UNITED STATES – CONTINUED EXISTENCE AND APPLICATION OF ZEROING METHODOLOGY
Document: Report of the Appellate Body
Date: 4 February 2009
Document codes: WT/DS350/AB/R
Complainant: EU
Respondent: U.S.
Third parties: Brazil, China, Egypt, India, Japan, South Korea, Mexico, Norway, Taiwan, Thailand
Dispute stage: Appellate Body
Agreements cited: Art. 2.1, 2.4, 2.4.2, 5.8, 9.1, 9.3, 9.5, 11, 1, 11.1, 11.3, 11.2, 2  Anti-dumpingArt. VI:1, VI:2  GATT 1994Art. 18.4  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade Organization

UNITED STATES – CONTINUED EXISTENCE AND APPLICATION OF ZEROING
METHODOLOGY

AB-2008-11

Report of the Appellate Body

APPELLATE BODY

European Communities, Appellant / Appellee
United States, Other Appellant / Appellee

Brazil, Third Participant
China, Third Participant
Egypt, Third Participant
India, Third Participant
Japan, Third Participant
Korea, Third Participant
Mexico, Third Participant
Norway, Third Participant
Separate Customs Territory of Taiwan, Penghu,
 Kinmen and Matsu, Third Participant
Thailand, Third Participant
 AB-2008-11

 Present:

 Zhang, Presiding Member
 Baptista, Member
 Unterhalter, Member

I. Introduction
1. The European Communities and the United States each appeals certain issues of law and legal
interpretations developed in the Panel Report, (the "Panel Report").
1 The Panel was established to consider a complaint by the
European Communities concerning the continued application by the United States of anti-dumping
duties resulting from anti-dumping duty orders enumerated in 18 cases 2, as calculated or maintained
in place pursuant to the most recent proceedings3 at a level in excess of the margin of dumping that, in
the European Communities' view, would have result ed from the correct application of the relevant
provisions of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and

1, 1 October 2008.
2Panel Report, para. 2.1. In the annex to its Reque st for the Establishment of a Panel, ,
the European Communities identified 18 anti-dumping orde rs for which, it alleges, duties were set and/or
maintained on the basis of the zeroing methodology applied by the United States Department of Commerce (the
"USDOC"). The European Communities identified these 18 cases by reference to the country and the product
involved (enumerated as Cases I to XVIII), as we ll as 52 specific anti-dumping proceedings (original
investigations, periodic reviews, and sunset reviews) that pertain to these 18 cases (Nos. 1 to 52). (See Panel
Report, para. 7.48) For ease of reference, we will use the same numbering system in this Report to facilitate
identification of the 18 cases and the va rious proceedings at issue, as listed in the panel request attached to the
Panel Report as Annex F-1, pp. F-6 to F-15. The relevant exhibits relating to these 18 cases are Panel Exhibits
EC-26, EC-28 to EC-31, and EC-33 through EC-79.
3On page 3 of its panel request, the European Communities specified that its claim related to duties as
"calculated or maintained in place pu rsuant to the most recent administra tive review or, as the case may be,
original proceeding or changed circumstances or sunset review proceeding". (WT/DS350/6, Panel Report,
Annex F-1, p. F-4)

Trade 1994 (the " Anti-Dumping Agreement "). The European Communities also challenged the
specific instances of applicati on of the zeroing methodology in four original anti-dumping
investigations, 37 periodic reviews, and 11 sunset reviews pertaining to the same 18 cases.
4
2. Before the Panel, the European Communities claimed that:
 (a) the United States had acted inconsiste ntly with Articles VI:1 and VI:2 of the General
Agreement on Tariffs and Trade 1994 (the "GATT 1994"), Articles 2.4, 2.4.2, 9.3,
11.1, and 11.3 of the Anti-Dumping Agreement, and Article XVI:4 of the Marrakesh
Agreement Establishing the World Trade Organization (the " WTO Agreement "),
because it continues to apply duties that were calculated using the zeroing
methodology in the 18 anti-dumping measures listed in the annex to the European
Communities' request for the establishment of a panel
5;
 (b) the United States had acted inconsistent ly with Articles VI:1 and VI:2 of the
GATT 1994 and Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement when
applying "model zeroing"6 in the four original investigations at issue in this dispute7;

4Panel Report, para. 2.1.
5European Communities' first written submission to the Panel, Panel Report, Annex A-1, p. A-59,
para. 264; Panel Report, para. 3.1.
6Before the Panel, the European Communities used the term "model zeroing" to describe a
methodology whereby an investigating authority compares the weighted average normal value and the weighted
average export price for each model of the product under investigation and treats as zero the results of model-
specific comparisons where the weight ed average export price exceeds th e weighted average normal value,
when aggregating comparison results in order to calculate a margin of dumping for the product under
investigation. (See Panel Report, para. 7.7; and Eur opean Communities' first written submission to the Panel,
Panel Report, Annex A-1, p. A-9, paras. 10 and 11)
7European Communities' first written submission to the Panel, Panel Report, Annex A-1, p. A-59,
para. 264; Panel Report, para. 3.1(b). The four original investigations are identified at paragraph 7.103 of the
Panel Report, and the relevant exhibits relating to these investigations are Panel Exhibits EC-26, EC-28, EC-29,
and EC-30.

 (c) the United States had acted inconsiste ntly with Articles VI:1 and VI:2 of the
GATT 1994 and Articles 2.4, 2.4.2, 9.3, and 11.2 of the Anti-Dumping Agreement
when applying "simple zeroing"8 in the 37 periodic reviews 9 at issue in this dispute 10;
and
 (d) the United States had acted inconsistently with Articles 2.1, 2.4, 2.4.2, 11.1, and 11.3
of the Anti-Dumping Agreement in the 11 sunset reviews 11 at issue in this dispute 12
when relying on margins of dumping calcula ted in prior investigations using the
zeroing methodology.13
3. The European Communities also requested the Pa nel to suggest, pursuant to Article 19 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes (the "DSU"), that the
United States cease to use the zeroing methodolo gy when calculating dumping margins in any anti-
dumping proceeding in connection with the 18 ca ses identified in the annex to the European
Communities' panel request.14

8Before the Panel, the European Communities used the term "simple zeroing" to describe a
methodology whereby an investigating authority compares the prices of individual ex port transactions against
monthly weighted average normal values and treats as ze ro the results of comparisons where the export price
exceeds the monthly weighted average normal value when aggr egating comparison results. (See Panel Report,
paras. 7.7 and 7.160; and European Communities' firs t written submission to the Panel, Panel Report, Annex
A-1, p. A-12, paras. 25 and 26)
9We use the term "periodic review" to describe the periodic review of the amount of anti-dumping duty
as required by Section 751(a) of the United States Tari ff Act of 1930 (Public Law No. 1202-1527, 46 Stat. 741,
codified in United States Code, Title 19, Chapter 4, as amended) (the "T ariff Act"). That provision requires the
USDOC to review and determine the amount of any an ti-dumping duty, at least once during each 12-month
period beginning on the anniversary of the date of publication of an anti-dumping duty order, if a request for
such a review has been received. In the case of th e first assessment proceeding fo llowing the issuance of the
Notice of Antidumping Duty Order, the period of time may extend to a period of up to 18 months in order to
cover all entries that may have been subject to provisional measures. (See also European Communities' first
written submission to the Panel, Panel Report, Annex A-1, pp. A-10 and A-11, paras. 15-19)
10European Communities' first written submission to the Panel, Panel Report, Annex A-1, p. A-59,
para. 264; Panel Report, para. 3.1(c). The 37 periodic reviews are identified at paragraph 7.145 of the Panel
Report, and the relevant exhibits relating to these periodic reviews are Panel Exhibits EC-31 and EC-33 through
EC-68.
11We use the term "sunset review" to describe the review of an anti-dumping duty order five years after
its publication, as required by Section 751(c) of the Tariff Act. That provision requires the USDOC to conduct a
review to determine whether revocation of the anti-dumping duty order would likely lead to continuation or
recurrence of dumping and of material injury five years after the date of publication of an anti-dumping duty
order. (See also European Communities' first writte n submission to the Panel, Panel Report, Annex A-1,
p. A-13, paras. 30 and 31)
12The 11 sunset reviews are identified at paragraph 7.190 of the Panel Report, and the relevant exhibits
relating to these sunset reviews are Panel Exhibits EC-69 through EC-79.
13European Communities' first written submission to the Panel, Panel Report, Annex A-1, p. A-59,
14Panel Report, para. 3.2.

4. In the Panel Report, circulated to Members of the World Trade Organization (the "WTO")
on 1 October 2008, the Panel found that:
(a) the 14 anti-dumping proceedings identif ied in the European Communities' panel
request, but not in its request for consulta tions, were within the Panel's terms of
reference
15;

(b) the European Communities' claims in connection with the continued application of
the 18 anti-dumping duties were not within the Panel's terms of reference16;

(c) the European Communities' claims rega rding the four preliminary determinations
identified in its panel request were not within the Panel's terms of reference
17;

(d) the United States had acted inconsistently with its obligations under Article 2.4.2
of the Anti-Dumping Agreement by using model zeroing in the four original
investigations challenged by the European Communities in this dispute18;

(e) the United States had acted inconsistently with its obligations under Article VI:2
of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement by applying
simple zeroing in 29 periodic reviews challenged by the European Communities in
this dispute19; and

(f) the United States had acted inconsistently with its obligations under Article 11.3 of
the Anti-Dumping Agreement by using, in eight sunset reviews challenged by the
European Communities in this dispute, dumping margins obtained through the use
of model zeroing in prior investigations.
20

5. The Panel recommended that the Dispute Settleme nt Body (the "DSB") request the United
States to bring its measures found to be inconsistent with the GATT 1994 and the Anti-Dumping

15Panel Report, paras. 7.28 and 8.1(a).
16Panel Report, paras. 7.61 and 8.1(b).
17Panel Report, paras. 7.77 and 8.1(c).
18Panel Report, paras. 7.111 and 8.1(d).
19Panel Report, paras. 7.183 and 8.1(e). One of the 37 periodic reviews challenged by the European
Communities was a preliminary determination that the Panel found not to be within its terms of reference, and
the Panel found that the European Communities had not shown that simple zeroing was used in the other seven
periodic reviews. (Ibid., para. 7.158)
20Panel Report, paras. 7.202 and 8.1(f). The Panel noted that three of the 11 sunset reviews challenged
by the European Communities concerned preliminary determinations that the Panel found not to be within its

Agreement into conformity with its WTO obligations 21, but declined to make a suggestion as to how
the DSB recommendations and rulings could be implemented by the United States.22
6. On 6 November 2008, the European Communiti es notified the DSB, pursuant to Articles 16.4
and 17 of the DSU, of its intention to appeal cer tain issues of law covered in the Panel Report and
certain legal interpretations developed by the Panel and filed a Notice of Appeal23 pursuant to Rule 20
of the Working Procedures for Appellate Review 24 (the " Working Procedures ").
On 13 November 2008, the European Communities filed an appellant's submission. 25
On 18 November 2008, the United States notified the DSB, pursuant to Articles 16.4 and 17 of the
DSU, of its intention to appeal certain issues of law covered in the Pane l Report and certain legal
interpretations developed by the Pane l and filed a Notice of Other Appeal
26 pursuant to Rule 23(1)
and (2) of the Working Procedures . On 21 November 2008, the United States filed an other
appellant's submission. 27 On 1 December 2008, the European Communities and the United States
each filed an appellee's submission. 28 On the same day, Brazil, Japan, and Korea each filed a third
participant's submission 29, and China, India, Mexico, Norway, the Separate Customs Territory of
Taiwan, Penghu, Kinmen and Matsu, and Thailand each notified its in tention to appear at the oral
hearing as a third participant. 30 On 2 December 2008, Egypt notified its intention to attend the oral
hearing as a third participant.31
7. The European Communities and the Un ited States requested, by letters
dated 14 and 17 November 2008, respectively, that th e Appellate Body Division hearing this appeal
authorize public observation of the oral hearing. 32 The European Communiti es and the United States
submitted that public observation of the oral hearing was not precluded by the DSU, the Working
Procedures, or the Rules of Conduct for the Understanding on Rules and Procedures Governing the

21Panel Report, para. 8.3.
22Panel Report, para. 8.7. The Panel applied judicial economy with regard to the European
Communities' claims under: Article 2.4 of the Anti-Dumping Agreement and Articles VI:1 and VI:2 of the
GATT 1994 regarding the use of model zeroing in the four original investigations at issue; Articles 2.1, 2.4,
2.4.2, and 11.2 of the Anti-Dumping Agreement regarding the use of simple zeroing in 29 periodic reviews; and
Articles 2.1, 2.4, 2.4.2, and 11.1 of the Agreement regarding the use of ma rgins obtained in prior proceedings
through the zeroing methodology in eight sunset reviews at issue. (Panel Report, para. 8.2)
23WT/DS350/11 (attached as Annex I to this Report).
24WT/AB/WP/5, 4 January 2005.
25Pursuant to Rule 21 of the Working Procedures.
26WT/DS350/12 (attached as Annex II to this Report).
27Pursuant to Rule 23(3) of the Working Procedures.
28Pursuant to Rules 22 and 23(4) of the Working Procedures.
29Pursuant to Rule 24(1) of the Working Procedures.
30Pursuant to Rule 24(2) of the Working Procedures.
31Pursuant to Rule 24(4) of the Working Procedures.
32Similar requests were made in the appeals in US – Continued Suspension and Canada – Continued
Suspension and EC – Bananas III (Article 21.5 – Ecuador II) and EC – Bananas III (Article 21.5 – US).

Settlement of Disputes .
33 The participants proposed public observation by means of a simultaneous
closed-circuit television broadcast to a separate ro om, with the transmission being interrupted when
any third participant wishing to maintain the confidentiality of its statements took the floor.
8. On 18 November 2008, the Division invited the th ird participants to comment in writing on
the participants' requests to open the hearing to public observation. The Division asked the third
participants to provide their views on, in partic ular, the permissibility of opening the hearing for
public observation under the DSU and the Working Procedures, and, if they so wished, the specific
logistical arrangements proposed by the participan ts. Comments were received from all of the third
participants on 24 November 2008. Japan, Norway, and the Separate Customs Territory of Taiwan,
Penghu, Kinmen and Matsu expressed their support for th e requests of the participants. Korea did not
object to the opening of the oral hearing to th e public in these proceedings, but requested the
Appellate Body to treat its written and oral statemen ts as confidential. Brazil, China, Egypt, India,
Mexico, and Thailand expressed the view that the provisions of the DSU do not allow public
observation of oral hearings at the appellate stage. According to these third participants, the oral
hearing forms part of the proceedings of the A ppellate Body and is, therefore, subject to the
requirement of Article 17.10 of the DSU that "[t] he proceedings of the Appellate Body shall be
confidential".
9. On 28 November 2008, the Division issued a Procedural Ruling in which it authorized the
public observation of the oral hearing for the particip ants and the third participants who so requested,
and adopted additional procedures for that pur pose in accordance with Rule 16(1) of the Working
Procedures.34 Oral statements and responses to questions by third participants wishing to maintain
the confidentiality of their submissions were not subject to public observation.
10. The oral hearing in this appeal was held on 11 and 12 December 2008. The participants and
the third participants were given the opportunity to present oral arguments and respond to questions
posed by the Division hearing the appeal.35

33The Rules of Conduct , as adopted by the DSB on 3 Dece mber 1996 (see WT/DSB/RC/1), are
incorporated into the Working Procedures as Annex II thereto (see WT/DSB/RC/2, WT/AB/WP/W/2).
34The Procedural Ruling is attached as Annex III to this Report.
35Public observation took place via simultaneous closed-circuit television broadcast to a separate room.
Pursuant to the additional procedures adopted by the Division, China, Egypt, India, Korea, Mexico, and
Thailand each requested that its oral statements and responses to questions remain confidential and not be
subject to public observation. Brazil agreed to public ob servation of its participation in the oral hearing without
prejudice to its position on the permissibility of public observation of the oral hearing before the Appellate
Body.

II. Arguments of the Participants and the Third Participants
A. Claims of Error by the European Communities – Appellant
1. The Panel's Terms of Reference – Continued Application of 18 Anti-
Dumping Duties
11. The European Communities claims that the Panel erred in finding that the European
Communities failed to identify in its request fo r the establishment of a panel, as required by
Article 6.2 of the DSU, the specific measures at i ssue with respect to the application and continued
application of 18 anti-dumping duties. The Eur opean Communities requests the Appellate Body to
modify or reverse the Panel's finding and complete the analysis by finding that the panel request did
identify the specific measures at issue, and that "each of the 18 measures is inconsistent with
Articles VI:1 and VI:2 of the GATT 1994, Articles 2.4, 2.4.2, 9.3, 11.1 and 11.3 of the Anti-Dumping
Agreement, and Article XVI:4 of the WTO Agreement."36
12. Before elaborating on its specific grounds of a ppeal, the European Co mmunities clarifies the
"correct legal analysis" 37 of Articles 3.3 and 6.2 of the DSU. The European Communities observes
that Articles 3.3 and 6.2 relate to different matters. The European Communities distinguishes
between whether "something brought before a panel by a complaining Member constitutes a 'measure'
within the meaning of Article 3.3 of the DSU" and whether "a panel request satisfies the requirement
in Article 6.2 of the DSU that it 'identify the specific measures at issue'".38 According to the European
Communities, the former is a substantive issue, while the latter is a procedural one. The European
Communities maintains that the United States made no reference to Article 3.3 in its request for a
preliminary ruling by the Panel, and did not assert that the European Communities "had not
demonstrated the existence or precise content of the measures at issue".39
13. The European Communities further submits that the United States' request for a preliminary
ruling was based on the assumption that the Eur opean Communities' panel request referred to
measures " that might or might not be adopted in the future , and therefore referred to an
'indeterminate' number of measures". 40 The European Communities maintains that it was not
referring to the "type of 'measure' falling within the same category as the 52 measures
(i.e, the 18 measures [were] not just a simple aggregation of the 52 measures)", but that it was

38European Communities' appellant's submission, para. 18. (original emphasis)
39European Communities' appellant's submission, para. 21. (original emphasis)
40European Communities' appellant's submission, pa ra. 23 (original emphasis) (referring to United
States' first written submission to the Panel, Panel Report, Annex A-2, pp. A-88 and A-89, paras. 66-71).

referring to "the duty as the measure".
41 The European Communities further submits that it had
demonstrated the existence and precise content of what were measures within the meaning of
Article 3.3 of the DSU, and that the existence a nd precise content of the 18 duties was not in dispute
between the parties.42
14. In the European Communities' view, the Appellate Body has found that " any act or omission
attributable to a WTO Member can be a measure of that Member for the purposes of dispute
settlement proceedings, including acts setting forth rules or norms that are intended to have general
and prospective application." 43 The European Communities furt her endorses the Appellate Body's
view that the term "measure" encompasses "the entire body of generally applicable rules, norms and
standards adopted by Members" 44 and that there is no basis for finding that only certain types of
measure can be challenged in dispute settlement pro ceedings. The European Communities adds that
the Appellate Body has also affirmed that, as l ong as the complaining Member adduces evidence to
demonstrate the existence and precise content of a m easure, the fact that it is not expressed in writing
is not determinative.45
15. The European Communities argues that the lega l issue it raises on appeal concerns the
manner in which the complaining Member is entitled to frame its claims, and particularly the terms in
which it is entitled to refer to the measures at issu e. The European Communities explains that, with
respect to its claims before the Panel concerning th e 52 measures, it had referred to each final order
and the result of each periodic review or sunset re view as a separate "measure" within the meaning of
Article 3.3 of the DSU. In a separate set of claims, it had referred to each of the 18 anti-dumping
duties as a "measure" within the meaning of Artic le 3.3 of the DSU. The European Communities
acknowledges that there is some overlap between th e two sets of claims, but states that the claims
with respect to the 18 anti-dumping duties were "mor e extensive and of more value to the European
Communities"46 than the claims concerning the 52 measures.
16. The European Communities further explains that its approach of challenging the 18 duties as
"measures" allows it "to apprehend the root of the WTO inconsistency as it relates to a particular anti-
dumping duty". 47 For the European Communities, once ther e is a finding that a particular anti-

41European Communities' appellant's submission, para. 24. (original emphasis)
43European Communities' appellant's submission, para. 27 (original emphasis; footnote omitted)
(referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, paras. 81 and 82).
44European Communities' appellant's submission, para. 27 (original emphasis) (quoting Appellate Body
Report, US – Corrosion-Resistant Steel Sunset Review, para. 87).
45European Communities' appellant's submission, para. 28 (referring to Appellate Body Report, US –
Zeroing (EC), para. 198).
46European Communities' appellant's submission, para. 31. (footnote omitted)
47European Communities' appellant's submission, para. 33. (original emphasis)

dumping duty is WTO-inconsistent, it may take "t he entirely reasonable view that as long as the
particular anti-dumping duty based on zeroing rema ins in place the United States will not have
complied."48 The European Communities argues that the United States' interpretation—that there are
a series of different measures, each with a di stinctive temporal scope—means that, even if the
European Communities obtains a finding of inco nsistency against a measure, "such finding is
worthless".49 This is so because, when the European Communities initiates compliance proceedings,
the United States asserts that the "original" me asure has "expired", and that, if the European
Communities wishes to challenge the new measure, it "must start all over again" with a new panel.50
17. According to the European Communities, the Pa nel suggests that a complaining Member is
"actually precluded, from the outset , and as a matter of principle , from referring to the duty as the
measure"51 and that this contradicts the text of the DSU, the GATT 1994, and the Anti-Dumping
Agreement. In the European Communities' view, th is line of reasoning is erroneous, because it
"focuses only on that part of the measure that mi ght change (as a function of the updated data-set)
with each administrative review, namely the rate of duty (or the cash deposit rate)." 52 Rather, the
European Communities' complaint is directed at the unchanging part of the measure, "namely the
zeroing methodology as used in the final order and programmed to continue to be used until such time
as the United States eliminates zeroing from the particular anti-dumping duty under consideration."53
18. The European Communities submits that relevant provisions of the GATT 1994 and the Anti-
Dumping Agreement provide contextual support for the pr oposition that the term "measure" in
Article 3.3 of the DSU includes an anti-dumping duty. Given that Article 17.4 of the Anti-Dumping
Agreement refers expressly to "anti-dumping duties ", and the Appellate Body has referred to anti-
dumping duties when describing the three types of permissible responses to dumping under
Article 17.4, "[i]t necessarily follows that the out comes of the various types of review (newcomer,
changed circumstances, sunset and assessment proc eedings) fall within the ambit of Article 17.4 by
virtue of the fact that they amend the underlying measure."
54 In such cases, there is one single
measure (the duty) manifested in a series of documen ts that may be adopted over time. The European
Communities asserts that, "[a]s long as there is an asp ect of the measure that does not change (in this
case, the zeroing methodology), then that aspect of th e measure can be addressed in its own right, in
such a way that any findings will have prospec tive value, until such time as the measure is

49European Communities' appellant's submission, para. 34. (original emphasis)
51European Communities' appellant's submission, para. 35. (original emphasis)
54European Communities' appellant's submission, para. 38 (referring to Appellate Body Report,
Guatemala – Cement I, para. 79).

corrected."
55 In addition, the European Communities refers to Articles II, VI, and XXIII of the
GATT 1994 and Articles 7.2, 8.6, 9.1-9.3, 11.1-11.3, 12.2.2, 15, and 18.3.2 of the Anti-Dumping
Agreement and the general object and purpose of the c overed agreements in support of its assertion
that Article 3.3 of the DSU "allows Members to challenge duties as a measure".56
19. The European Communities considers that all prior panels and the Appellate Body dealing
with zeroing have found that the zeroing met hodology is a "measure" within the meaning of
Article 3.3 of the DSU, and that its precise cont ent has been demonstrated. As the present case
addresses precisely the same thing but is more specifically limited to particular anti-dumping duties
on particular products exported from the European Communities to the United States, the European
Communities fails to understand how additional criter ia (specifying particular products, particular
country of export, particular duties), which in eff ect narrow the scope of the measure, could have the
effect of taking the measure outside the scope of Article 3.3 of the DSU.
20. The European Communities asserts that, given th at the existence of the zeroing methodology
has been repeatedly demonstrated, the Panel' s finding that the European Communities had not
demonstrated the existence of each of the 18 me asures was unfounded. The European Communities
maintains that the existence of a specific anti-dumping duty on a specific product exported from the
European Communities to the United States "not onl y was never contested by the United States, but
could never be seriously contested by the United Stat es, given the fact that it is a simple matter of
public record".
57
21. The European Communities rejects the view of the Panel that the European Communities was
referring to an "indeterminate number of measures" 58 and was seeking a remedy as regards "'future
measures' that 'do not exist as of the date of the panel's establishment'." 59 The European Communities
argues that its approach sufficiently distinguishes between the 18 measures and the 52 measures, and
that nothing precludes a WTO Member from bri nging dispute settlement proceedings against
measures that overlap. Further, in the European Communities' view, it is clear that the Panel could
exercise judicial economy with respect to the 52 measures if the Panel made findings regarding
the 18 measures. The European Communities contends that it did not "equate" the 18 measures with
the "zeroing methodology" measure; rather, it explaine d to the Panel that "the relevant part of the

'precise content ' of the 18 measures (that is, the zeroing methodology) was the same as the precise
content of the zeroing methodology measure."60
22. The European Communities explains what it cons iders to be the correct legal analysis under
Article 6.2 of the DSU. Once it is accepted that an anti-dumping duty is a measure, "it is immediately
apparent that it would have been impossible for the [European Communities'] Panel Request to be any
more specific, identifying as it did the document originating each of the 18 measures (in each case, the
final order), that is, the specific duties applying to the specific products exported from the European
Communities to the United States."61 According to the European Communities, the Panel should have
found that the United States had not raised the issu e of whether or not the 18 measures constituted
measures within the meaning of Article 3.3 of the DSU. In any event, the European Communities had
made out a " prima facie case on the existence and precise content of the 18 measures" 62, which the
United States did not address or rebut. Referring to the objective of Article 6.2 to protect a
defendant's due process rights, the European Co mmunities argues that there was no basis for the
United States to assert that it did not understand the allegations being made against it, and contends
that the United States was thus " unilaterally reformulating the case and requesting a preliminary
ruling with respect to that re-formulated case".63
23. In addition, the European Communities submits that the Panel erred by confounding its
analysis of Articles 3.3 and 6.2 of the DSU when it "erroneously equate[d] the substantive question of
the demonstration of the existence and precise content of a measure with the procedural requirement
that a panel request identify the specific measure at issue."64 The issue of specificity under Article 6.2
is not, as the Panel asserted, a "burden of proof" issue, because a complainant "does not have to
discharge its burden of proof, nor make a prima facie case, in its panel request". 65 R a t h e r , " [ t ] h e
procedural issue under Article 6.2 of the DSU is not 'how' the measures have been identified in the
panel request, but simply whether or not the [European Communities'] Panel Request identifies the
specific measure at issue". 66 The European Communities adds that the Panel engaged in a "covert
substantive analysis"67 in which the "Article 3.3 of the DSU issue [was] decisive of its analysis of the
Article 6.2 of the DSU issue".68 The European Communities then fa ults the Panel for finding that the

60European Communities' appellant's submission, para. 47 (original emphasis) (referring to European
Communities' response to Panel Question 1 following the first meeting).
61European Communities' appellant's submission, para. 50. (original emphasis)
63European Communities' appellant's submission, para. 52. (original emphasis)
64European Communities' appellant's submission, para. 54 (original emphasis) (referring to Panel
Report, para. 7.41).
66European Communities' appellant's submission, para. 57. (original emphasis)
68European Communities' appellant's submission, para. 57. (original emphasis)

description of the 18 measures was "ambiguous" b ecause the panel request did not "sufficiently
distinguish" between the 52 measures and the 18 measures.
69 According to the European
Communities, this is "irrelevant to the qu estion of whether or not the panel request identifie[d] the
specific measures at issue".70
24. The European Communities also argues that the Panel's analysis was inconsistent with:
Articles 7.1 and 12.1 of the DSU, and the Working Procedures for panels in Appendix 3 thereto; the
"rule" that the complaining Member has the burden of raising an issue under Article 3.3 of the DSU;
and the "rule" that panels must not make the case for the defending Member. 71 Additionally, the
European Communities contends that the Panel Report is inconsistent with Article 7.2 of the DSU
insofar as the Panel did not address rele vant provisions of the GATT 1994 and the Anti-Dumping
Agreement that were cited by the European Communities in this dispute.
25. The European Communities posits that a complaining Member may make the necessary
factual assertions and adduce th e necessary evidence, and that this may be sufficient—and was
certainly sufficient in this case—to constitute a prima facie case. The European Communities also
contends that defending Members cannot "claim at a late stage of the proceedings ... that the
complaining Member has not made a prima facie case because it has not provided argument regarding
Article 3.3 of the DSU"; nor was the Panel permitted to "autonomously raise" the Article 3.3 issue
and "make a case for the defending Member". 72 It is for the defending Member to " at least raise that
issue in a timely manner" 73 so that the complaining Member may make further factual assertions or
adduce additional evidence.
26. The European Communities further submits th at the Panel acted inconsistently with
Article 11 of the DSU in its assessment of the f acts when concluding that the 18 anti-dumping duties
in question did not exist or that their precise c ontent had not been demonstrated. The European
Communities maintains that the Panel erroneously relie d on the "as such" or "as applied" distinction,
and erred in finding that the European Commun ities equated the 18 measures with the zeroing
methodology. The European Communities considers these Panel findings were based on a "deliberate
refusal"74 to make an objective assessment of the facts, and not on a misunderstanding on the part of
the Panel.

70European Communities' appellant's submission, para. 58. (original emphasis)
72European Communities' appellant's submission, para. 64. (original emphasis)
73European Communities' appellant's submission, para. 64. (original emphasis)

27. Finally, the European Communities contends th at the Panel Report is inconsistent with
Article 12.7 of the DSU because "the Panel did not set out the basic rationale behind its findings and
recommendations."75 The European Communities claims th at the Panel offered no explanation
supporting its conclusions that an anti-dumping dut y constitutes a measure within the meaning of
Article 3.3 of the DSU, or that the European Co mmunities' panel request did not identify the specific
measures at issue as required by Article 6.2 of the DSU.
28. On this basis, the European Communities request s the Appellate Body to modify or reverse
the Panel's findings. 76 In addition, the European Commun ities requests the Appellate Body to
complete the analysis and find that the European Communities' panel request did identify the specific
measures at issue as required by Article 6.2 of the DSU. To the extent the Appellate Body reaches the
issue, it should find that the European Commun ities had demonstrated th e existence and precise
content of the measures within the meaning of Ar ticle 3.3 of the DSU. The European Communities
further requests the Appellate Body to complete the analysis and find that, "because of the use of
zeroing, each of the 18 measures is inconsistent with Articles VI:1 and VI:2 of the GATT 1994 ,
Articles 2.4, 2.4.2, 9.3, 11.1 and 11.3 of the Anti-Dumping Agreement, and Article XVI:4 of the WTO
Agreement."
77
2. The Panel's Terms of Reference – Four Preliminary Determinations
29. The European Communities submits that the Pane l erred when it excluded four preliminary
determinations from its terms of reference. The European Communities observes that the Panel
rejected the claims "on the assumption that the European Communities had argued that the four
preliminary determinations were 'provisional measures'" 78 within the meaning of Article 17.4 of the
Anti-Dumping Agreement . The European Communities emphasizes that it was not challenging the
four preliminary determinations as "p rovisional measures" but, rather, "the continued application of
zeroing in connection with the [18] definitive anti-dumping duties "79 identified in its panel request.
Accordingly, the European Communities argues that its claim concerning the continued application
of 18 specific anti-dumping duties "effectively caught any subsequent 'measure' (that is, the type of
measure falling into the category of the 52 meas ures) adopted by the United States, including

76European Communities' appellant's submissi on, para. 74 (referring to Panel Report,
paras. 7.40-7.67—in particular, 7.56, final sentence, and 7.61—and 8.1(b)).
77European Communities' appellant's submission, para. 75. The European Communities also outlines
its objection to the designation of the document circ ulated by the United States as WT/DS344/11. The
European Communities requests the Appellate Body to confirm that such documents do not fall into the same
category as other WT/DS documents relating to the same dispute or, alternatively, to consider how such
documents should be designated. (See European Communities' appellant's submission, paras. 77-80)
78European Communities' appellant's submission, para. 85. (original emphasis)
79European Communities' appellant's submission, para. 87. (original emphasis)

preliminary determinations setti ng out the duty levels (wrongly calculated by applying zeroing) and
insofar as those duties are still in place."
80 Therefore, any act or decision taken by the United States
with respect to the duties in place, even if it w as not final, was covered by the Panel's terms of
reference.
30. The European Communities submits that Ar ticle 17.4 allows Members to challenge
preliminary determinations that are part of the matter as identified in the dispute. 81 The European
Communities refers to the Appellate Body's obser vation that, "once one of the three types of
measure[s] listed in Article 17.4 has been identified in the request for establishment of a panel, a
Member may challenge the consistency of any action ta ken by an investigating authority in the course
of an anti-dumping investigation." 82 The European Communities maintains that it "precisely
identified the definitive anti-dumping duties " as well as "the claims as to why those definitive duties
were WTO-inconsistent".83
31. On this basis, the European Communities requests the Appellate Body to reverse the Panel's
finding that the four preliminary determinations we re outside its terms of reference. Instead, the
Appellate Body should complete the analysis and c onclude that the four pr eliminary determinations
fall under the scope of these proceedings and are inconsistent with those provisions of the
GATT 1994 and the Anti-Dumping Agreement cited by the European Communities in the Panel
proceedings.84
3. Article 11 of the DSU – Seven Periodic Reviews
32. The European Communities claims that the Panel made factual and legal errors in violation of
Article 11 of the DSU when it concluded that the European Communities had not shown that "simple
zeroing" was used in respect of seven of the 37 challenged periodic reviews. 85 The European
Communities requests the Appellate Body to "modify " the finding made by the Panel and conclude

80European Communities' appellant's submission, para. 87. (original emphasis)
81See European Communities' appellant's submission, paras. 89 and 90 (referring to Appellate Body
Report, Guatemala – Cement I, para. 79; and Panel Report, Mexico – Corn Syrup, paras. 7.52 and 7.53).
82European Communities' appellant's submission, para. 91 (original emphasis) (referring to Appellate
Body Report, US – 1916 Act, paras. 73 and 74 and footnote 39 thereto).
83European Communities' appellant's submission, para. 92. (original emphasis)
84The European Communities further maintains that, if the Appellate Body accepts the claim with
respect to the 18 anti-dumping duties, the Appellate Body could declare the Panel's findings regarding the four
preliminary determinations "moot and of no legal eff ect". (European Communities' appellant's submission,
para. 95 (emphasis omitted))

85The seven periodic reviews at issue are: Steel Concrete Reinforcing Bars from Latvia (Case I –
No. 3) (Panel Exhibit EC-35); Stainless Steel Bar from France (Case V – No. 20) (Panel Exhibit EC-47);
Stainless Steel Bar from France (Case V – No. 21) (Panel Exhibit EC-48); Stainless Steel Bar from Germany
(Case IX – No. 33) (Panel Exhibit EC-57); Stainless Steel Bar from Germany (Case IX – No. 34) (Panel Exhibit
EC-58); Stainless Steel Bar from Italy (Case XI – No. 39) (Panel Exhibit EC-62); and Certain Pasta from Italy
(Case XIII – No. 43) (Panel Exhibit EC-65). See also Panel Report, para. 7.145.

that the European Communities showed that zeroing was used in the seven periodic reviews. The
European Communities further requests the Appellate Body to complete the analysis and extend the
finding of breach of Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement
to all 37 periodic reviews at issue in this dispute.
33. The European Communities asserts that the Pane l failed to carry out an objective assessment
of the facts as required by Article 11 of the DSU when it concluded that the European Communities
had not made out a prima facie case that the simple zeroing methodology "was part of the measure
and indeed was actually used in the sev en administrative reviews concerned". 86 The European
Communities maintains that there was sufficient evid ence in the record and that there was no other
relevant documentation that it could have produced.
34. The European Communities submits that Artic le 17.6 of the DSU does not preclude the
Appellate Body from considering the legal question of whether a panel complied with its obligations
under Article 11. Although a panel' s examination and weighing of evidence generally falls within the
scope of its discretion as the trier of facts, the A ppellate Body may review a panel's exercise of that
discretion to ensure that the panel rendered an objec tive assessment of the matter before it and did not
exceed the bounds of its discretion in its apprecia tion of the evidence. The European Communities
posits that, when a panel exceeds its discretion "by misunderstanding, disregarding, ignoring,
distorting, refusing to consider or mi srepresenting the ev idence, such an egregious error can be
subject to review by the Appellate Body as a matter of law under the panel's obligations pursuant to
Article 11 of the DSU."87 Likewise, the failure of a panel to dr aw certain inferences from the facts in
the record is also subject to Appellate Body review " as a matter of law since it implies that a panel
improperly exercised its discretion under Article 11 of the DSU".88
35. The European Communities claims that th e Panel committed an "egregious error" 89 in
concluding that the European Communities had not shown that the zeroing methodology was actually
used in the seven periodic reviews at issue. Rath er, having examined the evidence in the record, the
Panel should have concluded that zeroing was used in those periodic reviews.
36. The European Communities provides a descripti on of the evidence submitted to the Panel
that, in its view, showed that the United States Department of Commerce (the "USDOC") had used
simple zeroing in the challenged periodic reviews. This evidence consisted of the USDOC's final

87European Communities' appellant's submission, para . 110 (original emphasis) (referring to Appellate
Body Report, US – Wheat Gluten, paras. 173, 185, and 195; Appellate Body Report, US – Countervailing Duty
Investigation on DRAMS, paras. 176 and 179; and Appellate Body Report, Japan – DRAMs (Korea), para. 139).
88European Communities' appellant's submission, para. 110. (original emphasis)

results of the periodic reviews at issue, the US DOC's Standard Margin Program, certain computer
Program Logs, and lists of transactions and tabl es containing the dumping calculations with and
without zeroing in those reviews.
90
37. In addition to these "specific documents show ing concrete details of each administrative
review", the European Communities points to othe r evidence in the record "from which it can be
inferred that the United States actually used zeroing in those reviews". 91 The European Communities
claims that this evidence consists of: a Notice published in the United States Federal Register
on 27 December 200692 (the "USDOC December 2006 Notice") indicating that there would be no
policy change to the practice of zeroing in periodi c reviews; the Issues and Decision Memoranda in
the 37 periodic reviews at issue containing the USDOC 's repeated statements regarding its continued
practice of using simple zeroing in periodic reviews 93; and the significant amount of WTO litigation
against the use of zeroing by the United States. 94 The European Communities submits that it "also
brought to the Panel's attention the fact that the United States remained silent as to whether it had used
zeroing in the administrative reviews at issue and did not provide any evidence showing the
contrary."
95
38. The European Communities explains the specifi c evidence it submitted with respect to each
of the seven periodic reviews. Regarding Steel Concrete Reinforcing Bars from Latvia (Case I –
No. 3), the European Communities disagrees with th e Panel's conclusion that the evidence did not
"necessarily show" 96 that simple zeroing was used. Th e European Communities notes that it had
explained that both the USDOC's Standard Margin Program and the Program Log disclosed by the
USDOC to the parties contained the zeroing line and that "[t]his alone indicates that the zeroing
methodology was part of the measure".
97 The European Communities points to the additional
evidence it produced to support its case, and alleg es that the Panel ignored the fact that "the
application of the USDOC's Standard [Mar gin] Program[] containing the zeroing line ( i.e., WHERE
EMARGIN GT 0) shows that only a limited number of transactions ( i.e., referred to as 'observations'
in the programme log) were taken into account for the purpose of the dumping calculation ( i.e., those

90See European Communities' appellant's submission, paras. 113-123.
92European Communities' appellant's submission, pa ra. 125 (referring to "Antidumping Proceedings:
Calculation of the Weighted-Average Dumping Margin During an Antidumping Investigation; Final
Modification", United States Federal Register , Vol. 71, No. 248 (27 Decem ber 2006), 7772 2-77725 (Panel
Exhibit EC-90)). See also ibid., paras. 167-169.
93European Communities' appellant's submission, para. 126 (referring to Panel Exhibits EC-32 through
EC-68). See also ibid., paras. 170-172.
94European Communities' appellant's submission, para. 127. See also ibid., paras. 173 and 174.
95European Communities' appellant's submission, para. 128. See also ibid., paras. 175-177.
97European Communities' appellant's submission, para. 133 (referring to the summary provided in
Panel Exhibit EC-35).

where the EMARGIN was greater than zero)". 98 The European Communities also alleges that the
Panel ignored the relevant tables containing calculations showing that zeroing was being used, as well
as the fact that, when the Program Log is consid ered together with the tables, "the evidence
overwhelmingly corroborates the fact that the zeroing methodology was part of the measure and
indeed was actually used." 99 The European Communities concl udes that "the specific documents
contained in the record 'necessarily show' that simple zeroing was 'actually used'", and that the Panel's
assertion that certain of the documents were not issu ed by the USDOC at the time of the review is
"both incorrect and irrelevant".100
39. The European Communities presents similar arguments regarding the question whether
zeroing was used in four additional periodic reviews. 101 The European Communities explains that,
with respect to each of these four reviews, the evidence it submitted—namely, printouts of certain
computer programs used by the USDOC, as well as cal culation tables prepared on the basis of data
supplied by the USDOC—demonstrates that zeroing was used. Because the Panel "ignored" the
evidence in the record, it "commi tted an egregious error" in concluding that the European
Communities failed to demonstrate that the zeroing methodology was used by the USDOC in each of
these four reviews.102
40. Regarding the periodic reviews in Stainless Steel Bar from France (Case V – Nos. 20 and 21),
the European Communities asserts that the Panel' s description of the evidence was incomplete, and
that the Panel ignored other evidence in the record "from which it could be inferred that the USDOC
actually used zeroing in this administrative review". 103 The European Communities then refers to
prior zeroing decisions against the United States, st atements of the USDOC regarding the practice of
zeroing, and the United States' silence in this disput e regarding the practice of zeroing, and concludes
that, based on "the totality of the facts in the record ... the Panel should have concluded that the
zeroing methodology was part of the measure and was actually used".104
41. The European Communities submits, as a separat e claim, that the Panel failed to apply a
reasonable burden of proof because it "required the European Communities to provide evidence
'necessarily showing' ... that zeroing was 'actually used' in the seven ad ministrative reviews at

100European Communities' appellant's submission, para. 137. (original emphasis)
 101These four additional periodic reviews are: Stainless Steel Bar from Germany (Case IX – No. 33);
Stainless Steel Bar from Germany (Case IX – No. 34); Stainless Steel Bar from Italy (Case XI – No. 39); and
Certain Pasta from Italy (Case XIII – No. 43).
102See European Communities' appellant's submission, paras. 149, 144, 155, and 162, respectively.
103European Communities' appellant's submission, paras. 165 (footnote omitted) and 181.
104European Communities' appellant's submission, paras. 178 (original emphasis) and 181.

issue".
105 The European Communities co nsiders that it has "made a prima facie case that the zeroing
methodology was part of the measure", and that it at least "provided sufficient evidence for the Panel
to establish the presumption that the USDOC applied zeroing in the administrative reviews at
issue".106 As a result, the Panel should have shifted the burden of proof so that the United States
could rebut such a presumption. The European Communities maintains that, "if a Member provides
sufficient evidence that a fact has occurred, then a panel should conclude from that evidence that there
is [a] presumption that 'what is claimed is true, the burden then shift[ing] to the other party'."107
42. The European Communities mainta ins that, when a dispute essentially refers to the same
measure (that is, a periodic review carried out by the USDOC) where the same provisions have been
applied (that is, the United States laws and regulations dealing with periodic reviews), the application
of the same burden of proof criteria and requirements to establish the same presumption by panels and
the Appellate Body should be expected. The Eu ropean Communities also notes instances in which
panels and the Appellate Body were able to r each findings regarding the application of simple
zeroing.108 The European Communities maintains that, in those cases, the panels and the Appellate
Body found that the complaining Member had made out a prima facie case, establishing a
presumption that the zeroing methodology was part of the measure, and that the USDOC had used
zeroing in the periodic reviews concerned in those disputes, based on similar documents to the ones
provided by the European Communities in the pr esent case. The European Communities contends
that "the same presumption should be concluded, at least , from the same type and amount of
evidence", and that panels cannot increase the burden of proof "in cases where previous panels and the
Appellate Body have decided that a particular set of facts (or inferences) is enough to make a
presumption that what is claimed is true."109
43. The European Communities argues that, wher e a complaining Member cannot show a
particular fact because it is impossible to provide further evidence of that particular fact, such
evidence should suffice to raise a presumption that th e Member has proven the f act it claims to be
true. The European Communities maintains that , in requiring proof in each case that not all

105European Communities' appellant's submission, para. 185 (referring to Panel Report,
paras. 7.151-7.158).
106European Communities' appellant's submission, para. 186. (original emphasis)
107European Communities' appellant's submission, para. 188 (original emphasis) (quoting Appellate
Body Report, US – Wool Shirts and Blouses, p. 14, DSR 1997:I, 323, at 335).
108European Communities' appellant's submission, paras. 191-193 (referring to Panel Report, US –
Zeroing (EC), para. 7.144; Appellate Body Report, US – Zeroing (EC), para. 135; Panel Report, US – Stainless
Steel (Mexico), para. 7.149; Appellate Body Report, US – Stainless Steel (Mexico) , para. 139; Panel Report,
US – Zeroing (Japan), paras 4.250 and 7.226; Appellate Body Report, US – Zeroing (Japan), para. 175; Panel
Report, US – Shrimp (Ecuador) , para. 7.29; and Panel Report, US – Softwood Lumber V , footnote 341 to
para. 7.186).
109European Communities' appellant's submission, para. 195. (original emphasis)

transactions were "dumped", the Panel disregarded the fact that the European Communities could not
provide more evidence, because the United States did not produce any othe r additional documents
showing that zeroing was used in a particular pe riodic review. The European Communities recalls
that, as it explained to the Panel, the USDOC does not produce a complete transaction-by-transaction
calculation of the dumping margins from which the a pplication of zeroing can be ascertained. Thus,
the documents provided to the Panel in this case we re sufficient to establish the presumption that the
zeroing methodology was part of the measure and th at the USDOC used zeroing in the seven periodic
reviews at issue. The European Communities clarifi es that it is not arguing that the United States
should have provided evidence that zeroing was not used because the United States had access to the
complete record of each periodic review. Rather , the European Communities maintains that it was
impossible (rather than more difficult) for th e European Communities to produce the additional
documents the Panel sought. Consequently, the Eu ropean Communities requests the Appellate Body
to find that the Panel applied an unreasonable standard of burden of proof, and to conclude that the
European Communities supplied sufficient evid ence to raise a presumption that the zeroing
methodology was used in the seven periodic reviews at issue.
44. Furthermore, the European Communities submits th at the Panel erred in its interpretation of
Article 13 of the DSU when it concluded that the European Communities did not ask the Panel to seek
information from the United States regarding detail ed margin calculations for the seven periodic
reviews, and that the request of the European Co mmunities "[did] not suffice as a request to the Panel
to seek specific factual information from the USDOC pursuant to its authority under Article 13". 110
The European Communities submits th at the language it used in articulating its request was precise
and contained the specific factual information that the Panel could, if it considered it necessary,
request of the United States. Furthermore, in th e view of the European Communities, nothing in the
DSU (or more specifically in Article 13) requires a Member to identify expressly under which
mechanism a panel should seek further informati on from the parties. The European Communities
submits that it was up to the Panel to channel such a request through the most appropriate means.
Consequently, the fact that the European Commun ities did not expressly refer to Article 13 in its
request was not sufficient for the Panel to disr egard that request. The European Communities
accordingly requests the Appellate Body to find, pursu ant to Articles 17.6 and 17.13 of the DSU, that
the Panel erred in concluding that the European Communities' statement did not amount to a request
under Article 13 of the DSU.
45. Additionally, the European Communities questions the legal interpretation developed by the

110European Communities' appellant's submission, para. 203 (quoting Panel Report, footnote 20 to
para. 6.20).

Panel in concluding that "it would be inappropriate for a panel to exercise its authority to seek
information based on its own judgement as to what information is necessary for a party to prove its
case, as opposed to seeking information in order to elucidate its understanding of the facts and issues
in the dispute before it."
111 In the European Communities' view, it is appropriate for a panel to seek
information "in cases like the present one where the information 'necessarily showing' that a particular
fact 'actually' is true ... is only in the possession of the respondent Member." 112 In support of its
position, the European Communities notes that the Appella te Body has clarified that a panel's right to
seek information pursuant to Article 13 is discretiona ry, and a panel's authority to ask questions is not
conditional upon the making out of a prima facie case by the other party. 113 Consequently, the
European Communities requests the Appellate Body to find that it would have been "appropriate" 114
for the Panel to seek further information corroborating the fact that the zeroing methodology was used
in the seven periodic reviews at issue.
4. Article 19.1 of the DSU
46. The European Communities submits that the Pa nel erred when it disregarded the European
Communities' request for two suggestions pursuant to Article 19.1 of the DSU concerning steps
necessary for the United States to br ing its measures into conformity with its obligations under the
covered agreements. First, the European Comm unities had asked the Panel to suggest "that the
United States cease using zeroing when calculating dumping margins in any anti-dumping proceeding
with respect to the 18 measures".115 The European Communities maintains that this suggestion would
be appropriate to help promote the resolution of th e dispute, because it would provide guidance to the
United States as to what it must do in order to comply. Secondly, the European Communities had
also requested the Panel to suggest "that the Unite d States should take all necessary steps of a general
or particular nature to ensure that any further specific action against dumping by the United States in
relation to the same products from the European Co mmunities as referenced in the present dispute be
WTO consistent".116 In the European Communities' view, th is suggestion would reduce the need for
"protracted and unnecessary discussions" 117 regarding the scope of a compliance panel proceeding.
The European Communities argues that, while there is a presumption of good faith compliance with
DSB recommendations and rulings, suggestions would assist in the achievement of the objective of a

111European Communities' appellant's submission, para. 207 (original emphasis) (quoting Panel Report,
footnote 20 to para. 6.20).
112European Communities' appellant's submission, para. 208. (original emphasis)
113European Communities' appellant's submission, para. 209 (referring to Appellate Body Report, EC –
Bed Linen, para. 166; Appellate Body Report, EC – Sardines, para. 302; and Appellate Body Report, Canada –
Aircraft, paras. 185 and 192).
114European Communities' appellant's submission, para. 211. (emphasis omitted)

prompt and satisfactory settlement of the dispute, a nd would help clarify the interpretations made by
the panel and the Appellate Body. 118 Thus, the European Communiti es requests the Appellate Body
to make suggestions pursuant to Article 19.1, and invites the Appellate Body to take into account
those already made by the European Communities.
5. Conditional Appeals
47. The European Communities makes two conditi onal appeals. First, the European
Communities recalls the Appellate Body's statements in US – Stainless Steel (Mexico) and the
conclusions it made in paragraphs 160 to 162 of that report. Should the Appe llate Body construe the
Panel Report in this dispute "as inconsistent w ith these prior statements by the Appellate Body" 119,
then the European Communities appeals those findings "for all the reasons set out by the Appellate
Body in its report in US – Stainless Steel (Mexico)".120
48. Secondly, if the United States appeals the Panel' s findings regarding what the Panel referred
to as "the role of jurisprudence", and if the Appe llate Body modifies or reverses those findings in
whole or in part, then the European Communities appeals "what might be construed as substantive
findings or the exercise of false judicial economy in the Panel Report on the substantive issue of
zeroing in administrative reviews".
121 The European Communities further refers to its reasoning
before the Panel and requests the Appellate Body to complete the analysis on the basis of that
reasoning.
B. Arguments of the United States – Appellee
1. The Panel's Terms of Reference – Continued Application of 18 Anti-
Dumping Duties
49. The United States requests the Appellate Body to reject the European Communities' appeal
and affirm the Panel's preliminary ruling that th e continued application of 18 anti-dumping duties
were outside its terms of reference. Recalling that Article 6.2 of the DSU states that a panel request
must identify the specific measure at issue, the United States argues that the European Communities'
panel request was "unclear in numerous respects".122 The United States notes that, in particular, at the
time of the European Communities' first written s ubmission, it was uncertain what the European
Communities meant by the "most recent" 123 anti-dumping proceeding. The United States considered

118See European Communities' appellant's submission, paras. 219-221.
119European Communities' appellant's submission, para. 229. (footnote omitted)
121European Communities' appellant's submission, para. 230. (footnote omitted)

that the reference in the panel request to the a pplication or continued application of anti-dumping
duties in 18 cases "included an indefinite number of measures resulting from current, past, and future
antidumping determinations" and that these "alleged 18 'duties' were therefore not specifically
identified, as required by Article 6.2 of the DSU".
124
50. The United States alleges that the European Communities admitted the "broad, indeterminate
nature" of the 18 duties when, in response to the Un ited States' request for a preliminary ruling, the
European Communities noted that its panel request pertained to all "subsequent measures" adopted by
the United States with respect to the 18 duties, and to any "subsequent modification" of the measures
concerning the level of duty. 125 The United States noted before th e Panel that, under the DSU, such
subsequent measures, proceedings, and modificati ons "could not be subject to dispute settlement" 126
since they were not in existence at the time of the Panel's establishment. According to the United
States, the European Communities was "improperly trying to include the application or continued
application of duties resulting from determinations th at have not yet been made"; the United States,
however, "could not determine when these determina tions were or will be made, what calculations
they did or will include, what duty rates they have established or will establish, and what individual
companies they did or will cover".127
51. The United States submits that the European Co mmunities' concept of "duty as a measure" is
"some type of free-standing measure that had a life of its own beyond the 52 particular determinations
identified in its panel request".128 In the view of the United States, the characterization of the measure
ignores that, "for any given importation, the antidumping duty imposed or assessed depends on a
particular administrative determination" 129, and that the continued existence of an anti-dumping duty
order depends on a sunset review. Consequently, the United States submits that the panel request
could not fulfil the requirements of Article 6.2 unless it identified the specific determination related to
the particular anti-dumping duty. Because these measu res could not have existed at the time of its
request for consultations, or at the time of the est ablishment of the Panel, they cannot be within its
terms of reference. The United States claims that, by requesting a preliminary ruling, it was not trying
to "unilaterally reformulat[e]"
130 the case of the European Commun ities, but rather understood that
"the application or continued application of antidumping duties had to result from an underlying

124United States' appellee's submission, para. 59. (footnote omitted)
125United States' appellee's submissi on, para. 60 (referring to European Communities' response to
United States' preliminary objections, paras. 47 and 48).
127United States' appellee's submission, para. 61. (footnote omitted)
128United States' appellee's submission, para. 62. (footnote omitted)
130United States' appellee's submission, para. 64 (emphasis omitted) (quoting European Communities'
appellant's submission, para. 52).

antidumping determination".131 By not identifying the determination giving rise to the particular duty
in the 18 cases, the European Communities "failed to identify the specific measure at issue".132
52. The United States maintains that it "has not accepted" 133 that anti-dumping duties related to
the 18 cases will be applied in all future instances, nor that zeroing will be used in the determinations
potentially giving rise to such duties. As the United States explains, it is "entirely possible" 134 that
subsequent determinations will yield a zero or de minimis duty, that future sunset reviews could lead
to revocation of an anti-dumping order, or that a particular period will result in no negative margins
that would require zeroing. For the United States, it was unfounded for the European Communities to
state that a "part of the measure ... does not change over time, namely the zeroing methodology as
used in the final order and programmed to continue to be used until such time as the United States
eliminates zeroing from the particular anti-dumping duty under consideration."
135 The United States
also submits that the European Communities' approa ch would have a detrimental effect on the dispute
settlement system because it disregards the rights of other Members who may rely on the description
of the measures identified in the panel request when deciding whether to participate as third parties.
53. The United States argues that the Panel's analysis of the lack of specificity in the European
Communities' panel request was not flawed. Regard ing the European Communities' argument that it
"would have been impossible for the [European Communities'] Panel Request to be any more
specific"136, the United States contends that it would have been impossible to be more specific given
that the measures were not yet in existence. In any event, the fact that the European Communities
could not have been more specific does not mean that the panel request identified the specific
measures at issue in accordance with Article 6.2 of the DSU.
54. The United States also argues that the Panel pr operly considered jurisdictional issues arising
from the United States' request for a preliminary ruling. The United States submits that, although it
raised its objection as a preliminary matter, this does not mean that it has the burden of proof, because
the complaining party has a duty to comply with Article 6.2. 137 The United States responds next to
the European Communities' arguments that the Unite d States had the burden of raising an issue under
Article 3.3 of the DSU, and that the Panel must not make the case for the defending Member. First,

132United States' appellee's submission, para. 65. (original emphasis)
135United States' appellee's submission, para. 67 (quoting European Communities' appellant's
submission, para. 36).
136United States' appellee's submission, para. 71 (quoting European Communities' appellant's
submission para. 50 (original emphasis)).
137United States' appellee's submission, para. 75 (referring to Appellate Body Report, EC –
Bananas III, para. 144).

the United States alleges that the European Co mmunities "ignores the actual rules governing the
Panel's authority to address issues pertaining to its terms of reference, as well as the rules related to
the burden of proof in this dispute".
138 The United States argues that, ev en if it had not raised the
preliminary objection, the Panel was entitle d to examine the issue of its own accord. 139 The United
States submits that the issue of whether a specific measure is identified in a complaining Member's
panel request goes to the "root" of a panel's jurisd iction and that the Panel "was not required to wait
for the United States to raise the issue".140
55. The United States also disagrees with the Eur opean Communities' characterization of the
rules concerning burden of proof in WTO dispute settlement. The United States endorses the Panel's
observation that the European Communiti es was under an obligation to make a prima facie case and
provide proof thereof, and also refers to a panel's obligations under Article 11 of the DSU. According
to the United States, the European Communities faults the Panel "for making the very inquiry that it
was required to make as part of its objective assessment of the matter".
141 Further, the United States
maintains that the European Communities did not articulate how the Panel's findings violate
Article 12.1 of the DSU, or the Working Procedures for panels in Appendix 3 thereto.142
56. The United States submits that the Panel properl y examined the alleged measures and issues
and found that they fell outside its terms of reference under Article 6.2. The United States argues that,
because Article 3.3 of the DSU does not define a measure, or relate to the identification of a measure
in a panel request or in a panel's terms of referen ce, it fails to see how Article 3.3 provides a basis for
the European Communities' appeal. According to the United States, the Panel "properly understood
that an inquiry under Article 6.2 is related to the issue of whether the thing being challenged is
classifiable as a 'measure', as that term is u sed in Article 6.2 and throughout the DSU."
143 I n t h e
United States' view, "if something is not even a 'me asure', then it is not, and cannot be, 'specifically
identified' for the purposes of DSU Article 6.2". 144 Thus, there is no dichotomy between a so-called
"substantive" issue under Article 3.3 of the DSU an d a so-called "procedural" issue under Article 6.2
of the DSU. The issue as to what a Member may in clude in a panel request "is an issue presented by
the text of Article 6.2 of the DSU and thus properly considered by the Panel". 145 The United States
considers that the European Communities' pos ition is "disingenuous" because the European

139United States' appellee's submission, para. 77 (referring to Appellate Body Report, Mexico – Corn
Syrup (Article 21.5 – US), para. 36).
141United States' appellee's submission, para. 81. (footnote omitted)
143United States' appellee's submission, para. 86. (footnote omitted)

Communities "itself asked the Panel to consider th e issue of whether the application or continued
application of antidumping duties in 18 'cases' we re measures when ruling on the [United States']
preliminary objection under Article 6.2 of the DSU."146
57. The United States agrees with the Panel's c onclusion that the duties challenged by the
European Communities were "in isolation from a ny proceeding in which su ch duties have been
calculated, allegedly through zeroing ", and that it therefore "did not consider this [description] to
represent a measure in and of itself". 147 The United States also expresses support for the Panel's
observation that "the application or continued application of antidumping duties in the 18 'cases' could
not exist as a 'measure' separate and apart from the underlying determinations which would give rise
to each instance of such application or continued application." 148 As the United States asserts,
divorcing the underlying determination from the appli cation or continued application of anti-dumping
duties is exactly what the Eur opean Communities intended by merely referring to application or
continued application "in a general and detached way". 149 The United States can see why the Panel
was "at a loss to understand how the 18 'duties' could contain the same precise content as the so-called
zeroing methodology which had been challenged 'as such' in other disputes, when the [European
Communities] stated that it was not challenging that methodology 'as such' in this dispute."150
58. Finally, the United States argues that the Eur opean Communities' reliance on the need for the
prompt and effective settlement of the dispute, and the need to ensure proper compliance by the
United States in the light of prior disputes, is "unfounded". 151 In any event, these arguments do not
justify a departure from the requirements of the DSU related to the identification of specific measures
by the complaining party. The United States agrees with the Panel that events in other disputes do not
have a bearing on the Panel's analysis of the comp liance of the European Communities' panel request
with Article 6.2 of the DSU.
59. With regard to the European Communities' clai m that the Panel Report is inconsistent with
Article 7.2 of the DSU, the United States submits that the European Communities "fundamentally
misinterprets"152 that provision. The United States notes th at the Appellate Body has recognized that
"a panel is not ... required to examine all legal claims made before it" but may "exercise judicial

economy".
153 Thus, the Panel was not required to addr ess explicitly each and every argument made
by the European Communities. Moreover, Article 7. 2 applies to a panel's discharge of the matters
within its terms of reference. Thus, where a meas ure is not within a panel's terms of reference,
Article 7.2 "does not operate to expand the term s of reference and require a panel to discuss
provisions of the covered agreements with respect to such measures".154 In addition, the United States
submits that, in connection with its claim under Ar ticle 11 of the DSU, th e European Communities
failed "to argue how the Panel allegedly fa iled to undertake an objective assessment" 155 of the United
States' preliminary objection.
60. The United States further asserts that the Eur opean Communities' claim under Article 12.7 is
unfounded and should be rejected. The United St ates maintains that the Panel provided a detailed
legal and factual analysis of the United States' preliminary objection and "laid out the rationale behind
its findings". 156 Moreover, the United States asserts th at the European Communities "devoted
considerable space" in its appellant's submission "to criticizing the very rationale and analysis that the
[European Communities] now says does not exist".157
61. On this basis, the United States requests the Appellate Body to uphold the Panel's conclusions
that the 18 duties were not within its terms of re ference, and to reject the European Communities'
request to complete the analysis. If the Panel's conclusions are reversed, the United States asks the
Appellate Body to exercise judicial economy and not complete the analysis. Should the Appellate
Body decide to complete the analysis, the United States asks the Appellate Body to find that the
application or continued application of the 18 an ti-dumping duties is not inconsistent with the Anti-
Dumping Agreement, the GATT 1994, and the WTO Agreement.
158
2. The Panel's Terms of Reference – Four Preliminary Determinations
62. The United States asks the Appellate Body to re ject the European Communities' appeal of the
Panel's finding that the three preliminary sunset re view determinations and one periodic review were
outside the Panel's terms of reference. The Un ited States submits that none of these proceedings
constituted "final action" within the meaning of Article 17.4 of the Anti-Dumping Agreement .
According to the United States, at the time of the pa nel request, it had not yet made a decision to levy

153United States' appellee's submission, para. 101 (quoting Appellate Body Report, Canada – Autos ,
para. 114 (original emphasis)).
154United States' appellee's submission, para. 102. (footnote omitted)
157United States' appellee's submission, para. 105. (footnote omitted)
158The United States also argues that the Appellate Body should reject the European Communities'
appeal concerning the designation of certain United States communications as a "WT/DS" document. (United

definitive duties, and it was "entirely possible" 159 that no definitive anti-dumping duties would be
levied, or would continue to be levied. The Unite d States also maintains that the Panel "properly
concluded" that the European Communities' challenge did not fit within the exception to the finality
requirement in Article 17.4 reserved for "provisional measures".160
63. The United States contends that the matter before the Panel involved duties " calculated or
maintained in place pursuant to the most recent [anti-dumping proceedings]". 161 The United States
submits that the European Communities cannot avoi d the finality requirement of Article 17.4 by
relying on the notion that the preliminar y measures were "subsequent measures" 162 that were part of
the European Communities' panel request. The United States maintains that this argument ignores the
plain text of Article 17.4, which requires that the investigating authority has taken final action by the
time of the panel request. Therefore, neither ongoing periodic reviews (which "do[] not affect the
cash deposit rate or the assessment rate"), nor ongoi ng sunset reviews (which "only result in the
continuation of an order, and th e imposition of duties ... once a final determination has been made"),
can be classified as final action to levy definitive anti-dumping duties. 163 The United States also
rejects reliance by the European Communities on Appellate Body rulings that, it asserts, do not
address the issue of whether a preliminary dete rmination can be challenged in WTO dispute
settlement.164 Finally, with regard to the argument that the four preliminary determinations were
within the Panel's terms of reference, and the re quest of the European Co mmunities that the Panel
consider the "special circumstances" 165 of this dispute, the United States maintains that the Panel
properly found that both of these arguments lack a legal basis in the Anti-Dumping Agreement, and
could not justify a departure from the finality requirement of Article 17.4.
64. On this basis, the United States asks the Appella te Body to reject the European Communities'
appeal and affirm the Panel's finding that the f our preliminary determinations in the European
Communities' panel request were outside the Panel's terms of reference.
3. Article 11 of the DSU – Seven Periodic Reviews
65. The United States asserts that the European Communities failed to meet its burden of

161United States' appellee's submission, para. 114 (quoting European Communities' appellant's
submission, para. 87 (original emphasis)).
164United States' appellee's submission, paras. 117-119 (referring to Appellate Body Report,
Guatemala – Cement I , para. 79; and Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US) ,
paras. 7.44 and 7.45).

demonstrating that zeroing was employed in the sev en periodic reviews at issue, and that the Panel
"properly excluded those reviews from its terms of reference".
166 The United States recalls that it had
explained to the Panel that it was able to c onfirm the accuracy of only the USDOC-generated
documents, and that, apart from published Federal Register Notices and Issues and Decision
Memoranda, "the origin of the re maining documents ... was unclear." 167 The United States notes that
it further explained to the Panel that it could not confirm the accuracy of documents, program logs,
printouts, or margins produced by the European Communities' legal advisors, which the European
Communities claims are the result of the USDOC's St andard Margin Program without the application
of the zeroing methodology. The United States subm its that at no point during the Panel proceedings
did the European Communities "identify whether its submitted documentation was [USDOC]-
generated, or otherwise inform the Panel as to its source".
168
66. The United States submits that the Panel's fact ual determinations in this case as to whether
zeroing was employed in the challenged periodic revi ews, as distinguished from legal interpretations
or legal conclusions by a panel, are, in principle, not subject to review by the Appellate Body. The
United States refers to the Appellate Body's statemen t that it will interfere with a panel's factual
finding only if it is satisfied that the panel has exceeded the bounds of its discretion as the trier of
facts, and that it will not interfere lightly with the exercise of that discretion. 169 In the view of the
United States, the assertions by the European Communities that the Panel "ignored", "misinterpreted",
or "misunderstood" the totality of the evidence before it "is based solely on the [European
Communities'] disagreement with the Panel' s conclusion as to the submitted evidence". 170 This, the
United States contends, is not an appropriate or co rrect standard of review by the Appellate Body.
The United States asserts that the Panel fully disch arged its duty under Article 11 by considering the
full range of evidence that was put before it as to these seven reviews. The United States adds that the
reasoning set forth by the Panel "reveals that its conclusion was based on its full and careful
consideration of all the evidence before it".171
67. The United States submits that the Europ ean Communities' evidence and argument " never
established that the submitted documents were generated by [the USDOC]".172 As a result, the United
States contends that the factual component of its claim that the USDOC had employed the zeroing

166United States' appellee's submission, para. 123 (referring to Panel Report, paras. 7.151-7.158).
167United States' appellee's submission, para. 125 (referring to United States' response to Panel
Question 7(b) following the second meeting, paras. 6 and 7).
169United States' appellee's submission, para. 138 (referring to Appellate Body Report, US – Wheat
Gluten, para. 151).
171United States' appellee's submission, para. 139 (referring to Panel Report, paras. 6.7-6.20
and 7.145-7.158).
172United States' appellee's submission, para. 140. (original emphasis)

methodology was never established for the seven peri odic reviews. The United States argues that the
burden rested with the European Communities, as th e complaining party, to prove all components of
its "as applied" claims. The United States furthe r submits that, "[a]t a minimum, the [European
Communities] was required to supply the Panel with documentation showing that 'zeroing' was in fact
employed by [the USDOC] in the administrative reviews challenged."173 The European Communities,
however, made " no attempt"174, despite several questions from the Panel concerning the evidence, to
authenticate the documentation. Accordingly, the Panel "properly and correctly concluded" 175 that it
could not be established that the European Communities' evidence was generated by the USDOC.
68. The United States argues that the European Communities is trying to establish the origin of its
documentation for the first time on appeal, and that, because such explanations were never before the
Panel, the European Communities' arguments relati ng to the Panel's breach of Article 11 in this
respect must fail. As the United States contends, "[n]ewly formed explanations of evidence and much
belated attempts to authenticate its evidence before the Appellate Body have no place in the context of
review by the Appellate Body given the prescribed limits of Article 17.6 of the DSU." 176 In addition,
the United States argues that th e European Communities is placing the Appellate Body in the
"untenable position" 177 of weighing evidence never before considered by the Panel, something the
Appellate Body has declined to entertain in prior instances.
69. The United States argues that, in any event, the European Communities' new attempt at
authenticating evidence also fails to establish th at the evidence was generated by the USDOC, and
thus does not demonstrate that zeroing was used in these seven periodic reviews. The United States
claims that the European Communities' assertions rega rding the use of an alleged "standard computer
program", which requires negative margins to be treated as zero, must fail since the USDOC "does
not have a 'standard program' that it applies in all cases, nor does it have a program that 'mandates' the
zeroing of negative margins in all cases." 178 Instead, as it purportedly explained to the Panel at the
interim review stage, the United States submits that "the computer program that performs the
calculations starts as a basic template, and the template is then tailored to a particular
exporter/producer for every case in which an antidumping calculation is performed." 179 The United
States further submits that, because the Europ ean Communities did not provide the Panel with
evidence demonstrating the contents of the a lleged "Standard Margin Program", nor evidence

174United States' appellee's submission, para. 143. (original emphasis)
177United States' appellee's submission, para. 145 (referring to Appellate Body Report, Canada –
Aircraft, para. 211).
179United States' appellee's submission, para. 146. (original emphasis; footnote omitted)

demonstrating that such a program could not be altered in particular cases, the European Communities
cannot point to a "Standard Margin Program" to s upport its argument that zeroing was applied in any
particular periodic review. Moreover, the United States asserts that the European Communities did
not authenticate the Standard Margin Program s or the Program Logs as USDOC-generated
documents. The United States also contends that no review-specific documentation was submitted in
support of the European Communities' challenges to the two periodic reviews in Stainless Steel Bar
from France (Case V – Nos. 20 and 21).
70. The United States also submits that, contrary to the European Communities' claim, the Panel
applied the correct standard of the burden of pr oof. The United States argues that the European
Communities cannot summarily discharge its burden by "simply claiming that such information is
available from the defending Member, while maki ng only cursory efforts on its own behalf to
establish the basis for its complaint".
180 Moreover, the United States submits that there is nothing in
the Panel Report to suggest that it required a partic ular type of document, such as the full transaction
listing generated by the USDOC. Rather, in the United States' view, "the Panel desired any document
generated by [the USDOC]" 181 that demonstrated the use of zeroing. The United States also contests
the European Communities' argument that it was "i mpossible" to have obtai ned documents generated
by the USDOC with respect to th e challenged reviews, arguing that the European Communities never
indicated that it had "attempted, but was unable, to obtain the requisite documentation from [the
USDOC's] records office".182
71. The United States also disagrees with the Eur opean Communities' claim that the Panel erred
in its interpretation of Article 13 of the DSU. The United States argues that the Panel was under no
obligation to seek further information pursuant to Article 13 of the DSU, and that the European
Communities' claim appears to be no more than an improper attempt to shift its rightful burden back
to the Panel. Recalling prior Appellate Body ju risprudence concerning Article 13 of the DSU, the
United States submits that the Panel's right to seek information is discretionary and that the Panel's
"comprehension of the evidence was not lacking, such that it needed to request further
clarification"183, and, moreover, the Panel did not find th e United States to have withheld requested
information. The United States further argues that the Panel had no reason to treat the European
Communities' "blanket suggestion" 184 that the documentation at issue should be obtained from the
United States as a formal request to seek informa tion pursuant to Article 13. Finally, recalling the

181United States' appellee's submission, para. 152. (original emphasis)
183United States' appellee's submission, para. 156. See also ibid., para. 155 (referring to Appellate
Body Report, EC – Bed Linen (Article 21.5 – India), paras. 166 and 167).

Appellate Body's statement that a violation of the requirement in Article 11 of the DSU to make an
objective assessment "c annot result from the due exercise of the discretion permitted by another
provision of the DSU" 185, the United States submits that the Eu ropean Communities' allegations of a
violation pursuant to Article 13 cannot support a claim of violation of Article 11.
4. Article 19.1 of the DSU
72. The United States submits that it is "entirely with in a panel's discretion to make a suggestion"
pursuant to Article 19.1 of the DSU, and that panels "should not, and do not" exercise their authority
to make such suggestions lightly. 186 The United States further argues that the Panel was not required
to give a reason as to why it chose to reject the European Communities' request to make a suggestion
for implementation. The United States also submit s that there is no textual basis for reliance on
Article 19.2 to address the European Communities' pu rported concerns regarding compliance. As the
United States maintains, Article 19.1 "says nothing about making suggestions to deal with potential
future disputes concerning the scope of complia nce proceedings under Article 21.5 of the DSU". 187
The United States further argues that the Panel was "charged with resolving the dispute within its
terms of reference, and had no duty, obligation, or responsibility of predicting whether or what
compliance issues would arise under Article 21.5, and crafting suggestions to address such
hypothetical scenarios".188
73. In addition, the United States submits that th e European Communities' suggestion also goes
beyond the limits of the second sentence of Article 19. 1 because it appears to address future "specific
action against dumping" 189, even though such future actions may bear no relationship to any specific
recommendations in the present dispute. Further, even if the proposed suggestion is read more
narrowly, "it appears that the [European Communities] was trying to have the Panel treat any and all
subsequent determinations rela ted to the 18 duties as falling within the scope of the panel
proceeding"190 which were not in existence at the time of the Panel's establishment. Accordingly, the
United States contends, such measures fell outside th e Panel's terms of refere nce and the Panel could
therefore not make any suggestions concerning th em. For these reasons, the United States asks the
Appellate Body to reject the appeal of the Eur opean Communities regarding the Panel's refusal to
make a suggestion.

185United States' appellee's submission, para. 158 (emphasis added) (quoting Appellate Body Report,
EC – Bed Linen (Article 21.5 – India) , para. 166, in turn quoting Appellate Body Report, EC – Sardines ,
para. 302).
189United States' appellee's submission, para. 164 (quoting European Communities' closing statement at
the second meeting).

5. Conditional Appeals

74. In the United States' view, the European Co mmunities' conditional appeal regarding the
relevance of prior Appellate B ody findings, including those in US – Stainless Steel (Mexico) , should
be rejected. First, the United States argues that the European Communitie s fails to identify an
erroneous finding of law or legal interpretati on and, instead, seeks "to shift the burden to the
Appellate Body to develop the argum entation and explanation in the first instance of whether there is
a legal error". 191 Secondly, the United States submits that , because the only conceivable basis for a
claim of error would seem to be under Article 11 of the DSU, and the European Communities asserts
no such error, the European Communities' claim should be rejected on this basis as well.
75. The United States argues that the European Co mmunities is essentially asking the Appellate
Body to assess the consistency of the Panel Report with the Appellate Body's dicta in US – Stainless
Steel (Mexico) . The United States maintains, however, that the Panel was bound by neither the
findings, nor the dicta, of the Appellate Body in a prior, unrelated dispute. Moreover, the United
States contends that the Ministerial Conference a nd the General Council have the exclusive authority
to adopt binding interpretations of the c overed agreements under Article IX:2 of the WTO Agreement.
In the view of the United States, treating prior re ports as binding outside the scope of the original
dispute would add to the obligations of the Unite d States and other Members, inconsistent with
Articles 3.2 and 19.1 of the DSU. Consequently , the European Communities cannot treat Appellate
Body statements from a prior report as authorita tive and then ask the Appellate Body under
Article 17.6 of the DSU to assess whether the Panel acted consistently with that report.
76. The United States submits that the Europ ean Communities' second conditional appeal
regarding the Panel's exercise of judicial economy should be rejected as it "does not explain why the
Panel's exercise of judicial economy was false, or legally erroneous". 192 As a result, the European
Communities "has failed to provide a basis for the A ppellate Body to rule on that claim on appeal". 193
Furthermore, the United States submits that, becau se the Panel made no legal interpretations other
than in relation to Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement, if
the Appellate Body reverses the Panel's findings, it should not complete the analysis by making "legal
interpretations for the first time as to issues the Panel never reached". 194 Finally, the United States
submits that it has fully demonstrated in its wr itten submissions and at the Panel's substantive
meetings with the parties that the provisions of the WTO agreements invoked by the European
Communities do not require "offsets" for negative marg ins in periodic reviews. Accordingly, if the

Appellate Body decides to complete the analysis , the United States requests the Appellate Body to
reject the European Communities' claims regardi ng the challenged periodic reviews, and to find
instead that the United States did not act incons istently with the relevant provisions of the
GATT 1994 and the Anti-Dumping Agreement.
C. Claims of Error by the United States – Other Appellant
1. The Panel's Terms of Reference – 14 Additional Measures
77. The United States requests the Appellate Body to reverse the Panel's finding that the 14
periodic and sunset reviews 195 that were identified in the Eur opean Communities' panel request, but
not in its request for consultations, were within th e Panel's terms of reference. In support of its
request, the United States submits that Articles 4 and 6 of the DSU, together with Articles 17.3, 17.4,
and 17.5 of the Anti-Dumping Agreement, set forth the "fundamental jurisdictional requirement"196 for
a complainant to request consultations on a matter before referring the matter to the DSB for the
establishment of a panel. The United States conte nds that "under the special and additional rules
contained in the [ Anti-Dumping Agreement] as well as under the DSU, a measure that is outside the
request for consultations cannot be included in a panel request or in a panel's terms of reference."197
78. In the view of the United States, the Panel "misconstrued" 198 the meaning of, and the
relationship between, the relevant provisions of the DSU concerning requests for consultations and
panel requests, and thereby "incorrectly rejected the [United States'] preliminary objection on the
grounds that the panel request referred to the 'same dispute' or 'same subject matter' as the
consultation request".199 For the United States, the "critical question" under the DSU is whether the
additional measures included in the panel request are "in essence the same measures " as those
identified in the request for consultations. 200 The United States purports to find support for its
position in the Appellate Body's finding in US – Certain EC Products , where the Appellate Body
clarified that "the scope of measures subject to establishment of a panel is defined by the consultations
request, and that a separate and 'legally distinct' measure may not be added in the panel request."201
79. The United States contends that the Europ ean Communities' request for consultations
identified separate anti-dumping measures that are "lega lly distinct" under United States law, and that

195See infra, footnote 497.
196United States' other appellant's submission, para. 29.
197United States' other appellant's submission, para. 28.
198United States' other appellant's submission, para. 30.
199United States' other appellant's submission, para. 33 (referring to Panel Report, paras. 7.23 and 7.28).
200United States' other appellant's submission, para. 33. (original emphasis)
201United States' other appellant's submission, para. 34 (referring to Appellate Body Report, US –
Certain EC Products, paras. 59, 60 and 82).

the European Communities subsequently added 14 "legally distinct" anti-dumping measures to its
panel request.
202 The 14 additional measures, even if they pertained to the same subject merchandise
as the measures listed in the request for consultati ons, resulted from different proceedings. Given that
the measures "each involved different time fram es and different calculations using different
information and data"203, they were "substantively and procedurally" 204 different from the measures in
the consultations request. The United States argues that the Panel wrongly found that the 14 measures
were within its terms of reference based on "striking similarities"205 between those measures and other
measures that had been identified in the Europ ean Communities' request for consultations. The
United States further argues that the Panel' s reliance on the Appellate Body's finding in Brazil –
Aircraft is misplaced because, in that case, "the Appella te Body recognized that the consultations and
panel request contained essentially the same measures, unlike the situation here."206
80. The United States also notes that the Panel f ound that the European Communities' challenge
to the continued application of the 18 anti-dumpi ng duties at issue did not meet the specificity
requirement of Article 6.2 of th e DSU, and these alleged 18 measures were therefore outside the
Panel's terms of reference. Shoul d the Appellate Body reverse the Panel's finding on specificity, the
United States requests the Appellate Body to find that the alleged 18 measures were "outside the
Panel's terms of reference on the grounds that they were identified in the [European Communities']
panel request, but not in its consultations request".207
2. Simple Zeroing as Applied in 29 Periodic Reviews
81. The United States requests the Appellate Body to reverse the Panel's finding that zeroing, as
applied by the USDOC in 29 periodic reviews, is inconsistent with Article VI:2 of the GATT 1994
and Article 9.3 of the Anti-Dumping Agreement.
82. The United States argues that the Panel misapplied the standard of review set out in
Article 17.6(ii) of the Anti-Dumping Agreement. According to the United States, the Panel viewed the
Anti-Dumping Agreement "as admitting of more than one permissible interpretation" and that the use
of zeroing in periodic reviews rests "on one of those interpretations". 208 On this basis, the Panel
should have found that the application of simple zeroing in the 29 reviews was permissible under the

202United States' other appellant's submission, para. 35.
203United States' other appellant's submission, para. 35.
204United States' other appellant's submission, para. 37.
205United States' other appellant's submission, para. 36 (referring to Panel Report, para. 7.27).
206United States' other appellant's submission, para. 38 (referring to Appellate Body Report, Brazil –
Aircraft, paras. 127-129 and 132).
207United States' other appellant's submission, footnote 6 to para. 26.
208United States' other appellant's submission, para. 51.

Anti-Dumping Agreement . The United States suggests that the Panel's departure from the
requirements of Article 17.6(ii) appears to rely on Articles 3.2 and 3.3 of the DSU. However,
Article 1.2 of the DSU specifies that the provisio ns of the DSU are "'subject to' the special or
additional rules listed in Appendix 2 to the DSU" 209, which includes Article 17.6(ii) of the Anti-
Dumping Agreement. The United States adds that Article 17.6(ii) was negotiated as a recognition that
some provisions of the Anti-Dumping Agreement would be susceptible to multiple permissible
interpretations. According to the United States, "the Panel erred by setting aside that carefully
negotiated standard of review" 210, and instead finding that the Unite d States acted inconsistently with
its obligations under the Anti-Dumping Agreement.
83. Turning to Article 2.1 of the Article VI of the GATT 1994 and the Anti-Dumping Agreement,
the United States argues that these provisions "do not define 'dumping' and 'margins of dumping' so as
to require that export transactions be examined at an aggregate level". 211 Instead, the definition of
dumping in these provisions "describes the real-world commercial conduct by which a product is
imported into a country, i.e., transaction by transaction"
212, whereas the European Communities
wrongly considers that those terms apply to the product under investigation "as a whole". 213 T h e
United States argues that the European Communities' interpretation relies on the term "product" as
being synonymous with "the concept that dumping may only be determined on an exporter-specific
basis".214 However, the United States maintains that the term "product" as used throughout the Anti-
Dumping Agreement and the GATT 1994 "can have either a collective meaning or an individual
meaning".215 The United States argues, for ex ample, that Article 2.6 of the Anti-Dumping Agreement
uses the term "product" in a coll ective sense; by contrast, Article VII:3 of the GATT 1994—which
refers to "[t]he value for customs purposes of any imported product"—uses the term "in the individual
sense of the object of a particular transaction". 216 The United States contends that the ordinary
meaning of the terms "product" and "products" do not compel a reading of those terms as excluding
individual transactions.
84. The United States further submits that there is no reason why a Member may not "establish
the 'margin of dumping' on the basis of the total amount by which transaction-specific export prices

209United States' other appellant's submission, para. 52.
210United States' other appellant's submission, para. 53.
211United States' other appellant's submission, para. 60 (referring to Appellate Body Report, US –
Zeroing (Japan), para. 140).
212United States' other appellant's submission, para. 60 (referring to Panel Report, US – Zeroing (EC) ,
para. 7.285).
213United States' other appellant's submission, para . 62 (referring to European Communities' first
written submission to the Panel, Panel Report, Annex A-1, p. A-45, para. 194).
214United States' other appellant's submission, para. 62.
215United States' other appellant's submission, para. 63.
216United States' other appellant's submission, para. 63.

are less than the transaction-specific normal values".
217 According to the United States, the term
"margin of dumping", as used elsewhere in the GATT 1994 and the Anti-Dumping Agreement, "does
not refer exclusively to the aggregated results of comparisons for the 'product as a whole'". 218 For
example, "[a]s used in the Note Ad Article VI :1, which provides for an importer-specific price
comparison, the term 'margin of dum ping' cannot relate to aggregated results of all comparisons for
the 'product as a whole' because an exporter or fo reign producer may make export transactions using
multiple importers."219
85. The United States disagrees with the Appellate Body's finding that a "determination of
dumping with respect to an exporter is properl y made not at the level of individual export
transactions, but on the basis of the totality of an exporter's transactions of the subject merchandise
over the period of investigation."220 The United States argues that this reasoning does not provide any
textual references that direct the calculation of a ma rgin of dumping to be done only "at the level of
multiple transactions" 221, or that would preclude the calculation of a margin of dumping on a
transaction-specific level. The United States contends that the Appellate Body failed to take into
account the possibility that the definitions of "dum ping" and "margin of dumping" could incorporate
the same level of "flexibility of meaning" 222 as that of the term "product", which has both a collective
and transaction-specific meaning. Additionally, because the Appellate Body's decision seems to
imply that there is no "temporal limit to the extent of the obligation to continue aggregating
comparison results ... [a]ny attempt to set an end da te to the obligated aggregation would appear to
arbitrarily subdivide the 'product as a whole' such that subsequent non-dum ped transactions may be
'zeroed' due to the fact they would be precluded from offsetting current antidumping duty liability."
223
86. The United States also refers to a Group of E xperts that was convened in 1960 to consider
numerous issues with respect to the application of Article VI of the General Agreement on Tariffs and
Trade 1947 (the "GATT 1947"). In its report 224 (the "1960 Group of Experts Report"), the Group of
Experts concluded that the "ideal method" fo r applying anti-dumping duties "was to make a
determination of both dumping and material injury in respect of each single importation of the product

217United States' other appellant's submission, para. 67 (referring to Panel Report, US – Softwood
218United States' other appellant's submission, para. 68.
219United States' other appellant's submission, para. 68.
220United States' other appellant's submission, para. 71 (quoting Appellate Body Report, US – Stainless
Steel (Mexico), para. 98).
221United States' other appellant's submission, para. 72.
222United States' other appellant's submission, para. 73.
223United States' other appellant's submission, para. 74.
224GATT Second Report of the Group of Experts, Anti-Dumping and Countervailing Duties, GATT
Document L/1141, adopted 27 May 1960, BISD 9S/194.

concerned".225 The United States maintains, therefore, th at the concept of dumping has historically
been understood to be applicable at the level of individual transactions. 226 According to the United
States, the Appellate Body has previously mi sapprehended the relevance of the 1960 Group of
Experts Report for the purposes of interpreting Article VI of the GATT 1947. 227 In particular, the
United States argues that the Appellate Body has fa iled to "explain why the fact that a particular
system for determining injury is administratively im practicable leads to the conclusion that Members,
when negotiating the Tokyo Round [Anti-Dumping] Code or the Uruguay Round [ Anti-Dumping
Agreement], necessarily agreed to a completely diffe rent concept of calculating a margin of
dumping".228 The United States further points out that the Uruguay Round negotiators discussed the
issue of whether zeroing should be restricted in the light of two GATT panels' decisions that had
found "[t]he methodology of not offsetting dumping based on comparisons where the export price was
greater than normal value" 229 to be consistent with the Tokyo Round Anti-Dumping Code .230
According to the United States, it can be inferred, fro m the fact that the text of Article VI of the
GATT 1947 was unaltered after the negotiations, that the drafters "intended no change in meaning".231
87. The United States further submits that the use of the term "margin of dumping" in Article 9.3
of the Anti-Dumping Agreement is consistent with a transaction-specific meaning. In the view of the
United States, the Panel "properly recognized" 232 that the United States' position rested on a
permissible interpretation of Article 9.3. The Unite d States contends that the European Communities'
claim of inconsistency with Article 9.3 necessarily depends upon whether the European Communities'
preferred interpretation of "margin of dumping" , which precludes any possibility of transaction-
specific margins of dumping, is the only permissible in terpretation of this term as used in Article 9.3
of the Anti-Dumping Agreement. However, there is no textual basi s for this proposition in the text of
Articles 2.1 and 9.3 of the Anti-Dumping Agreement. The United States also observes that previous

225United States' other appellant's submission, para. 76 (referring to 1960 Group of Experts Report,
para. 7).
226United States' other appellant's submission, para. 76 (referring to Panel Report, US – Zeroing
(Japan), para. 7.107).
227United States' other appellant's submission, para. 78 (referring to Appellate Body Report, US –
Stainless Steel (Mexico), para. 96, in turn referring to Appellate Body Report, US – Zeroing (Japan), para. 114).
228United States' other appellant's submission, para. 78.
229United States' other appellant's submission, para. 79 (referring to GATT Panel Report, EC – Audio
Cassettes, ADP/136, 28 April 1995, unadopted, para. 360; and GATT Panel Report, EEC – Cotton Yarn ,
230Tokyo Round Agreement on Implementation of Article VI of the General Agreement on Tariffs and
Trade, BISD 26S/171, entered into force 1 January 1980.
231United States' other appellant's submission, para. 79. (footnote omitted)
232United States' other appellant's submission, para. 80.

panels have found that a transaction-specific meani ng of the term "margin of dumping" is consistent
with Article 9.3 of the Anti-Dumping Agreement.
233
88. Moreover, the United States asserts that the prospective normal value assessment system
referred to in Article 9.4(ii) of the Anti-Dumping Agreement confirms that the term "margin of
dumping" may have a transaction-specific meaning. According to the United States, if "individual
export transactions at prices less than normal valu e can attract liability for payment of antidumping
duties ... there is no reason why liability for paym ent of antidumping duties may not be similarly
assessed"
234 in the United States. The United States reject s an interpretation of Article 9 as requiring
offsets between importers in a retrospective assess ment system while capping the importer's liability
based on individual transactions in a prospectiv e system. The United States further argues that
accepting the interpretation that a Member must aggregate the results of all comparisons on an
exporter-specific basis would require that retrospect ive reviews be conducted, even in a prospective
normal value system, to take into account all of the exporters' transactions. For the United States, this
would, in effect, render prospective normal value systems retrospective.
89. The United States submits that a prohibition of zeroing in periodic reviews "would favor
importers with high margins vis-à-vis importers with low margins".235 According to the United States,
if "the amount of the antidumping duty must be reduced to account for the amount by which some
other transaction was sold at above normal value"
236, the anti-dumping duty would be insufficient to
prevent dumping from having further injurious effect. For the United States, under such an
interpretation of Article 9.3 of the Anti-Dumping Agreement , anti-dumping duties "would be
prevented from fulfilling their intended purpose un der Article VI:2 of the GATT 1994, because
importers that contribute the most to injurious dumping would be favored over other importers (and
domestic competitors) that price fairly." 237 This is so, the United States maintains, because "if a
Member is unable to calculate and assess the dutie s on a transaction-specific basis, importers of the
merchandise for which the export price is less than normal value to the greatest extent will actually
have an advantage over their competitors who impor t at fair value prices because they will enjoy the
benefit of offsets that result from their competitors' fairly priced imports."238

233United States' other appellant's submission, paras. 83-86 (referring to Panel Report, US – Zeroing
(EC), paras. 7.201, 7.204-7.207, and 7.220-7.223; and Panel Report, US – Zeroing (Japan), paras. 7.196, 7.198
and 7.199).
234United States' other appellant's submission, para. 89 (referring to Panel Report, US – Zeroing
(Japan), para. 7.208).
236United States' other appellant's submission, para. 93.
237United States' other appellant's submission, para. 95 (referring to Panel Report, US – Stainless Steel
(Mexico), para. 7.146).
238United States' other appellant's submission, para. 95.

90. The United States contends that any general prohibition of zeroing that applies beyond the
context of weighted average-to-weighted average ("W-W") comparisons in original investigations
would render the remaining text of Article 2.4.2 re dundant. In particular, it would reduce the second
sentence of Article 2.4.2 to "inutility" because th e targeted dumping methodology would "yield the
same result as [a W-W] comparison if, in both cases, non-dumped comparisons are required to offset
dumped comparisons". 239 The United States finds support for its position in the findings in prior
panel reports addressing zeroing.240
91. The United States takes issue with the Appellate Body's finding that "mathematical
equivalence" occurs only in "certain situations" and is a "non-tested hypothesis". 241 First, the United
States argues that all of the situations under which it has been argued that mathematical equivalence
would not occur have been addressed by pane ls and found to be inconsistent with the Anti-Dumping
Agreement.242 Secondly, the United States argues that "m athematical equivalence is not a 'non-tested
hypothesis'"243 because, according to the United States, the complaining party in this case actively
uses this methodology. The United States also rejects the Appellate Body's conclusion that the second
sentence of Article 2.4.2 is an "exception" and therefore "cannot determine the interpretation of
methodologies contained in the first sentence of Article 2.4.2". 244 According to the United States, this
reading of Article 2.4.2 would be contrary to the principle of effective treaty interpretation. The
United States also questions the Appellate Body's conclusion "that it may be permissible to apply the
targeted dumping methodology to a subset of export transactions." 245 The United States argues that
nothing in the language of Article 2.4.2 provid es for selecting a subset of transactions when
conducting a targeted dumping analysis. The United States submits that the word "pattern" in the
second sentence of Article 2.4.2 "incorporates export prices that differ significantly" and does not
suggest "that one part of the identified pattern ma y be treated in one way (i.e., used in [weighted]
average-to-transaction ["W-T"] comparisons) while another part of the identified pattern may be
treated differently (i.e., ignored or used in [W-W] comparisons)."
246 Further, selecting a subset of

239United States' other appellant's submission, para. 101. (footnote omitted)
240United States' other appellant's submission, para. 102 (referring to Panel Report, US – Zeroing (EC),
para. 7.266; Panel Report, US – Softwood Lumber V (Article 21.5 – Canada) , para. 5.52; Panel Report, US –
Zeroing (Japan), para. 7.127; and Panel Report, US – Stainless Steel (Mexico), paras. 7.130-7.133).
241United States' other appellant's submission, para. 103 (referring to Appellate Body Report, US –
Zeroing (Japan), para. 133; and Appellate Body Report, US – Softwood Lumber V (Article 21.5 – Canada) ,
para. 97).
242United States' other appellant's submission, para. 103 (referring to Panel Report, US – Zeroing
(Japan), paras. 7.127-7.137; Panel Report, US – Zeroing (EC) , para. 7.266; and Panel Report, US – Softwood
Lumber V (Article 21.5 – Canada), paras. 5.33-5.52).
243United States' other appellant's submission, para. 103.
244United States' other appellant's submission, para. 104.
245United States' other appellant's submission, para. 105 (referring to Appellate Body Report, US –
Zeroing (Japan), para. 135).
246United States' other appellant's submission, para. 107.

export transactions would, in the United States' view, be contrary to the Appellate Body's conclusion
that "all"
247 export transactions should be considered wh en performing W-W and W-T comparisons.
According to the United States, "if the Appellate Bo dy's statements are understood to mean that the
use of [W-T] comparisons with a subset of the export transactions is to be done in conjunction with
the use of the [W-W] comparison for the remaining export transactions", then "such comparisons will
be mathematically equivalent to the results obtained through the use of [W-W] comparisons."248
92. Finally, the United States submits that th e European Communities, "when addressing this
issue before domestic tribunals, agrees with the Unit ed States and the panel reports cited above, that a
general prohibition of zeroing applied equall y to both assessment proceedings and original
investigations, would render the [W-T] comparison inutile."249
3. Article 11 of the DSU – Eight Sunset Reviews
93. The United States claims that the Panel failed to comply with its duties under Article 11 of the
DSU by finding that the United States acted inconsis tently with its obligations under Article 11.3 of
the Anti-Dumping Agreement in eight of the sunset reviews at issue in this dispute. 250 In particular,
the United States argues that "the Panel's finding th at model zeroing was used in the [original]
investigations underlying the eight sunset reviews 'l ack[s] a basis in the evidence contained in the
panel record'." 251 In support of its claim, the United States points out that it is the complaining
Member that bears the burden of making a prima facie case. In order to succeed with its claim in this
case, the European Communities was required to provide evidence from the underlying original
investigations in which the dumping margins at is sue were calculated in order to show that model
zeroing was employed in those calculations. Howeve r, according to the United States, the European
Communities failed to provide this evidence, and the "sole basis" for the Panel's decision with respect
to the eight sunset review determinations was "language from a Federal Register notice in which [the
USDOC] announced that it would no longer use model zeroing in [W-W] comparisons in [original]
investigations."
252 The United States underscores that such a general statement "does not provide

247United States' other appellant's submission, para. 108.
248United States' other appellant's submission, para. 109. (footnote omitted).
249United States' other appellant's submission, para. 112 (original emphasis) (referring to
Case T-274/02, Ritek Corp. v. Council of the European Union , 24 October 2006 (Panel Exhibit US-3), para. 94;
and to Panel Report, supra, footnote 242). See also Appellate Body Report, US – Softwood Lumber V
(Article 21.5 – Canada), para. 49.
250United States' other appellant's submission, para. 115 (referring to Panel Report, paras. 7.192-7.202
and 8.1(f)).
251United States' other appellant's submission, para . 121 (emphasis omitted) (quoting Appellate Body
252United States' other appellant's submission, para. 119 (referring to Panel Report, paras. 6.9
and 7.200).

evidence as to whether zeroing was in fact employ ed in [calculating] the specific margins relied upon
in each of the challenged sunset reviews".253
D. Arguments of the European Communities – Appellee
1. The Panel's Terms of Reference – 14 Additional Measures
94. The European Communities requests the Appellate Body to dismiss the United States' claim
that the 14 additional measures that were not iden tified in the European Communities' consultations
request fell outside the Panel's terms of reference. The European Communities also considers that the
Appellate Body should reject the United States' requ est for a finding that the 18 duties were outside
the Panel's terms of reference on the grounds that they were not identified in the European
Communities' consultations request.
95. With respect to the 14 additional measures, the European Communities argues that Articles 4
and 6 of the DSU do not require that the measures that were the subject of consultations and the
measures identified in the request for the establis hment of a panel "be identical, as long as they
involve essentially the same matter".254 The European Communities finds support for this proposition
in Article 4 of the DSU and Article 17 of the Anti-Dumping Agreement, which "refer to the 'dispute'
and the 'matter', rather than to 'specific measures'" 255, as well as in Articles 3.3 through 3.7 of the
DSU.
96. The European Communities also agrees with the Panel that the Appellate Body's reasoning in
US – Certain EC Products is inapplicable to the present case since the facts of the cases are different.
According to the European Commun ities, unlike the additional measure identified for the first time in
the panel request in US – Certain EC Products , the 14 additional measures identified in the panel
request in the present case are not legally distinct as compared to the measures identified in the
European Communities' request for consultations. In particular, the European Communities points
out that the 14 additional measures in the present case relate to the same products from the same
countries as those identified in th e request for consultations. More over, the same government agency
issued the measures; the legal claims made by the European Communities were identical to those
made in the request for consultations; a nd the 14 measures have a direct relationship to the measures
mentioned in the annexes to the request for consu ltations since they imply extensions, modifications,
or implementation of the anti-dumping duties upon which the parties consulted. The European

253United States' other appellant's submission, para. 119.
254European Communities' appellee's submission, para. 11 (original emphasis) (referring to Appellate
Body Report, Brazil – Aircraft, para. 132; Appellate Body Report, US – Shrimp (Thailand) / US – Customs
Bond Directive, para. 119; and Appellate Body Report, US – Upland Cotton, para. 285).
255European Communities' appellee's submission, para. 12. (footnote omitted)

Communities further argues that the Appellate Body's reasoning in Brazil – Aircraft —that "the
additional measures included in the panel request did not change the essence of the subsidy scheme
challenged by Canada in its consultations request"—applies to the present case since the 14 additional
measures "refer to the same matter raised during consultations, i.e., the use of zeroing when
calculating the dumping margins in the specific anti- dumping proceedings with respect to the same
products originating from the specific countries listed therein."
256
97. The European Communities also considers that the Appellate Body should reject the United
States' request for a finding that 18 anti-dumping duties were outside the Panel's terms of reference on
the grounds that they were not identified in the Eu ropean Communities' request for consultations. In
the European Communities' view, there is "a certain analogy" between the measures challenged in the
present case and a subsidy programme at issue in Brazil – Aircraft because, "[l]ike the measure
referenced in the present dispute, a subsidy progra mme is distinct from both legislation implementing
the SCM Agreement, and from instances of the application of such programme."257
98. Moreover, the European Communities argues that the United States did not include in its
Notice of Other Appeal the claim that the 18 duti es were outside the Panel's terms of reference.
Therefore, pursuant to Rule 20(2)(d) of the Working Procedures, the Appellate Body should reject the
United States' claim. In the ev ent that the Appellate Body deci des to examine the United States'
appeal on this point, the European Communities argues that there is "no need for identity between the
specific measures that were the subject of the request for consultations and those which are the subject
of the Panel request as long as they involve essentially the same matter (in this case, the use of
zeroing in specific anti-dumping measures)." 258 The European Communities further argues that,
because the reference to the zeroing methodology in its consultations request "was simply narrowed"
in its panel request to the methodology "as embedded in the 18 measures" 259, the scope of the
consultations was in fact wider than the scope of the panel request.
2. Simple Zeroing as Applied in 29 Periodic Reviews
99. The European Communities requests the Appellate Body to reject the United States' appeal
that the Panel erred in concluding that zeroing as applied by the USDOC in 29 periodic reviews is
inconsistent with Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement.

256European Communities' appellee's submission, para. 15 (original emphasis) (referring to Appellate
258European Communities' appellee's submission, para. 17. (original emphasis)

100. The European Communities contends that th e United States' interpretation cannot be
"permissible" within the meaning of Article 17.6(ii) of the Anti-Dumping Agreement "[i]f all of the
interpretative elements in the Vienna Convention support the position of the European Communities,
and disprove the position of the United States". 260 According to the European Communities, past
panel and Appellate Body reports have confirmed the correct le gal interpretation of the GATT 1994
and the Anti-Dumping Agreement.
101. The European Communities submits that it is clear from Articles VI:1 and VI:2 of the
GATT 1994 and various provisions of the Anti-Dumping Agreement that: (a) "dumping" and "margin
of dumping" are exporter-specific concepts; "dumping" is also product-related, in the sense that an
anti-dumping duty is a levy in respect of the pr oduct that is investigated and found to be
dumped; (b) "dumping" and "margin of dumpi ng" have the same meaning throughout the Anti-
Dumping Agreement; (c) an individual margin of dumping is to be established for each investigated
exporter, and the amount of anti-dumping duty levied in respect of an export er shall not exceed its
margin of dumping; and (d) the purpose of an anti-dumping duty is to counteract "injurious dumping"
and not "dumping" per se.261 In the view of the European Communities, the notion that "dumping"
and "margin of dumping" can exist at the level of an individual transaction is contrary to "the
requirement to make the determination on the basis of all an exporter's transactions over a period of
time, and cannot be reconciled with a proper interpretation and application of several provisions of the
Anti-Dumping Agreement."262
102. The European Communities argues that the term zeroing describes only part of the problem,
that is, the downward adjustment of the relativel y high-priced export transactions. For the European
Communities, the heart of the matter is the selecti on of the relatively low-priced export transactions
per se, as a sub-category, as the only or preponderant basis for the dumping margin calculation.
103. Based on its examination of the overall design and architecture of Article 2.4.2, the European
Communities concludes that "there are only three sub-categories of clustered low priced export
transactions that it is permissible to respond to : those clustered by purchaser, region or time." 263
Therefore, it is clear from the term "all" in the fi rst sentence of Article 2.4.2, and the definition of
"dumping" in Article 2.1 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994 "read
together with the absence in the targeted dumping provisions of any reference to a sub-category by
model", that it is neither permissible, nor fair, "t o pick up low priced export transactions clustered by

260European Communities' appellee's submission, para. 43. (original emphasis)
261European Communities' appellee's submission, para. 20 (original emphasis) (referring to Appellate
Body Report, US – Stainless Steel (Mexico), paras. 83-96).
263European Communities' appellee's submission, para. 31. (emphasis and footnote omitted)

model".
264 Nor is it possible, according to the European Communities, to select low-priced export
transactions per se as a sub-category.
104. The European Communities asserts that the United States wrongly assumes that Article 2.4.2
does not apply to the re-calculation of dumping ma rgins in assessment proceedings. According to the
European Communities, such an interpretation would negate the compromise enshrined in
Article 2.4.2, because "the results of the first retrospective assessment proceeding are applied with
effect from the date on which duties were first imposed".265
105. The European Communities believes that the ordina ry meaning of the term "investigation" is
simply a systematic examination or careful study of a particular subject. Thus, the European
Communities argues that there are five types of proceedings (original, newcomer, changed
circumstances, sunset, and periodic reviews) because they all involve an investigation into something,
and that the United States is wrong to assert that there is only one type of proceeding with five phases.
Further, the European Communities disagrees with the proposition that the term "existence" is unique
to original investigations, arguing that "thi s term simply relates to any dumping margin
calculation."266
106. The European Communities then submits that all the arguments advanced by the United
States have been repeatedly considered and re jected by the Appellate Body. The European
Communities argues that the interpretation advanced by the United States is not a permissible one. If,
however, the Appellate Body decides to overturn the finding of the Panel, then the European
Communities refers to its conditional appeal wherein it asks the Appellate Body to reverse that part of
the Panel Report which agrees with the United States with respect to the use of simple zeroing in
periodic reviews. The European Communities urg es the Appellate Body to consider the present
matter in the light of findings in US – Stainless Steel (Mexico) on the question of precedent. In the
European Communities' view, the Appellate Body can reverse its previous decision only for new and
cogent reasons, which do not exist in this case. Further, the European Communities disagrees with
the proposition that Article 17.6(ii) of the Anti-Dumping Agreement "override[s]" or "replace[s]" the
provisions of the DSU. Instead, for the Europ ean Communities, Article 17.6 supplements the
provisions of the DSU.
267 The European Communities adds th at the Panel in this case followed
previous Appellate Body findings and thus complied with its obligations under Article 11 of the DSU.

264European Communities' appellee's submission, para. 32. (emphasis omitted)
266European Communities' appellee's submission, para. 41. (footnote omitted)
267European Communities' appellee's submission, paras. 64 and 65 (referring to Appellate Body Report,

In the European Communities' view, "it is for the A ppellate Body to change its own mind; not for a
panel to do it on the Appellate Body's behalf."268
107. The European Communities also asserts that is not necessary to consider preparatory work or
other historical materials. In any event, the European Communities argues that there is a "strong
indication of consensus that the interests of bot h sides in the asymmetry and zeroing debate was
accommodated in the targeted dumping provisions that eventually became the second sentence of
Article 2.4.2."269 The European Communities further argues that the United States' arguments relating
to the 1960 Group of Experts Report have already b een carefully considered and rejected by the
Appellate Body in previous cases.
108. The European Communities submits that past ca ses have rejected the United States' assertion
that a prohibition on zeroing would favour "prospectiv e" systems at the expe nse of "retrospective"
systems.270 According to the European Communities, th e retrospective and prospective systems are
"very nearly the same".271 Both systems impose duties on a prospective basis, and provide for review
or refund on a retrospective basis. For th e European Communities, the "key difference" 272 is that
under the retrospective system anyone can request a review, whereas in a prospective system only
importers can request a review. Finally, the European Communities disagrees with the proposition
that the amounts collected under the variable dut y system, which the United States likens to amounts
collected based on a transaction-to-transaction ("T-T") assessment and zeroing, are final. The
European Communities argues in this regard that the variable duty re ferenced in Article 9.4(ii) is
subject always to the review and refund procedures provided for in Articles 9.3.1 or 9.3.2.
109. Moreover, the European Communities argues that the Appellate Body has repeatedly rejected
the proposition "that a prohibition on zeroing will favour importers selling at lower prices over
importers selling at higher prices". 273 First, the European Communiti es argues that, "if the relatively
low and high priced transactions are distributed more or less equally amongst importers, no such issue
arises."274 Secondly, if the relatively low-priced transac tions are clustered with one importer, then the
investigating authority could use the targeted dumping methodology. Thirdly, "it is a matter of simple
accounting to collect the appropriate and equi table amounts from different importers, whilst
respecting the ceiling provided for in Article 9.3 of the Anti-Dumping Agreement to the effect that the

270European Communities' appellee's submission, para. 46 (referring to United States' other appellant's
submission, heading III.B.2.d; and Panel Report, para. 7.166).

amount of [duty] must not exceed the exporter's dumping margin."
275 Fourthly, the European
Communities contends that it is incorrect to say th at "an 'offset' is provided for the so-called non-
dumped transactions; it is rather a question of properly calculating a margin of dumping for each
exporter by taking all transactions fully into account, re gardless of whether they are above or below
normal value."276
110. Finally, the European Communities points out that the argument that "a general prohibition on
zeroing would render the targeted dumping provisions redundant" 277 has been carefully considered
and rejected in past cases. The European Comm unities adds that the mathematical equivalence
argument "depends upon a specific set of assumptions, which may not hold true". 278 In any event, an
"exception cannot determine the interpretation of th e normal rule: something that is unfair absent
targeted dumping might be a fair response to targeted dumping." 279 Moreover, the European
Communities argues that "permitting zeroing under the first sentence of Article 2.4.2 would enable
investigating authorities to select as the only or preponderant basis for calculating a margin of
dumping relatively low priced export transactions per se ... thus rendering the third method
redundant."280
3. Article 11 of the DSU – Eight Sunset Reviews
111. The European Communities argues that the Panel did not fail to make an objective
assessment, as required by Article 11 of the DSU, when finding that the European Communities had
made out a prima facie case that, in eight sunset reviews, th e margins in the underlying original
investigations were obtained through model zeroi ng. The European Communities submits that the
Panel was entitled to draw inferences from the fact s available in the record. According to the
European Communities, "the fact that there was a concrete policy change so declared by the United
States to depart from its practice of using model zero ing in original investigations together with the
fact that the underlying original investigations con cerned took place before that policy change, imply
that the European Communities made out a prima facie case that what was claimed ... was true." 281
The European Communities contends that the Unit ed States' investigating authority had all the
evidence necessary to rebut the prima facie case made by the European Communities, and could have
agreed that model zeroing had not actually been used in the underlying investigations. Finally, the
European Communities argues that the United States failed to meet its burden of proof because it has

275European Communities' appellee's submission, para. 55. (original emphasis)
276European Communities' appellee's submission, para. 23. (original emphasis) See also ibid., para. 56.
277European Communities' appellee's submission, para. 58. (footnote omitted)
281European Communities' appellee's submission, para. 76. (original emphasis; footnote omitted)

failed to show that the margins of dumping in the underlying original investigations were not based on
model zeroing.
E. Arguments of the Third Participants
1. Brazil
112. Brazil submits that the Appellate Body should affirm the Panel's finding that the 14 additional
measures included in the Eur opean Communities' panel request , but not in its request for
consultations, were properly within the Panel's terms of reference. According to Brazil, the United
States' view that Articles 4 and 6 of the DSU require strict identity between the measures listed in the
consultations request and the panel request creates "an endless cycle" 282 of litigation aimed at
resolving the same dispute (that is, the application of the zeroing methodology in successive anti-
dumping proceedings that involve the same United States anti-dumping order) regarding the same
products from the same countries. Brazil argues that Articles 4 and 6 of the DSU are properly
interpreted as conferring jurisd iction "over all measures manifesting the same basic 'problem'". 283
Brazil submits that the Appellate Body and previous panels, when determini ng the scope of a panel's
jurisdiction, have focused on a " substantive connection", such that, "[a]s long as the various measures
are substantively the same with respect to the disputed issue , even those measures not formally
identified in the consultations and/or panel request s are properly within the scope of the dispute." 284
Brazil contends that, in accordance with Articles 3. 4 and 3.7 of the DSU, this approach aims at
achieving a "satisfactory settlement of the matter" and secures a "positive solution" to the substance of
the dispute.
113. Brazil finds further support for the Panel's findi ng in the Appellate Body's consideration of
the jurisdiction of Article 21.5 compliance panels. Brazil contends that the Appellate Body has called
upon Article 21.5 panels to "apply a 'nexus-based test' to determine whether contested measures share
sufficiently close 'relationships' w ith indisputably covered measures, to enable their inclusion within
the compliance panel's jurisdiction." 285 Brazil contends that, despite the United States' assertions that
the two sets of measures are "legally distinct", USDOC regulations support the position that the
measures are formally linked because "all periodic an d sunset reviews that occur under a single order
are mere ' segments' of a single ' proceeding' that continues until revocation." 286 In Brazil's

282Brazil's third participant's submission, para. 14.
283Brazil's third participant's submission, para. 15.
284Brazil's third participant's submission, para. 21. (original emphasis)
285Brazil's third participant's submission, para . 23 (referring to Appellate Body Report, US – Softwood
286Brazil's third participant's submission, pa ra. 26 (original emphasis) (referring to United States Code
of Federal Regulations, Title 19, Chapter 3, Section 351.102 (Definitions)).

consideration, it is crucial that the original 38 measures and the additional 14 measures "all concern
the application of the same zeroing methodology to the same products from the same countries, under
the same anti-dumping orders , and they provide succeeding bases for the continued application and
imposition of anti-dumping duties under that order."
287
114. Brazil asserts that the Panel corr ectly held that the United States acted inconsistently with the
provisions of the Anti-Dumping Agreement and the GATT 1994 by applying simple zeroing in
periodic reviews. Brazil contends that the Unite d States' position that "dumping" and "margin of
dumping" may be established for individual expo rt transactions is not supported by a proper
interpretative analysis. In Brazil's view, the Unite d States' position that the term "dumping" can refer
to "anything from one transaction to all tran sactions ... seeks to replace a uniform multilateral
definition with an empty vessel that each Member's authority can unilaterally fill as it wishes, with the
meaning possibly changing from one proceeding to another."288 Brazil also disagrees with the support
the United States draws from the fact that Artic le VI:1 of the GATT 1994 and Article 2.1 of the Anti-
Dumping Agreement both use the word "price" in the singular. According to Brazil, "[t]he immediate
context in Article 2.1 shows that the two singular prices mentioned—home market price (or normal
value) and export price—are collective prices for the 'product' as a whole." 289 Brazil also maintains
that the term "like product" is used in the Anti-Dumping Agreement in the collective sense, and that
the three methodologies in Article 2.4.2, each of which requires a comparison with "export prices" in
multiple transactions, show that the single price is obtained by aggregating prices of multiple export
transactions.
115. Brazil argues that the United States' view that dumping can be determined for an individual
export transaction cannot be reconciled with the contex t provided by Articles 5.8, 6.10, 8.1, 9.1, 9.3,
and 9.5 of the Anti-Dumping Agreement. According to Brazil, Article 6.10 requires a single margin of
dumping to be determined with respect to each exporte r. As a consequence, the decision to terminate
or pursue an investigation under Article 5.8 is b ased on a single dumping determination made for all
transactions relating to the product; for the purpose of injury determination under Article 3, all entries
of the product are treated as dumped; and reme dial action to counter injurious dumping under
Articles 8 and 9 is "fixed by reference to a single margin of dumping, and that remedy applies to all
future imports of the 'product'."
290 Brazil submits that defining "dumping" in relation to the product as
a whole "ensures parallelism between the scope of a dumping determination and the scope of the
regulatory consequences the determination entails".291 In addition, Brazil recalls, Article 2.1 sets forth

287Brazil's third participant's submission, para. 31. (original emphasis)
288Brazil's third participant's submission, para. 44.
289Brazil's third participant's submission, para. 47.
290Brazil's third participant's submission, para. 57. (original emphasis)
291Brazil's third participant's submission, para. 58.

the definition of "dumping" that applies to the en tire Agreement. Allowing the meaning to change
from one type of proceeding to another "would lead to arbitrary and unpredictable results: for a given
set of export transactions, at identical prices, for an identical product and exporter, there could be
'dumping' in one type of anti-dumping proceeding but not in another."292
116. Brazil challenges certain of the United States ' contextual arguments. Brazil argues that,
although the word "product" is used in Articles VI:1 and VII:3 of the GATT 1994, this does not mean
that the word carries the same meaning in each of those provisions. According to Brazil, the different
contexts for these provisions shows that the word has different meanings with respect to each
provision. Brazil also rejects the United States' argument that paragraph 1 of Ad Article VI of the
GATT 1994 "provides for importer specific comparisons". 293 Brazil argues that paragraph 1 of Ad
Article VI, like Article 2.3 of the Anti-Dumping Agreement, "simply permits an authority to use the
importer's resale price to an independent buyer as the starting-point for its determination of export
price, in circumstances where the im porter is related to the exporter." 294 Brazil also rejects arguments
of the United States regarding Article 2.2 of the Anti-Dumping Agreement, noting that, "whether or
not normal value is constructed for some or a ll models under Article 2.2, the results of the
intermediate comparisons must all be aggregated to determine 'dumping' on a product-wide basis to
meet the definition of Article 2.1." 295 Regarding the application of Article 9.4(ii) to a prospective
normal value system under the Anti-Dumping Agreement , Brazil argues that reliance on a specific
definition of "dumping" is misplaced because this argument "conflates" 296 two distinct concepts: the
"amount of anti-dumping duty" under Article 9.4 and the "margin of dumping" determined under
Article 2. According to Brazil, "the amount of du ties imposed on importers with respect to individual
imports of a product is not a 'margin of dumping' determined for that entry." 297 Brazil disagrees with
the United States that, in a review under Article 9.3. 2, it is not possible to determine an exporter's
margin, because the importer has to make the re quest for the review, and the importer does not
possess all the information regarding the exporter. For Brazil, this argument overlooks examples of
similar situations in the Anti-Dumping Agreement, such as Articles 5, 11.2, and 11.3, in which, "like
Article 9.3.2, the party making a duly substantiated request is not the exporter, yet a determination is
made regarding the exporter." 298 Finally, Brazil disagrees with the proposition that a general
prohibition of zeroing would render the second sentence of Article 2.4.2 inutile. In Brazil's view, this

292Brazil's third participant's submission, para. 62.
293Brazil's third participant's submission, para. 70 (referring to United States' other appellant's
submission, para. 68).
294Brazil's third participant's submission, para. 71.
295Brazil's third participant's submission, para. 72.
296Brazil's third participant's submission, para. 73.
297Brazil's third participant's submission, para. 74. (original emphasis)
298Brazil's third participant's submission, para. 78. (original emphasis)

dispute does not concern zeroing under Article 2.4. 2, but "whether zeroing is permitted in a [W-T]
comparison in a periodic review under Article 9.3".
299 Accordingly, in the circumstances of this
dispute, "any exceptional right that sentence might afford for zeroing is simply irrelevant to the
periodic reviews at issue."300
117. Brazil takes issue with the United States' argume nt that defining "dumping" in relation to the
product as a whole leads to "perver se incentives and absurd results". 301 For Brazil, this argument is
based on the proposition that "'dumping' should be defined on a transaction-specific basis to allow the
importing Member to maximize the amount of duties collected, without the 'dumping' found in one
transaction being offset by the prices of other transactions." 302 Brazil argues that this policy position
is not reflected in the text of the treaty, and believes that Members agreed to a single "dumping"
determination for each exporter because this approa ch "strikes an appropriate balance between the
interests of an importing Member in protecting its domestic industries against the unfair pricing of a
'product', and those of exporting Members in enjo ying the market access concessions it secured in the
Uruguay Round."303
118. Brazil agrees with the Panel that the European Communities made out a prima facie case
regarding the application of zeroing in the eight sun set reviews, and submits that there is no "valid
basis"304 for the United States to challenge the Panel' s factual findings. Brazil notes that, in so
concluding, the Panel relied on the USDOC Decembe r 2006 Notice that announced the decision to no
longer apply zeroing to W-W comparisons in original investigations, together with the United States'
silence in the face of this evidence. Brazil contends that, if a party offers "affirmative evidence" with
respect to a matter, a panel is entitled to attach "evidentiary significance" to the silence of the
opposing party. 305 Thus, "[i]n light of the evidence the European Communities had produced, the
Panel was entitled to interpret the United States' silence"306 as evidence to be taken into account.
119. Brazil supports the claim of the European Communities that the Panel did not conduct an
objective assessment of the facts and law with respec t to the seven periodic reviews at issue. Brazil
argues that the Panel failed to conduct an objective assessment of the facts as required under
Article 11 of the DSU because it "disregarded and ot herwise failed to address the highly relevant

299Brazil's third participant's submission, para. 81.
300Brazil's third participant's submission, para. 84. (original emphasis)
301Brazil's third participant's submission, para. 89 (referring to United States' other appellant's
submission, heading III.B.2.c).
302Brazil's third participant's submission, para. 90. (original emphasis)
303Brazil's third participant's submission, para. 91.
304Brazil's third participant's submission, para. 94.
305Brazil's third participant's submission, para. 98.
306Brazil's third participant's submission, para. 99.

evidence of factual findings in recently a dopted panel and Appellate Body reports". 307 According to
Brazil, these adopted reports contain findings that establish that the USDOC has always used zeroing
procedures in periodic reviews during the period cove red by the investigations of the seven periodic
reviews at issue. Moreover, Br azil maintains that factual finding s in adopted panel and Appellate
Body reports create "legitimate expectations concer ning the existence and application of particular
measures", particularly where "an adopted report may include findings regarding the existence and the
nature of an identical measure of the same defending party during the same time period at issue in a
later dispute." 308 Brazil finds support for its position in WTO jurisprudence regarding Article 21.5
compliance proceedings. According to Brazil, "t he notion that later disputes involving measures
subject to factual findings in adopted reports form part of a 'continuum of events' of which the panel
in the later dispute must take account, and failin g some relevant change, from which it may not
depart, should not be limited to co mpliance disputes under Article 21.5." 309 In this case, the Panel
was dealing with a "consistent continuum" of findi ngs regarding zeroing in periodic reviews, and if
the Panel wished to depart from factual findings in adopted reports, it should have provided a
"reasoned and adequate explanation setting out a relevant change of circumstances". 310 Brazil also
contends that it would have b een appropriate for the Panel sua sponte to have taken notice of the
relevant findings of fact in prior adopted reports.
120. Brazil argues that the Panel also breached Article 11 of the DSU by failing to seek
information from the United States as to whether it had applied simple zeroing in the seven periodic
reviews. Brazil asserts that the Panel "refused" to request of the United States "detailed data and other
information about its margin calculations" desp ite its relevance, the European Communities'
contingent request, the Panel's own conclusion that such information was relevant to its final
determination, and the "undoubted fact" that onl y the United States had access to this information. 311
Brazil rejects as "legally incorrect" 312 the Panel's view that, "unless and until a complaining party has
made its prima facie case during the course of the proceedings, there is no obligation by a defending
party to provide any information, even if such information w ould be highly relevant to the claims or
defenses at issue in the dispute." 313 According to Brazil, "[a]n objective examination of the facts
presupposes that the 'facts' examined are as co mplete as possible in view of the evidence available—
whether because it has been submitted by a party, or because it is of significance to the panel's inquiry

307Brazil's third participant's submission, para. 107.
308Brazil's third participant's submission, para. 116. (original emphasis)
309Brazil's third participant's submission, para. 121.
310Brazil's third participant's submission, para. 122.
311Brazil's third participant's submission, para. 125.
312Brazil's third participant's submission, para. 131.
313Brazil's third participant's submission, para. 130 (original emphasis) (referring to Panel Report,
para. 6.20).

but not in the public domain. Assessment of the facts without the benefit of the best available
information runs the risk of non-objectivity, or decisions made on the basis of an incomplete
record."
314 Further, Brazil argues that parties to a WTO dispute are bound by a "duty to cooperate and
to produce information ... regardless of which party bore the ultimate burden of proof to establish a
prima facie case."315
121. Brazil contends that Article 13.1 of the DSU do es not require a panel to wait for a request by
one party in order to request information from the other party. In addition, a panel does not "make the
case" for one party by seeking information from the other because "every request by a panel under
Article 13.1 necessarily relates to some element of a claim or defense." 316 Thus, Brazil submits that
the failure of the Panel to seek information from the United States to examin e the authenticity and
accuracy of the European Communities' documen tation for each periodic review in question
constitutes a failure by the Panel to conduct an obj ective assessment of the facts. In addition, the
Panel's failure to agree to the European Commun ities' request to seek information resulted in the
Panel assessing facts that were "significantly incomplete". 317 While Brazil "appreciates" the
Appellate Body's reluctance to second-guess a panel' s exercise of discretion "regarding the quantum
or completeness of evidence in the record", Brazil adds that "[t]here are limits to a [p]anel's discretion
not to act and not to collect sufficient facts to ensure that its decision is based on the best information
available."318
122. Finally, Brazil argues that the Panel failed to conduct an objective assessment of the facts
because it "did not properly evaluate and explain th e absence of any denial by the United States that it
had applied the zeroing procedures in the seven periodic reviews".319 Brazil disagrees with the Panel's
conclusion that the United States should not be exp ected "to rebut a factual assertion unsupported by
relevant evidence from the party making the assertion". 320 Despite the rationale provide by the Panel,
Brazil questions why the United States did not "simply refute the [European Communities']
allegations with a documented assertion that it did not apply the zeroing procedures in the seven
periodic reviews".321 Brazil contends that, unlike previous pa nels, the Panel in the present case failed
to ask the United States if it could provide any example in which the USDOC had not applied zeroing

314Brazil's third participant's submission, para. 134. (original emphasis)
315Brazil's third participant's submission, para. 136 (referring to Appellate Body Report, India –
Additional Import Duties, para. 213 and footnote 409 thereto).
316Brazil's third participant's submission, para. 139.
317Brazil's third participant's submission, para. 145.
318Brazil's third participant's submission, para. 146. (original emphasis)
319Brazil's third participant's submission, para. 147.
321Brazil's third participant's submission, para. 147. (original emphasis)

procedures in a periodic review. Brazil further poi nts out that the United States never denied using
zeroing in the seven periodic reviews at issue.
2. China
123. Pursuant to Rule 24(2) of the Working Procedures , China chose not to submit a third
participant's submission, but notified its intention to appear at the oral hearing.
3. Egypt
124. Pursuant to Rule 24(2) of the Working Procedures , Egypt chose not to submit a third
participant's submission, but notified its intention to appear at the oral hearing.
4. India
125. Pursuant to Rule 24(2) of the Working Procedures , India chose not to submit a third
participant's submission, but notified its intention to a ppear at the oral hearing. At the oral hearing,
India expressed views relating to the European Communities' claim regarding the continued
application of 18 anti-dumping duties, the interpretation of the Anti-Dumping Agreement in respect of
four preliminary determinations, and the alleged inconsistency of the use of the zeroing methodology
in original investigations and periodic reviews.
5. Japan
126. Japan submits that the Panel erred in finding that the European Communities failed to identify
the specific measures at issue in connection with its claims regarding the continued application of the
18 anti-dumping duties, and that such claims did not fa ll within the Panel's terms of reference. Japan
submits that the measure challenged by th e European Communities was "specific enough" 322 under
Article 6.2 of the DSU, because the scope of the measure at issue is limited to the anti-dumping orders
in specific cases. Japan also ag rees with the European Communities that the complaining Member
does not have to discharge its burden of proof or make out a prima facie case in its panel request.
Japan further submits that, because the applica tion of specific anti-dumping duties is an act
attributable to the United States, these measures can be subject to dispute settlement proceedings so
long as they are identified pursuant to Article 6.2 of the DSU.
127. Japan argues that a panel should decide whether measures should be identified under
Article 6.2 based on the "language o[f] th e panel request and its related documents".
323 Japan also

322Japan's third participant's submission, para. 15.
323Japan's third participant's submission, para. 22.

submits that the due process requirement of Article 6.2, as well as the "specific circumstances in the
specific dispute"
324, should be taken into account when d eciding whether the measure is properly
identified in the panel request. Specific circumstan ces in this dispute include the previous zeroing
disputes brought before WTO pane ls and the Appellate Body that, according to Japan, demonstrate
that the United States continues to use the zeroi ng methodology. Japan further points to the USDOC
December 2006 Notice demonstrating that the zeroing methodology underlying the measures at issue
"continues to exist".325
128. Japan submits that the Panel erred when it conc luded that the European Communities' claims
regarding the four preliminary dete rminations at issue were outside the Panel's terms of reference.
Japan argues that the Panel's reasoning was pr emised on the understanding that these were
"provisional measures" under Article 17.4, and th us subject to the conditions under Articles 7.1
and 17.4 of the Anti-Dumping Agreement . Japan agrees with the Eu ropean Communities that the
preliminary determinations are not necessarily "pro visional measures", and that Article 17.4 is not
necessarily limited to a "final action", an "accep tance of a price undertaking", or a "provisional
measure" under Article 17.4. 326 Japan contends that it was therefore reasonable for the European
Communities to argue that any act or decision taken by the United States, even if not final, was
covered by the Panel's terms of reference.
129. Japan asserts that the Panel was correct to find that the 14 periodic and sunset reviews that
were identified in the European Communities' panel request, but not in the request for consultations,
were within the Panel's terms of reference. Japan argues that, because these 14 determinations were
"part of the same 'dispute' with respect to which consultations were requested" 327, they fell within the
Panel's jurisdiction.
130. Japan submits that the Panel erred in its fi nding that the European Communities failed to
demonstrate that simple zeroing was used by the USDOC in the seven periodic reviews at issue.
Japan further maintains that the Panel failed to car ry out an objective assessment of the facts as
required by Article 11 of the DSU. In partic ular, Japan submits that the Panel committed an
"egregious error"328 when assessing the evidence before it because it failed to give consideration to the
totality of the evidence. Japan argues that the Pa nel should have considered the Appellate Body's
findings in US – Zeroing (Japan) —that simple zeroing in periodic re views is "as such" inconsistent

324Japan's third participant's submission, para. 29.
325Japan's third participant's submission, para. 31.
326Japan's third participant's submission, para. 39.
327Japan's third participant's submission, para. 49.
328Japan's third participant's submission, para. 61.

with the Anti-Dumping Agreement —and that the United States "openly stated its reluctance to
abandon simple zeroing in administrative reviews".329
131. Japan takes issue with the burden of proof that the Panel imposed on the European
Communities. Japan argues that, if the United States did not rebut the facts claimed by the European
Communities, there was no need for the Panel "to deny the facts claimed because of the
incompleteness of the evidence introduced to prove the facts".330 Compared to other zeroing disputes,
Japan argues, the European Communities was subject to a "higher demand regarding the evidence". 331
Japan submits the Appellate Body should "consider th e balance with respect to the standard of proof
among the disputes which are dealing with the same issue". 332 Japan also contends that the Panel
erred when it disregarded the European Communitie s' request for the Panel to ask for further
information pursuant to Article 13.1 of the DSU. Japan argues that the Panel should have requested a
copy of the detailed calculations from the United States, and that, by not doing so, it placed "an
unbalanced burden to collect information [on] the other party".333
132. Japan reiterates that simple zeroing in periodic reviews is inconsistent with the requirements
of Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement. Japan explains
that it expects the Appellate Body to maintain cons istency in its findings regarding simple zeroing in
periodic reviews "lest it should diminish the rights and obligations of the Members".334
133. Finally, Japan supports the Panel's finding that the United States acted inconsistently with its
obligations under Article 11.3 of the Anti-Dumping Agreement by using, in eight sunset reviews,
dumping margins obtained through model zeroing in prior investigations. Because the United States
did not submit evidence to rebut the prima facie showing of the European Communities reflected in
the USDOC December 2006 Notice, it was "reasonable" 335 for the Panel to have arrived at the
conclusion it reached.
6. Korea
134. Regarding the European Communities' challe nge to the continued application of 18
anti-dumping duties, Korea argues that the Pane l failed to recognize the difference between
Article 3.3 and Article 6.2 of the DSU. Korea subm its that these 18 duties are "measures" within the

329Japan's third participant's submission, para. 63 (referring to USDOC December 2006 Notice, supra,
footnote 92).
330Japan's third participant's submission, para. 66.
331Japan's third participant's submission, para. 67.
332Japan's third participant's submission, para. 68.
333Japan's third participant's submission, para. 70.
334Japan's third participant's submission, para. 80.
335Japan's third participant's submission, para. 88.

meaning of Article 3.3 of the DS U "as long as and to the extent"
336 the Panel found that the
underlying zeroing methodology constitutes a measure under that provision. Korea adds that these 18
duties not only contain the same "precise content", but they are also "more specific and narrower" in
their scope than the zeroing methodology, whic h itself constitutes a measure under Article 3.3. 337
Further, Korea argues that previous Appellate Body decisions stand for the proposition "that a panel
must look at the panel request in its entirety and collectively." 338 Korea submits that a panel should
"respect the discretion given to a complaining party as to how to formulate its own claims as long as it
identifies a discernible measure in its Panel Request".339
135. Korea submits that it is now settled that, with the exception of "some unclear situations"
regarding targeted dumping, the zeroing methodology in all respects violates relevant provisions of
the Anti-Dumping Agreement, and that zeroing must be prohibited in all anti-dumping proceedings. 340
In Korea's view, the European Communities' claim is simply confirmation of settled jurisprudence in
a particular context and that, after all the prev ious litigation regarding zer oing, it is "disingenuous" 341
for a Member to argue that it is unclear what the European Communities is claiming.
136. Korea also submits that the decision by the Eu ropean Communities to "group" the 18 duties
was "apparently caused by the continued attempt by the United States to avoid the good faith
implementation of the rulings and recommendations of the DSB in the previous zeroing disputes". 342
Consequently, Korea does not see why a Member should be precluded from presenting a new claim,
in the way the European Communities does, "to a ddress its existing concern arising from the absence
or lack of implementation of another Memb er with respect to previous disputes".
343 In Korea's view,
the Panel's finding has "effectively authorized the United States to continue to ignore previous rulings
and recommendations of the DSB" and does not settle the dispute in a prompt manner, "which could
be inconsistent with Article 3.3 of the DSU".344 Korea thus submits that the Panel ignored the "proper
context" of the panel request and "improperly confined its terms of reference to reach an erroneous
conclusion" concerning the European Communities' fulfilment of its obligation under Article 6.2 of
the DSU.345

336Korea's third participant's submission, para. 14.
337Korea's third participant's submission, para. 14.
338Korea's third participant's submission, para. 16 (referring to Appellate Body Report, US – FSC
(Article 21.5 – EC II), paras. 66-68; and Appellate Body Report, US – Carbon Steel, para. 127).
339Korea's third participant's submission, para. 17.
340Korea's third participant's submission, para. 18.
341Korea's third participant's submission, para. 18.
342Korea's third participant's submission, para. 19.
343Korea's third participant's submission, para. 19.
344Korea's third participant's submission, para. 20.
345Korea's third participant's submission, para. 21.

137. Finally, Korea submits that the Panel erred in finding that the European Communities failed
to make out a prima facie case regarding the use of simple zero ing in the seven periodic reviews at
issue because it "failed to observe what is obvious on the record".346 Korea maintains that there was a
"great deal of evidence" 347 other than the Issues and Decision Memoranda showing that simple
zeroing was used in the seven periodic reviews, and notes that the United States does not assert that
zeroing was not used in these reviews. Korea submit s that the Panel's conclusion, based on the mere
absence of an explicit reference to zeroing in th e Issues and Decision Memoranda alone, is "clearly
erroneous and misplaced"348 and constitutes a violation of Article 11.
138. For the foregoing reasons, Korea submits the Appellate Body should "modify or reverse the
legal findings and conclusions of the Pa nel and complete the necessary analysis". 349 K o r e a a l s o
submits that the Appellate Body should en sure that the relevant provisions of the Anti-Dumping
Agreement and the DSU "are construed in their proper c ontext and in accordance with the applicable
Appellate Body precedents".350
7. Mexico
139. Pursuant to Rule 24(2) of the Working Procedures , Mexico chose not to submit a third
participant's submission, but notified its intention to a ppear at the oral hearing. At the oral hearing,
Mexico expressed views relating to the consequences that follow the decision of a respondent not to
submit evidence in response to assertions of a comp lainant, and concerning the relationship between
different determinations in an anti-dumping proceeding.
8. Norway
140. Pursuant to Rule 24(2) of the Working Procedures , Norway chose not to submit a third
participant's submission, but notified its intention to a ppear at the oral hearing. At the oral hearing,
Norway argued that it follows from the Appellate Body's findings in prior disputes involving zeroing
that the use of simple zeroing in periodic review s is inconsistent with WTO law. Norway also
disagreed with the United States' analysis of Article 17.6(ii) of the Anti-Dumping Agreement . For
Norway, a panel must first apply customary rules of interpretation of public international law to the
language of the contested provisions. The purpose of th is exercise is to assist the treaty interpreter in
arriving at one single interpretation, except in th e rarest of cases. The second sentence would apply
only as a last resort to settle an interpretative ques tion in favour of the investigating authority.

346Korea's third participant's submission, para. 24.
347Korea's third participant's submission, para. 23.
348Korea's third participant's submission, para. 24.
349Korea's third participant's submission, para. 26.
350Korea's third participant's submission, para. 27.

According to Norway, the Appellate Body has repeat edly confirmed that the relevant Articles of the
GATT 1994 and the Anti-Dumping Agreement do not admit of another interpretation in respect of
zeroing.
9. Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu

141. Pursuant to Rule 24(2) of the Working Procedures , the Separate Customs Territory of
Taiwan, Penghu, Kinmen and Matsu chose not to subm it a third participant's submission, but notified
its intention to appear at the oral hearing. At the oral hearing, the Separate Customs Territory of
Taiwan, Penghu, Kinmen and Matsu argued that Ar ticle 6.2 of the DSU serves two purposes: to
define the scope of the dispute and, thus, the ju risdiction of the panel; and to guarantee the due
process rights of the parties to the dispute. In the view of the Separate Customs Territory of Taiwan,
Penghu, Kinmen and Matsu, the European Communitie s' panel request was sufficiently specific for
the Panel to decide what measures would fall with in its jurisdiction, and specific enough for the
defendant to understand what measures it would be required to defend.
10. Thailand
142. Pursuant to Rule 24(2) of the Working Procedures , Thailand chose not to submit a third
participant's submission, but notified its intention to a ppear at the oral hearing. At the oral hearing,
Thailand expressed views relating to the WTO-incons istency of the use of the zeroing methodology,
the role of prior rulings of the Appella te Body, and the interpretation of the Anti-Dumping Agreement
in respect of the four preliminary measures at issue.
III. Issues Raised in This Appeal
143. Regarding the Panel's terms of reference, the following issues are raised on appeal by the
European Communities:
(a) Whether the Panel erred in finding that th e European Communities ' claims regarding
the continued application of 18 anti-dumpi ng duties did not fall within the Panel's
terms of reference and, more specifically:
(i) whether the Panel erred in finding that the European Communities failed to
identify the specific measure at issue wi th regard to these claims, as required
by Article 6.2 of the DSU; and
(ii) whether the Panel acted inconsistently w ith Articles 7.1, 7.2, 11 and 12.7 of
the DSU in reaching its finding.

(b) If the Appellate Body reverses the Panel's finding that the European Communities
failed to comply with the requirements of Article 6.2 of the DSU, then whether the
Appellate Body should complete the analysis and find that:
(i) the continued application of the 18 anti-dumping duties fell within the Panel's
terms of reference; and
(ii) the continued application of the 18 anti -dumping duties is inconsistent with
Articles VI:1 and VI:2 of the GATT 1994, Articles 2.4, 2.4.2, 9.3, 11.1
and 11.3 of the Anti-Dumping Agreement , and Article XVI:4 of the WTO
Agreement.
(c) Whether the Panel erred in finding th at the European Communities' claims
concerning four preliminary measures were outside the Panel's terms of reference.
(d) If the Appellate Body reverses the Panel's finding that the European Communities'
claims concerning the four preliminary measures were outside the Panel's terms of
reference, then whether the Appellate Body should complete the analysis and find
that:
(i) the four preliminary determinations are within the scope of these
proceedings;
(ii) the preliminary result of the periodic revi ew is inconsistent with Articles 2.1,
2.4, 2.4.2, 9.3, and 11.2 of the Anti-Dumping Agreement and Articles VI:1
and VI:2 of the GATT 1994; and
(iii) the preliminary results of the sunset reviews are inconsistent with
Articles 2.1, 2.4, 2.4.2, 11.1, and 11.3 of the Anti-Dumping Agreement.
144. Regarding the Panel's terms of reference, the following issue is raised on appeal by the United
States:
- Whether the Panel erred in finding that 14 periodic review and sunset review
determinations that were identified in th e European Communities' panel request, but
not in the European Communities' consulta tions request, were within the Panel's
terms of reference; and
- Whether the continued application of the 18 duties were not included in the
consultations request and, consequently, fell outside the Panel's terms of reference.

145. Regarding zeroing in periodic reviews, the fo llowing issue is raised on appeal by the United
States:
- Whether the Panel erred in finding that th e United States acted inconsistently with
Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 by
using simple zeroing in 29 periodic reviews.
146. Regarding zeroing in periodic reviews, the fo llowing issues are raised on appeal by the
European Communities:
(a) Whether the Panel acted inconsistently with its duties under Article 11 of the DSU in
finding that the European Communities had failed to demonstrate that the United
States Department of Commerce (the "USDOC") used simple zeroing in seven of the
periodic reviews at issue; and
(b) If the Appellate Body reverses the Panel's finding that the European Communities had
not shown that simple zeroing was used in seven periodic reviews, then whether the
Appellate Body should complete the analys is and conclude that the United States
acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2
of the GATT 1994 in respect of these reviews.
147. Regarding zeroing in sunset reviews, the followi ng issue is raised on appeal by the United
States:
- Whether the Panel acted inconsistently with its duties under Article 11 of the DSU in
finding that the United States failed to comp ly with its obligations under Article 11.3
of the Anti-Dumping Agreement in the eight sunset review determinations at issue in
this dispute.
148. Regarding the Panel's recommendations, the fo llowing issue is raised on appeal by the
European Communities:
- Whether the Panel erred in rejecting th e European Communities' request for a
suggestion pursuant to Article 19.1 of the DSU.
IV. The Panel's Terms of Reference
149. We begin with the participants' appeals relating to the Panel's terms of reference. First, we
review the Panel's finding that the European Comm unities failed to identify the specific measures at
issue, as required by Article 6.2 of the DSU, in relation to its claims regarding the "continued

application of the 18 anti-dumping duties" 351 by the United States. Next, we examine whether the
Panel erred in finding that the European Comm unities' claims regarding four preliminary
determinations did not fall within the Panel's terms of reference. Furthermore, we address the issue of
whether the Panel erred in finding that the Europ ean Communities' claims concerning 14 periodic and
sunset review proceedings were within the Panel' s terms of reference despite the fact that these
proceedings were not identified in the Eu ropean Communities' consultations request. 352 Finally, we
review the United States' conditional request 353 that the Appellate Body find that the continued
application of the 18 anti-dumping duties fell outside the Panel's terms of reference on the grounds
that they were not identified in the European Communities' consultations request.
A. The Continued Application of the 18 Anti-Dumping Duties
150. The European Communities alleges that the Pa nel erred in concluding that the claims
concerning the continued application of the 18 an ti-dumping duties fell outside the Panel's terms of
reference because the European Communities' panel request did not identify the specific measures at
issue in relation to these claims, as required by Ar ticle 6.2 of the DSU. The European Communities
requests the Appellate Body to reverse the Panel's conclusions and to complete the analysis by finding
that the continued application of the 18 anti-dum ping duties is inconsistent with Articles VI:1
and VI:2 of the GATT 1994, Articles 2.4, 2.4.2, 9.3, 11.1, and 11.3 of the Anti-Dumping Agreement,
and Article XVI:4 of the WTO Agreement.354
1. The Panel's Findings
151. The United States requested the Panel to make a preliminary ruling that, in relation to the
European Communities' claims regarding the "cont inued application of, or the application of" 355 18
anti-dumping duties, the panel request failed to identif y the specific measures at issue, "[i]nsofar as"
the alleged measure is "deemed indeterminate". 356 At the outset, the Panel noted the European
Communities' explanation that it was not pursuing a claim against zeroing "as such" and found that

351Panel Report, para. 7.61. The European Communities' panel request refers to, inter alia , the
"continued application of, or the application of the specific anti-dumping duties resulting from the anti-dumping
orders enumerated from I to XVIII in the Annex to the present request". (WT/DS350/6, Panel Report,
Annex F-1, p. F-4) For ease of reference, the Panel referred to "the continued application of the 18 duties" to
describe the subject of the European Communities' challenge. (See, for example, Panel Report, footnote 4 to
para. 2.1. See also ibid., paras. 7.49-7.61) In this Report, we use the term "the continued application of
the 18 anti-dumping duties" in the same manner.
352Panel Report, para. 7.28.
353The United States makes this request in the event that the Appellate Body reverses the Panel's
finding that the European Communities' panel request does not identify the specific measures at issue, as
required under Article 6.2 of the DSU. (United States' other appellant's submission, footnote 6 to para. 26)
354European Communities' appellant's submission, paras. 74 and 75.
355WT/DS350/6, Panel Report, Annex F-1, p. F-4.
356United States' first written submission to the Panel, Panel Report, Annex A-2, p. A-83, para. 45.

the European Communities' claims "are to be considered as challenging particular instances of
application of the zeroing methodology".
357 For the Panel, the description in the panel request was
"ambiguous, particularly because the panel request [did] not sufficiently distinguish between the
continued application of the 18 duties and the use of zeroing in the 52 specific proceedings" 358 that
were also listed in the annex to the panel requ est. The Panel reasoned that, "if the European
Communities wishes to raise claims in connection with the contin ued application of the 18 duties at
issue, it has to, in the first place, identify that measure independently from other measures with regard
to which it raises other claims."359
152. The Panel further considered that the Eu ropean Communities did not "demonstrate the
existence and the precise content of the purported me asure" and that "the continued application of
the 18 duties", in isolation from any proceeding in which such duties had been calculated, did not
"represent a measure in and of itself". 360 The Panel added that the re medy sought by the European
Communities would "affect the determinations that the USDOC might make in anti-dumping
proceedings that may be conducted in the future". 361 The Panel reasoned that "[t]here may be
exceptional cases where panels may consider to ma ke findings on measures not identified in the
complaining party's panel request". 362 For that to happen, however, the new measure would "have to
constitute 'a measure' within the meaning of Article 6.2 of the DSU" and would "have to come into
existence during the panel proceedings".363
153. Based on this analysis, the Panel concluded th at the European Communities had "failed to
identify the specific measure at issue in connection with its claims regarding the continued application
of the 18 anti-dumping duties".364 As a consequence, the Panel concluded that such claims did not fall
within its terms of reference.365
2. Claims and Arguments on Appeal
154. The European Communities submits that the Pane l erroneously interpreted Article 6.2 of the
DSU in finding that the European Communities failed to identify in its panel request the specific

357Panel Report, para. 7.42.
358Panel Report, para. 7.49.
359Panel Report, para. 7.58.
360Panel Report, para. 7.56.
361Panel Report, para. 7.59.
362Panel Report, para. 7.59.
363Panel Report, para. 7.59.
364Panel Report, para. 7.61.
365Panel Report, para. 7.61. In so finding, the Panel rejected the European Communities' assertion that,
in order to prevail in its preliminary objection, the Un ited States was required to demonstrate that the alleged
flaw in the European Communities' panel request had prejudiced the United States' due process rights in these
proceedings. (Ibid., para. 7.62)

measures at issue with respect to the con tinued application of the 18 anti-dumping duties. 366 T h e
European Communities maintains that "it would have been impossible" for its panel request "to be any
more specific, identifying as it did the document originating each of the 18 measures (in each case, the
final order), that is, the specific duties applying to the specific products exported from the European
Communities to the United States."367 The European Communities argues that the Panel confused the
"procedural legal analysis" under Article 6.2 of th e DSU with the "substantive legal analysis" under
Article 3.3 of the DSU. 368 As a consequence, the Panel erroneously addressed the issue of what is "a
measure for purposes of WTO dispute settlement" 369 and whether the European Communities had
demonstrated the "existence and precise content of such measure". 370 According to the European
Communities, both questions concern substantive issues that should be analyzed properly under
Article 3.3 of the DSU, which had not been raised by the United States. C onsequently, the European
Communities maintains, the Panel acted inconsiste ntly with Articles 7.1 and 12.1 of the DSU by
making findings on matters that were not raised by the United States. The European Communities
adds that, in any event, a correct analysis under Article 3.3 shows that the European Communities
demonstrated the existence and precise content of th e measure in relation to the continued application
of the 18 anti-dumping duties. 371 The European Communities also alleges the following
errors: (i) the Panel acted inconsistently with Article 7.2 of the DSU by failing to address the relevant
provisions of the covered agreements cited by the European Communities; (ii) the Panel failed to
make an objective assessment of the matter before it, as required under Article 11 of the DSU;
and (iii) the Panel failed to set out the basic rati onale behind its findings, inconsistently with
Article 12.7 of the DSU.372
155. On this basis, the European Communities requests the Appellate Body to "modify or
reverse"373 the Panel's findings that, in relation to th e continued application of the 18 anti-dumping
duties, the European Communities' panel request fail ed to identify the specifi c measures at issue, as
required by Article 6.2 of the DSU. The European Communities also requests the Appellate Body to
find that the European Communities identified th e specific measures at issue. The European
Communities additionally requests the Appellate Body to complete the analysis by ruling that,
because of the use of zeroing, each of the 18 measures is inconsistent with Articles VI:1 and VI:2 of

366European Communities' appellant's submission, paras. 66-68.
367European Communities' appellant's submission, para. 50. (original emphasis)
368European Communities' appellant's submission, paras. 2 and 15. See also ibid., paras. 54-61.
370European Communities' appellant's submission, para. 59 (emphasis omitted) (quoting Panel Report,
para. 7.50).
371European Communities' appellant's submission, paras. 27-49.
372European Communities' appellant's submission, paras. 69-73.

the GATT 1994, Articles 2.4, 2.4.2, 9.3, 11.1, and 11.3 of the Anti-Dumping Agreement , and
Article XVI:4 of the WTO Agreement.
374
156. By contrast, the United States contends that the Panel correctly found that the European
Communities' panel request failed to identify the specific measures at issue. For the United States, the
panel request did not fulfil the requirement under Article 6.2 because it did not identify the specific
determination leading to a particular anti-dumping du ty, and merely referred to the application of the
duty in a general and detached way. 375 In the United States' view, the Panel did not confound the
legal analyses under Articles 6.2 and 3.3 of the DSU. Rather, the Panel properly understood that an
inquiry under Article 6.2 is related to the issue of whether "the thing being challenged is classifiable
as a 'measure', as that term is used in Article 6.2 and throughout the DSU." 376 The United States adds
that the Panel's analysis as to the existence and pr ecise content of the 18 duties is not flawed, because
the Panel correctly found that the European Comm unities' challenge with respect to these duties
"seemed directed at free-floating, indefinite 'measures', disconnected from any specific determinations
giving rise to a duty rate". 377 The United States further argues that, by claiming that the Panel
improperly addressed issues not raised by the Unite d States, the European Communities "faults the
Panel for making the very inquiry that it was required to make as part of its objective assessment of
the matter"378, that is, whether the European Communities made a prima facie case with respect to the
alleged measures. Finally, the United States mainta ins that the European Communities' allegations
that the Panel acted inconsistently with Articles 7.2, 11, and 12.7 of the DSU lack merit and should be
rejected.379
157. On this basis, the United States requests th e Appellate Body to reject the European
Communities' claim that the Panel erred in finding that the panel request did not identify the specific
measures at issue with respect to the European Co mmunities' challenge of the continued application
of the 18 anti-dumping duties. The United States furt her requests the Appellate Body to reject the
European Communities' request to complete the an alysis and, if the Appellate Body decides to
complete the analysis, to find that the continue d application of the 18 anti-dumping duties is not
inconsistent with the covered agreements.380

376United States' appellee's submission, para. 86. (footnote omitted)
378United States' appellee's submission, para. 81 (r eferring to European Communities' appellant's
submission, paras. 64 and 65).

158. In considering the participants' arguments on a ppeal, we examine, first, the issue of whether
the European Communities' panel request identifie s the specific measures at issue, as required by
Article 6.2 of the DSU.
3. The Specificity of the Panel Request
159. Article 6.2 of the DSU provides, in relevant part:
The request for the establishment of a panel shall be made in writing.
It shall indicate whether consultations were held, identify the specific
measures at issue and provide a brief summary of the legal basis of
the complaint sufficient to present the problem clearly.
160. There are two main requirements under Article 6.2 of the DSU, namely, the identification of
the specific measures at issue, and the provision of a brief summary of the legal basis of the
complaint.381 Together, these elements comprise the "ma tter referred to the DSB", which forms the
basis for a panel's terms of reference under Article 7.1 of the DSU. 382 These requirements are
intended to ensure that the complainant "present[s] the problem clearly" in the panel request. This
appeal concerns the first of the two requirements under Article 6.2, namely, the identification of the
specific measures at issue.383
161. The Appellate Body has observed previously th at the requirements in Article 6.2 serve two
distinct purposes.384 First, as a panel's terms of reference are established by the claims raised in panel
requests, the conditions of Article 6.2 serve to define the jurisdiction of a panel. Secondly, the terms
of reference, and the request for the establishment of a panel on which they are based, serve the due
process objective of notifying responde nts and potential third parties of the nature of the dispute and
of the parameters of the case to which they must begin preparing a response. To ensure that such
purposes are fulfilled, a panel must examine the request for the establishment of a panel "to ensure its
compliance with both the letter and the spirit of Article 6.2 of the DSU".385 Such compliance must be

381The Appellate Body has stated that:
When parsed into its constituent parts, Article 6.2 may be seen to impose the
following requirements. The request must: (i) be in writing; (ii) indicate
whether consultations were held; (iii) identify the specific measures at issue;
and (iv) provide a brief summary of the legal basis of the complaint
sufficient to present the problem clearly.
(Appellate Body Report, Korea – Dairy, para. 120)
382See, for example, Appellate Body Report, Guatemala – Cement I, para. 72.
383The Panel noted that there was "no disagreement be tween the parties regarding the inclusion in the
[European Communities'] panel request of a brief summary of the legal basis of the complaint". (Panel Report,
para. 7.40)
384See, for example, Appellate Body Report, US – Carbon Steel , para. 126; and Appellate Body
Report, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, 167, at 186. See also Appellate Body Report, EC –
Chicken Cuts, para. 155; and Appellate Body Report, EC – Selected Customs Matters, para. 130.
385Appellate Body Report, EC – Bananas III, para. 142.

"demonstrated on the face" of the panel request
386, read "as a whole". 387 With these principles in
mind, we turn to review the Panel's examination of the European Communities' panel request.
162. The chapeau of the panel request states that "[t]he European Communities hereby requests
that a panel be established by DSB action ... with regard to an 'as such' measure or measures providing
for the practice or methodologies for calculating dumping margins involving the use of zeroing, and
the application of zeroing in certain specified anti-dumping measures maintained by the United
States". Subsequently, in section 1 of the pane l request, the European Communities claims that
"[s]ince the WTO inconsistency of this practice or methodology is already established (notably in
[US – Stainless Steel (Mexico) ]) the European Communities does not ask the Panel to rule on the
WTO inconsistency of this practice."
388
163. With respect to the measures at issue, the European Commun ities' panel request reads as
follows:
The measures at issue and the legal basis of the complaint include,
but are not limited to, the following:
The continued application of, or the application of the specific anti-
dumping duties resulting from the anti-dumping orders enumerated
from I to XVIII in the Annex to th e present request as calculated or
maintained in place pursuant to the most recent administrative review
or, as the case may be, original proceeding or changed circumstances
or sunset review proceeding at a level in excess of the anti-dumping
margin which would result from the correct application of the Anti-
Dumping Agreement (whether duties or cash deposit rates or other
form of measure).
In addition to these measures, the administrative reviews, or, as the
case may be, original proceedings or changed circumstances or
sunset review proceedings listed in the Annex (numbered 1 to 52)
with the specific anti-dumping orders and are also considered by the
[European Communities] to be m easures subject to the current
request for establishment of the panel in addition to the anti-dumping
orders.
This includes the determinations in relation to all companies and
includes any assessment instructions, whether automatic or
otherwise, issued at any time pursuant to any of the measures listed
in the Annex. The anti-dumping duties maintained (in whatever
form) pursuant to these orders, and the administrative reviews, or, as

386Appellate Body Report, US – Carbon Steel, para. 127.
387Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 169 (quoting
Appellate Body Report, US – Carbon Steel, para. 127).
388WT/DS350/6, Panel Report, Annex F-1, p. F-3. At the oral hearing, the European Communities
confirmed that it is not challenging the inconsistency of the zeroing methodology, as such, with the covered
agreements.

the case may be, original proceedings and changed circumstances or
sunset review proceedings listed in the Annex are inconsistent with
[Articles 1, 2.1, 2.4, 2.4.2, 5.8, 9.1, 9.3, 9.5, 11, and 18.4 of the Anti-
Dumping Agreement, Articles VI:1 and VI:2 of the GATT 1994, and
Article XVI:4 of the WTO Agreement.]
389 (footnote omitted)
164. The European Communities thus challenges two distinct sets of "measures". First, the
European Communities challenges the continue d application of the duties resulting from
the 18 anti-dumping duty orders listed in the annex to its panel request, as calculated or maintained in
the most recent proceeding pertaining to such duties. Secondly, the European Communities
challenges the use of the zeroing methodology in 52 specific anti-dumping proceedings (four original
investigations, 37 periodic reviews, and 11 sunset reviews) that pertain to the duties resulting from
these 18 anti-dumping duty orders.
165. It is with respect to the first set of measures that the issue of specificity under Article 6.2
arises in this appeal. The panel request makes e xplicit reference to the definitive anti-dumping duties
resulting from 18 anti-dumping duty orders, each imposed on a specific product exported to the
United States from a specific country. The orders imposing these definitive duties are also listed in
the annex to the European Communities' panel request. For each of these 18 anti-dumping duty
orders, a citation is provided. The panel request further indicates that the European Communities is
challenging the "continued application of, or the application of" these anti-dumping duties "as
calculated or maintained in place pursuant to the mo st recent administrative review or ... original
proceeding or changed circumstanc es or sunset review proceeding". 390 The European Communities
further alleges in its panel request that the duties maintained pursuant to such "most recent" reviews
are calculated at levels "in excess of the anti-dumping margin which would result from the correct
application of the Anti-Dumping Agreement".
391 Read in its context, it is clear that this sentence
refers to the continued application of anti-dum ping duties calculated with the use of the zeroing
methodology. More specifically, the European Communities maintains in section 1 of its panel
request that the USDOC "systematically" uses th e zeroing methodology in all types of reviews
pertaining to anti-dumping duties and relies on margins calculated with the zeroing methodology in
sunset reviews. The European Communities further submits in its panel request that it "has identified
in the annex to this request a number of anti-dumpi ng orders where duties are set and/or maintained
on the basis of the above-mentioned zeroing practice or methodology with the result that duties are

389WT/DS350/6, Panel Report, Annex F-1, p. F-4.
390WT/DS350/6, Panel Report, Annex F-1, p. F-4.
391WT/DS350/6, Panel Report, Annex F-1, p. F-4.

paid by importers ... in excess of the dumping marg in which would have been calculated using a
WTO consistent methodology".
392
166. Thus, the panel request links the following three elements in seeking to identify the measures
at issue: (i) duties resulting from the anti-dumping duty orders in the 18 cases listed in the
annex; (ii) the most recent periodic or sunset review proceedings pertaining to these duties;
and (iii) the use of the zeroing methodology in calculating the level of these duties in such
proceedings. Taken together, the United States coul d reasonably have been e xpected to understand
that the European Communities was challenging th e use of the zeroing methodology in successive
proceedings, in each of the 18 cases, by which the anti-dumping duties are maintained.
167. The Panel found that the panel request does not meet the specificity requirement under
Article 6.2 because the European Communities failed to "demonstrate the existence and the precise
content of the purported measure" and that "the continued application of the 18 duties" does not
"represent a measure in and of itself".
393 The Panel reasoned that, "in order to successfully raise
claims against a measure, the complaining Member must in the first place demonstrate the existence
and the precise content of such measure, consisten tly with the requirements of Article 6.2 of the
DSU."
394 In support of the Panel's findings, the Unite d States maintains that the Panel "properly
understood that an inquiry under Article 6.2 is related to the issue of whether the thing being
challenged is classifiable as a 'measure', as that te rm is used in Article 6.2 and throughout the
DSU."395
168. As noted above, the specificity requirement under Article 6.2 is intended to ensure the
sufficiency of a panel request in "present[ing] the problem clearly". The identification of the measure,
together with a brief summary of the legal basis of the complaint, serves to demarcate the scope of a
panel's jurisdiction and allows pa rties to engage in the subseque nt panel proceedings. Thus, the
specificity requirement means that the measures at issue must be identified with sufficient precision
so that what is referred to adjudication by a pa nel may be discerned from the panel request. The
Panel, however, appeared to attribute a more s ubstantive meaning to the specificity requirement,
whereby the existence and precise content of a meas ure must be demonstrated for a panel request to
fulfil this requirement.
169. Yet, the identification of the specific measures at issue, pursuant to Article 6.2, is different
from a demonstration of the existence of such measures. For the latter, a complainant would be

392WT/DS350/6, Panel Report, Annex F-1, p. F-4.
393Panel Report, para. 7.56.
394Panel Report, para. 7.50.
395United States' appellee's submission, para. 86. (footnote omitted)

expected to present relevant arguments and ev idence during the panel proceedings showing the
existence of the measures, for example, in th e case of challenges brought against unwritten norms. 396
Moreover, although a measure cannot be identified without some indication of its contents, the
identification of a measure within the meaning of Article 6.2 need be framed only with sufficient
particularity so as to indicate the nature of the measu re and the gist of what is at issue. Thus, an
examination regarding the specificity of a panel re quest does not entail substantive consideration as to
what types of measures are susceptible to challenge in WTO dispute settlement. Such consideration
may have to be explored by a panel and the parties during the panel proceedings, but is not
prerequisite for the establishment of a panel. To im pose such prerequisite would be inconsistent with
the function of a panel request in commencing panel proceedings and setting the jurisdictional
boundaries of such proceedings. Therefore, we re ject the proposition that an examination of the
specificity requirement under Article 6.2 of the DS U must involve a substantive inquiry as to the
existence and precise content of the measure.
170. Furthermore, in the Panel's view, the Eur opean Communities' panel request did "not
sufficiently distinguish between the continued app lication of the 18 duties and the use of zeroing in
the 52 specific proceedings at issue." 397 The Panel reasoned that, "if the European Communities
wishes to raise claims in connection with the contin ued application of the 18 duties at issue, it has to,
in the first place, identify that measure independent ly from other measures with regard to which it
raises other claims."398 We have some sympathy for the view that the panel request could have been
formulated with greater precision and clarity. Nonetheless, so long as each measure is discernable in
the panel request, the complaining party is not required to identify in its panel request each challenged
measure independently from other measures in order to comply with the specificity requirement in
Article 6.2 of the DSU.
171. For the Panel, "another flaw" in the European Communities' arguments was that "the remedy
sought by the European Communities will affect the determinations that the USDOC might make in
anti-dumping proceedings that may be conducted in the future." 399 The Panel reasoned that
"Article 6.2 of the DSU, in principle, does not a llow a panel to make findings regarding measures that
do not exist as of the date of the panel's establishm ent" unless they "come into existence during the
panel proceedings". 400 The Panel appeared to consider that, because the remedy sought by the
European Communities was prospectiv e in nature, the "measures" with respect to which such remedy
was sought could not be regarded as specifically id entified in the panel request. In our view, the

396See Appellate Body Report, US – Zeroing (EC), para. 198.
397Panel Report, para. 7.49.
398Panel Report, para. 7.58.
399Panel Report, para. 7.59.
400Panel Report, para. 7.59.

remedy sought by the complainant may provide fu rther confirmation as to the measure that is the
subject of the complaint. As discussed, we are of the view that it can be discerned from the panel
request, read as a whole, that the measures at issue consist of an ongoing conduct, that is, the use of
the zeroing methodology in successive proceedings in each of the 18 cases whereby anti-dumping
duties are maintained. The prospective nature of the remedy sought by the European Communities is
congruent with the fact that the measures at is sue are alleged to be ongoing, with prospective
application and a life potentially stretching into the future. Moreover, it is not uncommon for
remedies sought in WTO dispute settle ment to have prospective effect, such as a finding against laws
or regulations, as such, or a subsidy programme with regularly recurring payments.
172. In the light of the above, we reverse
 the Panel's finding that the European Communities failed
to comply with Article 6.2 of the DSU, and find , instead, that the panel re quest identifies the specific
measures at issue with regard to the European Communities' claims concerning the continued
application of the 18 anti-dumping duties calculated with the use of the zeroing methodology.
173. The European Communities further argues th at, by confounding the legal issues under
Articles 6.2 and 3.3 in its analysis regarding the specificity of the panel request, the Panel made
findings on matters that were not raised by the Un ited States, in violation of Articles 7.1 and 12.1 of
the DSU.401 Furthermore, the European Communities alleg es that the Panel acted inconsistently with
Articles 7.2, 11, and 12.7 of the DSU in finding th at the European Communities' claims relating to the
continued application of the 18 anti-dumping duti es did not fall within the Panel's terms of
reference.402
174. Having reversed the Panel's finding that the Eu ropean Communities' panel request failed to
comply with the requirements of Article 6.2 of the DSU, we do not consider it necessary to make
additional findings on these claims by the European Communities.
4. Whether the Measures Identified by the European Communities are
Susceptible to Challenge in WTO Dispute Settlement
175. The European Communities requests the Appellate Body, in the event it reverses the Panel's
finding under Article 6.2, to complete the an alysis and find that the European Communities
demonstrated the existence and precise content of the measures at issue. The European Communities
submits that, in this dispute, it "has referred to as 'm easures' within the meaning of Article 3.3 of the
DSU each of the 18 anti-dumping duties calculated using zeroing on a specific product".403 According

401European Communities' appellant's submission, paras. 62-65.
402European Communities' appellant's submission, paras. 69-73.
403European Communities' appellant's submission, para. 31. (emphasis omitted)

to the European Communities, each of the 18 measur es is "manifested in a series of documents that
may be adopted over time, beginning with the fina l order and continuing with the outcomes of the
various subsequent proceedings."404
176. We begin our consideration of this issue by examining the concept of "measure" as it appears
in the DSU. The DSU, in Article 3.3, provides that the WTO dispute settlement system exists to
address "situations in which a Member considers that any benefits accruing to it directly or indirectly
under the covered agreements are being impaired by measures taken by another Member". In
previous cases, the Appellate Body has addressed, in the context of the Anti-Dumping Agreement, the
scope of "measures" that may be the subject of WTO dispute settlement. In US – Corrosion-Resistant
Steel Sunset Review, the Appellate Body observed that:
[i]n principle, any act or omission attributable to a WTO Member can
be a measure of that Member for purposes of dispute settlement
proceedings. The acts or omissions that are so attributable are, in the
usual case, the acts or omissions of the organs of the state, including
those of the executive branch.
405 (footnotes omitted)
177. Articles 17.3 and 17.4 of the Anti-Dumping Agreement are also relevant to the question of the
types of measures that can be submitted to dispute settlement under the Anti-Dumping Agreement .
Closely resembling Article 3.3 of the DSU, Article 17.3 provides that, "[i]f any Member considers
that any benefit accruing to it, directly or indirectly, under [the Anti-Dumping Agreement ] is being
nullified or impaired ... by another Member or Memb ers, it may, with a view to reaching a mutually
satisfactory resolution of the matter, request in wr iting consultations with the Member or Members in
question."
406 Article 17.4 of the Anti-Dumping Agreement further specifies that a Member may refer a
matter to the DSB if it considers that the consulta tions have failed to achieve a mutually agreed
solution "and if final action has been taken by th e administering authorities of the importing Member
to", inter alia, "levy definitive anti-dumping duties".
178. As noted by the Panel, measures examined by WTO panels and the Appellate Body include
"not only measures consisting of acts that apply to pa rticular situations, but also those consisting of
acts setting forth rules or norms that have general and prospective application." 407 The Panel further
stated that "[c]laims taking issue with measures of general and prospective application are generally
called 'as such' claims, whereas those targeting ac ts that apply to specific situations are called

405Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 81.
406We address provisional measures within the meaning of Article 17.4 of the Anti-Dumping Agreement
below in paragraph 205 ff.
407Panel Report, para. 7.45 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset
Review, footnote 80 to para. 82).

'as applied' claims."
408 The Panel cautioned that "the distinc tion between 'as such' and 'as applied'
claims does not govern the definition of a me asure for purposes of WTO dispute settlement". 409 In
subsequent analyses, however, the Panel attribut ed some significance to this distinction when
rejecting the European Communities' explanation as to the precise content of the measures at issue.
More specifically, the Panel found that the Europ ean Communities "equates the continued application
of the 18 duties at issue with the zeroing methodology 'as such'". 410 In the Panel's view, because the
European Communities stated that it was not challenging the zeroing methodology "as such" in this
dispute, its explanation regarding the precise cont ent of the measures was "internally inconsistent". 411
The European Communities takes issu e with this reasoning, contending that it did not equate the
measures at issue with the zeroing methodology "as such". 412 Rather, as it "careful[ly]" 413 explained
to the Panel, it was "seeking review of each of the 18 anti-dumping duties insofar as part of each duty
is the zeroing methodology as it relates to that specific product and country."414
179. We share the Panel's view that the distincti on between "as such" and "as applied" claims
does not govern the definition of a measure for purpo ses of WTO dispute settlement. This distinction
has been developed in the jurisprudence as an anal ytical tool to facilitate the understanding of the
nature of a measure at issue. This heuristic devi ce, however useful, does not define exhaustively the
types of measures that may be subject to challe nge in WTO dispute settlement. In order to be
susceptible to challenge, a measure need not fit squa rely within one of these two categories, that is,
either as a rule or norm of general and prospective application, or as an individual instance of the
application of a rule or norm.
180. In this dispute, the measures at issue consist of the use of the zeroing methodology in
successive proceedings, in each of the 18 cases, by which the anti-dumping duties are maintained.

408Panel Report, para. 7.45.
409Panel Report, para. 7.46.
410Panel Report, para. 7.55. In this paragraph, the Panel referred to the European Communities'
explanation that:
[i]n US – Zeroing (EC) and in US – Zeroing (Japan) , the Appellate Body has accepted
that both the [European Communities] and Japan have described the "precise content" in
the context of the methodology itself. It n ecessarily follows that what the [European
Communities] has described in each of th e 18 measures—which is the same—also
meets the "precise content" requirement.
(Ibid. (emphasis omitted) (quoting European Communities' response to Panel Question No. 1(a) following the
first meeting))
411Panel Report, para. 7.55.
414European Communities' responses to questioning at the oral hearing. See also European

The European Communities' claim regarding these measures is not an "as such" claim 415, in that its
scope is narrower than a challenge to the zeroi ng methodology as a rule or norm of general and
prospective application with regard to all imports into the United States from all countries. 416 At the
same time, the measures at issue are broader than specific instances in which the zeroing methodology
was applied, such as a periodic review or sunset re view determination. In other words, the measures
at issue consist of the use of the zeroing met hodology in a string of connected and sequential
determinations, in each of the 18 cases, by whic h the duties are maintained. As the European
Communities explains, its complaint is directed at "the zeroing methodology as used in the final order
and programmed to continue to be used until such time as the United States eliminates zeroing from
the particular anti-dumping duty under consideration."417
181. Thus, the measures at issue consist of neither the zeroing methodology as a rule or norm of
general and prospective application, nor discret e applications of the zeroing methodology in
particular determinations; rather, they are the use of the zeroing methodology in successive
proceedings, in each of the 18 cases, by which duties are maintained over a period of time. We see no
reason to exclude ongoing conduct that consists of the use of the zeroing methodology from challenge
in WTO dispute settlement. The successive determ inations by which duties are maintained are
connected stages in each of the 18 cases involving imposition, assessment, and collection of duties
under the same anti-dumping duty order.
418 The use of the zeroing methodology in a string of these
stages is the allegedly unchanged component of each of the 18 measures at issue. 419 It is with respect
to this ongoing conduct that the European Comm unities brought its challenge, seeking its cessation.

415As noted earlier, the European Communities claims that "[s]ince the WTO inconsistency of this
practice or methodology is already established (notably in [ US – Stainless Steel (Mexico) ]) the European
Communities does not ask the Panel to rule on the WTO inconsistency of this practice." (WT/DS350/6, Panel
Report, Annex F-1, p. F-3)
416We note that, as of February 2007, the USDOC has ceased to apply zeroing in weighted average-to-
weighted average ("W-W") comparisons in original investigations. (Panel Report, para. 7.198)
417European Communities' appellant's submission, para. 36. See also European Communities' first
written submission to the Panel, Panel Report, Annex A-1, p. A-30, para. 118.
418More specifically, the USDOC issues an anti-dumping duty order at the conclusion of an original
anti-dumping investigation if the USDOC finds that dumping existed during the period of investigation, and the
USITC finds that domestic industry was materially injured, or threated with material injury, by reason of
dumped imports. Generally, this order imposes an esti mated anti-dumping duty depo sit rate for each exporter
individually examined. Subsequently, if a request for a periodic review is made, the USDOC will determine the
final amount of anti-dumping duties owed on sales made by the foreign exporter during the previous period. In
addition, the USDOC will calculate a going -forward cash deposit rate that will apply to all future entries of the
subject merchandise from that exporter. In a sunset review of an order, the authorities determine whether
revocation of the anti-dumping duty order would likely lead to continuation or recurrence of dumping and
injury. As we understand it, an affirmative sunset review determinati on, while providing a distinct legal basis
for the continued imposition of the relevant anti-dumping duties, nonetheless derives from the same underlying
anti-dumping order under which duties ha ve been imposed over the preceding five years. In this respect, we
further note that, under Article 11.3 of the Anti-Dumping Agreement, the termination of the anti-dumping duty at
the end of five years is the "rule" and its continuation beyond that period is the "exception".
419See European Communities' appellant's submission, para. 36.

At the oral hearing, the Europ ean Communities confirmed that it is not seeking the revocation of
the 18 anti-dumping orders but, rather, the cessation of the use of the zeroing methodology by which
the duties are calculated and maintained in these 18 cases.
420 In our view, the European Communities,
in seeking an effective resolution of its dispute with the United States, is entitled to frame the subject
of its challenge in such a way as to bring the ongoing conduct, regarding the use of the zeroing
methodology in these 18 cases, under the scrutiny of WTO dispute settlement.
182. The European Communities takes issue with the Panel's finding that "the continued
application of 18 duties" was "in isolation from any proceeding in which such duties have been
calculated".
421 The European Communities submits that it " carefully explained the genesis of each of
the 18 measures" 422 and that the existence of these duties on specific products from the European
Communities could not "be seriously contested by the United States". 423 In response, the United
States maintains that, in making the above finding, the Panel correctly "grasped" that the European
Communities' challenge regarding the continued a pplication of the 18 anti-dumping duties "seemed
directed at free-floating, indefinite 'measures,' disconnected from any specific determinations giving
rise to a duty rate".424
183. As we see it, the European Communities is not challenging duties "in isolation" from any
proceeding. Rather, as indicated in its panel re quest, the European Communities is challenging the
anti-dumping duties resulting from 18 specific anti-dumpi ng duty orders "as calculated or maintained
in place", with the use of the zeroing methodology, in the "most recent" proceeding in the 18 cases.
As explained above, we consider that the measures at issue consist of the continued use of the zeroing
methodology in successive proceedings by which duties in each of the 18 cases are maintained. Thus,
we disagree with the proposition that the Euro pean Communities' challenge concerns "free-
floating"425 duties in isolation from the underlying determinations giving rise to them.
184. The continued use of the zeroing methodology in a string of determinations can be illustrated
by the following example. With respect to one of the 18 cases listed in the panel request— Ball
Bearings and Parts Thereof from Italy (Case II – Nos. 5-9)—the Panel found that simple zeroing was
used in the four periodic reviews (Nos. 5-8) 426 conducted for the four consecutive years

420European Communities' responses to questioning at the oral hearing.
426Panel Exhibits EC-31, EC-36, EC-37, and EC-38.

between 1 May 2001 and 30 April 2005. 427 The Panel further found that, in the sunset review
pertaining to this order (of which the li kelihood-of-dumping determination was issued
on 5 October 2005), the USDOC relied on the margin from the original investigation, which was
calculated with the zeroing methodology. 428 The Panel record further i ndicates that the sunset review
(No. 9)429 resulted in continuation of the original anti-dumping duty order. Thus, the Panel's factual
findings show that the USDOC used the zeroing met hodology in all of the above periodic reviews.
Moreover, the USDOC relied on margins calculated with zeroing in the sunset review that led to the
continuation of the anti-dumping duty order. This string of determinations demonstrates the
continued use of the zeroing methodology in successive proceedings, whereby duties resulting from
the anti-dumping duty order on Ball Bearings and Parts Thereof from Italy are maintained.
430 In the
following subsection, we discuss whet her there are sufficient factual findings and undisputed facts in
the record that establish the existence of the measures at issue in respect of each of the 18 cases.
185. In the light of the above, we find that the continued use of the zeroing methodology in
successive proceedings in which duties resu lting from the 18 anti-dumping duty orders are
maintained, constitute "measures" that can be challenged in WTO dispute settlement.
5. Whether the Appellate Body May Complete the Analysis
186. This brings us to the question of whether we can complete the analysis, as requested by the
European Communities, and rule that the continued application of the zeroing methodology in
successive proceedings, by which the duties in th e 18 cases are maintained, is inconsistent with
Articles VI:1 and VI:2 of the GATT 1994, Articles 2.4, 2.4.2, 9.3, 11.1, and 11.3 of the Anti-Dumping
Agreement, and Article XVI:4 of the WTO Agreement.431
187. In previous disputes, the Appellate Body h as completed the analysis with a view to
facilitating the prompt settlement of the dispute. 432 However, the Appellate Body has held that it can

427Panel Report, para. 7.145. The United States did not contest that simple zeroing was used in these
proceedings. (Ibid.)
428Panel Report, paras. 7.190 and 7.200. This finding is upheld on appeal. See supra, section VIII.
429Panel Exhibit EC-71.
430See also the graph provided by the European Communities in its first written submission to the Panel
regarding duties on Ball Bearings and Parts Thereof from Italy (Case II). (Panel Report, Annex A-1, p. A-30)
432See, for example, Appellate Body Report, Australia – Salmon , paras. 117-118; Appellate Body
Report, US – Wheat Gluten , paras. 80-92; and Appellate Body Report, Canada – Aircraft (Article 21.5 –
Brazil), paras. 43-52.

do so only if the factual findings of the panel and the undisputed facts in the panel record provides it
with a sufficient basis for its own analysis.
433
188. In this dispute, the Panel made no findings on the above claims of the European
Communities, having excluded such claims from its te rms of reference pursuant to Article 6.2 of the
DSU. Nonetheless, according to the European Commun ities, there is a sufficient factual basis in the
record to allow for the comple tion of the analysis. The Eur opean Communities contends that
the 52 proceedings pertaining to the 18 cases listed in the annex to the panel request serve as evidence
for its claims against the continued application of the zeroing methodology, whereby the duties are
maintained.
434
189. We have found that the measures at issue subj ect to the European Communities' claims are
the continued use of the zeroing methodology in successive proceedings, in each of the 18 cases, by
which the duties are maintained. This, however, does not establish whether the use of the zeroing
methodology, as an ongoing conduct, exists with respect to duties resulting from each of the 18 anti-
dumping duty orders subject to the European Communiti es' claims. In order to complete the analysis
in this respect, we must ascertain whether the factual findings made by the Panel and undisputed facts
in the record show that the zeroing methodology h as been used repeatedly in successive proceedings,
in each of the 18 cases, by which the duties are maintained.
190. As an initial matter, we note the European Communities' reference to adopted panel and
Appellate Body reports in which the existen ce of the United States' zeroing methodology, as an
unwritten norm of general and prospective application, was fou nd to exist in the context of both
original investigations and periodic reviews. 435 Factual findings made in prior disputes do not
determine facts in another dispute. Evidence a dduced in one proceeding, and admissions made in
respect of the same factual question about the operation of an aspect of municipal law, may be
submitted as evidence in another proceeding. The finders of fact are of course obliged to make their
own determination afresh and on the basis of all the evidence before them. But if the critical evidence
is the same and the factual question about the operati on of domestic law is the same, it is likely that
the finder of facts would reach similar findings in the two proceedings. Nonetheless, the factual

433See Appellate Body Report, Australia – Salmon , paras. 209, 241 and 255; Appellate Body Report,
Korea – Dairy, paras. 91 and 102; Appellate Body Report, Canada – Autos, paras. 133 and 144; and Appellate
Body Report, Korea – Various Measures on Beef, para. 128.
434European Communities' responses to questioning at the oral hearing.
435These include the Appellate Body Reports in EC – Bed Linen , US – Softwood Lumber V , US –
Softwood Lumber V (Article 21.5 – Canada) , US – Zeroing (EC) , and US – Zeroing (Japan) . (European
Communities' appellant's submission, para. 99 (referring to European Communities' first written submission to
the Panel, Panel Report, Annex A-1, pp. A-26 and A-27, paras. 101-106)) We note that, as of February 2007,
the USDOC has ceased to apply zeroing in W-W comparis ons in original investigations. (Panel Report,
para. 7.198)

findings adopted by the DSB in prior cases regardi ng the existence of the zeroing methodology, as a
rule or norm, are not binding in another dispute. In themselves, they do not establish that zeroing was
used in all the successive pro ceedings in each of the 18 cases lis ted in the European Communities'
panel request.
191. With this in mind, we turn to examine relevant factual findings made by the Panel. As noted
in the previous subsection, in Ball Bearings and Parts Thereof from Italy (Case II), the Panel made
findings confirming the use of zeroing in the stri ng of determinations pertaining to the same anti-
dumping duty order. More specifically, the Panel found that simple zeroing was used in the four
periodic reviews (Nos. 5-8) and that, in the sunset review determination resulting in the continuation
of the duty order (No. 9), the USDOC relied on the ma rgin from the original investigation, which was
calculated with the zeroing methodology. 436 The Panel made the same findings regarding the four
periodic reviews and the sunset review with respect to each of the following 437: Ball Bearings and
Parts Thereof from Germany (Case III – Nos. 10-14) 438; Ball Bearings and Parts Thereof from
France (Case IV – Nos. 15-19) 439; and Stainless Steel Sheet and Strip in Coils from Germany
(Case VI – Nos. 22-26).440 The Panel's factual findings regardi ng the use of zeroing in these periodic
reviews are not subject to appeal, and its factual findings regarding the sunset reviews are upheld on
appeal.441 The Panel record further indicates that th e sunset reviews in all four cases resulted in
continuation of the original anti-dumping duty orders. 442 Thus, in each of the above four cases, the
Panel's findings indicate that the zeroing methodology was repeatedly used in a string of
determinations, made sequentially in periodic reviews and sunset re views over an extended period of
time. The density of factual findings in these cas es, regarding the continued use of the zeroing
methodology in a string of successive proceedings pertaining to the same anti-dumping duty order,
provides a sufficient basis for us to conclude th at the zeroing methodology would likely continue to
be applied in successive proceedings whereby the duties in these four cases are maintained.
192. The United States contends that the European Communities "cannot say with any certainty
that the United States will use so-called zeroing in each and every future determination giving rise to

436Panel Report, paras. 7.145, 7.190 and 7.200.
437Panel Report, paras. 7.145, 7.190 and 7.200.
438Panel Exhibits EC-39 to EC-42 and EC-72.
439Panel Exhibits EC-43 to EC-46 and EC-73.
440Panel Exhibits EC-49 to EC-52 and EC-74.
441See infra, section VIII.
442The continuation orders in these four cases are: Ball Bearings and Parts Thereof from Italy
(Case II – No. 9) (Panel Exhibit EC-71, Appendix I); Ball Bearings and Parts Thereof from Germany
(Case III – No. 14) (Panel Exhibit EC-72, Appendix II); Ball Bearings and Parts Thereof from France
(Case IV – No. 19) (Panel Exhibit EC-73, Appendix II); and Stainless Steel Sheet and Strip in Coils from
Germany (Case VI – No. 26) (Panel Exhibit EC-74, Appendix II).

the application or continued appli cation of duties in the 18 'cases'".
443 Specifically, the United States
maintains that "[i]t is not even certain that in so me periods there will be sales above normal value, so
there would not even be the possibility of applying so-called zeroing." 444 According to this argument,
in a particular case where all export prices happen to be below the normal value, zeroing would not be
applied. However, the use of zeroing is relevant only when there are transact ions with export prices
above normal value, whereby the negative compar ison results between the export prices and the
normal value would be treated as zero. Thus, even if zeroing may not manifest itself as a result of the
particular factual circumstances of a case in which all export prices are below the normal value, this
does not negate the fact that the repeated action by the USDOC in a string of determinations relating
to these four cases confirms the use of the zeroing methodology as an ongoing conduct.
193. In contrast, the existing factual findings of the Panel and undisputed facts in the Panel record
in relation to 6 of the 18 cases concern only one proceeding in each case whereby duties were applied
with the use of zeroing. More specifically, the Panel found that the zeroing methodology was used in
the original investigations in four cases.
445 No other determinations in those cases were in the Panel
record. In one other case, the Panel found that, in the sunset review, the USDOC relied on the
original margin calculated with zeroing. 446 However, no other determ ination concerning successive
stages in this case was in the Panel record. In yet another case, the only specific evidence submitted
by the European Communities concerns one periodic review. 447 In this case, the Panel found that
there was insufficient evidence show ing that simple zeroing was used. 448 In our view, the Panel'
factual findings and undisputed facts concerning these six cases do not appear sufficient for us to
complete the analysis and determine the existence of the ongoing use of the zeroing methodology in a
string of determinations emanating from successive proceedings, in each of these cases, by which
duties are maintained.
194. With respect to the remaining eight cases, the Panel's factual findings are only partial with
respect to the use of the zeroing methodology in successive proceedings by which the duties are
maintained. More specifically, in three cases, the Panel found that, in each case, simple zeroing was
used in two periodic reviews and that margins calculated with zeroing were relied upon by the

445Panel Report, para. 7.104. These four cases are: Purified Carboxymethylcellulose from Sweden
(Case XV) (Panel Exhibit EC-28); Purified Carboxymethylcellulose from the Netherlands (Case XVI) (Panel
Exhibit EC-26); Purified Carboxymethylcellulose from Finland (Case XVII) (Panel Exhibit EC-29); and
Chlorinated Isocyanurates from Spain (Case XVIII) (Panel Exhibit EC-30).
446Panel Report, paras. 7.190, and 7.200. This is Brass Sheet and Strip from Germany (Case XIV –
No. 48) (Panel Exhibit EC-79). This finding is upheld on appeal. See infra, section VIII.
447Stainless Steel Bar from Italy (Case XI – No. 39) (Panel Exhibit EC-62).
448Panel Report, para. 7.156. The European Communities appeals this finding. See infra, section VI.

USDOC in the sunset review 449; however, no evidence regarding any other proceedings was
submitted to the Panel. In two of the remaining five cases, the Panel's findings 450 confirm the use of
zeroing in two periodic reviews of one case and in three periodic reviews of the other case. 451
However, for both cases, the Panel found a lack of evidence showing that zeroing was used in one
periodic review listed in the panel request.
452 Moreover, for both cases, the sunset review
determination was excluded from the Panel's terms of reference, he nce no substantive findings were
made.453 As for two of the remaining cases, the only evidence in the record concerns two periodic
reviews in each case. In this respect, the Pane l found that none of the evidence in these two cases
established that simple zeroing was used in the periodic reviews. 454 Thus, unlike the situation
described in paragraph 191 above, the Panel ma de no finding confirming the use of the zeroing
methodology in successive stages over an extended peri od of time whereby the duties are maintained.
Given the absence of the Panel's factual findings an d the fragmented nature of the evidence, we are
unable to complete the analysis on whether the use of the zeroing methodology exists as an ongoing
conduct in successive proceedings by which the duties are maintained in these cases.
195. We recognize the important limitation on our abil ity to complete the analysis. We have
accordingly adopted, for the purpose of this dispute, a cautious approach. Thus, only where the Panel
has made clear findings of fact concerning the u se of the zeroing methodology, without interruption,
in different types of proceedings over an extended period of time, have we considered these findings
sufficient for us to complete the analysis and to make findings regarding the continued application of
zeroing in these cases.
455 By contrast, we have not completed the analysis where the factual findings
are absent in respect of the use of the zeroi ng methodology in each of the successive proceedings
whereby the duties are maintained, or where there are insufficient factual findings to indicate that
zeroing has been repeatedly applied. 456 In such circumstances, an examination of the facts, as well as

449Panel Report, paras. 7.145, 7.190 and 7.200. The Panel's findings regarding the sunset reviews are
upheld on appeal. See infra, section VIII. These three cases are: Stainless Steel Plate in Coils from Belgium
(Case VII) (Panel Exhibits EC-53, EC-54, and EC-75); Ball Bearings and Parts Thereof from the United
Kingdom (Case VIII) (Panel Exhibits EC-55, EC-56, and EC-76); and Stainless Steel Sheet and Strip Coils from
Italy (Case XII) (Panel Exhibits EC-63, EC-64, and EC-69).
450Panel Report, para. 7.145.
451The two cases are, respectively: Steel Concrete Reinforcing Bars from Latvia (Case I) (Panel
Exhibits EC-33 to EC-35 and EC-70); and Certain Pasta from Italy (Case XIII) (Panel Exhibits EC-65 to
EC-68 and EC-78).
452Panel Report, paras. 7.151 and 7.157. The European Communities appeals these findings. See infra,
section VI.
453Panel Report, paras. 7.70-7.77. On appeal, we reverse the Panel's finding regarding the terms of
reference, but do not complete the analysis concerning th e consistency of these sunset reviews with the covered
agreements. See infra, section IV.B.
454Panel Report, paras. 7.152-7.155. The European Communities appeals these findings. See infra ,
section VI. These two cases are: Stainless Steel Bar from France (Case V) (Panel Exhibits EC-47 and EC-48);
and Stainless Steel Bar from Germany (Case IX) (Panel Exhibits EC-57 and EC-58).
455See supra, para. 191.
456See supra, paras. 193 and 194.

a determination as to what conclusions may be drawn from the remaining evidence in the record,
would be more appropriately conducted by a panel, with the assistance of the parties.
196. Finally, for the one remaining case
457, the Panel found that simple zeroing was used in two of
the periodic reviews. Nonetheless, the Panel made no findings on one periodic review and the sunset
review in that case, having excluded them from its terms of reference. 458 As the Panel also noted, this
anti-dumping duty was revoked during the course of the Panel proceedings. 459 Given that the duty in
this case has already been terminated, we do not cons ider it appropriate to ma ke any finding in this
respect.
197. In sum, we find that relevant factual findings by the Panel and undisputed facts in the record
establish that, with respect to the anti-dumping duties in four of the cases listed in the panel request,
the zeroing methodology has been u sed in successive periodic reviews and in the sunset review, in
each of these cases, whereby these duties are maintained.
198. We recall that the European Communities requests us to find that the continued application of
the zeroing methodology in the 18 cases, as identifie d in its panel request, is inconsistent with
Articles VI:1 and VI:2 of the GATT 1994, Articles 2.4, 2.4.2, 9.3, 11.1, and 11.3 of the Anti-Dumping
Agreement, and Article XVI:4 of the WTO Agreement.460 In section V of this Report, we find that the
zeroing methodology, as applied in periodic reviews, is inconsistent with Article VI:2 of the
GATT 1994 and Article 9.3 of the Anti-Dumping Agreement . In addition, the Panel, referring to
relevant jurisprudence of the Appellate Body, conclu ded that, to the extent an administering authority
relies on dumping margins calculated with zeroing in its likelihood determination in sunset reviews,
the resulting sunset review determination is inconsistent with Article 11.3 of the Anti-Dumping
Agreement.461 On this basis, the Panel found that the United States acted inconsistently with its
obligations under Article 11.3 of the Agreement by relying, in eight sunset reviews at issue, on
margins obtained through model zeroing in prior inv estigations. In section VIII of this Report, we
uphold this finding of the Panel.
199. In the light of the above, we conclude that th e application and continued application of anti-

457Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands (Case X) (Panel Exhibits
EC-59 to EC-61 and EC-77).
458Panel Report, paras. 7.70-7.77. On appeal, we reverse the Panel's finding regarding the terms of
reference, but do not complete the analysis concerning the consistency of the sunset review with the covered
agreements. See infra, section IV.B.
459Panel Report, footnote 152 to para. 7.191. The revocation order, is published in United States
Federal Register, Vol. 72, No. 123 (27 June 2007) 35220 (Panel Exhibit EC-77, Appendix II).
461Panel Report, paras. 7.195 and 7.196 (referring to Appellate Body Report, US – Zeroing (Japan) ,
para. 185).

dumping duties is inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of
the GATT 1994 to the extent that the duties are mainta ined at a level calculated through the use of the
zeroing methodology in the periodic reviews in the following four cases: Ball Bearings and Parts
Thereof from Italy (Case II), Ball Bearings and Parts Thereof from Germany (Case III); Ball
Bearings and Parts Thereof from France (Case IV); and Stainless Steel Sheet and Strip in Coils from
Germany (Case VI). In addition, we conclude that the application and continued application of anti-
dumping duties in these four cases is inconsistent with Article 11.3 of the Anti-Dumping Agreement to
the extent that reliance is placed upon a margin of dumping calculated through the use of the zeroing
methodology in the sunset review determinations. Having reached these findings, we do not consider
it necessary to make additional findings unde r Articles 2.4, 2.4.2, and 11.1 of the Anti-Dumping
Agreement, Article VI:1 of the GATT 1994, and Article XVI:4 of the WTO Agreement for purposes of
resolving this dispute.
B. Preliminary Determinations in Four Specific Anti-Dumping Proceedings
200. In this section, we examine the European Communities' appeal against the Panel's finding that
the European Communities' claims regarding four pr eliminary determinations were outside the scope
of the Panel's terms of reference.462
201. Before the Panel, the United States argued th at four of the measures identified in the
European Communities' panel request were "prelimina ry results of periodic or sunset reviews" made
by the USDOC. 463 The United States observed that Article 17.4 of the Anti-Dumping Agreement
"allows the initiation of dispute settlement proceedings with regard to provisional measures if certain
criteria are met" 464, but asserted that the European Communities had not shown that those criteria
were met in this case. The United States therefor e requested that the Panel find that these four
preliminary determinations did not fall within its terms of reference.
202. As an initial matter, the Panel noted that it was factually uncontested that "four of
the 52 measures identified in the [European Co mmunities'] panel request were preliminary
determinations."465 The Panel observed that, pursuant to Article 17.4 of the Anti-Dumping
Agreement, "a Member may challenge definitive m easures imposed by other Members", although
"exceptionally a provisional anti-dumping measure ma y be challenged if it has a significant impact
and if the complaining Member shows that the provi sional measure was taken inconsistently with the

462Panel Report, para. 7.77.
463Panel Report, para. 7.68.
464Panel Report, para. 7.68.
465Panel Report, para. 7.70.

provisions of Article 7.1".
466 Noting that Article 7.1 lays down three conditions for the imposition of
a provisional anti-dumping measure, the Panel stated that the European Communities' claim regarding
the four preliminary measures "may be accepted onl y if the European Communities proves that the
conditions set out under Article 7.1 ... have not been met with regard to such measures." 467 The Panel
further noted that the European Communities ha d not raised a claim under Article 7.1 of the Anti-
Dumping Agreement . Therefore, the Panel concluded that the European Communities' claims
regarding the four preliminary determinations were not within the Panel's terms of reference.468
203. On appeal, the European Communities maintain s that the Panel rejected the European
Communities' claims on the "assumption" that the European Communities had argued that the four
preliminary determinations were "provisional measures". 469 The European Co mmunities argues that,
as it explained to the Panel and the Panel admitted 470, it was not challenging the four preliminary
determinations as "provisional measures" within the meaning of Articles 7.1 and 17.4 of the Anti-
Dumping Agreement. Rather, it was challenging "the conti nued application of zeroing in connection
with the definitive anti-dumping duties identified in [its] Panel Request (i.e., the 18 measures)." 471
Thus, these 18 measures "effectively caught any sub sequent 'measure'" falling into the category of
the 52 specific proceedings, including th ese four preliminary determinations. 472 According to the
European Communities, these four preliminary de terminations "are contrary to the covered
agreements because the United States carried out its dumping calculations based on zeroing (in the
administrative review concerned) or relied on dum ping margins calculated in prior investigations
using the zeroing methodology (in the case of the sunset reviews)". 473 On this basis, the European
Communities requests the Appellate Body to reverse th e Panel's finding and to complete the analysis
by finding that: (i) the four preliminary determinati ons are within the scope of this dispute; (ii) the
preliminary result of the periodic review is inconsiste nt with Articles 2.1, 2.4, 2.4.2, 9.3, and 11.2 of
the Anti-Dumping Agreement , Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4 of the
WTO Agreement ; and (iii) the preliminary results of th e sunset reviews are inconsistent with

466Panel Report, para. 7.73.
467Panel Report, para. 7.73.
468Panel Report, para. 7.77.
471European Communities' appellant's submission, para. 87. (emphasis omitted)

Articles 2.1, 2.4, 2.4.2, 11.1, and 11.3 of the Anti-Dumping Agreement and Article XVI:4 of the WTO
Agreement.474
204. The United States submits that the Panel properly excluded the four preliminary
determinations from its terms of reference.475 The United States submits that, pursuant to Article 17.4
of the Anti-Dumping Agreement , a matter may only be referred to a panel if "final action has been
taken by the administering authorities of the importing Member to levy definitive anti-dumping
duties."476 Yet, the four preliminary determinations challenged by the European Communities were
not "final action" because, at the time of the pa nel request, the United States had not yet made a
decision to levy definitive duties. 477 The United States further contends that the only exception to
Article 17.4 of the Anti-Dumping Agreement is that a provisional measure may be challenged if the
conditions set out in Article 7.1 are met. T hus, the United States asserts, the Panel properly
understood that the only way a non-fina l action could be challenged under the Anti-Dumping
Agreement would be if it were a provisional measure, and properly concluded that the European
Communities' challenge against these four preliminar y determinations did not fulfil the conditions set
forth in Article 7.1. 478 Furthermore, the United States notes the European Communities' argument
that its challenge against the continued applica tion of the 18 duties includes "any subsequent
'measure'"479, such as the preliminary determinations. Th e United States maintains that this argument
ignores the plain text of Article 17.4, because "[n]either on-going administrative reviews, nor on-
going sunset reviews, can be classified as final action to levy definitive anti-dumping duties."
480
205. Article 17.4 of the Anti-Dumping Agreement provides:
If the Member that requested consultations considers that the
consultations pursuant to paragr aph 3 have failed to achieve a
mutually agreed solution, and if final action has been taken by the
administering authorities of the importing Member to levy definitive
anti-dumping duties or to accept price undertakings , it may refer the
matter to the Dispute Settlement Body ("DSB"). When a provisional
measure has a significant impact and the Member that requested

474European Communities' appellant's submission, paras. 6 and 94; Panel Report, para. 3.1(c) and (d).
The European Communities adds that, if the Appellate Body reverses the Panel's finding that the continued
application of the 18 duties were outside its terms of reference and completes the analysis, as requested by the
European Communities, then the Appellate Body could d eal with its appeal concerning the four preliminary
determinations by "declaring the Panel's findings moot and of no legal effect ". (European Communities'
appellant's submission, para. 95 (original emphasis))
476United States' appellee's submission, para. 112 (quoting Article 17.4 of the Anti-Dumping
Agreement).
479United States' appellee's submission, para. 114 (quoting European Communities' appellant's
submission, para. 87).

consultations considers that the me asure was taken contrary to the
provisions of paragr aph 1 of Article 7 , that Member may also refer
such matter to the DSB. (emphasis added)
206. Article 17.4 of the Anti-Dumping Agreement stipulates, therefore, that a Member may refer
the matter to the DSB if two conditions are met: (i ) consultations "have failed to achieve a mutually
agreed solution"; and (ii) final action has been taken by the administering authorities of the importing
Member to levy definitive anti-dumping duties or to accept price undertakings. In addition, under the
second sentence of Article 17.4, a Member may request the establishment of a panel in the case of a
provisional measure if: (i) that measure has a "significant impact"; and (ii) the Member that
requested consultations considers that the measu re was taken contrary to the provisions of
Article 7.1.
481
207. Before the Panel, the Europ ean Communities expressly stated that it was "not challenging
provisional measures within the meaning of Article 17.4 of the Anti-Dumping Agreement ."482 T h e
Panel, however, excluded these four measures from its terms of reference for the reason that the
European Communities "does not raise any claims under Article 7.1 [of the Anti-Dumping Agreement]
in these proceedings" and had not "prove[d] that the conditions set out under Ar ticle 7.1 ... have not
been met" with regard to provisional measures. 483 We note, however, that in this dispute, the
European Communities was not challenging provisi onal measures within the meaning of Article 7.1
of the Anti-Dumping Agreement . Instead, the European Commu nities listed among the 52 specific
proceedings three preliminary results in sunset reviews and one preliminary result in a periodic
review.484 These reviews were conducted by the USDOC , subsequent to the imposition of duties
pursuant to the original anti-dumping investiga tions, to assess the duty lia bilities and cash deposit
rates (in the case of periodic review), and to determine whether a duty should be revoked or continued
(in the case of sunset reviews). In contrast, a provi sional measure, within the meaning of Article 7 of
the Anti-Dumping Agreement, is an interim measure taken by an investigating authority in the context
of an original investigation to prevent further in jury to the domestic industry, pending the final
outcome of the original investigation. Therefor e, we fail to see the Panel's rationale in excluding

481Article 7.1 of the Anti-Dumping Agreement provides:
Provisional measures may be applied only if:
(i) an investigation has been initiated in accordance with th e provisions of
Article 5, a public notice has been given to that effect and interested parties
have been given adequate opportunities to submit information and make
comments;
(ii) a preliminary affirmative determination has been made of dumping and
consequent injury to a domestic industry; and
(iii) the authorities concerned judge su ch measures necessary to prevent
injury being caused during the investigation.
482Panel Report, para. 7.75.
483Panel Report, para. 7.73.
484Panel Report, para. 7.70.

these measures from its terms of reference on the grounds that the European Communities did not
bring any claims under Article 7.1 concerning the conditions for imposing provisional measures. As a
result, the Panel's finding that the four preliminary de terminations were outside its terms of reference,
which was made on the basis of the European Commun ities' failure to bring claims under Article 7.1,
cannot stand.
208. This brings us to the question of whether we can complete the analysis as requested by the
European Communities, by finding that the four prel iminary determinations identified in its panel
request were within the panel's terms of reference an d were inconsistent with "the provisions of the
GATT 1994 and the Anti-Dumping Agreement cited in the Panel proceedings".485
209. We note that two of the four determinations challenged by the European Communities are
"preliminary results" issued by the USDOC in, re spectively, the periodic review (for the period
between 1 November 2004 and 31 October 2005) (No. 35) and the sunset review (No. 38) concerning
the anti-dumping duty on Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands
(Case X), with the final outcome pending in each proceeding. 486 In the "Preliminary Results of the
Sunset Review of Antidumping Duty Order in Certain Hot-Rolled Carbon Steel Flat Products from
the Netherlands", for example, the USDOC stated that it " preliminarily determines that revocation of
the antidumping duty order on [the reviewed product] is likely to lead to continuation or recurrence of
dumping" at specified margins. 487 In addition, the USDOC invited interested parties to submit
comments on the preliminary results within certain deadlines, and explained that it would issue the
final results subsequent to the deadlines. More over, we note that the evidence submitted by the
European Communities shows that the anti-dumping duty on Certain Hot-Rolled Carbon Steel Flat
Products from the Netherlands was revoked shortly after the establishment of the Panel, because the
USDOC, in the final results of the sunset review , could not determine that revocation of the duty
would likely lead to continuation or recurrence of dumping.488
210. Under these circumstances, we consider the Eu ropean Communities' challenge in relation to
these two preliminary results to be premature. Sp ecifically, given that these preliminary results could
be modified by the final results, we fail to see how the European Communities could establish that

485European Communities' appellant's submission, para. 94. The provisions cited in the Panel
proceedings include Articles VI:1 and VI:2 of the GATT 1994, Articles 2.4, 2.4.2, 9.3, 11.1, 11.2, and 11.3 of
the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement. (Panel Report, para. 3)
486Panel Report, para. 7.70.
487United States Federal Register , Vol. 72, No. 32 (16 February 2007) 7604 (Panel Exhibit EC-77,
Appendix I), at 7605. (emphasis added)
488"Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands; Final Results and Revocation
Order", United States Federal Register, Vol. 72, No. 123 (27 June 2007) 35220 (Case X) (Panel Exhibit EC-77,
Appendix II).

final anti-dumping duty were assessed in excess of the ma rgin of dumping or that the USDOC would
have relied on the margin calculated with zeroing in deciding to continue the duty.
211. With respect to the remaining two determinati ons, the documents referred to by the European
Communities are final likelihood-of-dumping determin ations issued by the USDOC in the sunset
reviews in Steel Concrete Reinforcing Bars from Latvia (Case I – No. 4)
489 and in Certain Pasta from
Italy (Case XIII – No. 47). 490 With respect to the former, th e European Communities submitted the
Issues and Decision Memorandum accompanying the final results, which indicates that the USDOC
relied on the margin calculated in the original investigation for its likelihood determination. 491 The
original investigation in that case was conducte d prior to the date on which the USDOC announced
that it would no longer apply model ze roing in original investigations. 492 Nonetheless, we note that
both sunset review proceedings were still pending before the USITC at the time the Panel was
established. Thus, the USITC had not yet determined, for either case, whether expiry of the anti-
dumping duty order would be likely to lead to the continuation or recurrence of injury.493 Under these
circumstances, we do not consider that completi on of the analysis as to whether these measures are
inconsistent with the covered agreements would be appropriate.
212. On this basis, we decline the European Communities' request for completion of the analysis
and for a finding that the four preliminary determinat ions are inconsistent with "the provisions of the
GATT 1994 and the Anti-Dumping Agreement cited in the Panel proceedings".494
C. Certain Measures Allegedly Not Included in the Request for Consultations
213. We turn now to consider the United States' allegation that the Panel erred in finding
that 14 periodic and sunset reviews identified in the European Communities' panel request were
within the Panel's terms of reference even though they were not listed in the European Communities'
request for consultations. 495 We also consider the United States' request for a finding that the

489Panel Exhibit EC-70, Appendix I.
490Panel Exhibit EC-78, Appendix I.
491"Issues and Decision Memorandum for the Sunset Review of the Anti-Dumping Duty Order on Steel
Concrete Reinforcing Bars from Latvia; Final Result" (Panel Exhibit EC-70, Appendix II), p. 6.
492See USDOC December 2006 Notice, supra, footnote 92.
493United States' appellee's submission, footnote 111.
494European Communities' appellant's submission, para. 94. The provisions cited in the Panel
proceedings include Articles VI:1 and VI:2 of the GATT 1994, Articles 2.4, 2.4.2, 9.3, 11.1, 11.2, and 11.3 of
the Anti-Dumping Agreement. (Panel Report, para. 3.1(c) and (d))
495For ease of reference, we refer to these periodic reviews and sunset reviews jointly as the
"14 additional measures".

continued application of the 18 anti-dumping duties were outside the Panel' s terms of reference
because they were not included in the European Communities' consultations request.496
1. The Panel's Findings
214. Before the Panel, the United States requested a preliminary ruling that the following measures
were outside the Panel's terms of reference beca use they were not identified in the request for
consultations: (i) 14 of the 52 anti-dumping procee dings listed in the annex to the panel request;
and (ii) the continued application of the 18 anti-dumping duties.497
215. The Panel noted that Article 6.2 of the DSU "r equires that a panel request mention whether
consultations were held, but it does not stipulate that the scope of the consultations request limits the
scope of the claims that may subse quently be raised before a panel." 498 The Panel further noted that,
pursuant to Article 4.7 of the DSU and Article 17.4 of the Anti-Dumping Agreement, "as long as the
consultations request and the panel request concern the same matter, or dispute, claims raised in
connection with measures identified in the ... pane l request would fall within a panel's terms of
reference even if those precise measures were not identified in the consultations request." 499 T h e
Panel found that the 52 anti-dumping measures, incl uding the 14 additional measures not identified in
the consultations request, all concerned "different determinations pertaini ng to the same products
originating in the same countries". 500 Moreover, they entailed the alleged use of the same

496United States' other appellant's submission, footnote 6 to para. 26.
 497Panel Report, para. 7.16. The 14 additional measures consist of 10 sunset review determinations and
four periodic review determinations, listed in the panel request, attached as Annex F-1 to the Panel Report, as
set out below.
 Seven sunset review determinations: Ball Bearings and Parts Thereof from Italy (Case II – No. 9)
(Panel Exhibit EC-71); Ball Bearings and Parts Thereof from Germany (Case III – No. 14) (Panel Exhibit
EC-72); Ball Bearings and Parts Thereof from France (Case IV – No. 19) (P anel Exhibit EC-73); Stainless
Steel Sheet and Strip in Coils from Germany (Case VI – No. 26) (Panel Exhibit EC-74); Stainless Steel Plate in
Coils From Belgium (Case VII – No. 29) (Panel Exhibit EC-75); Ball Bearings and Parts Thereof from the
United Kingdom (Case VIII – No. 32) (Panel Exhibit EC-76); and Stainless Steel Sheet and Strip in Coils from
Italy (Case XII – No. 42) (Panel Exhibit EC-69).
 Three sunset reviews (on-going at the time of the panel request): Steel Concrete Reinforcing Bars from
Latvia (Case I – No. 4) (the USITC had not yet determined injury at the time of the panel request) (Panel
Exhibit EC-70); Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands (Case X – No. 38
(preliminary results)) (Panel Exhibit EC-77); and Certain Pasta from Italy (Case XIII – No. 47) (the USITC
had not yet determined injury at the time of the panel request) (Panel Exhibit EC-78) . See also United States'
other appellant's submission, footnote 3 to para. 26.
Four final periodic review determinations: Steel Concrete Reinforcing Bars from Latvia (Case I –
No. 1) (identified as preliminary results in the consultations request) (Panel Exhibit EC-33); Stainless Steel
Sheet and Strip in Coils from Germany (Case VI – No. 22) (identified as preliminary results in the consultations
request) (Panel Exhibit EC-49); Certain Pasta from Italy (Case XIII – No. 43) (Panel Exhibit EC-65); and
Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands (Case X – No. 35 (preliminary results))
(Panel Exhibit EC-59). See also United States' other appellant's submission, footnote 4 to para. 26.

498Panel Report, para. 7.22.
499Panel Report, para. 7.22.
500Panel Report, para. 7.25.

methodology, zeroing, which, in the Panel's word s, was the "gist of the [European Communities']
claims" before the Panel.
501 For the Panel, this "substantive si milarity" between the measures at issue
and the fact that they concerned the same country and the same product "outweighed" the fact that
they represent independent determ inations under United States law. 502 On this basis, the Panel found
that the European Communities' consultations request and panel request referr ed to the "same subject
matter" and the "same dispute" and therefore rejected the United States' claim that 14 of the 52 anti-
dumping determinations were outside the Panel's terms of reference because they were not included in
the European Communities' consultations request.503
216. With respect to the continued application of the 18 anti-dumping duties, the Panel referred to
its finding that these measures fell outside its terms of reference because their identification in the
panel request failed to meet the specificity requirement in Article 6.2 of the DSU. On this basis, the
Panel declined to address the United States' assertion that these measures fell outside the Panel's terms
of reference on the grounds that they were not id entified in the European Communities' consultations
request.504
2. Claims and Arguments on Appeal
217. On appeal, the United States argues that the Panel "fundamentally misconstrued" 505 the
requirements of the DSU regarding panels' terms of reference in reaching its findings. According to
the United States, Articles 4 and 6 of the DSU, along with Articles 17.3, 17.4, and 17.5 of the Anti-
Dumping Agreement, "set forth a fundamental jurisdictional requirement for a complaining Member
to request consultations on a matter before th at matter may be referred to the DSB for the
establishment of a panel." 506 The United States argues that the Pa nel incorrectly rejected the United
States' preliminary objection on the grounds that the panel request referred to the "same dispute" or
"same subject matter" as the consultations request. 507 In the United States' view, these 14 additional
measures were "legally distinct measures" 508 from those included in the consultations request because
they "resulted from completely different proceedin gs" involving "different time frames and different
calculations using different information and data". 509 The United States further argued that the Panel

501Panel Report, para. 7.25.
502Panel Report, para. 7.25.
503Panel Report, para. 7.28.
504Panel Report, para. 7.29.
505United States' other appellant's submission, para. 26.
506United States' other appellant's submission, para. 29.
507United States' other appellant's submission, para. 33 (referring to Panel Report, paras. 7.23, 7.27
and 7.28).
508United States' other appellant's submission, para. 33.
509United States' other appellant's submission, para. 35.

identified certain "supposed commonalities" 510 between the measures listed in the consultations
request and the 14 additional measures not listed ther ein on the basis of the erroneous reasoning that
the European Communities' legal claims regardi ng these measures were the same. For the United
States, just because a complaining party may wish to raise the same legal claim with respect to two
measures does not mean that those measures are not legally distinct. 511 In addition, the United States
requests that the Appellate Body find that the continued application of the 18 anti-dumping duties
were also outside the Panel's terms of reference because they were not identified in the European
Communities' consultations request.512 The United States makes this request on the condition that the
Appellate Body reverses the Panel's finding that these 18 measures were not specifically identified in
the European Communities' panel request, as required by Article 6.2 of the DSU.
513
218. The European Communities requests the Appellate Body to dismiss the United States' claim
that the Panel erred in finding that the 14 additiona l measures identified in the panel request but not
included in the European Communities' consultati ons request were within the Panel's terms of
reference.514 According to the European Communities, the measures that were the subject of
consultations need not be identical with those iden tified in the panel request, "as long as they involve
essentially the same matter".515 The European Communities agrees with the Panel that the Appellate
Body's reasoning in US – Certain EC Products is inapplicable to the present case because 516, unlike
the additional measure identified for the first time in the panel request in US – Certain EC Products ,
the 14 additional measures identified in th e panel request in the present case are not " legally distinct
measure[s]" from those identified in the consultations request.517
219. The European Communities furthe r request the Appellate Body to reject the United States'
request for a finding that the continued applicati on of the 18 anti-dumping duties were outside the
Panel's terms of reference. The European Comm unities contends that, because the United States did

510United States' other appellant's submission, para. 36.
511United States' other appellant's submission, para. 36.
512United States' other appellant's submission, footnote 6 to para. 26. In this regard, the United States
referred to its arguments made before the Panel, which we re similar to those submitted by the United States on
appeal in relation to the 14 additional measures. (United States' first written submission to the Panel, Panel
Report, Annex A-2, pp. A-87 and A-88, paras. 61-65; United States' second written submission to the Panel,
Panel Report, Annex C-2, p. C-63, paras. 11 and 13)
513United States' other appellant's submission, footnote 6 to para. 26.
517European Communities' appellee's submission, pa ra. 14. (original emphasis) The European
Communities argues that the 14 additional measures in the present case relate to the same products from the
same countries as those mentioned in its consultations request, the same government agency issued the
measures, and the legal claims made by the European Communities were identical to those made in the request
for consultations, and have a direct relationship to the measures mentioned in the annexes of the European
Communities request for consultations. (Ibid.)

not make such a request in its Notice of Other Appeal, the Appellate Body should reject this
request.
518 In any event, the European Communities argues, the European Communities' consultations
request "did refer to the zeroing methodology, and this was simply narrowed in the Panel Request to
refer to the zeroing methodology as embedded in the 18 measures."519
3. Whether the 14 Additional Measures Fe ll within the Panel's Terms of
Reference
220. In considering the United States' arguments on appe al, we begin with the text of the relevant
provisions of the DSU. Article 4 of the DSU provides, in relevant part, that:
Consultations
1. Members affirm their resolve to strengthen and improve the
effectiveness of the consultation procedures employed by Members.

4. ... Any request for consultati ons shall be submitted in writing
and shall give the reasons for the request, including identification of
the measures at issue and an indication of the legal basis for the
complaint.
221. Article 6.2 of the DSU provides, in relevant part:
The request for establishment of the panel ... shall indicate whether
consultations were held, identify the specific measures at issue and
provide a brief summary of the legal basis of the complaint sufficient
to present the problem clearly.
222. The Appellate Body has found that Articles 4 a nd 6 of the DSU "set forth a process by which
a complaining party must request consultations, and consultations must be held, before a matter may
be referred to the DSB for th e establishment of a panel."
520 Moreover, the Appellate Body has held
that "consultations provide the parties an opportuni ty to define and delimit the scope of the dispute
between them".521 At the same time, the Appellate Body has also explained that Articles 4 and 6 do
not "require a precise and exact identity between the specific measures that were the subject of
consultations and the specific measures identified in the request for the establishment of a panel." 522
Rather, "[a]s long as the complaining party does no t expand the scope of the dispute," the Appellate
Body has said it would "hesitate to impose too rigi d a standard for the 'pr ecise and exact identity'

521Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 54.
522Appellate Body, Brazil – Aircraft, para. 132. (original emphasis)

between the scope of consultations and the request for the establishment of a panel, as this would
substitute the request for consultations for the panel request."523
223. In the present case, there is no dispute between the parties that 14 anti-dumping duty review
determinations (including 10 sun set reviews and 4 periodic reviews) were not specifically identified
by name or case number in the European Communities' consultations request. 524 The United States
emphasizes this fact and argues that these measures were therefore not within the Panel's terms of
reference pursuant to Articles 4 and 6 of th e DSU and the parallel provisions (that is,
Articles 17.3, 17.4, and 17.5) of the Anti-Dumping Agreement.525
224. Yet, as noted above, Articles 4 and 6 do not require an "exact identity" 526 between the scope
of the consultations request and the panel request. Thus, the fact that the 14 additional measures were
added to the panel request, in itself, does not necessar ily mean that they fell outside the Panel's terms
of reference. As previously explained by the A ppellate Body, the relevant question, in determining
whether, in this case, the 14 additional measures fell within the Panel's terms of reference, is whether
the "scope of the dispute" was expanded as a result of their addition. 527 Therefore, we turn to review
the European Communities' consultations request and panel request in order to determine whether the
scope of the dispute has been broadened as a result of the inclusion of the 14 additional measures in
the panel request.
225. The European Communities requested consultati ons regarding the "Un ited States regulations,
zeroing methodology, practice, administrative proce dures and measures for determining the dumping
margin in reviews mentioned under point 1(a)" 528 of the consultations request. Point 1(a) in turn
refers to "all types of review", including annual pe riodic reviews, new shipper reviews, and changed
circumstances reviews, in which the United Stat es "systematically uses" the zeroing methodology. 529
In addition, the European Communities also requested consultations regarding the following matters:
(b) The specific anti-dumping administrative reviews listed in
Annex I to the present request, and any assessment instructions
issued pursuant to them in wh ich the United States applied the
regulations, zeroing methodology, practice, administrative
procedures and measures described under point 1(a) above. As a
consequence, the European Communities consider that the outcome
of the administrative reviews as detailed in Annex I is inconsistent
with Articles 1, 2.1 2.4, 2.4.2, 9.1, 9.3, 11.2 and 18.4 of the

523Appellate Body Report, US – Upland Cotton, para. 293.
524Panel Report, para. 7.17.
525United States' other appellant's submission, paras. 27-29.
526Appellate Body, Brazil – Aircraft, para. 132. (emphasis omitted)
527Appellate Body Report, US – Upland Cotton, para. 293.
528WT/DS350/1, p. 3.
529WT/DS350/1, p. 1.

AD Agreement, Articles VI:1 and VI:2 of the GATT 1994 and
Article XVI:4 of the Marrakesh Agreement establishing the World
Trade Organization for the reasons set out above under point (a).
(c) The specific dumping determination in the original
investigations listed in Annex III to the present request, and any
automatic assessment instructions issued pursuant to them, in which
the United States applied the zeroing methodology described under
point 1(b) above. As a consequence, the European Communities
consider that the imposition of definitive duties in the original
investigations detailed in A nnex III is inconsistent with
[Articles 1, 2.1, 2.4, 2.4.2, 5.8, 9.1, and 9.3 of the Anti-Dumping
Agreement, Articles VI:1 and VI:2 of the GATT 1994, and
Article XVI:4 of the WTO Agreement].
(d) The specific sunset review determination in the case listed in
Annex II to the present request. The United States relied in its
determination on dumping margins th at were calculated in the
original investigation and in administrative reviews using the
methodology described under point 1(a) above. As a consequence,
the European Communities consider that the continuation of the anti-
dumping [duty] in this case is inconsistent with [Articles 1, 2.1, 2.4,
2.4.2, 9.1, 9.3, 11.1, 11.3, 18.3, and 18.4 of the Anti-Dumping
Agreement, Articles VI:1 and VI:2 of the GATT 1994, and
Article XVI:4 of the WTO Agreement].
530 (emphasis added)
226. The consultations request thus makes clear th at, in addition to the zeroing methodology, the
European Communities challenges the " outcome of the administrative reviews", the "imposition of
definitive duties", and "the continuation of the anti-dumping [ duty]" resulting from the proceedings
listed in the annexes. Under United States anti- dumping laws and practice, the outcome of an
administrative review (referred to as a "periodic review" in this Report 531) involves the collection of
duties pursuant to an assessment of an importer's act ual duty liabilities for the review period, as well
as the imposition of an updated cash deposit rate on that importer for future entries.532 In other words,
the measures referred to in the European Comm unities' consultations request include the duties
imposed, or continued to be applied, as a result of the specific anti-dumping proceedings listed in the
annexes. The consultations request further indicat es that the European Communities considers that
these duties are inconsistent with the covered ag reements because the zeroing methodology was used
in their assessment in periodic reviews and in their calculation in original determinations, and because
the United States relied upon margins calculated on the basis of the zeroing methodology in the sunset
reviews. Therefore, the measures subject to the European Communities' challenge encompass the
anti-dumping duties resulting from the proceedings iden tified in the consultations request, in which
the zeroing methodology was allegedly used.

530WT/DS350/1, pp. 3-5.
531See supra, footnote 9.
532United States' other appellant's submission, para. 57.

227. With respect to the specific anti-dumping pr oceedings, the European Communities requested
consultations regarding, inter alia, 33 periodic reviews and one sunset review in which the zeroing
methodology was allegedly applied. In the pane l request, the European Communities challenges the
application of the zeroing methodology in 52 specific anti-dumping proceedings. Among them, four
periodic reviews and 10 sunset reviews were not expressly listed in the consultations request.
228. We recall that the Appellate Body has cautioned ag ainst a standard that is too "rigid" in terms
of requiring the "precise and exact identity" between the scope of the request for consultations and the
panel request, as long as the complaining party does not "expand the scope of the dispute".
533 Here,
the 14 additional measures identified in the panel requ est pertain to the same anti-dumping duties that
are included in the consultations request. Among th e 14 additional measures are the sunset review
proceedings concerning the continuation of 10 anti-dumping duties, in relation to which the
successive periodic reviews are identi fied in the consultations request. 534 The remaining four
additional measures are more recent periodic reviews to the ones listed in the consultations request,
including two final results issued subsequent to the preliminary results that were listed in the
consultations request.535 The proceedings listed in the consulta tions request and the panel request are
therefore successive stages subsequent to the i ssuance of the same anti-dumping duty orders. More
specifically, as regards the periodic reviews, the subsequent measures assessed actual duty liabilities
and updated cash deposit rates that were imposed on the same products from the same countries as
those listed in the consultations request. With respect to the sunset reviews, the subsequent measures
related to the continued application of duties on the same products from the same countries as those
listed in the consultations request. Moreover, in both its consultations request and panel request, the
European Communities made clear that it was cha llenging the specific administrative review and
sunset review proceedings because of the use of the zeroing methodology. Specifically, both the
consultations request and the panel request allege that the USDOC "systematically"
536 applies the
zeroing methodology in all types of review proceed ings, which, the European Communities contends,
is a methodology found to be inconsistent with the covered agreements.537 In sum, these 14 additional
measures relate to the same duties id entified in the consultations re quest, and the legal basis of the
claims raised is the same.
229. The United States contends that the 14 additiona l measures are "legally distinct" from those
listed in the consultations request and therefore c ould not properly fall within the Panel's terms of
reference. As support, the United States re fers to the Appellate Body's finding in US – Certain EC

533Appellate Body Report, US – Upland Cotton, para. 293.
534WT/DS350/1, pp. 6-8. United States' other appellant's submission, footnote 3 to para. 26.
535WT/DS350/1, pp. 6-8. United States' other appellant's submission, footnote 4 to para. 26.
536WT/DS350/1, point 1(a), p. 1; WT/DS350/6, Panel Report, Annex F-1, p. F-2.
537WT/DS350/1, point 1(b), p. 2; WT/DS350/6, Panel Report, Annex F-1, p. F-3.

Products that, although a measure was listed in the panel request, it nevertheless fell outside the
panel's terms of re ference because it was "legally distinct" from the measure included in the
consultations request.
538
230. We note that, in reaching its finding in US – Certain EC Products , the Appellate Body took
into account several particular factors arising in that dispute. For example, the Appellate Body noted
that the contents of these two measures were di fferent: while one provided for increased bonding
requirements, the other provided for the imposition of 100 per cent customs duties. It also noted that
these two measures were taken by two separate agen cies pursuant to two distinctly separate legal
authorities. Furthermore, the earlier measure was not a prerequisite for the imposition of the later
measure, and there was no perceptible correlati on between the amount of bonding requirements and
the customs duties.539 In other words, the two measures in that dispute were entirely different and, as
a consequence, the matters covered by the consulta tions request and the panel request were distinct
from one another.
231. The situation is rather different in this dis pute. As noted, the 14 additional measures and
those explicitly listed in the consu ltations request relate to the same duties on the same products from
the same countries imposed pursuant to the same au thorities (that is, the relevant anti-dumping rules
and regulations of the United States). In relation to each of the duties, the proceedings identified in
both the consultations request and the panel request derive from the same underlying legal basis, that
is, the anti-dumping duty orders issued pursuant to the original investigations in which dumping,
material injury, and the causal li nk between the two were determined. The United States argued that
the periodic reviews were conducted by the USDOC al one and the sunset reviews required decisions
by both the USDOC and the USITC. Yet, the fact that one or two agencies were involved does not
change the fact that each of the duties subject to both types of reviews derived from the same anti-
dumping duty order. As the Appellate Body explained in US – Certain EC Products, "[i]t is perfectly
possible for more than one governmental agency to be involved in taking a single measure." 540 Thus,
we consider that the United States' re liance on the Appellate Body's findings in US – Certain EC
Products is misplaced.
232. The United States further asserts that, in rejecting the relevance of US – Certain EC Products,
the Panel erroneously applied a "str iking similarities" test with respect to the 14 additional measures
and those included in the consultations request. 541 We agree that similarities between the measures,

538United States' other appellant's submission, para. 34 (referring to Appellate Body Report, US –
Certain EC Products, para. 82).
539Appellate Body Report, US – Certain EC Products, paras. 74-77.
540Appellate Body Report, US – Certain EC Products, para. 75.
541United States' other appellant's submission, para. 36 (referring to Panel Report, para. 7.27).

alone, does not lead to the conclu sion that the 14 additional me asures necessarily fell within the
Panel's terms of reference. Howeve r, we do not consider that the Panel made such a finding. Rather,
the Panel was distinguishing the current dispute from that in US – Certain EC Products , in which the
measure listed in the panel request and that mentioned in the consultations request were different.542
233. Moreover, the Panel's analysis did not stop at recognizing the similarities of the measures.
Rather, the Panel went on to find that, "[m]ore importantly, the legal nature of the European
Communities' claims regarding the additional 14 me asures does not in any way differ from that of
the 38 measures identified in the ... consultations request." 543 Hence, the Panel found, "it is clear that
the European Communities' consultations request a nd its panel request refer to the same subject
matter, the same dispute." 544 The United States contends that the Panel's approach confused two
aspects of the "matter", namely, claims and measures . The United States submits that, "[j]ust because
a complaining party may wish to raise the same legal claim with respect to two measures does not
mean that those measures are not legally distinct." 545 We disagree. In our view, the Panel properly
examined both components of the matter before it in order to determine whether the scope of the
dispute had changed.
234. In addition, the United States contends that th e Panel's reliance on relevant findings by the
panel and the Appellate Body in Brazil – Aircraft was "misplaced" 546 because in that dispute "the
consultations and panel request contained essentially the same measures, unlike the situation here."547
235. In Brazil – Aircraft , the measures at issue were the Brazilian export subsidies for regional
aircraft under "PROEX".548 The panel and the Appellate Body fo und that consultations were held on
these subsidies, and that the regulatory instrument s that came into effect subsequent to the
consultations "involve essentially the same practice, [that is,] the payment of export subsidies under
PROEX."549 Therefore, the consultations request and the panel request "relate to what is
fundamentally the same 'dispute'" 550 and, as a result, the regulatory in struments that came into effect
after the consultations were properly before the panel. 551 In the present dispute, the periodic reviews

542Panel Report, paras. 7.26 and 7.27.
543Panel Report, para. 7.28.
544Panel Report, para. 7.28.
545United States' other appellant's submission, para. 36.
546United States' other appellant's submission, para. 38 (referring to Panel Report, para. 7.23).
547United States' other appellant's submission, para. 38.
549Panel Report, Brazil – Aircraft , para. 7.11. See also Appellate Body Report, Brazil – Aircraft ,
para. 132.
550Panel Report, Brazil – Aircraft, para. 7.11.
551Appellate Body Report, Brazil – Aircraft , para. 133. See also Panel Report, Brazil – Aircraft ,
para. 7.11.

listed in the consultations request also involve essentially the same practice as the successive periodic
reviews identified in the panel request, that is, the assessment of duty liabilities and cash deposit rates.
Moreover, the European Communities' claims ag ainst the periodic and sunset reviews listed,
respectively, in the consultations request and the pa nel request relate to essentially the same dispute,
that is, the application of the zeroing methodology in the imposition or continuation of specific anti-
dumping duties. Thus, in our view, the Panel properly relied on the relevant findings in Brazil –
Aircraft to confirm its finding that a precise identity is not required between the specific measures
identified in the consultations request and those identified in the panel request, provided that the
complainant does not expand the scope of the dispute.
552
236. In the light of the above, we uphold the Panel's finding that the 14 additional measures were
within the Panel's terms of reference.553
4. Whether the Continued Application of the 18 Anti-Dumping Duties was
Included in the Request for Consultations
237. Should the Appellate Body reverse the Panel's finding that the European Communities failed
to identify in the panel request the specific measures at issue with regard to its claims concerning the
continued application of the 18 anti-dumping duties, the United States requests the Appellate Body to
find "the alleged 18 measures" to be outside the Panel's terms of reference because they were not
identified in the consultations request.554
238. In section IV.A.3 of this Report, we reversed the Panel's finding that the European
Communities failed to identify the specific measures at issue in relation to its claims concerning the
continued application of the 18 duties. The cond ition upon which the United States' request rests is
therefore fulfilled, and we turn to examine the issue of whether the continued application of
the 18 anti-dumping duties fell outside the Panel's term s of reference because they were not identified
in the consultations request.
239. As noted above, the European Communities' consultations request makes clear that, in

552Panel Report, para. 7.23 (referring to Panel Report, Brazil – Aircraft , para. 7.10; and Appellate
Body Report, Brazil – Aircraft, para. 132). Furthermore, as noted by Brazil in this case, "in assessing the scope
of a panel's jurisdiction, panels and the Appellate Body have focused on the substantive connection ... between a
group of measures" and on the issue of whether these m easures are substantively the same with respect to the
disputed issue. (Brazil's third participant's submission, para. 21) Brazil refers to, for example, the Appellate
Body's finding in Chile – Price Band System that an amendment to a measure subsequent to the panel's
establishment did not change the e ssence of the original measure, a nd therefore the amended measure was
within the panel's jurisdiction. ( Ibid., para. 18 (referring to Appellate Body Report, Chile – Price Band System,
para. 139))
553Panel Report, para. 7.28.
554United States' other appellant's submission, footnote 6 to para. 26.

addition to the zeroing methodology, the European Communities challenges the " outcome of the
administrative reviews", the "imposition of definitive duties", and "the continuation of the anti-
dumping [duty]" resulting from the proceedings listed in the annexes. In other words, the measures
subject to the European Communities' consultations request include the duties imposed, or continued
to be applied, as a result of the specific an ti-dumping proceedings liste d in the annex to the
consultations request. The consultations request further indicates that the European Communities
considers that these duties are inconsistent w ith the covered agreements because the zeroing
methodology was used in their assessment in periodi c reviews and in their calculation in original
determinations, and because the United States reli ed upon margins calculated previously on the basis
of the zeroing methodology in the sunset review. Therefore, the measures s ubject to the European
Communities' challenge encompass the anti-dumping duties resulting from the proceedings identified
in the consultations request, in which the zeroing methodology was allegedly used.
240. A comparison between the consultations re quest and the panel request shows that
the 38 proceedings listed in the cons ultations request pertain to all of the 18 cases identified in the
panel request. More specifically, in its panel request, the European Communities indicated that it
challenges the continued application of 18 anti-dump ing duties, each identified in the annex to the
panel request by reference to the original anti-dumping order, together with the product and country to
which the duty applies. In addition, the Eur opean Communities challenges 52 specific proceedings
pertaining to these 18 cases. Among these 52 procee dings, 38 are listed in the consultations request,
which pertain to all of the 18 cases. Thus, the 18 anti-dumping duties challenged by the European
Communities are the same duties as those resulting fro m the proceedings listed in the consultations
request. Although, in the consultations request, the exact term "18 duties" or "18 cases" was not used,
these duties are nonetheless manifested in the specific proceedings liste d therein that resulted in the
imposition, collection, or assessment of duties. Moreover, in its panel request, the European
Communities indicates that it challenges the continued application of the 18 duties because of the use
of the zeroing methodology in calculating or assessing the rates of these duties. Therefore, in our
view, with respect to these 18 duties, the consultati ons request and the panel request concern the same
matter, that is, the inconsistency with the GATT 1994 and the Anti-Dumping Agreement of
the 18 anti-dumping duties due to the use of the zeroing methodology in the determination of the
dumping margins or the cash deposit rates.

241. On this basis, we dismiss
 the United States' request and conclude that the continued
application of the anti-dumping duties in each of the 18 cases was identified in the European
Communities' consultations request.555
V. Simple Zeroing as Applied in Periodic Reviews
242. We turn next to examine the United States' othe r appeal of the Panel's finding that the United
States acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the
GATT 1994 by using simple zeroing in 29 periodic reviews.
243. In what follows, we summarize briefly the fi ndings of the Panel and the arguments of the
participants before turning to the issue before us in this case.
A. The Panel's Findings
244. The Panel found that zeroing, as applied by the USDOC in 29 periodic reviews, is
inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.556
245. In its analysis, the Panel first considered the issue of "whether dumping may be determined
on the basis of an individual export transaction or whether it requires an aggregation of all export
transactions made within the period of review." 557 The Panel said it was "inclined to agree" with the
proposition that "it is a permissible interpretation of the [Anti-Dumping Agreement] that dumping may
be determined for individual export transactions" 558, but also added that panel reports agreeing with
that proposition have been consisten tly reversed by the Appellate Bo dy. In this regard, the Panel
noted the Appellate Body's explanation that, "if it we re permissible to determine a separate margin of
dumping for each individual transaction, several margins of dumping would exist for each exporter
and for the product under consideration." 559 The Panel added that the Appellate Body has found that

555In any event, we note that the United States did not make this request in its Notice of Other Appeal,
but only included this request subsequently in a footnote in its other appellant's submission.
556Before the Panel, the European Communities argued that the United States applied simple zeroing in
the 37 periodic reviews listed in the annex to the Eu ropean Communities' panel request. (See Panel Report,
para. 7.145) The Panel found that the European Comm unities had failed to establish that simple zeroing was
used in seven periodic reviews. (See ibid., para. 7.158) In addition, the Panel found that the preliminary results
of one periodic review were not within its terms of reference. (See ibid., para. 7.77) Thus, the Panel's findings
regarding the use of simple zeroing in periodic reviews applied only to 29 of the 37 reviews challenged by the
European Communities.
557Panel Report, para. 7.162.
558Panel Report, para. 7.162.
559Panel Report, para. 7.162 (quoting Appellate Body Report, US – Stainless Steel (Mexico), para. 99).

this cannot be reconciled with the interpretati on and application of several provisions of the Anti-
Dumping Agreement, including a determination of injury under Article 3.560
246. Secondly, the Panel examined the issue of "whether dumping is necessarily an exporter-
specific concept or whether it may also be determined for individual importers." 561 The Panel said
that it "tend[ed] toward the view that dumping is not necessarily and exclusively an exporter-specific
concept".562 However, referring to the Appellate Body 's reasoning that "certain elements of the
definitional provisions contained in Article 2.1 of the Anti-Dumping Agreement and Article VI:1 of
the GATT 1994 compel the notion that dumping reflects the exporter's behaviour" 563, the Panel
observed that the Appellate Body had reversed the findings of prior panels that had considered the
determination of importer-specific margins permissibl e. The Panel further noted that the Appellate
Body "found contextual support for its interpretation in other provisions of the Agreement, including
Articles 2.3, 5.2(ii), 6.1.1, 6.7, 5.8, 6.10 , 9.5, 8.1, 8.2, 8.5 and 9.4(i) and (ii)." 564 In addition, the
Appellate Body "restated the overarching requirement of Article 9.3 that the level of anti-dumping
duty cannot exceed the margin of dumping as estab lished under Article 2 of the Agreement [and]
reasoned that dumping can only be determined for the exporter and in connection with the product
under consideration as a whole, and considered that this definition of 'dumping' applies throughout the
Agreement."565
247. Thirdly, the Panel stated that it shared the United States' concern that "prohibiting simple
zeroing in periodic reviews would favour importers with high margins vis-à-vis importers with low
margins."566 However, in this regard, the Panel recalle d the Appellate Body's explanation "that the
prohibition of simple zeroing in periodic reviews does not preclude Members from carrying out an
importer-specific inquiry in dete rmining liability for the collection of anti-dumping duties, as long as
the duty collected does not exceed the exporter-specific margin of dumping established for the
product under consideration as a whole."
567

560Panel Report, para. 7.162 (referring to Appellate Body Report, US – Stainless Steel (Mexico) ,
para. 99).
561Panel Report, para. 7.163.
562Panel Report, para. 7.163.
563Panel Report, para. 7.163 (referring to Appellate Body Report, US – Stainless Steel (Mexico) ,
paras. 83-96).
564Panel Report, para. 7.163 (referring to Appellate Body Report, US – Stainless Steel (Mexico) ,
paras. 83-96).
565Panel Report, para. 7.163.
566Panel Report, para. 7.164.
567Panel Report, para. 7.164 (referring to Appellate Body Report, US – Stainless Steel (Mexico) ,
para. 113).

248. Fourthly, while expressing the view that an opinion presented in the 1960 Second Report by
the Group of Experts on Anti-Dumping and Countervailing Duties
568 (the "1960 Group of Experts
Report") "supports the conclusion that dumping c ould be determined for individual importers" 569, the
Panel recalled that the Appellate Body "rejected th is argument, finding that interpretation of the
Agreement in this regard does not necessitate an an alysis of supplementary means of interpretation
provided for under Article 32 of the Vienna Convention." 570 The Appellate Body further reasoned
that the 1960 Group of Experts Report "does not clarif y whether simple zeroing in periodic reviews is
allowed under the Anti-Dumping Agreement becau se it only reflects the views of some of the
negotiating parties well before the Anti-Dumping Agreement came into force."571
249. Fifthly, the Panel said it "tend[ed] to agree" with the proposition that recognition in the Anti-
Dumping Agreement of a prospective normal value system "reinforces the argument that dumping
may be determined on the basis of individual export transactions". 572 The Panel noted, however, that
the Appellate Body "highlighted the fact that th e duty collected at the time of importation under a
prospective normal value system does not represent the margin of dumping within the meaning of
Article 9.3 and noted that such duty is subject to review under Article 9.3.2."573
250. Finally, the Panel said it "tend[ed] to agr ee" with the United States and the panel in US –
Stainless Steel (Mexico) that, if the Anti-Dumping Agreement was read to prohibit zeroing generally,
then Article 2.4.2 would yield the same mathemat ical result as the first methodology, rendering the
second sentence of Article 2.4.2 inutile.574 However, the Appellate Body dismissed this concern,
explaining that, "if the determination of weighted average normal values was based on different time
periods, dumping margin calculations under these two methodologies would yield different
mathematical results."575 The Appellate Body also reiterated its view that "[b]eing an exception, the
comparison methodology in the second sentence of Ar ticle 2.4.2 (weighted average-to-transaction)
alone cannot determine the interpretation of the two methodologies provided in the first sentence."576

568GATT Second Report of the Group of Experts, Anti-Dumping and Countervailing Duties, GATT
Document L/1141, adopted 27 May 1960, BISD 9S/194.
569Panel Report, para. 7.165.
570Panel Report, para. 7.165 (referring to Appellate Body Report, US – Stainless Steel (Mexico) ,
paras. 128-132).
571Panel Report, para. 7.165 (referring to Appellate Body Report, US – Stainless Steel (Mexico) ,
paras. 128-132).
572Panel Report, para. 7.166.
573Panel Report, para. 7.166 (referring to Appellate Body Report, US – Stainless Steel (Mexico) ,
para. 120).
574Panel Report, para. 7.167 (referring to Panel Report, US – Stainless Steel (Mexico) ,
paras. 7.130-7.133).
575Panel Report, para. 7.167 (quoting Appellate Body Report, US – Stainless Steel (Mexico) , para. 126
(original emphasis)).
576Panel Report, para. 7.167 (quoting Appellate Body Report, US – Stainless Steel (Mexico), para. 127).

251. Although it had "generally found the reasoni ng of earlier panels on these issues to be
persuasive"577, the Panel noted that it was "faced with a situation where the Appellate Body reports,
adopted by the DSB, have consistently reversed the findings in the mentioned panel reports that
simple zeroing in periodic revi ews is not WTO-inconsistent." 578 Thus, "before setting out any
definitive findings", the Panel turned to consid er what it referred to as "an important systemic
question".579
252. Referring to the "consistent line of reasoning underlying the Appellate Body's conclusion
regarding simple zeroing in periodic reviews" 580, the Panel turned to consider the role of prior
jurisprudence. The Panel noted the Appellate B ody's finding that, although "Appellate Body reports
are not binding, except with respect to resolving the particular dispute between the parties"581, they are
nevertheless "often cited by parties in support of legal arguments in dispute settlement proceedings,
and are relied upon by panels and the A ppellate Body in subsequent disputes". 582 The Panel recalled
the Appellate Body's statements in US – Stainless Steel (Mexico) that "the legal interpretation
embodied in adopted panel and Appellate Body reports becomes part and parcel of the acquis of the
WTO dispute settlement system" and that ensuring "security and predictability" in the dispute
settlement system "requires the development of a co nsistent body of case law and applying it to the
same legal questions, absent cogent reasons".583
253. With regard to the hierarchical structure be tween panels and the Appellate Body, the Panel
observed the Appellate Body's finding that any panel report that fails to follow the case law developed
through adopted panel and Appellate Body repor ts would undermine the important function of
jurisprudence to develop a consistent body of case law. 584 The Panel also noted the Appellate Body's
view that "the legal interpretation contained in a dopted Appellate Body reports has implications that
go beyond the specifics of the relevant dispute" and has to be taken into consideration in interpreting
the rights and obligations of WTO Members.585
254. The Panel then observed that its duty to make an "objective assessment" under Article 11 of
the DSU did not exist "in a vacuum", but was to be read in the context of Article 3.2 of the DSU,

577Panel Report, para. 7.169. (footnote omitted)
578Panel Report, para. 7.169.
579Panel Report, para. 7.169.
580Panel Report, para. 7.170.
581Panel Report, para. 7.173 (quoting Appellate Body Report, US – Stainless Steel (Mexico), para. 158).
582Panel Report, para. 7.173 (quoting Appellate Body Report, US – Stainless Steel (Mexico), para. 160).
583Panel Report, paras. 7.174 and 7.175 (referring to Appellate Body Report, US – Stainless Steel
(Mexico), para. 160).
584Panel Report, para. 7.175 (referring to Appellate Body Report, US – Stainless Steel (Mexico) ,
para. 161).
585Panel Report, para. 7.176 (referring to Appellate Body Report, US – Stainless Steel (Mexico) ,
para. 161).

which "establishes that the WTO dispute settlement system is intended to provide security and
predictability to the multilateral trading system".
586 The Panel agreed that such security and
predictability may "be furthered by the development of consistent jurisprudence and applying it to the
same legal questions, absent cogent reasons to do otherwise".587 However, while concluding that "it is
obviously incumbent upon any panel to consider pr ior adopted Appellate Body reports, as well as
adopted panel reports, and adopt ed GATT panel reports, in undertaking the objective assessment
required by Article 11" 588, the Panel said it did not believe that "the development of binding
jurisprudence is a contemplated element to enable the dispute settlement system to provide security
and predictability to the multilateral trading system."589
255. The Panel reasoned as follows:
Clearly, it is important for a panel to have cogent reasons for any
decision it reaches, regardless of whether or not there are any
relevant adopted reports, and whethe r or not the panel follows such
reports. ... In our view, however, a panel cannot simply follow the
adopted report of another panel, or of the Appellate Body, without
careful consideration of the facts and arguments made by the parties
in the dispute before it. To do so would be to abdicate its
responsibilities under Article 11. By the same token, however,
neither should a panel make a finding different from that in an
adopted earlier panel or Appellate Body report on similar facts and
arguments without careful consider ation and explanation of why a
different result is warranted, and assuring itself that its finding does
not undermine the goals of the system.
590 (emphasis omitted)
256. Consequently, while the Panel said it "share[d] a number of concerns" expressed by the panel
in US – Stainless Steel (Mexico) , the Panel recognized that the Appellate Body had reversed the
findings of that panel and that th e Appellate Body report had "gained legal effect through adoption by
the DSB."591 The Panel also noted that "this continu es a series of consistent recommendations made
by the DSB over the past several years following re ports that addressed the same issues based largely
on the same arguments."592
257. The Panel further observed that:
In addition to the goal of providing security and predictability to the
multilateral trading system, ... Article 3.3 of the DSU provides that
"[t]he prompt settlement of situa tions in which a Member considers

586Panel Report, para. 7.179.
587Panel Report, para. 7.179.
588Panel Report, para. 7.179.
589Panel Report, para. 7.179.
590Panel Report, para. 7.180.
591Panel Report, para. 7.181.
592Panel Report, para. 7.181.

that any benefits accruing to it directly or indirectly under the
covered agreements are being impaired by measures taken by another
Member is essential to the effective functioning of the WTO and the
maintenance of a proper balance between the rights and obligations
of Members". Given the consistent adopted jurisprudence on the
legal issues that are before us with respect to simple zeroing in
periodic reviews, we consider that providing prompt resolution to
this dispute in this manner will best serve the multiple goals of the
DSU, and, on balance, is furthered by following the Appellate Body's
adopted findings in this case.
593
258. Based on this analysis, the Panel concluded th at the United States had acted inconsistently
with its obligations under Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping
Agreement by applying simple zeroing in 29 periodic revi ews. Having reached this conclusion, the
Panel declined to rule on the European Communities' claims under Articles 2.1, 2.4, 2.4.2, and 11.2 of
the Anti-Dumping Agreement and Article VI:1 of the GATT 1994.594
B. Arguments of the Participants and the Third Participants
259. On appeal, the United States argues that the use of simple zeroing in periodic reviews rests on
a permissible interpretation of the Anti-Dumping Agreement . According to the United States, the
Panel in this dispute reached the same conclusion. Nevertheless, the Panel ultimately found that the
United States had acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994 by applying simple zero ing in 29 periodic reviews. The United States
contends that this finding was based on an imprope r application of the standard of review set out
under Article 17.6(ii) of the Anti-Dumping Agreement and should be reversed.
260. The United States further argues that Article 2.1 of the Anti-Dumping Agreement and
Article VI of the GATT 1994 "do not define 'dumping' and 'margins of dumping' so as to require that
export transactions be examined at an aggregate level". 595 Instead, the definition of dumping in these
provisions "describes the real-world commercial c onduct by which a product is imported into a
country, i.e., transaction by transaction". 596 Thus, there is no reason why a Member may not
"establish the 'margin of dumping' on the basis of the total amount by which the transaction-specific
export prices are less than the transaction-specific normal values".597

593Panel Report, para. 7.182.
594Panel Report, para. 7.183.
595United States' other appellant's submission, para. 60 (referring to Appellate Body Report, US –
Zeroing (Japan), para. 140).
596United States' other appellant's submission, para. 60 (referring to Panel Report, US – Zeroing (EC) ,
para. 7.285).
597United States' other appellant's submission, para. 67 (quoting Panel Report, US – Softwood Lumber V
(Article 21.5 – Canada), para. 5.28).

261. The United States adds that "the term 'margin of dumping', as used elsewhere in the
GATT 1994 and the [ Anti-Dumping Agreement], does not refer exclusively to the aggregated results
of comparisons for the 'product as a whole'."
598 The United States disagrees with the Appellate
Body's finding that a "determination of dumping with respect to an exporter is properly made not at
the level of individual export transactions, but on th e basis of the totality of an exporter's transactions
of the subject merchandise over the period of investigation." 599 For the United States, there is nothing
in the Anti-Dumping Agreement that directs the calculation of a margin of dumping to be done only
"at the level of multiple transactions", nor any text that would preclude the calculation of a margin of
dumping on a transaction-specific level.600
262. By contrast, the European Communities argues that it is clear from Articles VI:1 and VI:2 of
the GATT 1994 and various provisions in the Anti-Dumping Agreement that "dumping" and "margin
of dumping" are "exporter-specific concepts", and th at dumping "is also product-related, in the sense
that an anti-dumping duty is a levy in respect of the product that is investigated and found to be
dumped".601 In the European Communities' view, the notion that dumping and a margin of dumping
can exist at the level of an individual transac tion runs counter to the basic disciplines of the Anti-
Dumping Agreement , including the requirement that the determination of dumping be made on the
basis of all of an exporter's transactions over a period of time. 602 The European Communities argues,
therefore, that the interpretation put forth by the United States is not a permissible one.603 If, however,
the Appellate Body decides to overturn the findin g of the Panel, then th e European Communities
refers to its conditional appeal wherein it asks the A ppellate Body to reverse "that part of the Panel
Report that agrees with the United States". 604 The European Communities urges the Appellate Body
to consider the present matter in the light of findings in US – Stainless Steel (Mexico) on the question
of precedent, because the present case cannot be distinguished on facts. 605 I n t h e E u r o p e a n
Communities' view, the Appellate Body can rever se its previous decision only for new and cogent
reasons, which do not exist in this case. Furthe r, the European Communities disagrees with the
United States' proposition that Article 17.6(ii) of the Anti-Dumping Agreement "override[s]" or
"replace[s]" the provisions of the DSU; rather, the European Communities agrees with the Appellate

598United States' other appellant's submission, para. 68.
599United States' other appellant's submission, para. 71 (quoting Appellate Body Report, US – Stainless
Steel (Mexico), para. 98).
600United States' other appellant's submission, para. 72.
602European Communities' appellee's submission, para. 21 (referring to Appellate Body Report, US –
Stainless Steel (Mexico), paras. 97-99).

Body that Article 17.6 "supplements" the provisions of the DSU. 606 The European Communities adds
that the Panel followed the Appellate Body Report in US – Stainless Steel (Mexico) and thus complied
with its obligations under Article 11 of the DSU in this case.
263. Brazil, India, Japan, Korea, Norway, and Th ailand generally agree with the European
Communities. Brazil and Japan further submit that the Appellate Body should uphold the Panel's
finding that zeroing, as applied by the USDOC in th e 29 periodic reviews at issue in this appeal, is
inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994. 607
In essence, they argue that these provisions establish a requirement that "dumping" and "margins of
dumping" be established by reference to the product under consideration and to individual exporters,
and not in relation to specific models or subsets of low-priced transactions. Brazil and Japan also
argue that there must be consistent treatment of dumping and margins of dumping for all purposes and
stages of anti-dumping proceedings because these te rms have the same meaning throughout the Anti-
Dumping Agreement.
C. Simple Zeroing in Periodic Reviews
264. We begin our analysis by examining whether th e Panel misapplied the standard of review set
out under Article 17.6(ii) of the Anti-Dumping Agreement . Next, we consider the United States'
arguments insofar as they relate to the interpre tation and operation of the terms "dumping" and
"margin of dumping" as they appear in the Anti-Dumping Agreement and Article VI of the
GATT 1994. In particular, we evaluate whether "dumping" and "margin of dumping" are exporter- or
importer-related concepts and whether they can be found to exist at the transaction- or importer-
specific levels for the purpose of Article 9.3 of the Anti-Dumping Agreement.
1. Article 17.6 of the Anti-Dumping Agreement
265. On appeal, the United States argues that the Pane l misapplied the standard of review set out
under Article 17.6(ii) of the Anti-Dumping Agreement . According to the United States, the Panel
viewed the Anti-Dumping Agreement "as admitting of more than one permissible interpretation" and
considered that the use of zeroing in periodic reviews rests "on one of those interpretations". 608 On
this basis, the United States argues that the Panel should have found that the application of simple

606European Communities' appellee's submission, paras. 64 and 65 (referring to United States' other
appellant's submission, para. 52; and Appellate Body Report, US – Hot-Rolled Steel, para. 62).
607Brazil's third participant's submission, paras. 39-93; India's statement at the oral hearing; Japan's
third participant's submission, para. 82; Korea's third pa rticipant's submission, para. 4; Norway's statement at
the oral hearing; Thailand's statement at the oral hearing.
608United States' other appellant's submission, para. 51. See Panel Report, paras. 7.162-7.169, and

zeroing in the 29 periodic reviews at issue was permissible under the Anti-Dumping Agreement .
609
The United States suggests that the Panel's depa rture from Article 17.6(ii) appears to rely on
Articles 3.2 and 3.3 of the DSU, but notes that Article 1.2 specifies that the provisions of the DSU are
"'subject to' the special or additional rules listed in Appendix 2 to the DSU" 610, which includes
Article 17.6(ii) of the Anti-Dumping Agreement . The United States adds that Article 17.6(ii) was
negotiated "as a recognition that some provisions of the [ Anti-Dumping Agreement ] would be
susceptible to multiple permissible interpretations". 611 As we see it, the United States' appeal in this
regard is predicated on the existence of two permissible interpretations.612
266. The European Communities contends that th e United States' interpretation cannot be
"permissible" within the meaning of Article 17.6(ii) of the Anti-Dumping Agreement "[i]f all of the
interpretative elements in the Vienna Convention support the position of the European Communities,
and disprove the position of the United States." 613 According to the European Communities, 15 past
Appellate Body and panel reports have confirmed the correct lega l interpretations of the GATT 1994
and the Anti-Dumping Agreement with respect to this matter. 614 Further, the Eu ropean Communities
disagrees with the United States' proposition that Article 17.6(ii) of the Anti-Dumping Agreement
"overrides" or "replaces" the provisions of the DS U; rather, the European Communities agrees with
the Appellate Body that Article 17.6 "supplements" the provisions of the DSU. 615 The European
Communities adds that the Panel followed previous Appellate Body findings and thus complied with
its obligations under Article 11 of the DSU in this case. In the European Communities' view, "it is for
the Appellate Body to change its own mind; not for a panel to do it on the Appellate Body's
behalf."616
267. Article 17.6(ii) consists of two sentences. The first sentence clarifies that panels are charged
with the obligation to interpret the provisions of the Anti-Dumping Agreement "in accordance with
customary rules of interpretation of public inte rnational law". The sa me language is found in

609United States' other appellant's submission, para. 51.
610United States' other appellant's submission, para. 52.
611United States' other appellant's submission, para. 53.
612At the oral hearing, the United States was rep eatedly asked, in the light of its reliance on
Article 17.6(ii) of the Anti-Dumping Agreement, whether it accepted that there were at least two permissible
interpretations of the Anti-Dumping Agreement and the GATT 1994 in respect of zeroing: that of the United
States and that of the European Communities. Ultimat ely, the United States accepted that the Panel had found
that there were two permissible interpretations and suppor ted the Panel in this regard. It would follow that the
United States accepts, at least for the purposes of th is appeal, that there ar e indeed, two permissible
interpretations that fall within the scope of the second se ntence of Article 17.6(ii): that of the United States and
that of the European Communities.
613European Communities' appellee's submission, para. 43. (original emphasis)
615European Communities' appellee's submission, paras. 64 and 65 (referring to United States' other
appellant's submission, para. 52; and Appellate Body Report, US – Hot-Rolled Steel, para. 62).

Article 3.2 of the DSU.617 Panels examining claims under the Anti-Dumping Agreement are therefore
required to apply the customary rules of treaty in terpretation codified in Articles 31 and 32 of the
Vienna Convention. Article 31(1) of the Vienna Convention provides that a "treaty shall be
interpreted in good faith in accordance with the or dinary meaning to be given to the terms of the
treaty in their context and in the light of its object and purpose." 618 Article 32 further stipulates that
"recourse may be had to supplementary means of interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the
application of [A]rticle 31 or to determine the meaning". The latter app lies when interpretation
according to Article 31 leaves the meaning ambiguous or obscure, or leads to a result that is
manifestly absurd or unreasonable. The customary rules of treaty interpretation apply to any treaty, in
any field of public international law, and not just to the WTO agreements. As the Appellate Body has
said, they "impose certain common disciplines upon treat y interpreters, irrespective of the content of
the treaty provision being examined and irrespective of the field of international law concerned."619
268. The principles of interpretation that are set out in Articles 31 and 32 are to be followed in a
holistic fashion. The interpretative exercise is e ngaged so as to yield an interpretation that is
harmonious and coherent a nd fits comfortably in the treaty as a whole so as to render the treaty
provision legally effective. A word or term may have more than one meaning or shade of meaning,
but the identification of such meanings in isola tion only commences the process of interpretation, it
does not conclude it. Nor do multiple meanings of a word or term automatically constitute
"permissible" interpretations within the meaning of Article 17.6(ii). Instead, a treaty interpreter is
required to have recourse to context and object and purpose to elucidate the relevant meaning of the
word or term. This logical progression provides a framework for proper interpretative analysis. At
the same time, it should be kept in mind that treat y interpretation is an integrated operation, where
interpretative rules or principles must be understood and applied as connected and mutually
reinforcing components of a holistic exercise.
269. The second sentence of Article 17.6(ii) imposes an obligation on panels that is not found
elsewhere in the covered agreements. It stipulates that:

617Clearly, the first sentence of Article 17.6(ii) involves no "conflict" with the DSU but, rather,
confirms that the usual rules of treaty interpretation under the DSU also apply to the Anti-Dumping Agreement.
618Articles 31(2) of the Vienna Convention defines what constitutes "context" for the purpose of
interpretation and Article 31(3) provides for elements that an interpreter has to take into account together with
the context.
619Appellate Body Report, US – Hot-Rolled Steel , para. 60. The parties to a particular treaty might
agree upon rules of interpretation for that treaty which differ from the rules of interpretation in Articles 31
and 32 of the Vienna Convention. (Ibid., footnote 40) But this is not the case here.

Where the panel finds that a relevant provision of the
Agreement admits of more than one permissible
interpretation, the panel shall find the authorities'
measure to be in conformity with the Agreement if it
rests upon one of those permissible interpretations.

270. The Appellate Body has reasoned that the second sentence of Article 17.6(ii) presupposes
"that application of the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention
could give rise to, at least, two inte rpretations of some provisions of the Anti-Dumping Agreement,
which, under that Convention, would both be ' permissible interpretations'."
620 Where that is the case,
a measure is deemed to be in conformity with the Anti-Dumping Agreement "if it rests upon one of
those permissible interpretations." As the A ppellate Body has said, "[i]t follows that, under
Article 17.6(ii) of the Anti-Dumping Agreement, panels are obliged to determine whether a measure
rests upon an interpretation of th e relevant provisions of the Anti-Dumping Agreement which is
permissible under the rules of treaty interpretation in Articles 31 and 32 of the Vienna
Convention."621
271. The second sentence of Article 17.6(ii) must theref ore be read and applied in the light of the
first sentence. We wish to make a number of ge neral observations about the second sentence. First,
Article 17.6(ii) contemplates a sequential analysis. The first step requires a panel to apply the
customary rules of interpretation to the treaty to see what is yielded by a conscientious application of
such rules including those codified in the Vienna Convention. Only after engaging this exercise will a
panel be able to determine whether the second senten ce of Article 17.6(ii) applies. The structure and
logic of Article 17.6(ii) therefore do not permit a pane l to determine first whether an interpretation is
permissible under the second sentence and then to seek validation of that permissibility by recourse to
the first sentence.
272. Secondly, the proper interpretation of the second sentence of Article 17.6(ii) must itself be
consistent with the rules and principles set out in the Vienna Convention. This means that it cannot
be interpreted in a way that w ould render it redundant, or that derogates from the customary rules of
interpretation of public international law. However, the second sentence allows for the possibility that
the application of the rules of the Vienna Convention may give rise to an interpretative range and, if it
does, an interpretation falling within that range is permissible and must be given effect by holding the
measure to be in conformity with the covered agre ement. The function of the second sentence is thus

620Appellate Body Report, US – Hot-Rolled Steel, para. 59. (original emphasis)
621Appellate Body Report, US – Hot-Rolled Steel , para. 60 (original emphasis) (referring to Appellate
Body Report, EC – Bed Linen , footnote 36 to paras. 63-65; and Appellate Body Report, Thailand – H-Beams,
footnote 36 to para. 127).

to give effect to the interpretative range rather th an to require the interpreter to pursue further the
interpretative exercise to the point where only one interpretation within that range may prevail.
273. We further note that the rules and principles of the Vienna Convention cannot contemplate
interpretations with mutually contradictory results. Instead, the enterprise of interpretation is intended
to ascertain the proper meaning of a provision; one that fits harmoniously with the terms, context, and
object and purpose of the treaty. 622 The purpose of such an exercise is therefore to narrow the range
of interpretations, not to generate conflicting, co mpeting interpretations. Interpretative tools cannot
be applied selectively or in isolation from one anothe r. It would be a subvers ion of the interpretative
disciplines of the Vienna Convention if application of those disciplines yielded contradiction instead
of coherence and harmony among, and effect to, all relevant treaty provisions. Moreover, a
permissible interpretation for purposes of the second sentence of Article 17.6(ii) is not the result of an
inquiry that asks whether a provision of domestic law is "necessarily excluded" by the application of
the Vienna Convention. Such an approach subverts the hier archy between the treaty and municipal
law. It is the proper interpretation of a cove red agreement that is the enterprise with which
Article 17.6(ii) is engaged, not whether the treaty can be interpreted consistently with a particular
Member's municipal law or with municipal laws of Members as they existed at the time of the
conclusion of the relevant treaty.
274. In the present case, the United Stat es argues that the Panel viewed the Anti-Dumping
Agreement "as admitting of more than one permissible in terpretation" and considered that the use of
zeroing in periodic reviews rests "on one of those interpretations". 623 By contrast, the European
Communities and Brazil emphasize that, whilst the Panel may have made an intermediate statement to
the effect that the United States' interpretation w as permissible, this was not the Panel's ultimate
finding.624
275. We are not required in this case to determine wh ether the Panel considered the use of zeroing
in periodic reviews to rest on a permissible interpre tation of the relevant provisions of the covered
agreements because, now that the matter is before us on appeal, we must decide whether the Panel
erred in finding that the United States acted inconsistently with Article 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994. In so doing, we must determine whether the second
sentence of Article 17.6(ii) is of application. It is to this issue that we now turn.

622Recourse to supplementary means may also be had under Article 32 of the Vienna Convention.
623United States' other appellant's submission, para. 51. See Panel Report, paras. 7.162-7.169 and
footnote 131 to para. 7.169. See also ibid., para. 9.4, of the separate opinion.
624European Communities' responses to questioning at the oral hearing; Brazil's responses to
questioning at the oral hearing.

2. The Concept of "Dumping" and "Margins of Dumping" in the Anti-Dumping
Agreement
276. The Anti-Dumping Agreement establishes disciplines relating to the use of anti-dumping
measures; it also aims to ensure Members' ability to counter injurious dumping in accordance with
such disciplines.
277. As the United States points out, this dispute "is ultimately about the definitions of 'dumping'
and 'margin of dumping'."625 In particular, the disagreement between the participants flows from their
respective interpretations of the terms "dumping" and "margin of dumping" in Article 9.3 of the Anti-
Dumping Agreement and Article VI:2 of the GATT 1994, and whether these terms apply at the level
of the product under consideration or at the level of an individual export transaction.
278. As we understand it, the United States' position th at simple zeroing is permitted in periodic
reviews under Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT is premised
on the argument that "dumping" and "margin of dum ping" can be found to exist at the level of
individual transactions and for individual importers when assessing the anti-dumping duty liability for
each importer. Moreover, the United States argues that "the definition of these terms, used in a wide
variety of contexts throughout the provisions of GATT 1994 and the [ Anti-Dumping Agreement ],
incorporate a flexibility of meaning that permits th ese terms to be understood based on the context in
which they are used."626
279. First, we recall that "dumping" is defined in Article VI:1 of the GATT 1994 as occurring
when a "product" of one country is introduced into the commerce of another country at less than the
normal value of that product. 627 Consistent with this definition, Ar ticle VI:1 states that dumping is to
be "condemned" if it causes, or threatens to cause, ma terial injury to the domestic industry producing
a like product. In turn, Article VI:2 lays down th at, "[i]n order to offset or prevent dumping, a
[Member] may levy on any dumped product an an ti-dumping duty not greater in amount than the
margin of dumping in respect of such product."
280. This definition of "dumping" is carried over into the Anti-Dumping Agreement by Article 2.1,
which states that a product is to be considered as being "dumped" if the "export price" of "the
product" "exported" from one country to another is less than the comparable price for the "like

625United States' other appellant's submission, para. 59.
626United States' other appellant's submission, para. 73. The United States further argues that the
Appellate Body's findings in US – Stainless Steel (Mexico) "resulted from imposing an inflexibly rigid definition
upon the terms 'dumping' and 'margin of dumping' that ignored the ordinary meaning of the word 'product,'
which can have either a transaction-specific or collective meaning, or both, depending on the context." (Ibid.)
627See Appellate Body Report, US – Stainless Steel (Mexico) , para. 83; Appellate Body Report, US –
Zeroing (Japan), para. 108; and Appellate Body Report, US – Zeroing (EC), para. 125.

product" when destined for consumption in the "exp orting" country. By virtue of the opening phrase
of Article 2.1—"[f]or the purpose of this Ag reement"—this definition of "dumping" applies
throughout the Anti-Dumping Agreement .628 In the interpretation of the concept of "dumping", the
discipline imposed by the opening phrase of Article 2.1 of the Anti-Dumping Agreement is important
because it requires that the definitional content of "dumping" must be capable of application
throughout the Anti-Dumping Agreement in a coherent fashion. This definition cannot be of variable
content or application.
281. Turning to the concept of "margin of dumping", we note that Article VI:2 speaks of the
difference between the normal value and the export price and establishes the link between "dumping"
and "margin of dumping".
629 Article VI:2 further clarifies that the "margin of dumping" is in respect
of the dumped "product". In our view, there must be clarity as to the definition of "dumping" because
it becomes a fundamental part of the basic concepts that underlie the Anti-Dumping Agreement, such
as the "margin of dumping".
282. Mere scrutiny of the particular terms—such as "product" and "export price"—in Article 2.1
does not resolve the issue of whether the conc ept of dumping is concerned with individual
transactions or whether it is necessarily an aggregativ e concept attributable to an exporter. However,
as we have indicated above, the interpreta tive exercise that is mandated under the Vienna Convention
is a holistic and integrated one that cannot result in interpretations that are mutually contradictory.
We thus turn to examine the context found in various other provisions of the Anti-Dumping
Agreement in order to better elucidate what the concept of "dumping" means.
283. One aspect to be considered is that a number of provisions in the Anti-Dumping Agreement
require a determination of dumping by reference to an exporter and to a product under consideration.
More specifically, Article 5.8 requires that an an ti-dumping investigation be terminated if the
investigating authority determines that the margin of dumping is de minimis, which is defined as less
than two per cent, expressed as a percentage of th e export price. A plain reading of Article 5.8
indicates that the term "margin of dumping" as used in that provision refers to a single margin.
Moreover, the first sentence of Article 6.10 of the Anti-Dumping Agreement stipulates that authorities
"shall, as a rule, determine an individual marg in of dumping for each known exporter or producer
concerned of the product under investigation". Li kewise, Article 9.5, dealing with new shipper
reviews, requires the authorities to determine an individual margin of dumping for any exporter that

628See Appellate Body Report, US – Stainless Steel (Mexico), para. 84; and Appellate Body Report,
US – Zeroing (Japan) , para. 109. See also Appellate Body Report, US – Zeroing (EC) , para. 125; and
Appellate Body Report, US – Softwood Lumber V, para. 93.
 629See Appellate Body Report, US – Zeroing (EC) , para. 125; Appellate Body Report, US – Stainless
Steel (Mexico), para. 85; and Appellate Body Report, US – Zeroing (Japan), para. 110.

had not exported the product during the period of investigation. These provisions suggest that a single
margin of dumping is to be established for each i ndividual exporter or producer investigated as they
do not refer to multiple margins occurring at the level of individual transactions.
630
284. We further note that the Anti-Dumping Agreement deals with "injurious dumping", and the
very purpose of an anti-dumping duty is to counteract the material injury caused, or threatened to be
caused, by "dumped imports" to the domestic industry producing a "like product". 631 Under the Anti-
Dumping Agreement, the concepts of "dumping", "injury", and "margin of dumping" are interlinked
and should be considered and inte rpreted in a coherent and consistent manner for all parts of the Anti-
Dumping Agreement.632
285. We fail to see a textual or contextual basis in the GATT 1994 or the Anti-Dumping Agreement
for treating transactions that occur above normal va lue as "dumped", for purposes of determining the
existence and magnitude of dumping in the original investigation, and as "non-dumped", for purposes
of assessing the final liability for payment of anti- dumping duties in a periodic review. If, as a
consequence of zeroing, the results of certain comparisons are disregarded only for purposes of
assessing final liability for payment of anti-dumping duties in a periodic review, a mismatch is created
between the product considered "dumped" in the original investigation and the product for which anti-
dumping duties are collected. This is not consonant with the need for consistent treatment of a

630See Appellate Body Report, US – Zeroing (EC) , para. 128; and Appellate Body Report, US –
Stainless Steel (Mexico) , para. 89. We recall that, in US – Softwood Lumber V (Article 21.5 – Canada) , the
Appellate Body found that the use of zeroing in calculating the margins of dumping under the T-T comparison
methodology in the original investigation at issue in that dispute was inconsistent with the "fair comparison"
requirement in Article 2.4 of the Anti-Dumping Agreement. (Appellate Body Report, US – Softwood Lumber V
(Article 21.5 – Canada), para. 146) Moreover, in US – Zeroing (Japan), the Appellate Body found that zeroing
in periodic reviews is, as such, inco nsistent with Article 2.4 of the Anti-Dumping Agreement. (Appellate Body
631Appellate Body Report, US – Stainless Steel (Mexico) , para. 98. Thus, Article 3.1 of the Anti-
Dumping Agreement stipulates that a determination of injury shall be based on an objective examination of both
the volume of the dumped imports and the effect of the dumped imports on prices in the domestic market for
like products, and of the consequent impact of the dumped imports on domestic producers of such like products.
Furthermore, Article 3.5 lays down that "[t]he authoritie s shall also examine any known factors other than the
dumped imports which at the same time are injuring the domestic industry, and the injuries caused by these
other factors must not be attributed to dumped imports."
632Appellate Body Report, US – Stainless Steel (Mexico) , para. 94. See also Appellate Body Report,
US – Zeroing (Japan), para. 114.

product at the various stages of anti-dumping duty proceedings.633
286. Article 9.3.1 of the Anti-Dumping Agreement is subject to the overarching requirement in
Article 9.3 that the amount of anti-dumping dut y "shall not exceed the margin of dumping as
established under Article 2" of that Agreement. Based on an examination of the context of
Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement, the Appellate Body
has found that the term "margin of dumping", as used in those provisions, relates to the "exporter" of
the "product" under consideration. Furthermore, the Appellate Body has clarified that the definitions
of "dumping" and "margin of dumping" apply in the same manner throughout the Anti-Dumping
Agreement and do not vary under the various provisions of the Agreement. 634 Thus, under
Article VI:2 and Article 9.3, the margin of dum ping established for an exporter in accordance with
Article 2 operates as a ceiling for the total amount of anti-dumping duties that can be levied on the
entries of the subject merchandise from that exporter. 635 The Appellate Body has seen no basis in
Article VI:2 of the GATT 1994 or in Articles 2 and 9.3 of the Anti-Dumping Agreement for
disregarding the results of comparisons where th e export price exceeds the normal value. As the
Appellate Body has said, "other provisions of the Anti-Dumping Agreement are explicit regarding the
permissibility of disregarding certain matters."636
287. For all these reasons, we are unable to agree with the United States' view that "dumping" may
be determined at the level of individual tran sactions, and that multiple comparison results are
"margins of dumping" in themselves. Ra ther, as the Appellate Body held in US – Stainless Steel
(Mexico), "[a] proper determination as to whether an e xporter is dumping or not can only be made on

 633See Appellate Body Report, US – Zeroing (Japan) , para. 128; and Appellate Body Report, US –
Softwood Lumber V , para. 99. The Appellate Body has previously found that, "while investigating authorities
may define the scope of a product for an anti-dumping investigation, that definition applies throughout the
investigation." (Appellate Body Report, US – Stainless Steel (Mexico) , para. 106) Moreover, the Appellate
Body has explained that "'[d]umping', within the meaning of the Anti-Dumping Agreement, can 'be found to
exist only for the product under investigation as a whole' , by fully taking into account all the transactions
pertaining to that product." ( Ibid., referring to Appellate Body Report, US – Softwood Lumber V , para. 93;
Appellate Body Report, US – Zeroing (Japan) , para. 115; and Appellate Body Report, US – Zeroing (EC) ,
para. 127))
634See Appellate Body Report, US – Zeroing (Japan) , para. 114; and Appellate Body Report, US –
Stainless Steel (Mexico), paras. 95 and 96.
635Appellate Body Report, US – Stainless Steel (Mexico), para. 102.
636Appellate Body Report, US – Stainless Steel (Mexico) , para. 103; see also Appellate Body Report,
US – Softwood Lumber V, para. 100. For example, Article 9.4 of the Anti-Dumping Agreement expressly directs
investigating authorities to disregard "any zero and de minimis margins" under certai n circumstances when
calculating the weighted average margin of dumping to be applied to exporters that have not been individually
investigated. Similarly, Article 2.2.1, which deals with the calculation of normal va lue, sets forth the only
circumstances under which sales of the like product in the exporting country can be disregarded.

the basis of an examination of the exporter's prici ng behaviour as reflected in all of its transactions
over a period of time."
637
3. Periodic Reviews and Importer-Specific Duty Assessment
288. The United States expresses concern regarding the implications for importer-specific duty
assessment in periodic reviews that flow from the Appe llate Body's interpretation of Article 9.3 of the
Anti-Dumping Agreement in previous disputes.
289. The United States argues that, "if a Member is unable to calculate and assess the duties on a
transaction-specific basis, importers of the mercha ndise for which the export price is less than normal
value to the greatest extent will actually have an ad vantage over their competitors who import at fair
value prices because they will enjoy the benefit of o ffsets that result from their competitors' fairly
priced imports."638
290. As the Appellate Body has previously noted, various provisions of the Anti-Dumping
Agreement, including Articles 5.8, 6.10, 9.5, and 8.1, make clear that "dumping" and "margins of
dumping" relate to the pricing behaviour of the relevant "exporter or foreign producer". 639 Thus, to
the extent that anti-dumping measures are intende d to create incentives for a change in pricing
behaviour as the United States argues, the party to be "encouraged" is the exporter or producer, rather
than the importer. This is "not altered by the fact that the export price may be the result of negotiation
between the importer and the exporter."640
291. The Appellate Body has not suggested that individual importers must be assessed anti-
dumping duties at the identical rate as that of all ot her importers and it has not held that "an importer's
anti-dumping margin must be averaged out". 641 Instead, the Appellate Body has recognized that,
under Article 9.3, "anti-dumping duty liability can be assessed in relation to a specific importer on the
basis of its transactions from the relevant exporter." 642 Furthermore, the Appellate Body has reasoned

637Appellate Body Report, US – Stainless Steel (Mexico), para. 98.
638United States' other appellant's submission, para. 95.
639Article 6.10 of the Anti-Dumping Agreement requires, "as a rule", th at investigating authorities
determine a "margin of dumping for each known exporter or producer concerned of the product under
investigation." (emphasis added) (See also Appellate Body Report, US – Softwood Lumber V (Article 21.5 –
Canada), para. 94) Similarly, Article 8.1 of the Anti-Dumping Agreement speaks of "voluntary undertaking
from any exporter to revise its prices or to cease exp orts to the area in question at dumped prices ." (emphasis
added) (See also Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , paras. 208 and 217) In
Mexico – Anti-Dumping Measures on Rice, the Appellate Body confirmed that the term "margin of dumping" in
the Anti-Dumping Agreement in general refers to the individual margins of dumping for exporters or foreign
producers.
640Appellate Body Report, US – Stainless Steel (Mexico), para. 95. (footnote omitted)
641Appellate Body Report, US – Stainless Steel (Mexico), para. 112.
642Appellate Body Report, US – Stainless Steel (Mexico), para. 112.

that the possibility that aggregation of multiple comparisons results in a periodic review would yield a
negative value for a particular importer "would not mean that the authorities would be required ... to
compensate an importer for the amount of that ne gative value (that is, when export prices exceed
normal value)."643
4. Prospective Normal Value Systems
292. We turn next to examine the United States' arguments relating to the calculation of the
liability for payment of anti-dumping duties on the basis of a so-called "prospective normal value" 644
referred to in Article 9.4(ii) of the Anti-Dumping Agreement.
293. The United States argues that Article 9.4(ii) of the Anti-Dumping Agreement lends support to
the proposition that "dumping" may be interpreted in relation to individual export transactions. For
the United States, it would be "absurd to interpret Article 9 as requiring offsets between importers in a
retrospective assessment system while capping the importer's liability based on individual transactions
in a prospective system." 645 The United States further argues that accepting the interpretation that a
Member must aggregate the results of all comparisons on an exporter-specific basis would require that
retrospective reviews be conducted, even in a prosp ective normal value system, in order to take into
account all of the exporters' transactions. For the United States, this would, in effect, render
prospective normal value systems retrospective.
294. In addressing similar arguments by the United Stat es in previous appeals, the Appellate Body
has emphasized that the anti-dumping duty collected at the time of importation, "under a prospective
normal value system, does not represent the 'margin of dumping' under Article 9.3, which, as the
Appellate Body has found, is the margin of dumping for an exporter for all of its sales of the subject
merchandise into the country concerned."
646 This is not changed by the fact that, in such a system, the
liability for payment of anti-dumping duties may be final at the time of importation. Rather,
Article 9.3.2 contemplates that the amount of dutie s collected on a prospective basis is subject to
review pursuant to Article 9.3 of the Anti-Dumping Agreement, which provides that "[ t]he amount of
the anti-dumping duty shall not exceed the margin of dumping as established under Article 2."647

643Appellate Body Report, US – Zeroing (EC), footnote 234 to para. 131; Appellate Body Report, US –
Zeroing (Japan), para. 155.
644In a prospective normal value system, duties are assessed on the basis of the difference between a
"prospective normal value" and the prices of individual export transactions.
645United States' other appellant's submission, para. 89 (referring to Panel Report, US – Stainless Steel
(Mexico), para. 7.133).
646Appellate Body Report, US – Stainless Steel (Mexico), para. 120.
647Emphasis added.

295. Thus, Article 9.4(ii) does not mean that the basic disciplines governing the calculation of
margins of dumping, contained in Article VI of the GATT 1994 and Article 2 of the Anti-Dumping
Agreement, no longer apply. The collection of anti-dumping duties on the basis of a prospective
normal value is only an intermediate stage of collect ion, since it is subject to final assessment and "a
prompt refund, upon request", under Article 9.3.2. There is nothing in Article 9.4 that exempts
prospective normal value systems from the obligations under Article 9.3, including with respect to
refund procedures in respect of duties assessed on a prospective basis.
648
5. The "Mathematical Equivalence" Argument
296. The United States argues, as it has in previous appeals, that a prohibition of zeroing that
applies beyond the context of average-to-average comp arisons in investigations would be inconsistent
with the principle of effective treaty interpre tation, because it would render redundant the second
sentence of Article 2.4.2 including the targeted dumping methodology. 649 The United States also
questions the Appellate Body's reasoning dismis sing "the redundancy caused by mathematical
equivalence by concluding that it may be permissibl e to apply the targeted dumping methodology to a
subset of export transactions." 650 According to the United States, nothing in the language of
Article 2.4.2 provides for selecting a subset of transactions when conducting a targeted dumping
analysis. Moreover, the United States argues that the use of a subset of export transactions when
conducting a targeted dumping analysis would be contrary to the A ppellate Body's conclusion that
"all" export transactions should be considered when performing weighted average-to-weighted
average ("W-W") and weighted average-to-transaction ("W-T") comparisons.651
297. The W-T comparison methodology in the second sentence of Article 2.4.2 is an exception to
the two comparison methodologies provided in the fi rst sentence, which shall "normally" be used to
establish the "margins of dumping". 652 As the Appellate Body has said, "[b]eing an exception, the

648It is true that in a prospective normal value syst em individual export transactions at prices less than
normal value can attract liability for payment of anti-dumping duties, regardless of whether prices of other
export transactions exceed normal value. Similarly, under its retrospective system of duty collection, the United
States is free to assess duty liability on a transaction-sp ecific basis, but the total amount of anti-dumping duties
that are levied must not exceed the exporters' or foreign producers' margins of dumping. (See Appellate Body
Report, US – Zeroing (Japan), paras. 161 and 162)
649United States' other appellant's submission, paras. 100-102.
650United States' other appellant's submission, para. 105 (referring to Appellate Body Report, US –
Zeroing (Japan), para. 135).
651United States' other appellant's submission, para. 108.
652The second sentence of Article 2.4.2 reads:
A normal value established on a weig hted average basis may be compared
to prices of individual export transactions if the authorities find a pattern of
export prices which differ significantly among different purchasers, regions
or time periods, and if an explanation is provided as to why such differences
cannot be taken into account appropriately by the use of a weighted average-
to-weighted average or transaction-to-transaction comparison.

comparison methodology in the second sentence of Ar ticle 2.4.2 (weighted average-to-transaction)
alone cannot determine the interpretation of the two methodologies provided in the first sentence, that
is, transaction-to-transaction and weig hted average-to-weighted average." 653 Moreover, it could be
argued, in reverse, that permitting zeroing under th e first sentence of Article 2.4.2 would enable
investigating authorities to capture pricing patte rns constituting "targeted dumping", thus rendering
the third comparison methodology inutile.654
298. In any event, the fact that, under certain circumstances, the W-T comparison methodology
could produce results that are equivalent to t hose obtained through the application of the W-W
comparison methodology is insufficient to conclude that the second sentence of Article 2.4.2 is
thereby rendered ineffective. 655 Therefore, mathematical equivale nce is inconclusive as to whether a
transaction-specific or product-wide definition of dumping is required.
6. Historical Background
299. The United States argues that the concept of dumping has been historically understood to
apply to individual transactions. In support of its contention, the United States points to various
materials, including the 1960 Group of Experts Re port. The Group of Experts concluded that the
"'ideal method' for applying anti-dumping duties 'was to make a determination [...] of both dumping
and material injury in respect of each si ngle importation of the product concerned.'" 656 According to
the United States, the Appellate Body has previo usly misapprehended the relevance of the 1960
Group of Experts Report for purposes of interpreting Article VI of the GATT 1947. In particular, the
United States argues that the Appellate Body has "f ailed to explain why the fact that a particular
system for determining injury is administratively im practicable leads to the conclusion that Members,
when negotiating the Tokyo Round [Anti-Dumping] Code or the Uruguay Round [ Anti-Dumping
Agreement] necessarily agreed to a completely diffe rent concept of calculating a margin of
dumping, i.e., one that has no meaning in relation to individual transactions."
657

653Appellate Body Report, US – Softwood Lumber V (Article 21.5 – Canada), para. 97.
654Appellate Body Report, US – Zeroing (Japan) , para. 133 (original emphasis) (quoting Appellate
Body Report, US – Softwood Lumber V (Article 21.5 – Canada), para. 100.
655See Appellate Body Report, US – Softwood Lumber V (Article 21.5 – Canada), para. 99.
656United States' other appellant's submission, para. 76 (quoting 1960 Group of Experts Report,
para. 8). We note that the 1960 Group of Experts Report states that, although the ideal method to determine
dumping and injury was in respect of each single importation of the product concerned, this "was clearly
impracticable, particularly as regards injury". (1960 Group of Experts Report, para. 8) As the Appellate Body
said, in US – Softwood Lumber V (Article 21.5 – Canada), the "fact that making a determination of dumping and
injury for each importation was not considered practical could also be seen as implying that the Group of
Experts did not, in fact, endorse transaction-specific determinations of dumping." (Appellate Body Report, US –
Softwood Lumber V (Article 21.5 – Canada), para. 119 and footnote 197 thereto)
657United States' other appellant's submission, para. 78.

300. In US – Stainless Steel (Mexico) , the Appellate Body did not reason in the way the United
States suggests. Rather, the Appellate Body said that the 1960 Group of Experts Report "did not
resolve the issue of whether the negotiators of the Anti-Dumping Agreement intended to prohibit
zeroing".
658 The Appellate Body added that, "even if it were to assume that zeroing was permitted
under Article VI of the GATT 1947, Article VI of the GATT 1994 has to be interpreted now in
conjunction with the relevant provisions of the Anti-Dumping Agreement, such as Articles 2.1, 2.4,
2.4.2, and 9.3."659
301. The United States also refers to two GATT panel reports that dealt with the issue of
zeroing660, and several proposals submitted during the Uruguay Round 661, which allegedly
demonstrate that the negotiators were not able to agree on a general prohibition of zeroing. 662 The
United States adds that the text of Article VI of the GATT 1947 was not modified during the Uruguay
Round. According to the United States, it can be inferred, from the absence of a change in language
"that the drafters intended no change in meaning."663
302. The historical materials referred to by the United States were examined by the Appellate
Body in the appeals in US – Softwood Lumber V (Article 21.5 – Canada) and US – Stainless Steel
(Mexico). The Appellate Body observed in the latter case that:
[t]he Panel Reports in EC – Audio Cassettes (unadopted) and EEC –
Cotton Yarn (adopted), referred to by the United States, examined the
issue of zeroing under the provisions of the Tokyo Round Anti-
Dumping Code. The relevance of these panel reports is diminished
by the fact that the plurilateral Tokyo Round Anti-Dumping Code was
legally separate from the GATT 1947 and has, in any event, been
terminated. This Code was not in corporated into the WTO covered
agreements and, furthermore, it c ontained provisions that were less
detailed than those in the Anti-Dumping Agreement . ... Therefore,
whatever the legal status of zeroing under the Tokyo Round Anti-
Dumping Code , it is of little relevance for the interpretation of
differently phrased or new provisions of the Anti-Dumping
Agreement.
664
303. The Appellate Body further noted that the ne gotiating proposals referred to by the United
States reflected the positions of only some, but not a ll, of the negotiating parties. Thus, the Appellate

658Appellate Body Report, US – Stainless Steel (Mexico), para. 131.
659Appellate Body Report, US – Stainless Steel (Mexico), para. 131.
660United States' other appellant's submission, para. 79 (referring to GATT Panel Report, EC – Audio
Cassettes, ADP/136, 28 April 1995, unadopted; and GATT Panel Report, EEC – Cotton Yarn ,
adopted 30 October 1995, BISD 42S/17).
661See United States' other appellant's submission, footnote 87 to para. 79.
662United States' other appellant's submission, para. 79.
663United States' other appellant's submission, para. 79.
664Appellate Body Report, US – Stainless Steel (Mexico), para. 132.

Body was not persuaded that the historical ma terials referred to by the United States provided
guidance as to whether simple zeroing is permissible under Article 9.3 of the Anti-Dumping
Agreement.665 Nor are we.
D. Concurring Opinion
304. One Member of the Division wishes to make the following statement in relation to
section V.C.2.
305. Over a period of time, successive panels and the Appellate Body have engaged in a very
considerable interpretative enterp rise to determine whether the Anti-Dumping Agreement and
Article VI of the GATT 1994 prohibit the use of zeroing. At the heart of the debate is a contestation
as to the correct interpretation of the concept of dumping. The Appellate Body has interpreted
dumping to be an exporter-specific concept, requiri ng that a determination be made for the product
under consideration. By contrast, successive panels have found that dumping is permissibly
determined at the level of individual export transacti ons. To resolve this difference, the text, context,
and object and purpose have been carefully scru tinized, as well as supplementary means of treaty
interpretation. Each interpretation has found support in different places. These interpretative
exercises have not lacked for hermeneutic ingenuity , and each has generated its own puzzles: witness
the question of mathematical equivalence and the consequential issue of textual redundancy.666
306. This debate at once demonstrates the robustness of the WTO's system of dispute settlement,
but also its limits. The interpretation of the cove red agreements requires scrupulous adherence to the
disciplines of the customary rules of interpretation of public international law. Those disciplines are
directed towards arriving at a coherent and harmoni ous interpretation to develop an answer to an
interpretative problem and thereby provide certainty as to the rights and obligations of the parties.
Variability, contradiction, and uncertainty stalk the interpretative enterprise, but they are the
hallmarks of its failure, not its success. Just as the interpreter of a treaty strives for coherence, there is
an inevitable recognition that a treaty bears the imprin t of many hands. And what is left behind is a
text, sometimes negotiated to a point where an ag reement to regulate a matter could only be reached
on the basis of constructive ambiguity, carrying both the hopes and fears of the parties. Interpretation
is an endeavour to discern order, notwithstanding th ese infirmities, without adding to or diminishing
the rights and obligations of the parties.
307. Article 2.1 of the Anti-Dumping Agreement illustrates this problem. Nothing could be more

665See Appellate Body Report, US – Stainless Steel (Mexico), para. 130.
666See supra, paras. 297 and 298.

important than the definition of the concept of " dumping". It is foundational and applies throughout
the Agreement, as the clear wording of Article 2. 1 makes plain. It cannot have variable or
contradictory meanings, for that would infect the entire Agreement. Yet the definition is cast at a high
level of generality. The definition makes no attri bution of agency; it does not say who introduces a
product into the commerce of another country. Artic le 2.1 might so easily have included the words
"by an exporter", but it does not. So too, the defi nition might have referred to the product as a whole,
and not simply a product. The definition is inchoate, and thus it must be interpreted.
308. The Appellate Body has found contextual suppor t for its interpretation of "dumping" as a
product-wide and exporter-specific concept by reference to other provisions in the Anti-Dumping
Agreement. In particular, the Appellate Body has emph asized the significance of Articles 2.4, 2.4.2,
5.8, 6.10, 9.5, and 3.1 and concluded that the cumulative contextual force of these provisions is
dispositive of the meaning attaching to the concep t of "dumping", and excludes an interpretation of
dumping that is transaction-specific.
309. There can be little doubt that the Anti-Dumping Agreement requires aggregation. In
Article 6.10, an individual margin of dumping must be determined for each known exporter.
Article 3.1 requires an assessment of the volume of dumped imports and their effect. Save for the
most exceptional case where an importation consists only of a single transaction (for example, the
importation of a large piece of capital equipment), this is an exercise that requires a determination by
taking into account the entire volume of dumped imports. Under Article 5.8, a de minimis assessment
could not be made with respect to an individua l export transaction; and Article 9.5 requires a
determination of individual margins of dumping fo r any exporters who have not exported the product
during the period of investigation.
310. While aggregation is an unavoidable requirement of the Anti-Dumping Agreement , these
provisions are not clear as to what it is that mu st be aggregated. Does aggregation require the
aggregation of all comparison results, positive and ne gative, or does it suffice to aggregate only those
comparison results that are positive, having consider ed all transactions and determined which are
dumped and which are not. The Appellate Body has found that aggregation must give equal weight to
all comparison results if the exercise is to be fair and arrive at a determination for the product as a
whole; successive panels have found no such re quirement, save where the first methodology in
Article 2.4.2 refers in express terms to all comparable export transactions.
311. The interpretative endeavour has ranged far a nd wide. The Appellate Body has emphasized
that dumping is an exporter-specific concept. Pa nels have pointed out that the liability for anti-
dumping duties rests upon importers. The Appellate Body views its interpretation as one that respects

the differences in the prospective and retrospec tive systems of duty assessment; its critics think
otherwise.
312. There is little point in further rehearsing the fine points of these interpretations. In my view,
there is every reason to survey this debate with humility. There are arguments of substance made on
both sides; but one issue is unavoidable. In matter s of adjudication, there must be an end to every
great debate. The Appellate Body exists to clarif y the meaning of the covered agreements. On the
question of zeroing it has spoken definitively. Its decisions have been adopted by the DSB. The
membership of the WTO is entitled to rely upon these outcomes. Whatever the difficulty of
interpreting the meaning of "dumping", it cannot b ear a meaning that is both exporter-specific and
transaction-specific. We have sought to elucidat e the notion of permissibility in the second sentence
of Article 17(6)(ii). The range of meanings that may constitute a permissible interpretation does not
encompass meanings of such wide variability, and even contradiction, so as to accommodate the two
rival interpretations. One must prevail. The Appe llate Body has decided the matter. At a point in
every debate, there comes a time when it is more im portant for the system of dispute resolution to
have a definitive outcome, than further to pick ove r the entrails of battles past. With respect to
zeroing, that time has come.
313. For these reasons, I concur in the decision r eached by the Division in section E that the
United States acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2
of the GATT 1994 by using simple zeroing in periodic reviews.
E. Conclusion on the European Communities' Claim under Article 9.3 of the Anti-
Dumping Agreement and Article VI:2 of the GATT 1994
314. As noted above, Article 9.3.1 of the Anti-Dumping Agreement is subject to the overarching
requirement in Article 9.3 that the amount of anti-dumping duty "shall not exceed the margin of
dumping as established under Article 2" of that Agre ement. Also as noted above, under Article VI:2
of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement , the margin of dumping
established for an exporter in accordance with Article 2 operates as a ceiling for the total amount of
anti-dumping duties that can be levied on the entries of the subject merchandise from that exporter.
We see no basis in Article VI:2 of the GATT 1994 or in Articles 2 and 9.3 of the Anti-Dumping
Agreement for disregarding the results of comparisons where the export price exceeds the normal
value.
315. When applying "simple zeroing" in periodic reviews, the USDOC compares the prices of
individual export transactions against monthly wei ghted average normal values, and disregards the
amounts by which the export prices exceed the m onthly weighted average normal values, when

aggregating the results of the comparisons to cal culate the going-forward cash deposit rate for the
exporter and the duty assessment rate for the importer concerned. In this way, simple zeroing results
in the levy of an amount of anti-dumping duty that exceeds an exporter's margin of dumping, which,
under Article 9.3 of the Anti-Dumping Agreement , operates as the ceiling for the amount of anti-
dumping duty that can be levied in respect of the sales made by an exporter.
316. In the light of the above, we uphold
 the Panel's finding that the United States acted
inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 by
applying simple zeroing in 29 periodic reviews.
317. In our analysis, we have been mindful of the provisions of Article 17.6(ii) of the Anti-
Dumping Agreement. The analysis offered above, applying th e customary rules of interpretation of
public international law, does not allow for confli cting interpretations. We have found, by the
application of those rules, that zeroing is inconsistent with Article 9.3. A holding that zeroing is also
consistent with Article 9.3 would be flatly contradictory. Such contradiction would be repugnant to
the customary rules of treaty interpretation referre d to in the first sentence of Article 17.6(ii).
Consequently, it is not a permissible interpretati on within the meaning of Article 17.6(ii), second
sentence.
VI. The Seven Periodic Reviews
318. We now turn to consider the European Commun ities' claim that the Panel erred in finding
that, with respect to seven of the periodic re views challenged by the European Communities, the
European Communities had not shown that the simple zeroing methodology was used.667
A. Proceedings Before the Panel and the Panel's Findings
319. The European Communities submitted, together with its first written submission to the Panel,
a copy of the Issues and Decision Memorandum is sued by the USDOC in connection with 30 of
the 37 periodic reviews that the European Commun ities challenged. The United States agreed that
these memoranda demonstrated that "simple zeroing" was used in the relevant 30 reviews. 668 Asked

667Panel Report, para. 7.158. The seven periodic reviews at issue are: Steel Concrete Reinforcing Bars
from Latvia (Case I – No. 3) (Panel Exhibit EC-35); Stainless Steel Bar from France (Case V – No. 20) (Panel
Exhibit EC-47); Stainless Steel Bar from France (Case V – No. 21) (Panel Exhibit EC-48); Stainless Steel Bar
from Germany (Case IX – No. 33) (Panel Exhibit EC-57); Stainless Steel Bar from Germany (Case IX –
No. 34) (Panel Exhibit EC-58); Stainless Steel Bar from Italy (Case XI – No. 39) (Pan el Exhibit EC-62); and
Certain Pasta from Italy (Case XIII – No. 43) (Panel Exhibit EC-65).
668Panel Report, para. 7.145. One of these 30 periodic reviews was a preliminary determination that the
Panel had found not to be within its terms of reference. (Panel Report, para. 7.77) Accordingly, the Panel's
ultimate finding regarding the use of zeroing applied only with respect to 29 of the periodic reviews challenged
by the European Communities. (Panel Report, para. 8.1(e))

by the Panel why such memoranda had not been su bmitted for the remaining seven periodic reviews,
the European Communities responded that, unlike th e memoranda provided in connection with the
other 30 periodic reviews, those pertaining to th e seven reviews "did not discuss the use of zeroing
methodologies in the margin calculation". 669 The European Communities also submitted, together
with its first written submission to the Panel, the Federal Register Notice for each review containing
the USDOC's final periodic review results. Like the Issues and Decision Memorandum for each of
these reviews, the Federal Register Notice does not mention whether zeroing was applied in arriving
at the final results. 670 In addition, the European Commun ities supplied documentation in connection
with five of the seven periodic reviews at issue, consisting of printouts of the margin calculation
program that the USDOC allegedly used in each re view, and certain tables purportedly showing what
the results of the margin calculations would be with and without the use of zeroing.671
320. The Panel assessed the evidence submitted by the European Communities in separate
paragraphs corresponding to each of the seven periodic reviews at issue.
321. As regards the periodic review in Steel Concrete Reinforcing Bars from Latvia (Case I –
No. 3), the Panel concluded that none of the doc uments submitted by the European Communities,
other than the Federal Register Notice and the Issues and Decision Memorandum, "were issued by the
USDOC during the review at issue". 672 The Panel also found that the "relevant parts of the
programmes that were allegedly used in the revi ew at issue contain certain computer commands
which do not necessarily show that the simple ze roing methodology was used by the USDOC", and
did not consider "that tables that allegedly contai n results with and without zeroing necessarily show
that simple zeroing was actually used in the periodic review at issue".673
322. With respect to the two reviews in Stainless Steel Bar from Germany (Case IX – Nos. 33
and 34), the Panel also concluded that certain doc uments submitted by the European Communities,
other than the Federal Register Notice and the Issues and Decision Memorandum, "were not
generated by the USDOC during the review at issue". 674 For the periodic review covering the period
from 1 March 2004 to 28 February 2005 (No. 33), the Panel found that it was not "readily
discernable" from the margin calculation programs "t hat the simple zeroing methodology was used in
this periodic review". 675 For the periodic review covering the period from 2 August 2001

669European Communities' response to Panel Question 1(c) following the second meeting. See also
Panel Report, para. 7.146.
670Panel Report, paras. 7.151-7.157.
671Panel Report, paras. 7.151 and 7.154-7.157.
672Panel Report, para. 7.151.
673Panel Report, para. 7.151.
674Panel Report, paras. 7.154 and 7.155.
675Panel Report, para. 7.154.

to 28 February 2003 (No. 34), the Panel did not indicate whether the margin calculation program
evidence was generated by the USDOC
676, or whether it was able to determine from that evidence
whether simple zeroing was used.
323. In the case of the two reviews in Stainless Steel Bar from Italy (Case XI – No. 39) and
Certain Pasta from Italy (Case XIII – No. 43), the Panel concluded that the calculation tables
submitted by the European Communities were "not produced by the USDOC". 677 With respect to
Certain Pasta from Italy , the Panel also found that it was not "readily discernable from such tables
that simple zeroing was used". 678 The Panel did not indicate for either of these reviews whether the
margin calculation program evidence was generated by the USDOC 679, or whether it was able to
determine from that evidence whether simple zeroing was used.
324. As regards the two periodic reviews in Stainless Steel Bar from France (Case V – Nos. 20
and 21), the European Communities submitted evidence for each review consisting of the applicable
Federal Register Notice and Issues and Decision Memorandum. The Panel found that neither of these
documents demonstrated that simple zeroing was used in these reviews.680
325. During the interim review, the European Communities offered comments to the Panel
pertaining to all seven periodic reviews, along with case-specific comments addressing the evidence it
submitted in connection with five of the seven re views (that is, those other than the two reviews
involving Stainless Steel Bar from France ).681 The European Communities argued that a Notice
published in the Federal Register in December 2006 (the "USDOC December 2006 Notice") 682
created a presumption that simple zeroing was used in the seven reviews at issue. In that Notice, the
USDOC announced that it would no longer make W- W comparisons of export price and normal value
in original investigations without providing offsets for non-dumped comparison results, but that it was
not modifying any other comparison methodology, or any other segment of an anti-dumping
proceeding.
683 Because the periodic reviews at issue in th is dispute were conducted prior to issuance
of the Notice, the European Communities asserts, the Panel should have drawn the conclusion that
simple zeroing was used in these reviews. 684 Noting that the USDOC December 2006 Notice "makes

676Panel Report, para. 7.155 (finding only that the tables showing margin calculations with and without
zeroing were not generated by the USDOC).
677Panel Report, paras. 7.156 and 7.157.
678Panel Report, para. 7.157.
679Panel Report, paras. 7.156 and 7.157 (finding only that the tables showing margin calculations with
and without zeroing were not generated by the USDOC).
680Panel Report, paras. 7.152 and 7.153.
681Panel Report, para. 6.5.
682See supra, footnote 92.
683Panel Report, para. 6.6.
684Panel Report, paras. 6.7 and 6.8.

no specific reference to periodic reviews and the me thodologies that may be used in such reviews",
the Panel found that the statement in the USDO C Notice was "too broad to support the [European
Communities'] argument that the USDOC used simp le zeroing in all periodic reviews carried out
before the effective date of the policy change at issue".685
326. The European Communities also argued before th e Panel that, given the various WTO rulings
against the United States' use of the zeroing meth odology, it should not be disputed that simple
zeroing was used in the seven periodic reviews at issue. 686 The Panel disagreed with the European
Communities. The Panel considered that the existe nce of prior adverse rulings regarding the use of
zeroing did not discharge the European Communities' burden of proving that simple zeroing was used
in the periodic reviews at issue, and that "every di spute stands on its own merits" even if it concerns
"the same measure that is at issue in these proceedings".
687
327. The European Communities also pointed to th e margin calculation programs and calculation
tables that had been provided and argued that these do cuments, when read together, show that simple
zeroing was used in each of the periodic reviews at issue. 688 The United States maintained that,
because the calculation tables were not generated by the USDOC, the United States could not confirm
their accuracy, and they therefore do not show that zeroing was applied in the periodic reviews at
issue.689 The United States also asserted that there is no such thing as a "standard computer
programme" that requires zeroing in periodic reviews, and therefore called upon the Panel to reject the
European Communities' arguments. 690 After considering the comments of the European
Communities, the Panel found no reason to change its conclusion "that the European Communities
failed to show prima facie that the USDOC used simple zeroing in such reviews".691
328. The Panel also addressed arguments of the European Communities that it had no further
documentation available to it, and that it was therefore for the United States to rebut the prima facie
case made out by the European Communities. Remarking that the European Communities must
submit evidence of the underlying factual assertion th at the United States used simple zeroing in the
periodic reviews at issue, the Panel found that the European Communities had not done so. 692

685Panel Report, para. 6.9.
686Panel Report, para. 6.11.
687Panel Report, para. 6.11.
688Panel Report, paras. 6.13-6.16.
689Panel Report, para. 6.17.
690Panel Report, para. 6.17.
691Panel Report, para. 6.18.
692Panel Report, para. 6.20.

Accordingly, the Panel found that it "[could not] expect the United States to rebut a prima facie case
that has not been made by the European Communities".
693
329. Finally, the Panel addressed the contention of the European Communities that the United
States was withholding relevant information, and th at it was incumbent on the Panel to request such
information of the United States. The Panel found that the European Communities had not made a
request under Article 13 of the DSU that the Panel seek such information from the United States. The
Panel made no representations as to whether such a re quest would have been granted, but stated that,
in the absence of a request for information from the United States, the Panel saw "no reason why the
United States should be expected to rebut a fact ual assertion unsupported by relevant evidence from
the party making the assertion".
694 The Panel also remarked that it considered it "inappropriate for a
panel to exercise its authority to seek information based on its own judgement as to what information
is necessary for a party to prove its case, as opposed to seeking information in order to elucidate its
understanding of the facts and issues in the dispute before it."695
B. Article 11 of the DSU
330. The European Communities claims that the Pane l committed certain factual and legal errors
in concluding that the European Communities had not shown that simple zeroing was used in seven of
the periodic reviews at issue.696 The European Communities principally contends that the Panel acted
inconsistently with its obliga tions under Article 11 of the DSU "by misunderstanding, ignoring or
misinterpreting" the evidence produced by the Eu ropean Communities, and "by failing to draw the
necessary inferences" from th e evidence in the record. 697 The European Communities maintains that
it established a prima facie case and that the " totality of facts contained in the record" 698 demonstrate
that the United States applied simple zeroing to these seven periodic reviews.
331. Article 11 of the DSU requires a panel to make "an objective assessment of the matter before
it, including an objective assessment of the facts of the case". The Appellate Body has explained that
panels enjoy a certain margin of discretion under Article 11 of the DSU in assessing the credibility
and weight to be ascribed to a given piece of evidence 699, and that it will "not interfere lightly" 700 with

693Panel Report, para. 6.20.
694Panel Report, para. 6.20.
695Panel Report, footnote 20 to para. 6.20.
698European Communities' appellant's submission, para. 182. (original emphasis)
699Appellate Body Report, EC – Hormones , para. 132; and Appellate Body Report, EC – Sardines ,
para. 299.
700Appellate Body Report, US – Carbon Steel, para. 142 (quoting Appellate Body Report, US – Wheat
Gluten, para. 151).

that discretion. At the same time, the Appellate Body has stated that Article 11 requires panels "to
take account of the evidence put before them and forb ids them to wilfully disregard or distort such
evidence."701 In carrying out its mandate under Article 11, "a panel has the duty to examine and
consider all the evidence before it, not just the ev idence submitted by one or the other party, and to
evaluate the relevance and proba tive force of each piece thereof." 702 Article 11 requires a panel to
consider evidence before it in its totality, whic h includes consideration of submitted evidence in
relation to other evidence. A particular piece of ev idence, even if not suffici ent by itself to establish
an asserted fact or claim, may contribute to estab lishing that fact or claim when considered in
conjunction with other pieces of evidence. We also note, in relation to the qu estion of the totality of
the evidence and the burden of proof, the requi rement that a complaining party establish a prima facie
case in WTO dispute settlement. As the Appellate Body has explained, "a prima facie case is one
which, in the absence of effective refutation by th e defending party, requires a panel, as a matter of
law, to rule in favour of the complaining party presenting the prima facie case."703
332. We turn first to examine the Panel's approach to the evidence. For each of the seven periodic
reviews at issue, the Eur opean Communities supplied the Federal Register Notice containing the
USDOC's final periodic review results, and the Issues and Decision Memorandum issued by the
USDOC and referred to in the Federal Register Notice. As the Panel notes, neither the Federal
Register Notice, nor the referenced Issues and Decision Memorandum, mentions whether zeroing was
applied in arriving at the final results. 704 The European Communities does not argue on appeal that
these documents mention the use of zeroing in peri odic reviews. In connection with five of the
periodic reviews at issue—that is, those other than the two reviews in Stainless Steel Bar from France
(Case V – Nos. 20 and 21)—the European Communities also submitted two types of additional
evidence specific to those reviews, consisting of pr intouts of the margin calculation program that the
USDOC allegedly used in each review, and certain tables purportedly showing margin calculation
results that reflect zeroing, and what those results would have been without the use of zeroing.
333. The European Communities also refers on appeal to facts in the record from which, it asserts,
the Panel should have drawn inferences that si mple zeroing was used. The European Communities
points to "the extensive list of adopted DSB re ports ruling against simple zeroing" in periodic
reviews, and argues that those rulings established the use of simple zeroing as a rule or norm of

701Appellate Body Report, US – Carbon Steel , para. 142. See also Appellate Body Report, EC –
Hormones, para. 133.
704Panel Report, paras. 7.151-7.157.

general and prospective application.
705 The European Communities also refers to USDOC statements
in the Issues and Decision Memoranda in other periodic reviews acknowledging the use of simple
zeroing in periodic reviews, and the USDOC December 2006 Notice announcing that, apart from
eliminating zeroing in W-W comparisons in origin al investigations, the USDOC was not modifying
any other comparison methodologies for dumping determinations or any other segment of an anti-
dumping proceeding. The European Communities ass erts that the Panel should have drawn the
conclusion from these statements that simple zeroing was used in the periodic re views at issue in this
dispute.
706 Finally, the European Communities argues that "the fact that the United States could show
that zeroing was not used in the specific administrative reviews ... but did not do so should have
allowed the Panel to infer that zeroing was actually used."707
334. In its findings regarding the seven periodic revi ews, the Panel evaluated individual pieces of
case-specific evidence submitted by th e European Communities. In connection with its consideration
of the periodic review in Steel Concrete Reinforcing Bars from Latvia (Case I – No. 3), for example,
we note that the Panel referred in two instances to whether particular pieces of evidence "necessarily
show" that simple zeroing was used. The Panel stat ed that certain computer commands in the margin
calculation programs that were purportedly used in th e review at issue "do not necessarily show that
the simple zeroing methodology was used by the USDOC". 708 The Panel also added that the
calculation tables allegedly showing periodic revi ew results with and without zeroing do not
"necessarily show that simple zeroing was actually used in the periodic review at issue".709
335. The European Communities argues that the Panel applied an "unreasonable burden of proof in
this case"710 because it required "evidence 'necessarily showing' (i.e., without any trace of doubt) that
zeroing was 'actually used' in the seven administrative reviews at issue". 711 If evidence "necessarily
showing" a particular fact were required, th is would suggest that the evidence must in no
circumstance permit of a conclusion other than the existence of that fact . We agree that such a
standard is more stringent than the assessment of whether the evidence meets the required burden of

705European Communities' appellant's submission, para. 167. The European Communities observes
that, with respect to the periodic reviews in Stainless Steel Bar from France (Case V – Nos. 20 and 21), the final
periodic review results preceded the issuance of the panel and Appellate Body reports in US – Zeroing (Japan).
(European Communities' appellant's submission, paras. 169 and 181)
706European Communities' appellant's submission, paras. 171 and 174.
707European Communities' appellant's submission, footnote 211 to para. 177. (original emphasis)
708Panel Report, para. 7.151.
709Panel Report, para. 7.151.
711European Communities' appellant's submission, para. 197. The European Communities refers to this
argument on appeal as a "separate claim". ( Ibid., para. 184) While we rec ognize a distinction between the
standard of proof and the nature and scope of proof required to meet that standard, we consider the proper
application of both to fall within a panel's duties under Article 11 of the DSU.

proof.712 We note, however, that the Panel may not have required that evidence "necessarily show"
the existence of simple zeroing for the other periodic re views; in those reviews, the Panel stated that
it was not "readily discernable" 713 from particular documents that simple zeroing was used, or that
certain evidence did not "demonstrate" or "show" that simple zeroing was used.714
336. However, even if the Panel did not in all cases require that the European Communities
provide evidence "necessarily showing" that simple zeroing was used, we remain concerned by the
Panel's approach to the evidence, in which it ass essed whether specific pieces of evidence, taken
alone, proved the use of simple zero ing, without considering that evidence in relation to other factual
evidence. As we noted above, a panel has a duty un der Article 11 of the DSU to evaluate evidence in
its totality, by which we mean the duty to weigh collectively all of the evidence and in relation to each
other, even if no piece of evidence is by itself dete rminative of an asserted fact or claim. In the
Panel's consideration of the periodic review in Steel Concrete Reinforcing Bars from Latvia (Case I –
No. 3), we note that the Panel made the follow ing successive statements: (1) the final results
published in the Federal Register "do not mention whether simple zeroing was used"; (2) the margin
calculation programs "do not necessarily show that the simple zeroing methodology was
used"; (3) the tables containing results with and w ithout zeroing do not "necessarily show that simple
zeroing was actually used"; and (4) the Issues and Decision Memorandum "does not mention whether
simple zeroing was applied". 715 On the basis of these statements, the Panel concluded "that the
European Communities has failed to demonstrate as a matter of fact that simple zeroing was used by
the USDOC in this periodic review." 716 The Panel applied a similar approach to the other periodic
reviews at issue, referring to individual pieces of evidence that do not "demonstrate" or "show" that
simple zeroing was used, and then concluding that the European Communities had therefore failed to
demonstrate that simple zeroing was used by the USDOC in that periodic review.717
337. In our view, the Panel's reasoning reflects that it segregated and analyzed individual pieces of
evidence in order to determine whether any of the pieces, by itself, proved the existence of simple
zeroing. Even if the Panel were correct in assessing the value of individual pieces of evidence, and in

712In US – Wool Shirts and Blouses , the Appellate Body explained that international tribunals "have
generally and consistently accepted and applied the rule th at the party who asserts a fact, whether the claimant
or the respondent, is responsible for providing proof thereof", and that the burden of proof "rests upon the party,
whether complaining or defending, who asserts the affirmative of a particular claim or defence". (Appellate
Body Report, US – Wool Shirts and Blouses, p. 14, DSR 1997:1, 323, at 335)
713Panel Report, para. 7.154 (concerning Stainless Steel Bar from Germany (Case IX – No. 33)); and
Panel Report, para. 7.157 (concerning Certain Pasta from Italy (Case XIII – No. 43)).
714Panel Report, paras. 7.152-7.153 (concerning Stainless Steel Bar from France (Case V – Nos. 20
and 21)); and Panel Report, paras. 7.155 and 7.156 (concerning Stainless Steel Bar from Germany (Case IX –
No. 34) and Stainless Steel Bar from Italy (Case XI – No. 39)).
715Panel Report, para. 7.151.
716Panel Report, para. 7.151.
717Panel Report, paras. 7.152-7.157.

concluding that no single piece of evidence demonstrated an asserted fact at issue, it was not proper
for it to have foreclosed the possi bility that the consideration of a ll of the evidence taken together
might be sufficient proof of that fact. We note, in particular, the argument of the European
Communities that, when the margin cal culation programs are considered together with the tables
showing detailed calculations, "the necessary co nclusion is that the evidence overwhelmingly
corroborates the fact that the zeroing methodology was part of the measure and indeed was actually
used."
718 The Panel referenced this argument of the European Communities, but appears not to have
engaged in a cumulative appreciation of the evid ence. We therefore consider that the Panel
disregarded the significance of the submitted evidence when it failed to give consideration to that
evidence in its totality, including evidence that, in the Panel's view, did not by itself show that simple
zeroing was applied in a particular periodic review.
338. We are also troubled that the Panel did not explain, with respect to all of the periodic reviews
at issue, its rationale regarding the probative va lue of the margin calculation programs and/or
calculation tables. We note, for instance, that fo r two of the periodic reviews at issue, the Panel
referred to the margin calculation programs subm itted by the European Communities, but did not
explain whether they were probative as to the use of simple zeroing. 719 While we do not consider that
a particular piece of evidence must by itself demonstrate an asserted fact or claim, we believe the
Panel's omission is notable given that it treated the evidence with respect to each of the seven periodic
reviews in separate paragraphs of its report, and placed such signifi cance on this evidence in the other
periodic reviews for which such ev idence was submitted. In another of the periodic reviews, the
Panel did not mention that the European Communities submitted a margin calculation program, nor
did it explain its assessment of the program's probative value.
720 We agree with the Panel that "[a]n
essential part of a panel's task under Article 11 is to explain its objective assessment of the matter
before it".721 In the light of its view that this case-specific evidence was crucial in establishing the
existence of simple zeroing in the seven periodic revi ews, we consider that the Panel's explanation of
this evidence in relation to some periodic reviews, but not others, further indicates that it disregarded
the significance of the evidence in its totality and, in particular, that it failed to assess the probative
value of individual pieces of evidence in relation to other evidence.

718European Communities' appellant's s ubmission, para. 136 (referring to Steel Concrete Reinforcing
Bars from Latvia (Case I – No. 3)). See also Panel Report, paras. 6.13-6.16.
719Panel Report, para. 7.155 (concerning Stainless Steel Bar from Germany (Case IX – No. 34); and
Panel Report, para. 7.156 (concerning Stainless Steel Bar from Italy (Case XI – No. 39)).
720Panel Report, para. 7.157 (concerning Certain Pasta from Italy (Case XIII – No. 43)). The Panel
also did not explain its assessment of the probative value of the calculation tables in two of the other reviews.
(Panel Report, para. 7.155 (concerning Stainless Steel Bar from Germany (Case IX – No. 34); and Panel
Report, para. 7.156 (concerning Stainless Steel Bar from Italy (Case XI – No. 39)).
721Panel Report, para. 7.180. (original underlining)

339. The European Communities also argues that the Panel erred by disregarding evidence that,
the Panel asserted, was not "issued", "generated", or "produced" by the USDOC during the periodic
review at issue. As the European Communities e xplains, following the USDOC's final determination
in a periodic review, the USDOC discloses to in terested parties in the proceeding the margin
calculation programs in paper and/or electronic format. 722 These programs can be preserved by
interested parties and may, at some later date, be reproduced or printed in the same format as
originally received from the USDOC. 723 The United States does not dispute this characterization, but
takes the position that it could not confirm the content of margin calculation programs that indicated
that they had been printed or otherwise produced by someone other than the USDOC after the final
results were published.
724 The United States therefore argues th at, absent program logs originating
from the USDOC, or other proof from USDOC-issued documents, "it is not apparent from the
evidence submitted by the [European Communities] that zeroing was employed in the seven
administrative review determinations in question". 725 The European Communities responds that this
is a restrictive view of what it means for docum ents to be generated by the USDOC, and that
subsequent printouts of the margin calculation pr ograms, originally supplied by the USDOC to
interested parties in an anti-dumping proceeding, s till reflect the margin calculations generated by the
USDOC during the review.726
340. Even if printouts of margin calculation program s, or the calculation tables prepared by the
European Communities, were not issued by the US DOC during the review at issue, we question the
significance of this for a conclusion that the doc uments submitted are not probative as evidence of
simple zeroing in periodic reviews. While it ma y have simplified the Panel's task if the evidence
submitted by the European Communities had been confirmed as original USDOC documents, the
absence of authentication does not negate the evid entiary significance of those documents. As we
understand it, the USDOC provides margin calculation programs at the end of anti-dumping
proceedings to interested parties in paper and/or electronic format, and it is from these programs that
the original margin calculation program can be repli cated, or the underlying data can be extracted to
produce other documents such as the calculati on tables submitted by the European Communities. 727
As the European Communities maintains, "the prin ted paper version of the margin programme is

722European Communities' appellant's submission, paras. 114 and 119. The European Communities
refers to Section III.B of Chapter 11 of the USDOC Antidumping Manual, which provides that "a full disclosure
of all calculations, including the computer printouts and worksheets used, will be made". (Panel
Exhibit EC-4.11, p. 25)
723European Communities' appellant's submission, paras. 117 and 137.
724United States' responses to questio ning at the oral hearing. See also United States' comments to
European Communities' response to Panel Question 1(a) following the second meeting; and United States'
comments to the European Communities' interim review comments, para. 7.
726European Communities' responses to questioning at the oral hearing.
727See supra, footnotes 722 and 723.

identical to the electronic version provided by [the] USDOC".
728 We also note the argument of the
European Communities that the United States does not a llege that the printouts have been altered, or
otherwise challenge that the content or underlyi ng data of the documents was generated by the
USDOC.729 Accordingly, the printouts of the margin calculation programs appear to have their
origins in original USDOC documents, and we s ee no basis to conclude that such documentation
differs in any material respect from the original program. Thus, while an authenticated USDOC
document may have offered greater certainty as to its content, we do not agree that this renders a
document that has not been authenticated not probative of the fact asserted, particularly if it is
produced or replicated from documents or data supplied by the USDOC.
341. We agree with the United States that the i ssue of whether documents submitted by the
European Communities were authen ticated as USDOC-generated appears to have been "pivotal"
730 to
the Panel's finding regarding the seven periodic review s. While the Panel does not explain the extent
to which the probative value of submitted evid ence was, in its view, undermined by its non-
authentication, the fact of non-authenticati on was one of two factors, and at times the only factor,
cited by the Panel for its conclusion that the Eur opean Communities had failed to demonstrate the use
of simple zeroing in particular periodic reviews. 731 We therefore consider that the Panel, by insisting
on authenticated USDOC documents to demonstrate or show the use of simple zeroing, also failed to
make an objective assessment by allowing a challenge to the authenticity of evidence originating from
the USDOC, but later reproduced by interested part ies, to skew its consideration of the probative
value of that evidence.
342. We now turn to address the European Communitie s' arguments that the Panel erred in its
interpretation of Article 13 of the DSU when it c oncluded that the European Communities did not ask
the Panel to seek detailed, transaction-specific marg in calculations from the United States, and that
the request the European Communities made in its written response to questions from the Panel "does
not suffice as a request to the Panel to seek speci fic factual information from the USDOC pursuant to
its authority under Article 13". 732 The European Communities requ ests the Appellate Body to find

728European Communities' appellant's submission, para. 117. (emphasis omitted)
729Participants' responses to questioning at the or al hearing. See also European Communities'
appellant's submission, paras. 117, 119, 121 and 128.
731In the periodic reviews for Stainless Steel Bar from Germany (Case IX – No. 34) and Stainless Steel
Bar from Italy (Case XI – No. 39), for instance, the Panel refers to the evidentiary value of the calculation tables
submitted by the European Communities by noting only that they were not generated by the USDOC during the
review at issue. (Panel Report, paras. 7.155 and 7.156) We noted above the other "factor", namely, that the
Panel stated that certain evidence did not necessarily show, or that it was not readily discernable, that simple
zeroing was used in a particular review. (See supra, footnotes 708, 709 and 713)
732European Communities' appellant's submission, para. 203 (quoting Panel Report, footnote 20 to
para. 6.20).

that the Panel erred in its interpretation of Article 13, and to find that it would have been "appropriate"
for the Panel, before finding against the Eur opean Communities, to seek further information
corroborating the use of simple zeroing in the periodic reviews at issue.733
343. Article 13 of the DSU gives panels "the right to seek information and technical advice from
any individual or body which it deems appropriate". The Appellate Body has explained that this is a
discretionary authority that panels may exercise in seeking information "from any relevant source". 734
The Appellate Body has also explained that, while panels have "broad authority to pose such
questions to the parties as it deems relevant for purposes of considering the issues that are before
it"735, such authority cannot be used "to make the case for a complaining party".736
344. The European Communities claims it explaine d to the Panel that the USDOC does not
disclose a complete listing of all transactions and comparisons made in each periodic review. As a
result, the European Communities posited to the Panel that, "should the Panel consider further
corroboration appropriate, the Panel should request the United States to provide copies of the detailed
margin calculations for each of the sev en administrative reviews at issue."737 We do not consider that
the Panel acted inconsistently with Article 13 of th e DSU when it did not seek such information. As
noted, a panel's authority to request information under Article 13 of the DSU is discretionary, and
there is therefore no error that can be attributed to the Panel for its conduct in respect of that Article.
345. Article 11 of the DSU, however, regulates a panel's exercise of its discretion. The Appellate
Body has noted the "comprehensive nature" of a pa nel's authority under Article 13, and has affirmed
that this authority is "indispensably necessary" to enable a panel to discharge its duty imposed by
Article 11.738 Moreover, the Appellate Body has underscored the importance of a panel's investigative
function:
[A] panel is vested with ample a nd extensive discretionary authority
to determine when it needs information to resolve a dispute and what
information it needs. A panel may need such information before or
after a complaining or a responding Member has established its
complaint or defence on a prima facie basis. A panel may, in fact,
need the information sought in order to evaluate evidence already
before it in the course of determining whether the claiming or the

733European Communities' appellant's submission, paras. 206 and 211.
734Appellate Body Report, Argentina – Textiles and Apparel, para. 84.
735Appellate Body Report, US – Zeroing (EC), para. 260.
736Appellate Body Report, Japan – Agricultural Products II, para. 129.
738Appellate Body Report, Japan – Agricultural Products II , para. 127 (quoting Appellate Body
Report, US – Shrimp, paras. 104 and 106).

responding Member, as the case may be, has established a
prima facie case or defence.
739 (original emphasis)
346. In explaining why it did not request informati on from the United States, the Panel stated not
only that the European Communities' request was not sufficiently specific, but that it would not have
been appropriate for the Panel to have done so. As the Panel explained:
[W]e consider that it would be inappropriate for a panel to exercise
its authority to seek information based on its own judgement as to
what information is necessary for a party to prove its case, as
opposed to seeking information in order to elucidate its
understanding of the facts and issues in the dispute before it.
740
347. As we have said, the Panel appears to have c onsidered that a margin calculation program, or
other document, only established the use of simple zeroing if it originated from the USDOC at the
time of the review. Once the Panel set out that standard, however, we see no indication that it got to
the heart of the matter concerning the probative value of evidence before it. For one thing, it is not
enough for a panel to leave it to the parties to guess what proof it will require. Moreover, while a
panel cannot make the case for a pa rty, Article 11 requires a panel to test evidence with the parties,
and to seek further information if necessary, in or der to determine whether the evidence satisfies a
party's burden of proof. As the Appellate Body h as explained, "[a] panel may, in fact, need the
information sought in order to ev aluate evidence already before it"
741 so as to make an objective
assessment of whether the complaining party has established a prima facie case, regardless of whether
a party has requested it to seek such information. In our view, the Panel required evidence that was
authenticated as USDOC documents, but then did not take the necessary steps to elicit from the
parties information that might, in the words of the Panel, "elucidate its understanding of the facts and
issues in the dispute before it". Because, however, th e Panel erred in its articulation of the applicable
standard as to the burden of proof, and failed to c onsider the submitted evidence in its totality, we
cannot determine whether further inquiry by the Panel pursuant to its authority, including under
Article 13, would have yielded greater clarity as to the evidence.742
C. Conclusion
348. In sum, we consider that the Panel erred in failing to examine the European Communities'
evidence in its totality, and requiri ng, instead, that specific types of evidence, in and of themselves,

740Panel Report, footnote 20 to para. 6.20.
742At a minimum, it would seem the Panel should have done more to engage the parties on the specific
question of the extent to which the printouts of margin calculation programs and other documents—originating
from the USDOC but later reproduced by interested par ties—could be relied upon by the Panel in determining
the use of simple zeroing.

are necessary in order to establish that simple ze roing was used by the USDOC in specific periodic
reviews. Because of this error, the Panel coul d not properly reach a conc lusion as to whether the
European Communities had established a prima facie case. We therefore find that the Panel acted
inconsistently with its obligation under Article 11 of the DSU to make an objective assessment of the
matter before it, including an objective assessment of the facts of this case, when it found that the
European Communities had not shown that simple ze roing was used in the seven periodic reviews at
issue. Consequently, we reverse this finding of the Panel.
D. Completion of the Analysis
349. Having reversed this finding, we turn to consid er the European Communities' request that we
complete the analysis and modify the finding "in order to conclude that the European Communities
showed that zeroing was used". 743 In previous disputes, the Appellate Body has emphasized that it
can complete the analysis "only if the factual findi ngs by the panel, or the undisputed facts in the
panel record" provide a sufficient basis for the Appellate Body to do so. 744 Where this has not been
the case, the Appellate Body has declined to complete the analysis.745
350. For five of the periodic reviews— Steel Concrete Reinforcing Bars from Latvia (Case I –
No. 3); Stainless Steel Bar from Germany (Case IX – No. 33); Stainless Steel Bar from Germany
(Case IX – No. 34); Stainless Steel Bar from Italy (Case XI – No. 39); and Certain Pasta from Italy
(Case XIII – No. 43)—the European Co mmunities provided the Panel with the Federal Register
Notice and the Issues and Decision Memorandum, al ong with documentation consisting of printouts
of the margin calculation program that the USDOC a llegedly used in each review, and certain tables
purportedly showing margin calculations results that reflect zeroing, and what those results would
have been without the use of zeroing. 746 We also note the European Communities' argument that
there are several facts in the record, including findi ngs in other WTO disputes and statements by the
United States in other proceedings, from which th e Panel should have draw n inferences that the
zeroing methodology was applied in these periodic reviews.

744Appellate Body Report, US – Hot-Rolled Steel , para. 235. See Appellate Body Report, EC –
Hormones, para. 222 ff; Appellate Body Report, EC – Poultry, para. 156 ff; Appellate Body Report, Australia –
Salmon, paras. 117 ff and 193 ff; Appellate Body Report, US – Shrimp, para. 123 ff; Appellate Body Report,
Japan – Agricultural Products II , para. 112 ff; and Appellate Body Report, EC – Asbestos, para. 133 ff.
745See Appellate Body Report, Australia – Salmon , paras. 209 ff, 241 ff and 255; Appellate Body
Report, Korea – Dairy , paras. 91 ff and 102 ff; Appellate Body Report, Canada – Autos , paras. 133 ff
and 144 ff; Appellate Body Report, Korea – Various Measures on Beef , para. 128 ff; Appellate Body Report,
EC – Asbestos, para. 78 ff; and Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US),
para. 98 ff.
746Panel Report, paras. 7.151 and 7.154-7.157.

351. With respect to the case-specifi c evidence for these reviews, we recall the United States'
position that, unless it could be established that a pa rticular document was generated by the USDOC,
the United States could not confirm its content.
747 As we noted, the United States does not argue that
these documents were altered, and has not directly challenged the content of these documents or the
data on which they were based. 748 We also note that the margin calculation programs contain
information, uncontested by the parties, that i ndicates that they represen t the margin calculation
programs used by the USDOC for the relevant periodic review.749 For the periodic review in Stainless
Steel Bar from Germany (Case IX – No. 33), the United States submits that the evidence offered by
the European Communities at Appendix II to Pane l Exhibit EC-57 does not consist of a margin
calculation program.750 The European Communities submitted two additional documents before the
Panel that purportedly reflect margin calculation prog rams used in this review, and "refer to various
macros forming part of the macro program incl uded under Appendix II of [Panel] Exhibit EC-57 and
which contains the zeroing code". 751 As we noted above, the Eur opean Communities also prepared
and submitted calculation tables for each of these revi ews which, it asserts, show margin calculation
results that reflect the use of zeroing, and what those results would have been without the use of
zeroing.
352. As we have also noted, the United States does not contest the underlying information of these
documents other than to say that, because they appear to have been reproduced by interested parties
after the periodic review at issue, the United States was not in a position to confirm them. The
European Communities observes that the United States adduced no evidence or argument that it did
not apply simple zeroing in these reviews 752, and we see no evidence in the Panel record to suggest
that the United States did not apply simple zeroing in these reviews. When asked at the oral hearing,

747United States' responses to questioning at the oral hearing.
748See supra, footnote 729.
749During questioning at the oral hearing, it was noted that the documents advanced by the European
Communities as margin calculation programs reflect the case number for the periodic review, the covered
product, the name of the foreign exporter or producer, the name of the USDOC analyst identified in the Federal
Register Notice, and the line of computer programming code that indicates that simple zeroing was applied.
(Participants' responses to questioning at the oral h earing) The European Communities introduced an exhibit
before the Panel that described various programming code designations that are used in margin calculation
programs. (Panel Exhibit EC-5) The European Communities explained that use of the programming line
"WHERE EMARGIN GT 0" reflects the application of the simple zeroing methodology in the challenged
periodic reviews. (European Communities' first written submission to the Panel, Panel Report, Annex A-1,
pp. A-12 and A-43, paras. 27-28 and 184-185) We see no indication that the significance of this line of
programming code was contested between the parties in this dispute. (See United States' response to Panel
Question 7(a) following the first meeting)
750United States' appellee's submission, para. 147 and footnote 204 thereto.
751European Communities' response to Panel Question 1(c) following the second meeting. See also
Panel Report, para. 7.154.
752European Communities' appellant's submission, paras. 128-129 and 175-177.

the United States was not in a position to confirm wh ether or not it applied simple zeroing in the
periodic reviews at issue.753
353. We have carefully considered the Panel record in its totality regarding the seven periodic
reviews. On the basis of the factual findings and uncontested facts in connection with five of these
reviews—that is, Steel Concrete Reinforcing Bars from Latvia (Case I – No. 3)754; Stainless Steel Bar
from Germany (Case IX – No. 33) 755; Stainless Steel Bar from Germany (Case IX – No. 34) 756;
Stainless Steel Bar from Italy (Case XI – No. 39) 757; and Certain Pasta from Italy (Case XIII –
No. 43)758—we find that the European Communities has shown that simple zeroing was used in these
reviews and that the United States acted inconsis tently with Article VI:2 of the GATT 1994 and
Article 9.3 of the Anti-Dumping Agreement by applying simple zeroing in these reviews.
354. For the two periodic reviews concerning Stainless Steel Bar from France (Case V – Nos. 20
and 21) 759, the European Communities submitted the Federal Register Notice and the Issues and
Decision Memorandum relating to each case, but did not submit other case-specific evidence,
consisting of either margin calculation programs or ca lculation tables, that would suggest that simple
zeroing was used.
760 The Federal Register Notice and the Issues and Decision Memorandum do not
explicitly address the issue of zeroing.
355. In its appellant's submission, the European Co mmunities argued that there are several facts in
the record from which the Panel should have drawn inferences that the zeroing methodology was
applied in these periodic reviews. As we noted, the European Communities pointed to prior adopted
reports in which the Appellate Body made "as su ch" findings that the zeroing methodology existed as
a rule or norm of general and prospective a pplication with regard to periodic reviews. 761 The United
States was found to be "incapable of providing a single case in which zeroing was not used". 762 The
European Communities argues that , because the United States did not provide the panel and the

753United States' responses to questioning at the oral hearing.
754Panel Exhibit EC-35.
755Panel Exhibit EC-57.
756Panel Exhibit EC-58.
757Panel Exhibit EC-62.
758Panel Exhibit EC-65.
759Panel Exhibit EC-47; Panel Exhibit EC-48.
760Panel Report, paras. 7.152 and 7.153.
761We observed above that factual findings in prior disputes are not binding in this dispute. See supra,
para. 190.
762European Communities' appellant's submission, para. 169. The European Communities similarly
argues that the Panel failed to draw inferences from the fact that the United States "remained silent as regards
the use of zeroing in the administrative reviews at issue and never said that it did not use simple zeroing". (Ibid.,
para. 175)

Appellate Body with evidence from the reviews at i ssue here that simple zeroing was not used, the
Panel should have drawn the inference that simple zeroing was in fact used.
763
356. We also noted above the European Communities' reference to statements by the United States
that indicate the continued application of simp le zeroing in periodic reviews. The European
Communities refers, for instance, to the USDOC December 2006 Notice, announcing that the United
States would no longer use W-W zeroing in original investigations. 764 As the European Communities
argues, in reversing its policy with respect to W-W comparisons in original investigations, the
USDOC also stated that it was not modifying any other comparison methodologies for dumping
determinations or any other segment of an an ti-dumping proceeding. The European Communities
maintains that the Panel should have drawn the co nclusion that simple zer oing was used in such
reviews.
765 We also note the Panel's finding that the policy change reflected in the USDOC
December 2006 Notice does not explicitly state that simple zeroing is used in periodic reviews.766
357. The fact that there is no direct evidence establishing the use of simple zeroing does not
absolve a panel from examining submitted evidence in its totality. We, however, come to this
question not as the original reviewer of that eviden ce, but against the standard of whether the factual
findings and uncontested facts on the Panel record ade quately support completion. On that basis, we
decide not to complete the analysis to reach a fi nding that the United States applied simple zeroing in
these two periodic reviews. 767 We emphasize that the nature and scope of the evidence that might be
reasonably expected by an adjudicator in order to establish a fact or claim in a particular case will
depend on a range of factors, including the type of evidence that is made available by a Member's
regulating authority. Because the design and oper ation of national regulatory systems will vary, we
believe that, in a specific case, a panel may have a sufficient basis to reach an affirmative finding

763The European Communities observes, with respect to Stainless Steel Bar from France (Case V –
Nos. 20 and 21), that the final periodic review results preceded the issuance of the panel and Appellate Body
reports in US – Zeroing (Japan). (European Communities' appellant's submission, paras. 169 and 181)
764The European Communities also argues that the Panel ignored the fact that, in 30 of the 37 periodic
review challenged by the European Communities, the US DOC "made repeated statements supporting the use of
simple zeroing in administrative reviews". (European Communities' appellant's submission, para. 173) The
European Communities maintains that, through these statements issued after the conclusion of the seven
periodic reviews at issue in this appeal, the United States "confirmed the existence of 'its current approach' and
practice of using simple zeroing in administrative reviews". (Ibid., para. 174)
766Panel Report, para. 6.9. By contrast, in section VI II of this Report, we refer to the fact that the
USDOC expressly stated in the USDOC December 2006 Notice that, prio r to the Notice, model zeroing was
consistently used in original investigations.
767We also note that the European Communities did not produce, for these two reviews, direct evidence
to demonstrate the use of simple zeroing (for example, in the form of an Issues and Decision Memorandum that
references zeroing and/or margin calculation programs and calculation tables), whereas it did so for all of the
other periodic reviews at issue in this dispute.

regarding a particular fact or claim on the basi s of inferences that can be reasonably drawn from
circumstantial rather than direct evidence.
VII. The European Communities' Conditional Appeals
358. The European Communities submits what it characterizes as two "conditional appeals". First,
the European Communities argues that, if the Pane l Report is construed as finding that a panel can
invoke "cogent reasons" for departing from previous Appellate Body rulings on the same issue of
legal interpretation, then the European Commun ities requests the Appellate Body to "modify or
reverse" that finding by the Panel. Secondly, if the Appellate Body were to "modify or reverse" the
Panel's finding that simple zeroing is inconsistent with Article VI:2 of the GATT 1994 and Article 9.3
of the Anti-Dumping Agreement as a result of an other appeal by the United States, then the European
Communities requests that the Appellate Body comple te the legal analysis and find that the United
States acted inconsistently with its obliga tions under Article VI:2 of the GATT 1994 and
Articles 2.1, 2.4, 2.4.2, 9.3, and 11.2 of the Anti-Dumping Agreement, as well as Article XVI:4 of the
WTO Agreement by applying simple zeroing in the periodic reviews at issue in this dispute.
359. The United States requests the Appellate B ody to reject the European Communities'
conditional appeal.768 The United States alleges, first, that the European Communities is "seeking to
shift the burden to the Appellate Body to develop the argumentation and explanation" 769 on behalf of
the European Communities as to whet her there is a legal error. The United States submits that, under
the European Communities' rationale, "notices of appeal could simply read 'if there are any errors in
the panel report, the Appellate Body should modify or reverse accordingly'." 770 Secondly, the United
States argues that "the only conceivable basis for a claim of error would seem to be under Article 11
of the DSU." 771 However, the European Communities "has not made such a claim in its notice of
appeal, nor has it articulated such a claim in its appellant submission".772
360. The United States adds that the European Co mmunities "is essentially asking the Appellate
Body to assess the consistency of the Panel Report with the Appellate Body's dicta in US – Stainless
Steel (Mexico)".773 However, for the United States, the Panel "was bound neither by the findings, nor
the dicta in a prior, unrelated dispute". 774 The United States further argues that "the Ministerial
Conference and the General Council have the exclusiv e authority to adopt binding interpretations of

the covered agreements under Article IX:2 of the WTO Agreement."
775 For the United States, treating
prior reports as binding outside the scope of the orig inal dispute would add to the obligations of WTO
Members, inconsistently with Articles 3.2 and 19.1 of the DSU. On this basis, the United States
submits that the European Co mmunities "cannot treat the statements from a prior report as
authoritative and then ask the Appellate Body un der Article 17.6 of the DSU to assess whether the
Panel acted consistently with them or not".776
361. We begin by examining the European Co mmunities "conditional appeal" regarding the
relevance of prior Appellate Body reports.
A. The Relevance of Prior Appellate Body Reports
362. Appellate Body reports adopted by the DSB are binding and must be unconditionally
accepted by the parties to the particular dispute. 777 The Appellate Body has also said that adopted
panel and Appellate Body repor ts create legitimate expectations among WTO Members and,
therefore, should be taken into account wh ere they are relevant to any dispute. 778 Following the
Appellate Body's conclusions in earlier disputes is no t only appropriate, it is what would be expected
from panels, especially where the issues are the same. 779 This is also in line with a key objective of
the dispute settlement system to provide security and predictability to the multilateral trading
system.780 The Appellate Body has further explained th at adopted panel and Appellate Body reports
become part and parcel of the acquis of the WTO dispute settlement system and that "ensuring
'security and predictability' in the dispute settlement system, as contemplated in Article 3.2 of the
DSU, implies that, absent cogent reasons, an adjudicatory body will resolve the same legal question in
the same way in a subsequent case." 781 Moreover, referring to the hierarchical structure contemplated
in the DSU, the Appellate Body reasoned in US – Stainless Steel (Mexico) that the "creation of the
Appellate Body by WTO Members to review legal interpretations develope d by panels shows that

777See Appellate Body Report, US – Softwood Lumber V, paras. 109-112; Appellate Body Report, US –
Shrimp (Article 21.5 – Malaysia) , para. 97; and Appellate Body Report, Japan – Alcoholic Beverages II ,
pp. 12-15, DSR 1996:I, 97, at 106-108.
778Appellate Body Report, Japan – Alcoholic Beverages II , p. 14, DSR 1996:I, 97, at 108; Appellate
Body Report, US – Shrimp (Article 21.5 – Malaysia), para. 109.
779See Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 188. We further
recall that the Appellate Body has previously explained that "the mandate of an Article 21.5 panel includes the
task of assessing whether the measures taken to comply with the rulings and recommendations adopted by the
DSB in the original proceedings achieve compliance with those rulings" and therefore "panels established under
that provision are bound to follow the legal interpreta tion contained in the original panel and Appellate Body
reports that were adopted by the DSB." (Appellate Body Report, US – Stainless Steel (Mexico), footnote 309 to
para. 158)
780Article 3.2 of the DSU.
781Appellate Body Report, US – Stainless Steel (Mexico), para. 160.

Members recognized the importance of consistency a nd stability in the interpretation of their rights
and obligations under the covered agreements."782 The Appellate Body found that failure by the panel
in that case to follow previously adopted A ppellate Body reports addressing the same issues
undermined the development of a coherent and predictable body of jurisprudence clarifying Members'
rights and obligations under the covered agreements as contemplated under the DSU. 783 T h e
Appellate Body added that:
Clarification, as envisaged in Article 3.2 of the DSU, elucidates the
scope and meaning of the provisions of the covered agreements in
accordance with customary rules of interpretation of public
international law. While the application of a provision may be
regarded as confined to the cont ext in which it takes place, the
relevance of clarification contai ned in adopted Appellate Body
reports is not limited to the applica tion of a particular provision in a
specific case.
784
363. The European Communities underscores that it agrees with this reasoning of the Appellate
Body in US – Stainless Steel (Mexico) "without reservation". 785 The European Communities
understands the Appellate Body to have found that a panel may invoke "cogent reasons" in order to
depart from previous panel findings; but only the Appellate Body can invoke "cogent reasons" in
order to depart from previous Appellate Body findings. 786 The European Communities reasons that
the Appellate Body refers in US – Stainless Steel (Mexico) to "an adjudicatory body" (in the singular),
which the European Communities takes "to mean that the phrase refers to the situation in which it is
the same body in both the previous case and the case to be decided". 787 T h a t i s , " i t r e f e r s t o t h e
situation in which a panel might be called upon to r esolve the same legal issu e that it has previously
resolved; or the situation in which the Appellate Body might be called upon to resolve the same legal
issue that it has already resolved." 788 The European Communities understands the phrase to refer "to
'cogent reasons" as the basis for a change in view".789

782Appellate Body Report, US – Stainless Steel (Mexico), para. 161.
783Appellate Body Report, US – Stainless Steel (Mexico), para. 161.
784Appellate Body Report, US – Stainless Steel (Mexico), para. 161.
785European Communities' appellant's submission, para. 224 (referring to Appellate Body Report, US –
Stainless Steel (Mexico), paras. 160-162).
786Notification of an Appeal by the European Communities, WT/DS350/11 (attached as Annex I to this
Report), p. 4.
787European Communities' appellant's submission, para. 225 (referring to Appellate Body Report, US –
Stainless Steel (Mexico), para. 160).
788European Communities' appellant's submission, para. 225 (referring to Appellate Body Report, US –
Stainless Steel (Mexico), para. 160).
789European Communities' appellant's submission, para. 225 (referring to Appellate Body Report, US –
Stainless Steel (Mexico), para. 160).

364. On appeal, the European Communities submits that "if the Panel Report is construed as
finding that a panel can invoke 'cogent reasons' for departing from previous Appellate Body findings
on the same issue of legal interpretation, then the European Communities requests the Appellate Body
to modify or reverse those findings by the Panel."
790 The European Communities further requests that
the Appellate Body "complete the analysis". 791 These requests, however, are conditional. To reach
the issues raised by the European Communities on appeal, we would first have to "construe" the Panel
Report "as finding that a panel can invoke 'cogent reasons' for departing from previous Appellate
Body findings on the same issue of legal interpretation."792
365. The Panel engaged in circuitous reasoning and it is not clear whether the Panel in fact found
that it could invoke cogent reasons to depart from previous Appellate Body rulings on the same legal
issue. The statement of the Panel that it "is impor tant for a panel to have cogent reasons for any
decision it reaches", regardless of "whether or not the panel follows such reports", is ambiguous. 793
Ultimately, the Panel in this case did follow previous Appellate Body reports. In the light thereof, the
Panel does appear to have acceded to the hierar chical structure contemplated in the DSU.
Consequently, and since we have ruled on the merits of the United States' claims under Article 9.3 of
the Anti-Dumping Agreement and Article VI:2 of the GATT 1994, there is no need for us to address
this aspect of the European Communities' conditional appeal.
B. The European Communities' Conditional Appeal regarding the Consistency of Simple
Zeroing in Periodic Reviews
366. We turn next to examine the European Co mmunities' "conditional appeal" regarding the
consistency of simple zeroing in periodic reviews.
367. The Panel found that the United States acted inconsistently with Article VI:2 of the
GATT 1994 and Article 9.3 of the Anti-Dumping Agreement by applying simple zeroing
in 29 periodic reviews. On appeal, the European Communities submits that if the Appellate Body
"reverses or modifies those findings in whole or in part", then it appeals "what might be construed as

790Notification of an Appeal by the European Communities, WT/DS350/11 (attached as Annex I to this
Report), p. 4. See also European Communities' appellant's submission, paras. 10 and 229. The European
Communities refers, in particular, to Panel Report, para. 7.180, final sentence, and Panel Report, para. 7.182,
final sentence. (European Communities' appellant's submission, footnote 246 to para. 229)
791Notification of an Appeal by the European Communities, WT/DS350/11 (attached as Annex I to this
Report), p. 4. See also European Communities' appellant's submission, paras. 10 and 229.
792Notification of an Appeal by the European Communities, WT/DS350/11 (attached as Annex I to this
Report), p. 4.
793Panel Report, para. 7.180.

substantive findings" or the exercise of judicial economy by the Panel with respect to the "substantive
issue of zeroing" in periodic reviews.794
368. We have upheld the Panel's finding that th e United States acted inconsistently with
Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement by applying simple
zeroing in 29 periodic reviews. Accordingly, we are not required to rule on this aspect of the
European Communities' conditional appeal.
VIII. The Eight Sunset Reviews
369. We turn now to address the United States' claim that the Panel failed to undertake an
objective assessment of the matter before it, as require d by Article 11 of the DSU, in finding that the
United States acted inconsistently with Article 11.3 of the Anti-Dumping Agreement by allegedly
using, in the eight sunset reviews at issue, dumping margins obtained through model zeroing in
original investigations.
795
370. Before the Panel, the European Commun ities challenged the use of zeroing in eight 796 sunset
reviews carried out by the USDOC, arguing that, as part of its sunset revi ew determinations, the
USDOC relied on dumping margins calculated through zeroing in original investigations or in the
subsequent reviews.797 The Panel noted that, "[a]s the factual basis" for this claim 798, the European
Communities submitted copies of the Issues and Deci sion Memoranda, issued by the USDOC in the
eight sunset reviews, which showed that the USDOC used dumping margins obtained in the
underlying original investigations.
371. The Panel further noted that these underlying origin al investigations were carried out before
the effective date of the USDOC's policy change published in the USDOC December 2006 Notice, in
which the USDOC announced that it would "no longe r make average-to-average comparisons in
investigations without providing offsets for non-dumped comparisons". 799 On this basis, the Panel
found that "the European Communities ha[d] shown prima facie that the margins in the investigations
at issue were obtained through model zeroing". 800 Noting that the United States had not submitted

795United States' other appellant's submission, paras. 114-121.
796The European Communities' challenge initially concerned 11 sunset reviews. (Panel Report,
para. 7.184) The Panel noted that, with respect to th ree of the 11 sunset reviews, the European Communities'
challenge concerned preliminary determinations. Recal ling its finding that the pr eliminary determinations
challenged by the European Communities were outside its terms of reference, the Panel stated that it would
make findings only with regard to the remaining eight sunset reviews. (Ibid., para. 7.191)
797Panel Report, para. 7.184.
798Panel Report, para. 7.198.
799Panel Report, para. 7.199 (quoting USDOC December 2006 Notice, supra, footnote 92).
800Panel Report, para. 7.200.

evidence to rebut the European Co mmunities' assertion, the Panel c onsidered that "the European
Communities ha[d] demonstrated that in the eight s unset reviews at issue, the USDOC relied, either
exclusively or along with margins obtained in pr ior periodic reviews, on margins obtained through
model zeroing in prior investigations".
801 The Panel recalled the Appellate Body's findings in US –
Zeroing (Japan) and found "convincing"802 the Appellate Body's reasoning that, to the extent margins
relied on in sunset review determinations are inc onsistent with the covered agreements, the resulting
sunset review determination is also rendere d inconsistent with the covered agreements. 803 Because
model zeroing in original investigations is "inconsistent with Article 2.4.2 of the Anti-Dumping
Agreement"804, the Panel concluded that the United States acted inconsistently with its obligations
under Article 11.3 of the Anti-Dumping Agreement by relying, in the eight sunset reviews at issue, on
margins obtained through model zeroing in prior investigations.805
372. The United States asserts that the Panel failed to make an objective assessment under
Article 11 of the DSU in reaching the "erroneous conclusion" that the European Communities made
out a prima facie case that the margins in the original inv estigations underlying the eight sunset
reviews were obtained through model zeroing. 806 The United States submits that, in order to establish
that the United States breached Article 11.3 of the Anti-Dumping Agreement , the European
Communities must "provide evidence from the inves tigations in which the dumping margins at issue
were calculated showing that model zer oing was employed in calculating those particular dumping
margins".807 The United States mainta ins that the "sole basis" 808 for the Panel's finding was language
from the USDOC December 2006 Notice, in which the USDOC announced that it would no longer
use model zeroing in W-W comparisons in original i nvestigations. Such a general statement, in the
United States' view, does not provide evidence as to wh ether zeroing was in fact used in calculating
the specific margins relied upon in each of the eight sunset reviews at issue. The United States adds
that none of the other evidence submitted by th e European Communities supported a finding that
model zeroing was used to calculate margins in the original investig ations underlying the eight sunset
reviews. Therefore, the United States asserts that the Panel's finding that model zeroing was used in
the investigations underlying the sunset reviews at issue "lack[s] a basis in the evidence contained in

801Panel Report, para. 7.200.
802Panel Report, para. 7.196.
803Panel Report, paras. 7.195 and 7.196 (referring to Appellate Body Report, US – Zeroing (Japan) ,
para. 185).
804Panel Report, para. 7.196.
805Panel Report, para. 7.202.
806United States' other appellant's submission, para. 115.
807United States' other appellant's submission, para. 118. (original emphasis)
808United States' other appellant's submission, para. 119.

the panel record". 809 On this basis, the United States requ ests that the Appellate Body reverse the
Panel's finding that it acted inconsistently with Article 11.3 of the Anti-Dumping Agreement.
373. The European Communities argues that the Panel was entitled to conclude from the evidence
in the record that, "in the eight sunset reviews at issue, the USDOC relied, either exclusively or along
with margins obtained in prior periodic reviews, on margins obtained through model zeroing in prior
investigations".810 In reaching this conclusion, the Pane l properly drew inferences from the facts
available in the record, including the fact that th ere was a concrete policy change declared by the
USDOC to depart from its practice of using model zero ing in original investigations, and the fact that
the original investigations underlying the sunset reviews at issue took place before this policy
change.811 The European Communities further maintain s that the United States did not submit any
evidence to rebut the European Co mmunities' assertion concerning the sunset reviews at issue, and
that the Panel properly took this additional fact into account in drawing its final conclusion. 812
Therefore, the European Communiti es requests the Appellate Body to reject the United States' claim
and to find, instead, that the Panel "made an objec tive assessment of the facts when finding that the
European Communities demonstrated that in the s unset reviews at issue, the USDOC relied ... on
margins obtained through model zeroing in prior investigations."813
374. We recall that, before the Panel, there was no disagreement between the parties that, in the
eight sunset reviews at issue, the USDOC used margins obtained in the underlying original
investigations.814 Furthermore, the United States did not contest the Panel's reliance on the Appellate
Body's finding, in US – Zeroing (Japan), that to the extent that a sunset review determination is based
on previous margins obtained through a methodol ogy that is inconsistent with the covered
agreements, the resulting sunset review determinati ons would also be incons istent with the covered
agreements.815 Neither did the United States contest th e Panel's finding that the model zeroing
methodology in original investigations is inconsistent with Article 2.4.2 of the Anti-Dumping
Agreement.816
375. Thus, in order to make findings on the Eur opean Communities' claims relating to the eight
sunset reviews, the remaining issue before th e Panel was whether the dumping margins from the

809United States' other appellant's submission, para. 121 (quoting Appellate Body Report, US – Carbon
Steel, para. 142).
811European Communities' appellee's submission, paras. 75 and 76.
814Panel Report, para. 7.198.
815Panel Report, paras. 7.195 and 7.196.

original investigations underlying the eight sunset reviews, which the USDOC relied upon to make its
likelihood determinations, were calculated on the basis of the model zeroing methodology. The Panel
found that these margins were calculated using the model zeroing methodology on the basis of the
following: (i) an announcement in the USDO C December 2006 Notice stating that the USDOC
would no longer apply the model zeroing methodology in original investigations; and (ii) the fact that
the original investigations underlying the eight sunset reviews were all completed before this
announced change became effective on 22 February 2007.
817
376. According to the United States, "a general stat ement" in which the USDOC announced that it
would no longer use model zeroing in original inv estigations "does not provide evidence as to
whether zeroing was in fact employed in the speci fic margins relied upon in each of the challenged
sunset reviews." 818 Therefore, in the United States' view, the Panel failed to conduct an objective
assessment of the matter because its finding that the model zeroing methodology was used in the
original investigations underlying the eight sunset reviews lacked a basis in the evidence contained in
the Panel record.819
377. The "general statement" to which the United States refers states that:
The Department will no longer make average-to-average comparisons in
investigations without providing offsets for non-dumped comparisons.820
378. As the United States points out, this statement concerns what the USDOC would no longer do
after 22 February 2007. 821 We recognize that, taken in isolati on, this sentence might not have been
conclusive of the issue of whether the USDOC in fact used model zeroing in all W-W comparisons in
the original investigations conducted before that date.
379. Nonetheless, other evidence submitted by the European Communities to the Panel lends
support to a finding that the model zeroing methodology was indeed used in the original
investigations that were conducted before the USDOC's above announcement. Specifically, in the
same document on which the Panel relies, the USDOC also made clear, in a separate paragraph, that it
applied the model zeroing methodology in original investigations prior to this change in its
methodology. This paragraph was specifically c ited in the European Communities' response to the
Panel's request to show that the zeroing methodol ogy was used in the original investigations
underlying the eight sunset reviews. More specifically, the European Communities replied that:

817Panel Report, paras. 7.198-7.200.
818United States' other appellant's submission, para. 119.
819United States' other appellant's submission, para. 121.
820Panel Report, para. 7.199 (quoting USDOC December 2006 Notice, supra, footnote 92).
821United States' other appellant's submission, para. 119.

It is undisputed that before 22 February 2007, the USDOC applied model zeroing in
weighted average dumping margin calculations during the original investigation. As
stated in the USDOC Notice dated 27 December 2006:
The [USDOC] is modifying its methodology in antidumping
investigations with respect to the calculation of the weighted–average
dumping margin. This final modification is necessary to implement
the recommendations of the World Trade Organization Dispute
Settlement Body. Under this final modification, the [USDOC] will no
longer make average–to-average comparisons in investigations
without providing offsets for non–dumped comparisons. (…)
Prior to this modification , when aggregating the results of the
averaging groups in order to de termine the weighted–average
dumping margin, the [USDOC] did not permit the results of
averaging groups for which the we ighted–average export price or
constructed export price exceeds the normal value to offset the results
of averaging groups for which the weighted–average export price or
constructed export price is less than the weighted–average normal
value.
822 (emphasis added by the European Communities)
380. As background, we recall that "model zeroing" refe rs to the use of zeroing in investigations
where the normal value and the export price are compared on a weighted average-to-weighted average
basis.823 Thus, pursuant to the model zeroing methodol ogy, where the weighted-average export price
exceeds the weighted-average normal value, the results of the comparison will be regarded as zero, so
as not to "offset" the comparison results in which th e weighted-average export price is less than the
weighted-average normal value. Therefore, by stating that it did not permit such "offsets" in original
investigations conducted before the announced change, the USDOC made it clear, in its
announcement that, prior to 22 February 2007, model zeroing was consistently used in original
investigations.
381. This response of the European Communities was referenced by the Panel in a footnote to its
Report, without reproducing the full text of the response.
824 In addition, before the Panel, it was
undisputed that the original investigations unde rlying the eight sunset reviews were completed
before 22 February 2007. Moreover, the United States did not submit any evidence in rebuttal to
show that the model zeroing methodology was not used in the original investigations at issue. In our
view, therefore, the Panel had before it a suffici ent evidentiary basis for its conclusion that the
margins relied upon by the USDOC in these eight s unset reviews were calculated using the model
zeroing methodology.

822European Communities' response to Panel Question 2(b) following the second meeting (quoting
USDOC December 2006 Notice, supra, footnote 92).
823Panel Report, para. 2.2.
824Panel Report, footnote 161 to para. 7.198.

382. The Appellate Body has interpreted Article 11 of the DSU as requiring panels not to wilfully
disregard or distort the evidence put before them, and not to make affirmative findings that lack a
basis in the evidence.
825 Provided that panels' actions remain within these limits, the Appellate Body
has consistently held that it would not interfere ligh tly with the a panel's exercise of its discretion in
the assessment of the facts. 826 In this dispute, the United States alleges that the Panel acted
inconsistently with Article 11 in finding that the model zeroing methodology was used in the
investigations underlying the eight sunset reviews, arguing that this finding lacked a basis in the
evidence contained in the Panel record. Howeve r, we have found that the Panel's finding was
supported by the evidence before it. Therefore, we do not consider that the Panel committed legal
error in reaching its finding that the model zeroi ng methodology was used in the investigations
underlying the eight sunset reviews at issue.
383. On this basis, we dismiss the United States' claim that the Panel failed to conduct an objective
assessment of the matter, as required by Article 11 of the DSU, in finding that the United States acted
inconsistently with Article 11.3 of the Anti-Dumping Agreement with regard to the eight sunset
reviews and, consequently, uphold the Panel's finding.
IX. The European Communities' Request for a "Suggestion" under Article 19.1 of the DSU
384. We now consider the European Communities' arguments relating to its request for a
suggestion under the second sentence of Article 19.1 of the DSU.
385. Before the Panel, the European Communities asked the Panel "t o suggest that the steps the
United States might take in the implementation of the DSB recommendations and rulings following
this dispute should be WTO-cons istent, particularly with regard to the issue of zeroing." 827 T h e
United States responded that there is no basis in the DSU for a panel to make a suggestion for
"purposes of avoiding unnecessary discussions about wh at might or might not fall within the scope of
a compliance panel." 828 The United States further emphasized that, "[i]t is unreasonable that the
[European Communities] is even asking this Panel to start from the premise that there would be a
dispute as to compliance."829

825Appellate Body Report, US – Carbon Steel, para. 142.
826Appellate Body Report, EC – Asbestos , para. 161; Appellate Body Report, EC – Hormones ,
para. 132; Appellate Body Report, EC – Sardines , para. 299; Appellate Body Report, Japan – Apples ,
para. 222; Appellate Body Report, Korea – Dairy, para. 137; and Appellate Body Report, US – Wheat Gluten,
para. 151.
827Panel Report, para. 8.4.
828Panel Report, para. 8.4.
829United States' comments to the European Communities' response to Panel Question 4.

386. The Panel noted that Article 19.1 of the DSU s tipulates that "when a panel or the Appellate
Body finds a measure to be inconsistent with a covered agreement, it shall recommend that the
measure be brought into conformity with the relevant agreement" and that, in such cases, "the panel or
the Appellate Body may suggest ways in wh ich such recommendation may be implemented." 830
Having found that the United States acted inco nsistently with its obligations under the Anti-Dumping
Agreement and the GATT 1994, the Panel declined to make a suggestion as to how the DSB
recommendations and rulings could be implemented by the United States. The Panel said that it is
"evident" under the DSU, including Article 19.1, that "Members must implement DSB
recommendations and rulings in a WTO-consistent manner." 831 The Panel added that it could not
"presume that Members might act inconsistently w ith their WTO obligations in the implementation of
DSB recommendations and rulings." 832 On this basis, the Panel d eclined the European Communities'
request for a suggestion under the second sentence of Article 19.1.
387. On appeal, the European Communities raises two issues concerning Article 19.1 of the DSU.
First, the European Communities asserts that the Panel committed "legal error" 833 by declining to
make a suggestion regarding implementation. S econdly, the European Communities asks that the
Appellate Body exercise its discretion under Article 19.1 of the DSU to make such a suggestion in
this appeal.834
388. We begin our analysis by examining the text of Article 19.1 of the DSU, which provides, in
relevant part, as follows:
Where a panel or the Appellate Body concludes that a measure is
inconsistent with a covered agreement, it shall recommend that the
Member concerned bring the measure into conformity with that
agreement. In addition to its recommendations, the panel or
Appellate Body may suggest ways in which the Member concerned
could implement the recommendations. (footnotes deleted; emphasis
added)
389. Article 19.1 contains two components. The first sentence is mandatory, requiring panels or
the Appellate Body, if they find the challenged meas ure to be inconsistent with a provision of the
covered agreements, to recommend that the respond ent Member bring its measure into conformity
with that agreement. The second sentence confers a discretionary right, auth orizing panels and the
Appellate Body to suggest ways in which those recommendations may be implemented. Therefore, as
the right to make a suggestion is discretionary, a pa nel declining a request for such a suggestion does

830Panel Report, para. 8.6.
831Panel Report, para. 8.7.
832Panel Report, para. 8.7.

not act contrary to Article 19 of the DSU. Accordin gly, we do not find that the Panel committed legal
error in declining to make a suggestion under the second sentence of Article 19.1.
390. We now consider the European Communities' request for the Appellate Body to make a
suggestion pursuant to Article 19.1. We begin by detailing the request that the European
Communities made to the Panel.
391. The European Communities asked the Panel to suggest that the United States cease using
zeroing when calculating dumping margins in any anti-dumping proceeding with respect to
the 18 measures identified in the annex to the European Communities' panel request.
835 According to
the European Communities, "[t]his suggestion would be appropriate to help promote the resolution of
the dispute because it would provide helpful guidance to the United States as to what it must do in
order to comply, and hopefully c ontribute to avoiding the need fo r further compliance proceedings,
for example as a result of a switch by the United States to some other comparison method (such as
transaction-to-transaction) but still based on zeroing." 836 The European Communities also requested
the Panel to suggest that the United States "should take all necessary steps of a general or particular
nature to ensure that any further specific action against dumping by the United States in relation to the
same products from the European Communities as referenced in the present dispute be WTO
consistent, and specifically with re ference to the question of zeroing." 837 The European Communities
explains that this "suggestion was intended to reduce the need for protracted and unnecessary
discussions about the scope of any compliance panel."838
392. Referring to Articles 3.3 and 3.4 of the DSU, the European Communities argues that absent
any "clear suggestion" from the Panel or the A ppellate Body as to how the United States could
implement the recommendation to bring its measures into conformity with its WTO obligations, the
objectives of prompt settlement and achieving a satisf actory settlement of the matter "may simply not
be achieved".839 The European Communities also emphasizes that "the circumstances of this dispute
require clarity" and argues that a suggestion by the Appellate Body under Article 19.1 of the DSU
could be "very useful for providing the necessary clar ity as to the implications of the reports when
adopted".840

836European Communities' appellant's submission, para . 215 (referring to European Communities' first
written submission to the Panel, Panel Report, Annex A-1, p. A-59, para. 266).
837European Communities' appellant's submission, para. 216 (referring to European Communities'
closing statement at the second Panel meeting).

393. The Appellate Body observed in the recent compliance proceedings in EC – Bananas III, that
"suggestions made by panels or the Appellate Body may provide useful guidance and assistance to
Members and facilitate implementation of DSB recommendations and rulings, particularly in complex
cases."841 In the present case, the European Communiti es appears to request that the Appellate Body
suggest that the United States cease using zer oing when calculating dumping margins in " any anti-
dumping proceeding "842 with respect to the 18 cases identif ied in the annex to the European
Communities' panel request.
394. We have upheld the Panel's findings that simp le zeroing as applied by the United States
in 29 periodic reviews is inconsis tent with Article 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994. We have also found that the United States acted inconsistently with
Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 in respect of five
additional periodic reviews. Moreover, we have uphe ld the Panel's findings that the United States
acted inconsistently with Article 11.3 of the Anti-Dumping Agreement in eight sunset reviews by
relying on margins of dumping calculated through the use of zeroing. In the light of these findings,
and our findings regarding the European Communities' claims against the continued application of the
zeroing methodology in 18 cases, we do not consider it necessary to further consider the European
Communities' request for a suggestion under Article 19.1 of the DSU.
X. Findings and Conclusions
395. For the reasons set out in this Report, the Appellate Body:
(a) regarding the European Communities' clai ms concerning the continued application
of the 18 anti-dumping duties at issue:
(i) reverses
 the Panel's finding that the Eur opean Communities failed to comply
with Article 6.2 of the DSU, and finds , instead, that the panel request
identifies the specific measures at issue;
(ii) declines to make additional findings concerning whether the Panel acted
inconsistently with Articles 7.1, 7.2, 11, and 12.7 of the DSU;
(iii) concludes that the continued application of the anti-dumping duties in each of
the 18 cases was identified in the request for consultations;

841Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III
(Article 21.5 – US), para. 325.

(iv) finds
 that the continued use of the zeroing methodology in successive
proceedings in which duties resulti ng from the 18 anti-dumping duty orders
are maintained, constitute measures that can be challenged in WTO dispute
settlement;
(v) regarding Ball Bearings and Parts Thereof from Italy (Case II), Ball Bearings
and Parts Thereof from Germany (Case III), Ball Bearings and Parts Thereof
from France (Case IV), and Stainless Steel Sheet and Strip in Coils from
Germany (Case VI):
- finds that the Panel's factual findings sufficiently establish the continued use
of the zeroing methodology in successive proceedings whereby duties in
these cases are maintained;
- concludes
 that the application and continued application of anti-dumping
duties is inconsistent with Articles 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994 to the exte nt that the duties are maintained at
a level calculated through the use of the zeroing methodology in periodic
reviews;
- concludes that the application and continued application of anti-dumping
duties is inconsistent with Article 11.3 of the Anti-Dumping Agreement to the
extent that reliance is placed upon a margin of dumping calculated through
the use of the zeroing methodology in ma king sunset review determinations;
and
- declines to make additional findings under Articles 2.1, 2.4, 2.4.2, and 11.1
of the Anti-Dumping Agreement , Article VI:1 of the GATT 1994, and
Article XVI:4 of the WTO Agreement for purposes of resolving this dispute;
(vi) declines to complete the analysis in respect of the remaining 14 of
the 18 anti-dumping cases at issue; and
(b) regarding the European Communities' claims concerning four preliminary
determinations:
(i) reverses the Panel's finding that the European Communities' claims
concerning the four preliminary determ inations were outside the Panel's
terms of reference; and

(ii) declines the European Communities' request for a finding that the four
preliminary determinations are incons istent with "the provisions of the
GATT 1994 and the Anti-Dumping Agreement cited in the Panel
proceedings";
(c) upholds the Panel's finding that the 14 periodi c and sunset reviews were within the
Panel's terms of reference;
(d) upholds the Panel's finding that the United States acted inconsistently with Article 9.3
of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 by applying
simple zeroing in the 29 periodic reviews, and accordingly declines to rule on the
conditional appeals of the European Communities regarding the Panel's finding;
(e) as regards the European Communities' claims concerning the seven periodic reviews:
(i) finds that the Panel acted inconsistently with Article 11 of the DSU when it
found that the European Communities had not shown that simple zeroing was
used in the seven periodic reviews at issue and, consequently, reverses
 this
finding of the Panel;
(ii) completes the analysis and finds that the European Communities has shown
that simple zeroing was used, and that the United States acted inconsistently
with Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping
Agreement by applying simple zeroing in the periodic reviews in Steel
Concrete Reinforcing Bars from Latvia (Case I – No. 3); Stainless Steel Bar
from Germany (Case IX – No. 33); Stainless Steel Bar from Germany
(Case IX – No. 34); Stainless Steel Bar from Italy (Case XI – No. 39); and
Certain Pasta from Italy (Case XIII – No. 43); and
(iii) declines to complete the analysis in respect of the periodic reviews in
Stainless Steel Bar from France (Case V – No. 20) and Stainless Steel Bar
from France (Case V – No. 21);
(f) dismisses the United States' claim that the Panel acted inconsistently with Article 11
of the DSU in finding that the United States acted inconsistently with Article 11.3 of
the Anti-Dumping Agreement with regard to the eight sunset reviews and,
consequently, upholds this finding of the Panel; and

(g) rejects
 the European Communities' request for a suggestion under Article 19.1 of the
DSU.
396. The Appellate Body recommends that the DSB request the United States to bring its
measures, found in this Report, and in the Panel Repor t as modified by this Report, to be inconsistent
with the GATT 1994 and the Anti-Dumping Agreement , into conformity with its obligations under
those Agreements.

Signed in the original in Geneva this 20th day of January 2009 by:

Yuejiao Zhang
Presiding Member

 _________________________ _________________________
 Luiz Olavo Baptista David Unterhalter
 Member Member

ANNEX I

10 November 2008
 (08-5429)
 Original: English

Notification of an Appeal by the European Communities

under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 20(1) of the Working Procedures for Appellate Review

 The following notification, dated 6 November 2008, from the Delegation of the European
Communities, is being circulated to Members.

 Pursuant to Article 16.4 and Article 17 of the DSU the European Communities hereby notifies
to the Dispute Settlement Body its decision to app eal to the Appellate Body certain issues of law
covered in the Panel report and cer tain legal interpretations devel oped by the Panel in the dispute
 (WT/DS350/R).
Pursuant to Rule 20(1) of the Working Procedures for Appellate Review , the European Communities
simultaneously files this Notice of Appeal with the Appellate Body Secretariat.
 For the reasons set out in its submissions to the Panel, and for the reasons to be further
elaborated in its submissions to the Appellate B ody, the European Communities appeals, and requests
the Appellate Body to modify or reverse the legal findings and conclusions of the Panel and complete
the analysis, with respect to the following errors of law and legal interpretations contained in the
Panel Report:
(a) With respect to each of the 18 measures, th e Panel erred when finding that the European
Communities failed to identify in the panel requ est the specific measure at issue, as required
by Article 6.2 of the DSU, and that consequently the Eur opean Communities' claims with
respect to these 18 measures did not fall wi thin the Panel's terms of reference
(paragraphs 7.40 – 7.67, particularly paragra ph 7.61, and paragraph 8.1(b) of the Panel
Report). The Panel also erred in law when it found that each of the 18 measures is not a
measure within the meaning of Article 3.3 of the DSU (paragraph 7.56 of the Panel Report,
final sentence). In particular, the European Communities submits that the Panel Report:
• erroneously confounds the procedural le gal analysis under Article 6.2 of the DSU on
the question of whether or not the Europ ean Communities' Panel Request identified
the 18 specific measures at issue and the s ubstantive legal analysis under Article 3.3
of the DSU on the question of whether or not the 18 measures at issue are measures
within the meaning of that provision, suscep tible to dispute settlement (particularly,
but not only, at paragraphs 7.41 and 7.50 of the Panel Report);

• is inconsistent with Article 7.1 of the DSU regarding a panel's terms of reference;
with Article 12.1, Appendix 3 and paragra phs 4 and 13 of the Working Procedures of
24 July 2007 regarding the timeliness of submissions including requests for
preliminary rulings; with the rule that the United States had the burden of raising an
issue under Article 3.3 of the DSU; and with the rule that the Panel must not make the
case for the defending Member – insofar as the Panel made findings regarding the
existence and precise content of the 18 measu res, which relate to Article 3.3 of the
DSU, and concern matters never raised by the United States;
• is based on an erroneous interp retation of Article 6.2 of the DSU, insofar as it
requires, in effect, that the Article 3.3 DSU standard be met in the panel request
(particularly, but not only, at paragraph 7.50 of the Panel Report);
• is based on an erroneous interpretation of Article 3.3 of the DSU (and/or Article 6.2
of the DSU), insofar as it effectively interprete d that provision or those provisions so
as to conclude that the European Communities had not demonstrated the existence
and precise content of the 18 measures at issue (particularly, but not only, at
paragraphs 7.50, third sentence and paragra phs 7.50, fifth and seventh sentences of
the Panel Report). The 18 measures are simply case specific instances of the
application of the zeroing methodology, the existence and precise content of which
has been repeatedly established. These measures are presently experienced directly by
EC exporters paying anti-dumping duty rates inflated by zeroing;
• is based on an erroneous interp retation of Article 6.2 of the DSU insofar as it
interpreted that provision so as to concl ude that the European Communities' Panel
Request did not identify the specific measure s at issue. The 18 measures are simply
more specific instances of the application of the zeroing methodology (identified by
reference to particular products, a particular exporting Member and particular duties);
• is inconsistent with Article 7.2 of the DSU insofar as the Panel did not, with respect
to this issue, address relevant provisions of the GATT 1994 (Articles II.2(b), VI.1,
VI.2 and XXIII) and the Anti-Dumping Agreement (Articles 1, 7.2, 8.6, 9.1, 9.2, 9.3,
11.1, 11.2, 11.3, 12.2.2, 15, 17.4 and 18.3.2) cited in this dispute;
• is inconsistent with Article 11 of the DSU, insofar as the Panel failed to make an
objective assessment of the matter before it, including an objective assessment of the
facts of the case and the applicability of a nd conformity with th e relevant covered
agreements; and
• is inconsistent with Article 12.7 of the DSU insofar as the Panel did not set out the
basic rationale behind its findings and recommendations.
Having modified or reversed the Panel's fi ndings, the European Communities requests the
Appellate Body to complete the analysis by fi nding that, with respect to the 18 measures, the
European Communities' Panel Request identified the specific measures at issue as required by
Article 6.2 of the DSU and, insofar as the Appellate Body reaches the issue, that the European
Communities demonstrated the existence and precise content of 18 measures within the
meaning of Article 3.3 of the DSU. The European Communities further requests the Appellate
Body to complete the analysis by finding th at, because of the use of zeroing, each of the
18 measures is inconsistent with Articles VI :1 and VI:2 of the GATT 1994, Articles 2.4,
2.4.2, 9.3, 11.1 and 11.3 of the Anti-Dumping Agreement , and Article XVI:4 of the WTO
Agreement.

If the Appellate Body accepts this part of the appeal and completes the analysis as requested
by the European Communities, then the European Communiti es would accept that parts (b)
and (c) of this appeal could be dealt with by the Appellate Body declaring the Panel's findings
moot and of no legal effect.
(b) The Panel erred when excluding four preliminar y determinations from its terms of reference
on the basis of Articles 17.4 and 7.1 of the Anti-Dumping Agreement (paragraphs 7.70 – 7.77,
particularly paragraph 7.77, and paragraph 8.1(c) of the Panel Re port). The determinations in
question were not provisional measures within the meaning of Article 7, but part of the
continuing application of existing definitiv e anti-dumping duties based on zeroing, being
preliminary outcomes of one of the five types of anti-dumping proceeding.
Having modified or reversed the Panel's fi ndings, the European Communities requests the
Appellate Body to complete the analysis by finding that the administrative review preliminary
determination is inconsistent with Articles VI:2 of the GATT 1994, Articles 2.1, 2.4, 2.4.2,
9.3 and 11.2 of the Anti-Dumping Agreement, and Article XVI:4 of the WTO Agreement; and
that each of the three sunset review preliminar y determinations is inconsistent with Articles
2.1, 2.4, 2.4.2, 11.1 and 11.3 of the Anti-Dumping Agreement, and Article XVI:4 of the WTO
Agreement.
(c) The Panel made factual and legal errors in violation of, inter alia, Article 11 of the DSU when
concluding that the European Communities had not shown that simple zeroing was used in
seven administrative reviews (paragraph 7.15 8 of the Panel Report and, by omission,
paragraph 8.1(e) of the Panel Report). In particular, the European Communities contends that:
• the Panel failed to carry out an objective assessment of the facts as required by
Article 11 of the DSU when concluding that the European Communities did not make
a prima facie case that simple zeroing was used in seven administrative reviews
(paragraphs 7.145 – 7.158 of the Panel Report, particularly, paragraphs 7.151, 7.152,
7.153, 7.154, 7.155, 7.156, 7.157 and (concluding) 7.158). The Panel Report ignores
the totality of the evidence provided by the European Communities to show the use of
zeroing in this case. For each measure the European Communities demonstrated that
the methodology was part of the measure, and provided additional evidence over and
above what was required to make a prima facie case. Furthermore, in essence, the
Panel Report is based on the disavowing of documents imputable to the United States
regarding the use of zeroing, and particularly the disavowing of paper copies or print
runs of electronic documents provided directly by and imputable to the United States,
which documents are expressly referenced in and form part of the measures at issue.
The original documents are held on file by the United States, but the United States
declines to produce or consult the originals. At the same time the United States does
not assert that the documents have been improperly altered by the European
Communities nor did the United States contest the accuracy of any of the relevant
data contained in the copies produced by the European Communities;
• the Panel failed to apply a reasonable bur den of proof (paragraphs 6.5 – 6.20,
particularly paragraph 6.20, of the Panel Report); and
• the Panel made an error when disregardi ng the European Communities' request for
the Panel to ask further information pursuant to Article 13 of the DSU
(paragraph 6.20 and footnote 20 of the Panel Report).
Having modified or reversed the Panel's fi ndings, the European Communities requests the
Appellate Body to complete the analysis by finding that each of the seven administrative
review determinations is inconsis tent with Articles VI:2 of the GATT 1994, Articles 2.1, 2.4,

2.4.2, 9.3 and 11.2 of the Anti-Dumping Agreement , and Article XVI:4 of the WTO
Agreement.
(d) The Panel made a legal error when disreg arding the European Communities' requests for
suggestions (paragraph 8.7 of the Panel Repor t) and the European Communities requests the
Appellate Body to modify or reverse the fi ndings in the Panel Report and complete the
analysis by making suggestions pursuant to Article 19.1 of the DSU, such as those requested
by the European Communities in the Panel proceedings, or as otherwise considered
appropriate by the Appellate Body.
The European Communities also makes two conditional appeals.
First, if the Panel Report is construed as finding that a pane l can invoke "cogent reasons" for
departing from previous Appellate Body findin gs on the same issue of legal interpretation
(paragraphs 7.180 and 7.182 of the Panel Report) , then the European Communities requests the
Appellate Body to modify or reverse those findings and complete the analysis, for all the reasons set
out by the Appellate Body in its report in US – Stainless Steel from Mexico. The European
Communities considers that a panel may invoke "coge nt reasons" in order to depart from previous
panel findings; but only the Appellate Body can invoke "cogent reasons" in order to depart from
previous Appellate Body findings.
Second, if the United States appeals the findings in paragraphs 7.183 and 8.1(e) of the Panel
Report (particularly as regards what the Panel refers to as "the role of jurisprudence"); and if the
Appellate Body modifies or reverses those findi ngs in whole or in part; then the European
Communities requests the Appellate Body to modify or reverse (and complete the analysis) with
respect to the substantive findings or the exercise of false judicial economy in the Panel Report on the
substantive issue of zeroing in administrative reviews.
1 In such eventuality, the European
Communities submits that the measures are inconsistent with Articles VI:2 of the GATT 1994 ,
Articles 2.1, 2.4, 2.4.2, 9.3 and 11.2 of the Anti-Dumping Agreement, and Article XVI:4 of the WTO
Agreement, for the reasons set out in full in its pleadings before the Panel, and in the separate opinion
(paragraphs 9.1 to 9.10 of the Panel Report).

ANNEX II

21 November 2008
 (08-5691)
 Original: English

Notification of an Other Appeal by the United States

under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 23(1) of the Working Procedures for Appellate Review

 The following notification, dated 18 November 2008, from the Delegation of the United
States, is being circulated to Members.

 Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (“DSU”) and Rule 23(1) of the Working Procedures for Appellate Review, the
United States hereby notifies its decision to appeal to the Appellate Body certain issues of law
covered in the report of the panel in (WT/DS350/R) (“Panel Report”) and certain legal interpretations developed by the
Panel in this dispute.

1. The United States seeks review by the Appellate Body of the Panel’s finding that Members
need not consult on a measure prior to requesting a pa nel to review that measure. In particular the
United States seeks review by the Appellate Body of the Panel’s finding that the 14 periodic reviews
and sunset reviews that were identified in the EC’s panel request, but not in the EC’s consultations
request, were within the Pa nel’s terms of reference.
1 This finding is in error and is based on
erroneous findings on issues of law and relate d legal interpretations, including an incorrect
interpretation of Articles 4, 6, and 7 of the DSU and Articles 17.3, 17.4, and 17.5 of the Agreement on
Implementation of Article VI of the Ge neral Agreement on Tariffs and Trade 1994 (“AD
Agreement”).

2. The United States seeks review of the Pa nel’s conclusion that the United States acted
inconsistently with its obligati ons under Article VI:2 of the General Agreement on Tariffs and
Trade 1994 (“GATT 1994”) and Article 9.3 of the AD Agreem ent by applying simple zeroing in the
29 periodic reviews at issue in this dispute.
2 This conclusion is in error and is based on erroneous
findings on issues of law and related legal interpre tations, including the improper interpretation and
application of Article 17.6(ii) of the AD Agre ement, Article 9.3 of the AD Agreement, and
Article VI:2 of the GATT 1994.

1See, e.g., Panel Report, paras. 7.17-7.28; 8.1(a).
2See, e.g., Panel Report, paras. 7.162-7.169; 7.178-7.183; 8.1(e).

3. The United States requests the Appellate Body to find that the Panel failed to 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 th e relevant covered agreements” as required by
Article 11 of the DSU with respect to the EC’s claims that the United States acted inconsistently with
its obligations under Article 11.3 of the AD Agre ement in the eight sunset reviews at issue.
3 The
Panel’s failure to undertake an objective assessment includes the erroneous finding that the EC made
a prima facie case that the margins in the underlying prior investigations were obtained through so-
called model zeroing.

3See, e.g., Panel Report, paras. 7.192-7.202; 8.1(f).

ANNEX III

ORGANISATION MONDIALE ORGANIZACIÓN MUNDIAL
 DU COMMERCE DEL COMERCIO

APPELLATE BODY

AB-2008-11

Procedural Ruling

1. On 14 November 2008, the Division hearing th is appeal received a request from the European
Communities to allow observation by the public of the oral hearing in the above appellate
proceedings. On 17 November 2008, the United States also requested the Division to authorize public
observation of the oral hearing. 1 The participants argued that nothing in the Understanding on Rules
and Procedures Governing the Settlement of Disputes (the "DSU") or the Working Procedures for
Appellate Review (the " Working Procedures") precludes the Appellate Body from authorizing public
observation of the oral hearing.2

2. On 18 November 2008, we invited the thir d participants to comment in writing on the
requests of the participants. In particular, we asked the third participants to provide their views on the
permissibility of opening the hearing under the DSU and the Working Procedures , and, if they so
wished, on the specific logistical arrangements pr oposed in the requests. We received comments on
24 November from Brazil, China, Egypt, India, Japan , Korea, Mexico, Norway, the Separate Customs
Territory of Taiwan, Penghu, Kinmen and Matsu, and Thailand. Japan, Norway, and the Separate
Customs Territory of Taiwan, Penghu, Kinmen and Ma tsu expressed their support for the requests of
the participants. Brazil, China, Egypt, India, Mexico, and Thailand expressed the view that the
provisions of the DSU do not allow public hearings at the appellate stage. Korea shared these
concerns but did not object to the opening of the or al hearing to the public in these proceedings; at
the same time, it requested the Appellate Body to treat its written and oral statements as confidential.
According to these third participants, the oral hearin g forms part of the proceedings of the Appellate
Body and, therefore, is subject to the requirement of Article 17.10 of the DSU that "[t]he proceedings
of the Appellate Body shall be confidential."

3. We are making the following ruling on the requests of the participants, having carefully
considered the comments of the third participants. Ar ticle 17.10 must be read in context, particularly
in relation to Article 18.2 of the DSU. The sec ond sentence of Article 18.2 expressly provides that
"[n]othing in this Understanding shall preclude a part y to a dispute from disclosing statements of its
own positions to the public". Thus, under Arti cle 18.2, the parties may decide to forego
confidentiality protection in respect of their statemen ts of position. The third sentence of Article 18.2
states that "Members shall treat as confidential information submitted by another Member to the panel
or the Appellate Body which that Member has desi gnated as confidential." This provision would be
redundant if Article 17.10 were interpreted to requi re absolute confidentiality in respect of all
elements of appellate proceedings. There would be no need to require, pursuant to Article 18.2, that a

1The participants expressed a preference for simu ltaneous, closed-circuit television broadcast to
another room, with the transmission switched off when those third participants who do not wish to make their
statements public take the floor.
2Similar requests were made in the appeals in United States / Canada – Continued Suspension of
Obligations in the EC – Hormones Dispute and European Communities – Regime for the Importation, Sale and
Distribution of Bananas (Article 21.5 – Ecuador / United States).

Member designate certain information as confidential. The last sentence of Article 18.2 ensures that
even such designation by a Member does not put an end to the right of another Member to make
disclosure to the public. Upon request, a Member must provide a non-confidential summary of the
information contained in its written submissions that it designated as confidential, which can then be
disclosed to the public. Thus, Article 18.2 provi des contextual support for the view that the
confidentiality rule in Article 17.10 is not absolute . Otherwise, no disclosure of written submissions
or other statements would be permitted during any stage of the proceedings.

4. In practice, the confidentiality requirement in Article 17.10 has its limits. Notices of Appeal
and Appellate Body reports are discl osed to the public. Appellate Bo dy reports contain summaries of
the participants' and third participants' written and oral submissions and frequently quote directly from
them. Public disclosure of Appellate Body reports is an inherent and necessary feature of our rules-
based system of adjudication. Consequently, u nder the DSU, confidentiality is relative and time-
bound.

5. In our view, the confidentiality requiremen t in Article 17.10 is more properly understood as
operating in a relational manner.
3 There are different sets of relationships that are implicated in
appellate proceedings. Among them are the following relationships. First, a relationship between the
participants and the Appellate Body. Secondly, a relationship between the third participants and the
Appellate Body. The requirement that the proceedi ngs of the Appellate Body are confidential affords
protection to these separate relationships and is intend ed to safeguard the inter ests of the participants
and third participants and the adj udicative function of the Appellate Body, so as to foster the system
of dispute settlement under conditions of fairness, im partiality, independence and integrity. In this
case, the participants have requested authoriza tion to forego confidentiality protection for their
communications with the Appellate Body at the oral hearing. The requests of the participants do not
extend to any communications, nor touch upon the relati onship, between the third participants and the
Appellate Body. The right to confidentiality of third participants vis-à-vis the Appellate Body is not
implicated by these requests. The question is thus whether the participants' requests to forego
confidentiality protection satisfy the requirements of fairness and integrity that are the essential
attributes of the appellate process and define th e relationship between the Appellate Body and the
participants. If the requests meet these standard s, then the Appellate Body would incline towards
authorizing them.

6. We note that the DSU does not specifically provide for an oral hearing at the appellate stage.
The oral hearing was instituted by the Appellate Body in its Working Procedures, which were drawn
up pursuant to Article 17.9 of the DSU. The conduct and organization of the oral hearing falls within
the authority of the Appellate Body ( compétence de la compétence ) pursuant to Rule 27 of the
Working Procedures. Thus, the Appellate Body has the power to exercise control over the conduct of
the oral hearing, including authorizing the lifting of c onfidentiality at the request of the participants as
long as this does not adversely affect the rights and interests of the third participants or the integrity of
the appellate process. As we observed earlier, Artic le 17.10 also applies to the relationship between
third participants and the Appellate Body. Nevert heless, in our view, the third participants cannot
invoke Article 17.10, as it applies to their relationshi p with the Appellate Body, so as to bar the lifting
of confidentiality protection in the relationship be tween the participants and the Appellate Body.
Likewise, authorizing the participants' requests to forego confidentiality does not affect the rights of
third participants to preserve the confidentiality of their communications with the Appellate Body.

7. The powers of the Appellate Body are themsel ves circumscribed in that certain aspects of
confidentiality are incapable of derogation—even by the Appellate Body—where derogation may
undermine the exercise and integrity of the Appellate Body's adjudicative function. This includes the
situation contemplated in the second sentence of Artic le 17.10, which provides that "[t]he reports of

3This relational view of rights and obligations of confidentiality is consistent with the approach
followed in domestic jurisdictions with respect to similar issues, such as privilege.

the Appellate Body shall be drafted without the presen ce of the parties to the dispute and in the light
of the information provided and the statements ma de." Confidentiality of the deliberations is
necessary to protect the integrity, impartiality, and independence of the appellate process. In our
view, such concerns do not arise in a situation wh ere, following requests from the participants, the
Appellate Body authorizes the lifting of the confidentia lity of the participants' statements at the oral
hearing.

8. The Appellate Body has fostered the active pa rticipation of third parties in the appellate
process in drawing up the Working Procedures and in appeal practice. Article 17.4 provides that third
participants "may make written submissions to, a nd be given an opportunity to be heard by, the
Appellate Body." In its Working Procedures, the Appellate Body has given full effect to this right by
providing for participation of third participants during the entirety of the oral hearing, while third
parties meet with panels only in a separate session at the first substantive meeting. The rights of third
participants are distinct from those of the main pa rticipants to a dispute. They have a systemic
interest in the interpretation of the provisions of the covered agreements that may be at issue in an
appeal. Although their views on the questions of lega l interpretation that come before the Appellate
Body are always valuable and thoroughly consid ered, these issues of legal interpretation are not
inherently confidential. However, it is not for th e third participants to determine how the protection
of confidentiality in the relationship between the pa rticipants and the Appellate Body is best dealt
with. We do not consider that the third particip ants have identified a specific interest in their
relationship with the Appellate Body that would be adversely affected if we were to authorize the
participants' requests.

9. The requests for public observation of the oral hearing in this dispute have been made by the
European Communities and the United States. As we explained earlier, the Appellate Body has the
power to authorize the requests by the participants to lift confidentiality, provided that this does not
affect the confidentiality of the relationship between the third participants and the Appellate Body, or
impair the integrity of the appellate process. Th e participants have sugg ested alternative modalities
that allow for public observation of the oral heari ng, while safeguarding the confidentiality protection
enjoyed by the third participants that seek such protection. The modalities include simultaneous or
delayed closed-circuit television broadcasting in a room separate from the room used for the oral
hearing. Finally, we do not see the public observation of the oral hearing, using the means described
above, as having an adverse impact on the integrity of the adjudicative functions performed by the
Appellate Body.

10. For these reasons, the Division authorizes the public observation of the oral hearing in these
proceedings on the terms set out below. Accordingly, pursuant to Rule 16(1) of the Working
Procedures, we adopt the following additional procedures for the purposes of this appeal:

(a) The oral hearing will be open to public ob servation by means of simultaneous closed-
circuit television. The closed-circuit tele vision signal will be shown in a separate
room to which duly registered delegat es of WTO Members and members of the
general public will have access.
(b) Oral statements and responses to questions by third participants wishing to maintain
the confidentiality of their submissions will not be subject to public observation.
(c) Any third participant that has not already done so may request that its oral statements
and responses to questions remain conf idential and not be subject to public
observation. Such requests must be received by the Appellate Body Secretariat no

later than 5:00 p.m. Geneva time on Thursday, 4 December 2008.
(d) An appropriate number of seats will be reserved for delegates of WTO Members in
the room where the closed-circuit broadcast will be shown.

(e) Notice of the oral hearing will be provid ed to the general public through the WTO
website. WTO delegates and members of the general public wishing to observe the
oral hearing will be required to register in advance with the WTO Secretariat.
(f) Should practical considerations not allow si multaneous broadcast of the oral hearing,
deferred showing of the video recording will be used in the alternative.
Geneva, 28 November 2008