing data were made available on
20 May 2014. The final injury disclosure was made on 21 May 2014, and a deadline for comments
of ten days was established. 466 The redetermination was issued on 8 July 2014, taking effect on
9 July 2014.467
7.301. The United States emphasizes MOFCOM's obligation pursuant to Articles 6.4 and 12.3 to
provide "timely" opportunities to see the information at issue, and asserts that MOFCOM failed to
do so. 468 The US position is largely predicated on its view that MOFCOM did not make the
non-confidential summaries available at all, and we have found otherwise . As a consequence of
our decision, any alleged lack of timeliness cannot be simply a con sequence of failing to make the
information available, but must be assessed on its own merits.
7.302. The United States also argues that:

460 United States' comments on China's response to Panel question No. 11, para. 24.
461 Redetermination, (Exhibit CHN-1 (translated version)), pp. 9 and 13.
462 Redetermination, (Exhibit USA-9 (translated version)), pp. 7 and 12.
463 Redetermination, (Exhibit CHN-1 (translated version)), pp. 9 and 13; and Exhibit USA-9 (translated
version), pp. 7 and 12.
464 We note in this regard that to do otherwise might imply a lack of good faith in MOFCOM's actions,
which we consider without any foundation and inappropriate in the circumstances of this case.
465 Contrary to the US assertion, MOFCOM was not required under Articles 6.4 and 12.3 to notify US
interested parties that the non-confidential summaries had been made available. (See para. 7.277 above).
466 Letter from MOFCOM dated 21 May 2014 on disclosure of the determination regarding injury,
(Exhibit USA-8 (translated version)), p. 1.
467 Redetermination, (Exhibit CHN-1 (translated version)), pp. 1 and 3.
468 United States' second written submission, paras. 54, 55, and 59; response to Panel question
No. 6(a), para. 20. See also response to Panel question No 9, paras. 34-35.

[E]ven if U.S. interested parties happened upon the summaries [on 20 May 2014] …
they still would not have an opportunity to make timely pre sentations based on these
summaries before MOFCOM issued its [final injury disclosure] – a report which is
essentially equivalent to a draft opinion.469
[R]egardless of whether or not MOFCOM actually released information to this public
reading room [the fac t that this would have been] the day before it issued the [final
injury disclosure] … hardly reflects a timely effort by China to enable interested
parties to review information relevant to the presentation of their cases – as required
by AD Agreement Article 6.4 and SCM Agreement 12.3.470
MOFCOM did not give notice to the US interested parties, as required by Articles 6.4 and 12.3 .471
Without notice, and thus knowledge of the existence of the non -confidential summaries in
MOFCOM's trade remedy public informati on room, US interested parties did not have a "timely"
opportunity to see the information.472 Moreover, the opportunities to see the information were not
"timely" because the non -confidential summaries were made available only one day before the
injury disclosure was issued.473 Thus, US interested parties did not " have an opportunity to make
timely presentations based on these summaries before MOFCOM issued its [injury disclosure] – a
report which is essentially equivalent to a draft opinion".474
7.303. We understand the US position to be that the pricing information at issue here was made
available too late before the issuance of the injury disclosure to be considered "timely". The
United States does not, however, explain how the issuance of the final injury disclosure limited the
opportunity of the US interested parties to see the information and prepare submissions based on
it in time to prepare and submit submissions commenting on the final in jury disclosure. Nor has
the United States demonstrated that the 10 day period for comments on the injury disclosure was
not sufficient to allow US interested parties to see the pricing information in MOFCOM's trade
remedy public information room and prepa re presentations based on it, to be submitted as
comments on the injury disclosure. Timeliness in this context depends on whether interested
parties can defend their interests, in particular by preparing (and submitting) presentations based
on the information at issue.475 This must be assessed on a case -by-case basis.476 In this instance
the United States has not demonstrated on the basis of the specific circumstances of the case, that
the US interested parties did not have timely opportunities to see the infor mation because the
non-confidential summaries were only made available on 20 May 2014. In particular, by focusing
its arguments on the assertion that there was " no opportunity whatsoever" to see the
information477, the United States has not demonstrated that in the circumstances of this case the
US interested parties were unable to prepare presentations because they lacked "timely"
opportunities to see the non-confidential summaries.478

469 United States' response to Panel question No. 6(b)(i), para. 23.
470 United States' response to Panel question No. 9, para. 35 (internal quotations and fn omitted).
Similarly, but in the context of Article 6.1 of the Anti-Dumping Agreement and Article 12.1 of the
SCM Agreement, United States' second written submission, paras. 25, 33, and 48.
471 United States' second written submission, paras. 55 and 59; responses to Panel question No. 6(a),
para. 19, No. 6(b)(i), paras. 22-23, and No. 10, paras. 36-37.
472 United States' second written submission, para. 55; responses to Panel question No. 6(a), para. 20,
and No. 9, para. 35.
473 United States' responses to Panel question No. 6(a), paras. 18 and 20, and No. 9, para. 35.
474 United States' response to Panel question No. 6(b)(i), para. 23 (emphasis added). We note that the
United States does not even assert, unlike in the context of its claim under Article 6.1 of the
Anti-Dumping Agreement and Article 12.1 of the SCM Agreement, that the period for comments following the
injury disclosure was not enough to provide "timely" opportunities to see the information (and to prepare
presentations on this basis).
475 Such presentations "are the principal mechanisms through which an [interested party] can defend its
interests". (Appellate Body Report, EC – Tube or Pipe Fittings, para. 149).
476 Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China), para. 5.122. This case also
relates to a situation in which the opportunities to see the information were provided towards the end of the
investigation when the final disclosure was made.
477 United States' response to Panel question No. 9, para. 34. (emphasis added)
478 Moreover, the United States makes certain arguments in relation to the conduct of a hearing that
allegedly impaired the US interested parties' ability to make presentations. None of these arguments are,
however, relevant for the issue of the timeliness of the opportunity to see information provided through the
making available of the non-confidential summaries on 20 May 2014.

7.304. In respect of the non -confidential summaries, the United States has thus failed to
demonstrate that MOFCOM did not provide timely opportunities to see the information and to
prepare presentations based on it with in the meaning of Articles 6.4 of the
Anti-Dumping Agreement and 12.3 of the SCM Agreement.
7.7.4.2.1.3 The identities of the Chinese producers
7.305. The United States claims that MOFCOM did not provide timely opportunities to see the
identities of the Chinese producers from whom MOFCOM required pricing information.
7.306. Each non -confidential summary provided by the Chinese producers indica ted the name,
and thus the precise identity , of the respective responding producer. 479 Above, we found that
MOFCOM made available the non -confidential summaries on 20 May 2014 and that the
United States has not established that MOFCOM failed to provide timel y opportunities to see these
summaries and prepare presentations. Consequently, the same analysis and conclusions apply to
the identities of the Chinese producers that were included in those non-confidential summaries.480
7.307. We therefore find that the United States has not established its claim under Articles 6.4 of
the Anti-Dumping Agreement and 12.3 of the SCM Agreement in respect of the identities of the
Chinese producers.
7.7.4.2.1.4 Requests for information
7.308. The United States argues that MOFCOM acted inconsiste ntly with Articles 6.4 and 12.3
because it did not provide timely opportunities for US interested parties to see the questions or
requests for information that MOFCOM put to the Chinese producers in order to require additional
pricing data. China argues that MOFCOM did not issue any questionnaires to the Chinese producers
which MOFCOM could have provided interested parties an opportunity to see.
7.309. There is no disagreement between the parties that MOFCOM did request additional
information from the Chinese producers in some way, even if not through formal questionnaires or
other written requests. Moreover, it is undisputed that MOFCOM did not provide any opportunities
for US interested parties to view the requests for information it put to the Chinese producers, in
whatever form.
7.310. The first question we must address is whether MOFCOM's requests for additional
information, in whatever form, to the four Ch inese companies constitute "information" within the
meaning of Articles 6.4 and 12.3. This is the first time a panel has been called upon to consider
whether requests for information, in whatever form, fall within the scope of the term "information"
in Art icles 6.4 and 12.3. Nothing in these provisions or jurisprudence 481 suggests that
"information" in Articles 6.4 and 12.3 refers solely to information in the form of evidence or data
that is submitted to or obtaine d by an investigating authority. We see no re ason to exclude,
a priori, requests for information from the scope of "information" within the meaning of Articles 6.4
and 12.3.
7.311. China also argues that there is no obligation under Articles 6.4 and 12.3 to reduce into
writing oral questions or requests of information and to make them available in that form to all
other interested parties. 482 This is true. However, the "information" in respect of which the
investigating authority has to provide timely opportunities to see is not further qualified in respect
of its form; indeed, it "may take various forms …". 483 Nothing in Articles 6.4 and 12. 3 limits the

479 Post-Verification Supplemental Information concerning the Reinvestigation on the Anti-dumping and
Countervailing Measures Imposed on the Broiler Products Originating in the United States (20 May 2014) of
Beijing Huadu, Shandong Chunxue, Shandong Minhe, and Da Chan Wanda, (Exhibits CHN-4 through CHN-7
(translated versions)), each on pp. 1-2.
480 Our conclusion assumes that the identities of the responding Chinese producers are relevant to the
presentation of the US interested parties' cases and used by the authorities, but we express no views as to
whether this assumption is, in fact, justified.
481 The Appellate Body refers to information "including data submitted by the interested parties".
(Appellate Body Report, EC – Fasteners (China), para. 480).
482 China's comments on United States' response to Panel question No. 8, para. 18.
483 Appellate Body Report, EC – Fasteners (China), para. 480.

information at issue to written information. Context is helpful in this respect: the text in
Articles 6 and 12 is sp ecific when the obligation concerns informati on or evidence in a particular
form. For example, Article 6.1 refers to an opportunity to "present in writing all evidence",
Article 6.1.2 to "evidence presented in writing" , and Article 6.2 to an opportunity, upon
justification, to "present other informat ion orally". In this light, the obligation in
Articles 6.4 and 12.3 relates to any type of information, whether or not it is in writing, including
oral requests for information. In fact, it would undermine the due process protection afforded by
the obligation to provide timely opportunities to see information if an investigating authority could
avoid giving such opportunities simply by avoiding putting the information at issue into writing.
Thus, the term "information" in Articles 6.4 and 12.3, includ es requests for information, even if
made orally.
7.312. We recall that there are three limitations on the kinds of information subject to the
requirements of Articles 6.4 and 12.3 , and these limitations are cumulative. We now turn to the
third of these 484: whether the requests for information at issue here, whatever their form,
constitute information that was "used" by MOFCOM. The United States contends that the requests
were "used" because they were "applied by MOFCOM to generate new injury findings" 485 and
because they "constituted a 'required step in the anti -dumping investigation'", in line with the
findings of the Appellate Body in EC – Tube or Pipe Fittings.486 In response to the Panel's oral
questions at the substantive meeting, the United States argued that the requests were "used"
because
a. they were "critical to how MOFCOM reached its ultimate finding";
b. they were " how MOFCOM got the information that it claims is so critical to its injury
analysis";
c. "MOFCOM had to deliver [them] to a party to obtain something"; and
d. they "serve[d] a function", here to obtain more information.
7.313. China argues that:
a. the US position would mean that "any action taken by an authority as part of its conduct
in an investigation could be construed as 'related' to a 'required step' in an antidumping
(or countervailing duty) investigation". This interpretation would result in an
administrative burden that is "impossible to administer"; and
b. the Appellate Body's findings in EC – Tube or Pipe Fittings specifically concern the
characterization of data as "information" that is "used" by an investigating authority, not
an (oral) request for information.487
7.314. We recall our finding at paragraph 7.286 above that the term "used" within the meaning of
Articles 6.4 and 12.3 is not limited to information in the nature of data, facts or other evidence
relating to issues which the investigating authority is required to consider, or which it does, in fact,
consider in the course of an anti-dumping or countervailing duty investigation. We further note our
finding in paragraph 7.311 that oral requests for information constitute "information" for the
purposes of Articles 6.4 and 12.3. There is no dispute in this case that MOFCOM made, in some
form, requests for information to four Chinese producers, that it received pricing data in response
to those request s, and that it took that data into consideration in making findings on price
undercutting in the redetermination. We make the following observations:
a. our finding in the original report under Article 3.2 of the Anti -Dumping Agreement
related to the composition and comparability of product baskets;

484 There is no dispute between the parties as to relevance; we deal with the confidentiality issue below.
485 We note in fact that the information requests were used to generate additional data, which in turn
were used in considering the issue of injury.
486 United States' response to Panel question No. 8, paras. 30-31.
487 China's comments on United States' response to Panel question No. 8, para. 18.

b. in seeking to address this finding in the reinvestigation MOFCOM collected and evaluated
pricing data for various broiler product models. The reinvestigation thus did not directly
pertain to the comp osition and comparability of the product baskets whose prices
MOFCOM then compared; and
c. the requests for information to Chinese producers link the pricing information to the
issue of composition and comparability of product baskets addressed in our origina l
finding. Thus, in the specific circumstance of this case, those requests for information
constitute background and context for understanding and evaluating the pricing data
submitted by the producers in light of the issue to be addressed.
We therefore co nsider that , in the facts of this case, the requests for information constituted
information used by MOFCOM in the sense of Articles 6.4 and 12.3, in the reinvestigation.
7.315. In view of the above, we find that China acted inconsistently with Articles 6.4 of th e
Anti-Dumping Agreement and 12.3 of the SCM Agreement because MOFCOM failed to provide
timely opportunities for the US interested parties to see the requests for information issued to the
Chinese producers.
7.7.4.2.1.5 Additional "context" regarding the data in the n on-confidential summaries
and aggregate data
7.316. The United States claims that MOFCOM did not provide opportunities to see the
"context"488 of the pricing information in the non -confidential summaries, including "the specific
products for whi ch pricing was reque sted, whether the pricing was requested and/or reported on
the basis of one sale, quarterly sales, annual sales, or sampled invoices; and what quantity of each
producer's sales, or of the domestic industry 's sales, were represented by the pricing sample". 489
The United States also claims that MOFCOM did not provide opportunities to see "aggregate data
reflecting the information received from the four [Chinese] producers".490
7.317. The United States did not demonstrate that these items of "context" themselves constitute
"information" that was "relevant", "non -confidential" and "used" within the meaning of
Articles 6.4 and 12.3. Thus, there is no basis for us to find that MOFCOM was required to provide
timely opportunities to interested parties to see these item s of "context". Moreover, the thrust of
the US argument is that "the content of these summaries omitted certain critical relevant
information that does not, on its face, appear to be data that is 'by nature confidential'". 491 The
United States has not, howev er, demonstrated in what way certain non -confidential information
"was withheld" from the non -confidential summaries.492 There is no evidence before us to suggest
that the non-confidential summaries were in fact incomplete. To the extent that the United States
takes issue with the confidential treatment of certain information as such, this would fall within the
scope of a claim under Article 6.5 of the Anti -Dumping Agreement and Article 12.4 of the
SCM Agreement, which the United States has not made, not within a claim under
Articles 6.4 and 12.3.
7.318. With respect to "aggregate data reflecting the information received from the four [Chinese]
producers", there is also no evidence that MOFCOM had, in addition to t he pricing information
itself, non-confidential aggr egate information that it used but in respect of which it failed to
provide timely opportunities to see. Indeed, the formulation of the US argument suggests that the
United States might have preferred that the pricing information from the four producers were
provided in a non -confidential aggregate form and made available to interested parties to see.
Articles 6.4 and 12.3 do not, however, establish any right to see the "informatio n" recast in a
different manner or to see additional, "contextual" details that go beyond the "information" at
issue.

488 United States' second written submission, para. 57.
489 United States' response to Panel question No. 6(b)(i), para. 23.
490 United States' responses to Panel question No. 6(b)(i), paras. 21 and 23, and No. 6(b)(ii), para. 25.
491 United States' response to Panel question No. 6(b)(i), para. 23.
492 United States' response to Panel question No. 6(b)(i), para. 21.

7.319. In the light of the foregoing, the United States has not established its claim under
Articles 6.4 of the Anti -Dumping Agreement and 12.3 of the SCM Agreement in respect of the
additional "context" regarding the data in the non-confidential summaries and aggregate data.
7.7.4.2.1.6 Information in respect of "sampling"
7.320. The United States claims that MOFCOM did not disclose the basis for selecting the Chin ese
producers in the "sample" from which additional pricing data was sought, and the methodology for
collecting pricing data from them, contrary to the requirements of Articles 6.4 and 12.3.
7.321. The basis for selecting Chinese producers from whom additional pr icing data was sought
and the methodology for collecting pricing data both are aspects of MOFCOM's methodology in its
investigation and consideration of price effects. Articles 6.4 and 12.3 do not, however, apply to the
methodology used by or determination s of the investigating authority and do not require
investigating authorities to provide opportunities for interested parties to "see" such methodologies
or determinations.493
7.322. We find therefore that the United States has not established its claim under Articles 6.4 of
the Anti-Dumping Agreement and 12.3 of the SCM Agreement in respect of the basis for selecting
Chinese producers in the sample and the methodology for collecting pricing data from them.
7.7.4.2.2 Opportunities to prepare presentations
7.323. The United States argues that MOFCOM failed to provide US interested parties timely
opportunities to prepare presentations, as required by the second obligation set forth in
Articles 6.4 and 12.3.
7.324. Above, we found that China acted inconsistently with Articles 6.4 and 12.3 because
MOFCOM failed to provide timely opportunities for the US interested parties to see the requests for
information issued to the Chinese producers. As a consequence, MOFCOM also failed to provide
timely opportunities for the US i nterested parties to prepare presentations on the basis of this
information, that is, the information requests.
7.325. We therefore find that China also acted inconsistently with Articles 6.4 of the
Anti-Dumping Agreement and 12.3 of the SCM Agreement because it did not provide timely
opportunities to prepare presentations.
7.7.4.2.3 Issues related to the non-confidential treatment of information
7.326. The United States included a reference to Article 6.5 of the Anti -Dumping Agreement and
Article 12.4 of the SCM Agreement in its panel request. In its first written submission, the
United States invoked a breach of Article 6.5 of the Anti -Dumping Agreement and Article 12.4 of
the SCM Agreement as an alternative claim to its principal claim under Article 6.1.2 of the
Anti-Dumping Agreement and Article 12.1.2 of the SCM Agreement, which we ruled to fall outside
of the Panel's terms of reference. 494 We do not understand the United States to be advancing an
independent claim of violation under Article 6.5 of the Anti-Dumping Agreement and Article 12.4 of
the SCM Agreement 495; indeed, the United States has not demonstrated that MOFCOM acted
inconsistently with the requirements set forth in those provisions.496
7.327. To the extent that Articles 6.4 and 12.3 refer, through the reference to non-confidential
information as defined by paragraph 5 and 4 respectively, to Article 6.5 of the
Anti-Dumping Agreement and Article 12.4 of the SCM Agreement, the United States argues that
certain information was "withheld" or "omitted", although not "by n ature confidential" consistent
with Article 6.5 of the Anti -Dumping Agreement and Article 12.4 of the SCM Agreement. 497
Whether or not this information was properly treated as confidential is not a question within the

493 Panel Report, EU – Footwear (China), paras. 7.618 and 7.631.
494 United States' first written submission, fn 75.
495 United States' response to Panel question No. 6(b)(ii), paras. 26-27.
496 United States' response to Panel question No. 6(b)(ii), paras. 26-27.
497 United States' response to Panel question No. 6(b)(i), paras. 21 and 23.

scope of our jurisdiction in this procee ding. In any event, as discussed above, this information is
not "information" that was "used" by MOFCOM.498
7.7.5 Conclusion
7.328. In respect of the requests for information made by MOFCOM to the Chinese producers, the
United States has established that MOFCOM did not p rovide timely opportunities for the
US interested parties to see this information and to prepare presentations on the basis of it. We
therefore find that China acted inconsistently with the two obligations set forth in each of
Articles 6.4 of the Anti-Dumping Agreement and 12.3 of the SCM Agreement.
7.8 Article 6.8 of the Anti -Dumping Agreement and paragraphs 3 and 5 of Annex II:
facts available
7.8.1 Introduction
7.329. In our original report, we found that MOFCOM had acted inconsistently with the second
sentence of Article 2.2.1.1 of the Anti -Dumping Agreement in allocating costs for purposes of
constructing normal value in respect of Tyson. In the reinvestigation, MOFCOM again constructed
Tyson's normal value under Article 2.2 of the Anti -Dumping Agreement; MOFCOM rejected Tyson's
reported cost data (including its calculations) and used what it described as "facts available".
7.330. This claim concerns whether MOFCOM acted in accordance with Article 6.8 and
paragraphs 3 and 5 of Annex II of the Anti -Dumping Agreement when it rejected Tyson's reported
cost data and used facts available. The cost data at issue relate to the "raw material" cost incurred
in raising a broiler up to split -off ("meat cost") and the processing cost incurred after split -off
("processing cost").
7.8.2 Factual background
7.331. In the original investigation:
a. Tyson provided, through several submissions, data for meat and processing costs to
MOFCOM.
b. Tyson reported both sets of cost data by chicken "part", such as wing tips, leg quarters,
etc. The processing costs were not broken down by processing step.
c. The data Tyson reported for meat costs included processing costs incurred before the
final stage in the production process.
7.332. In the reinvestigation:
a. MOFCOM requested Tyson to report meat and processing costs at the produ ct brand
code level, rather than at the part level. 499 MOFCOM required Tyson to provide these
cost data for each of the more than 1,000 product brand codes ("models") it
produced.500 MOFCOM also requested Tyson to report processing costs broken down by
processing step.501
b. Tyson did not have actual cost data for meat and processing costs separated by model
and processing step in its accounting records. Therefore, it generated the requested data
according to the parameters set by MOFCOM, using the data available in its accounting
system (the "aggregate total costs" incur red and the "standard costs"). 502 The standard
costs reflect Tyson's expectation as to costs incurred at each particular production step
and were used to derive allocation percentages to distinguish meat and processing costs.

498 See paras. 7.317-7.319 above.
499 United States' second written submission, para. 135. MOFCOM initially only requested data on
processing costs. Tyson also provided data on meat costs and MOFCOM in the following also requested data on
meat costs.
500 United States' first written submission, para. 121.
501 United States' second written submission, para. 139.
502 United States' first written submission, paras. 110-111; second written submission, para. 132.

Tyson disaggregated the availabl e actual aggregate cost data using the alloc ation
percentages derived from standard cost to determine meat and processing costs at each
production step. On this basis, Tyson reported data for meat an d processing costs for
each production step.
c. Tyson's reported data changed in some aspects in the course of the reinvestigation and
it differed in some aspects from the data that it had provided in the original
investigation.
d. In the course of several itera tions of questionnaires and supplemental questionnaires,
MOFCOM requested Tyson to provide the "actual pure" meat and processing costs and to
provide clarification regarding the meat and processing costs it had provided during the
original investigation. In response, Tyson provided data and explanations.
e. In the redetermination, MOFCOM rejected Tyson's reported meat and processing cost
data in its entirety. MOFCOM found that the reported data, generated by applying the
methodology developed by Tyson using the data available in its accounting records, were
not the meat and processing costs actually incurred:
[Tyson] only submitted the meat cost and processing cost, calculated by
ratio method (calculating the relevant proportion based on the data from
the stand ard cost system), of each product model. The meat cost and
processing cost of each model of the product concerned calculated by this
method are not the actual pure meat cost and processing cost of each
model of the product concerned. … Therefore, the Inves tigating Authority
decides not to accept using the ratio method claimed by the Company to
calculate the meat cost and processing cost of each model of the product
concerned, nor to accept the meat cost and processing cost data of each
model of the product concerned calculated by the ratio method.503
7.8.3 Main arguments of the parties
7.8.3.1 United States
7.333. MOFCOM violated Article 6.8 and paragraphs 3 and 5 of Annex II when it rejected the cost
data reported by Tyson and used facts available. MOFCOM did not, contrary to the requirements of
paragraph 3 of Annex II, establish that the information provided by Tyson was either not
verifiable, not appropriately submitted so that it could be used in the investigation without undue
difficulties, or not supplied in a timely fashion. 504 MOFCOM justified the rejection of Tyson's
reported data without even considering, much less deciding , whether it could be used consistently
with the criteria set out in paragraph 3 of Annex II, in particular in respect of the verifiability of the
data. The reasons MOFCOM gave for rejecting Tyson's data were also factually incorrect and did
not speak to the verifiability of the data.505 In particular, MOFCOM:
a. incorrectly considered that the cost data reported by Tyson in the reinvestigation did not
tie to th e cost data reported in the original investigation. 506 Tyson had explained to
MOFCOM that accounting for 20 product models for which data had not been provided
during the original investigation resolved the data inconsistency;
b. wrongly found that Tyson had pr ovided the reported costs for only "some" product
models.507 Tyson had reported cost data for all of the more than 1,000 product models,
but had submitted detailed information for three representative models;
c. erroneously determined that Tyson had not provide d the actual meat and processing
costs as requested508;

503 Redetermination, (Exhibit CHN-1 (translated version)), p. 43. (emphasis added)
504 United States' first written submission, paras. 114-118. See also response to Panel question No. 42,
paras. 79-88.
505 United States' first written submission, para. 119.
507 United States' first written submission, para. 121.
508 United States' first written submission, para. 123; second written submission, paras. 132 and 142.

d. wrongly faulted Tyson for basing its reported cost data on only part of the POI. 509 Tyson
had calculated the allocation ratios using standard costs for the first half of 2009, rather
than for the entire P OI, because only those costs were available in its records for the
POI. Standard c osts for the second half of 2008 were no longer available as they had
been purged from Tyson 's systems in the ordinary course of business after 118 weeks;
and
e. wrongly faulted Tyson for failing to support the data it reported.510
7.334. In response to China's arguments, the United States maintains:
a. China misconstrues the "best of its ability" standard in paragraph 5 of Annex II. 511
Moreover, Tyson did act to the best of its ability. 512 Cost data according to MOFCOM's
specifications were not available to Tyson. Tyson generated the requested cost data
based on a reasonable methodology using the information available in its records. In this
way, Tyson derived from the information in its records cost data corresponding as closely
as possible to the form requested.
b. Inconsistencies in the cost data reported in the original investigation and in the
reinvestigation were due to changes to the reporting methodology. In particular, costs
were not reported by part in the reinvestigation but by model and processing step. Also,
they we re reported as values specifically constructed for this purpose and they were
subject to revisions/corrections made in accordance with MOFCOM's request. 513 China
cannot rely on changes to information submitted in the original investigation to reject
data reported during the reinvestigation.514
c. Tyson did not misreport data in the original investigation. In the original investigation,
Tyson reported its cost data as they were recorded in its cost accounting system in the
ordinary course of business and explained that cost accounting system, all of which was
also subject to verification, to MOFCOM.515
7.8.3.2 China
7.335. Article 6.8 and paragraph 5 of Annex II require an interested party to "act to the very best
of its ability".516 An investigating authority does not need to "accept information that 'may not be
ideal in all respects' unless the party submitting that information has been acting 'to the best of its
ability'".517 Even if an interested party acts to the very best of its ability, the investigating
authority can nevertheless resort to facts available if the requested information is not provided. 518
MOFCOM was entitled to reject Tyson's reported meat and processing cost data and resort to facts
available because Tyson failed to act to the (very) best of its ability519:
In respect of the original investigation:
a. Tyson misreported cost data by including certain processing cost elements in the
reported meat costs520 and by failing to report certain cost data at all (the cost data for
20 product models521 and the cost data for "some product codes" of chicken feet522).

510 United States' first written submission, para. 125.
511 United States' second written submission, para. 129; comments on China's responses to Panel
512 United States' second written submission, paras. 130, 132, 135, and 145.
513 United States' second written submission, paras. 131, 143, and 144.
514 United States' second written submission, para. 144.
515 United States' second written submission, paras. 136-138.
516 China's second written submission, paras. 221, 223, and 224. (emphasis added)
517 China's first written submission, para. 196 (emphasis original); see also second written submission,
para. 223; and responses to Panel question No. 36(a), paras. 133-134, and No. 36(b), paras. 135-136.
518 China's second written submission, paras. 229 and 235.
519 China's first written submission, paras. 195, 209, and 240; second written submission, paras. 221
and 250; and response to Panel question No. 36(b), paras. 137 and 141.
520 China's first written submission, paras. 205-206; second written submission, para. 240.
521 China's first written submission, paras. 206 and 233.
522 China's first written submission, para. 228.

b. Tyson did not disclose the alleged misreporting of that data during the original
investigation.523
c. Tyson provided inconsistent data over the course of the original investigation.524
In respect of the reinvestigation:
a. Tyson never provided the "actual pure" meat and processing costs that MOFCOM had
requested.525 Tyson could have provided the requested data; at least it did not ex plain,
or explained too late, what its accounting records could provide.526
b. Tyson failed to provide timely and sufficient explanation and cl arification in respect of
the reported data.527
c. Tyson did not report cost data on the basis of the full POI. 528 Even assuming that Tyson
did not have data for the entire period, the reported meat cost data were distorted and
Tyson did not address MOFCOM's concerns raised in the disclosure.
d. Tyson provided inconsistent data.529
e. Tyson provided negative processing costs for "some i ndividual models". 530 Tyson
provided a satisfactory explanation to o late, in its response to the second supplemental
questionnaire.531
f. Regarding "some product codes" of chicken feet, Tyson failed to provide cost data at all
or failed to provide sufficient explanation in a timely manner.532
7.8.4 Main arguments of third parties
7.336. The European Union argues that t he instrument of facts available does not serve to punish
non-cooperating interested parties but to overcome lacunae which arise from the absence of
useable data.533 Even if a respondent cooperates to the best of its ability, this does not necessarily
preclude the use of facts available to replace missing or defective necessary information. To the
extent that information is not missing, for instance because the respon dent has provided partial
information, it cannot be replaced.534 But the obligation to take into account non-ideal data applies
only in case of a fully cooperating respondent acting to the best of its ability. And even in case of a
fully cooperating respondent, the data it submits must only be used insofar as it meets the criteria
in paragraph 3 of Annex II. Where an investigating authority wants to disregard data as
"unreliable" pursuant to paragraph 3, the burden of substantiating its unreliability falls on the
investigating authority.535

523 China's first written submission, paras. 205 and 233; comments on United States' response to Panel
question No. 42, para. 70.
524 China's first written submission, paras. 218-219.
525 China's first written submission, paras. 207 and 217; response to Panel question No. 36(b),
para. 140.
526 China's second written submission, para. 246; responses to Panel question No. 36(b), para. 139,
and No. 40, paras. 154 and 156; and comments on United States' response to Panel question No. 42,
paras. 66 and 71.
527 China's first written submission, paras. 234-237; response to Panel question No. 36(b), para. 140.
528 China's first written submission, para. 238.
529 China's first written submission, paras. 218-219 and 233.
530 China's first written submission, paras. 224-227.
531 China's first written submission, para. 227.
532 China's first written submission, para. 228.
533 European Union's third-party statement, para. 11.
534 European Union's third-party statement, para. 12.
535 European Union's third-party statement, para. 13.

7.8.5 Evaluation
7.8.5.1 The law
7.337. 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.536
7.338. The first sentence of paragraph 3 of Annex II of the Anti-Dumping Agreement provides:
All information which is verifiable, which is ap propriately submitted so that it can be
used in the investigation without undue difficulties, which is supplied in a timely
fashion, and, where applicable, which is supplied in a medium or computer language
requested by the authorities, should be taken int o account when determinations are
made.
7.339. Paragraph 5 of Annex II of the Anti-Dumping Agreement provides:
Even though the information provided may not be ideal in all respects, this should not
justify the authorities from disregarding it, provided the intere sted party has acted to
the best of its ability.
7.340. The first sentence of Article 6.8 establishes a closed list of circumstances involving the
unavailability of information in which an investigating authority is permitted to use facts available.
The second se ntence of Article 6.8 sets out the relationship between Article 6.8 and Annex II. It
mandates that Annex II must be "observed" in the application of "this paragraph".537 Paragraphs 3
and 5 of Annex II address the situation in which an interested party has pr ovided necessary
information, but the investigating authority may not be entirely satisfied.
7.341. Paragraph 3 provides that all submitted information that satisfies the criteria set out in
that paragraph must be taken into account when determinations are made. The investigating
authority must consider every element of information submitted in accordance with the criteria of
paragraph 3.538 Where information meets the requirements of paragraph 3 such that an
investigating authority must take it into account, the in vestigating authority may not conclude
that, in respect of that information, necessary information has not been provided within the
meaning of Article 6.8. The investigating authority is therefore not entitled to reject that
information and use facts available instead.539
7.342. Paragraph 3 sets out the specific criteria that an investigating authority must apply before
rejecting information submitted to it and relying on facts available instead. To the extent the
investigating authority is not satisfied with submit ted information, it must consider whether those
elements of information satisfy the criteria of paragraph 3.540
a. The information must be verifiable. Information is verifiable when the accuracy and
reliability of the information can be assessed by an objective process of examination.541
This process may be through on-the-spot verification, further requests for information or
other means.542

536 Emphasis added.
537 Even though Annex II is largely phrased in hortatory language, it is settled that the provisions of
Annex II are mandatory. (Panel Report, US – Steel Plate, para. 7.56).
538 Panel Report, US – Steel Plate, para. 7.57.
539 Appellate Body Report, US – Hot-Rolled Steel, para. 81; Panel Report, EC – Salmon (Norway),
para. 7.355.
540 Panel Report, US – Steel Plate, paras. 7.58, 7.61, and 7.62.
542 Panel Reports, US – Steel Plate, para. 7.71; EC – Salmon (Norway), paras. 7.358-7.360.

b. The information must be " appropriately submitted so that it can be used in the
investigation without undue difficulties". There is no particular circumstance or situation
in which this criterion will be satisfied; rather, the investigating authority must explain
the basis for its conclusion that information, which meets the other criteria of
paragraph 3, cannot be used in the investigation without undue difficulties.543
c. The information must be supplied in a timely fashion, that is, submitted within a
reasonable period of time.544
7.343. Because every element of information that satisfies the criteria of paragraph 3 must be
taken into account, an investigating authority is not entitled to reject all information submitted and
apply facts available, when only individual elements of that information fail to satisfy the criteria of
paragraph 3. 545 An investigating authority must, at a minimum, expla in in what way the
information that it is rejecting does not meet the requirements of paragraph 3.
7.344. Paragraph 5 , in turn, requires that an investigating authority may not disregard
information that is less than ideal where the interested party submitting th e information has acted
to the "best of its ability". In this sense, it is supplemental to paragraph 3 and not an exception to
it; information that satisfies the requirements of paragraph 3, even if not perfect, may not be
disregarded.546 The investigating a uthority must, in the first instance, use all the information
provided by an interested party that acted to the "best of its ability", even if the information is less
than perfect.547
7.345. Thus, paragraphs 3 and 5 require an investigating authority to take into account and not
disregard the information submitted by an interested party that meets the conditions set out in
those paragraphs.
7.8.5.2 Analysis
7.346. As we understand it, the principal claim of the United States is that in using facts available
in respect of a constructed cost of production for Tyson, MOFCOM acted inconsistently with
Article 6.8 and paragraph 3 of Annex II.548
7.347. The United States argues that MOFCOM did not demonstrate that Tyson's reported data did
not meet the criteria of paragrap h 3, and in particular that the data were not verifiable. 549
MOFCOM:
a. incorrectly considered that the cost data reported by Tyson in the reinvestigation did not
tie to the cost data reported in the original investigation;
b. wrongly found that Tyson had provided the reported costs for only "some" product
models;
c. erroneously determined that Tyson had not provided actual meat and processing costs
as requested;
d. wrongly faulted Tyson for basing its reported cost data on only part of the POI; and
e. wrongly faulted Tyson for failing to support the data it reported.

543 Panel Reports, US – Steel Plate, paras. 7.72 and 7.74 (emphasis added); EC – Salmon (Norway),
para. 7.364.
544 Appellate Body Report, US – Hot-Rolled Steel, para. 84; Panel Reports, US – Steel Plate, para. 7.76;
EC – Salmon (Norway), para. 7.369. The final criterion of paragraph 3, that the information must be supplied
in a medium or computer language requested by the authorities, is not of relevance in this proceeding.
545 Panel Report, US – Steel Plate, para. 7.75; but see ibid. paras. 7.59-7.60.
546 Panel Report, US – Steel Plate, para. 7.65.
547 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 288.
548 United States' first written submission, paras. 114-126.
549 United States' first written submission, paras. 115-118. There is no disagreement between the
parties as to the legal standard that applies to establish that information is or is not "verifiable".

With reference to the reinvestigation's questionnaires and questionnaire responses, the
United States also argues that MOFCOM "did not meaningfully engage with the data" Tyson did
provide and did not take into account what Tyson could provide.550 MOFCOM merely continued to
insist that Tyson did not provide separate "pure" meat and processing costs; it did not take any
steps to verify Tyson's reported data; it did not provide any, and much less an adequate,
explanation that would justify the rejection of the data. 551 While the US argument has elements
pertaining to both paragraphs 3 and 5 – what Tyson did and what it could provide – we understand
the core of the US argument to be that MOFCOM failed:
a. to consider whether the information satisfied the criteria of paragraph 3; and
b. to explain in what way the i nformation it rejected failed to satisfy the requirements of
paragraph 3.
7.348. On its face, the redetermination supports the US argument. MOFCOM, we recall, rejected
Tyson's reported data because, in its view, Tyson had failed to provide "actual pure" meat and
processing cost data.552 But nowhere in the redetermination does MOFCOM explain in what way it
"observed", as required by Article 6.8, the criteria set out in paragraph 3 of Annex II in rejecting
Tyson's data. As our questions to the parties made clear, we identified elements in the
redetermination that might relate to the cri teria of paragraph 3. 553 Clearly, an investigating
authority is not required to signpost its analysis and each of its findings by expressly linking them
to specific obligations in the Anti -Dumping Agreement. In this instance, however, nothing in the
redetermination demonstrates meaningful consideration by MOFCOM of the criteria in paragraph 3.
Nor is there any link between those criteria and MOFCOM's ultimate decision to reject all of the
reported data. Our view that MOFCOM failed to "observe" the criteria se t out in paragraph 3 is
confirmed by China's arguments before us: throughout its submissions China linked MOFCOM's
findings only to MOFCOM's alleged conclusion that Tyson had failed to act to the "best of its ability"
in accordance with paragraph 5, not to Tyson's data failing any of the criteria in paragraph 3.
7.349. As we understand China's arguments, based on its submissions and including its answers
to our questions, China's position rests on two lines of argument, a direct response in respect of
paragraph 3 and an indirect response in respect of paragraph 5 of Annex II.
7.8.5.2.1 China's response in respect of paragraph 3 of Annex II
7.350. China makes two arguments in respect of paragraph 3.
7.351. First, China asserts that:
MOFCOM would have been open to any reasonable (and verifi able) method to ensure
that processing costs would be linked to a product specific model at each processing
steps. But instead of presenting such a method in the original investigation or in the
reinvestigation, Tyson obscured the fact that the reported meat costs in fact contained
a significant portion of processing costs incurred at prior production stages. Tyson
thus failed to provide information "which is appropriately submitted so that it can be
used in the investigation without undue difficulties" as required by Paragraph 3 …[.]554
7.352. This argument gives rise to at least two concerns:
a. China does not refer to anything in the redetermination, or indeed anywhere else in the
record of the investigation, indicating that MOFCOM found that Tyson failed to provide
information "which is appropriately submitted so that it can be used in the investigation

550 United States' response to Panel question No. 42, para. 79.
551 United States' response to Panel question No. 42, paras. 79-88.
552 See fn 503 above.
553 Redetermination, (Exhibit CHN-1 (translated version)), pp. 40 and 42.
554 China's response to Panel question No. 39, para. 152 (emphasis added). At the substantive meeting
of the Panel with the parties, China also asserted in respect of whether – and if so, where – in the
redetermination MOFCOM applied and made findings in respect of the criteria set out in paragraph 3 of
Annex II, that "MOFCOM had not received 'appropriately submitted' information on the distinction between
meat and processing cost".

without undue difficulties". We see nothing to suggest such a finding was either
considered or made anywhere in the redetermination. China's argument thus appears to
us to be an after the fact justification.
b. Even if we were to accept that MOFCOM rejected the data Tyson reported because they
were not "appropriately submitted so that [they] can be used … without undue
difficulties", we note that MOFCOM appears to have re lied upon Tyson's cost data
reported in the reinvestigation as the "best information available". 555 Thus, MOFCOM in
fact used the information submitted by Tyson's, albeit in a different way. By definition,
where MOFCOM has, in fact, used Tyson's data as "bes t information available", it seems
to us that we cannot conclude that that same data was not "appropriately submitted so
that [they] can be used … without undue difficulties".556
7.353. Second, in respect of the verifiability of Tyson's data, China argues:
The United States also incorrectly accuses MOFCOM of not taking meaningful steps to
clarify and verify the data provided by Tyson in response to MOFCOM's requests
during the re -investigation. But this ignores the many insufficient Tyson
questionnaires responses th at shows MOFCOM took meaning action to clarify and
verify.557
China does not argue that MOFCOM made a finding that all of Tyson's data were not verifiable. It
asserts, but does not demonstrate by reference to the redetermination or the record, that
MOFCOM took any meaningful action to verify Tyson's data, such that it could reasonably have
arrived at the conclusion that the data were not verifiable.
7.354. We recall our task in helping the parties resolve their dispute: to make findings as to
whether a complaining party has presented a prima facie case of inconsistency with the
requirements of the WTO agreements, and whether in response, a responding party has effectively
rebutted the prima facie case of the complainant. While a panel may develop its own reasoning in
arriving at its findings and recommendations in respect of those claims of the complainant that are
properly before it, it is of course not for a panel to make the case for either par ty. We underline
that this core consideration is relevant in respect not just of evidence before a panel, but also of a
disputing party's arguments: stressing and advancing some arguments rather than others,
whether as a matter of litigation strategy or for policy reasons, is an important sovereign right of a
disputing party; it is not for a panel to second guess a party's judgment in this respect. In that
sense, we must respect China's decision not to elaborate arguments under paragraph 3, but this
also me ans that it has not successfully rebutted the prima facie case put forward by the
United States under this paragraph.
7.8.5.2.2 China's response in respect of paragraph 5 of Annex II
7.355. China's principal response to the US claim appears to be that Tyson did not act to the
"[very] best of its ability" and therefore MOFCOM was entitled to reject all of Tyson's data and use
facts available. China's position is premised on the view, reiterated throughout this proceeding,
that:
[Paragraph 5] recognizes that although informat ion may not always be "ideal", the
authority need not accept information that "may not be ideal in all respects" unless
the party submitting that information has been acting "to the best of its ability".558
"[R]esponding parties are required to act to the very best of their ability when
responding to the investigating authority. Failure to do so entitles the investigating
authority to resort to facts available … [.]"559

555 Redetermination, (Exhibit CHN-1 (translated version)), p. 44. In the context of responding to the
United States' Article 2.2.1.1 claim, China was adamant about the fact that MOFCOM had used Tyson's own
data.
556 Emphasis added.
557 China's comments on United States' response to Panel question No. 42, para. 67. (fn omitted)
558 China's first written submission, para. 196 (emphasis original); see also response to Panel question
No. 36(a), paras. 133-134.
559 China's second written submission, para. 223. (emphasis added)

"[A]n investigating authority may resort to facts available whenever the responding
party fails to act to the very best of its ability."560
"[A]n investigating authority is entitled to resort to facts available if a responding
party does not act to the very best of its ability, or when the information provided is
not of the best quality … [.]"561
As we understand it, therefore, China's argument posits paragraph 5 as a defence or an exception
to paragraph 3: where an interested party does not act to the "very best of its ability" in providing
information requested, an investigating authority is entit led to reject the submitted information
and proceed to use fact available, even if the submitted information satisfies the criteria of
paragraph 3.
7.356. Paragraph 5 provides that investigating authorities are " not justif[ied] … from
disregarding" information th at is not ideal in all respects, provided the interested party acted to
the "best of its ability". 562 We note that China repeatedly adds the word "very" to this latter
standard, with no justification proffered.563 China's proposed interpretation raises the level of effort
required of an interested party submitting information and thus makes it more likely that
information not ideal in all respects may be disregarded. It is elementary that a panel is enjoined
from inserting words into the text of a provision; no r does anything in the context of paragraph 5
require or even permit such an interpretation. We decline China's in vitation to read into
paragraph 5 an adverb that is not there.
7.357. Turning to the text of that provision, nothing in its structure or actual word ing suggests
that paragraph 5 allows for the rejection of information that meets the criteria set forth in
paragraph 3 but is not ideal in all respects.564 Rather, the provision establishes an obligation for an
investigating authority to use such information provided the interested party submitting it acted to
the best of its ability. As described above, paragraph 5 is properly understood as supplementing
paragraph 3. Information that satisfies the requirements of paragraph 3, even if not "ideal in all
respects", may not be disregarded provided the interested party has acted to the best of its ability.
It would turn paragraph 5 on its head to read it as a defence or exception entitling an investigating
authority to reject submitted information and resort to fa cts available "unless the party submitting
that information has been acting 'to the best of its ability'". We therefore do not agree with China's
understanding of paragraph 5.
7.358. The United States has, as we have found, established its claim based on paragrap h 3. It
follows from our analysis of the relationship between paragraphs 3 and 5 that any argument solely
in respect of paragraph 5, as China has made in this case, is not an effective rebuttal of the case
of inconsistency with paragraph 3 substantiated by the United States.
7.8.6 Conclusion
7.359. In the light of the above, we find that the United States has established that China acted
inconsistently with Article 6.8 and paragraph 3 of Annex II of the Anti -Dumping Agreement in
rejecting all of Tyson's submitted data in the reinvestigation and relying on facts available.
7.9 Article 6.9 of the Anti-Dumping Agreement: essential facts
7.9.1 Introduction
7.360. In the original dispute, we found that China had acted inconsistently with Article 6.9 of the
Anti-Dumping Agreement during the original investigation because MOFCOM did not inform

560 China's second written submission, para. 224. (emphasis added)
561 China's second written submission, para. 233 (emphasis added); see also response to Panel question
No. 36(b), paras. 135-137.
562 Emphasis added.
563 When asked by the Panel, China did not explain the interpretative steps that led to its proposition.
(China's response to Panel question No. 36, paras. 135-141).
564 Paragraph 5 also neither requires an interested party to act to the "very" best of its ability, nor to
provide information that is of "best quality".

US interested parties, including Pilg rim's Pride and Keystone, of the essential facts underlying the
determination that dumping existed.565
7.361. The US claim in this compliance proceeding concerns whether China acted inconsistently
with Article 6.9 during the reinvestigation by failing to inform Pil grim's Pride and Keystone of the
essential facts under consideration which form the basis for the decision whether to apply
definitive measures.
7.9.2 Main arguments of the parties
7.9.2.1 United States
7.362. MOFCOM acted inconsistently with Article 6.9 by failing to disclose the essential facts
underlying the determination of the dumping margin in respect of Pilgrim's Pride and Keystone. 566
The specific facts alleged not to have been disclosed during the reinvestigation are:
a. With respect to Pilgrim's Pride : The data and margin calculations from the original
investigation. MOFCOM never revealed the data and calculations that led to its
determination in the original investigation despite the Panel in the original dispute
finding that the failure to disclose this information was in consistent with Article 6.9. 567
During the reinvestigation, MOFCOM did not reinvestigate Pilgrim's Pride but did
allegedly correct an error in the original dumping margin calculation. All of the original
data and margin calculations therefore also constitute d essential facts in the
reinvestigation which MOFCOM had to disclose. 568 Without knowing them and the nature
of the alleged error, Pilgrim's Pride could not defend itself in the reinvestigation. 569
MOFCOM's disclosure, however, including an Excel file pro vided to Pilgrim's Pride on
16 May 2014, only made available the new, "corrected" data and calculations. 570 This
disclosure also came too late for Pilgrim's Pride to defend its interests.
b. With respect to Keystone: The data and margin calculations from the original
investigation and the reinvestigation.571 Although Keystone did not cooperate during the
reinvestigation, it was entitled to disclosure of the essential facts, including its
confidential data and calculations. MOFCOM did not disclose this information eith er to
Keystone or its legal agents, although Keystone had provided proof of authorization of its
agents to receive MOFCOM's disclosure of Keystone's information.
7.9.2.2 China
7.363. MOFCOM did not act inconsistently with Article 6.9:
a. With respect to Pilgrim's Pride: The data and calculations from the original investigation
did not constitute essential facts for purposes of the reinvestigation. 572 Moreover,
MOFCOM disclosed the essential facts of the redetermination to Pilgrim's Pride in an
Excel file provided to Pilgrim's Pride on 16 May 2014.573 This document contained all the

565 Panel Report, China – Broiler Products, paras. 7.100 and 7.106.
566 In its panel request, the United States also cited Article 12.8 of the SCM Agreement. Although the
first written submission at paragraph 4 included a reference to this provision, the United States did not develop
any arguments, nor adduced any evidence, in any of its submissions in respect of an alleged violation of
Article 12.8. Indeed, the focus of the entirety of the US arguments is on the alleged lack of disclosure of the
data and calculations underlying the dumping margins. We therefore do not further address Article 12.8.
During this proceeding, the United States did not, however, pursue a claim under this provision.
567 United States opening statement at the meeting of the Panel, para. 64.
568 United States' response to Panel question No. 23(b), para. 47.
569 United States' first written submission, paras. 73 and 77; second written submission, para. 65; and
response to Panel question No. 23(b), paras. 48-49.
570 United States' first written submission, para. 76; second written submission, para. 71; and
comments on China's response to Panel question No. 16(a), para. 30.
571 United States' second written submission, paras. 78 and 84; response to Panel question No. 22,
para. 40.
572 China's second written submission, paras. 94, 95, 100, 104, and 105.
573 China's first written submission, paras. 103 and 109; second written submission, para. 106; and
response to Panel question No. 16(a), paras. 27-29.

data from the original investigation and the modified data. 574 The changes that were
made were explained in a narrative accompanying the document that contained the
data.
b. With respect to Keystone: MOFCOM could not disclose the data and calculations at issue.
This information was confidential to Keystone. Keystone, however, did not respond to
MOFCOM during the reinvestigation. In particular, it did not authorize an agent to
represent Keystone in the reinvestigation and to receive MOFCOM's disclosure containing
Keystone's confidential information. In these circumstances, MOFCOM only made a
public disclosure containing non -confidential information. In any case, there is a
difference in disclosure obligations with respect to cooperating parties, on the one hand,
and non-cooperating parties, on the other.575 In respect of a non-cooperating party, such
as Keystone, the essential facts that must be disclosed are those set out by this Panel in
its original report (t he basis for resort to facts available, the requested information, and
the facts used to replace the missing information). 576 MOFCOM made all of these
essential facts in respect of Keystone publicly available.
7.9.3 Evaluation
7.9.3.1 The law
7.364. 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 d isclosure should take place in sufficient
time for the parties to defend their interests.
The first sentence is the operative part of Article 6.9. It sets out the following required elements:
a. shall inform;
b. all interested parties;
c. before a final determination is made; and
d. of the essential facts.
The second sentence of Article 6.9 is, on i ts face, a temporal exhortation. As context for the
central obligation in Article 6.9 577, it gives an indication both of why disclosure is to be made 578
and when it must be made.
7.9.3.1.1 Essential facts
7.365. Article 6.9 requires the disclosure of "the essential facts under consideration which form
the basis for the decision whether to apply definitive measures". There are three cumulative
elements defining what must be disclosed:
a. essential facts;
b. under consideration; and
c. which form the basis for the decision whether to apply definitive measures.

574 China's first written submission, paras. 97, 103, and 109; responses to Panel question No. 15,
575 China's response to Panel question No. 17, paras. 41-43.
576 China's first written submission, paras. 112 and 121; second written submission, paras. 119-120.
577 Appellate Body Report, China – GOES, para. 240.
578 Panel Report, EC – Salmon (Norway), para. 7.805.

7.366. It is now settled that "essential facts under consideration" are "those facts on the record
that may be taken into account by an authority in reaching a decision as to whether or not to
apply definitive anti -dumping … duties".579 Moreover, the essential facts must form the basis for
the decision whether to apply definitive measures . This decision relates to the imposition of
anti-dumping duties. For facts to form the basis of this decision, they must be significant in the
process of reaching this decision , whether it is because they are salient for a decision to apply
definitive measures or salient for a contrary outcome. 580 The decision to impose duties or not is
necessarily linked to the final determination. Facts are therefore significant, for example, when
they are supportive of the final determination and are thus relied upon in making an affirmative
decision to impose duties. 581 Yet, facts may still be significant for the decision to impose duties if
they are ultimately not used in and/or do not support the final determination.582
7.367. The Panel's findings on essential facts in the original report are relevant in this proceeding.
First, the Panel found that Article 6.9 required the disclosure of the following essential facts in
respect of the dumping determination for the cooperating and investigated exporters in the
original investigation:
a. the data underlying the determination that for m the basis for the calculation of the
dumping margin, including any adjustments583;
b. the comparisons of home market and export sales584; and
c. the formulae applied for these comparisons.585
In particular – and critical for this proceeding – the Panel found that "the calculations themselves
(including any files or spreadsheets created during the calculations)" that are made to determine
the dumping margin are not essential facts that must be disclosed.586

7.368. Second, the Panel addressed the Article 6.9 disclosure requirement in respect of
"unknown" exporters to whom facts available were applied in establishing a "residual" rate:
Interpreting Article 6.9 in the light of Article 6.8, the "essential facts" that MOFCOM
was 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 fro m an interested party;
and (iii) the facts which it used to replace the missing information. In our view, the
above information is facts under consideration in MOFCOM's determination to apply
facts available. Furthermore, this information formed the basis for MOFCOM's
determination, on the basis of facts available … [.]587
7.9.3.1.2 The obligation to "inform"
7.369. Among the different modes of engagement between the investigating authority and
interested parties in respect of information contemplated i n Article 6 of the
Anti-Dumping Agreement and described above at paragraphs 7.226 and 7.227, the requirement to
"inform" is an "active" disclosure obligation.
7.370. Article 6.9 does not set out rules or any guidance on how all interested parties are to be
informed of the essential facts. In these circumstances, the investigating authority has a large
margin of discretion.

579 Appellate Body Report, China – GOES, para. 240. (emphasis added)
580 Appellate Body Report, China – GOES, para. 240.
581 Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 7.246.
582 Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 7.246.
583 Panel Report, China – Broiler Products, paras. 7.90-7.91.
584 Panel Report, China – Broiler Products, para. 7.91.
585 Panel Report, China – Broiler Products, para. 7.91.
586 Panel Report, China – Broiler Products, para. 7.92. (emphasis added)
587 Panel Report, China – Broiler Products, para. 7.317.

7.371. The requirement to inform is unqualified. It is in principle s ubject only to other obligations,
such as Article 6.5 regarding the protection of confidential information, that run concurrently in
respect of certain types of facts. As wel l, according to the second sentence in Article 6.9, the
obligation to "inform" mus t be fulfilled in a timely fashion, so as to allow interested parties to
defend their interests.588
7.9.3.1.3 Conclusion
7.372. In the light of the foregoing, under Article 6.9:
a. data that are the basis for the determination of the dumping margin must be disclosed,
whereas there is no requirement to disclose the actual calculations themselves;
b. disclosure must be made in respect of essential facts that are under consideration – that
is, facts tha t are significant or salient for the decision whether to impose definitive
measures; and
c. an investigating authority has a margin of discretion in how to disclose essential facts,
but this discretion is not absolute.
7.9.3.2 Analysis
7.9.3.2.1 Disclosure obligation in respect of dumping margin calculations
7.373. The United States argues that MOFCOM shou ld have made available the dumping margin
calculations in respect of Pilgrim's Pride from the orig inal investigation and in respect of Keystone
from the original investigation as well as the reinvestigation.
7.374. In this proceeding, the United States refers to "calculations". As the term itself implies, the
United States appears to have in mind the "precise mathematical calculations" that MOFCOM
"performed" or "conducted". 589 In a number of instances the United States refers to "calculation
methodology" – and even then the United States links knowledge of the "precise calculation
methodology" to the disclosure of the "calculations" themselves. 590 We therefore consider that the
United States is asserting that MOFCOM should have disclosed the actual "calculations" unde rlying
the dumping margin determination, not only the calculation methodology.
7.375. In support of its position, the United States argues that this Panel in the original dispute:
a. "recognized that Article 6.9 requires the complete disclosure of margin calculations"591;
b. "found that MOFCOM failed to make available the calculations it performed … including
the calculation of the normal value and export price for the respondents"592; and
c. "found that MOFCOM's failure to disclose the original calculations denied Pilgrim's Pride
the ability to ascertain the accuracy of the new rate by evaluating what has changed."593
The United States relies upon paragraphs 7.91 and 7.100 of the Panel Report in the original
dispute for these propositions.594

588 Panel Reports, China – X-Ray Equipment, para. 7.400; Russia – Commercial Vehicles, para. 7.254
(adoption/appeal pending).
589 United States' first written submission, paras. 68 and 75; opening statement at the meeting of the
590 United States' second written submission, para. 69 ("Pilgrim's was entitled to know the adjustments
and precise calculation methodology – and that required knowing what the original calculations and data
were"); opening statement at the meeting of the Panel, para. 64; and response to Panel question No. 23(a),
para. 44.
591 United States' first written submission, para. 70; second written submission, para. 67. (emphasis
original)
592 United States' first written submission, para. 68.
593 United States' second written submission, para. 68.
594 United States' first written submission, para. 70; second written submission, paras. 67-68.

7.376. At paragraphs 7.91 and 7.100 of the Panel Report in the original dispute, we found that in
the context of the determination of dumping, the underlying data and formulae are essential facts
that must be disclosed and that MOFCOM had failed to do so in respect of Pilgrim's Pride. Nowhere
in these paragraphs did we mention calculations. Indeed, we specifically found that calculations
"are not 'essential facts' that must be disclosed".595
7.377. The United States also argues that the requirement to disclose margin calculations was
endorsed by the Appellate Body in China – HP-SSST (Japan) / China – HP-SSST (EU) .596 The
United States refers to the following passage:
Thus, an investigating authority is expected, with respect to the determination of
dumping, to disclose, inter alia, the home market and export sales being used, the
adjustments made thereto, and the calculation methodology applied by the
investigating authority to determine the margin of dumping.597
However, a margin calculation methodology is different from margin calculations themselves. In
fact, the term "calculation methodology" was used in this passage by the Appellate Body in the
context of the European Union's argument that "the calculation methodology, such as the formulae
used in calculations and the data applied in the formulae ", must be disclosed under Article 6.9. 598
This confirms our findings in the original report in relation to what must be disclosed: data and
formulae, but not the calculations.
7.378. We therefore find that the United States has not established its claim under Article 6.9 of
the Anti-Dumping Agreement in respect of disclosure of margin calculations.
7.9.3.2.2 Disclosure obligation in respect of the "original" data of Pilgrim's Pride
7.379. The data at issue relate to the calculations underlying the dumping margin determination
made in the original investigation (the "original" data). The United States claims that MOFCOM did
not provide these original data to Pilgrim's Pride during the reinvestigation.
7.380. The general principles applicable to the allocation of the burden of proof in WTO dispute
settlement require that a party claiming a violation of a provision of a WTO agreement must assert
and prove its claim.599 A complainant will satisfy its burden when it establishes a prima facie case,
namely a case that, in the absence of effective refutation by the defending party, requires a panel,
as a matter of law, to rule in favour of the complainant.600 It is generally for each party asserting a
fact to provide evidence supporting the assertion. 601 In this dispute, therefore, it is for the
United States to establish that China did not provide the original data to Pilgrim's Pride and
thereby acted inconsistently with Article 6.9.
7.381. We recognise that a claim of violation based on an alleged omission – here the lack of
disclosure – raises evidentiary challenges.602 Difficulties exist for the complainan t to establish the
absence of something, but also for a panel in making findings of fact in relati on to an absence or
actions not done. A panel must therefore exercise a measure of discretion in respect of the
evidence required to establish a claim based on an alleged omission. Regardless of these
difficulties, at a minimum it should be uncontroversial to say that mere allegation of an omission
does not amount to proof.

595 In discussing the findings of the panel in China – X-Ray Equipment, we found that:
To the extent that the panel in China – X-Ray Equipment's reference to the "actual mathematical
determination" was to the calculations themselves (including any files or spreadsheets created
during the calculations), we agree that these are not "essential facts" that must be disclosed.
(Panel Report, China – Broiler Products, para. 7.92 (emphasis added))
596 United States' first written submission, para. 71.
597 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.131. (emphasis
added)
598 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.125. (emphasis
added)
599 Appellate Body Report, US – Wool Shirts and Blouses, p. 16.
600 Appellate Body Report, EC – Hormones, para. 104.
601 Appellate Body Report, US – Wool Shirts and Blouses, p. 14.
602 See our earlier observations in this respect at para. 7.292 above.

7.382. It is instructive to consider the arguments and evidence presented to us in the course of
this proceeding to illustrate the difficulties a panel faces when the allegation concerns the failure to
disclose.
7.383. The United States claims that MOFCOM did not provide the original data to Pilgrim's Pride
during the reinvestigation. 603 However, in none of its submissions did the United States refer to
any evidence that could support this factual assertion. 604 The United States relies only on
statements in the redetermination. 605 But these simply confirm that MOFCOM identified and
corrected a calculation error in the original determination and that it made a disclosure. They do
not give any indication as to what MOFCOM did or did not disclose.606
7.384. The United States acknowledges that MOFCOM disclosed "new" data – data related to the
reinvestigation – to Pilgrim's Pride. Initially, the United States asserted this to have occurred on
17 June 2014 in response to dis closure comments made by Pilgrim's Pride. 607 After China referred
to an alleged disclosure of the original data on 16 May 2014, the United States agreed that
MOFCOM disclosed the new data on that date.608
7.385. China argues that MOFCOM had, in fact, disclosed the original data to Pilgrim's Pride during
the reinvestigation. Initially, it relied on an Excel file that MOFCOM allegedly provided to Pilgrim's
Pride on 16 May 2014 (Exhibit CHN -8).609 Exhibit CHN -8 c ontains empty tables; there is no
reference to the investigat ion, or the reinvestigation, or to the type of data at issue, and none to
Pilgrim's Pride. The generic labelling of the rows and columns indicates that the tables pertain to
data related to the c onstruction of normal value and the calculation of dumping margins. It is not
apparent, however, that the data and calculations contained in these tables – redacted from the
exhibit – are those from the original investigation and are those for Pilgrim's Pride.
7.386. China then submitted Exhibit CHN -45, which "provides a more detailed public version of
the same underlying document" of which Exhibit CHN -8 was a public summary, and thus
presumably a more detailed public version of the alleged disclosure of the origi nal data on
16 May 2014.610 While actual figures are redacted 611, China descr ibes the content of
Exhibit CHN-45 to "consist[] of six separate tabs":
The first tab "5% test" shows the test of whether the home sales are sufficient to
constitute a viable home market;
The second tab "cost and expense for NV" lists the cost and expenses for constructed
normal value for all different models of broiler products;
The third tab "table 4 -2" lists the price and expense data for all of the sales
transactions, providing data for all distinct sales transactions;

603 United States' second written submission, para. 65.
604 For example, an objection in the course of the reinvestigation by an interested party to a failure to
disclose.
605 United States' first written submission, para. 75; comments on China's response to Panel
question No. 16(b), para. 33.
606 The United States could also be understood to suggest that the redetermination itself did not provide
sufficient disclosure which, in its view, serves as evidence that MOFCOM did not disclose the original data.
(United States' first written submission, para. 75: "MOFCOM's redetermination sheds no additional light on the
data or calculation 'corrections'"). The issue between the parties is not, however, whether MOFCOM disclosed
the original data through the redetermination but through a separate disclosure instrument.
607 United States' first written submission, para. 76.
608 United States' second written submission, para. 71. The redetermination refers to a disclosure on
16 May 2014. (Redetermination, (Exhibit CHN-1 (translated version)), p. 7).
609 China's first written submission, paras. 103 and 109; second written submission, para. 106.
610 China's response to Panel question No. 16(a), para. 28.
611 China stated at the substantive meeting that the United States had not submitted an authorizing
letter from Pilgrim's Pride for the compliance proceeding and therefore could not provide the underlying
confidential data. The United States observes that "[u]nder the Panel's Working Procedures, China does not
need an authorizing letter 'in respect of BCI for which a party already submitted an authorizing letter in the
original Panel proceeding proceedings', which Pilgrim's Pride did." (United States comments on China's
response to Panel question No. 16(a), para. 29 (referring to the Additional Working Procedures of the Panel
Concerning Business Confidential Information, para. 3) (fn omitted)).

The fourth tab "domestic sales ˃ cost" lists those all transactions that had sales prices
above cost;
The fifth tab "revised Table 3 -4" provides export sales to China, which is used as the
basis to determine the CIF price and the ex factory price (the net price after
adjustments); and
The sixth tab "calculation of Dumping Margin" provides the calculation of the overall
average margin of dumping.
…
[T]he first five tabs of the spreadsheet provided in Exhibit CHN -45 … were unchanged
from the original investigation; only tab six – the calculation of the dumping margin –
changed in the re-investigation.612
7.387. China also submitted Exhibit CHN -46, which it describes as a narrative to Exhibit CHN -45
that MOFCOM provided to Pilgrim 's Pride. Exhibit CHN-46 expressly refers to Pilgrim's Pride, but it
is undated and the relationship to Exhibit CHN-45 is, on its face, not entirely clear. Exhibit CHN -46
may, however, be understood to refer to Exhibit CHN -45 and to provide explanations in respect of
the data and the calculations in Exhibit CHN-45.613
7.388. The United States does not contest that Exhibits CHN -45 and CHN -46 were provided to
Pilgrim's Pride as part of the disclosure on 16 May 2014. 614 "[W]hile the United States is not in a
position to comment on what underlying data might be in Exhibit CHN-45 were it not redacted, the
United States" challenges the cogency and reliability of Exhibit CHN-45 by noting that:
a. "on its face it does not appear to be the unmodified spreadsheet from the original
investigation; it appears to be the spreadsheet for the reinvestigation"615;
b. "China has not explained how this table would allow Pilgrim's to reconstruct its original
rate of 53.4 percent – and what has changed since"616; and
c. "[in respect of Exhibits CHN -45 and CHN -46, China did not] identify[] the precise
language or figures in those documents that constitute the changes between the margin
calculated in the original investigation and in the reinvestigation".617
China responds that although prepared for the reinvestigation 618, this exhibit contains all the
original data.

612 China's responses to Panel question No. 16(a), para. 29, and No. 16(c), para. 39. (emphasis added)
613 For example, Exhibit CHN-46 mentions "modified Form 3-4" and "Form 4-2" which appears to refer
to what China described as the third ("table 4-2") and fifth tab ("revised table 3-4") in Exhibit CHN-45.
614 In its general comments on China's response to the Panel's questions (paras. 2-4), the United States
raised concerns regarding the late submission of exhibits in China's response to the Panel's questions, including
Exhibits CHN-45 and CHN-46. The United States argued that these exhibits were submitted outside of the
deadlines prescribed by the Panel's Working Procedures. We have sympathy for the view that China could have
initially provided evidence that did not raise the concerns that we identified in respect of Exhibit CHN-8. In
response to our request to address these concerns, China submitted CHN-45 and CHN-46. These exhibits were
therefore properly submitted in accordance with paragraph 8 of our Working Procedures as "evidence
necessary for purposes of … answers to questions".
615 United States' comments on China's response to Panel question No. 16(a), para. 30. (emphasis
original)
616 United States' comments on China's response to Panel question No. 16(a), para. 30. (emphasis
original)
617 United States' comments on China's response to Panel question No. 16(b), para. 34.
618 The United States argues that Exhibit CHN-45 is, in China's own submission, a public summary of the
original data and that a summary cannot satisfy the disclosure obligation of Article 6.9.
(United States' comments on China's response to Panel question No. 16(c), para. 35). The US statement
mischaracterizes Exhibit CHN-45. During the substantive meeting and in its response to Panel question
No. 16(a), paras. 27-28, China explained that Exhibit CHN-45 is a public summary of the underlying disclosure
prepared for the purpose of this dispute.

7.389. The US claim here is that MOFCOM failed to disclose the essential facts, in this case, the
original data. Article 6.9 is concerned with the disclosure of essential facts. It does not prescribe
the format in which the disclosure should be made. The format of this disclosure, whether it is in a
spreadsheet prepared for the reinvestigation containing the original data, o r it is a spreadsheet
from the original investigation containing the original data, is not relevant for this claim. What is
pertinent is the substance of the disclosure, not its format.
7.390. Further, the United States claims that Exhibit CHN -45 does not "allow Pilgrim's to
reconstruct its original rate of 53.4 per cent" and to identify "what has changed since". It also
argues that China did not point to where the changes are set out in Exhibits CHN -45 and CHN-46.
Exhibit CHN-46 on its face appears to explain the error in the equation for the dumping margin
that MOFCOM corrected, which resulted in a change in the dumping margin. 619 It describes the
equation that was used in the original determination, how it was corrected, and the corrected
equation that was used du ring the reinvestigation. The United States has not questioned the
authenticity of Exhibit CHN -46, challenged its probative value or otherwise addressed its content.
In particular, the United States did not demonstrate that the specific explanations in CHN -46 in
respect of the changes to the dumping margin equation, in connection with the dumping margin
calculation disclosed in "tab six" of Exhibit CHN -45, were insufficient to allow Pilgrim's Pride to
understand the changes and to ascertain their accuracy.
7.391. The United States does not contest that an unredacted version of Exhibit CHN -45 as well
as Exhibit CHN-46 were disclosed to Pilgrim's Pride on 16 May 2014. We find therefore that, as a
matter of fact, Pilgrim's Pride was in possession of the unredacted data set out in the first
five "tabs" of Exhibit CHN -45 and the explanations in Exhibit CHN -46. Since China's first written
submission, the parties made arguments and disagreed in respect of what MOFCOM disclosed to
Pilgrim's Pride on 16 May 2014. This factual issue was also amply discussed during the substantive
meeting of the Panel with the parties. At no point did the United States offer any evidence to
support its allegation that the original data had not been disclosed, nor did it provide any evidence
as to what was, in its view, disclosed to Pilgrim's Pride on 16 May 2014. In response to China's
evidence, the United States also declined the opportunity to comment on whether Exhibit CHN -45
included the original data on the basis of extensive redactions for confidentiality purposes. As
noted, we are sympathetic to the challenges inherent in establishing a claim of lack of
disclosure.620 However, it is ultimately the responsibility of the complainant to establish its case. In
this proceeding, the allegation is not one of complete absence of disclosure: rather, the
United States argues that MOFCOM disclosed the new, but not the original data. In such
circumstances, the United States could have sought to establish the alleged omission by
demonstrating what was pro vided and how that disclosure did not encompass what should, in its
view, have also been disclosed. Moreover, it would have been open to the United States to refer to
Pilgrim's Pride and verify the content of Exhibit CHN-45. The United States did not do so.
7.392. In the light of the above and based on the totality of the evidence before us and the
arguments developed by the parties, we draw the following conclusions:
a. Considering Exhibit CHN-45 in the light of Exhibit CHN -46 suggests that at least part of
the data in Exhibit CHN-45, namely the data in "table 4-2" and "revised Table 3-4", were
original data.621 The evidence therefore does not support the US assertion that MOFCOM
did not provide any original data at all.

619 Redacted Version of Disclosure Narrative Provided to Pilgrim's Pride, (Exhibit CHN-46), pp. 6-7.
620 The United States relies on our findings in the preliminary ruling in the context of Articles 6.1 and 6.4
of the Anti-Dumping Agreement. In that context, we found that a complainant may not be expected to
pin-point with any precision in a panel request information it does not have and might not even know about.
The situation under this Article 6.9 claim is not, however, "analogous". (United States' comments on China's
response to Panel question No. 16(b), para. 33). Contrary to the US assertion, the evidence suggests that
Pilgrim's Pride had ascertained, and even commented on, the error and correction at issue here, see
para. 7.392 below.
621 Redacted Version of Disclosure Narrative Provided to Pilgrim's Pride, (Exhibit CHN-46), p. 2. See also
Redacted Version of MOFCOM Response to Pilgrim's Pride Comments on Initial Disclosure (17 June 2014),
(Exhibit CHN-47), p. 2 ("The data used in the disclosure of re-investigation was from the data submitted by
your company. For example, the export price was based on the Table 3-4 submitted by you after the
verification.")

b. The parties agree that MOFCOM made a disclosure to Pilgrim's Pride on 16 May 2014 and
that Pilgrim's Pride provided comments. According to the uncontradicted evidence on the
record, Pilgrim's Pride appears to have based its comments on original and new data and
to have addressed in substance the change in the dumping margin equation as identified
in Exhibit CHN -46.622 The only documents that the Panel received from the parties to
consider as the alleged "disclosure" in question were, apa rt from Exhibit CHN -8,
Exhibits CHN-45 and CHN -46. In the absence of a ny evidence and arguments to the
contrary, it appears that Pilgrim's Pride made its disclosure comments, including its
comments on the correction of the calculation error, on the basis of the (unredacted)
information conveyed through Exhibits CHN -45 and CH N-46. The evidence therefore
does not support the US allegation that Pilgrim's Pride did not have the data from the
original investigation and could not defend its interests because it did not know the
alleged error that MOFCOM corrected in the reinvestigation.
7.393. On balance, we find that the United States has not established its claim in respect of the
allegation that MOFCOM did not provide the original data to Pilgrim's Pride.623
7.394. Finally, we understand the US position to be that the disclosure on 16 May 2014 o ccurred
too late for Pilgrim's Pride to defend its interests. 624 Beyond mere assertion, the United States
does not explain how the disclosure on 16 May 2014 was not made in sufficient time for Pilgrim's
Pride to defend its interests. The United States makes no arguments as to what would have been
"early enough" or what would have been "adequate time" for Pilgrim's Pride to defend itself.625 The
fact that the disclosure occurred "at the tail end of the reinvestigation" does not in itself mean that
Pilgrim's Pride did not have sufficient time to defend itself. 626 In fact, we recall that Pilgrim's Pride
commented on the disclosure, including on the calculation error and the corrections. 627 We
therefore have no basis to conclude that the disclosure on 16 May 2014 did no t take place in
sufficient time for Pilgrim's Pride to defend its interest.
7.395. As a consequence, we find that the United States has not established that China acted
inconsistently with Article 6.9 of the Anti -Dumping Agreement because MOFCOM did not disclose
the original data to Pilgrim's Pride.
7.9.3.2.3 Disclosure obligation in respect of the data of Keystone
7.396. The United States claims that MOFCOM did not disclose the data from the original
investigation underlying the original dumping determination and the data from th e reinvestigation
underlying the dumping redetermination (the "original" data and the "new" data, respectively) to
Keystone during the reinvestigation, in violation of Article 6.9.628

622 Comments of Pilgrim's Pride on Disclosure of the Final Ruling of the Reinvestigation (28 May 2014),
(Exhibit USA-27 (BCI)); Redacted Version of MOFCOM Response to Pilgrim's Pride Comments on Initial
Disclosure (17 June 2014), (Exhibit CHN-47).
623 This finding is entirely contingent on the facts of this case. In particular, we do not mean to suggest
that a complainant has to demonstrate, by reference to the investigation's record, that an interested party
requested to see the information at issue during the investigation, or made a procedural objection in this
respect, in order to establish a case of lack of disclosure.
624 United States' second written submission, paras. 70, 71, and 73.
625 United States' second written submission, para. 73.
626 United States' second written submission, para. 70.
627 See above fn 622.
628 The United States at no point explained how or why the "original" data were essential facts that
formed the basis for the decision to impose anti-dumping duties in the reinvestigation. Unlike the situation of
Pilgrim's Pride, where the United States argues that the "original" data were necessary for Pilgrim's Pride to
understand the corrected calculations and thus to defend its interests in the reinvestigation, for Keystone, the
United States has not pointed to any link between the "original" data and the determination in the
reinvestigation. Rather, we understand the United States to challenge the alleged lack of implementation of the
DSB's recommendations and rulings in respect of the "original" data: "The Panel in the original dispute
previously found that China acted inconsistently with its WTO obligations by failing to disclose this information
from the original investigation. … Despite this finding from the Panel, MOFCOM has once again failed to disclose
this information to Keystone, in contravention of Article 6.9." (United States' response to Panel
question No. 22, paras. 41-42).

7.397. The following facts are not in dispute between the parties:
a. During the o riginal investigation, Keystone was fully cooperating and provided data to
MOFCOM, which MOFCOM used in making its determination of dumping. During the
reinvestigation, MOFCOM sought to reinvestigate Keystone.
b. MOFCOM issued a questionnaire to Keystone but Keystone did not respond and did not
cooperate throughout the reinvestigation.629
c. MOFCOM, as a result, used facts available in respect of two items of information in
establishing a dumping margin for Keystone.630
d. In respect of other matters, MOFCOM used the information submitted by Keystone
during the original investigation.
e. During the reinvestigation, MOFCOM did not disclose any Keystone -confidential
information, including the data at issue, directly to Keystone or to any agent allegedly
representing Keystone.
f. MOFCOM disclosed non -confidential information in respect of Keystone through a public
disclosure.631
7.398. As well, there is no disagreement between the parties that Article 6.9 applies to
non-cooperating exporters, and thus, in the context of the reinvestigation, to Keystone.632 This is
consistent with our findings in the original report applying the disclosure requirement to the
essential facts in respect of the "residual" rate for "unknown" exporters established using facts
available.633
7.399. China argues , however, that the facts that are "essential", and that therefore must be
disclosed, differ as between cooperating interested parties, on the one hand, and non -cooperating
interested parties, such as Keystone, on the other. 634 In respect of the latter, MOFC OM only
needed to disclose the following essential facts: (a) the basis for resort to facts available; (b) the
requested information; and (c) the facts used to replace the missing information. 635 MOFCOM
disclosed all these essential facts through a number of publicly available documents.636
7.400. We see no basis in the text or context of Article 6.9 for distinguishing between cooperating
and non-cooperating interested parties for purposes of the disclosure requirement. 637 Article 6.9
refers to "all interested parties" without making any distinctions among them. The facts that are
"essential" may vary from interested party to interested party, but it is not the characterization of
the particular interested party as cooperating or not that determines whether facts are "es sential",
but the relevance of those facts to the determinations to be made by the investigating authority.
China refers to the use of the words "whenever practicable" in Article 6.4 and the disciplines on
use of facts available under Article 6.8 to argue that Article 6.9 has different obligations in respect
of cooperating and non -cooperating parties.638 Article 6.9 does not contain the words "whenever
practicable", nor does it refer to either Article 6.4 or 6.8. So the relevance of the words "whenever

629 United States' second written submission, fn 93.
630 These two items of information were "[t]he quantity and cost of free products listed in 'other
products'" and "processing costs". (China's response to Panel question No. 18, para. 45).
631 Disclosure of Essential Facts upon Which the Re-determination in DS 427 of Dumping and Subsidy on
Broiler Products was Made (29 May 2014), (Exhibit CHN-33 (translated version)); Redacted Version of
Disclosure Narrative Provided to Keystone (29 May 2014), (Exhibit CHN-48).
632 The parties do however disagree as to which essential facts an investigating authority must disclose
to a non-cooperating interested party, see below para. 7.399.
633 Panel Report, China – Broiler Products, paras. 7.314-7.323.
634 China's second written submission, para. 119; response to Panel question No. 17, paras. 41-43.
635 China's first written submission, paras. 112 and 121; second written submission, paras. 119-120.
636 China's first written submission, paras. 118-120; second written submission, paras. 120-122.
637 But see China's response to Panel question No. 17, paras. 42-43.
638 China's response to Panel question No. 17, para. 43.

practicable", found only in Article 6.4, and the disciplines on facts available specifically addressed
in Article 6.8 to a Member's obligations under Article 6.9 is not self-evident.639
7.401. Regarding the distinction between cooperating and non -cooperating interested p arties,
China also relies on our findings in the original report concerning the disclosure of essential facts
pertaining to the "residual" dumping margin for "unknown" exporters based on facts available. 640
We do not share China's understanding of our findin gs. We did not limit the universe of facts to be
disclosed when using facts available to the matters China refers to above at paragraph 7.399. We
specifically foun d that Article 6.9 required disclosure of the facts that are " used to replace the
missing information".641 These are clearly any facts that are significant in reaching the decision to
impose duties and, therefore, constitute essential facts. Thus, we clarifi ed the notion of essential
facts in the case of use of facts available by also requiring the disclosure of the reasons for resort
to facts available and the information that was requested from the interested party. In any event,
our findings concerned the particular "essential facts" that the investigating authority arrived at
through the use of facts available; they did not concern the disclosure of other essential facts to a
non-cooperating interested party that are not based on or themselves facts availa ble. In this
instance, MOFCOM used facts available only to replace two particular items of information. For the
rest, it used Keystone's information already on the record from the original investigation. Our
findings in the original dispute could therefore only be relevant to the two specific items of
information in respect of which MOFCOM used facts available in the reinvestigation, not to the rest
of Keystone's essential facts.
7.402. China argues that it disclosed the essential facts through a public disclosure of
non-confidential information of Keystone. 642 In this context, China, however, refers to the
disclosure of information that is not the subject matter of the US claim. The US claim is not about
the disclosure of non -confidential data through publicly avail able documents. Rather, it relates to
Keystone's confidential data that the United States argues MOFCOM was required to make
available to Keystone. In respect of the confidential information, China acknowledges that
MOFCOM would have disclosed these confid ential data to Keystone or its legal agents as essential
facts had Keystone responded or provided a power of attorney authorizing its legal agents.
According to China:
a. MOFCOM was required to maintain confidentiality of the data at issue;
b. Keystone did not respond to MOFCOM's questionnaire;
c. Keystone did not have an authorized legal agent; and
d. MOFCOM was legally precluded from making the required disclosure.
7.403. The United States does not argue that MOFCOM was under a positive obligation to actively
seek out Keystone and inform it of the data at issue. Rather, the US challenge concentrates on the
fact that MOFCOM did not disclose the information to Keystone's putative legal agents on the basis
that it could not confirm that they were authorized to receive confiden tial data on behalf of
Keystone.
7.404. The issue for us in this dispute therefore concerns MOFCOM's obligation to " inform"
Keystone of the essential facts in the circumstances of this case. Below, we set out the sequence
of events as we understand it:

639 In any event, nothing in the phrase "whenever practicable" as used in Article 6.4 with respect to the
obligation for investigating authorities to provide opportunities to all interested parties to see information
suggests such that it is intended to distinguish between cooperating and non-cooperating interested parties
even in the context of Article 6.4 itself. Similarly, we fail to see, and China has not explained, how the fact that
Article 6.8 establishes the conditions for use of facts available supports distinguishing between cooperating and
non-cooperating interested parties in the context of Article 6.9. We recognize that paragraph 7 of Annex II of
the Anti-Dumping Agreement does refer to an interested party that "does not cooperate" in the context of the
use of facts available, but nothing in that provision has any bearing on the obligation to disclose essential facts
pursuant to Article 6.9.
641 Panel Report, China – Broiler Products, para. 7.317. (emphasis added)
642 China's second written submission, para. 122; responses to Panel question No. 18, para. 46, and
No. 19(c)(ii), para. 57.

a. On 7 January 2014, MOFCOM issued an anti -dumping questionnaire to Keystone in the
reinvestigation.643 Keystone did not respond.
b. On 16 May 2014, MOFCOM sent a letter to the US Embassy in Beijing stating:
As Keystone Foods LLC has failed to submit its questionnai re response for
the reinvestigation and also failed to participate in other dumping and
subsidy reinvestigation procedures, the investigating authority is unable
to disclose it the basic facts supporting the determination regarding the
reinvestigation. According to the way of contact reported by the company
in the original questionnaire response, we have sent a letter about this to
the company. In order to ensure the company's right of comments on the
disclosure, we request you to assist in no tifying the co mpany to contact
with the investigating authority as soon as possible.644
c. On 20 May 2014, the US Embassy forwarded a "memorandum" from the US law firm
Steptoe & Johnson LLP (Steptoe) that had represented Keystone in the original
investigation purporting to g ive authorization for MOFCOM to serve any disclosure to
Thomas J. Trendl at Steptoe or Scott Lindsay at the US Embassy in Beijing:
With explicit authorization and approval from Keystone Foods, by this
memorandum, Keystone Foods notifies MOFCOM that it may serve any
and all disclosure documents in this matter on Thomas J. Trendl, Partner
in Steptoe & Johnson's Washington, D.C. office or Scott Lindsay,
Enforcement & Compliance, US Embassy. Their respective full contact
information is provided below. Please co ntact Thomas J. Trendl should
you have any questions.645
d. On 22 May 2014, MOFCOM responded to the memorandum by letter to the US Embassy,
stating that:
[T]he memorandum did not include Keystone Foods ' power of attorney
authorizing the law firm to represent th e company in responding the re -
investigation; nor did the memorandum include Keystone Foods ' power of
attorney authorizing the lawyers of the law firm to serve as the legal
counsels of the company or authorizing Mr. Scott Lindsay to receive any
disclosure documents on behalf of the company.
To protect the business confidential information of the company,
according to the relevant provision of the Anti-dumping Regulations of the

643 According to China, MOFCOM sent the reinvestigation questionnaire to the Chinese law firm
Jincheng Tongda & Neal (JT&N) that had represented Keystone during the original investigation. (China's
response to Panel question No. 19(a), paras. 47-48 (referring to Redetermination, (Exhibit CHN-1 (translated
version)), pp. 5 and 7)). China asserts that JT&N transmitted the questionnaire to Keystone, confirmed to
MOFCOM that Keystone had received it and told MOFCOM that Keystone would not respond to it. (Responses to
Panel question No. 19(b), para. 50, and No. 19(c)(ii), para. 55; see also the acknowledgement of receipt of
Keystone's questionnaire signed by JT&N at Registration of Receipt of initial questionnaire by three law firms,
(Exhibit CHN-50)). At the same time, China asserts that "JT&N confirmed that it no longer represented
Keystone in the re-investigation". (Response to Panel question No. 19(b), para. 50; see also Email from
Mr Fu Xin of JT&N dated 6 June 2017 to Mr Yu Jinbao on issues concerning the reinvestigation,
(Exhibit CHN-57), apparently for purposes of this Panel proceeding, stating that JT&N was not authorized to act
for Keystone during the reinvestigation). The United States, in turn, presented an alleged authorization by
Keystone of Mr Fu at JT&N to receive disclosure documents from MOFCOM during the reinvestigation.
(Memorandum from Keystone dated 21 May 2014 on service of Keystone-specific disclosure documents,
(Exhibit USA-35); see below China's procedural objection and our assessment of this exhibit's probative value
at paras. 7.410-7.413). Be that as it may, however, the United States' acknowledges that "[i]n the
reinvestigation, MOFCOM sent a questionnaire to Keystone … but Keystone declined to cooperate."
(United States' second written submission, fn 93).
644 Letter from MOFCOM dated 16 May 2014 on disclosure of the redetermination, (Exhibit USA-5
(translated version)), p. 2; Redetermination, (Exhibit CHN-1 (translated version)), p. 7.
645 Memorandum from Keystone dated 20 May 2014 on service of Keystone-specific disclosure
documents, (Exhibits CHN-10/USA-29 (translated version)). See also Redetermination, (Exhibit CHN-1
(translated version)), p. 7.

People's Republic of China , without the company's explicit authorization,
the Investigating Authority is unable to provide the disclosure relating to
the company to any third party. Given the tight schedule of the
investigation, we ask that Keystone Foods be noted the requirement on
comment period.646
e. In a "memorandum" dated 21 May 2014, signed by Crystal Graham, vice president
finance of Keystone, and, according to the United States, faxed to MOFCOM o n
29 May 2014, Keystone:
[N]otifies and authorizes MOFCOM that it may serve any and all
disclosure docu ments in this matter to Steptoe & Johnson, LLP and
Jincheng Tongda & Neal ("JT&N"). Their respective full contact
information is provided below.647
The contact information is given in respect of Eric C. Emerson at Steptoe's Beijing office
and Fu Xin at JT&N.
f. On 29 May 2014, MOFCOM made a public disclosure in respect of Keystone's
non-confidential information.648
7.405. At issue between the parties is whether MOFCOM violated Article 6.9 because it failed to
disclose the confidential data in question to any agent allegedly representing Keystone, and in
particular Steptoe. According to China, MOFCOM did not receive the additional documentation it
was seeking as proof of appointment of agent and for that reason alone MOFCOM was not in a
position to disclose Keystone' s confidential data to an unauthorized third party. 649 The
United States argues that Keystone had provided proof of authorization to MOFCOM so that it
should have disclosed the data at issue to Steptoe.
7.406. MOFCOM's request for proof of appointment as agent was made, according to China,
pursuant to an existing set of regulations. The United States does not question the fact of the legal
requirement. It does not argue that such a legal requirement in itself leads to a biased or
unobjective outcome and it does not allege that in this instance MOFCOM applied the regulations in
a biased manner or unobjectively. Rather, it appears to argue that in objectively abiding by an
otherwise unobjectionable legal requirement and not disclosing Ke ystone's information to a
third party, MOFCOM acted inconsistently with Article 6.9.
7.407. The issue for us to resolve therefore is whether Keystone provided proof of authorization of
its purported agent, in particular its legal counsel, to MOFCOM.
7.408. The United States relies on the "memorandum" of 20 May 2014. On at least three
occasions in this proceeding, it characterized this document as a "power of attorney"; it also
referred to it as an "authorization". 650 There is no evidence before us as to what constitutes a
"power of attorney" or an "autho rization" in US or Chinese law. But it is not necessary for us to

646 Letter from MOFCOM dated 22 May 2014 to US Embassy on authorisation on the reinvestigation
disclosure of Keystone, (Exhibit CHN-11 (translated version)) (emphasis original); see also Letter from
MOFCOM dated 22 May 2014 to the US Embassy on the Keystone-specific disclosure authorisation,
(Exhibit USA-30 (translated version)), relating to the same document.
647 Memorandum from Keystone dated 21 May 2014 on service of Keystone-specific disclosure
documents, (Exhibit USA-35); see below China's procedural objection and our assessment of this exhibit's
probative value at paras. 7.410-7.413.
648 Disclosure of Essential Facts upon Which the Re-determination in DS 427 of Dumping and Subsidy on
Broiler Products was Made (29 May 2014), (Exhibit CHN-33 (translated version)); Redacted Version of
Disclosure Narrative Provided to Keystone (29 May 2014), (Exhibit CHN-48).
649 We do not agree with the United States' view that "China's argument that the purported lack of
authorization somehow prevented disclosure … is simply a post hoc excuse." (Letter from the United States
dated 26 June 2017 to the Chairperson commenting on China's letter of 12 June 2017 to the Chairperson,
para. 3). The United States' own Exhibits USA-9, p. 7 and USA-30 demonstrate that the lack of authorization
was indeed MOFCOM's concern at the time, as acknowledged by the United States in its second written
submission, para. 87.
650 United States' second written submission, para. 87; opening statement at the meeting of the Panel,

resolve that question. The "memorandum" of 20 May 2014 is a letter signed by Thomas J. Trendl
at Steptoe stating that MOFCOM may serve Keystone's disclosure to him or Scott Lindsay at the
US Embassy. There is a reference in the "memorandum" to an "authorization" by Keystone, but it
is not accompanied or followed by Keystone's authorization of Mr Trendl and/or Mr Lindsay. As a
matter of fact, we find that mere assertion by legal counsel of age ncy is not proof of an agency
relationship.651 As a matter of law, we find that MOFCOM did not act unreasonably in not accepting
as proof of an agency relationship a mere assertion by the alleged agent itself.
7.409. In its letter of 22 May 2014 to the US Embassy, MOFCOM communicated its concern about
lack of authorization to disclose Keystone's confidential information, indicated that in these
circumstances it could not disclose the confidential information and urged Keystone to respond.
We have no reason to believe that this letter did not reach Keystone652, nor does the United States
argue that it did not. Rather, the United States acknowledges that, "to [its] knowledge, Keystone
did not respond to MOFCOM's letter".653
7.410. The United States also relies on a "memorandum" f rom Keystone, dated 21 May 2014 and
allegedly faxed to MOFCOM on 29 May 2014, authorizing Eric C. Emerson at Steptoe's Beijing
office and Fu Xin at JT&N to receive Keystone's disclosure. The United States submitted this
"memorandum" as Exhibit USA -35 in it s comments on China's responses to the Panel's written
questions.654 Relying on this exhibit, the United States asserts that it "has reason to believe that
the statements proffered by China [in respect of the lack of proof of authorization of Keystone's
purported representatives] are not completely accurate". 655 China object s to the submission of
Exhibit USA-35 arguing that under the Panel's Working Procedures all evidence should have been
submitted by the substantive meeting of the Panel with the parties and t hat the United States did
not demonstrate any "good cause" for a late submission.656
7.411. We recall the arguments of the United States about the late submission of evidence by
China and in particular that "China's provision of exhibits at this late stage raise c oncerns relating
to procedural fairness".657 The Panel's Working Procedures in this proceeding provide that:
Each party shall submit all factual evidence to the Panel no later than during the
substantive meeting, except with respect to evidence necessary for purposes of
rebuttal, answers to questions or comments on answers provided by the other party.
Exceptions to this procedure shall be granted upon a showing of good cause.658
7.412. In this instance, the position of China with respect to the issue of the (lack of)
authorization of Keystone's purported agents has been clear since 2014 and, in the context of this
dispute, at least since the first written submission of China. Moreover, we put a specific question
on this very subject to the United States both orally at the substantive meeting and subsequently
in writing. The United States has had three years and multiple opportunities to clarify this specific
point. It is therefore not entirely clear to us why the United States would be seeking to "confirm[]
China's account" only at a late stage of the proceedings and, allegedly, only in respect of China's
responses to our questions.659 The United States even acknowledges that it submitted the exhibit

651 The United States emphasizes the request in the "memorandum" to "contact 'Thomas J. Trendl
should you [MOFCOM] have any questions'". (Response to Panel question No. 21, para. 39; Letter from the
United States dated 26 June 2017 to the Chairperson commenting on China's letter of 12 June 2017 to the
Chairperson, fn 4). But neither this request, nor MOFCOM's alleged failure to contact Mr Trendl, detract from
our conclusion that mere assertion by legal counsel of agency is not proof of an agency relationship.
652 The exchange of communications from 16 and 20 May 2014 supports the conclusion that Keystone
also received the letter of 22 May 2014.
653 United States' response to Panel question No. 21, para. 39.
654 In an e-mail of 25 May 2017 to the Chairperson of the Panel, the United States clarified that the
United States relies on Exhibit USA-35 to support the assertions made at paragraph 38 of its comments on
China's response to Panel question No. 19.
655 United States' comments on China's response to Panel question No. 19, para. 38.
656 Letter from China dated 12 June 2017 to the Chairperson of the Panel, pp. 1-3.
657 United States' general comments on China's response to Panel questions, paras. 1-4.
658 Working Procedures of the Panel (adopted on 9 November 2016), para. 8.
659 United States' comments on China's response to Panel question No. 19, para. 38; Letter from the
United States dated 26 June 2017 to the Chairperson commenting on China's letter of 12 June 2017 to the
Chairperson, paras. 6-7.

to us in order to address an assertion that China made in its second written submission.660 We see
no reason why the United States should be considered to have had, and the United States neither
asserted nor demonstrated that it had, "good cause" to adduce evidence in its comments on
China's responses to the Panel's written questions in order to rebut an assertion China had already
made, by the United States' own admission, in the second written submission.
7.413. Be that as it may, it is not necessary for us to make a finding on whether we may or
should accept the exhibit, because w e do not in any event find it persuasive. As the United States
itself observes in respect of China's arguments relating to MOFCOM's online index 661, there are no
time-stamps or other records indicating when the "memorandum" was in fact faxed (or otherwise
sent) to MOFCOM 662 – and here, we are not dealing with an internal receipt but an alleged
communication between an interested party and the investigating authority. The exhibit does not
mention a number to which it could have been faxed or sent. The United States argues that it has
not found a record of MOFCOM's response 663; but there is also no record of follow -up by the
US Counsel or indeed by the US Government asserting to MOFCOM that the condition for
disclosure had been met. In fact, and in contrast to the " memorandum" of 20 May 2014, the
record of the reinvestigation does not mention the "memorandum" of 21 May 2014 allegedly faxed
to MOFCOM on 29 May 2014. 664 We also note that the evidence demonstrates that on 16 and
22 May 2014, MOFCOM took repeated action to contact Keystone in respect of the disclosure. In its
letter of 22 May 2014, it specifically responded to the "memorandum" of 20 May 2014 and
addressed the lack of authorization of Keystone's purported agent. Against this background,
MOFCOM's silence , aft er reaching out to Keystone on this very issue twice, in respect of an
authorization allegedly provided to it on 29 May 2014 and the absence of follow up by Keystone,
its counsel or the US Embassy is telling, as is the fact that MOFCOM listed the "memorandum" of
20 May 2014 in its records but left out any reference to the "memorandum" of 21 May 2014. For
these reasons, we are not persuaded that Exhibit USA-35 establishes that Keystone did, in fact,
provide MOFCOM with proof of authorization of its agents.
7.414. In the light of the above, we find as a matter of fact that:
a. MOFCOM disclosed non-confidential information in respect of Keystone;
b. MOFCOM did not disclose confidential information in respect of Keystone; and
c. when approached by certain persons purporting to be agents of Keystone for the
purposes of disclosure, MOFCOM sought proof of authorization of agency.
7.415. In our view, it was not unreasonable for MOFCOM to consider that the memorandum of
20 May 2014 by Steptoe did not amount to such authorization. We furthe r find that the
United States has not established that Keystone provided such proof of authorization to MOFCOM
at another time in another document.
7.416. In these circumstances, we find that MOFCOM did not act in a biased or unobjective
manner in finding that the purported agents of Keystone were not authorized to receive disclosure
of Keystone's confidential data at issue. Accordingly, we conclude that the United States has not
demonstrated that MOFCOM's admitted failure to inform Keystone of the essential facts at issue
was inconsistent with Article 6.9 of the Anti-Dumping Agreement.
7.9.4 Conclusion
7.417. We find that the United States has not established that China acted inconsistently with
Article 6.9 of the Anti -Dumping Agreement in respect of the failure to disclose da ta and

660 At paragraph 2 of its letter of 26 June 2017 to the Chairperson commenting on China's letter of
12 June 2017 to the Chairperson, the United States argues that "[t]he exhibit rebuts a specific assertion made
by China – that MOFCOM lacked an authorization signed by Keystone Foods" and in footnote 2 to this
statement it refers to "e.g., China, Second Written Submission, para. 114 ('No other evidence was submitted
that Keystone in fact actually authorized Steptoe & Johnson to act on its behalf, and neither Keystone nor the
firm took any additional steps nor filed any additional information or explanation.')" (emphasis added)
661 United States' comments on China's response to Panel question No. 11, para. 24.
662 China disputes that MOFCOM had received the alleged fax. (Letter from China dated 12 June 2017 to
the Chairperson of the Panel, p. 2).
663 United States' comments on China's response to Panel question No. 19, para. 39.
664 Redetermination, (Exhibit CHN-1 (translated version)), p. 7.

calculations from the original investigation and/or the reinvestigation underlying the dumping
margins for Pilgrim's Pride and Keystone.
7.10 Article 9.4(i) of the Anti -Dumping Agreement: maximum amount of anti -dumping
duty for imports from exporters not individually examined
7.418. The United States alleges that MOFCOM acte d inconsistently with Article 9.4(i) of the
Anti-Dumping Agreement because, in the redetermination, it set the "residual" rate665 for unknown
exporters or producers 666 in excess of the weighted a verage margin of dumping established with
respect to exporters individually examined under Article 6.10 of the Anti-Dumping Agreement.
7.10.1 Findings of the Panel in the original report
7.419. In the original report, we made findings regarding the use of facts availabl e under
Article 6.8 and Annex II of the Anti -Dumping Agreement in establishing the "residual" rate. 667 In
the original investigation, MOFCOM had used facts available to establish a "residual" rate of
105.4% for US exporters that had not registered with MOFCO M in response to the Notice of
Initiation and, as a consequence, were considered unknown, and also did not file a questionnaire
response.668
7.420. We found that MOFCOM's Notice of Initiation and registration requirement were sufficient
to inform foreign exporters of the information required of them and of the possible use of facts
available if they did not supply that information to MOFCOM within a reasonable time. 669 We thus
considered that MOFCOM had fulfilled the conditions set forth in paragraph 1 of Annex II, a llowing
it to resort to facts available in establishing an anti -dumping duty rate for exporters that did not
register with MOFCOM and provide requested information.670
7.421. Nevertheless, we found that MOFCOM acted inconsistently with Article 6.8 and Annex II of
the Anti-Dumping Agreement in the manner in which it used facts available in determining that
rate.671 We found that the determination failed to sufficiently explain which facts on the record
MOFCOM used to calculate the "residual" rate.
7.10.2 MOFCOM's findings in the redetermination
7.422. On 25 December 2013, MOFCOM issued a Notice of Initiation in respect of the
reinvestigation.672 Unlike in the original investigation, this Notice of Initiation did not set forth a
requirement for interested parties to register or specify information that would be required.
7.423. In the redetermination, MOFCOM established anti -dumping duty rates for three groups of
exporters:

665 In both its original investigation and the reinvestigation, in addition to determining individual rates
for certain exporters individually examined, MOFCOM established a separate "all others" rate in accordance
with Article 9.4 of the Anti-Dumping Agreement which it applied to exporters that had registered following the
Notice of Initiation in the original investigation, and a second "all others" rate, based on facts available, which
applied to any foreign exporter or producer that had not registered in the original investigation. While
MOFCOM, and the parties in this dispute, refer to this second rate as an "all others" rate, in order to avoid the
confusion which may arise from referring to two different anti-dumping duty rates established on different
bases and applied to different categories of foreign exporters or producers, we will, as some other panels have,
refer to this second "all others" rate as a "residual" rate. We note that the Anti-Dumping Agreement does not
refer to either an "all others" rate or a "residual" rate, and thus these terms have no legal significance. We use
them in this report in order to more clearly distinguish the rate applicable to exporters or producers that are
not individually examined pursuant to Article 6.10 of the Anti-Dumping Agreement and for whom a separate
anti-dumping duty rate is established under Article 9.4 ("all others" rate) from the rate that is at issue here
("residual" rate).
666 References to "exporters" shall be understood to include foreign producers in this context.
667 Panel Report, China – Broiler Products, paras. 7.298-7.313.
668 Panel Report, China – Broiler Products, paras. 7.276 and 7.278.
669 Panel Report, China – Broiler Products, para. 7.306.
670 Panel Report, China – Broiler Products, para. 7.307.
671 Panel Report, China – Broiler Products, paras. 7.308-7.313.
672 Announcement No. 88, (Exhibit USA-1 (translated version)).

a. individual dumping margins for each examined exporter673;
b. a single dumping margin for other exporters which had registered but were not
individually examined in the original investigation, based on the weighted average of the
margins of the examined exporters674; and
c. a single "residual" anti-dumping rate for all other US exporters.675
7.424. This latter "residual" rate applied to unknown exporters that "did not register for
participating in the [original] investigation".676 In the reinvestigation, MOFCOM did not seek out or
ask these exporters to cooperate, and as noted, there was no provision f or registration with
MOFCOM in the context of the reinvestigation. In the redetermination, MOFCOM indicated that:
Regarding all other U.S. companies who did not respond to, nor did they submit [ sic]
the questionnaire responses, in accordance with Article 2 1 of the
Anti-Dumping Regulation, the Investigating Authority decides to use the facts
available and the best information available to determine their normal value and
export price.677
MOFCOM explained that it had decided "to use the evidence and materials o f Pilgrim's Pride
Corporation to determine the normal value, export price, price adjustment items and CIF prices for
all other U.S. companies." 678 MOFCOM established the "residual" rate based on the rate
determined for Pilgrim's Pride, 73.8%, the highest rate found for any of the examined exporters.
7.10.3 Main arguments of the parties
7.10.3.1 United States
7.425. Article 9.4(i) imposes a ceiling on the " residual" rate based on facts available in certain
circumstances. This does not mean that Article 9.4 imposes a general cap on rates determined on
the basis of Article 6.8; and it does not mean that Article 9.4 applies to unknown exporters that do
not come forward when an investigating authority requires registration to identify and select
exporters for the limited investi gation.679 Rather, on the facts of this case , the "residual" rate in
the redetermination was in excess of the ceiling established by Article 9.4(i).680
7.426. In the original investigation, MOFCOM required foreign exporters to register in order to
identify all companies from among which MOFCOM could select for limited examination. But in the
reinvestigation MOFCOM did not provide for a similar process of registration. 681 MOFCOM had
already limited the investigation during the original investigation to certain exporters and did not
reopen the selection of the exporters for examination during the reinvestigation. Unlike in the
original investigation, MOFCOM did not invite any exporters to register and cooperate. 682 In these

673 Redetermination, (Exhibit CHN-1 (translated version)), appendix II, p. 89.
674 Redetermination, (Exhibit CHN-1 (translated version)), p. 56 and appendix II, pp. 89-90.
675 Redetermination, (Exhibit CHN-1 (translated version)), p. 56 and appendix II, p. 90.
676 Redetermination, (Exhibit CHN-1 (translated version)), p. 57.
677 Redetermination, (Exhibit CHN-1 (translated version)), p. 56. As in the original investigation (Panel
Report, China – Broiler Products, para. 7.274) the examined companies in the reinvestigation were Keystone,
Tyson and Pilgrim's Pride, although the latter was not reinvestigated during the reinvestigation. Questionnaires
were only sent to Keystone and Tyson. (Redetermination, (Exhibit CHN-1 (translated version)), p. 5).
Consequently, and as in the original dispute, the use of facts available for the "all others" rate did not attach to
an alleged failure of "all other" US companies to submit questionnaire responses, but to the failure to register
for the investigation.
678 Redetermination, (Exhibit CHN-1 (translated version)), p. 57.
679 United States' second written submission, para. 125: "[T]he exporters subject to MOFCOM's
["residual"] rate were not asked to cooperate in MOFCOM's reinvestigation, and to apply the highest
antidumping duty rate to them is inconsistent with Article 9.4", and fn 171: "The key point, consistent with the
text of Article 9.4, is that [sic] applies to producers not subject to the examination period. The United States
agrees the situation would be different if a particular party was solicited information but declined
to do so." (emphasis added)
680 United States' first written submission, para. 104.
681 United States' response to the oral questions of the Panel at the meeting.
682 United States' second written submission, para. 125; see also response to the Panel question No. 44,
para. 92.

circumstances, MOFCOM applied the 73.8% facts avai lable rate to exporters who did not have any
opportunity to cooperate in the reinvestigation. In this instance, where "sampling" has already
been done, all exporters that are not subject to the examination and that were not required to
register, fall under the protection of Article 9.4(i) with respect to the ceiling.
7.427. China's position that this provision does not apply to non -cooperative exporters or
producers is inconsistent with the plain text of Article 9.4.683 The Panel should not follow the
reasoning developed in EC – Salmon (Norway) and invoked by China. The findings made in EC –
Salmon (Norway) create an "artificial distinction between exporters or producers that register with
an investigating authority and who are not examined – and exporter [ sic] or pr oducers that are
not simply examined". 684 Moreover, as the Appellate Body in US – Hot Rolled Steel stated,
Article 9.4 applies to exporters or producers who were not asked to cooperate in the investigation.
7.10.3.2 China
7.428. In line with the panel's findings in EC – Salmon (Norway) , Article 9.4 only governs the
maximum amount of anti-dumping duties that may be imposed on and collected from unexamined
but cooperating exporters; it does not apply to non -cooperating exporters.685 The "residual" rate
challenged by the United States only applies to exporters that did not register and identify
themselves for the purpose of the investigation; it does not apply to companies that cooperated
but were not selected for the limited examination, for which a separate margin was determined in
accordance with Article 9.4. Exporters that did not register and identify themselves for the purpose
of the investigation are no different from non -cooperating exporters to which Article 9.4 does not
apply.686 Article 9.4(i) is therefore also inapplicable to the rate at issue here.
7.429. As part of its implementation obligation, MOFCOM was not required to, and in fact did not,
offer the "unknown" exporters a second opportunity to cooperate during the reinvestigation. 687 In
order to bring China into compliance with its WTO obligations, MOFCOM did not have to redo the
entire investigation; in particular MOFCOM did not need to ask the unknown producers again to
register.688
7.10.4 Evaluation
7.430. In the original report we confirmed that a "residual" rate for unknown exporters can be
based on facts available, and the use of facts available in such a case is, in turn, subject to the
disciplines of Article 6.8 and Annex II. In this compliance dispute, we are presented with a
different but related question. The issue before us now is whethe r, in the particular circumstances
of this case, the ceiling provided for in Article 9.4(i) applies to the "residual" rate established in the
reinvestigation for exporters considered "unknown" because they had not registered in the original
investigation.
7.10.4.1 The law
7.431. Article 9.4 of the Anti-Dumping Agreement provides:
When the authorities have limited their examination in accordance with the second
sentence of paragraph 10 of Article 6, any anti -dumping duty applied to imports from
exporters or producers not included in the examination shall not exceed:
(i) the weighted average margin of dumping established with respect to
the selected exporters or producers or … [.]

683 United States' second written submission, paras. 123 and 125.
684 United States' second written submission, fn 171.
685 China's first written submission, paras. 243 and 250 (referring to Panel Report, EC – Salmon
(Norway), paras. 7.431-7.433).
686 China's first written submission, para. 248.
687 China's second written submission, para. 220; opening statement at the meeting of the Panel,
para. 40.
688 China's response to the oral questions of the Panel at the meeting.

7.432. Article 9.4 regulates the maximum amount of anti -dumping duty that may be imposed or
collected in respect of imports from exporters that were not individually examined pursuant to
Article 6.10. 689 Where, in accordance with Article 6.10, an investigating authority limits its
examination to a selected group of exporters, the investigating authority may determine an
anti-dumping duty rate to be applied to those exporters who were not included in the group
selected for individual examination group, subject to the conditions set forth in Article 9.4,
including the ceiling on the duty rate.690 However, Article 9.4 does not specifically address the duty
rate that may be applied to exporters not known to the investigating authority and which therefore
are not available to be selected for individual examination.
7.10.4.2 Analysis
7.433. As we understand it, the US claim is premised on the assertions that:
a. the distinction between known and unknown exporters that MOFCOM properly made in
the original investigation did not carry over into the reinvestigation; and
b. the factual predicate for determining unknown exporters in the original investigation, i.e.
that they had not registered, did not hold in the reinvestigation, and therefore the
duty-rate cap in Article 9.4(i) applied to all unexamined exporters, including those that
were "unknown" to MOFCOM.
7.434. As we understand it, the United States does not argue that China was required to
undertake an entirely new investigation as part of its implementation obligation. In fact, neither
the Anti-Dumping Agreement nor the SCM Agreement, nor any other relevant WTO agreement,
provides any guidance regarding how adopted recommendations and rulings of the DSB following
findings of inconsistency with the Anti -Dumping and/or SCM Agreements are to be implemented.
Implementation of DSB recommendations and rulings is left, in the first instance 691, to the
discretion of the Member in question. Some, such as the United States, the European Union, and
China it self, have specific legal instruments setting out procedure s to be followed for
implementation following findings of inconsistency w ith the Anti -Dumping an d/or
SCM Agreements.692 China's rules allow MOFCOM to conduct a reinvestigation for implementation
purposes, which MOFCOM did in this case . China's rules do not require, and MOFCOM in this
instance did not ask for, re-registration by the exporters.
7.435. Our specific findings under Article 6.8 in the original dispute frame China's obligation to
bring itself into conformity in respect of the "residual" rate established on facts available. In the
present context, the key points from our findings are:
a. in the original investigation, the Notice of Initiation required exporters to register and to
provide certain information;
b. MOFCOM was entitled to distinguish between known and unknown exporters – those that
did not register – in establishing anti-dumping duty rates for these two groups; and

689 Article 6.10 provides:
The authorities shall, as a rule, determine an individual margin of dumping for each known
exporter or producer concerned of the product under investigation. In cases where the number of
exporters, producers, importers or types of products involved is so large as to make such a
determination impracticable, the authorities may limit their examination either to a reasonable
number of interested parties or products by using samples which are statistically valid on the
basis of information available to the authorities at the time of th e selection, or to the largest
percentage of the volume of the exports from the country in question which can reasonably be
investigated.
690 Appellate Body Report, US – Hot-Rolled Steel, para. 115.
691 The second sentence of Article 19.1 of the DSU allows for a panel or the Appellate Body to suggest
ways in which a Member could implement its recommendations. Article 21.3 of the DSU provides for a Member
to "inform the DSB of its intentions in respect of implementation of the recommendations and rulings of the
DSB". It has been recognized in jurisprudence that Article 21.3 of the DSU gives the authority to decide the
means of implementation, in the first instance, to the Member found to be in violation. (Panel Reports, US –
692 See the reference to the "Interim Rules for Implementing the World Trade Organization Rulings on
Trade Remedy Disputes" in Announcement No. 88, (Exhibit USA-1 (translated version)).

c. in the circumstances of the original investigation, MOFCOM could apply a "residual"
anti-dumping duty based on facts available in respect of exporters that did not register
and thus did not provide requested information – the "unknown" exporters.
7.436. China's obligation to bring its measure into conformity with the Anti -Dumping Agreement,
and thus comply with the recommendations and rulings of the DSB, existed in respect of the
aspects of the measure found to be WTO inconsistent. 693 China limited the reinvestigation to those
matters it considered necessary to bring MOFCOM's original determination into conformity with the
Anti-Dumping Agreement. With regard to the duty rate at issue here, this involved ensuring that
the manner in which MOFCOM selected the facts available on the basis of which it established the
duty rate to be applied to "unknown" exporters was consistent with Article 6.8 and Annex II of the
Anti-Dumping Agreement. The United States does not argue that anythin g in the
Anti-Dumping Agreement, or any other relevant agreement, required China to relaunch the
investigation as if it were a whole new investigation or, specifically on the facts of this case, to
repeat the original, or provide for a new, registration me chanism to give "unknown" exporters a
second chance to provide information.
7.437. That China issued a new Notice of Initiation with respect to the reinvestigation does not
necessarily mean that in the reinvestigation, MOFCOM was required to re-open or undertake a new
process for establishing which exporters would be examined individually. In fact, in the
reinvestigation MOFCOM did not change its approach with respect to the US exporters to be
individually examined, the exporters that had registered but were not examined, and the
"unknown" foreign exporters or producers as determined in the original determination. For the
purpose specifically of applying the ceiling in Article 9.4, the absence of a registration requirement
in the reinvestigation does not reopen th e question of which exporters may be treated as known
but unexamined, and which may be treated as unknown. MOFCOM had originally limited the
examination to three selected exporters and continued to do so in the reinvestigation. As far as we
are aware, no p reviously "unknown" exporter sought to participate or provide information in the
reinvestigation. In these circumstances, we see no basis to conclude that MOFCOM was somehow
precluded in the reinvestigation from establishing a duty rate based on facts avai lable for all other
"unknown" exporters without regard to the limitation set forth in Article 9.4(i).694
7.10.5 Conclusion
7.438. In the light of the above, we find that the United States has not established that MOFCOM
failed to comply with Article 9.4(i) of the Anti -Dumping Agreement in the reinvestigation by
determining a "residual" duty rate based on facts available to be applied to "unknown" exporters.
7.11 Articles 12.2 and 12.2.2 of the Anti-Dumping Agreement and Articles 22.3 and 22.5
of the SCM Agreement: public notice
7.11.1 Introduction
7.439. The United States alleges that MOFCOM failed to address in the redetermination key
causation arguments raised by US respondents in the reinvestigation. This is inconsistent with
Articles 12.2 and 12.2.2 of the Anti -Dumping Agreement and Articles 22.3 and 22.5 of the
SCM Agreement695, which require investigating authorities to issue public notices of their final
determinations that include "all relevant information on matters of fact and law" material to their
determinations, including the reasons for the investigating authority's acceptance or rejection of
relevant arguments or claims made by interested parties.
7.11.2 Main arguments of the parties
7.11.2.1 United States
7.440. US respondents raised the following arguments that were material to MOFCOM's
determination of causation under Articles 3.5 and 15.5:

693 See, e.g. Award of the Arbitrator, Argentina – Hides and Leather (Article 21.3(c)), paras. 40-41.
694 We note in this context that the United States has not made any claim under Article 6.8 or Annex II
of the Anti-Dumping Agreement with respect to the "residual" rate established.
695 We will refer to these as Articles 12.2, 12.2.2, 22.3, and 22.5.

a. there could be no link between subject imports and material injury because subject
import volume increased entirely at the expense of non -subject imports and did not take
any market share from the domestic industry696; and
b. subject imports could not have had an adverse impact on the domestic industry because
over 40% of subject imports consisted of chicken feet, which Chinese producers were
incapable of supplying in adequate quantities.697
7.441. MOFCOM rejected these arguments without providing a sufficiently detailed or sound
explanation of its reasoning in the public notices of the final determinations. MOFCOM thus failed
to address in the redetermination key causation arguments raise d by US respondents in the
reinvestigation inconsistently with Articles 12.2, 12.2.2, 22.3, and 22.5.
7.11.2.2 China
7.442. MOFCOM sufficiently addressed both issues in the redetermination. In respect of the
market share argument, the Panel in its original report did not find a violation, and MOFCOM has
not done anything differently in the redetermination. In respect of the chicken feet argument,
MOFCOM cross -referenced its rejection of the argument in the preliminary determination, in
accordance with the findings of the Panel in the original dispute.
7.11.3 The law
7.443. Articles 12.2 and 12.2.2 of the Anti-Dumping Agreement provide:
12.2 Public notice shall be given of any preliminary or final determination, whether
affirmative or negative, of any decision to accept an undertaking pursuant to Article 8,
of the termination of such an undertaking, and of the termination of a definitive
anti-dumping duty. Each such notice sha ll set forth, or otherwise make available
through a separate report, in sufficient detail the findings and conclusions reached on
all issues of fact and law considered material by the investigating authorities. All such
notices and reports shall be forwarded to the Member or Members the products of
which are subject to such determination or undertaking and to other interested parties
known to have an interest therein.
12.2.2 A public notice of conclusion or suspension of an investigation in the case of an
affirmative determination providing for the imposition of a definitive duty or the
acceptance of a price undertaking shall contain, or otherwise make available through a
separate report, all relevant information on the matters of fact and law and reasons
which have led to the imposition of final measures or the acceptance of a price
undertaking, due regard being paid to the requirement for the protection of
confidential information. In particular, the notice or report shall contain the
information described in subparagraph 2.1, as well as the reasons for the acceptance
or rejection of relevant arguments or claims made by the exporters and importers,
and the basis for any decision made under subparagraph 10.2 of Article 6.
7.444. Articles 22.3 and 22.5 of the SCM Agreement similarly provide:
22.3 Public notice shall be given of any preliminary or final determination, whet her
affirmative or negative, of any decision to accept an undertaking pursuant to
Article 18, of the termination of such an undertaking, and of the termination of a
definitive countervailing duty. Each such notice shall set forth, or otherwise make
available through a separate report, in sufficient detail the findings and conclusions
reached on all issues of fact and law considered material by the investigating
authorities. All such notices and reports shall be forwarded to the Member or Members
the products of which are subject to such determination or undertakin g and to other
interested parties known to have an interest therein.

696 United States' first written submission, paras. 212-213.
697 United States' first written submission, paras. 214-216.

22.5 A public notice of conclusion or suspension of an investigation in the case of an
affirmative determination providing for th e imposition of a definitive duty or the
acceptance of an undertaking shall contain, or otherwise make available through a
separate report, all relev ant information on the matters of fact and law and reasons
which have led to the imposition of final measur es or the acceptance of an
undertaking, due regard being paid to the requirement for the protection of
confidential information. In particular, the notice or report shall contain the
information described in paragraph 4, as well as the reasons for the acce ptance or
rejection of relevant arguments or claims made by interested Members and by the
exporters and importers.
7.445. Articles 12.2 and 22.3 require tha t a public notice be given of any preliminary or final
determination and that each such notice set forth, o r otherwise make available through a separate
report, in sufficient detail the findings and conclusions reached on all issues of fact and law
considered material by the investigating authority . The term "issue of fact and law considered
material" includes "an issue that has arisen in the course of the investigation that must necessarily
be resolved in order for the investigating authorities to be able to reach their determination" 698;
what may constitute such an issue is determined by the framework of the substantive provisions of
the agreement concerned.699
7.446. Articles 12.2.2 and 22.5 require that the public notice contain all relevant information on
the matters of fact and law and reasons that have led to the imposition of final measures. The
notice must allow an understanding of the factual basis that led to the imposition of final measures
and give a reasoned account of the factual support for an authority's decision. 700 Under these
provisions, parties whose interests are affected by the imposition of final measur es are entitled to
know, as a matter of fairness and due process, the facts, law and reasons that have led to the
imposition of such duties, and seeks to guarantee that interested parties are able to pursue judicial
review of a final determination as provi ded for in the agreements. 701 An investigating authority is
required to include in the public notice sufficient detail concerning the authority's findings and
conclusions to allow interested parties to assess the conformity of those findings and conclusions
with domestic law and the WTO Agreement.702
7.11.4 Analysis and conclusion
7.447. We recall our observation in the original report to the effect that a number of other panels
have exercised judicial economy in relation to claims under Articles 12.2 or 12.2.2 of the
Anti-Dumping Agreement in circumstances where a substantive inconsistency with another
provision of the Anti -Dumping Agreement had been found. 703 In the original report we refrained
from making substantive findings in respect of Articles 3.5 and 15.5, but proceede d to make
findings under Articles 12.2, 12.2.2, 22.3, and 22.5 given their relevance "for the purposes of
implementation".
7.448. We have found that the redetermination's causation analysi s is inconsistent with
Articles 3.5 and 15.5. In this light, we consider it is not necessary to make additional findings as to
whether a substantively flawed determination was adequately set out in the public notice of that
determination in accordance with Articles 12.2 and 12.2.2 of the Anti -Dumping Agreement, and
Articles 22.3 and 22.5 of the SCM Agreement.

698 Panel Report, China – Broiler Products, para. 7.327.
699 Panel Report, China – Broiler Products, para. 7.327 (referring to Appellate Body Report, China –
GOES, para. 257).
700 Panel Report, China – Broiler Products, para. 7.328 (referring to Appellate Body Report, China –
GOES, para. 256).
701 Panel Report, China – Broiler Products, para. 7.328 (referring to Appellate Body Report, China –
GOES, para. 258).
702 Panel Report, China – Broiler Products, para. 7.328 (referring to Panel Report, China – X-Ray
Equipment, para. 7.459).
703 Panel Report, China – Broiler Products, para. 7.325 (referring to Panel Reports, EC – Bed Linen,

7.12 Consequential claims
7.449. The United States claims that China acted inconsistently wit h Article 1 of the
Anti-Dumping Agreement, Article 10 of the SCM Agreement , and Article VI of the GATT 1994, as a
consequence of the alleged violations of the Anti-Dumping Agreement and the SCM Agreement.704
7.450. China argues that the United States has not presented a prima facie case and therefore
has not established its claims of consequential violations unde r Article 1 of the
Anti-Dumping Agreement, Article 10 of the SCM Agreement, and Article VI of the GATT 1994.705
7.451. As is clear from the panel request , the US claims unde r Article 1 of the
Anti-Dumping Agreement, Article 10 of the SCM Agreement , and Article VI of the GATT 1994 are
consequential. That is, any findings of violation would necessarily depend on and follow our
conclusions on violations with respect to the substantive claims brought by the United States
under other provisions of the Anti -Dumping Agreement and the SCM Agreement. It is particular to
the nature of a consequential claim that a prima facie case is effectively made out where a
complaining party establishes a violation of a substantive provision and demonstrates that the
consequential claim is predicated on the substantive provision . China does not dispute the
predicate relationship; for its part, the United States asserted claims of consequential violations of
Article 1 of the Anti -Dumping Agreement, Article 10 of the SCM Agreement , and Article VI of the
GATT 1994 on the basis of its substantive claims.706
7.452. China expressed concern because the United States did not set out arguments in support
of its consequential claims in its first written submission. 707 China did not demonstrate that it
suffered any prejudice or that the panel process was impeded in any way as a result. We recall
that in an Article 21.5 proceeding, both first and rebuttal submissions are submitted before the
panel meets with the parties. Given the nature of consequential claims, as described above, while
it would have been preferable for the United States to include its arguments in support of those
claims in its first written submission 708, in the circumstances of this dispute we see no reason not
to consider and resolve these claims.
7.453. In the light of the foregoing, we conclu de that, as a consequence of the inconsistencies
with the Anti -Dumping Agreement and the SCM Agreement we have found, China acted
inconsistently with Article 1 of the Anti-Dumping Agreement, Article 10 of the SCM Agreement, and
Article VI of the GATT 1994.
8 CONCLUSIONS AND RECOMMENDATION
8.1. For the reasons set out in this r eport, we conclude that the US claim s under Articles 6.1.2
and 6.2 of the Anti -Dumping Agreement and Article 12.1.2 of the SCM Agreemen t are not within
our terms of reference.709
8.2. For the reasons set forth in this report, we conclude that the United States has demonstrated
that China acted inconsistently with:
a. the second sentence of Article 2.2.1.1 of the Anti-Dumping Agreement;
b. Articles 3.1 and 3.2 of the Anti -Dumping Agreement and Articles 15.1 and 15.2 of the
SCM Agreement;
c. Articles 3.1 and 3.4 of the Anti -Dumping Agreement and Articles 15.1 and 15.4 of the
SCM Agreement;

704 United States' second written submission, para. 224.
705 China's first written submission, para. 411; second written submission, paras. 365-367.
706 United States' panel request, paras. 11, 12, and 13; second written submission, para. 224.
708 Paragraph 6 of the Panel's Working Procedures specifies that, before the substantive meeting of the
Panel with the parties, each party "shall submit to the Panel a first written submission, and subsequently a
written rebuttal, in which it presents the facts of the case and its arguments, and counter-arguments,
respectively". The Panel retains the right to modify its working procedures.
709 See the Panel's preliminary ruling, Annex E-1.

d. Articles 3.1 and 3.5 of the Anti -Dumping Agreement and Articles 15.1 and 15.5 of the
SCM Agreement;
e. Article 6.1 of the Anti-Dumping Agreement and Article 12.1 of the SCM Agreement;
f. Article 6.4 of the Anti-Dumping Agreement and Article 12.3 of the SCM Agreement;
g. Article 6.8 and paragraph 3 of Annex II of the Anti-Dumping Agreement; and
h. Article 1 of the Anti-Dumping Agreement, Article 10 of the SCM Agreement and Article VI
of the GATT 1994.
8.3. For the reasons set forth in this report, we conclude that the United States has not
demonstrated that China acted inconsistently with:
a. Article 6.9 of the Anti-Dumping Agreement; and
b. Article 9.4(i) of the Anti-Dumping Agreement.
8.4. We do not consider it necessary to address the US claim under Art icles 12.2 and 12.2.2 of
the Anti-Dumping Agreement and Articles 22.3 and 22.5 of the SCM Agreement.
8.5. 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. Acc ordingly, to the extent MOFCOM
has acted inconsistently with certain provisions of the Anti -Dumping and SCM Agreements, we
conclude that China has nullified or impaired benefits accruing to the United States under these
agreements.
8.6. Above, we concluded that China acted inconsistently with certain provisions of the
Anti-Dumping and SCM Agreements. Accordingly, China's measures taken to comply with the
DSB's recommendations and rulings in the original dispute, at issue in this proceeding, are
inconsistent with the relevant covered agreements. China therefore failed to comply with the
recommendations and rulings of the DSB to bring its measures into conformity with its obligations
under the Anti-Dumping and SCM Agreements. To the extent that China failed to comp ly with the
recommendations and rulings of the DSB, those recommendations and rulings remain operative.