MOROCCO - DEFINITIVE ANTI-DUMPING MEASURES ON SCHOOL EXERCISE BOOKS FROM TUNISIA FINAL REPORT OF THE PANEL
Document: Addendum BCI redacted, as indicated [[***]]
Date: 27 July 2021
Document codes: WT/DS578/R/Add.1; WT/DS578/R.
Complainant: Tunisia
Respondent: Morocco
Third parties: Brazil, Canada, China, EU, Japan, Madagascar, Russia, U.S.
Dispute stage: Panel
Agreements cited: Art. 1, 2.1, 2.2, 2.2.1, 2.2.1.1, 2.2.2, 2.4, 3.1, 3.2, 3.4, 3.5, 4.1, 5.2, 5.3, 5.4, 5.8, 6.8, 9.2, 11.1(a), 12.2, 12.2.2, Annex II  Anti-dumpingArt. VI:1, VI:6  GATT 1994

MOROCCO - DEFINITIVE ANTI-DUMPING MEASURES
ON SCHOOL EXERCISE BOOKS FROM TUNISIA
FINAL REPORT OF THE PANEL
Addendum
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This addendum contains Annexes A to C to the Report of the Panel to be found in document

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ANNEX A-1
WORKING PROCEDURES OF THE PANEL
Adopted on 8 May 2020

General

1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the
following Working Procedures apply.
(2) The Panel reserves the right to modify these procedures as necessary, after consultation
with the parties.
Confidentiality
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept
confidential. Members shall treat as confidential information that is submitted to the Panel
which the submitting Member has designated as confidential.
(2) In accordance with the DSU, nothing in these Working Procedures shall preclude a party
or third party from disclosing statements of its own positions to the public.
(3) If a party submits a confidential version of its written submissions to the Panel, it shall
also, upon request of a Member, provide a non -confidential summary of the information
contained in its submissions that could be disclosed to the public. A party shall strive to submit
a non -confidential summary to any Member requesting it as soon as possible and within
10 days of receipt of the request to the extent possible.
(4) Upon request, the Panel may adopt appropriate additional working procedures for the
treatment of business confidential information after consultation with the parties.
Submissions

3. (1) Before the first substantive meeting of the Panel with the parties, each party shall
transmit a written submission in which it presents the facts of the case and its arguments in
accordance with the timetable adopted by the Panel.
(2) Each party shall also submit to the Panel, prior to its second substantive meeting, a
written rebuttal, in accordance with the timetable adopted by the Panel.
(3) Each third party that chooses to make a written submission before the first substantive
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by
the Panel.
(4) The Panel may invite the parties or third parties to make additional submissions during
the proceeding, including with respect to requests for preliminary rulings in accordance with
paragraph 4 below.
Preliminary rulings
4. (1) If Morocco considers that the Panel should make a ruling before the issuance of the
Report that certain measures or claims in the panel request or the complainant's first written
submission are not properly before the Panel, the following procedure applies. Exceptio ns to
this procedure shall be granted upon a showing of good cause.

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a. Morocco shall submit any such request for a preliminary ruling at the earliest possible
opportunity and in any event no later than in its first written submission to the Panel.
Tunisia shall submit its response to the request before the first substantive meeting of the
Panel, at within a reasonable time to be determined by the Panel in light of the request.
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling
request before, during or after the first substantive meeting, or the Panel may defer a
ruling on the issues raised by a preliminary ruling request until it issues its Report to the
parties.
c. If the Panel finds it appropriate to issue a pr eliminary ruling before the issuance of its
Report, the Panel may provide reasons for the ruling at the time that the ruling is made,
or subsequently in its Report.
d. Any request for such a preliminary ruling by Morocco before the first meeting, and any
subsequent submissions of the parties in relation thereto before the first meeting, shall be
served on all third parties. The Panel may provide all third parties with an opportunity to
provide comments on any such request, either in their submissions as provided for in the
timetable or separately. Any preliminary ruling issued by the Panel before the
first substantive meeting on whether certain measures or claims are properly before the
Panel shall be shared with all third parties.
(2) This procedure is wi thout prejudice to the parties' right to request other types of
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel
may follow with respect to such requests.
Evidence
5. (1) Each party shall submit all evidence to the Panel no later than during the
first substantive meeting, except evidence necessary for purposes of rebuttal, or evidence
necessary for answers to questions or comments on answers provided by the other party.
Additional exceptions may be granted upon a showing of good cause.
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall
accord the other party an appropriate period of time to comment on the new evidence
submitted.
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language,
the submitting party or third party shall simultaneously submit a translation of the exhibit or
relevant portion into the WTO working language of the submission. The P anel may grant
reasonable extensions of time for the translation of exhibits upon a showing of good cause.
(2) Any objection as to the accuracy of a translation should be raised promptly in writing,
preferably no later than the next submission or the meet ing (whichever occurs earlier)
following the submission which contains the translation in question. Any objection shall be
accompanied by an explanation of the grounds for the objection and an alternative translation.
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the dispute, indicating the submitting Member and the number of each exhibit on its
cover page. Exhibits submitted by Tunisia should be numbered TUN -1, TUN-2, etc. Exhibits
submitted by Morocco should be numbered MAR-1, MAR-2, etc. If the last exhibit in connection
with the first submission was numbered MAR -5, the first exhibit in connection with th e next
submission thus would be numbered MAR-6.

(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together
with each of its submissions, oral statements, and responses to questions.
(3) If a party submits a document that has already been submitted as an exhibit by the
other party, it should explain why it is submitting that document again.

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(4) If a party includes a hyperlink to the content of a website in a submission, and intends
that the cited content form part of the official record, the cited content of the website shall be
provided in the form of an exhibit indicating the date on which it was viewed.
Editorial Guide
8. In order to facilitate the work of the Panel, each party and third party is invited, to the extent
possible, to make its submissions in accordance with the WTO Editorial Guide for Panel Submissions
(electronic copy provided).
Questions

9. The Panel may pose questions to the parties and third parties at any time, including:
a. Before any meeting, the Panel may send written questions, or a list of topics it intends
to pursue in questioning orally during the meeting. The Panel may ask different or
additional questions at the meeting.
b. The Panel may put questions to the parties and third parties orally during a meeting,
and in writing following the meeting, as provided for in paragraphs 15 and 21 below.
Substantive meetings

10. The Panel shall meet in closed session.
11. The parties shall be present at the meetings only when invited by the Panel to appear before
it.
12. (1) Each party has the right to determine the composition of its own delegation when
meeting with the Panel.
(2) Each party shall have the responsibility for all mem bers of its delegation and shall
ensure that each member of its delegation acts in accordance with the DSU and these Working
Procedures, particularly with regard to the confidentiality of the proceeding and the
submissions of the parties and third parties.
13. Each party shall provide to the Panel the list of members of its delegation no later than
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.
14. A request for interpretation by any party should be made to the Panel as early as possible,
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall invite Tunisia to make an opening statement to present its case first.
Subsequently, the Panel shall invite Morocco to present its point of view. Before each
party takes the floor, it shall provide the Panel and other participants at the meeting
with a provisional written version of its statement. If interpretation is needed, each
party shall provide additional copies for the interpreters before taking the floor.
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each
party is invited to limit the duration of its opening statement to not more than
45 minutes. If either party considers that it requires more time for its opening
statement, it should inform the Panel and the other party at least 10 days before the
meeting, together with an estimate of the expected duration of its statement. The Panel
will accord equal time to the other party.
c. After the conclusion of the opening statements, the Panel shall give each party the
opportunity to make comments or ask the other party questions.
d. The Panel may subsequently pose questions to the parties.

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e. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with Tunisia presenting its statement first. Before
each party takes the floor, it shall provide the Panel and other participants at the
meeting with a provisional written version of its closing statement, if available.
f. Following the meeting:
i. Each party shall submit a final written version of its open ing statement no later than
5.00 p.m. (Geneva time) on the first working day following the meeting. At the same
time, each party should also submit a final written version of any prepared closing
statement that it delivered at the meeting.
ii. Each party shall send in writing, within the timeframe established by the Panel before
the end of the meeting, any questions to the other party to which it wishes to receive
a response in writing.
iii. The Panel shall send in writing, within the timeframe establishe d by the Panel before
the end of the meeting, any questions to the parties to which it wishes to receive a
response in writing.
iv. Each party shall respond in writing to the questions from the Panel, and to any
questions posed by the other party, within the time-frame established by the Panel
before the end of the meeting.
16. The second substantial meeting between the Panel and the parties shall be conducted in the
same manner as the first one, the only difference being that Morocco shall have the possib ility of
making its oral statement first. The party having made its preliminary statement first shall make its
final statement first.
17. If the substantive meetings cannot be held in-person on the scheduled date in Geneva due to
the health crisis caused b y COVID-19, the Panel may, depending on the circumstances, decide to
change the timetable and the working procedures after consulting the parties.
Third party session

18. Each third party may present its views orally during a session of the substantive meeting with
the parties set aside for that purpose.
19. Each third party shall inform the Panel if it intends to make an oral statement at the third
party session and shall provide to the Panel the list of members of its delegation no later than
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the
Panel.
20. (1) Each third party has the right to determine the composition of its own delegation when
meeting with the Panel.
(2) Each third party shall have the responsibility for all members of its delegation and shall
ensure that each member of its delegation acts in accordance with the DSU and these Working
Procedures, particularly with regard to the confidentiality of the proceeding and th e
submissions of the parties and third parties.
21. A request for interpretation by any third party should be made to the Panel as early as
possible, preferably upon receiving the working procedures and timetable for the proceeding, to
allow sufficient time to ensure availability of interpreters.
22. The third-party session shall be conducted as follows:
a. All parties and third parties may be present during the entirety of this session.
b. The Panel shall first hear the oral statements of the third parties, who shall spe ak in
alphabetical order. Each third party making an oral statement at the third -party session

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shall provide the Panel and other participants with a provisional written version of its
statement before it takes the floor. If interpretation of a third party' s oral statement is
needed, that third party shall provide additional copies for the interpreters before taking
the floor.
c. Each third party should limit the duration of its statement to 15 minutes , and avoid
repetition of the arguments already in its s ubmission. If a third party considers that it
requires more time for its statement, it should inform the Panel and the parties at least
10 days before the meeting, together with an estimate of the expected duration of its
statement. The Panel will accord equal time to all third parties for their statements.
d. After the third parties have made their statements, the parties shall be given the
opportunity to pose questions to any third party for clarification on any matter raised in
that third party's submission or statement.
e. The Panel may subsequently pose questions to any third party.
f. Following the third-party session:
i. Each third party shall submit the final written version of its oral statement, no later
than 5.00 p.m. (Geneva time) on the first working day following the meeting.
ii. Each party may send in writing, within the timeframe to be established by the Panel
before the end of the meeting, any questions to a third party or parties to which it
wishes to receive a response in writing.
iii. The Panel may send in writing, within the timeframe to be established by the Panel
before the end of the meeting, any questions to a third party or parties to which it
wishes to receive a response in writing.
iv. Each third party wishing to do so shall respond in writing to written questions from the
Panel or a party, within a timeframe established by the Panel before the end of the
meeting.
Descriptive part and executive summaries

23. The description of the arguments of the parties and third parties in the descriptive part of the
Panel report shall consist of executive summaries provided by the parties and third parties, which
shall be annexed as addenda to the report. These executive summaries shall not in any way serve
as a substitute for the submissions of the parties and third parties in the Panel's examination of the
case.
24. Each party shall submit one integrated executive summary . This shall summarize the facts
and arguments as presented by the party to the Panel in the party's written submissio ns, oral
statements, and may also include a summary of its responses to questions and comments thereon
following the substantive meetings. The deadline for submitting such an integrated summary shall
be indicated in the timetable adopted by the Panel.
25. The integrated executive summary shall be limited to no more than 30 pages.
26. The Panel may request the parties and third parties to provide executive summaries of facts
and arguments presented in any other submissions to the Panel for which a deadline may not be
specified in the timetable.
27. Each third party shall submit an integrated executive summary of its arguments as presented
in its written submission and oral statement in accordance with the timetable adopted by the Panel.
This integrated executive summary may also include a summary of responses to questions. The
executive summary to be provided by each third party shall not exceed six pages. If a third-party
submission and/or oral statement does not exceed six pages in total, this may serve as the executive
summary of that third party's arguments unless said third party expresses the wish that the

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submission and/or oral statement does not serve as the executive summary, in which case it shall
submit a separate executive summary.
Interim review

28. Following issuance of the interim report, each party may submit a written request to review
precise aspects of the interim report and request a further meeting with the Panel, in accordance
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no
later than at the time the written request for review is submitted.
29. Each party may submit written comments on the other party's written request for review .
Such written comments shall be limited to commenting on the ot her party's written request for
review and shall be submitted in accordance with the timetable adopted by the Panel.
Interim and Final Report
30. The interim report, as well as the final report before its official circulation, shall be kept strictly
confidential and shall not be disclosed.
Service of documents

31. The following procedures regarding service of documents apply to all documents submitted by
parties and third parties during the proceeding:
a. Each party and third party shall submit all docume nts to the Panel by submitting them
with the DS Registry (office No. 2047).
b. Each party and third party shall submit 2 paper copies of its submissions and
2 paper copies of its Exhibits to the Panel by 5.00 p.m. (Geneva time) on the due dates
established by the Panel. The DS Registrar shall stamp the documents with the date and
time of submission. The paper version submitted to the DS Registry shall constitute the
official version for the purposes of submission deadlines and the record of the dispute. If
any exhibit is in a format that is impractical to submit as a paper copy, then the party may
submit such an exhibit in electronic format to the DS Registrar (by email or on a CD-ROM,
DVD or USB key). In such a case, the cover page of the exhibit shall ind icate that it is
available in electronic format only.
c. Each party and third party shall also submit all documents in paper copies to the Panel via
the Disputes On -line Registry Application (DORA), the WTO online registry
(https://dora.wto.org) before 5:00 p.m. on the same day. If the parties or third parties
have any questions or technical difficulties relating to the online registry, they are invited
to consult the Help Section of the DORA User Guide or contact the DS Registry
(DSRegistry@wto.org).
d. Each party shall serve any document submitted to the Panel directly on the other party.
Each party shall, in addition, serve any submissions in advance of th e first substantive
meeting with the Panel directly on the third parties. Each third party shall serve any
document submitted to the Panel directly on the parties and on all other third parties. A
party or third party may serve its documents on another party or third party by email only
or other electronic format acceptable to the recipient, unless the recipient party or third
party has previously requested a paper copy at least five working days prior to the due
date for said submission. Each party and third party shall confirm, in writing, that copies
have been served on the parties and third parties, as appropriate, at the time it provides
each document to the Panel. Each party and third party shall serve copies on the other
party (and third parties if ap propriate) by 5.00 p.m. (Geneva time) on the due dates
established by the Panel.
e. As a general rule, all communications from the Panel to the parties and third parties will
be via email. In addition to transmitting them to the parties by email, the Pan el shall
provide the parties with a paper copy of the Interim Report and the Final Report.

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Correction of clerical errors in submissions
32. The Panel may grant leave to a party or third party to correct clerical errors in any of its
submissions (including paragraph numbering and typographical mistakes). Any such request should
identify the nature of the errors to be corrected, and should be made promptly following the filing
of the submission in question.

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ANNEX A-2

ADDITIONAL WORKING PROCEDURES OF THE PANEL CONCERNING
BUSINESS CONFIDENTIAL INFORMATION
Adopted on 28 May 2020
1. For the purposes of these proceedings, business confidential information (BCI) is defined as
any information designated as such by a party submitting the information to the Panel. The parties
shall only designate as BCI information that is not available in the public domain, the release of
which would cause serious harm to the interests of the originator(s) of the information. BCI may
include information that was previously treated as confidential by Morocco's Ministry of Industry,
Investment, Trade and the Digital Economy in the course of the anti-dumping proceedings at issue.
2. No person shall have access to BCI except a member of the Panel, a WTO Secretariat staff
member assisting the Panel, an employee of a party or third party, and an outside advisor to a party
or third party for the purposes of this dispute. However, an outside advisor is not permitted access
to BCI if that advisor is an officer or employee of an enterprise engaged in the production, sale,
export or import of the products that were the sub ject of the proceedings at issue, or an officer or
employee of an association of such enterprises.
3. A person having access to BCI shall treat it as confidential, i.e., shall not disclose that
information other than to those persons authorized to receive it pursuant to these procedures. Each
party or third party shall have responsibility in this regard for its employees as well as any outside
advisors used for the purposes of this dispute. Any information obtained under these procedures
may be used only for the purpose of providing information and argumentation in this dispute and
for no other purpose.^ All documents and electronic storage media containing BCI shall be stored
in such a manner as to prevent unauthorized access to such information.
4. When a party or third party submits BCI in a written submission, it shall mark the cover and/or
first page of the document containing BCI, and each page of the document, to indicate the presence
of such information. The specific information in question s hall be placed between double brackets,
as follows: [[xx,xxx.xx]]. The first page or cover of the document shall state "Contains Business
Confidential Information", and each page of the document shall contain the notice "Contains
Business Confidential Information" at the top of the page. For all BCI disclosed in the form of, or as
part of, an exhibit, the exhibit shall also be marked to indicate that it contains BCI by putting "BCI"
next to the exhibit number (e.g. Exhibit TUN-1 (BCI)).
5. For all BCI submi tted electronically, the file name shall include the terms "Business
Confidential Information" or "BCI". In addition, where applicable, the term "Business Confidential
Information" shall be written clearly on the label affixed to the storage media.
6. In t he case of an oral statement containing BCI, the party or third party making such a
statement shall inform the Panel before making it, and the Panel will ensure that only persons
authorized to have access to BCI pursuant to these procedures are in the room to hear that
statement. The written versions of such oral statements submitted to the Panel shall be marked as
provided for in paragraph 4.
7. Where a party or third party submits a document containing BCI to the Panel, the other party
or third parties, w hen referring to that BCI in its documents, including written submissions, and
written copies of their oral statements, shall clearly identify all such information in those documents.
All such documents shall be marked as described in paragraph 4.

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8. If a party considers that information submitted by the other party or a third party should have
been designated as BCI and objects to such submission without BCI designation, it shall promptly
bring this objection to the attention of the Panel and the other par ty or third party, together with
the reasons for the objection. Similarly, if a party considers that the other party or a third party
submitted information designated as BCI information which should not be so designated, it shall
promptly bring this objection to the attention of the Panel and the other party or third party, together
with the reasons for the objection. The Panel shall decide whether information subject to an objection
will be treated as BCI for the purposes of these proceedings on the basis of the criteria set out in
paragraph 1.
9. The Panel will not disclose BCI, in its report or in any other way, to unauthorized persons to
have access to BCI. The Panel may, however, make statements of conclusion drawn from that
information. Before the Panel circulates its final report to the Members, the Panel will give each party
an opportunity to review the report to ensure that it does not contain any information that the party
has designated as BCI.
10. Submissions, exhibits and other documents or recor dings containing BCI will be included in
the record forwarded to the Appellate Body in the event of an appeal of the Panel's Report.

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ANNEX A-3

PRELIMINARY RULING OF THE PANEL
14 September 2020
1 INTRODUCTION

1.1. On 19 June 2020, Morocco submitted a preliminary ruling request to the Panel, arguing that
certain claims made in Tunisia's first written submission do not appear in its request for the
establishment of a panel or are too vague. Morocco requests the Panel to make a preliminary ruling
that the submission of these claims is not in accordance with Article 6:2 of the Understanding on
Rules and Procedures Governing the Settlement of Disputes (hereafter "the DSU") and were
therefore not properly before the Panel's jurisdiction.
2 MAIN ARGUMENTS OF THE PARTIES
2.1. In its preliminary ruling request, Morocco argues that:
a. The "claims" relating to (i) the distribution cost1, (ii) the exclusion from the calculation
of the profit margin of certain costs and expenses that are not part of the product price2,
and (iii) the mathematical formulas used to calculate the margin of dumping 3, are
"missing" from the request for the establishment of a panel.
b. The "claim" relating to the exclusion of domestic sales in Tunisia is referred to in the
panel request, but the legal basis is different to that given in Tunisia's first written
submission.4
c. The wording of the claim under Articles 3.1 et 3.2 of the Agreement on Implementation
of Article VI of the General Agre ement on Tariffs and Trade 1994 (Anti -Dumping
Agreement), concerning the analysis of sales price depression and of price suppression,
made in the panel request is too vague.5
2.2. Morocco contends that its rights of defence are affected by Tunisia's non -compliance with the
provisions of Article 6:2 of the DSU.6
2.3. Moreover, Morocco asks the Panel to exclude from its jurisdiction certain "claims" that Tunisia
appears to have dropped from its first written submission or that would have no chance of being
upheld7:
a. The "claims" that Tunisia appears to have dropped are (i) the violation of Article 5.8 of
the Anti-Dumping Agreement set out in paragraph B.1 of the panel request; (ii) the
violation of Article 6.8 of the Anti-Dumping Agreement and paragraphs 3, 5, 6 and 7 of
Annex II set out in paragraph B.4 of the panel request; (iii) the violation of
Article 2.2.1.1 of the Anti -Dumping Agreement set out in paragraph B.5 of the panel
request; (iv) the violation of Articles 3.1 and 3.2 of the Anti -Dumping Agreement set
out in paragraph B.7.a of the panel request (concerning the analysis of the volume of
imports, in absolute terms); and (v) the claim made in paragraph B.11 of the panel
request.8

1 Tunisia's first written submission, section 5.3; and Morocco's preliminary ruling request, section B.1.
2 Tunisia's first written submission, section 5.2.3; and Morocco's preliminary ruling request, section B.3.
3 Tunisia's first written submission, section 5.4; and Morocco's preliminary ruling request, section B.4.
4 Morocco's preliminary ruling request, section B.2.
5 Morocco's preliminary ruling request, section B.5; and Tunisia's request for the establishment of a
panel, WT/DS578/2 (Request for the establishment of a panel by Tunisia), para. B.7.c.
6 Morocco's preliminary ruling request, para. 6.
7 Morocco's preliminary ruling request, para. 9 and sections III.A and III.B.
8 Morocco's preliminary ruling request, para. 47.

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b. The claims that, according to Morocco, have no chance of being upheld are those
criticizing the fact that "the [Ministry of Industry, Trade, Investment and the Digital
Economy (MIICEN)] failed to objectively consider the volume of imports in relative
terms", as required under Articles 3.1 and 3.2 of the Anti-Dumping Agreement.9
2.4. Meanwhile, Tunisia asks the Panel to reject Morocco's preliminary ruling request pursuant to
Article 6:2 of the DSU and not to issue a preliminary ruling on Morocco's request concerning claims
that "had no chance of being upheld". Tunisia hopes that the Panel will address those claims at the
same time as other substantive issues.10
2.5. Lastly, Tunisia confirms that it has dropped claims that were not expanded on in its first written
submission, with the exception of the claim under Article 5.8 of the Anti-Dumping Agreement.11
3 ANALYSIS BY THE PANEL
3.1. In this section, we will, first of all, recall the relevant provisions of the DSU that apply to requests
for the establishment of a panel. Next, we will examine Morocco's request according to which certain
claims made by Tunisia in its first written submission are "missing" from the request for the
establishment of a panel. We will then determine whether the legal basis of the "claim" relating to
the exclusion of domestic sales, as set forth in the panel request, is different to that given in Tunisia's
first written submission. Lastly, we will consider whether the wording of the complaint about the
analysis of price depression and of price suppression is too vague and, for that reas on, does not
meet the requirements of Article 6:2 of the DSU.
3.1 Relevant provisions of the DSU
3.2. Article 6:2 of the DSU provides that:
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. In case the applicant requests the establishment of a panel with other than
standard terms of reference, th e written request shall include the proposed text of
special terms of reference.
3.3. Furthermore, pursuant to Article 7 of the DSU, the Panel's terms of reference, and thus the
scope of its jurisdiction, are governed by the request for the establishment o f a panel . The panel
request also serves the rights of defence, as it notifies the responding party of the case against it
and allows it to prepare its response. As the Appellate Body recalled in US - Carbon Steel:
The requirements of precision in the request for the establishment of a panel flow from
the two essential purposes of the terms of reference. First, the terms of reference define
the scope of the dispute. 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 the parties and third parties of the nature of a complainant's case. When faced
with an issue relating to the scope of its terms of reference, a panel must scrutinize
carefully the request for e stablishment of a panel "to ensure its compliance with both
the letter and the spirit of Article 6.2 of the DSU".12
3.4. It is well established that the adequacy of the panel request must be assessed on a case-by-case
basis, depending on the merits of each case, having considered the panel request as a whole. 13
However:
Defects in the request for the establishment of a panel cannot be "cured" in the
subsequent submissions of the parties during the panel proceedings. Nevertheless, in

9 Morocco's preliminary ruling request, para. 50.
10 Tunisia's reply to Morocco's preliminary ruling request, para. 8.3.
11 Tunisia's reply to Morocco's request for a preliminary ruling, footnote on page 1.
12 Appellate Body Report, US - Carbon Steel, para. 126 (fns omitted)
13 Appellate Body Report, US - Carbon Steel, para. 127 (referring to Appellate Body Report, Korea -
Dairy, paras. 124-127).

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considering the sufficiency of a panel request, submissions and statements made during
the course of the panel proceedings, in particular the first written submission of the
complaining party, may be consulted in order to confirm the meaning of the words used
in the panel request and as part of the assessment of whether the ability of the
respondent to defend itself was prejudiced.14
3.5. Article 6.2 imposes two obligations on the complaining party regarding the formulation of its
claims in the panel request. The request shall (i) identify "the specific measures at issue" and (ii)
provide "a brief summary of the legal basis of the complaint sufficient to present the problem
clearly". Moreover, "while the summary of the legal basis may be 'brief', the degree of brevity that
is permissible under Article 6.2 is a function of its clarity in presenting the problem".15 In particular,
the complaining party must "plainly connect the challenged measure(s) with the provision(s) of the
covered agreements claimed to have been infringed".16
3.6. The Appellate Body has clarified the meaning of this obligation on several occasions:
[W]hat is sufficient to "plainly connect" the measure with the provision of the covered
agreements claimed to have been infringed will also depend on the circumstances o f
each case. Such circumstances may include the nature of the measure at issue and the
manner in which it is described in the panel request, as well as the nature of the
provision of the covered agreements alleged to have been breached. In addition, a panel
request need only provide the "legal basis of the complaint", that is, the claims
underlying this complaint and not the arguments in support thereof.17
3.7. Thus, if a complainant includes certain arguments in its panel request, "these arguments should
not be interpreted to narrow the scope of the measures or the claims".18
3.2 Whether the "claims" relating to (i) the distribution cost, (ii) the exclusion from the
calculation of the profit margin of certain costs and expenses that are not part of the
product price, and (iii) the mathematical formulas used to calculate the margin of
dumping, are "missing" from the request for the establishment of a panel.
3.2.1 Summary of parties' arguments
3.2.1.1 Morocco
3.8. Morocco asks the Panel to rule that the three "claims mi ssing" from the panel request do not
comply with Article 6.2 of the DSU.19
3.9. Morocco notes that Tunisia's first written submission contains a section 5.3 which states that
"the MIICEN acted inconsistently with Articles 2.1 and 2.2 of the Anti -Dumping Ag reement by
including the 'distribution cost' in the reconstructed normal value of most of the types of SOTEFI
exercise books".20 However, Morocco asserts that this claim is not included in the panel request.
3.10. Morocco also contends that Tunisia's first written submission includes, in section 5.2.3, a claim
of inconsistency with Articles 2.1, 2.2 and 2.2.2 of the Anti -Dumping Agreement on the grounds
that, when calculating the profit margin, the investigating authority did not exclude administrative

14 Appellate Body Report, US - Carbon Steel, para. 127.
15 Appellate Body Report, Korea - Pneumatic valves (Japan), para. 5.6.
16 Appellate Body Report, Korea - Pneumatic valves (Japan), para. 5.6.
17 Appellate Body Report, Korea - Pneumatic valves (Japan), para. 5.6. (fns omitted; emphasis in the
original)
18 Appellate Body Report, EC - Selected Customs Matters, para. 153. In Korea - Pneumatic valves
(Japan), the Appellate Body recalled the difference between claims and arguments: "claims [pertain] to a
specific provision of a covered agreement, that is, an allegation that 'the respondent party has violated, or
nullified or impaired the benefits arising from, an identified provision'". Meanwhile, "arguments" are
"statements put forth by a complaining party 'to demonstrate that the responding party's measure does indeed
infringe upon the identified treaty provision'". (Appellate Body Report, Korea - Pneumatic valves (Japan), para.
5.31)
19 Morocco's preliminary ruling request, sections B.1, B.3 and B.4
20 Morocco's preliminary ruling request, para. 11.

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costs and certain expenses that are not part of the product price. Again, Morocco asserts that this
claim is not included in the panel request.21
3.11. Moreover, Morocco contends that Tunisia's first written submission includes (in section 5.4) a
claim under Article 2.4 of the Anti-Dumping Agreement that was not made in the panel request. This
claim concerns the "mathematical formulas used by MIICEN to calculate the margin of dumping".22
3.2.1.2 Tunisia
3.12. Tunisia responds that these "claims" are in fact "arguments" made in support of claims brought
in the panel request. Thus, according to Tunisia the two relevant claims are:
a. The fact that the investigating authority "committed errors leading to the calculation of
an artificially high normal value", in a manner th at was incompatible with Articles 2.1,
2.2, 2.2.1.1 and 2.2.2 of the Anti-Dumping Agreement. Tunisia explains that this claim
does appear in the panel request (in paragraph B.5) and that it was submitted in
accordance with the provisions of Article 6:2 of the DSU.23
b. The fact that Morocco has infringed Article 2.4 of the Anti -Dumping Agreement and
Article VI:1 of the General Agreement on Tariffs and Trade 1994 (GATT 1994) because
"the investigating authority failed to make a fair comparison between the normal value
and the export price". Tunisia explains that this claim does appear in the panel request
(in paragraph B.6) and that it was submitted in accordance with the provisions of
Article 6:2 of the DSU.24
3.13. According to Tunisia, paragraph B.5 of the panel request is in conformity with the provisions
of Article 6:2 of the DSU because it identifies (i) the specific measures at issue (the calculation of
the reconstructed normal value)25, and (ii) the legal basis of the claim (Articles 2.1, 2.2 and 2.2.2
of the Anti-Dumping Agreement). Furthermore, Tunisia maintains that paragraph B.5 of the panel
request explains the "precise connection" between the specific measure at issue and the legal basis
for the complaint (the fact that Morocco committed errors leading to the calculation of an artificially
high normal value).26
3.14. Tunisia adds that Morocco is confusing the claim set forth in the panel request and the
arguments in support of this claim, including the issue of the distribution cost and the failure to
exclude administrative costs and certain expenses.27 Tunisia clarifies that paragraph B.5 contains a
claim that the investigating authority "committed errors leading to the calculation of an artificially
high normal value" and that its first written submission sets out three errors committed by Morocco.
Tunisia contends that "the argument regarding the failure to exclude administrative costs and certain
expenses from the profit margin serves to demonstrate that the profit margin used to calculate the
constructed normal value was inflated".28 It also asserts that "the argument concerning the inclusion
of the distribution cost in the normal value calculation shows that MIICEN constructed an artificially
high normal value". 29 Tunisia maintains that there is no obligation under the DSU requiring a
complainant to include its arguments in its panel request.30
3.15. With regard to the allegedly "missing" claim concerning the mathematical formulas, Tunisia
replies that the claim under Article 2.4 of the Anti-Dumping Agreement is made in paragraph B.6 of
the panel request.31 According to Tunisia, this paragraph contains: (i) the claim itself (the failure to
make a fair comparison between the normal value and the export price, in contravention of Article
VI:1 of GATT); and (ii) an argument in support of that claim (not making allowance for the physical

21 Morocco's preliminary ruling request, para. 29.
22 Morocco's preliminary ruling request, section 4.
23 Tunisia's reply to Morocco's preliminary ruling request, section 3.
24 Tunisia's reply to Morocco's preliminary ruling request, section 5.
25 Tunisia's reply to Morocco's preliminary ruling request, paragraph 3.11.
26 Tunisia's reply to Morocco's preliminary ruling request, paragraph 3.20.
27 Tunisia's reply to Morocco's preliminary ruling request, paragraph 3.22.
28 Tunisia's reply to Morocco's preliminary ruling request, paragraph 3.25.
29 Tunisia's reply to Morocco's preliminary ruling request, paragraph 3.25.
30 Tunisia's reply to Morocco's preliminary ruling request, paragraph 3.26.
31 Tunisia's reply to Morocco's preliminary ruling request, para. 5.1.

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characteristics).32 Therefore, what Morocco contends is a "claim" regarding the mathematical
formulas is actually an argument in support of the claim made in paragraph B.6 of the panel
request.33
3.16. Lastly, Tunisia considers that paragraph B.6 of its panel request would be compliant with the
DSU insofar as it sets forth (i) the specific measure at issue (the failure to make a fair comparison);
(ii) the claim's legal basis (Article 2.4 of the Anti -Dumping Agreement and Article VI:1 of GATT),
which covers not only the question of adjustments, but also the calculation of the margins of
dumping; and (iii) the explicit link between the measure and the obligation in question (the fact that
Morocco would have infringed Article 2.4 by not making a fair comparison between the normal value
and the export price).34
3.2.2 Summary of the arguments of the third parties
3.17. In its comments on the preliminary ruling request, Canada supports Tunisia's position, stating
that35:
[T]his "claim", concerning the exclusion from the calculation of the profit margin of
certain costs and expenses that are not part of the product price, is in fact an argument
in support of the claim made in paragraph B.5 of the panel request, namely that the
investigating authority committed errors leading to the calculation of an artificially high
normal value. That Tunisia chose to submit, in the panel request, a potential argument
in support of this claim does not in any way limit the scope of the claim or Tunisia's
ability to submit further arguments in support of this claim.
3.18. Similarly, the European Union submits that:
[I]n its panel request, Tunisia does not simply list the provisions that it claims have
been violated, but also indicates "why", i n particular by referring to "errors leading to
the calculation of an artificially high normal value". While the nature of these errors has
not been specified in all instances, this does not appear to be required under Article 6.2
of the DSU. As far as the European Union is concerned, the description of the nature of
the errors at issue seems, a priori, to provide a level of detail that goes beyond setting
out the claim underpinning the complaint, and to fall within the category of arguments
rather than claims.36
3.19. With regard to the distinction between claims and arguments that do not necessarily have to
be set forth in a panel request, Japan and the European Union draw the Panel's attention to the
clarifications provided by the Appellate Body in Korea - Pneumatic valves (Japan).37
3.2.3 Evaluation by the Panel
3.20. We recall that Morocco does not ask us to rule on whether the claims, set forth in
paragraphs B.5 and B.6 of the panel request, are made in accordance with Article 6:2 of the DSU.
Morocco's request is limited to asking the Panel to rule that new claims are presented in the first
written submission, which is not conformity with Article 6.2, and that these claims therefore fall
outside the Panel's terms of reference.38

32 Tunisia's reply to Morocco's preliminary ruling request, paras. 5.6 and 5.7.
33 Tunisia's reply to Morocco's preliminary ruling request, paras. 5.19-5.22.
34 Tunisia's reply to Morocco's preliminary ruling request, paras. 5.6, 5.10 and 5.18.
35 Comments of Canada on Morocco's preliminary ruling request, para. 10. (fns omitted)
36 Comments of the European Union on Morocco's preliminary ruling request, para. 9.
37 Comments of Canada on Morocco's preliminary ruling request, para. 8; Comments of Japan on
Morocco's preliminary ruling request, para. 2; and Comments of the European Union on Morocco's preliminary
ruling request, para. 8.
38 We note that Morocco states at the beginning of its request that "at least two claims in Tunisia's panel
request fail to comply with the provisions of Article 6.2 of the DSU which require a brief summary of the legal
basis of the complaint sufficient to present the problem clearly". (Morocco's preliminary ruling request, para.
2.) However, the two claims in question are not specified and section B of Morocco's request refers to five
separate claims submitted by Tunisia. Meanwhile, Tunisia maintains that the "Panel could also consider, even in
the absence of a specific challenge by Morocco, whether the claim set forth in paragraph B.5 of the panel

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3.21. The disagreement be tween the parties relates to the content of the panel request, and
specifically whether certain claims set forth by Tunisia are "missing" therefrom. To answer this
question, we will now examine the text of the panel request in the light of Tunisia's first written
submission.
3.22. We note that the request for the establishment of a panel comprises (in addition to the
introduction and the panel request itself) two parts entitled "the measure at issue" and "legal basis
for the complaint", respectively.
3.23. The "measure at issue" is "the definitive anti-dumping measure imposed on imports of school
exercise books from Tunisia". The request also states that it "covers the anti -dumping duties, as
well as all the documents forming part of the investigation record that led to the imposition of the
measure at issue".39 The reading of this section of the panel request therefore leaves no doubt as
to the nature of the measure at issue.
3.24. With respect to the "legal basis for the complaint", Tunisia sets out 12 complaints against the
measure at issue. Each complaint is set forth in a paragraph citing the relevant articles of the
Anti-Dumping Agreement and of GATT 1994 and explaining the legal issue in a clause beginning
with "because ...". It appears to us, therefore, that each of these 12 paragraphs contains a separate
claim40 and that the claims pertinent to Morocco's preliminary ruling request are those set forth
in paragraphs B.5 and B.6 of the panel request.
3.25. Having identified the measure at issue and the claims set out in Tunisia's panel request, we
will analyse whether the complaints that Morocco presents as new claims (i.e. that cannot be linked
to claims set forth in paragraphs B.5 and B.6) are actually "missing" or whether, as argued by
Tunisia, they are made in support of those claims, in which case they do not necessarily have to be
included in the panel request.
3.26. We first consider whether the complaints relating to the distribution cost and the exclusion of
administrative costs and certain expenses that are not part of the product price are new claims.
3.2.3.1 Complaints relating to distribution cost and the exclusion of administrative costs
and certain expenses that are not part of the product price
3.27. Morocco considers that "the text [of paragraph B.5] clearly has nothing to do ... with the
disputed inclusion of the 'distribution cost' in the calculation of the reconstructed normal value" nor
with "the exclusion from the calculation of the profit margin of administrative costs and certain
expenses that are not part of the product price". 41 Accordingly, Morocco considers that these two
new "claims" are not within the Panel's terms of reference.
3.28. We recall that the text of paragraph B.5, in which Tunisia claims that the measure at issue
infringes Morocco's obligations, and specifically:
Articles 2.1, 2.2, 2.2.1.1 and 2.2.2 of the Anti-Dumping Agreement and Article VI:1 of
GATT 1994, because the investigating authority committed errors leading to the
calculation of an artificially high normal value. In particular, but not limited to the fact
that, when reconstructing the normal value, the authority failed to take into account all
the sales made in Tunisia for the calculation of the profit margin.
3.29. We are not convinced by Morocco's contention that this paragraph has "nothing to do" with
the claims concerning the distribution cost and the exclusion of administrative costs and certain
expenses that are not part of the product price. We recall that in order to clarify the meaning of the
terms used in the panel request, the Panel may consult the text of the complaining party's first
written submission.42 Thus, sections 5.2.3 and 5.3 of Tunisia's first written submission are part of

request satisfies the conditions of Article 6.2 of the DSU". (Reply to Morocco's preliminary ruling request, para.
3.39).
39 Tunisia's panel request, p. 1.
40 The claim under Articles 3.1 and 3.2 of the Anti-Dumping Agreement in paragraph B.7 of Tunisia's
panel request is divided into several subparagraphs numbered (a) to (c).
41 Morocco's preliminary ruling request, paras. 19 and 31.
42 Appellate Body Report, US - Carbon Steel, para. 127

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section 5 on "claims relating to the determination of dumping". The introduction to section 5 states
that Tunisia "presents two claims". The first claim is worded as follows:
Firstly, MIICEN incorre ctly calculated the profit margin of Tunisian exporters when
constructing the normal value, which is inconsistent with Articles 2.1, 2.2 and 2.2.2 of
the Anti-Dumping Agreement. In fact, MIICEN incorrectly included in the profit margin,
in addition to ordinary profits, administrative costs, as well as certain expenses that are
not part of the ex-factory price... Moreover, MIICEN excluded valid sales in the Tunisian
market from the calculation of the profit margin. Furthermore, MIICEN acted in a
manner inconsistent with Articles 2.1 and 2.2 by incorrectly including the distribution
cost in the reconstructed normal value for most of the types of SOTEFI exercise books.43
3.30. This paragraph therefore relates to the conformity of the normal value constructed by the
investigating authority with Articles 2.1, 2.2 and 2.2.2.44
3.31. Section 5.2 of Tunisia's first written submission addresses the calculation of an incorrect profit
margin and Tunisia sets forth "two arguments" in support of this claim:
Firstly, MIICEN calculated the profit margin incorrectly by failing to exclude from the
calculation of the profit margin administrative costs and certain expenses that are not
part of the product price. Secondly, MIICEN excluded, wrongly, the sales of numb ered
and watermarked exercise books from the profit margin used for the constructed normal
value.45
3.32. Lastly, section 5.3 addresses the inclusion of the "distribution cost" in the reconstructed normal
value of most of the SOTEFI models. The conclusion of this section states that:
MIICEN acted inconsistently with Article 2.2 of the Anti -Dumping Agreement by
including in the construction of the normal value of certain types of SOTEFI exercise
books the "distribution cost", covering the cost of domestic transport, port charges and
shipping costs, even though these costs and expenses are not part of an appropriate
normal value, as provided for in Article 2.2. In addition, MIICEN acted in a manner
inconsistent with Article 2.1 of the Anti -Dumping Agreement by calculating an inflated
margin of dumping as a result of the incorrectly calculated normal value.46
3.33. Comparing the panel request and Tunisia's first written submission therefore confirms that the
claim at issue is that set forth in paragraph B.5 of the panel request (errors in the establishment of
the normal value in contravention of Articles 2.1, 2.2 and 2.2.2). This claim is divided into several
subsections, including in particular the inclusion of the distribution cost in the normal value and the
inclusion in the profit margin, in addition to the ordinary profits, of administrative costs, as well as
certain expenses that are not part of the ex-factory price.
3.34. Therefore, we do not share Morocco's view that "the text [of paragraph B.5] clearly has nothing
to do ... with the disputed inclusion of the 'distribution cost' in the calculation of the reconstructed
normal value" nor with "the exclusion from the calculation of the profit margin of administrative
costs and certain expenses that are not par t of the product price". On the contrary, Tunisia's first
written submission shows that these two complaints are arguments that support the claim set forth
in the panel request.
3.35. In light of the foregoing, we find that Morocco has failed to demonstrat e that the complaints
concerning the distribution cost and the exclusion of administrative costs and certain expenses from
the calculation of the profit margin are "claims" missing from the panel request.

43 Tunisia's first written submission, para. 5.2.
44 See also Tunisia's first written submission, para. 519.
45 Tunisia's first written submission, para. 5.19.
46 Tunisia's first written submission, para. 5.87.

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3.2.3.2 Complaint relating to the mathematical formula for calculating the margin of
dumping
3.36. We now turn to Morocco's contention that the complaint relating to the mathematical formula
for calculating the margin of dumping is a new claim that is not within the Panel's terms of reference.
3.37. We note that Tunisia's panel request does include, in paragraph B.6, a claim under Article 2.4
of the Anti-Dumping Agreement that Morocco breached its obligation:
Article 2.4 of the Anti-Dumping Agreement and Article VI:1 of GATT 1994, because the
investigating authority failed to make a fair comparison between the normal value and
the export price, by not making allowance, in particular, for all the physical
characteristics affecting price comparability that were cited by the exporters;
3.38. Tunisia states that i ts first written submission sets forth "two arguments" in support of the
claim that "MIICEN acted in a manner inconsistent with the obligation under Article 2.4 of the
Anti-Dumping Agreement to make a 'fair comparison' between the normal value and the expo rt
price".47
3.39. The first argument relates to the choice of the numerator and denominator of the formula used
to calculate the margin of dumping. The second argument concerns the rejection by MIICEN of a
request for adjustment based on a characteristic affecting price comparability (the use of licences).
It is therefore clear from reading these documents that, according to Tunisia, the complaint
concerning the mathematical formulas for calculating the margin of dumping is an argument in
support of the claim made in the panel request.
3.40. Tunisia recalls48 that the obligation under Article 2.4 of the Anti-Dumping Agreement to make
a fair comparison between the normal value and the export price relates not only to the question of
adjustments, but also to the issue of the margin of dumping calculation. Thus, Article 2.4.2
determines the methods for establishing the margins of dumping "[s]ubject to the provisions
governing fair comparison in paragraph 4 ".49 Similarly, other panels and the Appellate Body have
confirmed that the obligation to make a "fair comparison" is applicable to the calculation of margins
of dumping. 50 Contrary to Morocco's assertion 51, there is therefore no doubt that an argument
concerning the calculation of the margin of dumping could support a claim of violation of Article 2.4
of the Anti-Dumping Agreement.
3.41. We understand that the first part of paragraph B.6 of the panel request contains a claim
("Article 2.4 of the Anti -Dumping A greement and Article VI:1 of GATT 1994, because the
investigating authority failed to make a fair comparison between the normal value and the export
price"). The second part of the sentence ("by not making allowance, in particular, for all the physical
characteristics ...") serves, in our view, to explain how the investigating authority violated the
relevant obligations and, therefore, constitutes an argument rather than an integral part of the claim.
We consider that the fact that Tunisia included one argument (out of two) in its panel request cannot
have the effect of restricting the scope of the claim set forth in paragraph B.6. Furthermore,
Article 6:2 of the DSU does not require Tunisia to include in its request the second argument
concerning the mathematical formulas used to calculate the margin of dumping.

47 Tunisia's first written submission, para. 5.88.
48 Tunisia's reply to Morocco's preliminary ruling request, paras. 5.13 and 5.14.
49 Emphasis added.
50 For example, the Panel in US - Zeroing (EC) found that "the obligation to make a fair comparison is
not limited to the issue of how to ensure price comparability by selecting comparable transactions or making
appropriate adjustments but also applies to the issue of the calculation of margins of dumping within the
meaning of Article 2.4.2 of the Anti-Dumping Agreement". (Report of the Panel , US - Zeroing (EC),
para. 7.258). The Appellate Body upheld the panel's finding. (Appellate Body Report, US - Zeroing (EC),
para. 146).
51 Morocco's preliminary ruling request, para. 38.

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3.42. In light of the foregoing, and bearing in mind what Morocco asked of us in its preliminary ruling
request52, we conclude that Morocco has not demonstrated that the complaint relating to the
mathematical formulas is a "claim" missing from the panel request.
3.3 Whether the legal basis of the "claim" relating to the exclusion of domestic sales, as
set forth in the panel request, is different to that given in Tunisia's first written submission
3.3.1 Summary of parties' arguments
3.43. Morocco submits that there is an inconsistency between the panel request and Tunisia's first
written submission, because the latter (under section 5.2.4) refers to Articles 2.1, 2.2 and 2.2.2 of
the Anti-Dumping Agreement, whereas the request refers (in paragraph B.3) to Articles 2.1, 2.2 and
2.2.1. According to Morocco, the claim under Article 2.2.2 of the Anti -Dumping Agreement is
"missing entirely from the panel request".53
3.44. Tunisia responds that the issue of the exclusion of sales of numbered or watermarked exercise
books is "an argument" that "serves to support the claim" set forth in paragraph B.5 of the panel
request, "that MIICEN acted in a manner inconsistent with Articles 2.1, 2.2 and 2.2.2 of the
Anti-Dumping Agreement".54 Tunisia maintains that the issue of excluding certain types of exercise
books by the investigating authority is explicitly referred to in paragraph B.5 of the panel request.
3.3.2 Evaluation by the Panel
3.45. We begin by noting that the issue of exclud ing domestic sales in Tunisia is explicitly included
in the description of the "first claim" under Articles 2.1, 2.2 and 2.2.2, in section 5 of Tunisia's first
written submission ("in addition, MIICEN excluded valid sales in the Tunisian market from the
calculation of the profit margin").55
3.46. We further note that the issue of domestic sales in Tunisia is referred to explicitly in paragraph
B.5 of the panel request, in support of the claim set forth in that paragraph that "the investigating
authority committed errors leading to the calculation of an artificially high normal value".
3.47. Since paragraph B.5 refers to Article 2.2.2 of the Anti -Dumping Agreement among other
provisions, it follows that, contrary to Morocco's assertions, Tunisia's first writt en submission does
refer to the same legal basis as the panel request.
3.48. In light of the foregoing, we find that Morocco has not demonstrated that the complaint
concerning the exclusion of domestic sales in Tunisia is a "claim" missing from the panel request or
that it is based on a legal provision that is not cited in the panel request.
3.4 Whether the wording of Tunisia's claims concerning the analysis of sales price
depression and price suppression is too vague
3.4.1 Summary of parties' arguments
3.49. Morocco contends that the claims set forth in the panel request relating to the investigating
authority's determination of injury are worded using "catch-all terms" that do not meet the criteria
of Article 6:2 of the DSU.56
3.50. Morocco refers to paragraph B.7 of the panel request and specifically paragraph B.7.c57, which
alleges a violation of "Articles 3.1 and 3.2 of the Anti -Dumping Agreement and Articles VI:1 and
VI:6(a) of GATT 1994 because, among other things":

52 Morocco asks the Panel to rule that "the claims relating to the mathematical formulas used by
Morocco to calculate the margin of dumping [in violation of] Article 2.4 are missing from the panel request".
(Morocco's preliminary ruling request, section II.4) (emphasis added).
53 Morocco's preliminary ruling request, para. 24.
54 Tunisia's reply to Morocco's preliminary ruling request, paras. 3.37 and 3.40.
55 Tunisia's first written submission, para. 5.2.
56 Morocco's preliminary ruling request, para. 46.
57 Morocco's preliminary ruling request, para. 41.

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[T]he analysis regarding sales price de pression and price suppression is not based on
positive evidence and does not involve an objective examination.
3.51. In particular, Morocco considers that the panel request should have specified "why and how"
the analysis at issue is not based on "positiv e evidence" and does not involve "an objective
examination".58
3.52. Tunisia responds that its panel request does comply with the provisions of Article 6:2 of the
DSU, insofar as it sets forth (a) the specific measure at issue (the anti -dumping measure at issue
based on the MIICEN analyses of sales price depression and price suppression); (b) the legal basis
of the complaint (Articles 3.1 and 3.2 of the Anti -Dumping Agreement); and (c) an explicit link
between the challenged measure and the alleged violation (paragraphs 7.a-7.c).59 Tunisia considers
that requiring a complaining party to explain in its panel request " why and how" the measure at
issue violates the cited obligation would be "contrary to Article 6.2 of the DSU". Tunisia asserts that:
Insofar as the complaining party identifies the relevant aspect of the measure, specifies
the obligation (distinct and well delineated) and explicitly establishes the link between
the two, the claim shall meet the legal standard of Article 6.2 of the DSU.60
3.4.2 Summary of the arguments of the third parties
3.53. The United States addresses Morocco's assertion that Tunisia should have explained "how and
why" the measure at issue is inconsistent with Morocco's obligations. In this regard, the United
States maintains that neither of the terms "why" and "how" appears in Article 6.2 and considers that
Morocco's request should be examined in the light of the explicit requirement in Article 6.2, namely
that the complaining party shall provide in the request for the estab lishment of a panel a "brief
summary of the legal basis of the complaint sufficient to present the problem clearly". 61 The
United States adds that Article 6.2 does not require the complaining party to present its arguments
in the panel request and that, according to the provisions of Appendix 3 of the DSU, the complaining
party should instead present its arguments in its written submissions.62
3.4.3 Evaluation by the Panel
3.54. Article 6.2 requires that the request for the establishment of a panel "provide a brief summary
of the legal basis of the complaint sufficient to present the problem clearly". We understand that in
this case, Morocco specifically denounces the lack of an "explicit link" between the measure at issue
and the alleged violation. We therefore e xamine whether paragraph B.7.c of the panel request
satisfies the requirements of Article 6.2.
3.55. We note that this paragraph of the panel request refers to both Articles 3.1 and 3.2 of the
Anti-Dumping Agreement (as well as Articles VI:1 and VI:6(a) of GATT 1994) and thus identifies the
provisions of the covered agreements alleged to have been breached. Articles 3.1 and 3.2 of the
Anti-Dumping Agreement together establish a distinct, well -delineated obligation that
determinations of the effect of the du mped imports on the price of a like product of the importing
Member shall be based on positive evidence and involve an objective examination.
3.56. Furthermore, Tunisia's claim states that it relates specifically to the section of the measure at
issue concerning the analysis of price depression and of price suppression. With regard to the explicit
link between the relevant provisions and the measure at issue, it is our view that Tunisia has clearly
presented how the measure at issue is inconsistent with Articles 3.1 and 3.2 by explaining that the
analysis relating to sales price depression and price suppression is not based on positive evidence
and did not involve an objective examination.63

58 Morocco's preliminary ruling request, para. 42.
59 Tunisia's reply to Morocco's preliminary ruling request, paras. 6.6-6.10.
60 Tunisia's reply to Morocco's request for preliminary ruling, para. 2.16.
61 Comments of the United States on Morocco's preliminary ruling request, paras. 4-6 and 10.
62 Comments of the United States on Morocco's preliminary ruling request, para. 6 (referring to para. 4
of Appendix 3 of the DSU).
63 We note that the Appellate Body in Korea - Pneumatic valves (Japan) followed a similar approach with
respect to Japan's claim based on Articles 3.1 and 3.2 of the Anti-Dumping Agreement. The relevant section of

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3.57. We understand that by denouncing the failure to explain "how and why", Morocco is criticizing
Tunisia for not setting out in sufficient detail its specific allegations regarding the analysis of price
depression and of price suppression in the panel request. However, in our view, demanding this level
of detail would go beyond that required by Article 6.2. In this connection, the Appellate Body has
specified that "the reference to the phrase 'how or why' in certain past disputes does not indicate a
standard different from the requirement that a panel request include a 'brief summary of the legal
basis ... sufficient to present the problem clearly' within the meaning of Article 6.2 of the DSU".64
3.58. It therefore follows that, contrary to Morocco's assertion, paragraph B.7.c of Tunisia's panel
request contains "a brief summary of the legal basis of the complaint sufficient to present the
problem clearly" within the meaning of Article 6.2 of the DSU. In light of the foregoing, we reject
Morocco's request on this point and confirm that the claim at issue falls within the Panel's terms of
reference.
3.5 Morocco's requests concerning claims that have been "dropped" and "have no chance
of being upheld"
3.59. We recall that Morocco asks the Panel to exclude from its jurisdiction certain claims that Tunisia
appears to have dropped from its first written submission. 65 In this regard, we note Tunisia's
confirmation that it has dropped the claims that were not expanded on in its first written submission,
with the exception of the claim under Article 5.8 of the Anti-Dumping Agreement, set forth in section
8 and paragraph 9.1.(h) of Tunisia's first written submission.66
3.60. Morocco also asks the Panel to exclude from its jurisdiction Tunisia's claim that MIICEN acted
in a manner inconsistent with Articles 3.1 and 3.2 of the Anti -Dumping Agreement by failing "to
objectively consider the volume of imports in relative terms" because that claim had no chance of
being upheld.67 Tunisia responds that this request by Morocco encapsulates the essence of Tunisia's
case and it would theref ore be "inappropriate for such a substantive matter to be the subject of a
preliminary determination".68 We consider that the issue of whether the examination of the volume
of imports in relative terms undertaken by MIICEN may be inconsistent with the obligation set forth
in Articles 3.1 and 3.2 of the Anti -Dumping Agreement is a matter that should be examined in
conjunction with other substantive issues raised in this dispute.69 Accordingly, the Panel reserves its
answer and will address to the points raised by Morocco in its final report.
4 CONCLUSION
4.1. For the reasons set out in this preliminary ruling, we find that:
a. Tunisia's complaints relating to (i) the distribution cost, (ii) the exclusion from the
calculation of the profit margin of certain cost s and expenses that are not part of the
ex-factory product price, and (iii) the exclusion of certain domestic sales, are not "claims

Japan's panel request argued that Korea's measure imposing the anti-dumping duties on pneumatic valves
from Japan was inconsistent with Korea's obligations under "[a]rticles 3.1 and 3.2 of the [Anti-Dumping]
Agreement because Korea's analysis of a significant increase of the imports under investigation did not involve
an objective examination based on positive evidence". The Appellate Body found that this argument met the
criteria of Article 6:2 of the DSU. (Appellate Body Report, Korea - Pneumatic valves (Japan), paras. 5.65-5.79).
64 Appellate Body Report, Korea - Pneumatic valves (Japan), para. 5.12.
65 Morocco's preliminary ruling request, paras. 9(a), 47-49.
66 Tunisia's reply to Morocco's request for a preliminary ruling, footnote on page 1.
67 Morocco's preliminary ruling request, paras. 9 (b) and 50-53.
68 Tunisia's reply to Morocco's preliminary ruling request, para. 8.3. Similarly, Canada submits that "the
Panel's preliminary rejection of a claim otherwise included in the panel request and that is the subject of
arguments in Tunisia's first written submission would be contrary to Article 11 of the DSU. Therefore, this claim
should not be the subject of a preliminary ruling by the Panel as requested by Morocco". (Comments of Canada
on Morocco's preliminary ruling request, para. 15). Japan and the European Union are also in favour of such an
approach. (Comments of Japan on Morocco's preliminary ruling request, para. 6; and Comments of the
European Union on Morocco's preliminary ruling request, para. 13).
69 Similarly, the Appellate Body observed in Australia - Apples that "the question of whether the
measures identified in the panel request can violate, or cause the violation of, the obligation in Annex C(1)(a)
and Article 8 is a substantive issue to be addressed and resolved on the merits". The Appellate Body therefore
criticized the fact that the panel chose to stop its analysis at the jurisdictional stage. (Appellate Body
Report, Australia - Apples, para. 425).

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missing" from Tunisia's panel request and are therefore not presented in violation of
Article 6.2 of the DSU.
b. Tunisia's complaint relating to the mathematical formulas used to calculate the margin
of dumping is not a "claim missing" from Tunisia's panel request and is therefore not
presented in violation of Article 6.2 of the DSU.
c. Subparagraph (c) of the claim set forth in paragraph B.7 of Tunisia's panel request does
comply with the requirements of Article 6.2 of the DSU, and thus falls within a Panel's
terms of reference.

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ANNEX A-4

INTERIM REVIEW
1 INTRODUCTION
1.1. This annex to the Panel Report sets out our responses to the requests and comments made by
the parties during the interim review stage, as provided for under Article 15.3 of the DSU.
1.2. With regard to certain requests, we were guided by the consider ation that the descriptions of
the parties' arguments in our Report are not intended to reflect the entirety of the parties'
arguments. Rather, they focus on the principal points we considered relevant to the resolution of
this dispute. In this respect, we recall that "a panel ha[s] the discretion to address only those
arguments it deems necessary to resolve a particular claim". 1 We further note that the executive
summaries of the arguments of the parties are set out in Annexes B1 and B2. Those summaries
have been prepared by the parties themselves and therefore have provided the parties with the full
opportunity to reflect their arguments as they see fit.
1.3. Furthermore, consistent with the approach of previous panels, we consider it to be inappropriate
for the parties to re-argue, at the interim review stage, arguments already put before a panel.2
1.4. Where appropriate, we have modified aspects of the Report in the light of the parties' requests
and comments. Due to changes as a result of our review, the numbering of the paragraphs and
footnotes in the Final Report has changed from the Interim Report. The text below refers to the
numbers in the Interim Report, with the numbers in the Final Report in parentheses, if different, for
ease of reference.
1.5. In addition to the modifications specified below, we have also corrected a number of
typographical errors throughout the Report.
2 MOROCCO'S SPECIFIC REQUESTS FOR REVIEW
2.1. Morocco has not submitted any request for review of the Interim Report.
3 TUNISIA'S SPECIFIC REQUESTS FOR REVIEW
3.1 Paragraphs 7.58, 7.85, 7.106 and 7.183
3.1. Tunisia first requests that we modify our conclusions in paragraphs 7.58, 7.85, 7.106 and 7.183,
according to which Tunisia failed to establish what Morocco's obligations are under Article 2.1 of the
Anti-Dumping Agreement, or how those obligations have been violated as a result of the errors
committed by MIICEN when establishing a reasonable amount for profit, when establishing normal
value and in the mathematical formula used to calculate the margin of dumping. Tunisia considers
that its responses to Panel questions Nos. 1.26 and 1.29 explain the specific obligation under Article
2.1 and why MIICEN did not have a "valid factual basis" to find that the exercise books should be
considered as being dumped.3 "Alternatively", Tunisia requests that we apply "the principle of judicial
economy" to its claim under Article 2.1.4
3.2. For its part, Morocco requests that we do not modify our reasoning with regard to Tunisia's
claims under Article 2.1 nor our Report.5
3.3. Tunisia's argument, as we understand it, is therefore that an authority that committed an error
when establishing normal value or when calculating the margin of dumping does not have a "valid
factual basis" to find that a product "is to be considered as being dumped" within the meaning of

2 Panel Reports, EU - Fatty Alcohols (Indonesia), para. 6.5; Japan - DRAMs (Korea), para. 6.2; US -
3 Tunisia's request for interim review, para. 2.2.
4 Tunisia's request for interim review, para. 2.3.
5 Morocco's comments on Tunisia's request for interim review, para. 16.

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Article 2.1. From this perspective, a panel finding a violation of another provision of Article 2 of the
Anti-Dumping Agreement could also find a "consequential" violation of Article 2.1.
3.4. We recall that Article 2.1 reads as follows:
For the purpose of this Agreement, a product is to be considered as being dumped, i.e.
introduced into the commerce of another country at less than its normal value, if the
export price of the product exported from one country to another is less than the
comparable price, in the ordinary course of trade, for the like product when destined for
consumption in the exporting country.
3.5. This provision sets out positively when a product is to be considered as being dumped: when
its export price is less than its normal value. The use of the verb " devoir" in the first sentence of
Article 2.1 in the French text of the Anti -Dumping Agreement is not sufficient, in our opinion, to
establish an obligation on a Member. 6 Explaining, in its responses to the Panel's questions, that
"Article 2.1 contains the general requirement for the calculation of the margin of dumping" 7 and
"that a product 'is to be considered as being dumped' when its normal value is higher than its export
price"8, Tunisia sets out a definition but fails to establish what Morocco's obligation was under Article
2.1 in this case, nor how that obligation was violated by Morocco. For that reason, we reject Tunisia's
request that paragraphs 7.58, 7.85, 7.106 and 7.183 be amended.
3.2 Paragraphs 7.121-7.125, 7.128, 7.129 and 8.1.c.i.
3.6. Tunisia then requests that we clarify in our Final Report that its argument regarding the impact
of licenses on price comparability does not concern SOTEFI's possible request for an adjustment,
but rather the typology established by MIICEN to classify the exercise books by model. In that
regard, Tunisia would like the Report to indicate that SOTEFI "responded to all MIICEN's requests
relating to the classification of the exported product".9
3.7. In particular, Tunisia asks that we include in our Report a reference to MIICEN's written request
sent to Tunisian producers/exporters on 4 May 2018, seeking to clarify with which type of cover
("varnished or not, laminated, cardboard, under licence, etc.") the exercise books were sold in the
domestic market and for export to Morocco. The purpose of MIICEN's request was a possible revision
of the classification used "by adding cover criteria".10
3.8. Morocco considers that Tunisia's comments constitute an attempt to relitigate arguments
already discussed and resolved by the Panel. Morocco therefore asks us to reject Tunisia's request.11
3.9. In order to accurately reflect all of the requests sent by MIICEN to the exporters, we have
decided to include a reference to MIICEN's written request in paragraph 7.120 of our Report, which
now reads as follows:
c. Lastly, on 4 May 2018, MIICEN requested SOTEFI to revise "the classification used"
for domestic sales and for sales to Morocco "by adding cover criteria (varnished or not,
laminated, cardboard, under licence, etc.)".[168]
168 Email dated 4 May 2018 (Exhibit TUN-72).
3.10. However, we do not see any reason to amend paragraph 7.121, which specifically describes
SOTEFI's response to that request, in the form of revised spreadsheets distinguishing which exercise
books were sold under licence and which exercise books were sold without a licence. Nevertheless,
for our findings to respond to Tunisia's specific argument on price comparability, we have amended
the last sentence of paragraph 7.124, which also refers to those spreadsheets by indicating:

6 In fact, the verb "devoir" ("must") is not used in the English and Spanish versions of the text.
7 Tunisia's response to Panel question No. 2.9, para. 68.
8 Tunisia's response to Panel question No. 1.26, para. 23.
9 Tunisia's request for interim review, para. 2.5. (emphasis original)
10 Email dated 4 May 2018 (Exhibit TUN-72).
11 Morocco's comments on Tunisia's request for interim review, para. 17.

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Similarly, the revised electronic spreadsheet submitted to MIICEN by SOTEFI does refer
to which exercise book models are sold under licence, but does not demonstrate how
that difference affected price comparability.12
3.11. We also do not c onsider it relevant to indicate, as Tunisia requests, that SOTEFI "responded
to all MIICEN's requests relating to the classification of the exported product".13 As we stated in our
Report, "we are not convinced that how an authority decides to make allowances for differences
affecting price comparability (by developing a typology of different models or by making
adjustments) changes the burden of proof falling on the authority and the interested parties,
respectively".14 The authority only has "to make allowance" for a possible difference if it is
demonstrated that this difference exists and that it affects price comparability. In this case, the
information requested by MIICEN was reasonable and relevant both to demonstrating the difference
that existed between the exercise books under licence and the exercise books sold without a licence,
and to demonstrating how th is difference affects price comparability (actual expenditure, market
value of the adjustment and corresponding references in the company's accounts).
3.12. For this reason, we decline Tunisia's request to revise paragraph 7.124 of our Report. We also
decide to uphold our conclusion, reflected in paragra ph 7.126 of our Report, according to which
"SOTEFI never provided the information requested by MIICEN and therefore failed to 'demonstrate'
that licences affected price comparability within the meaning of Article 2.4 of the Anti -Dumping
Agreement".15 To clarify our conclusion with regard to that claim by Tunisia, we have amended
paragraph 8.1.c. of our Report as follows:
Article 2.4 of the Anti -Dumping Agreement, because MIICEN did not accept to make
allowance for licences as a difference affecting price comparability.
3.3 Section 7.3.2
3.13. With regard to the claim under Articles 3.1 and 3.2 of the Anti-Dumping Agreement concerning
the examination of the volume of Tunisian imports of exercise books compared to domestic
production and to domestic consumption, Tunisia notes that the Panel resorted to judicial economy.16
Tunisia requests us either to find that the underlying facts of this claim are not contested by the
parties, or to make the necessary factual findings that could help the Appellate Body to complete
the legal analysis should it disagree with our decision.17
3.14. Morocco objects to Tunisia's request and asks us to not modify our Report on this point.18
3.15. We note that Tunisia is not contesting our decision to apply judicial economy to t hat claim.19
We consider that MIICEN's report on the definitive determination contains the relevant facts and
data underpinning its consideration of the volume of Tunisian imports in relative terms. In our
opinion, the additional factual findings requested by Tunisia are therefore not necessary to rule on
this claim. That being said, we have added in footnote 344 (345) a clarification regarding the data
on which MIICEN based its analysis.
3.4 Paragraph 7.253
3.16. Tunisia considers that paragraph 7.253 refl ects its position but does not mention its specific
arguments nor Morocco's position on those arguments. Tunisia requests us to amend this paragraph
by including a summary of Tunisia's arguments and Morocco's position. 20
Morocco requests that we do not ame nd this paragraph because the parties' arguments are
adequately reflected in the executive summaries prepared by the parties and because, according to

12 Footnote omitted.
13 Tunisia's request for interim review, para. 2.5. (emphasis original)
 14 Paragraph 7.128 of the Interim Report.
15 Footnote omitted.
16 Tunisia's request for interim review, para. 2.14.
17 Tunisia's request for interim review, paras. 2.15 and 2.16.
18 Morocco's comments on Tunisia's request for interim review, paras. 26 and 27.
19 Tunisia's request for interim review, paras. 2.14-2.16.
20 Tunisia's request for interim review, para. 2.17.

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Morocco, it would not be appropriate to include a summary of Morocco's arguments at Tunisia's
request.21
3.17. We consider that this paragraph summarizes Tunisia's position succinctly, while footnotes 334
to 336 refer to the paragraphs of the parties' written submissions that contain their specific
arguments. For that reason, we do not consider the amendments suggested by Tunisia to be
necessary.
3.5 Paragraph 7.308
3.18. Tunisia notes that we have not addressed its argument that MIICEN disregarded the fact that
many injury factors evolved positively. 22 Without contesting that approach, Tunisia requests us to
make the necessary factual findings that could help the Appellate Body to review that argument in
the event of an appeal. In particular, Tunisia requests us to find that "production, productive
capacity, employment, wages, domestic sales, market share and investments evolved positively".23
3.19. We note that data on the domestic industry's productive capacity, staff assigned to exercise
book production, productivity, wages and investments are not disputed by the parties. We therefore
do not see any reason to analyse these factors' trends.
3.20. With regard to developments in the domestic industry's production, domestic sales and market
share, paragraphs 7.272 and 7.283 of the Report reflect the relevant data considered by MIICEN.
3.6 Paragraphs 7.333 and 7.334
3.21. Tunisia argues that the investigation record contains information demonstrating that
Imprimerie Moderne sold exercise books in the Moroccan market and therefore competed with the
domestic industry. 24 Tunisia requests us to amend the sentences "because the record dos not
demonstrate whether this producer sold its exercise books in the Moroccan market or in export
markets" (paragraph 7.333) and "the investigation record does not indicate where Imprimeri e
Moderne sold its exercise books" (paragraph 7.334) by taking into account the evidence that shows
that Imprimerie Moderne made its sales in the Moroccan market.25 Should these changes affect the
reasoning and final finding on the non -attribution analysis under Article 3.5 of the Anti -Dumping
Agreement, Tunisia requests us to make the necessary amendments.26
3.22. Tunisia draws our attention to three elements in the record that, in its view, demonstrate that
Imprimerie Moderne was a competitor in the Moroc can market. We shall examine each of these
elements in turn.
3.23. First, Tunisia explains that, in their petition, the applicants accepted the fact that Imprimerie
Moderne was a competitor in the Moroccan market27:
It should be noted that the entry of a new producer of exercise books into the Moroccan
market in 2015 is also unlikely to have caused any injury to the domestic industry, since
that injury existed well before that new producer started its activities.
Consequently, no domestic competition among producers can break the causal link
between dumped imports of the product under consideration from Tunisia and the injury
suffered by the domestic industry.28
3.24. Second, Tunisia recalls MIICEN's finding that Imprimerie Moderne was an importer of exercise
books for a number of years before resuming production of exercise books in 2015. Tunisia deduces

21 Morocco's comments on Tunisia's request for interim review, para. 9.
22 Tunisia's request for interim review, para. 2.18.
23 Tunisia's request for interim review, para. 2.19.
24 Tunisia's request for interim review, paras. 2.22-2.25.
25 Tunisia's request for interim review, para. 2.26.
26 Tunisia's request for interim review, para. 2.26.
27 Tunisia's request for interim review, paras. 2.22 and 2.23 (referring to Petition, (Exhibit MAR-9)
paras. 141 and 142).
28 Petition (Exhibit MAR-9), paras. 141 and 142.

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from this that, prior to 2015, Imprimerie Moderne's business was selling exercise books at the
national level.29 Lastly, Tunisia notes that the exporters brought to MIICEN's attention the fact that
Imprimerie Moderne "successfully offer[ed] new brands (e.g. Bleu Marine) and [had] expanded their
production and sales".30 According to Tunisia, this information confirms "the presence of Imprimerie
Moderne in the Moroccan market as a competitor". Consequently, MIICEN should have considered
the effects of competition from Imprimerie Moderne on the domestic industry.31
3.25. W e have noted in paragraph 7.328 of our Report that the investigating authority is only
required to investigate a potential injury factor if it has evidence suggesting that a factor is injuring
the domestic industry. Subsequently, we concluded in paragraph 7.337 that, on the basis of
elements contained in the record, an objective authority would not have found that competition from
Imprimerie Moderne was injuring the domestic industry.
3.26. In our view, neither the assertions of the applicants and exporters cited by Tunisia, nor
MIICEN's finding that Tunisia brought to our attention demonstrate, on the basis of evidence, what
proportion of Imprimerie Moderne's sales of exercise books were made in the Moroccan market.
More importantly, the elements raised by Tunisia do not indicate that Imprimerie Moderne's sales
were injur ing the domestic branch and are, therefore, not such as to oblige the investigating
authority to consider this factor under Article 3.5. Consequently, we do not consider it necessary to
change our reasoning or our conclusions relating to this claim. Nevertheless, bearing in mind
Tunisia's request, we have made changes to paragraphs 7.333 and 7.334, explaining that the record
does not demonstrate what proportion of Imprimerie Moderne's sales w ere made in the Moroccan
market and how its sales affected the domestic industry.
3.7 Paragraph 7.335
3.27. Tunisia requests us to amend paragraph 7.335 which states that "the investigation record does
not provide information on the price levels of the exe rcise books offered by Imprimerie Moderne
allowing for an assessment of whether this producer could have exerted pressure on domestic
industry prices".32 According to Tunisia, Exhibit TUN-30, contains the value of Imprimerie Moderne's
output, allowing MIIC EN to assess whether Imprimerie Moderne exerted pressure on domestic
industry prices.33 Thus, Tunisia requests us (i) to reflect this information on the value of Imprimerie
Moderne's products; and, if applicable, (ii) to amend our reasoning and our conclus ion with regard
to the existence of data on the "value" of this producer's overall and per-unit (tonne) production.34
3.28. For the sake of completeness, we accept Tunisia's first request and reflect the information on
the value of Imprimerie Moderne's output in footnote 465 (466) of the Report.
3.29. However, the information contained in Exhibit TUN -30 does not change our reasoning in
paragraph 7.335. Tunisia itself explains that the data in that exhibit may relate to either the exercise
books' estimated price per tonne, or to their value "at cost".35 Tunisia has therefore not established
that these data reflected the price levels proposed by Imprimerie Moderne. Accordingly, we see no
reason to amend paragraph 7.335.
3.30. Tunisia argues that, to the extent that these data represent the value of Imprimerie Moderne's
exercise books "at cost", MIICEN could have checked whether Imprimerie Moderne's cost of
production was lower or higher than the domestic industry's cost of production and assessed whether
this producer exerted pressure on domestic industry prices. 36 This argument by Tunisia assumes
that MIICEN was required to investigate the effects of competition from Imprimerie Moderne on the
domestic industry. However, we have indicated that the investigating authority should examine an
injury factor if it had evidence suggesting that this factor was injuring the domestic industry. We do

29 Tunisia's request for interim review, para. 2.24 (referring to the report on the definitive determination
30 Tunisia's request for interim review, para. 2.24 (citing the Tunisian exporters' comments on the
investigation (27 February 2018) (Exhibit TUN-29), p. 10).
31 Tunisia's request for interim review, para. 2.25.
32 Footnote omitted.
33 Tunisia's request for interim review, paras. 2.27-2.29 (referring to Excel File listing the petitioners
(Exhibit TUN-30 (BCI))).
34 Tunisia's request for interim review, para. 2.30.
35 Tunisia's request for interim review, para. 2.29.
36 Tunisia's request for interim review, para. 2.29.

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not have the confidential version of Exhibit TUN-30. With respect to the data in the non-confidential
version of Exhibit TUN-30, in our view, they would not have led an objective and unbiased authority
to conclude that Imprimerie Moderne was exerting pressure on domestic industry prices. Thus, in
view of the elements before us, we are not convinced that MIICEN should have investigated the
effects of competition from Imprimerie Moder ne and, more specifically, compared its cost of
production with that of other producers. For these reasons, we decline Tunisia's request to amend
our reasoning and our conclusion with regard to the existence of data on the "value" of this
producer's overall and per-unit (tonne) production.
3.8 Paragraphs 7.355, 7.360 and 8.1.c.iii. and paragraphs 7.378, 7.379 and 7.386
3.31. In the light of the Panel's findings on the measure's consistency with Article 5.3 of the
Anti-Dumping Agreement, Tunisia requests that we do not make findings under Articles 5.2 and 5.8,
because such findings are not necessary for the resolution of the dispute. For the same reason,
Tunisia requests us to delete the last sentence of paragraph 7.378 from our Report and paragraphs
7.379 and 7.386 in their entirety.37
3.32. Morocco asks us to decline Tunisia's request for judicial economy in relation to Article 5.2,
insofar as it was Tunisia itself that requested the Panel to find a violation of Morocco 's obligations
under that article.38
3.33. We do not share Tunisia's view that our findings in paragraphs 7.355 and 7.360 are not
necessary to resolve the dispute. We recall that Tunisia itself requested us, principally, to conclude
that Morocco had violated Articles 5.2, 5.3 and 5.8 of the Anti-Dumping Agreement.39 On the other
hand, we consider, in the light of the parties' arguments, that it is necessary to explain how we
interpret the relationship among those three provisions, in order to reach our conclusion of violation
of Article 5.3. For this reason, we do not consider that these passages of our Report constitute obiter
dicta, i.e. an observation that, although it appears in our decision, is not necessary for the resolution
of the dispute.
3.34. Lastly, contrary to Tunisia's assertion, we consider that paragraphs 7.378, 7.379 and 7.386 of
our Report respond directly to an argument made by Tunisia regarding the "representativeness" of
evidence contained in the complaint , and that the paragraphs are use ful for understanding the
Panel's conclusion on the alleged violation of Article 5.3 of the Anti -Dumping Agreement. We
therefore consider that they should be included in the Final Report and we therefore decline Tunisia's
request in this regard.
3.9 Paragraph 7.391
3.35. Tunisia requests us to expand on the first sentence of paragraph 7.391 in order to better
reflect its argument and to indicate in our Report whether we consider that the fact that "similar
trade practices are taking place in the same region - despite the lack of information in the initiation
petition on the similarities or difference s between the markets concerned in the same region - is a
sufficient factual basis to establish the adequacy of the evidence". 40 Morocco requests that we do
not amend this paragraph because the parties' arguments are adequately reflected in the executive
summaries prepared by the parties and annexed to the Report.41
3.36. We accept Tunisia's request to develop our description of its argument and we reflect this
addition in the first sentence of paragraph 7.390, which now reads as follows:
7.390. In that regard, Tunisia considers that the information substantiating the
proposed normal value adjustments "does not pertain to the source or the export
market, i.e. Tunisia" and that "no explanation is offered as to why these margins 'are
similar' to those that could be obtained in Tunisia" and, in particular, "why the
market conditions in Morocco with respect to that profit margin could have

37 Tunisia's request for interim review, paras. 2.31 and 2.32.
38 Morocco's comments on Tunisia's request for interim review, paras. 34 and 35.
39 Tunisia's response to Panel question No. 6.22, para. 175.
40 Tunisia's request for interim review, para. 2.34.
41 Morocco's comments on Tunisia's request for interim review, para. 8.

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been representative or a reasonable indicator of distribution margins in
Tunisia".42
3.37. However, we do not consider it useful to complete our finding in paragraph 7.391 that "with
respect to an applicant's difficulty in obtainin g such evidence, relying on comparable data for the
same business operations in the same region appears to be relevant evidence in this case".
3.10 Paragraph 8.1.b.
3.38. Tunisia requests us to expand on our conclusions by reflecting the specific reasons t hat
underpin the Panel's findings of violation. 43 Morocco objects to this request on the grounds that
nothing "obliges a panel to set out, under separate headings, all the different arguments used to
substantiate a panel's findings of violation".44
3.39. We agree with Morocco that a panel is not required to set out in its conclusions the detailed
reasons underpinning its findings. We consider that the conclusions reflected in section 8.1 of our
Report, read in the light of our findings, allow the Panel's de cision to be understood. Therefore, we
decline Tunisia's request.

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ANNEX B
ARGUMENTS OF THE PARTIES
Table des matières Page
Annex B-1 Integrated executive summary of the arguments of Tunisia 33
Annex B-2 Integrated executive summary of the arguments of Morocco 58

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ANNEX B-1

INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF TUNISIA
1 INTRODUCTION
1.1. This dispute concerns the definitive anti-dumping measure imposed by the Ministry of Industry,
Investment, Trade and the Digital Economy (MIICEN) and the Ministry of the Economy and Finance
of the Kingdom of Morocco on imports from Tunisia of exercise books classified under heading
4820.20.00.00 of Morocco's customs tariff.
1.2. As Tunisia explains in this submission, MIICEN initiated the investigation on an insufficient
factual basis at both the level of dumping and the level of injury to the domestic industry (DI).
Furthermore, MIICEN erroneously found the existence of dumping, injury to the DI and a causal link
between the two.
2 MOROCCO VIOLATED ARTICLES 2.2.2, 2.2 AND 2.1 OF THE ANTI-DUMPING AGREEMENT
BY CALCULATING AN INFLATED CONSTRUCTED NORMAL VALUE
2.1. Tunisia raises three arguments in support of its claim under Article s 2.2.2, 2.2 and 2.1 of the
Anti-Dumping Agreement that MIICEN made errors in the calculation of the constructed normal
value.
2.1 First error in the calculation of the constructed normal value: the failure to exclude
administrative costs and other expense s not part of the product price from the profit
margin
2.2. Tunisia claims that MIICEN acted inconsistently with Articles 2.2.2, 2.2 and 2.1 of the Anti -
Dumping Agreement by failing to exclude both administrative costs and certain expenses not part
of the product price from the profit margin. In particular, the parties agree on how MIICEN calculated
the profit margin by subtracting the "cost of production" from the "unit selling price" of each declared
sale.1 The parties also agree on the components of these variables. The "unit selling price" is made
up of the cost of production, administrative, general and selling costs, and profit, as well as expenses
not part of the ex -factory price.2 Meanwhile, the "cost of production" is made up of the expenses
incurred in production (for SITPEC), plus administrative and financing costs (for SOTEFI).3
2.3. The parties therefore agree that MIICEN calculated the amount of profit for each declared
domestic sale by adding, to the profit per se, administrative costs (for SITPEC) as well as certain
expenses not part of the ex-factory product price (for both exporters). MIICEN used this amount of
profit for each declared sale to calculate the general profit margin of each expor ter for the purpose
of constructing the normal value.4
2.4. The only remaining substantive question before this Panel is whether the calculation of the profit
margin is inconsistent with Articles 2.2.2, 2.2 and 2.1 of the Anti-Dumping Agreement. In this sense,
a profit margin composed of administrative costs and other expenses is inflated and therefore cannot
be qualified as "actual data pertaining to ... sales", as provided for in Article 2.2.2. Nor can an
inflated profit margin be "reasonable", as required under Article 2.2. Lastly, an inflated profit margin
also distorts the calculation of the constructed normal value and the overall margin of dumping,
which is inconsistent with Article 2.1 of the Anti-Dumping Agreement.
2.5. Morocco appears to base its defence on an "objection to admissibility" 5, claiming that this
argument from Tunisia "could have [been] raised before the authority" but was not. 6 Morocco

1 Tunisia's first written submission, paras. 5.30-5.33; and Morocco's response to Panel question 1.1
following the first substantive meeting, para. 12.
2 Tunisia's first written submission, paras. 5.36 and 5.49; and Morocco's response to Panel question 1.6
following the first substantive meeting, para. 25.
3 Tunisia's first written submission, paras. 5.36 and 5.49; and Morocco's response to Panel question 1.6
following the first substantive meeting, para. 25.
4 Tunisia's first written submission, paras. 5.45 and 5.56.
5 Morocco's second written submission, para. 89.
6 Morocco's first written submission, para. 62.

BCI redacted, as indicated [[***]]

therefore appears to suggest that the errors made by an authority are justiciable before a WTO panel
only if they are reported by the interested parties in the course of the investigation. In this regard,
Tunisia referred to the extensive body of WTO case law rejecting Morocco's proposal that the
complainant's arguments in WTO dispute settlement proceedings should previously have been raised
before the investigating authority.7 While Morocco put forward this defence on several occasions, it
did not specify the legal basis for its position.
2.6. Accordingly, Tunisia claims that an inflated profit margin including, in addition to the profit per
se, administrative costs and other expenses not part of the product price (1) is not based on "actual
data pertaining to ... sales" under Article 2.2.2 of the Anti -Dumping Agreement, (2) does not
constitute a "reasonable amount" of profits for the purpose of constructing the normal value under
Article 2.2, and (3) is not suitable for calculating the margin of dumping under Article 2.1 of the
Anti-Dumping Agreement. Tunisia therefore requests the Panel to find that Morocco violated Articles
2.2.2, 2.2 and 2.1 by failing to exclude from the profit margin administrative costs and certain
expenses not part of the product price.
2.2 Second error in the calculation of the constructed normal value: the exclusion of sales
of numbered or watermarked exercise books from the calculation of the profit margin
2.7. Regarding the second error identified in the calculation of the constructed normal value, Tunisia
claims that MIICEN violated Articles 2.2.2, 2.2 and 2.1 of the Anti-Dumping Agreement by excluding
sales of numbered or watermarked exercise books from the calculation of the profit margin for the
purpose of constructing the normal value.
2.8. Tunisia claims that domestic sales of numbered or watermarked exercise books meet a ll the
conditions laid down in Article 2.2.2 of the Anti-Dumping Agreement to form part of the calculation
of the profit margin for the purpose of constructing the normal value. In particular, these sales
provide "actual data." Furthermore, Tunisian produc ers sell these exercise books to unaffiliated
purchasers in such a way that these sales "indeed [reflect] the 'normal' price of the like product, in
the home market of the exporter" 8, and neither MIICEN nor Morocco has contended otherwise. 9
Lastly, Morocco confirmed that numbered or watermarked exercise books fall within the scope of the
product under consideration, as defined by MIICEN, and therefore sales of such exercise books are
sales of the "like product". Accordingly, sales of numbered or watermarked exercise books meet all
the conditions laid down in Article 2.2.2 to be taken into account for the purpose of calculating the
profit margin.
2.9. Morocco responds that sales of numbered or watermarked exercise books "were not taken into
account because [these products] were not exported". 10 Morocco justifies MIICEN's approach by
arguing that the "actual data" under Article 2.2.2 of the Anti -Dumping Agreement do not relate "to
all sales, but to those likely to provide a fair comparison; i.e. to sales of exported product models".11
These justifications are invalid for the following reasons.
2.10. First, Morocco conflates the functions of Article 2.2 and Article 2.4 of the Anti -Dumping
Agreement. Article 2.2 concerns the determination of normal value in the absence of valid domestic
sales, in order to calculate a "comparable price, in the ordinary course of trade, for the like product
when destined for consumption in the exporting country". Article 2.2.2, for its part, establishes the
methods for calculating reasonable amounts for, most notably, profits. These profits relate to the
"like product". Contrary to Morocco's claim, both Article 2.1 and Article 2.2.2 of the Anti -Dumping
Agreement refer to the "like product" without characterizing it, meaning that it is the like product as
a whole.
2.11. Second, it is established case law that the conditions of Article 2.2.2 of the Anti -Dumping
Agreement do not permit the importation of concepts from other provisions of the Anti -Dumping
Agreement. For instance, the Appellate Body and several panels have observed that Article 2.2.2 of
the Anti -Dumping Agreement does not permit investigating authorities to exclude non -
representative sales under Article 2.2. These sales are of course not valid and cannot be used for

7 Tunisia's second written submission, paras. 2.25-2.35.
8 Appellate Body Report, US – Hot-Rolled Steel, para. 140.
9 Morocco's first written submission, para. 71; and second written submission, para. 132.
10 Morocco's second written submission, para. 132.
11 Morocco's second written submission, para. 142. (original italics)

BCI redacted, as indicated [[***]]

the purposes of comparison with the export price. However, the profits of non-representative sales
must be taken into account in the calculation of the profit margin under Article 2.2.2 of the Anti -
Dumping Agreement. As indicated in the case law, Article 2.2.2 only concerns sales that were not
made in the ordinary course of trade.12 Any other sales of the like product must be taken into account
for the purpose of calculating the profit margin.
2.12. Third, Morocco's position is at odds with MIICEN's approach of taking into account thousands
of domestic sales of exercise books not exported to Morocco for the calculation of the profit margin.
These sales are listed in Exhibit TUN -62 (BCI). This contradicts Morocco's position that only "sales
of exported product models" can be taken into account by the investi gating authority under Article
2.2.2 of the Anti-Dumping Agreement. Thus, it seems that Morocco's argument is, for the purposes
of this dispute, that the "actual data" under Article 2.2.2 include domestic sales of exercise books
that were not exported but that could have been exported, but exclude sales of exercise books that
were not exported and that cannot be exported (are not exportable).
2.13. In any event, Morocco's argument cannot be consistent with the customary rules of treaty
interpretation as cod ified in Article 31 of the Vienna Convention on the Law of Treaties. More
specifically, Morocco seeks "the importation into a treaty of concepts that were not intended"13 when
it claims that MIICEN was entitled to disregard sales of exercise books that, de spite the fact of
containing actual data, being made in the ordinary course of trade, and concerning the like product,
relate to models of the product under consideration that had not been exported or are not exportable.
Of course, nothing in the relevant provisions supports this approach.
2.14. Tunisia therefore requests the Panel to find that the exclusion of sales of numbered or
watermarked exercise books from the calculation of the profit margin is inconsistent with Articles
2.2.2, 2.2 and 2.1 of the Anti-Dumping Agreement.
2.3 Third error in the calculation of the constructed normal value: the inclusion of the
"distribution cost"
2.15. With regard to Tunisia's argument that MIICEN wrongly included the "distribution cost" in the
calculation of the constr ucted normal value, Morocco does not dispute the factual description
provided by Tunisia in its first written submission. Accordingly, the establishment of the facts with
respect to this argument is clear: MIICEN added the "distribution cost" to the constr ucted normal
value at the ex-factory level.
2.16. Tunisia has explained why the approach taken by MIICEN and contested by Tunisia is
inconsistent with Articles 2.1 and 2.2 of the Anti -Dumping Agreement. First, MIICEN calculated a
normal value at the ex -factory level, i.e. the price when the product left the producer's premises.
The "distribution cost", including the cost of transport, cannot of course be part of the ex -factory
price.
2.17. Second, this "distribution cost" was never deducted from the constructed normal value, even
though MIICEN asserted that it had done so.14 This assertion by MIICEN in fact relates to the normal
value calculated on the basis of domestic sales for [[* * *]] models of exercise books. 15 However,
for the exercise book models for which MIICEN constructed the normal value, this "distribution cost"
has always been part of the constructed normal value.
2.18. Third, even assuming that MIICEN added the distribution cost to, then deducted it from, the
normal value (quod non), adding it in the first place had the effect of inflating the normal value, as
profits were calculated on the basis of a higher normal value. These profits would remain inflated
even if MIICEN intended to remove the "distribution cost" at a later stage. As a result, by adding the
"distribution cost", MIICEN inflated the constructed normal value, regardless of whether it intended
to deduct that cost afterwards.

12 Panel Report, US – OCTG (Korea), para. 7.47.
13 Appellate Body Report, India – Patents (US), para. 45.
14 Report on the definitive determination, para. 90. (Exhibit TUN-7).
15 See Excel file containing the dumping margin calculation forwarded with the essential facts of
8 October 2018 (SOTEFI), tab "VENTEDOM". Exhibit TUN-14 (BCI).

BCI redacted, as indicated [[***]]

2.19. As with several other arguments put forward by Tunisia, Morocco seems to base its defence
concerning Tu nisia's argument that MIICEN wrongly included the "distribution cost" in the
constructed normal value on the fact that this error was not brought to MIICEN's attention during
the investigation, and asserts that because of this, Tunisia's argument is inadmi ssible. Tunisia has
repeatedly explained why this position is untenable. Morocco's approach would be tantamount to
asking the Panel to conclude that the errors leading to the violations of the Anti-Dumping Agreement
are justiciable before it only if they h ave been reported to the investigating authority. Neither the
Anti-Dumping Agreement nor WTO case law supports such an approach.
2.20. Tunisia therefore requests the Panel to find that by adding the "distribution cost" to the
calculation of the constructed normal value, MIICEN violated Articles 2.1 and 2.2 of the Anti-Dumping
Agreement.
3 MIICEN VIOLATED ARTICLES 2.4 AND 2.1 OF THE ANTI -DUMPING AGREEMENT BY
FAILING TO MAKE A "FAIR COMPARISON" BETWEEN THE NORMAL VALUE AND THE
EXPORT PRICE
3.1. With regard to a "fair" comparison between the normal value and the export price, Tunisia puts
forward two arguments to demonstrate that MIICEN violated Articles 2.4 and 2.1 of the Anti -
Dumping Agreement.
3.1 First error concerning the comparison between the normal value and the export price:
the use of an erroneous mathematical formula
3.2. MIICEN calculated the margin of dumping for each exporter on the basis of multiple averaging.
However, the formula used by MIICEN to calculate the margin of dumping violates the fair
comparison obligation under Articles 2.4 and 2.1 of the Anti-Dumping Agreement. In particular, both
the numerator and the denominator of the mathematical operation were expressed in units of
volume, and therefore the resulting margin of dumping was a percentage of a quantity expressed in
units of volume.
3.3. Morocco agrees with Tunisia that the numerator was expressed in units of volume and not in
monetary terms. In particular, Morocco acknowledges that the "QTE EN DUMPING" column in the
Excel files containing the calculation of the dumping margin "is not, in fact, a quantity of dumping
expressed in monetary terms". 16 Furthermore, Morocco does not dispute that the denominator
corresponds to the total volume of exports (in units for SITPEC and in tonne s for SOTEFI). As a
result, there is no disagreement regarding Tunisia's factual description concerning the use of an
erroneous mathematical formula for the calculation of the margin of dumping.
3.4. Tunisia also explained, without challenge by Morocco, that this erroneous mathematical formula
had the effect of inflating the margin of dumping. For SITPEC, the margin of dumping resulting from
an appropriate formula should have been 15.38% instead of 15.69%, while for SOTEFI it should
have been 22.55% instead of 27.71%.17 The comparison between the normal value and the export
price was therefore distorted and, as such, is inconsistent with Articles 2.4 and 2.1 of the Anti -
Dumping Agreement.
3.5. Morocco claims that the errors in the calculation of the margin of dumping are not covered by
the first sentence of Article 2.4 of the Anti-Dumping Agreement.18 This assertion is at odds with the
vast body of case law on this matter. In this respect, it should be recalled that, firstly, the first
sentence of Art icle 2.4 of the Anti -Dumping Agreement concerning the obligation to make a "fair
comparison" between the normal value and the export price may be invoked even in the absence of
other claims concerning the remainder of Article 2.4.19 Furthermore, the fair comparison obligation
covers the calculation of the margin of dumping, meaning that any error in this calculation having
the effect of inflating the margin of dumping results in a violation of the obligation set out in the first

16 Morocco's opening statement at the first substantive meeting, para. 143; and second written
submission, para. 101.
17 Tunisia's first written submission, para. 5.122.
18 Morocco's opening statement at the first substantive meeting, para. 129.
19 Tunisia's second written submission, paras. 3.21-3.24.

BCI redacted, as indicated [[***]]

sentence of Article 2.4, whi ch is to make a "fair comparison" between the normal value and the
export price.20
3.6. Lastly, Morocco argues that "the exporters never raised these weighting methodology issues
before the authority" and that therefore "Tunisia seeks a de novo review of the evidence".21 Once
again, Morocco requests the Panel to declare the violations of the obligations contained in the Anti-
Dumping Agreement non -justiciable insofar as the errors giving rise to these violations were not
brought to the attention of the inves tigating authority. This position is untenable under the Anti -
Dumping Agreement.
3.7. Accordingly, Tunisia requests the Panel to find that MIICEN, by using an erroneous mathematical
formula resulting in the inflation of the margin of dumping, violated Arti cle 2.4 (and consequently
Article 2.1) of the Anti-Dumping Agreement.
3.2 Second error concerning the comparison between the normal value and the export
price: the exclusion of the use of licences as a relevant factor for the classification of the
exported product
3.8. Tunisia further claims that in dismissing the use of licences for certain exercise books for the
purposes of the classification of the exported product, MIICEN failed to make a fair comparison
between the normal value and the export price for SOTEFI. To recall, the exporters asked MIICEN
to classify the product under consideration for the purposes of the comparison between the normal
value and the export price on a model-by-model basis according to eight physical characteristics of
the exercise books.
3.9. MIICEN retained five characteristics but rejected three others, most notably the use of licences,
on the grounds that "there was no satisfactory justification for [their] effect on costs or prices" or
that "[their] impact on price comparability is negligible".22 In this sense, the rejection of the use of
licences as a factor affecting price comparability is inconsistent with Articles 2.1 and 2.4 of the Anti-
Dumping Agreement.
3.10. MIICEN was aware of the existence of a difference affecting the price comparability of exercise
books relating to the use of licences. Indeed, even before the investigation was initiated, the
domestic industry (DI) had itself recognized that the price of exercise books varied between [[* *
*]] depending on the use of licences.23 MIICEN accepted this fact by calculating an adjusted normal
value, for the purposes of the initiation of the investigation, on the basis of the use of licences in
particular.24
3.11. Furthermore, SOTEFI requested MIICEN to create a separate cl assification for licensed and
unlicensed exercise books for the purposes of calculating the margin of dumping.25 In support of this
request, SOTEFI indicated that it [[***]]. 26 SOTEFI also added to this assertion a list of licensed
products sold in the export market27, as well as a contract between SOTEFI and the company [[***]],
which stipulates that SOTEFI was to pay [[***]] to use certain licensed designs on exercise books.28
3.12. Furthermore, at the public hearing of 30 April 2018, SOTEFI explained the importance of this
physical characteristic as a relevant criterion for the classification of the exported product. Following
these explanations, MIICEN requested data on sales of licensed and unlicensed exercise books, which

20 Tunisia's second written submission, paras. 3.25-3.29.
21 Morocco's opening statement at the first substantive meeting, para. 137.
22 Report on the definitive determination, para. 85. Exhibit TUN-7.
23 See Tunisia's first written submission, paras. 5.128-5.133.
24 Initiation report, Petition filed by exercise book producers for the implementation of anti-dumping
measures on imports of exercise books from Tunisia (initiation report), p. 6. Exhibit TUN-2.
25 Report on the definitive determination, para. 83. Exhibit TUN-7.
26 Exporters' response of 4 September 2017 to the deficiency letter sent by MIICEN on 15 August 2017.
Exhibit TUN-43 (BCI).
27 Annex 2.1 to the exporters' response of 4 September 2017 to the deficiency letter sent by MIICEN on
15 August 2017. Exhibit TUN-44 (BCI).
28 Annex 2.2 to the exporters' response of 4 September 2017 to the deficiency letter sent by MIICEN on
15 August 2017, clauses 8-10. Exhibit TUN-45 (BCI).

BCI redacted, as indicated [[***]]

SOTEFI provided in an Excel fi le, as requested by MIICEN.29 In particular, SOTEFI identified, in its
Excel files, the exercise books that were sold under licence and without a licence, so as to enable
MIICEN to classify them under separate codes.30 On the basis of that data, MIICEN could easily have
verified the significant price difference in respect of five models of exercise books sold under licence
in one market and without a licence in another market. These price differences are shown in the
table in paragraph 5.141 of Tunisia's first written submission.
3.13. MIICEN therefore wrongly excluded the use of licences from the relevant criteria for the
classification of the product under consideration. In doing so, MIICEN compared the licensed exercise
books sold in one market to the unlicensed exercise books sold in another market, even though the
use of licences is a physical characteristic affecting price comparability. The failure to take into
account the use of licences for the purpose of classifying the product under consideration is therefore
clearly inconsistent with Articles 2.1 and 2.4 of the Anti-Dumping Agreement.
3.14. In response, Morocco raises a set of insufficient arguments to try to rebut Tunisia's claim.
First, Morocco claims that certain models listed in the table in paragraph 5.130 of Tunisia's fi rst
written submission "are not included in the VENT[E]DOM file used for the calculation". 31 However,
all the references to these exercise books are clearly set out in the Excel file submitted by SOTEFI
on 23 May 2018.32 Morocco's argument must therefore be rejected.
3.15. Second, Morocco submits that four of the exercise book models listed in the table in paragraph
5.130 of Tunisia's first written submission have characteristics other than the use of licences that
may account for the price differences.33 As regards the use of certified (PEFC) paper, the comparison
of exercise books in the tables in paragraphs 5.130 and 5.131 of the first written submission includes
unlicensed exercise books with this type of paper. If the exercise books with certified (PE FC) paper
are removed, the price differential between the licensed and unlicensed exercise books is even
higher. As a result, Morocco's reference to the use of certified (PEFC) paper is not relevant.
Furthermore, as regards ruling, Morocco appears to attri bute to this aspect an effect on the prices
of exercise books, even though MIICEN itself had found in its final report that ruling had no impact
on price or that such an impact was "negligible". 34 Morocco's argument is therefore at odds with
MIICEN's findings and must be rejected.
3.16. Third, Morocco argues that the contract between SOTEFI and [[***]] covers only part of the
investigation period. 35 This argument is irrelevant. The investigation period, as determined by
MIICEN at the initiation stage, exten ds from 1 January 2016 to 30 April 2017. 36 Admittedly, the
contract between SOTEFI and [[***]] expired on 31 December 2016. 37 However, all the sales of
licensed exercise books in both Tunisia and Morocco declared by SOTEFI were made between the
months of M ay and December 2016. 38 The fact that the contract in question expired before 31
December 2016 is of little consequence, since it was valid for assessing the impact of the use of
licences on the prices of all exercise books sold under licence throughout th e investigation period.
Morocco's argument must therefore be rejected.
3.17. Fourth, Morocco asserts that "[t]he evidence relating to the costs of an exporter in its domestic
market bears no relation to "the impact on prices» for exports on the import mark et" and that the
"contract is not relevant to the matter before the Panel". 39 Contrary to Morocco's assertion, the
production cost is essential for determining whether a given physical characteristic has an impact

29 Email dated 4 May 2018 addressed to Mr Charles Julien, entitled "Relance/Tableaux de calcul de
marge de dumping". Exhibit TUN-72.
30 See Excel file containing the dumping margin calculation forwarded with the essential facts of
8 October 2018, tabs "VENTEMAR BRUT" and "VENTEDOM BRUT". Exhibit TUN-14 (BCI).
31 Morocco's first written submission, para. 96.
32 Exhibit TUN-11 (BCI).
33 Morocco's first written submission, para. 102.
34 Report on the definitive determination, para. 85. Exhibit TUN-7.
35 Morocco's response to Panel question 2.3 following the first substantive meeting, para. 51.
36 Notice of initiation, p. 4. Exhibit TUN-1.
37 Annex 2.2 to the exporters' response of 4 September 2017 to the deficiency letter sent by MIICEN on
15 August 2017, p. 5. Exhibit TUN-45 (BCI).
38 See Excel file containing the dumping margin calculation sent with the essential facts of 8 October
2018 (SOTEFI), tab "VENTEDOM BRUT" (column N) and tab "VENTEMAR BRUT" (column L). Exhibit TUN-14
(BCI).
39 Morocco's response to Panel question 2.7 following the second substantive meeting, para. 14.

BCI redacted, as indicated [[***]]

on price comparability. In addition, the exporter could provide evidence regarding the prices of two
products with different physical characteristics, but these prices cannot be the only relevant
information for determining the impact of certain physical characteristics, since they may mask the
true impact on price comparability. The most important thing is to find out about the price structure
(including the cost of production) rather than the final selling price.
3.18. Fifth, Morocco claims that the price difference associated with the use of lic ences was
"negligible".40 This argument does not stand, since the comparison between licensed exercise books
in one market and unlicensed exercise books in another market inflated the margin of dumping,
regardless of whether this involves a few decimal points. The main point is that this inflation results
from an inappropriate comparison between the normal value and the export price of licensed and
unlicensed exercise books. Morocco's argument must therefore be rejected.
3.19. Sixth, Morocco claims that SOTEFI was supposed to "quantify the impact of these licences on
the price of the models".41 In this respect, SOTEFI submitted sufficient evidence to demonstrate the
impact of the use of licences on the cost of production through the contract between SOTEFI a nd
[[***]] and on the price of exercise books through the sales of licensed exercise books declared by
SOTEFI, as shown in the tables in paragraphs 5.130 and 5.131 of Tunisia's first written submission.
SOTEFI therefore provided sufficient information to d emonstrate the impact of the use of licences
on the costs and prices of exercise books sold under licence. Morocco's argument must therefore be
rejected.
3.20. Accordingly, the central issue before the Panel is whether, by comparing licensed exercise
books in one market to unlicensed exercise books in another market, MIICEN acted inconsistently
with the Article 2.4 obligation to make a "fair" comparison. In addressing this issue, the Panel should
consider whether an "unbiased and objective" investigating au thority was entitled to reject (or
ignore) highly relevant evidence at its disposal, including the introductory petition of the DI, a list of
licensed exercise books exported to Morocco, the contract with [[***]] and the Excel file containing
the selling p rice of unlicensed and licensed exercise books, organized according to the format
indicated by MIICEN following the public hearing. Even if the Panel considers that MIICEN may need
further information or additional explanations concerning the data already placed on the record, it
should examine whether MIICEN was required to engage in a "dialogue" under the last sentence of
Article 2.4 of the Anti-Dumping Agreement in order to obtain that information.42
3.21. Tunisia therefore requests the Panel to find that MIICEN violated Articles 2.1 and 2.4 of the
Anti-Dumping Agreement by failing to make a fair comparison between the normal value and the
export price of exercise books sold under licence in one market and without a licence in another
market.
4 MIICEN VIOLATED ARTICLE 12.2.2 OF THE ANTI-DUMPING AGREEMENT BY FAILING TO
ADDRESS IN ITS REPORT THE KEY FACTUAL ELEMENTS RELATING TO THE IMPACT OF THE
USE OF LICENCES ON THE PRICE OF EXERCISE BOOKS
4.1. In its report on the definitive determination, MIICEN ignored the extensive information available
for analysing the impact of the use of licences on the price of exercise books, including: (1) the DI's
assertion that the use of licences represented between [[***]]% of the product price43; (2) the list
of licensed exercise books exported to Morocco 44; (3) the contract with a foreign company, which
provided for, inter alia, a payment enabling SOTEFI to use certain licensed designs on the exercise
books45; and (4) the Excel files in which SOTEFI separately decla red the licensed and unlicensed
exercise books. 46 All this evidence concerns "an issue that [had] arisen in the course of the
investigation that [had] necessarily [to] be resolved in order for the investigating authorities to be

40 Morocco's response to Panel question 2.3 following the first substantive meeting, para. 50.
41 Morocco's response to Panel question 2.3 following the first substantive meeting, para. 51.
42 Appellate Body Report, EC – Fasteners (China), para. 489.
44 Annex 2.1 to the exporters' response of 4 September 2017 to the deficiency letter sent by MIICEN on
15 August 2017. Exhibit TUN-44 (BCI).
45 Annex 2.2 to the exporters' response of 4 September 2017 to the deficiency letter sent by MIICEN on
15 August 2017. Exhibit TUN-45 (BCI).
46 Excel file containing the dumping margin calculation sent with the essential facts of 8 October 2018
(SOTEFI), tabs "VENTEMAR BRUT" and "VENTEDOM BRUT". Exhibit TUN-14 (BCI).

BCI redacted, as indicated [[***]]

able to reach their determination".47 By failing to address this evidence in its report on the definitive
determination, MIICEN acted inconsistently with Article 12.2.2 of the Anti -Dumping Agreement.48
Tunisia notes that Morocco did not respond directly to this claim.
5 MIICEN VIOLA TED ARTICLES 3.1 AND 3.2 OF THE ANTI -DUMPING AGREEMENT BY
ERRONEOUSLY FINDING AN INCREASE IN IMPORTS IN RELATIVE TERMS
5.1. Tunisia claims that MIICEN violated Articles 3.1 and 3.2 of the Anti -Dumping Agreement by
failing to analyse the volume of Tunisian imports in relative terms in an objective manner.49
5.2. In this case, MIICEN set out its analysis of imports in relative terms in four paragraphs. On this
basis, it concluded that the volume of dumped imports of exercise books from Tunisia had
significantly increased, most notably "relative to the domestic production and domestic consumption
of exercise books".50 Tunisia contests this analysis for a number of reasons.
5.3. First, MIICEN erroneously focused on the period January -April 2017 to fin d an increase in
imports in relative terms, without taking into account the seasonality of sales of exercise books. 51
Indeed, as MIICEN explained from the start of the investigation, school exercise books are products
that follow a seasonal logic driven by the start of the school year: production begins after orders are
placed around December time, and the exercise books are delivered in April and May in anticipation
of the start of the school year. 52 Given that the deliveries take place in April and May, i t is quite
possible that from one year to the next, they mainly occur in either April or May, in such a way that
the January-April data for one year cannot be compared to the January-April data for another year.
As Tunisia demonstrated, this is exactly what happened in 2016 and 2017 (the only years for which
the investigation file contains the volume of imports for the first four-month period and for the entire
year). Looking at the volume of imports in absolute terms, it can be seen that in 2016, 56% of
Tunisian exercise books were imported between January and April, while in 2017 this figure rises to
80% for the same period.53 The proportion of exercise books imported in the periods January -April
2016 and January -April 2017 is therefore not at all similar. Nevertheless, MIICEN based its
conclusion regarding the increase in imports in relative terms on a comparison between these two
sub-periods.
5.4. Second, MIICEN did not properly compare trends throughout the investigation period. 54 If one
examines the share of imports in relation to domestic consumption and production between 2013
and 2016, a generally downward trend is observed. Moreover, the share of imports in relation to
domestic production and consumption never exceeded the initial level of 2013. Nevertheless, MIICEN
explained that the import share had "fluctuated" 55, "increased significantly" 56 and evolved in a
"steady" manner57, and focused on the period January -April 2017 to conclude that imports had
increased. MIICEN thus pr ovided a picture of trends that is not objective with regard to the data
available because its analysis suggests that imports increased throughout the entire investigation
period.58

47 See Panel Reports, EC – Tube or Pipe Fittings, para. 7.424; and
EU – Footwear (China), para. 7.844.
48 Tunisia is aware that panels apply the principle of judicial economy in relation to claims under
Article 12.2.2 of the Anti-Dumping Agreement when finding a violation of a substantial obligation of that
agreement.
49 Tunisia raised a third argument in its first written submission, based on apparent inconsistencies
concerning the indexed figures contained in the non-confidential version of the report on the definitive
determination (paras. 6.26-6.27). However, in light of the confidential data provided by Morocco with its first
written submission, Tunisia is not pursuing this argument. It is therefore not reflected in this summary.
50 Report on the definitive determination, para. 180. Exhibit TUN-7.
51 Tunisia's first written submission, paras. 6.28-6.31.
52 Initiation report, para. 11. Exhibit TUN-2; Report on the preliminary determination, para. 32. Exhibit
TUN-5; Report on the definitive determination, para. 63. Exhibit TUN-7.
53 Tunisia's first written submission, para. 6.29.
54 Tunisia's first written submission, para. 6.32. See also Tunisia's response to Panel questions following
the first substantive meeting, paras. 86-87.
55 Report on the definitive determination, para. 125. Exhibit MAR-CONF-3.
56 Report on the definitive determination, para. 122. Exhibit MAR-CONF-3.
57 Report on the definitive determination, para. 123. Exhibit MAR-CONF-3.
58 Tunisia's first written submission, para. 6.32.

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5.5. Morocco requests the Panel to conclude that this claim has "no chance of success" and cannot
hold, because MIICEN was not required to examine the increase in imports in relative terms under
Article 3.2.59 In response to Morocco's arguments, Tunisia explained that Article 3.2 does indeed
provide that an investigating authority may analyse the increase in imports in absolute terms or in
relative terms, and that it is therefore not required to conduct both reviews. However, if an
investigating authority chooses to analyse imports in absolute and relative terms, it must comply
with the requirements of Articles 3.1 and 3.2. 60 This is precisely the approach taken by several
panels.61 In this case, MIICEN chose not only to analyse the increase in imports in relative terms,
but also to use this analysis as the basis for concluding th e existence of injury.62 MIICEN's analysis
of imports in relative terms should therefore have complied with the requirements of Article 3.1, in
particular the requirement to conduct an objective examination. For the reasons outlined by Tunisia
above, MIICEN clearly failed to conduct such an objective examination of the volume of imports in
relative terms.
5.6. For these reasons, Tunisia requests the Panel to conclude that Morocco acted inconsistently
with Articles 3.1 and 3.2 by failing to analyse the volume of Tunisian imports in relative terms in an
objective manner.
6 MIICEN VIOLATED ARTICLES 3.1 AND 3.2 OF THE ANTI -DUMPING AGREEMENT BY
ERRONEOUSLY FINDING PRICE UNDERCUTTING
6.1. With regard to the price undercutting analysis, Tunisia puts forward three a rguments to
demonstrate that MIICEN violated Articles 3.1 and 3.2 of the Anti-Dumping Agreement.
6.1 MIICEN acted inconsistently with Articles 3.1 and 3.2 by comparing the actual price of
imports with a constructed domestic product price
6.2. Tunisia claims that MIICEN acted inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping
Agreement by comparing the actual price of imports with a constructed domestic product price.
6.3. In its price undercutting analysis, MIICEN reconstructed the price of the domestic product to
obtain a "target selling price", which was then compared with the actual import price.63 This approach
is clearly contrary to the very nature of the concept of "price undercutting" under Article 3.2, which
relates to a comparison between two actual prices in the importing Member's market.
6.4. The price undercutting analysis under Article 3.2 of the Anti -Dumping Agreement requires "a
dynamic assessment of price developments and trends in the relationship between the prices of the
dumped imports and those of domestic like products over the entire period of investigation (POI)".64
This "dynamic assessment" can only be made using the actual prices of imports and of the domestic
product in the importing Member's market. In this regard, Tunisia recalls that both the European
Union and Canada, as third parties to this dispute, share Tunisia's view that a comparison between
the actual import price and the constructed domestic product price for the purpose of analysing price
undercutting would not be consistent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement.65
6.5. In response, Morocco puts forward three arguments. First, Morocco asserts that Article 3.2 does
not contain any reference to the need to compare "actual" prices. 66 This assertion is not, however,
relevant. The purpose of the price undercutting analysis in Article 3.2 is to examine the interaction
(dynamic assessment) between the import and domestic product prices in the market of the
importing country. Of course, this interaction requires an analysis of prices as posted in the market,
that is, the (actual) prices that purchasers have to pay. Any attempt to construct the price of imports
or the price of the domestic product for the purpose of price undercutting would inevitably have the

59 Morocco's request for a preliminary determination, paras. 50-53.
60 Tunisia's response to Morocco's request for a preliminary determination, paras. 8.8-8.14.
61 See Panel Reports, Pakistan - BOPP Film (UAE), para. 7.281, and
Morocco - Hot-Rolled Steel (Turkey), para. 7.148; and Appellate Body Report,
US - Corrosion-Resistant Steel Sunset Review, para.127.
62 Report on the definitive determination, para. 180. Exhibit TUN-7.
63 Tunisia's first written submission, paras. 6.38-6.42.
64 Appellate Body Report, China – HP-SSST, para. 5.159. (Emphasis added)
65 See third-party written submissions of the European Union, para. 105, and Canada, para. 10.
66 Morocco's second written submission, para. 199.

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effect of distorting the interaction between the import and domestic product prices in the market of
the importing country. As a result, Morocco's argument regarding the absence of the word "actual"
in Article 3.2 is not relevant.
6.6. Second, Morocco refers to Article 2.2.1 of the Anti -Dumping Agreement in an attempt to
demonstrate that "deficit prices may be set aside in the calculation of the normal valu e".67 This,
however, is not relevant. Article 2.2.1 relates to the calculation of the normal value, i.e. the value
with which the export price will be compared in order to determine the margin of dumping. However,
the price undercutting analysis in Article 3.2 relates to the comparison of the interaction between
import and domestic product prices as posted in the market of the importing country. There is no
relationship between the calculation of the margin of dumping and that of price undercutting.
6.7. Third, Morocco asserts that the three categories of effects of imports on prices listed in Article
3.2 of the Anti -Dumping Agreement are not "fixed and impermeable categories" 68, and that "the
three phenomena can be observed in the same set of data ".69 Morocco appears to claim that an
authority is entitled to conduct the examination required under Article 3.2 of the Anti -Dumping
Agreement by carrying out a combined analysis of the three listed phenomena. Without even
addressing the validity of this argument, it should be noted that MIICEN conducted a separate
analysis of each phenomenon and, as a result, the analysis of consistency with Article 3.2 of the
Anti-Dumping Agreement must be based on this approach. It is therefore not necessary for the Panel
to address the issue of whether Article 3.2 of the Anti -Dumping Agreement permits a combined
analysis of the effects of imports on the price of the domestic product.
6.8. Tunisia therefore requests the Panel to find that the price undercutting analysis violates Articles
3.1 and 3.2 of the Anti-Dumping Agreement because MIICEN compared an actual import price with
a constructed (fictitious) domestic product price.
6.2 MIICEN acted inconsistently with Articles 3.1 and 3.2 by using as its basis a
comparison of prices for a single year rather than the entire period of investigation
6.9. Tunisia claims that MIICEN acted inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping
Agreement by basing its price undercutting analysis on a static, fixed comparison of prices for a
single year.70
6.10. In conducting its price undercutting analysis, MIICEN only compared one import price with one
(constructed) domestic product price calculated for a single sub-period from 1 May 2016 to 31 April
2017, i.e. the last 12 months of th e period of investigation. As explained above, the price
undercutting analysis requires a "dynamic assessment of price developments and trends in the
relationship between the prices of the dumped imports and those of domestic like products over the
entire period of investigation (POI)". 71 This means that an investigating authority is violating its
obligation under Articles 3.1 and 3.2 by conducting:
... a static examination of whether there is a mathematical difference at any point in
time during the POI wi thout any assessment of whether or how these prices interact
over time.72
6.11. The question therefore arises as to what is the appropriate period for conducting this "dynamic
assessment". In the above quotation, the Appellate Body stated that this analysis must be conducted
"over the entire period of investigation", i.e. the pe riod of investigation chosen for the purposes of
the injury assessment. Tunisia indicated that it was not necessary to address this issue in the
abstract. The relevant question is whether there is consistency between the period used for price
undercutting and the period used for the rest of the injury analysis. Given that MIICEN relied on the
period from 1 January 2013 to 30 April 2017 for almost all of the factors and indices examined in

67 Morocco's second written submission, para. 200.
68 Morocco's second written submission, para. 203.
69 Morocco's second written submission, para. 204.
70 Tunisia's first written submission, paras. 6.43-6.47.
71 Appellate Body Report, China – HP-SSST, para. 5.159.
72 Appellate Body Report, China – HP-SSST, para. 5.160.

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relation to injury and the causal link, it should have based its pric e undercutting analysis on the
same period.
6.12. Morocco relies on Article 17, paragraph 3, of Decree No. 2-12-645 of 27 December 2012 (which
requires a period for price undercutting like that set for the dumping analysis) in claiming that "the
period selected is defined in a pre -existing rule of general and routine application". 73 Insofar as
Morocco attempts to justify an inconsistency with the Anti -Dumping Agreement by invoking its
internal law, Tunisia recalls the general principle of international law enshrined in Article 27 of the
Vienna Convention on the Law of Treaties under which "[a] party may not invoke the provisions of
its internal law as justification for its failure to perform a treaty". 74 This principle is also codified in
Article XVI:4 of the Marrakesh Agreement Establishing the World Trade Organization, which provides
that "[e]ach Member shall ensure the conformity of its laws, regulations and administrative
procedures with its obligations as provided in the annexed Agreements". A violation of international
obligations cannot therefore be justified on the grounds that the act or omission at issue is required
under domestic legislation.
6.13. Accordingly, Tunisia requests the Panel to find that the price undercutting analysis violates
Articles 3.1 and 3.2 of the Anti -Dumping Agreement because MIICEN made a static, fixed analysis
between one import price and one domestic product price calculated for one single year of the
investigation period.
6.3 MIICEN acted inconsistently with Articles 3.1 an d 3.2 by erroneously using the
Tunisian exporters' profit margin to construct the selling price of domestic exercise books
6.14. In constructing the price of the domestic product, MIICEN used the Tunisian exporters' profit
margin obtained in the Tunisian m arket for domestic producers in the Moroccan market. 75 Tunisia
claims that, even assuming that MIICEN was authorized to construct a price for the domestic product
under Articles 3.1 and 3.2 of the Anti-Dumping Agreement (quod non), MIICEN's approach whereby
the profit margin of Tunisian producers is attributed to Moroccan producers is without basis for two
reasons.
6.15. First, MIICEN asserted that "it is legitimate for Moroccan producers to be able to aspire to the
same level of profit made by their Tunisian counterparts in their domestic market".76 However, this
assertion has no factual basis. A company's "profit" depends on, inter alia, production costs, market
conditions (interaction between supply and demand) and distribution channels. It is therefore normal
for a producer's "profit" to be different from that of another producer, particularly in different
markets.
6.16. MIICEN's assertion that it is "legitimate" for Moroccan producers to obtain the "same level of
profit" in the Moroccan market as T unisian producers in the Tunisian market does not hold in the
absence of an in -depth analysis of the particular circumstances of both markets. Without even
attempting to conduct such an analysis, MIICEN improperly attributed the profit margin of Tunisian
exporters to domestic producers for the purposes of constructing the price of the domestic product.
MIICEN should have used a more detailed analysis of the conditions in both markets in order to
reach its conclusion that it was "legitimate for Moroccan producers to be able to aspire to the same
level of profit made by their Tunisian counterparts in their domestic market".77
6.17 Second, MIICEN calculated the profit margin attributed to Moroccan producers "on the basis of
the average of the two weighted averages of the profit margins of both exporters for their domestic

73 Response to Panel question 3.15 b. following the second substantive meeting, para. 41.a.
74 See G.C. Fitzmaurice, The General Principles of International Law Considered from the Standpoint of
the Rule of Law, Collected Courses of the Hague Academy of International Law, (volume 92), 1952, p. 85,
where Professor Fitzmaurice considered that the principle preventing States from relying on internal law to
avoid international obligations is "one of the great principles of international law, informing the whole
[national] system and applying to every branch of it". Several decades later, the International Court of Justice
recognized the customary law status of the principle codified in Article 27 of the Vienna Convention on the Law
of Treaties. See Case concerning certain questions of mutual assistance in criminal matters (Djibouti v.
75 Report on the definitive determination, para. 136. Exhibit TUN-7.
76 Report on the definitive determination, para. 140. Exhibit TUN-7.
77 Report on the definitive determination, para. 140. Exhibit TUN-7.

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sales".78 However, as demonstrated by Tunisia in the context of its claims under Articles 2.1, 2.2
and 2.2.2 of the Anti -Dumping Agreement, this profit margin calculated for each of the Tunisia n
exporters was inflated due to errors made by MIICEN. As a result, the profit margin does not reflect
the profit margin that the Tunisian exporters could in all likelihood have achieved for their domestic
sales. Tunisia recalls that Morocco has not responded to this argument.
6.18. Tunisia therefore requests the Panel to find that the price undercutting analysis violates Articles
3.1 and 3.2 of the Anti -Dumping Agreement because MIICEN attributed an incorrectly calculated
profit margin to the Moroccan prod ucers, without analysing whether all the relevant conditions in
the Moroccan and Tunisian markets were similar.
7 MIICEN VIOLATED ARTICLES 3.1 AND 3.2 OF THE ANTI -DUMPING AGREEMENT BY
ERRONEOUSLY FINDING PRICE DEPRESSION
7.1. With regard to the price depression analysis, Tunisia puts forward two arguments to
demonstrate that MIICEN violated Articles 3.1 and 3.2 of the Anti-Dumping Agreement.
7.1 MIICEN violated Articles 3.1 and 3.2 of the Anti -Dumping Agreement by establishing
a distorted factual basis for considering whether the price decline was "to a significant
degree"
7.2. Tunisia claims that MIICEN acted inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping
Agreement by establishing a distorted factual basis for considering whether the pric e decline was
"to a significant degree".
7.3. MIICEN analysed the trend in the price of imports in paragraph 146 of the report on the definitive
determination, finding that the price had remained at very low levels and had fallen by 6% between
2013 and the first four months of 2017.
7.4. Tunisia claims that MIICEN did not establish a valid factual basis for considering whether the
price decline was "to a significant degree", as required by Article 3.2 of the Anti-Dumping Agreement.
In particular, Tunisia acknowledges that "the drafters of the provision intentionally left considerable
margin for an investigating authority to determine whether price [depression] is "significant", based
on the specific circumstances of the case."79 However, case law has interpreted the word "significant"
in Article 3.2 as requiring the investigating authority to "rely on all positive evidence" to arrive at an
objective factual basis.80
7.5. MIICEN did not explicitly analyse whether the observed price depression was "to a signifi cant
degree". The question may arise as to whether MIICEN was required under Article 3.2 of the Anti -
Dumping Agreement to explicitly consider this, as this condition is contained in Article 3.2. As WTO
case law has clarified, regardless of the method used by the investigating authority, the factual basis
for analysing whether price depression is "to a significant degree" must be based on an objective
analysis of all available evidence.81
7.6. Even assuming that MIICEN could fulfil its obligation to consider whether the observed price
depression was "to a significant degree" on the basis of an implicit analysis, such an analysis was
necessarily based on the 6% decrease, as found by MIICEN when comparing the whole of 2013 to
the first four months of 2017. This price decline is the only observation made by MIICEN concerning
price trends in paragraph 146 of the report on the definitive determination.
7.7. However, the comparison of the domestic product's price performance between 2013 and the
first four months of 2017 is inappropriate due to the seasonal nature of exercise book sales and
prices. As Tunisia has repeatedly explained, the data that were available to MIICEN show that the
prices of exercise books vary according to seasonality stemming from the start of the school year.
This is confirmed by the table in paragraph 148 of the report on the definitive determination.

78 Report on the definitive determination, para. 140. Exhibit TUN-7.
79 Panel Report, US - Carbon Steel (India) (Article 21.5 – India), para. 7.345.
80 Appellate Body Report, China – HP-SSST, para. 5.161.
81 Appellate Body Report, China – HP-SSST, para. 5.161.

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7.8. In this table, the price for the period January-April 2016 was 93, while the price was considerably
higher, 98.31, for 2016 as a whole. The price for the period May -December was therefore 99.46.
Hence, the price for the first four months was 6.46% lower than the price for the rest of the year.
7.9. The figures for 2016 should have served as an indication to MIICEN that the period January -
April 2017 was unreliable. If MIICEN intended to rely on the data from that period for 2017, it should
have at least verified the reliability of those figures. Unfortunately, MIICEN did not conduct such a
verification analysis. As the figures for the period January-April 2017 were unreliable, MIICEN should
have focused on analysing entire years, given that those figures were not affected by the seasonal
nature of exercise book sales and prices. Such an analysis shows that, although the price fell
continuously during the period under investigation, the decline was much less pronounced than
MIICEN suggests, i.e.: 0.89% from 2013 to 2014; 0.58% from 2014 to 2015; and 0.22% from 2015
to 2016. The overall decrease between 2013 and 2016 was 1.69%.
7.10. In light of the above considerations, MIICEN erroneously relied on the sub -period January-
April 2017 to try to accentuate the fall in the price of the domestic product. Of course, a 6% decrease
based on this sub-period is more like to qualify as "significant" than a 1.69% decrease based on the
four full years comprising the period covered by the investigation. MIICEN therefore acted
inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping Agreement by establishing a distorted
factual basis for assessing whether the observed price decline was "to a significant degree".
7.2 MIICEN violated Articles 3.1 and 3.2 of the Anti -Dumping Agreement by failing to
properly consider whether the decline in the price of the domestic product was due to
Tunisian imports
7.11. Tunisia claims that MIICEN acted inconsistently with Articles 3.1 and 3.2 of the Anti-Dumping
Agreement by failing to properly consider whether the decline in the price of the domestic product
was due to Tunisian imports.
7.12. In the report on the definitive determination, MIICEN included two paragraphs attributing the
decline in the price of the domestic product to imports. In particular, MIICEN justified its finding on
price depression by stating that domestic producers of exercise books are forced to constantly match
the low prices offered primarily by importers of Tunisian exercise books so that they can sell and
maintain a certain level of market share.82
7.13. Tunisia claims that MIICEN failed to properly consider whether the decline in the pri ce of the
domestic product was due to Tunisian imports. In this regard, Tunisia recalls Appellate Body case
law, according to which "an investigating authority is required to consider whether a first variable -
that is, subject imports - has explanatory fo rce for the occurrence of significant depression or
suppression of a second variable - that is, domestic prices".83
7.14. The question therefore arises as to whether MIICEN properly assessed whether the decline in
the price of the domestic product was due to imports. The answer is no. The confidential version of
the report on the definitive determination (Exhibit MAR -CONF-3 (BCI)) confirms that MIICEN's
assertions attributing the decline in the price of the domestic product to imports are misleading. In
particular, MIICEN simply asserted, without any serious analysis of price trends, that domestic
producers "are forced to constantly match the low prices offered... primarily [by] importers of

82 Report on the definitive determination, paras. 147 and 148. Exhibit TUN-7.
83 Appellate Body Report, China – GOES, para. 136. (Emphasis added)

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Tunisian exercise books". 84 However, this assertion is contradicted by a thorough analysis of the
interaction between the price of imports and the price of the domestic product.
7.15. The price of imports and the price of the domestic product were virtually the same in 2013.
However, while the price of imports increased i n 2014, 2015 and 2016, the price of the domestic
product declined over the same period. It should be noted that the price differentials increased year-
on-year: they rose from 3.9% in 2014, to 4% in 2015, and to 5.6% in 2016. Based on these price
trends, it should be asked how MIICEN was able to conclude that imports had "explanatory force for
the occurrence of significant depression... [of] domestic prices". 85 The price trends of imports and
the domestic product show instead that the DI's decision to lower the price of its exercise books had
nothing to do with the price of imports.
7.16. MIICEN therefore did not analyse the trends in the interaction between the price of imports
and the price of the domestic product. By disregarding this interaction, MIICEN d id not conduct a
serious examination of whether the decline in the price of the domestic product was due to imports,
as required by Articles 3.1 and 3.2 of the Anti -Dumping Agreement. An analysis of price trends
based on the data that were available to MII CEN calls into question, and even contradicts, any
assertion that imports have "explanatory force for the occurrence of significant depression... [of]
domestic prices".86 Hence, by failing to properly consider whether the decline in the price of the
domestic product was due to Tunisian imports, MIICEN acted inconsistently with Articles 3.1 and 3.2
of the Anti-Dumping Agreement.
8 MIICEN VIOLATED ARTICLES 3.1 AND 3.2 OF THE ANTI -DUMPING AGREEMENT BY
ERRONEOUSLY FINDING PRICE SUPPRESSION
8.1. With regard to t he price suppression analysis, Tunisia puts forward two arguments to
demonstrate that MIICEN violated Articles 3.1 and 3.2 of the Anti-Dumping Agreement.
8.1 MIICEN violated Articles 3.1 and 3.2 of the Anti -Dumping Agreement by establishing
a distorted fac tual basis for assessing whether the increase in the ratio between the
selling price and the cost of production of the domestic product was "to a significant
degree"
8.2. Tunisia claims that MIICEN acted inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping
Agreement by establishing a distorted factual basis for assessing whether the increase in the ratio
between the selling price and the cost of production of the domestic product was "to a significant
degree".
8.3. In its price suppression analysis, MIICEN found that the cost of production had increased by 1%
between 2013 and 2016 and by 3% between 2013 and 2017, while the price of the domestic product
had "gradually decreased since 2013". 87 MIICEN then found that "the ratio between the cost of
production and the selling price of the locally produced exercise book had increased by 10% between
2013 and 2017" and that this finding "reflects the presence in the domestic market of pressure to
prevent the domestic industry from increasing its prices to a l evel that will enable it to cover its
production and marketing costs".88
8.4. Tunisia submits the data on which MIICEN relied to conclude that the price of the domestic
product had been suppressed:89

84 Report on the definitive determination, para. 147. Exhibit TUN-7.
85 Appellate Body Report, China – GOES, para. 136. (Emphasis added)
86 Appellate Body Report, China – GOES, para. 136. (Emphasis added)
87 Report on the definitive determination, para. 149. Exhibit TUN-7.
88 Report on the definitive determination, para. 149. Exhibit TUN-7.
89 Report on the definitive determination, para. 149. Exhibit TUN-7.

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8.5. Tunisia does not dispute the fact that the ratio between the cost of production and the selling
price increased during the period of investigation. However, for this increase to meet the legal
standard in the second sentence of Article 3.2 of the Anti -Dumping Agreement, the increase must
be observed "to a significant degree". Regardless of the method chosen, Articles 3.1 and 3.2 of the
Anti-Dumping Agreement require the investigating authority to "rely on all positive evidence" to
arrive at an objective factual basis on the "significance" of the price suppression.90
8.6. In this case, MIICEN did not explicitly address whether the price suppression was "to a
significant degree". This raises the question of whether MIICEN was required, under Article 3.2 of
the Anti-Dumping Agreement, to explicitly consider the "significance" of the price suppression. Even
assuming that MIICEN could implicitly consider whether the price suppression was "to a significant
degree", this examination was necessarily based on the 10% increase in the ratio between the cost
of production and the price of the domestic product between 2013 and the first four months of
2017.91 However, as Tunisia has repeatedly explained, the data for the first four months of 2017
were not reliable because of the seasonality of exercise book sales, production and prices. This is
confirmed by the data for 2016 that were available to MIICEN. In p articular, the ratio between the
cost of production and the price of the domestic product for the first four months of 2016 was 111%.
However, the ratio for 2016 as a whole was 103%. This means that the ratio between the cost of
production and the price of the domestic product for the period May -December 2016 was below
103%. The gap between the first four months and the rest of 2016 is therefore considerable,
highlighting the seasonal nature of the ratio between the cost of production and the price of the
domestic product.
8.7. Moreover, the ratio between the cost of production and the price of the domestic product in the
first four months of 2016 and 2017 is similar (i.e. roughly 111% and 110%, respectively). The
performance of this factor during the first four months and the rest of 2016 should have been a
strong indication that the accuracy of the data for the first four months of 2017 was questionable.
However, MIICEN disregarded the seasonal nature of the ratio between the cost of production and
the price of the domestic product, by exclusively relying on an increase of 10% in that ratio between
2013 and the first four months of 2017 to implicitly find suppression of the price of the domestic
product "to a significant degree". Of course, a 10% increase in the ratio between the cost of
production and the price of the domestic product between 2013 and the first four months of 2017 is
more likely to be "significant" than a 3% increase between 2013 and 2016 (full years).
8.8. As a result, MIICEN only relied on a 10% increase in the ratio between the cost of production
and the price of the domestic product between 2013 and the first four months of 2017 to find that
there was price suppression. It is on the basis of this 10% increase that MIICEN finally found, albeit
implicitly, that the price suppression was "to a significant degree". MIICEN therefore acted
inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping Agreement by deeming that the price
suppression was "to a significant degree" on the basis of the 10% increase in the ratio between the

90 Appellate Body Report, China – HP-SSST, para. 5.161.
91 Report on the definitive determination, para. 149. Exhibit TUN-7.

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cost of production and the selling price of the domestic product between 2013 and the first four
months of 2017.
8.2 MIICEN failed to assess whether the alleged price suppression was due to imports
8.9. Tunisia claims that MIICEN acted inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping
Agreement by failing to objectively examine whether the observed price suppression was due to
imports.
8.10. In particular, paragraph 149 of the report on the definitive determination does not contain any
reference to imports, highlighting that MIICEN failed to consider whether the price suppression was
due to imports. MIICEN found that the 10% increase in the ratio between the cost of production and
the price of the domestic pr oduct between 2013 and the first four months of 2017 "reflects the
presence in the domestic market of pressure to prevent the domestic industry from increasing its
prices to a level that will enable it to cover its production and marketing costs".92 As this "pressure",
according to MIICEN, came from imports, it should have explicitly said so and, more importantly, it
should have explained how imports were exerting "pressure" on the ratio between the cost of
production and the selling price of the DI's exercise books.
8.11. In any case, analysis of trends in the price of imports, the price of the domestic product and
the cost of production confirms that the "pressure" on the Moroccan market preventing the DI from
raising its prices does not come from imports. In 2014, 2015 and 2016, the price of imports exceeded
the DI's cost of production, which exceeded the price of the domestic product. It is clear that imports
had nothing to do with the DI's decision to set its selling price below the cost of production. I f the
DI's price had been aligned with the price of imports, it would have exceeded the cost of production
throughout the period. These trends thus demonstrate that the so -called "pressure" mentioned by
MIICEN in paragraph 149 of its report on the definitive determination does not come from imports.
8.12. MIICEN therefore acted inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping
Agreement, as it failed to examine whether the observed price suppression was due to imports.
9 MIICEN VIOLATED ARTICLES 3.1 AND 3.4 OF THE ANTI -DUMPING AGREEMENT BY
ERRONEOUSLY FINDING INJURY
9.1. Under Articles 3.1 and 3.4 of the Anti -Dumping Agreement, an investigating authority must
objectively examine the relevant economic and financial factors listed in Article 3.4, based on positive
evidence, to assess the DI's situation. The examination of each of these factors "requires a process
of analysis and assessment of the role, relevance and relative weight of each factor in the particular
investigation".93 Moreover, the inve stigating authority's examination must be conducted in an
unbiased manner, without favouring any of the interested parties. 94 This examination must draw a
"streamlined, genuine and undistorted picture" from the facts to be considered as coming from an
objective authority.95
9.2. With regard to MIICEN's analysis of the DI's situation, Tunisia puts forward three interrelated
arguments to demonstrate that MIICEN violated Articles 3.1 and 3.4 of the Anti -Dumping
Agreement.
9.1 MIICEN violated Articles 3.1 and 3.4 of the Anti-Dumping Agreement by failing to take
into account that most of the factors showed positive trends
9.3. MIICEN based its conclusion of injury on four factors: DI profitability, production, sales and
market share. MIICEN specified that profitability was the key indicator underlying its conclusion.

92 Report on the definitive determination, para. 149. Exhibit TUN-7.
93 Panel Report, Russia – Commercial Vehicles, para. 7.111, referring to Appellate Body Report, Thailand
– H-Beams, para. 125, and Panel Report, EC – Bed Linen (Article 21.5 – India), para 6.162 (footnotes
omitted).
94 Appellate Body Reports, US – Hot-Rolled Steel, para. 193; and China – HP-SSST (Japan) / China –
HP-SSST (EU), para. 5.207.
95 Panel Report, EC – Tube or Pipe Fittings, para. 7.316.

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9.4. Tunisia alleges that MIICEN concluded that there was injury despite the positive performances
of many other factors. Productive capacity, employment and investment increased on the whole
during the period of investigation, as did three of the factors on which MIICEN relied to conclude
that there was injury (production, sales and market share showed positive trends during most of the
investigation period (2013-16)). Given the overall positive situa tion of the DI, it was not objective
for MIICEN to conclude that there was injury by relying almost exclusively on profitability as a key
factor and ignoring the positive performance of many factors.96 The fact that certain factors show a
positive performa nce does not prevent an investigating authority from concluding that there is
injury.97 However, in such cases, the authority must explain in a "thorough and persuasive manner"
why the positive performance has been "outweighed by any other factors". 98 MIICEN failed to do
this.
9.5. In response, Morocco argues that the context is one of an industry trying to remain
competitive,99 and that the overall picture was one of economic decline. 100 Tunisia maintains that
the picture painted by Morocco of a sufferi ng industry forced to sell at a loss in order to remain
competitive is not convincing in light of the facts. An industry in which production, productive
capacity, sales, market share, employment and investments have increased is a healthy industry.
Given the positive trends in these factors, which suggest that the DI was in good health, MIICEN
should have provided a "thorough and convincing" explanation as to why the DI was still suffering
injury, as the Panel in Thailand - H-Beams suggested.101 Morocco still argues that the increase in
stocks shows that the DI was suffering injury, 102 while Tunisia argues that the fact that the DI
increased its sales without disposing of its stocks points to an over -producing industry. Lastly,
Morocco explains th at investment increased to allow the DI to remain competitive. However, it
makes no sense for a supposedly suffering industry, as MIICEN claims, to continue to massively
increase its investments over several years. MIICEN therefore failed to analyse the DI's situation in
an objective manner.
9.2 MIICEN violated Articles 3.1 and 3.4 of the Anti -Dumping Agreement by erroneously
relying on the DI's production, sales and market share performance during the first four
months of 2017
9.6. Tunisia claims that MIIC EN erroneously relied on the DI's production, sales and market share
performance during the first four months of 2017 to conclude that there was injury. However, this
data was not reliable due to the seasonality of exercise books.
9.7. For example, product ion does not occur on a regular basis throughout the year, and it is
therefore highly likely that it occurred during different periods from one year to the next. Thus,
production from January-April of a given year cannot be compared to production during th e same
period from another year without ensuring that the comparison has not been distorted by the
seasonality of exercise books. 103 Moreover, MIICEN concluded that there was injury based on the
data for January-April 2017, even though production increased during the full years covered by the
investigation period (from 2013 to 2016).
9.8. In response, Morocco explained that the period January-April was quite representative, as "most
output must be available by May of each year". 104 However, the figures do not support this
statement. Looking at the data for 2016 (the only year for which we have data for January-April and
for the entire year), we can see that roughly one third of production took place during the first four
months of the year, and not the majorit y, as Morocco suggests. As a result, the data for January -
April are likely to create distortions, as the proportion of exercise books produced by the DI may

96 Tunisia's first written submission, paras. 6.99-6.106; and opening statement at the first substantive
meeting, para. 8.3.
97 Tunisia's first written submission, para. 6.105.
98 Panel Report, Thailand – H-Beams, para. 2.249.
99 Morocco's first written submission, para. 179.
100 Morocco's opening statement at the first substantive meeting, para. 99.
101 Panel Report, Thailand – H-Beams, para. 2.249.
102 Morocco's first written submission, paras. 180-181.
103 Tunisia's first written submission, paras. 6.111-6.112.
104 Morocco's first written submission, footnote 162.

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change from one year to the next, for example, depending on when the orders are placed and when
the producers provide the raw material.105
9.9. With regard to sales and market share, MIICEN relied on the decrease observed in January -
April 2017 compared to January -April 2016 to conclude that there was injury, despite the positive
performance of these factors during the four full years covered by the period of investigation (2013-
16). However, in 2017, a very large portion of imports (80%) occurred during the first four months
of the year, when this share was much lower in 2016 (56%). Given that domestic ex ercise books
compete directly with Tunisian exercise books, it is not surprising that their sales and market share
decreased in January-April 2017 when Tunisian imports were, in proportion to the rest of the year,
most significant. MIICEN therefore should not have relied on data from January -April 2017 to
conclude that there was injury without ensuring that the comparison did not create distortions due
to seasonality.106
9.10. In response, Morocco explained that MIICEN's analysis was objective, as it had compared the
same period (January -April) in 2016 and 2017. 107 However, the distorted nature of MIICEN's
comparison does not stem from comparing different periods; rather, it stems from the fact that from
one year to the next, the share of sales and market shar e observed in January -April may vary.
Morocco also refers to the dispute Russia - Commercial Vehicles in an effort to defend MIICEN's
approach.108 However, in that dispute, the seasonality of the product at issue was not comparable
to that of exercise books . Moreover, the investigating authority had taken into account data for
temporal subsets (half-year data), but had also taken into account data for entire years,109 whereas
MIICEN relied on data for the first four months of 2017, without having data for the entire year. It
is therefore clear that the approach used by the investigating authority in Russia - Commercial
Vehicles does not in any way validate MIICEN's approach.110
9.3 MIICEN violated Articles 3.1 and 3.4 of the Anti -Dumping Agreement by erroneously
relying on the DI's negative profitability
9.11. Tunisia claims that MIICEN erroneously gave decisive weight to the DI's negative profitability
to conclude that there was injury. 111 Such an approach is not objective in this case for several
reasons.112
9.12. First, there are several reasons why an enterprise may decide to sell at a loss, and selling at
a loss can sometimes be part of normal commercial activity. 113 It is therefore not a sign of injury
per se. Second, MIICEN explained that the DI's negative profitability was due to the fact that it was
forced to sell its exercise books at a loss as a result of Tunisian imports. However, the data available
to MIICEN showed that the DI was pursuing an aggressive business strategy, as its selling price was
still below the price of Tunisian exercise books and below the cost of production. Therefore, if the DI
was actually suffering, it could have increased its selling price above the cost of production and
below the price of Tunisian exercise books in order to be profitable, as well as competitive vis-à-vis
imports. However, it strategically chose not to do so in order to increase its market share. MIICEN
therefore should not have interpreted the DI's negative profitability as being synonymous with
injury.114

105 Tunisia's second written submission, para. 4.129.
106 Tunisia's first written submission, paras. 6.116-6.120.
107 Morocco's first written submission, para. 189 (footnote deleted).
108 Morocco's first written submission, paras. 190-191.
109 Panel Report, Russia – Commercial Vehicles, table in para. 7.32.
110 Tunisia's second written submission, para. 4.20.
111 Tunisia's first written submission, paras. 6.129-6.132.
112 In its first written submission, Tunisia put forward an argument based on apparent inconsistencies
concerning the indexed figures in the non-confidential version of the report on the definitive determination
(paras. 6.123-6.128). However, in light of the confidential data provided by Morocco in its first written
submission, it does not pursue this argument. It is therefore not reflected in this summary.
113 Appellate Body Report, Canada –Renewable Energy / Canada – Feed-In Tariff Program, para. 5.71;
Panel Report, Canada – Renewable Energy / Canada – Feed-In Tariff Program, para. 7.151.
114 Tunisia's first written submission, para. 6.131; and oral statement at the first substantive meeting,
para. 8.9.

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9.13. In response, Morocco explains that the DI was unable to adopt a multi -year loss -making
strategy.115 However, when looking at the only producer with negative profitability throughout the
investigation period, it is telling that despite the lack of pr ofitability, it chose to increase its
production and sales volume, but continuously lowered its selling price. 116 Moreover, it should be
noted that the three producers of Moroccan exercise books comprising the DI had diversified
activities in addition to th e production of exercise books, which could have offset the loss of
profitability from exercise books.117 Lastly, Morocco considers that an industry such as the exercise
book industry cannot react very quickly to changes in the cost of production and price movements.118
However, the DI had ample time to adapt to this reality, as its selling price remained below the cost
of production and the price of Tunisian imports for several years. Tunisia also notes that for a
seasonal product such as school exercise books, orders are placed every year in anticipation of the
start of the next school year, and one can easily imagine that the selling price is also set every
year.119 Moreover, even the DI indicated during the investigation that its prices were set according
to the compet ition, mainly from Tunisian producers. 120 Morocco's argument that the DI could not
adapt to changes in the costs of production and the price of the competition therefore does not hold.
9.14. Finally, Morocco emphasizes that the Panel must not take inference s into consideration, but
rather, evidence to assess whether the DI was pursuing a business strategy.121 Tunisia notes in this
regard that it is not asking the Panel to determine whether there was a business strategy in the DI.
Rather, Tunisia is asking the Panel to assess whether MIICEN's conclusion that the DI was "forced"
to sell at a loss in order to match the low prices of Tunisian imports was the conclusion of an objective
and unbiased authority. As the figures on record do not support this conclusion in any way, but
MIICEN nevertheless accepted this explanation from the applicants without questioning it, Tunisia
considers that the analysis conducted by MIICEN lacked objectivity and impartiality.122
9.15. For the above reasons, Tunisia requests the Panel to conclude that Morocco acted
inconsistently with Articles 3.1 and 3.4 of the Anti -Dumping Agreement by failing to analyse the
factors related to injury in an objective manner.
10 MIICEN VIOLATED ARTICLES 3.1 AND 3.5 OF THE ANTI -DUMPING AGREEMENT BY
ERRONEOUSLY FINDING A CAUSAL RELATIONSHIP
10.1. With regard to the causal relationship analysis, Tunisia puts forward two arguments.
10.1 MIICEN acted inconsistently with Articles 3.1 and 3.5 of the Anti-Dumping Agreement
by finding a causal relationship despi te the multiple errors committed in the analyses
under Articles 3.2 and 3.4 of the Anti-Dumping Agreement
10.2. Tunisia claims that MIICEN violated Articles 3.1 and 3.5 of the Anti -Dumping Agreement by
finding a causal relationship despite the errors expla ined above in the analysis of the volume of
imports, the effects of imports on the price of the domestic product, and injury factors.
10.3. Tunisia recalls that the provisions of Article 3 of the Anti -Dumping Agreement provide for "a
logical progression of inquiry leading to an investigating authority's ultimate injury and causation
determination".123 If the examination of each step in this "logical progression" is biased and, as a
result, inconsistent with the relevant provisions of Article 3 of the Anti -Dumping Agreement, the
final finding on the causal relationship will inevitably be incorrect and inconsistent with Articles 3.1
and 3.5 of the Anti-Dumping Agreement. Tunisia notes that Morocco does not refute this statement.
10.4. In this case, as Tunisia explains above, each stage of the injury analysis conducted by MIICEN
is inconsistent with the relevant provisions of the Anti-Dumping Agreement, i.e. Articles 3.1, 3.2 and
3.4. Therefore, the price undercutting analysis is inconsistent with A rticles 3.1 and 3.5 of the Anti-

115 Morocco's first written submission, para. 195.
116 See Tunisia's opening statement, para. 8.12; and second written submission, para. 4.149.
117 Tunisia's second written submission, para. 4.149.
118 Morocco's opening statement at the first substantive meeting, para. 100.
119 Tunisia's second written submission, para. 4.150.
120 Tunisia's opening statement at the second substantive meeting, para. 7.7.
121 Morocco's opening statement at the first substantive meeting, para. 100.
122 Tunisia's second written submission, para. 4.151.
123 Appellate Body Report, China – GOES, para. 128.

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Dumping Agreement, as it is based on biased findings regarding the injury and causal relationship
analysis.
10.2 MIICEN acted inconsistently with Articles 3.1 and 3.5 of the Anti-Dumping Agreement
by failing to analyse the e ffects of competition from Moroccan producers other than the
applicants, particularly Imprimerie Moderne, on the state of the DI
10.5. Tunisia further claims that MIICEN violated Articles 3.1 and 3.5 of the Anti-Dumping Agreement
by failing to examine the effects of competition from Moroccan producers other than the applicants
in its non-attribution analysis. Both the DI and Tunisian exporters drew MIICEN's attention to the
significant presence of Imprimerie Moderne on the Moroccan market, as well as the ef fects of the
competition from this company on the DI since 2015. In particular, the introductory petition indicates
that the Imprimerie Moderne's share of production increased from 0% to 28% of total production
between 2015 and 2016. Moreover, Tunisian exp orters have pointed out that Imprimerie Moderne
performed very well and that it "[was] successfully develop[ing] new brands (e.g. Bleu Marine) and
[had] expanded their production and sales".124 As such, an unbiased and objective authority should
have found that Imprimerie Moderne had a significant presence as a producer of exercise books and
should have investigated whether (and how) the DI had responded to the competition from this new
producer.
10.6. MIICEN was thus required, under Articles 3.1 and 3.5 of the Anti-Dumping Agreement, to
"separat[e] and distinguish[…] the injurious effects of [the competition from Imprimerie Moderne]
from the injurious effects of the [...] imports" at issue,125 regarding the facts that were available to
it. It therefore does not matter whether, as Morocco claims, "Imprimerie Moderne failed to cooperate
with the authority" in the subsequent stages of the investigation.126 MIICEN acknowledged that these
companies explicitly supported the introductory petition. 127 Moreover, in the i ntroductory petition,
the DI provided information on the volume and value of these companies' sales. 128 Of course, due
to its confidential nature, this information is only available if the companies holding it are
forthcoming. This would suggest that both I mprimerie Moderne and Sopalemb cooperated in the
preparation of the petition.
10.7. In any event, Morocco's claim that neither Imprimerie Moderne nor Sopalemb replied to
MIICEN's questionnaire after the initiation of the investigation is irrelevant. It should be recalled that
these producers supported the introductory petition and provided information on the volume and
value of their production. Therefore, even if these producers decided not to cooperate, MIICEN
already had highly relevant information to de termine their impact on the DI's situation. More
specifically, according to information available to MIICEN, Imprimerie Moderne's share of production
increased from 0% to 28% of total domestic production between 2015 and 2016.
10.8. Therefore, an unbiased and objective authority could not have ignored that the sudden
appearance of a domestic competitor accounting for a significant share of domestic production was
likely to have had a significant effect on the DI's commercial decision -making (including price
determination). However, MIICEN ignored the effects of the competition from Imprimerie Moderne
on the state of the DI, even though it was well aware of this factor. Thus, by failing to analyse this
non-attribution factor, MIICEN acted inconsistently with Articles 3.1 and 3.5 of the Anti -Dumping
Agreement.
11 MIICEN VIOLATED ARTICLES 5.2 AND 5.3 OF THE ANTI -DUMPING AGREEMENT BY
ERRONEOUSLY INITIATING THE INVESTIGATION
11.1. Tunisia claims that the initiation of the investigation on 4 May 2017 is inconsistent with Articles
5.2, 5.3 and 5.8 of the Anti-Dumping Agreement.

124 Comment by Tunisian exporters concerning the investigation, 27 February 2018, p. 10. Exhibit TUN-
29.
125 Appellate Body Report, EU – PET (Pakistan), para. 5.171.
126 Morocco's second written submission, para. 195.
127 Initiation report, Petition filed by exercise book producers for the implementation of anti-dumping
measures on imports of exercise books from Tunisia (initiation report), p 6. Exhibit TUN-2.
128 Excel file entitled Annex 2 - PUBLIC Petition Participation, submitted with MAPAF, Med Paper and
Promograph's petition of 10 March 2017. Exhibit TUN-30.

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11.2. As a reminder, the introductory petition was filed by an applicant comprising the companies
MAPAF, Med Paper and Promograph. The domestic product was defined as "the exercise book, which
is broadly defined and includes all types of exercise books intended for writing, whose sheets of
paper have been assembled and attached together. It is intended primarily for schoolchildren and
students."129 The applicant specified that the dom estic product consisted of "different types of
exercise books", including "any type of exercise book, whether stitched, bound or spiral bound; any
type of format: small format (A5); large format (A4) and maxi format; any type of paper grammage
between 55 and 120 g/m²; and any type of cover: soft or hard".130
11.3. Furthermore, the dumped imported product is defined as "school exercise books in small, large
and maxi formats with a grammage of 55 to 120 g/m², primarily for the use of schoolchildren and
students".131 The applicant also "provided information on the export price to Morocco and the normal
value of exercise books at the ex -factory level for the period 1 December 2015 to 30 November
2016".132
11.4. The evidence of dumping provided by the applicant cons isted of a single invoice for Tunisian
exports of exercise books to Morocco in 2016 on the basis of the f.o.b./Tunisia price.133 The invoice
was only for exercise books with one type of paper grammage (60 g/m2) (despite the wide range of
grammage of between 55 and 120 g/m2); and was limited to three formats: 21x29.7 cm, 9x14 cm
and 11x17 cm; and to three forms of presentation: stitched, register and bound.134
11.5. Regarding the normal value, the evidence consisted of sales catalogues published by Carrefour
Tunisia and specialized bookshops at the retail level. The prices were only for "numbered" exercise
books, with two specific grammages (60 and 64 g), in three formats (21x29.7 cm, 9x14 cm and
11x17 cm), and in three forms of presentation: stitched, r egister and bound.135 The applicant also
provided information on two adjustments to the normal value based on data on the Moroccan
market.136
11.6. Article 5.2 of the Anti -Dumping Agreement specifies that evidence of dumping, injury and a
causal link between the imports concerned and the alleged injury must accompany the application.
As pointed out by the Panel in Mexico - Steel Pipes and Tubes , Article 5.2 provides that "[s]imple
assertion, unsubstantiated by relevant evidence, cannot be considered sufficien t to meet the
requirements of this paragraph";137 and that "the absolute threshold of sufficiency will depend upon
the circumstances of a given case" and "must be based on an assessment" of the criteria in Article
5.3.138 Therefore, under Article 5.3 of the Anti-Dumping Agreement, the investigating authority must
examine the accuracy and adequacy of the evidence provided in the application to determine
whether there is sufficient evidence to justify the initiation of an investigation. As explained by the
Panel in Mexico - Steel Pipes and Tubes, a Panel review is to determine "whether an unbiased and
objective investigating authority, looking at these facts, could properly have determined that there
was sufficient evidence of dumping to justify the initiation of an anti-dumping investigation".139
11.7. In addition, if the investigating authority considers that there is insufficient evidence to justify
the initiation of an investigation, pursuant to Article 5.8 of the Anti -Dumping Agreement, the
authority must pro mptly reject the application and terminate the investigation. This provision
therefore applies not only to the end of an investigation that has already been initiated, but also to
the rejection of an application prior to initiation.
11.8. In light of this legal standard, in this case, Tunisia considers that MIICEN acted inconsistently
with Articles 5.2 and 5.3 for the following reasons. First of all , given the prices contained in the

135 Initiation report, paras. 27 and 31. Exhibit TUN-2.
137 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.19.
138 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.24.
139 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.32.

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export invoice140 and the prices in the catalogues of wholesalers in Tunisia,141 which were limited to
certain models of the product under investigation, MIICEN should have assessed whether these
prices could be representative of the prices of the product under consideration in its entirety.
However, as Tunisia explained, MIICEN s imply accepted the prices proposed by the applicant and
the explanation that "about 85% of the exercise books imported into Morocco from Tunisia"
concerned the models for which prices were provided.142 There was no evidence to support this level
of "popularity" of 85%. 143 MIICEN thus initiated the investigation without assessing whether the
prices contained in the evidence concerning exports and domestic sales in Tunisia, which was limited
to certain models (compared to the range of models of the product unde r investigation), could be
representative of the export prices and normal values of the product under consideration in its
entirety. MIICEN therefore acted inconsistently with Articles 5.2 and 5.3.
11.9. Second, based on the isolated, individual nature of the prices on the export invoice,144 MIICEN
should have assessed whether these export prices for one day (and one transaction) could be
representative of export prices for the entire period of investigation. As the Panel in Mexico - Steel
Pipes and Tubes noted, "it is [...] quite possible that an individual, isolated transaction may be an
aberration from the typical prevailing prices and/or conditions, and therefore if the applicant has
provided only such temporally isolated evidence, the authority should no t assume without some
corroboration that this evidence is representative of the period as a whole". 145 MIICEN simply
accepted the applicant's price without questioning its temporal representativeness, and initiated the
investigation without assessing whethe r the export prices for one day could be representative of
export prices for the entire period of investigation. MIICEN therefore acted inconsistently with
Articles 5.2 and 5.3.
11.10. Third, given the information (or lack thereof) on the origin of the pro ducts listed for the
calculation of the normal value,146 MIICEN should have assessed whether the information contained
in the catalogues submitted as evidence was accurate and adequate in terms of the Tunisian
producers involved in the petition, or in terms of the Tunisian origin of the good in question. As the
Panel in Mexico - Steel Pipes and Tubes indicated in relation to a similar situation:
Where, as is the case here, it is obvious on its face that the normal value evidence
before the authority at the time of initiation does not pertain to a producer or exporter
and indeed pertains to a different level of trade, and may not even reflect products
produced in the exporting country, the authority should make its best endeavours to
verify that that evid ence reflects the prevailing home market pricing at the level of
producers and/or exporters.
In this case, Mexico has pointed to no evidence, and indeed does not argue, that
Economía took any steps to determine whether the products reflected in the invoice and
price quote were reflective of Tubac's prices - in spite of the fact that Tubac was the
only identified Guatemalan producer or exporter of the product - or even that these
products were of Guatemalan origin.* Nor does Mexico point to any evidence, or argue,
that Economía asked Hylsa to confirm the Guatemalan origin of the products reflected
in the invoice and price quote, or to provide any information as to whether and how
these prices should be adjusted to reflect the producer/exporter level (e .g., by
subtracting an amount for distributor mark-up).*147
11.11. MIICEN failed to do this. As in the case of Mexico, Morocco has not submitted anything to the
Panel indicating that MIICEN took steps to determine whether the products reflected in the
catalogues, particularly Carrefour's, were reflective of the prices of the Tunisian producers mentioned
in the petition for initiation or even that these products were of Tunisian origin. Nor does Morocco

140 Tunisia's first written submission, paras. 8.23-8.24.
141 Tunisia's first written submission, paras. 8.31-8.32.
142 Tunisia's second written submission, para. 6.63(h).
143 Tunisia's second written submission, para. 6.63(h).
144 Tunisia's first written submission, paras. 8.21-8.22.
145 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.37.
146 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.37.
147 Panel Report, Mexico – Steel Pipes and Tubes, paras. 7.35-7.36.

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point to any evidence, or argue, that MIICEN asked the a pplicant to confirm the Tunisian origin of
the products reflected in the catalogues.
11.12. MIICEN therefore initiated the investigation without assessing whether the information
contained in the catalogues submitted as evidence of the normal value was accurate in terms of the
producers involved or the origin of the good in question. MIICEN therefore acted inconsistently with
Articles 5.2 and 5.3.
11.13. Fourth, MIICEN relied on the information submitted in the petition to calculate the domestic
freight adjustment on exports. Given that certain variables made the adjustment insufficient (such
as the variable weight of the models involved,148 the arbitrary nature of double "round trip" freight149
and freight based on a single distance (the longest one)150), MIICEN should have assessed whether
this adjustment was based on correct assumptions and supported by relevant evidence. However,
MIICEN accepted the applicant's proposal without contesting it or taking additional verification
measures in this regard, 151 and in itiated the investigation without assessing whether the
adjustments to be applied to the export price and the normal value were based on correct
assumptions. MIICEN therefore acted inconsistently with Articles 5.2 and 5.3.
11.14. Fifth, based on the information submitted in the petition for the calculation of the distribution
margin adjustment, given that the evidence submitted concerned a market other than Tunisia's (the
Moroccan market),152 MIICEN should have assessed whether the proposed adjustment was re ally
based on a correct assumption and supported by relevant evidence. However, MIICEN accepted the
applicant's proposal without contesting it or taking additional verification measures in this regard,153
and initiated the investigation without assessing whether the adjustments to be applied to the export
price and the normal value were based on correct assumptions. MIICEN's determination is therefore
inconsistent with Articles 5.2 and 5.3.
11.15. Sixth, based on the information submitted in the petition, and given the intention to calculate
the normal value at the ex-factory level (in order to make it comparable to the export price), MIICEN
should have requested additional information on the retail profit margin.154 However, MIICEN failed
to do this,155 and initiated the investigation without assessing whether the adjustments to be applied
to the export price and the normal value were based on correct assumptions. MIICEN therefore acted
inconsistently with Articles 5.2 and 5.3.
11.16. Seventh, given that the ad justment for the freight of domestic sales was the same as the
adjustment for domestic freight for the export price, 156 MIICEN should have assessed whether this
adjustment was based on correct assumptions. However, MIICEN accepted the applicant's proposal
without contesting it or taking additional verification measures in this regard, 157 and initiated the
investigation without assessing whether the adjustments to be applied to the export price and the
normal value were based on correct assumptions. MIICEN therefore acted inconsistently with Articles
5.2 and 5.3.
11.17. Eighth, based on the information submitted in the petition for the calculation of the fees
adjustment, given that the evidence submitted concerned a market other than Tunisia's (the
Moroccan market),158 MIICEN should have assessed whether the proposed adjustment was truly
based on a correct assumption and supported by relevant evidence. However, MIICEN accepted the
applicant's proposal without contesting it or taking additional verification measures in this regard,159
and initiated the investigation without assessing whether the adjustments to be applied to the export

148 Tunisia's first written submission, paras. 8.25-8.26.
149 Tunisia's first written submission, para. 8.27.
150 Tunisia's first written submission, paras. 8.28-8.30.
151 Tunisia's first written submission, para. 8.42.
152 Tunisia's first written submission, para. 8.35.
153 Tunisia's first written submission, para. 8.42.
154 Tunisia's first written submission, para. 8.35.
155 Tunisia's first written submission, para. 8.42.
156 Tunisia's first written submission, para. 8.37.
157 Tunisia's first written submission, para. 8.42.
158 Tunisia's first written submission, para. 8.38.
159 Tunisia's first written submission, para. 8.42.

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price and the normal value were based on correct assumptions. MIICEN therefore acted
inconsistently with Articles 5.2 and 5.3.
11.18. For these reasons, in light of the shortcomings identified on the basis of Article 5.2, Tunisia
considers that an unbiased and objective authority, using only the evidence in question as the
evidentiary basis, could not have properly determined that there was sufficient evidence to justify
the initiation of an anti-dumping investigation under Article 5.3.
11.19. In response, Morocco seems to rely on the theory that it was up to the exporters or Tunisia
to prove that there was additional information on the wide range of models concerned or on the full
period proposed that was reasonably available to the applicant.160 In the absence of such evidence,
the authority was bound to conclude that the information provided by the applicant was sufficient or
met the requirements of Article 5.2.
11.20. In formulating this theory, Morocco admits that its attitude towards requests for initiation
favours the acceptance of the information provided by the applicants, unless the exporters or the
government of the exporting country demonstrate that there is better information that is reasonably
available to the applicants. This attitude is biased and favours applicants.
11.21. Morocco's theory is inconsistent with Article 5.2 of the Anti -Dumping Agreement. The
obligation contained therein is to provide not only the information that is available to the applicant,
but "evidence". It does not permit the submission of simple assertions on the grounds that it is the
only information available to the applicants. If an applicant accuses exporters of having engaged in
dumping for an entire year, this must be "proven". The submission of information on a transaction
on one day could prove the existence of a certain price level that day. However, this information
does not prove the existing price level for the 365 days comprising the period of analysis. The same
applies to models. A piece of information on certain models could prove the price level of those
models, but is not evidence of the price level of other models of the product under investigation.
11.22. It would, of course, be unreasonable to require documents for every day and every model
covered by the petition, and this is not what Tunisia proposes. However, in the absence of concrete
evidence, reasonable assumptions must be made to address this lack of information, or a reasoned
explanation must be provided on the reason why the information already provided is representative
of the rest of the period or the range of products concerned. This is the least one would expect from
a neutral and objective investigating authority.
11.23. In this case, MIICEN accepted the information provided by the applicant without questioning
it or trying to fill the gaps in the petition. It is clear from the report and the notice of initiation of the
investigation that the investigating authority simply reported on the information provided by the
applicant and ordered the initiation of the investigation. There is no evidence to suggest that this
information was contested or verified.
11.24. Moreover, Morocco argues that Tunisia overlooked an "element of a legal obligation"
necessary to support its claim: i.e. that "[t]he application shall contain such information as is
reasonably available to the applicant". 161 However, Tunisia considers th at the sufficiency of the
evidence does not depend on its availability to the applicant. On the contrary, the sufficiency of the
evidence depends on what is needed to prove the assertions in an introductory petition.162 Therefore,
the fact that the evidence included in the petition was the only evidence available to the applicant
does not justify the lack of sufficient and relevant evidence to prove dumping, injury and a causal
link.
11.25. Morocco's argument would mean that, in order to establish a violatio n of Article 5.2, the
complainant would have to prove not only that the evidence was insufficient, but also that there was
other evidence available to the applicant. In the absence of such proof, there would be no violation
of Article 5.2, even if the evidence accompanying the petition was not sufficient. This interpretation
of Article 5.2 would run counter to the plain text of the second sentence of the provision, and would

160 Morocco's first written submission, para. 255.
161 Morocco's second written submission, para. 267.
162 Tunisia's second written submission, para. 6.24.

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also violate the condition provided for in Articles 5.6 and 5.8 on the need for "sufficient" evidence to
justify the initiation of an investigation.
11.26. Therefore, the interpretation proposed by Morocco would render the requirement, under
Article 5.2, to provide sufficient evidence inutile. 163 As explained by Tunisia, the purpose of th e
sentence in question on "such information as is reasonably available to the applicant" "is to limit the
expectations of exporting Members so that they cannot require the submission of irrefutable
evidence or evidence that would substantiate a preliminary or final determination for the initiation
of an investigation".164
11.27. Morocco also argues that Article 5.2 does not impose obligations on Members, but rather, on
applicants only.165 However, this argument disregards the fact that the Anti -Dumping Agreement,
including Article 5.2, imposes international obligations on the 164 Members of the WTO as subjects
of international law, and not on the domestic producers of each Member. Contrary to what Morocco
suggests, a Member's actions would be inconsistent with Article 5.2 if its authority accepted a petition
for initiation that lacked sufficient evidence, even if it was the only evidence reasonably available to
the applicants. Therefore, shifting the "locus of obligation... to Articles 5.1 and 5.3"166 as suggested
by Morocco would have the effect of rendering Article 5.2 inutile as an international obligation.
Morocco's arguments should therefore be rejected.
11.28. In light of the above considerations, Tunisia considers that the anti -dumping measure in
question was adopted in violation of Articles 5.2 and 5.3. Given that the application did not contain
sufficient evidence and that the authority failed to assess the adequacy and accuracy of the evidence
submitted, the investigation should have been terminated purs uant to Article 5.8 of the Anti -
Dumping Agreement.
12 CONCLUSION
12.1. In light of the explanations provided in its written and oral submissions in this proceeding,
Tunisia requests the Panel to find that the anti-dumping measure at issue is inconsistent with Articles
2.1, 2.2, 2.2.2, 2.4, 3.1, 3.2, 3.4, 3.5, 5.2, 5.3, 5.8 and 12.2.2 of the Anti-Dumping Agreement.
12.2. Furthermore, Tunisia requests the Panel to issue a suggestion, under the second sentence of
Article 19.1 of the Understanding, that Morocco comply with its obligations by revoking the anti -
dumping measure at issue. The anti -dumping measure at issue is inconsistent with Morocco's
obligations under the Anti-Dumping Agreement. Tunisia is of the view that these inconsistencies are
of a "fundamental and pervasive" nature and, therefore, the only way for Morocco to comply with
the recommendations and rulings of the DSB is to revoke the anti-dumping measure at issue.

163 Tunisia's second written submission, para. 6.26.
164 Tunisia's response to Panel question 6.6, para. 161.
165 Morocco's second written submission, paras. 274, 281 and 283.
166 Morocco's second written submission, para. 283.

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ANNEX B-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF MOROCCO
I. INTRODUCTION
1. Morocco regrets the fact that a dispute which, to its mind, could have been settled bilaterally
and amicably, or at the very least, through a review, has given rise to the establishment of a Panel.1
2. Tunisia's claims in this dispute are a combination of errors of comprehension and application
of the provisions of the Anti-Dumping Agreement, misunderstandings of the Final Report of the
investigating authority, attempts to conduct de novo reviews of the authority's determination by
advancing arguments that were not raised before the investigating authority in good time, as well
as claims that are outside the Panel's jurisdiction.2
3. By initiating the investigation, concluding as it did and imposing the measures at issue,
Morocco has acted in accordance with its obligations under the Anti-Dumping Agreement. The Panel
should refrain from any interpretation and conclusion that would have a systemic impact on the
conduct of anti-dumping investigations or that could potentially unduly burden developing countries
seeking merely to exercise their rights by virtue of the WTO Agreement.3
4. This executive summary outlines Morocco's arguments related first of all to the relevant legal
framework for trade remedies at the WTO, then highlights those related to an authority's obligations
by virtue of Articles 5, 2, 3 and 12, and lastly, it recalls the claims abandoned by Tunisia.
II. RELEVANT LEGAL FRAMEWORK FOR TRADE REMEDIES AT THE WTO
5. Morocco has drawn the Panel's attention to Tunisia's claims that are incompatible with
Article 6.2 of the Dispute Settlement Understanding (DSU), b ut also to Tunisia's invitations to
proceed with a de novo review in violation of Article 17.6 of the Anti -Dumping Agreement, as well
as to Tunisia's invitations to breach the terms of the Anti -Dumping Agreement by ignoring the
principles of treaty interpretation.
A. Tunisia's claims are incompatible with Article 6.2 of the DSU: Morocco's
adjudicatory requests
6. Morocco submitted its request for a preliminary ruling during the proceedings promptly;4 that
request was limited in scope and based on a good fa ith reading of the last sentence of each claim,
which specified the allegation in accordance with the requirements of Article 6.2 of the DSU. 5
Morocco reiterated its request in its first written submission: "Following Morocco's preliminary ruling
request".6
7. The Panel's preliminary ruling on its jurisdiction was based solely on Morocco's limited request
for a preliminary ruling. 7 8 In any event, the Panel has a duty to ensure its own jurisdiction, 9 i.e.
that the request for the establishment of a panel is in conformity with the provisions of Article 6.2.10
Morocco respectfully requests that the Panel examine this matter in the light of Appellate Body
reports related to requests for the establishment of a panel that do not specify which obligations are

1 Morocco's first written submission, para. 8.
2 Morocco's first written submission, para. 9.
3 Morocco's first written submission, para. 10.
4 Morocco's preliminary request, 19 June 2020.
5 Morocco's comments on Tunisia's responses to the Panel's questions, para. 89.
6 Morocco's first written submission, para. 284.
7 Preliminary ruling of the Panel, para. 3.20.
8 Morocco's first opening statement, para. 6.
9 Report of the Appellate Body, EC — Bananas III, para. 142.
10 Report of the Appellate Body, US — OCTG (Korea), para. 7.80.

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challenged when a provision contains multiple obligations,11 such as in Korea - Pneumatic Valves
(Japan).12
8. Far from disagreeing with the Panel's ruling, Morocco's request to determine jurisdiction with
regard to paragraphs B.5 and B.6 rests entirely on the merits of the Panel's finding in its preliminary
ruling,13 according to which the last sentence of paragraph B.5 did not limit the scope of that
paragraph and the underlying analyses that were based on Tunisia's first written submission to
clarify the scope of paragraph B.5.14
9. More specifically, Morocco, taking note of the Panel's preliminary ruling, requests that the
Panel find that, ipso facto, claims B.5 and B.6 in Tunisia's panel request are not compatible with
Article 6.2 of the DSU.
1. Claim B.5
10. With regard to paragraph B.5, in its preliminary ruling the Panel referred to Tunisia's first
written submission to clarify the claims set forth in the panel request. 15 The Panel concluded that
paragraph 5.2 "relates to the conformity of the normal value constructed by the investigating
authority with Articles 2.1, 2.2 and 2.2.2". 16 However, in this case, paragraph B.5 refers to
Articles 2.1, 2.2, 2.2.1.1 and 2.2.2; nothing in that paragraph or anywhere else in Tunisia's
submission clarifies the relevance of Article 2.2.1.1, which, in any case, is not specified in the panel
request, thus, in accordance with the Panel's own approach, the entire paragraph is incompatible
with the specificity required by Article 6.2 of the DSU.17
11. The finding of incompatibility is unavoidable since a claim must be examined as it is written
and not just taking into account certain parts of it. 18 As paragraph B.5 makes reference to four
different provisions of the Anti-Dumping Agreement, one of which, Article 2.2.1.1, sets forth three
obligations, the Panel cannot exclude Article 2.2.1.1 from the claim in order to make it more specific
and therefore compatible with Article 6.2. 19 The absence of clarification regarding the relevance of
Article 2.2.1.1 to paragraph B .5, means that, on this basis alone, the claim does not specify a
"distinct and well-defined obligation" and therefore does not meet the requirements of Article 6.2.20
12. Furthermore, from a structural perspective and contrary to each of the claims in
Korea − Pneumatic Valves, paragraph B.5 refers to multiple provisions which, both individually and
as a whole, set forth " multiple obligations".21 Because of its reference to multiple obligations,
paragraph B.5 would only have been compatible with Article 6.2 if it had been worded in a more
specific manner.22
13. Lastly, through its response to Panel question 1.28, 23 Tunisia confirmed that nothing in the
text of paragraph B.5 restricts in any way the scope of Article 2.2.1.1, listed in that paragraph, and
that nothing indicates which of the obligations set forth in that provision is the subject of the claim,
thus confirming that paragraph B.5 as a whole is incompatible with Article 6.2 of the DSU.24
14. Morocco therefore respectfully requests that the Panel find that paragraph B.5 is incompatible
with Article 6.2 of the DSU.

11 Report of the Appellate Body, Korea - Dairy, para. 124; Report of the Appellate Body, China - Raw
materials, para. 220.
12 Appellate Body Report, Korea - Pneumatic valves, para. 5.118.
13 Morocco's comments on Tunisia's responses to the Panel's questions, para. 95.
14 Preliminary ruling of the Panel, para. 3.33.
15 Preliminary ruling of the Panel, para. 3.29.
16 Preliminary ruling of the Panel, para. 3.30.
17 Morocco's first opening statement, para. 7.
18 Morocco's second written submission, para. 51.
19 Morocco's second written submission, para. 58.
20 Morocco's second written submission, para. 59.
21 Morocco's second written submission, para. 58.
22 Morocco's second written submission, para. 60.
23 Panel question 1.28.
24 Morocco's comments on Tunisia's responses to the Panel's questions, para. 107.

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2. Claim B.6
15. With regard to paragraph B.6, a similar line of reasoning to that used for paragraph B.5 shall
apply, mutatis mutandis.25
16. In fact, Article 2.4 is a provision that stipulates a "fair comparison" and like many other
provisions of the Anti-Dumping Agreement, Article 2.4 includes multiple and various obligations.26
There are at least three, and perhaps even six, distinct obligations under Article 2.4, and the mere
fact of reaffirming the first sentence of Article 2.4 does not satisfy the requirements of Article 6.2 of
the DSU.27
17. Lastly, through its response to Panel question 1.28, Tunisia also confirmed that paragraph B.6
as a whole is incompatible with Article 6.2 of the DSU.28
18. Morocco therefore respectfully requests that the Panel find that paragraph B.6 is incompatible
with Article 6.2 of the DSU.
B. The Panel's terms of reference under Article 17.6 of the Anti -Dumping
Agreement: Tunisia's invitations to proceed with a de novo review
19. It is indisputable that the Anti-Dumping Agreement prohibits the Panel from undertaking a de
novo review,29 just as it is undisputed, in this case, that certain arguments brought by Tunisia before
the Panel were never specifically raised by the exporters before the authority, even though they
could have done so, since all these new arguments are basic and routine questions on the application
of formulas by the authority.30 As a result, the authority was not able to consider or address those
arguments,31 so any examination of them by the Panel would necessarily constitute a de novo
review.32 The Panel should reject these arguments by Tunisia, 33 which are incompatible with
Article 17.6 (i).34
C. The principles of treaty interpretation: Tunisia's invitations to breach the
terms of the Anti-Dumping Agreement
20. The usual principles of treaty interpretation,35 codified in part in the Vienna Convention on the
Law of Treaties,36 and also present in the legal maxims and logical axioms applied by domestic and
international jurisdictions, as well as by quasi -jurisdictions, prohi bit any interpretation aimed at
replacing words used in the treaty with others.37 Furthermore, the references to "context", "object"
and "purpose" in Article 31 of the Vienna Convention precludes the mechanical interpretation of a
treaty by simply selectin g and applying one definition in one dictionary38 as revealing or clarifying
the meaning of a provision.39
21. The Agreement uses specialized terms but does not include specific methodologies, or even a
definition, for most of them, and the Panel should th erefore be very prudent when setting, for

25 Morocco's second opening statement, para. 63.
26 Morocco's second written submission, para. 70.
27 Morocco's second written submission, para. 72.
28 Morocco's comments on Tunisia's responses to the Panel's questions, para. 107.
29 Report of the Panel, United States - Shrimp II, para. 7.8.
30 Morocco's second opening statement, para. 9.
31 Morocco's first written submission, para. 31.
32 Morocco's second written submission, para. 8.
33 In its submissions, Morocco explicitly brought to the attention of the Panel each of Tunisia's
arguments that was never specifically raised by the exporters before the authority and which must,
consequently, all be rejected by virtue of Article 17.6 (i).
See notably: Morocco's first written submission, paras. 43, 60, 65, 265 and 275; Morocco's first oral
statement, para. 56 and 137; Morocco's responses to the Panel's questions of 12 October 2020, paras. 26 and
36; Morocco's second written submission, paras. 87, 97 and 101; Morocco's second oral statement, paras. 41,
64 and 94; Morocco's responses to the Panel's questions of 15 February 2021, para. 36.
34 Morocco's second written submission, para. 22.
35 Morocco's first written submission, para. 221.
36 Vienna Convention on the Law of Treaties, concluded at Vienna on 23 May 1969.
38 EC — Chicken Cuts, paras. 175 and 176.
39 Morocco's first written submission, para. 32.

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purposes of "clarification" using non -specialized dictionaries, the meaning of a term not defined in
its particular specialized context.40 The Agreement already provides specific indications to panels as
far as que stions of interpretation are concerned, and relying on the Larousse Dictionary alone as
Tunisia advocates, even if the principles of treaty interpretation allow for the use of a dictionary, is
not permitted by the Anti -Dumping Agreement.41 Moreover, the te rms used in the Anti -Dumping
Agreement are the fruit of lengthy, historic negotiations and were used as specialized terms even
before the Uruguay Round and the entry into force of the WTO Agreement, so anyone interpreting
a treaty must presume that the Members who negotiated, ratified and implemented the treaty were
aware of the specialized nature of the terms used and that, when they decided to not provide a
definition or methodology, that choice was deliberate and should, consequently, be respected.42
22. Lastly, Articles 31 and 32 of the Vienna Convention outline an approach in favour of
interpreting the entire provision in its literal, historical and practical context; and the legal maxims
and logical axioms that predated the Vienna Convention and that continue to be used by international
tribunals (effectiveness, ejusdem generis, expressio unius, etc.) came into being precisely because
a purely literal interpretative approach is inadequate for the task at hand. 43 As such, taking a
negotiated technical term out of its treaty context is a clear error of law and replacing said term with
an expression that is not tried and tested in order to define it using other words by means of
decontextualized references taken from a non -specialized dictionary, in additio n to constituting an
unsound interpretation technique, discredits the very task of interpretation.44
III. TUNISIA'S CLAIMS UNDER ARTICLE 5 MUST BE REJECTED
23. Morocco explained in detail to the Panel its position regarding the relationship between
Articles 5.2 and 5.3, and on the correct interpretation of Article 5.3, and has demonstrated that, in
this case, the authority acted in compliance with Article 5. Morocco has therefore respectfully
requested that the Panel reject all Tunisia's claims under Article 5.
A. Relationship between Articles 5.2 and 5.3
24. First, Tunisia never addressed the only key condition in the chapeau of Article 5.2, i.e. that
the information at issue must be "reasonably available to the applicant".45 When a complaining party
fails to demonstrate and, a fortiori, does not even address one element of an obligation, it cannot
be considered as having established a prima facie violation.46
25. Second, Tunisia puts forward numerous contentions regarding Article 5.2 without once
demonstrating how the wording of the provision might impose obligations on a Member.47
26. In fact, nothing in the letter of Article 5.2 imposes any obligation whatsoever on an authority.48
Similarly, nothing in the combined operation of Articles 5.1 and 5.2 imposes obligations on an
authority as far as the quality of the content of an application is concerned.49 The letter of Article 5.2
establishes, however, a negative proof threshold regarding claims brought by the domestic industry,
without providing the authority with guidance on how to assess the required content. 50 Lastly, the
chapeau of Article 5.2 expressly limits information required to that " as is reasonably avail able" to
the domestic industry, which is an assessment that must necessarily be made on a case -by-case
basis.51

40 Morocco's second written submission, para. 19 a).
41 Morocco's second written submission, para. 19 b).
42 Morocco's second written submission, para. 20.
43 Morocco's first oral statement, para. 32.
44 Morocco's first oral statement, para. 33.
45 Morocco's first written submission, para. 255; Morocco's first oral statement, para. 122; Morocco's
second written submission, para. 266.
46 Morocco's second opening statement, para. 19.
47 Morocco's second opening statement, para. 17.
48 Morocco's second opening statement, para. 32 a).
49 Morocco's second opening statement, para. 32 b).
50 Morocco's second opening statement, para. 32 c).
51 Morocco's second opening statement, para. 32 d).

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27. Article 5.3 addresses the authority directly: "The authorities shall examine the accuracy and
adequacy of the evidence provided". 52 It is ne vertheless important to note, in the light of the
relationship between Articles 5.2 and 5.3, that the letter of Article 5.3 follows the chapeau of
Article 5.2, such that "the adequacy of the evidence provided" simply refers to the negative standard
of proof enshrined in Article 5.2.53 Lastly, the letter of Article 5.3 is unambiguous with regard to the
fact that the examination is justified "to determine whether there is sufficient evidence to justify the
initiation of an investigation ".54 Thus, the obligati on under Article 5.3 to conduct an examination
and, in particular, its scope are necessarily contingent on its rationale and the so-called minimum
threshold ("initiation of an investigation "), so there is no question here of conducting a pre-
investigation before the authority can proceed with initiating the main investigation, which lasts at
least one year. 55 This is why the evidence to be provided by the domestic industry before an
investigation, that is to say for the purposes of initiating an investigation, is necessarily different, in
terms of volume, quality and probative value, to the evidence that an authority gathers and on which
it can base its findings.56
28. In this case, Morocco has described on several occasions the efforts made by the domestic
industry to ensure that the application met with the requirements of Article 5.2; the application that
was before the authority, from the perspective of form and substance (supporting information in
annex), could not be considered a simple assertion.57
29. Lastly, if the Panel were to apply the interpretation proposed by Tunisia of Articles 5.2 and
5.3, it could, in addition to discrediting the dispute settlement mechanism due to the interpretation's
incompatibility with the text and context of Article 5, h ave the systemic consequence of denying
most small and medium-sized enterprises, even in developed countries, access to the Anti-Dumping
Agreement.58
B. Correct interpretation of Article 5.3
30. The obligation under Article 5.3 is linked to the purpose of the exercise (which is to initiate an
investigation and not to end it, as enshrined in Article 5.1) and to the letter of Article 5.2 (that the
"application shall contain such information as is reasonably available to the applicant", for
example).59 Thus, the obligation under Article 5.3 to conduct an examination and, in particular, its
scope are necessarily contingent on its rationale and the so -called minimum threshold: the
"initiation of an investigation".60
31. If Morocco is correct in its assessment of the relationship between Articles 5.2 and 5.3, the
fact that Tunisia ignores a fundamental requirement of Article 5.2, concerning the adequacy of the
evidence, means that its arguments concerning Article 5.3 must also founder.61
C. Application of Article 5 to the present case: the authority acted in accordance
with Article 5
32. The Panel should reject Tunisia's claims under Article 5 because, in view of its application to
the present case, Tunisia ignores a critical legal condition of Article 5,62 replaces the text of the
treaty with other words, 63 proposes unilaterally to modify the standards of proof 64 and legal

52 Morocco's second opening statement, para. 32 e).
53 Morocco's second opening statement, para. 32 f).
54 Morocco's second opening statement, para. 32 g).
55 Morocco's second opening statement, para. 33.
56 Morocco's comments on Tunisia's responses to the Panel's questions, para. 255.
57 Morocco's first written submission, para. 258; Morocco's first oral statement, para. 125.
58 Morocco's second written submission, para. 17; Morocco's second written submission, paras. 262
and 287.
59 Morocco's second written submission, paras. 284-287.
60 Morocco's second opening statement, para. 34.
61 Morocco's second written submission, para. 288.
62 Article 5.2 of the Anti-Dumping Agreement: "The application shall contain such information as is
reasonably available to the applicant [...]" [emphasis added to the relevant part].
63 Tunisia's first written submission, para. 10.8.
64 Tunisia's first written submission, para. 10.8.

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IV. TUNISIA'S CLAIMS UNDER ARTICLE 2 MUST BE REJECTED
41. First, under Article 2.1, Tunisia puts forward a flawed interpretation of the scope of Article 2.1,
which is not an ancillary obligation that can be invoked as a co nsequential argument in order to
exacerbate the violation.78
42. Second, under Article 2.2, Tunisia's many arguments are outside the Panel's jurisdiction,
pursuant to Article 17.6 of the Anti-Dumping Agreement prohibiting an de novo review, to the extent
that these arguments were never specifically invoked before the authority.79
43. Third, Tunisia proposes a flawed interpretation of Article 2.2.2, because the exporters'
calculation of their own "profit margin" is not "actual data" within the meaning of Article 2.2.2,80 the
letter of Article 2.2.2 does not allow the provision to be interpreted as being consequential and
ancillary,81 and, above all, Article 2.2.2 does not require an authority to examine products that,
pursuant to the laws of the exporting country, are not allowed to be exported.82
44. Fourth, Tunisia has put forward a flawed interpretation and application of the first sentence of
Article 2.4, because there is no basis, either in the letter of the first sentence of Article 2.4, or in the
reports cited by Tunisia, 83 for asserting that the first sentence of Article 2.4 alone can be used to
address all the claims of problems with the mathematical formulas that are not associated with
zeroing, or the alleged problems with the weighted average in specific cases.84
45. Fifth, Tunisia has proposed a flawed interpretation and application of the third sentence of
Article 2.4 by requesting that the Panel introduce a "dialogue" requirement of the authority with
regard to the burden of proof imposed on the exporter, because Tunisia ignores the letter of Article
2.4, which unequivocally states that it is the responsibility of the exporter to demonstrate the impact
on domestic market prices.85
46. Lastly, under Article 2.4, Tunisia's arguments concerning the weighted average by weight
must be rejected because the authority acted in accordance with Article 2.4 and because the first
sentence of Article 2.4 is not applicable to all calculation errors. In any case, Tunisia's arguments
are outside the Panel's jurisdiction, in accordance with Article 17.6 (i) of the
Anti-Dumping Agreement prohibiting any de novo review, because they were never raised before
the authority and, consequently, the authority ne ver had the opportunity to consider those
arguments.86
47. Morocco respectfully requests that the Panel reject all Tunisia's claims under Article 2 for the
reasons set out below.
A. Interpretation of the scope of Article 2.1 and its irrelevance to this par ticular
case
48. Tunisia has put forward a flawed interpretation of Article 2.1, according to which the
authority's violation of Article 2.1 would be consequential for the other alleged violations under
Article 2.
49. When considering the text of Article 2 in its entirety, it appears that Article 2.1 has an
independent nature and it not an ancillary obligation that can be invoked as a "consequential"
argument in order to exacerbate the violation.87 Moreover, in so far as Articles 2.2 and 2.3 envisage

78 Morocco's comments on Tunisia's responses to the Panel's questions, para. 18-19.
79 Morocco's first written submission, para. 12.
80 Morocco's second written submission, paras. 106-125.
81 Morocco's comments on Tunisia's responses to the Panel's questions, para. 56-65.
82 Morocco's second opening statement, para. 66.
83 Morocco's comments on Tunisia's responses to the Panel's questions, paras. 140-150.
84 Morocco's comments on Tunisia's responses to the Panel's questions, para. 151.
85 Morocco's comments on Tunisia's responses to the Panel's questions, para. 185.
86 Morocco's second opening statement, para. 64.
87 Morocco's comments on Tunisia's responses to the Panel's questions, para. 18-19.

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an exception to the situation described in Article 2.1, this means, ipso facto, that the "definition" in
Article 2.1 is a substantially independent general obligation.88
50. Furthermore, Article 2.1 is not applicable to this case. Tunisia claimed that Morocco had
violated its obligations under international law, but failed to put forward even the beginnings of an
argument in support of the claim at issue and when Tunisia was asked about this matter, it admitted
that the claim is purely incidental and consequential. When further clarification was sought, Tunisia
then admitted that the claim is irrelevant to the basic obligation at issue, so the Panel should not let
itself be influenced by the shift in Tunisia's position with which it is attempting to conc eal the fact
that it has failed to fulfil its responsibility as complainant under international law by relying on the
"principle of judicial economy".89 Tunisia brought a claim but was unsuccessful in its argumentation
and, a fortiori, in its formulation; this should be the Panel's finding.
51. Morocco therefore respectfully requests that the Panel reject Tunisia's claim under Article 2.1.
B. Tunisia's arguments under Article 2.2 that are outside the Panel's terms of
reference
52. In the context of a dispute under the Anti-Dumping Agreement, a panel cannot conduct a de
novo review of the issues before an authority.90
53. Under Article 2.2, Tunisia requests that the Panel make findings on the arguments that the
exporters never specifically invoked before the authority, by enjoining the Panel to examine the
evidence before the authority but on the basis of a new rationale - on new arguments - and not on
the arguments, comments and explanations presented and elaborated on by the exporters.
Nevertheless, these arguments are inadmissible because Article 17.6 (i) does not permit a panel to
undertake such an examination.91 Any examination by the Panel of the evidence before the authority
ignoring the arguments presented in support of the evidence would be tantamount to conducting a
de novo review prohibited under Article 17.6.92
54. Tunisia's arguments under Article 2.2 that are outside the Panel's terms of reference are the
following: (1) the arguments in support of the claim based on the exclusion of administrative costs
and certain expenses not included in the product price used to calculate the profit margin; and (2)
the arguments in support of the claim based on the inclusion of the "distribution cost" when
constructing the normal value of certain models of SOTEFI exercise books.
1. Tunisia's arguments in support of the claim based on the exclusion of
administrative costs were never specifically invoked before the authority
55. By putting forward its arguments in support of the claim based on the exclusion of
administrative costs and certain expenses not included in the product price used to calculate the
profit margin, Tunisia is inviting the Panel to conduct a de novo review.
56. These arguments have never been specifically invoked before the authority; the authority did
not have the opportunity to evaluate these arguments and draw conclusions from them, and, if
necessary, to make corrections or to explain why corrections were not required. Therefore, Tunisia's
claim based on these contentious arguments is not wi thin the Panel's terms of reference pursuant
to Article 17.6 (i) of the Anti-Dumping Agreement.93 This solution is justified by the fact that when
a Member in the role of applicant brings, as in this particular case, arguments before the Dispute
Settlement Body (DSB) that were never brought before the responding party's authority, it puts the
respondent and its authority in an untenable position, forcing them to respond, without ex post facto
reasoning, in the context of a WTO dispute and after the facts at issue, to arguments that were
never raised during the investigation.94

88 Morocco's comments on Tunisia's responses to the Panel's questions, para. 20.
89 Morocco's comments on Tunisia's responses to the Panel's questions, para. 72.
90 Morocco's second written submission, para. 21.
91 Morocco's second written submission, para. 22.
92 Morocco's second opening statement, para. 65.
93 Morocco's first written submission, para. 60.
94 Morocco's first written submission, para. 61.

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57. The Panel should reject such an attempt and should declare inadmissible all Tunisia's claims
regarding arguments that Tunisia or its exporters could have brought before the authority, but were
not.95
2. The arguments in support of the claim based on the inclusion of the
"distribution cost" were never specifically invoked before the authority
58. By putting forward arguments in support of the claim based on the inclusion of the "distribution
cost" when constructing the normal value of certain models of SOTEFI exercise books, Tunisia is also
seeking a de novo review.
59. Despite long exchanges between SOTEFI and the authority, and, in particular, despite the
reference to SOTEFI in foot notes 100 and 102 of the Excel file containing the margin of dumping
calculation (SOTEFI) submitted with the Essential Facts,96 the claim concerning the distribution costs
was never raised before the authority.97
60. Thus, Tunisia's claim requires a de novo review of the evidence by the Panel because, despite
having numerous opportunities to comment on the authority's methodology, the exporters never
specifically invoked this argument with regard to the data that they themselves provided, and for
that reason, Morocco respectfully requests that the Panel reject the claim at issue.98
C. Interpretation of Article 2.2.2 and its application in this particular case
61. Tunisia's interpretation of Article 2.2.2 is flawed, and the Panel should reject its claim because
Article 2.2.2 is not consequential and incidental, and, in any event, it does not apply in this particular
case.
1. Tunisia's interpretation of Article 2.2.2 is flawed
62. With regard to the interpretation of Article 2.2.2, Tunisia's position is flawed.
63. Article 2.2.2 obliges an authority to ensure that "the amounts for administrative, selling and
general costs and for profits shall be based on actual data pertaining to production and sales".
(Emphasis added). In other words, prima facie , Article 2 .2.2 does not require an authority to
necessarily accept each exporter's specific internal accounting categories with regard to the
categories listed in Article 2.2.2. 99 Moreover, Article 2.2.2 refers to actual data pertaining to
production and sales , and not to any other data; 100 the exporters' calculation of their own "profit
margin" does not, in any way, constitute "actual data" within the meaning of Article 2.2.2.101
64. For the interpretation and application of Article 2.2.2, Article 2.2.2 (iii) provides some
additional context: there is no single methodology that is required by Article 2.2.2 to determine a
profit margin, as the provision refers only to "any other reasonable method". In fact, Article 2.2.2
(iii) provides for a ceiling that is based on the "profit normally realized by other exporters" and not
on each exporter's own internal accounting categories.102
65. Furthermore, it should be noted that the obligation "shall be based on actual data" in
Article 2.2.2 has been an undisputed principle of WTO law since the Hormones case,103 that this
obligation is by no means an obligation to "conform to" or to "use directly" and that this principle,

95 Morocco's first written submission, para. 62.
96 Essential Facts. (MOR-7)
97 Morocco's first written submission, para. 64.
98 Morocco's first written submission, para. 65.
99 Morocco's second written submission, para. 112.
100 Morocco's second written submission, para. 112.
101 Morocco's second written submission, paras. 106-125.
102 Morocco's second written submission, para. 113.
103 Report of the Appellate Body, EC - Hormones, para. 164.

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as the Panel in US - Softwood Lumber V observed,104 is also relevant to data provided by exporters
in the context of Article 2.2.2.105
66. Morocco therefore respectfully requests that the Panel reject Tunisia's interpretation of
Article 2.2.2.
2. Article 2.2.2 is not consequential and incidental
67. Tunisia seems to argue that when a panel finds that a profit margin is "inflated" - presumably
under other provisions of the Anti -Dumping Agreement - this "inflated" profit margin cannot be
considered to be based on "actual data". Nevertheless, nothing in Article 2.2.2 points to such a
conclusion.106
68. Article 2.2.2 contains a limited and circumscribed obligation according to which the authority
must base its calculation of the amounts at issue on actual underlying data provided by the
exporters, whereas Article 2.2 provides for a qualitative assessment ("reasonable") of the amounts
at issue and Article 2.2.2 (iii) requires a "reasonable method" and sets an upper limit for the profit
margin when the data are unusable for the purposes of calculating the amounts.107
69. In the present case, for all its calculations, the authority used the data submitted to it by the
exporters, and only the data pertaining to production and sales , so there is no doubt that "the
amounts for administrative, selling and general costs and for profits" were " based on actual data
pertaining to production and sales".108
70. The Panel need not make findings under Article 2.2.2 because Tunisia put forward this
argument too late in the proceedings, but also because Tunisia's initial interpretation of that
provision was flawed, and above all because Tunisia has admitted that the allegation of a violation
is unavailing.109
71. Furthermore, Tunisia has not contested the interpretation and clarification proposed by
Morocco with regard to Article 2.2.2. If the Panel agrees with Morocco,110 Tunisia's responses confirm
that Morocco has acted in accordance with Article 2.2.2.111
3. Article 2.2.2 does not apply in this particular case
72. With regard to the watermarked exercise books, the parties agree that they could not be
exported under Tunisian legislation; the Essential Facts state in this regard "these exercise books
are sold only on the domestic market and it is strictly forbidden to export them. Thus, in view of the
foregoing, sales of these types of exercise books have not been taken into account when calculating
the normal value, insofar as there are no comparable types of exercise books sold for export to
Morocco."112
73. The matter at issue with respect to the watermarked exercise books is based entirely on the
authority's specific determination on watermarked exercise books 113 and the fact that Article 2.2.2
does not require an authority to examine the products that, pursuant to the laws of the exporting
country, are not allowed to be exported.114
74. During an anti -dumping investigation, the exported product is the product concerned;
accordingly, the exported product is the focus of any dumping calculation, so that Tunisia's

104 Report of the Panel, US — Softwood Lumber V, para. 7.263.
105 Morocco's second opening statement, para. 52.
106 Morocco's comments on Tunisia's responses to the Panel's questions, para. 56.
107 Morocco's comments on Tunisia's responses to the Panel's questions, para. 58.
108 Morocco's comments on Tunisia's responses to the Panel's questions, para. 59.
109 Morocco's comments on Tunisia's responses to the Panel's questions, para. 73.
110 Morocco's responses to the Panel's questions of 12 October 2020, para. 37-44. Morocco's second
written submission, paras. 112-127.
111 Morocco's comments on Tunisia's responses to the Panel's questions, para. 65.
112 Essential Facts, para. 89. (MOR-7)
113 Morocco's first written submission, para. 71.
114 Morocco's second opening statement, para. 66.

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argument, in the event that it is accepted, would mean that after the initiation of the investigation,
an authority would have to identify not only those products sold on the domestic market that are
similar to the exported products, but also, in this case, products that are, by definition, unlikely to
be exported.115
75. Tunisia's claim would lead to a ludicrous outcome for the anti-dumping investigation, as that
outcome would mean that, for the purposes of the dumping calculation, products would have to be
taken into account which, under the legislation of the exporters' host country, cannot be exported
and, ipso facto, cannot be dumped.116
76. Morocco therefore respectfully requests that the Panel reject Tunisia's claim under
Article 2.2.2.
D. Interpretation of Article 2.4 and its application in this particular case
77. Tunisia's interpretation and application of the first and third sentences of Article 2.4 is flawed.
78. First, with regard to Tunisia's claim concerning the weighting methodology, this must be
rejected because the first sentence of Article 2.4 does not apply in this particular case and, in any
event, the exporters have never specifically raised the matter of the weighting methodology with
the authority.
79. Second, with regard to Tunisia's claim concerning the licensed exercise books, this must also
be rejected because the exporters and Tunisia have not ar gued, nor have they demonstrated, that
there was an impact on prices on the domestic market, and because Tunisia's belated attempt to
introduce new procedural requirements under the third sentence of Article 2.4 amounts to a breach
of the letter of this provision.
1. Tunisia's claim concerning the weighting methodology must be rejected
80. Tunisia's interpretation and application of the scope of the first sentence of Article 2.4 is
flawed and, moreover, Tunisia is seeking a de novo review.
a) Tunisia's flawed interpretation and application of the scope of
the first sentence of Article 2.4
81. First, there is clearly no specific requirement in the Anti -Dumping Agreement that individual
margins (calculated on the basis of weighted averages) be weighted by value, as Tunisia submits.117
The Panel in EC - Bed Linen noted that the Anti -Dumping Agreement provisions that refer to the
weighted average (Articles 2.2.1 and 2.4.2) do not contain any guidance on the factor or factors to
be used in weighting the average to be calculated, and that the most logical conclusion to be drawn
is that the choice of factor is up to the investigating authority.118 Moreover, weighting by volume is
statistically correct when, as in the present case, exporters' sales are quantified by volume; the
distributive character of the multiplications and divisions allows the invest igating authority to carry
out certain mathematical steps in the order it considers most appropriate when calculating the
margin of dumping, with the result remaining the same.119

82. Second, Tunisia's interpretation of the scope of the first sentence of A rticle 2.4 is flawed
because there is no basis, either in the letter of the first sentence of Article 2.4, or in the reports
cited by Tunisia,120 for asserting that the first sentence of Article 2.4 alone can be used to address
all the claims of problems wi th the mathematical formulas that are not associated with zeroing, or
the alleged problems with the weighted average in specific cases.121

115 Morocco's first written submission, para. 72.
116 Morocco's first written submission, para. 73.
117 Morocco's first opening statement, para. 142.
118 EC - Bed Linen (Article 21.5 - India), para. 6.87.
119 Morocco's first opening statement, para. 143.
120 Morocco's comments on Tunisia's responses to the Panel's questions, paras. 140-150.
121 Morocco's comments on Tunisia's responses to the Panel's questions, para. 151.

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83. It should be noted that it is an incontrovertible, even irrefutable, fact that in the last 25 years
and as a resul t of over 100 trade remedies, only one comparison method has been recognized as
falling within the ambit of the first sentence of Article 2.4, which should lead the Panel to refrain
from expanding the scope of the first sentence of Article 2.4 to cover "any error in the calculation of
the margin of dumping".122
84. More importantly, Tunisia has not demonstrated that the first sentence of Article 2.4 applies
to all comparison calculation errors (since it does not), nor has it provided an interpretative approach
that would allow the Panel to determine which errors, beside those made in the context of zeroing,
fall within the scope, or not, of the first sentence of Article 2.4 and why.123
85. Furthermore, Tunisia's complaint of an "inflated margin of dumping" illustrates the absence of
a proper interpretative approach to the legal provision at issue; even if the Panel were to confirm
that the authority had made an error in its calculations, it is not "appropriate, nor feasible, for the
Panel to assume the role of an investigating authority and analyse" 124 what a correct margin of
dumping would be, and for that reason, the Panel is not in a position to determine whether the
authority's margin of dumping was "inflated".
86. Moreover, apart from the cases linked to zeroing, an argument that opens with an "inflated
margin of dumping" is entirely rhetorical and no legal conclusion can be drawn from that
description.125 In fact, according to United States - Orange Juice (Brazil),126 when it is demonstrated
that a particular method is "inherently unfair" to the extent that it necessarily leads to a margin of
dumping that is "artificially inflated", such a method is incompatible with Article 2.4, which is the
case with zeroing.127 Nevertheless, Tunisia has not demonstrated that the weighted average method
based on volume is "inherently unfair", because that is evidently not the case, nor has Tunisia
demonstrated that the volume weighted average necessarily leads, in all cases, to an "art ificially
inflated" margin of dumping (which was the case with zeroing), for the simple reason that it is not
the case either.128
87. Morocco therefore respectfully requests that the Panel reject Tunisia's interpretation and
application of the first sentence of Article 2.4.
b) Tunisia's arguments concerning the weighting methodology
have never been raised specifically with the authority
88. Presenting its arguments under Article 2.4 regarding the weighting methodology, Tunisia
requests that the Panel undertake a de novo review.
89. However, the exporters have never specifically raised these weighting methodology issues
with the authority.129
90. Morocco therefore respectfully requests that the Panel reject Tunisia's claim under Article 2.4
based on inadmissible arguments relating to the weighting methodology.
2. Tunisia's claim regarding licensed exercise books must be rejected
91. The Panel should reject Tunisia's claim regarding licensed exercise books because the
exporters have failed to demonstrate the impact on domestic market prices, and because Tunisia is
again seeking a de novo review. Furthermore, Tunisia's belated attempt to introduce a new
procedural requirement under the third sentence of Article 2.4 is a breach of the letter of that
provision.

122 Morocco's comments on Tunisia's responses to the Panel's questions, para. 169.
123 Morocco's comments on Tunisia's responses to the Panel's questions, para. 172.
124 Report of the Appellate Body, EC - Fastners, para. 520. [emphasis added]
125 Morocco's comments on Tunisia's responses to the Panel's questions, para. 193 d).
126 Report of the Panel, United States - Orange Juice (Brazil), para. 7.156.
127 Morocco's comments on Tunisia's responses to the Panel's questions, para. 163.
128 Morocco's comments on Tunisia's responses to the Panel's questions, paras. 165-166.
129 Morocco's first oral statement, para. 137.

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a) The exporters and Tunisia have failed to demonstrate the
impact on domestic market prices
92. Article 2.4 states that the burden of proof lies with the exporter; an exporter must
demonstrate the impact on domestic market prices.130 Otherwise, should the exporter fail to satisfy
its burden of proof, the authority has "no obligation to make an adjustment".131
93. In this particular case, neither the exporter nor Tunisia have made the case or, a fortiori,
demonstrated to the authority or to the Panel, respectively, that the contract had any impact on the
prices in Morocco; in fact, Tunisia has even admitted that it was a question of the exporter's domestic
market costs.132
94. The exporter has nevertheless provided information on the quality of licensed products and
on prices that were both higher and lower than the price of unlicensed products, so without any
additional arguments or evidence, the authority was unable to determine on the basis of raw data
alone whether and to what extent the licenses were responsible for the observed pricing differences;
the Panel is clearly not in a position to make that assessment itself.133 Lastly, the exporter based its
position on licensed products solely on the contract but, given that the contract was not relevant to
the impact of licensing on domestic prices, the investigating authority had "no obligation to make
an adjustment"134 or a different classification.135
95. Morocco therefore respectfully requests that the Panel reject the claim at issue.
b) Tunisia's arguments concerning the licenses Excel file have
never been specifically raised with the authority
96. Presenting its arguments under Article 2.4 concerning the licenses Excel file, Tunisia once
again invites the Panel to undertake a de novo review.
97. The Excel file figures were never specifically cited by SOTEFI. 136 However, despite this
oversight by SOTEFI, the authority still examined the Excel file and noted that the price of one of
the six exercise books was lower than that of the unlicense d exercise books.137 The authority also
confirmed SOTEFI's assertions that the products concerned were of a better quality.138 In any case,
the information presented in the Excel file does not, in itself, constitute an argument that licenses
had an impact on prices.139
98. Furthermore, not only did SOTEFI not refer to the Excel file, but SOTEFI also actively diverted
the authority's attention away from the file by insisting firmly on the contract as the basis for its fair
comparison legal arguments, so the evidence and arguments presented by SOTEFI did not provide
a sufficient basis for the authority to determine whether the licenses had an impact on domestic
market prices by justifying a different classification.140
99. Moreover, the information contained in the Excel file also revealed that licensed products
accounted for just [[***]] of exports and that the impact of using licenses was insignificant.141
100. Morocco therefore respectfully requests that the Panel reject Tunisia's claim under Article 2.4
based on inadmissible arguments with regard to the licenses Excel file.

130 Morocco's comments on Tunisia's responses to the Panel's questions, para. 185.
131 Report of the Appellate Body, EC - Fastners, para. 488. [emphasis added]
132 Morocco's comments on Tunisia's responses to the Panel's questions, para. 185.
133 Morocco's comments on Tunisia's responses to the Panel's questions, para. 193 c) 2).
134 Report of the Appellate Body, EC - Fasteners, para. 488. [emphasis added]
135 Morocco's comments on Tunisia's responses to the Panel's questions, para. 193 c) 3).
136 Morocco's comments on Tunisia's responses to the Panel's questions, para. 113 b).
137 Morocco's responses to the Panel's questions, 15 February 2021, para. 14 f).
138 Morocco's responses to the Panel's questions, 15 February 2021, para. 16.
139 Morocco's responses to the Panel's questions, 15 February 2021, para. 14 e); Report of the Appellate
140 Morocco's comments on Tunisia's responses to the Panel's questions, para. 113 b).
141 Morocco's comments on Tunisia's responses to the Panel's questions, para. 113 b).

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c) Tunisia's belated attempt to include a new procedural
requirement under the third sentence of Article 2.4 amounts
to a breach of the letter of this provision
101. Lastly, the Panel should not accede to Tunisia's request which deviates from the text and case
law to include, erroneously, a requirement for "dialogue" under Article 2.4.142
102. The Panel should reject Tunisia's request to include a new procedural requirement under
Article 2.4, and to deviate from case law and redo the work of the authority, which, could potentially
discredit the WTO's dispute settlement mechanism.143
3. The first sentence of Article 2.4 does not apply in this particular case
103. Morocco therefore respectfully requests that the Panel reject Tunisia's claim under Article 2.4.
V. TUNISIA'S CLAIMS UNDER ARTICLE 3 MUST BE REJECTED
104. First, Tunisia's claims under Article 3.2 must be rejected because Tunisia's interpretation of
Article 3.2 is flawed.
105. Second, Tunisia's claim under Article 3.4 must be rejected because the arguments
underpinning it are unsound.
106. Third, Tunisia's claim under Article 3.5 must be rejected because it lacks any factual basis.
A. Interpretation of Article 3.2 and its application in this particular case
107. The Panel should reject Tunisia's claims under Article 3.2 because: (1) the first sentence of
Article 3.2 provides an alternative obligation; (2) Tunisia's approach to the examination of price
effects is evidence of a mechanical reading of Article 3.2 rather than a dynamic analysis as called
for by case law; (3) Tunisia's claim concerning the review period under Article 3.2 is flawed; (4)
Tunisia's claim under Article 3.2 concerning the determination of the domestic ind ustry's profit
margin is flawed; and (5) the authority's determination is consistent with Article 3.2 and the Panel
may exercise judicial economy with regard to Tunisia's outstanding claims under Article 3.2.
1. The first sentence of Article 3.2 provides an alternative obligation
108. First, Tunisia's claim regarding the examination of the "import volume in relative terms" must
be rejected because there are two options for the examination required under Article 3.2: an
authority must consider the volume effect either in absolute or relative terms, but in no way is it
required to examine it cumulatively.144
109. In fact, Tunisia does not claim that Morocco's examination of the volume effect in absolute
terms violates Article 3.2.145
110. Morocco therefore respectfully requests that the Panel reject Tunisia's claim relating to the
examination of the import volume in relative terms.146

142 Morocco's comments on Tunisia's responses to the Panel's questions, para. 196.
143 Morocco's comments on Tunisia's responses to the Panel's questions, para. 197.
144 Morocco's request for a preliminary determination, para. 52.
145 Morocco's request for a preliminary determination, para. 52.
146 Morocco's first written submission, para. 14.

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2. Tunisia's approach to the examination of price effects is evidence of a
mechanical reading of Article 3.2 rather than a dynamic analysis as called
for by case law
111. Tunisia's interpretation of the price effects of Article 3.2 should be rejected by the Panel
because Tunisia requests that the Panel endorse a purely formalistic finding on the basis of a term
- "actual price" - which does not appear anywhere in Article 3 or in the Anti-Dumping Agreement.147
112. Morocco suggests that the correct approach to evaluating the examination of evidence of the
price effects of dumped imports should instead be drawn from the letter of Articles 3.1 and 3.2: (a)
Did the authority have "positive evidence" of at least one of the phenomena identified in Article 3.2?
(b) Was the authority's methodology for considering the evidence before it justified in the light of
the comple xity of the required analysis? and (c) Has the authority explained its methodology
adequately?148
113. Article 3.2 should be interpreted in the light of market realities taking into consideration the
complexity of pricing strategies, but also in the light of the object and purpose of Article 3.2.149
114. In this case, the central issue was the fact that, in the face of imported products, the domestic
industry's sales were made at a loss,150 thus the authority reasonably concluded that "the domestic
industry's terms of sale or marketing for the exercise books seem to have been unusually affected
so that a comparison based on actual sales price would be conclusive for the purposes of a price
undercutting assessment".151 Consequently, the authority undertook an add itional step in order to
produce a comprehensive and relevant analysis of market realities by asking the following question:
would undercutting have occurred even if the domestic price reflected normal market conditions?152
115. With regard to the reasonable profit margin, the authority relied exclusively on the data before
it, since they were for producers of similar exercise books with sales in a market similar to Morocco's,
but not affected by dumped imports. 153 The analysis revealed significant price unde rcutting,
particularly in the final part of the period of investigation.154
116. Thus, the authority carried out an active examination of the evidence before it, taking into
account the reality of price dynamics in a competitive market.155
117. Morocco there fore respectfully requests that the Panel reject Tunisia's purely formalistic
approach and reject its claim under Article 3.2 regarding the examination of the price effect.
3. Tunisia's claim concerning the review period under Article 3.2 is flawed
118. Tunisia's claim concerning the review period is flawed because Tunisia appears to confuse the
dumping investigation period and the injury data collection period. For the purposes of a price
comparison, the domestic price is compared with the price of the dum ped imports, which is
determined by reference only to the dumping investigation period, so the authority's choice of
1 May 2016 to 31 April 2017 was quite appropriate.156
119. In addition, Tunisia's use of case law in support of its claim is both erroneous and irrelevant,157
but more importantly, Articles 3.1 and 3.2 do not stipulate a particular period of investigation.158

147 Morocco's first written submission, para. 131.
148 Morocco's first written submission, para. 132.
149 Morocco's second opening statement, para. 82.
150 Final Report, para. 134 (MOR-1): "examination of the data collected from the domestic industry has
revealed that, during the injury investigation period, the domestic industry sold exercise books at a loss."
151 Final Report, para. 134. (MOR-1)
152 Morocco's first written submission, para. 118.
153 Morocco's first written submission, para. 120.
154 Morocco's first written submission, para. 121.
155 Morocco's first written submission, para. 125.
156 Morocco's first written submission, para. 135.
157 Morocco's first written submission, paras. 136-138.
158 Morocco's first written submission, para. 139.

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120. Moreover, Tunisia's invitation to the Panel to read into Article 3 a "same period" requirement
is misleading, because that approach is not supported by the letter or the context of Article 3, not
even in the vast WTO case law on Articles 3.1, 3.2, 3.4 and 3.5, and is, in addition to being legally
inadmissible, institutionally imprudent, as it is impossible for this particular Panel to anticipate all
the factual circumstances in which this issue might arise in the future. 159 The ill -considered
interpretative approach proposed by Tunisia is in sharp contrast to the care with which the Panel in
Mexico — Anti-Dumping Measures on Rice assumed its interpretation responsibility.160
4. Tunisia's claim under Article 3.2 concerning the determination of the
domestic industry's profit margin must be rejected
121. Tunisia's claim under Article 3.2 concerning the determination of the domestic industry's profit
margin must be rejected since the authority constructed a target price because the domestic industry
sold at a loss,161 a situation that does not reflect normal market sales conditions; the sole purpose
of constructing a target domestic sales price was to reproduce those normal conditions, in order to
conduct a relevant analysis of the price effect of the dumped imports in accordance with
Article 3.2.162
122. Based on its in-depth knowledge of not only its own market but also the regional market and
stakeholders, those companies that use practically the same distribution channels (large retail stores
sometimes from the same chain, such as Carrefour, bookshops), the authority determined the most
relevant value in the light of the evidence before it – the profit margin of businesses of a similar size
in a similar market in the same region – and explained its reasoning in sufficient detail, pursuant to
Russia — Commercial Vehicles.163
123. In the absence of any instructions in Article 3.2 on methodology or evidence, in this case, the
authority chose to consider the evidence relating to lost sales under the heading "price undercutting",
and as nothing in the letter of Article 3.2 requires an authority to make a definitive determination in
either of the categories, the authority's only obligation is to examine evidence of price developments
in at least one category 164 and that is what the authority did. 165 The price of the dumped imports,
during the dumping investigation period, was higher than the domestic price; the domestic price
was a price below cost, and given that loss -making prices over a prolonged period do not provide
an appropriate basis for comparisons, the authority therefore used a constructed price to analyse
whether the import price had the effect of undercutting what would have been a sustainable market
price; which was revealed to be the case.166
124. Morocco therefore respectfully requests that the Panel reject Tunisia's claim under Article 3.2
concerning the determination of the domestic industry's profit margin.
5. The authority's determination is consistent with Article 3.2 and the Panel
may exercise judicial economy with regard to Tunisia's outstanding
claims under Article 3.2
125. Morocco respectfully requests that the Pane l find that the authority's determination is not
inconsistent with Article 3.2 because the authority took into account the price effects of the dumped
imports in its findings and the methodology used by Morocco was reasonable and objective.167

159 Morocco's comments on Tunisia's responses to the Panel's questions, para. 213.
160 Morocco's responses to the Panel's questions, 15 February 2021, para. 38; Report of the Appellate
Body, Mexico — Anti-Dumping Measures on Rice, para 165.
161 Final Report, para. 134 (MOR-1): "examination of the data collected from the domestic industry has
revealed that, during the injury investigation period, the domestic industry sold exercise books at a loss."
162 Morocco's first written submission, para. 143.
163 Morocco's first written submission, para. 144.
164 Report of the Panel, US — Countervailing Duty Investigation on DRAMs, para. 7.265.
165 Morocco's second written submission, para. 209.
166 Morocco's second written submission, para. 209.
167 Morocco's second written submission, para. 211; EC — Countervailing Measures on DRAM Chips,
para. 7.336.

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126. Lastly, regarding Tunisia's other claims under Article 3.2, Morocco respectfully requests that
the Panel exercise judicial economy in terms of the cumulative nature of the examination
requirement.168
B. The arguments in support of the claim under Article 3.2 are unsound
127. First, Tunisia's argument regarding the "upward trends" of certain factors is flawed because
these "upward trends" are not illustrative of either "positive developments" or a "healthy industry".
128. Second, the Panel should reject Tunisia's "seasonality" argument because the comparison of
periods was not an issue.
129. Third, the Panel should also reject Tunisia's argument regarding the domestic industry's
alleged "strategy", because it is simply a baseless assumption.
1. The "upwar d trends" of certain factors are not illustrative of either
"positive developments" or a "healthy industry"
130. Tunisia's argument in support of its claim relating to Article 3.4 with respect to the alleged
"upward trends" of certain factors is flawed.
131. A 137% increase in inventories of an industry that is, as Tunisia noted, seasonal and depends
on rapid production and sales, is not a "positive" increase but a rise that, on the contrary, shows an
industry in poor health that is no longer able to clear its stock even though it has been selling at a
loss since the arrival of the dumped goods on the market, and this, more than an increase in
inventories, incurs capital costs, causing the situation of the domestic industry to deteriorate
further.169
132. Similarly, a significant increase in investments may, under certain circumstances, be a sign of
a "healthy industry"; in this case, the domestic industry invested more in 2015 and 2016 (up 790%
in 2015 and 145% in 2016) in order to remain competitive in the face of higher volumes of dumped
imports on the market. Nevertheless, despite these investments, the increase in productive capacity
and price cuts, the domestic industry was still unable to sell its products, so its stock levels inevitably
grew.170
133. Morocco therefore respectfully requests that the Panel reject Tunisia's arguments in support
of its claim relating to Article 3.4 regarding the "upward trends".
2. The comparison of periods was not an issue in the light of the "seasonal"
nature
134. Tunisia's argument in support of its claim relating to Article 3.4 regarding the comparison of
periods in the light of "seasonality" is flawed.
135. This would have been a relevant argument if and only if the authority had compared the first
four months of 2017 to the last four months of 2016, and whether there was evidence that these
two periods have different seasonal characteristics. Nevertheless, the fact that in 2017 Tunisian
exporters sold more than during the same "season" in 2016 is in no way evidence tha t comparing
these same periods is problematic because this comparison does not take "seasonality" into
account.171
136. Morocco therefore respectfully requests that the Panel reject Tunisia's arguments in support
of its claim relating to Article 3.4 on the comparison of periods.

168 Morocco's first oral statement, title III, B, 5.
169 Morocco's first written submission, para. 181.
170 Morocco's first written submission, para. 182.
171 Morocco's first written submission, para. 189.

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3. The alleged "strategy" of the domestic industry is simply a baseless
assumption
137. Tunisia accepted that its argument concerning the domestic industry's alleged "strategy" is
only an assumption, and on that basis alone, the Pane l should reject this argument because the
issue before the Panel is not based on assumptions, but rather on evidence before the authority.
With regard to the domestic industry's alleged "business strategy", no evidence of that was
submitted to the authority.172
138. Tunisia argues that "Tunisia's explanation is a plausible explanation, that is consistent with
the figures, unlike the explanation put forward by MIICEN",173 but a violation of the WTO Agreement
cannot be based on "a plausible explanation".174
139. Morocco respectfully requests that the Panel reject Tunisia's contentious arguments under
Article 3.4.
C. Tunisia's claims under Article 3.5 must be rejected
140. Tunisia's claims under Article 3.5 must be rejected because its argument regarding causation
under Article 3.5 is unsound and because its argument on "non-attribution" is untenable.
1. Tunisia's argument regarding causation under Article 3.5 is unsound
141. Tunisia's arguments regarding causation under Article 3.5 are based 175 on its argu ments
relating to Articles 3.2176 and 3.4.177
142. In the light of Morocco's arguments relating to Tunisia's claims under Articles 3.2 and 3.4, set
out above, Morocco requests that the Panel reject Tunisia's derivative argument concerning
"causation".
2. Tunisia's argument on "non-attribution" is untenable
143. Tunisia's "non-attribution" argument with regard to Imprimerie Moderne must be rejected
because the exporters, in this case, have made claims about competition in the market, but did not
however submit any evidence - not even an invoice, not even an affidavit from its trade
representatives, not even any business information, not even a photograph of the exercise books of
rival brands on shelves - in support of their claim of alleged "fierce competition" from Imprimerie
Moderne.178
144. With regard to Article 3.5, the authority is required to examine only those factors for which
evidence and arguments have been submitted to the authority, 179 as was pointed out by the panel
in the case of Thailand - H-Beams.180
145. Furthermore, the authority considered that the evidence concerning Imprimerie Moderne's
share of domestic production was accurate, appropriate and sufficient to initiate an investig ation
into the dumping by SOTEFI and SIPEC. Following the initiation of the investigation, the authority
sent letters to all interested parties, including Imprimerie Moderne, which did not however respond
to the authority's questionnaire. So the only piece of evidence before the authority was Imprimerie
Moderne's production volume during the final year of the injury data collection period and, as a
result, there was no evidence regarding domestic sales, prices or exports. In these circumstances,

172 Morocco's first oral statement, para. 100.
173 Tunisia's responses to the Panel's written questions, para. 140.
174 Morocco's second written submission, para. 239.
175 Tunisia's first written submission, para. 7.11.
176 Tunisia's first written submission, para. 7.12.
177 Tunisia's first written submission, para. 7.13.
178 Morocco's comments on Tunisia's responses to the Panel's questions, para. 245 a).
179 Morocco's first oral statement, para. 108.
180 Panel Report, Thailand - H-Beams, para. 7.273.

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and in the absence of any evidence from exporters, the authority could not be expected to speculate
on Imprimerie Moderne's business competition.181
146. Morocco therefore respectfully requests that the Panel reject Tunisia's "non-attribution" claim
under Article 3.5 with regard to Imprimerie Moderne.
VI. TUNISIA'S CLAIMS UNDER ARTICLE 12.2.2 MUST BE REJECTED
147. Tunisia has treated its claim under Article 12 as an afterthought and the Panel should not give
any credence to this attempt and should therefore reject the request.182
148. Furthermore, with regard to Article 12.2.2, the legal "position" of SOTEFI before the authority
was based on the contract, it being specified that an Excel file does not in itself constitute a "position"
or "relevant information, on matters of fact and law". So, in this case, the authority set out all the
relevant facts and arguments, as well as its reasoning in that regard, and it is only because the
exporters chose not to bring arguments concerning facts before the authority or the author ity's
treatment of those facts, that the authority, naturally, did not present any findings with regard to
the arguments not submitted, and there was therefore nothing to be disclosed under Article 12.2.2,
there is therefore no basis for a review under Article 12 and, by the same logic, there is nothing for
the Panel to consider under Article 17.6.183
149. Morocco therefore respectfully requests that the Panel reject Tunisia's claims under Article 12.
VII. THE CLAIMS ABANDONED BY TUNISIA
150. Tunisia's has abandoned the following claims set out in its request for the establishment of a
panel: claims B.3 and B.4.
A. Claim B.3
151. Tunisia has maintained184 - and the Panel has also agreed185 - that the specific claim set out
in paragraph B.3 is also found in paragraph B.5. Morocco respectfully requests that the Panel resolve
the tensions arising from this finding in the light of the principle of effectiveness of the claims as
well as the presumption to avoid redundancy186
152. Furthermore, Morocco requests that the Panel note that Tunisia has abandoned the claim set
out in paragraph B.3.187
B. Claim B.4
153. Morocco respectfully requests that the Panel also note that Tunisia has abandoned the claim
set out in paragraph B.4.188
VIII. CONCLUSION
154. Morocco respectfully requests that the Panel make the following findings:
In the light of the Panel's jurisdiction,
a. that claim B.5 in the panel request, according to which Morocco acted inconsistently with
Articles 2.1, 2.2, 2.2.1.1 and 2.2.2, is inconsistent with Article 6.2 (i) because in the absence
of clarification regarding the relevance of Article 2.2.1.1, the claim does not specify "a distinct

181 Morocco's comments on Tunisia's responses to the Panel's questions, para. 245 b) 2).
182 Morocco's second written submission, para. 307.
183 Morocco's responses to the Panel's questions of 15 February 2021, para. 27.
184 Tunisia's reply to Morocco's preliminary ruling request, para. 4.4.
185 Preliminary ruling of the Panel, para. 3.46.
186 Morocco's second written submission, para. 76.
187 Morocco's second written submission, para. 77.
188 Morocco's second written submission, para. 81.

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and well defined obligation"; and (ii) because the wording of the claim is too impreci se given
that it refers to provisions with multiple obligations;
b. that claim B.6 in the panel request, according to which Morocco acted inconsistently with
Article 2.4, is inconsistent with Article 6.2 because the wording of the claim is too imprecise
given it refers to a provision with multiple obligations;
With regard to the claims abandoned by Tunisia,
c. that claim B.3 in the request for the establishment of a panel, according to which Morocco
acted inconsistently with Articles 2.1, 2.2 and 2.2.1, was abandoned by Tunisia;
d. that claim B.4 in the request for the establishment of a panel, according to which Morocco
acted inconsistently with Articles 2.1, 2.2, 2.4, 6.8 and paragraphs 3, 5, 6 and 7 of Annex II
of the Anti-Dumping Agreement, and Article VI:1 of GATT 1994, was abandoned by Tunisia;
e. that Tunisia's claim under Article 5.3 must be considered to have been abandoned because
Tunisia has stated that it is not pursuing its claim;
f. that Tunisia's claim under Article 12.2.2 with regard to sales of numbered or watermarked
exercise books must be considered to have been abandoned because Tunisia has stated that
it is not pursuing its claim;
With regard to Tunisia's outstanding claims,
g. under Article 5
i. on Article 5.2, that Tunisia's claims must be rejected because:
a. Tunisia has failed to demonstrate that the authority had any obligation so its
claims have no legal basis; and
b. in any case, Tunisia has failed to establish a prima facie case by ignoring the key
condition of "reasonably available".
ii. on Article 5.3, that Tunisia's claims must be rejected because:
a. in the light of the relationship between Articles 5.2 and 5.3, the fact that Tunisia
ignores a fundamental requirement of Article 5.2, concerning the adequacy of the
evidence, undermines Tunisia's arguments under Article 5.3; and
b. Tunisia has not established that the authority acted inconsistently with Article
5.3.
h. under Article 2
iii. on Article 2.1, that Tunisia's claims must be rejected because:
a. Article 2.1 is not an incidental obligation that can be invoked as a consequential
argument in order to exacerbate the violation; and
b. Tunisia has failed to establish a substantial violation of Article 2.1 such that its
claims have no legal basis.
iv. on Article 2.2, that Tunisia's claims must be rejected because:
a. the arguments relating to the claim based on the exclusion of administrative costs
and certain expenses not included in the product price used to calculate the profit
margin are outside the Panel's jurisdiction , pursuant to Article 17.6 of the

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Anti-Dumping Agreement prohibiting any de novo review, to the extent that these
arguments were never specifically submitted to the authority;
b. the arguments relating to the claim based on the inclusion of the "distributi on
cost" in constructing the normal value of certain models of exercise books by
SOTEFI are outside the Panel's jurisdiction, pursuant to Article 17.6 of the
Anti-Dumping Agreement prohibiting any de novo review, to the extent that these
arguments were never specifically submitted to the authority;
c. the arguments relating to the claim based on the mathematical formulas are
outside the Panel's jurisdiction, pursuant to Article 17.6 of the Anti -Dumping
Agreement prohibiting any de novo review, to the extent that these arguments
were never specifically submitted to the authority.
v. on Article 2.2.2, that Tunisia's claims must be rejected because:
a. the exporters' calculation of their own "profit margin" is not "actual data" within
the meaning of Article 2.2.2, the authority is not required to use the data provided
but it is required to base its calculations on those data;
b. the letter of Article 2.2.2 does not allow this provision to be interpreted as being
consequential and incidental; and
c. Article 2.2.2 does not require an authority to examine products that, pursuant to
the laws of the exporting country, are not allowed to be exported;
vi. on Article 2.4, that Tunisia's claims must be rejected because:
a. Tunisia's claim relating to the weighting methodology has no legal basis in so far
as the first sentence of Article 2.4 cannot be used to address all claims of
problems with the mathematical formulas that are not associated with zeroing,
or the alleged issues with the weighted average in specific cases, and in any
event, Tunisia is seeking a de novo review since Tunisia's arguments related to
the weighting methodology have never been specifically submitted to the
authority.
b. Tunisia's claim concerning licensed exercise books must be rejected because the
exporters and Tunisia failed to demonstrate that there was an impact on domestic
market prices in accordance with the third sentence of Article 2.4, and in any
case, Tunisia is seeking a de novo review since its arguments relating to the
licences Excel file were never specifically submitted to the authority.
i. under Article 3:
vii. on Article 3.2, that Tunisia's claims must be rejected because:
a. The first sentence of Article 3.2 provides an alternative obligation;
b. Tunisia's interpretation of Article 3.2 is flawed;
c. Tunisia's claim concerning the review period is flawed;
d. Tunisia's claim concerning the determination of the domestic industry's profit
margin is flawed;
e. The authority's determination is consistent with Article 3.2 a nd the Panel may
exercise judicial economy with regard to Tunisia's outstanding claims under
Article 3.2 on the cumulative nature of the obligation to conduct reviews.
viii. on Article 3.4, that Tunisia's claims must be rejected because:

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a. the arguments relating to "upward trends", the alleged "seasonality" and to the
domestic industry's alleged "strategy" are all devoid of any factual and legal basis.
ix. on Article 3.5, that Tunisia's claims must be rejected because:
a. Tunisia's argument regarding causation is linked to Tunisia's arguments relating
to Articles 3.2 and 3.4, and is therefore unsound because it is devoid of any legal
basis;
b. Tunisia's argument on "non-attribution" is untenable because it is devoid of any
factual and legal basis, to the ex tent that the neither the exporters before the
authority nor Tunisia before the Panel have met the condition expressly set out
in Article 3.5.
j. under Article 12
x. on Article 12.2.2 , that the allegedly still active claim concerning the difference in the
use of licences must be rejected because:
a. Tunisia did not submit it in a timely manner, treating it instead as an afterthought;
and
b. the claim is devoid of any factual basis.

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ANNEXE C-1

INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA*

I. ANALYSIS OF SIGNIFICANT PRICE UNDERCUTTING
1. Article 3 of the Anti-Dumping Agreement does not prescribe specific methodologies as to how
an investigating authority is to analyse the effects of dumped imports on the prices of domestic like
products. The investigating authority, therefore, has a measure of discretion as to how it chooses to
conduct this assessment.1 However, this discretion is bound by the general provisions of Article 3.1,
which stipulates that any injury determination must be based on positive evidence and must involve
an objective examination.2
2. The phenomena covered by Article 3.2 – price undercutting, price depression and price
suppression – involve different factual situations and therefore will need to be examined differently.
This difference is highlighted by the fact that the terms "or" and "otherwise" separate the significant
undercutting of prices from the other phenomena covered by Article 3.2, "indicating that the
elements relevant to the consideration of significant price undercutting may differ from those
relevant to the consideration of significant price depression and suppression".3
3. Price undercutting involves "situations where imports are being sold at prices lower than the
domestic like products". 4 Therefore, as the Appellate Body indicated in China – GOES, examining
price undercutting in accordance with Article 3.2 involves comparing the prices of the subject imports
and the domestic like products.5
4. Nevertheless, as the examination provided for under Article 3.2 focuses on the effects of
dumped imports, the examination of price undercutting should not be limited to a mere mathematical
comparison. As the Appellate Body explains, "Article 3.2 requires a dynamic assessment of price
developments and trends in the relationship between the prices of the dumped imports and those
of like domestic products over the duration of the period of investigation".6
5. Contrary to the analysis of price suppression, examination of significant price undercutting is
not based on a hypothetical scenario of what might have occurred in the absence of dumping. This
aspect of price suppression analysis is highlighted by the words " which otherwise would have
occurred", in reference to price increases.7 Such words denote a hypothetical situation with regard
to analysis of price undercutting. Canada is thus of the view that any examination of significant price
undercutting should be based on real prices and not on hypothetical prices in a situation where there
is no import dumping.
6. Construction of a target price to reflect the price at which domestic products would have been
sold in the absence of the subject imports is based on the idea that the real price is distorted as a
result of the price effects of the imports. Therefore, even if the examination provided for under
Article 3.2 is intended to determine if the imports had any effects on prices, the target price
construction method is based on the premise that the imports did have such effects. In other words,

* In French original language.
1 Appellate Body Report, Korea – Pneumatic Valves (Japan), para. 5.233; Panel Reports, Thailand — H
– Broiler Products, para. 7.474.
2 Appellate Body Report, Korea – Pneumatic Valves (Japan), para. 5.233; Panel Report, EU — Biodiesel
(Indonesia), para. 7.137. See also Panel Reports, China – Broiler Products, para. 7.476; China – X-Ray
7.266.
3 Appellate Body Report, China — GOES, para. 137; and Panel Reports, China – HP-SSST (Japan)/China
– HP-SSST (EU), para. 7.124.
4 Appellate Body Report, China – HP-SSST (Japan)/China – HP-SSST (EU), para. 5.160 (emphasis
omitted).
5 Appellate Body Report, China — GOES, para. 136 (emphasis omitted).
6 Appellate Body Report, China – HP-SSST (Japan)/China – HP-SSST (EU), para. 5.160.
7 Article 3.2 of the Anti-Dumping Agreement.

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in the context of price undercutting, resorting to a constructed price presupposes that the dumped
imports had an effect on the price of like domestic products.
7. The target price construction method may be appropriate for determining if there is price
suppression or prevention of price increases. This is so because examination of these price
phenomena is based on comparison with a situation where there is no dumping of imports. In this
context, the investigating authority must ask itself how the prices of domestic products would have
evolved in the absence of the subject imports.
8. However, for the examination of price undercutting, Canada considers that the comparison
between the real price of imports and a constructed target price of like dom estic products is not
appropriate. This comparison should rather be based on the real prices of the subject imports and
those of the domestic like products.
II. LEGAL STANDARD FOR THE INITIATION OF AN INVESTIGATION
9. Article 5 of the Anti-Dumping Agreement sets out the conditions governing the initiation of an
anti-dumping investigation and imposes obligations on the applicant and the investigating authority
in this regard.
10. Article 5.2 of the Anti -Dumping Agreement imposes an oblig ation on the applicant as to the
content of the request to justify initiating an anti -dumping investigation. It requires the petition to
include evidence of dumping, injury and a causal link between dumped imports and the alleged
injury.
11. By virtue of this Article, the applicant is required to provide only the information reasonably
available to it. As the Panel in US – Softwood Lumber V highlighted, Article 5.2 does not require
the applicant to provide all the information reasonably available to it, but only such information
that substantiates a prima facie case of dumping, injury and causal link.8
12. Article 5.2 also stipulates that simple assertion, unsubstantiated by relevant evidence, cannot
be considered sufficient to meet the requirements of this provision. In this sense, Article 5.2 imposes
a minimum threshold of sufficiency with regard to the evidentiary weight of information reasonably
available to the applicant that it is bound to provide in its application.
13. Article 5.3 requires the author ities to examine the accuracy and adequacy of the evidence
provided in the application to determine whether there is sufficient evidence to justify the initiation
of an investigation9. During its examination, the investigating authority shall examine notably if the
application meets the requirements set forth in Article 5.2. The matter of sufficiency of evidence to
justify the initiation of an investigation is incumbent on the investigating authority by virtue of Article
5.3 of the Anti-Dumping Agreement.
14. Although it has an obligation to examine the evidence provided by the applicant, the
investigating authority does not need to limit itself to such evidence to determine whether an
investigation should be initiated. Indeed, the authority may collect inf ormation on its own initiative
to meet the requirement set forth in Article 5.3.10 Thus, the authority may conduct its own research
to supplement the information provided by the applicant, which may in itself be insufficient, to justify
the initiation of an investigation.11 Consequently, the threshold of sufficiency of the evidence for the
purposes of initiating an investigation is determined on the basis of the evidence provided by
applicant in its application, and any evidence that the authority may have gathered.
15. This is also so because, by virtue of Article 5.2, the applicant is only bound to present in its
application information that may be reasonably available to it. Should the investigating authority
limit itself to the content of the application to rule on whether or not to initiate an investigation, an

8 Panel Report, US – Softwood Lumber V, para. 7.87.
9 Panel Reports, Guatemala – Cement II, para. 8.31; US – Softwood Lumber V, para. 7.79; and
Argentina – Poultry anti-dumping duties, para. 7.60.
10 Panel Reports, Guatemala – Cement II, para. 8.62; and US – Softwood Lumber V, para. 7.75.
11 Panel Report, Guatemala – Cement I, para. 7.53.

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investigation can only be opened in cases where "sufficient evidence" is reasonably available to the
applicant.
16. If it is satisfied that there is sufficient evidence to justify the initiation o f an anti -dumping
investigation pursuant to the provisions of Article 5, the investigating authority is required to issue
a public notice of initiation of an investigation in conformity with Article 12.1 of the Anti -Dumping
Agreement.
17. In accordance wit h the provisions of Article 12.1.1, this notice, or a separate report, shall
contain adequate information, including the basis of the dumping allegation made in the application
and a summary of the factors on which the injury allegation is based.
18. Article 12.1 does not require the investigating authority to explain, in the notice of initiation
of the investigation, the conclusions it has reached in determining if there is sufficient evidence to
justify initiation of an investigation.12
19. Nevertheless, the fact that Article 12.1 makes explicit reference to Article 5 demonstrates that
the substantial obligation contained in Article 5.3 on initiation of an investigation is relevant to
understanding the procedural obligation of Article 12.1. For example, the time at which the notice is
to be published under the terms of Article 12.1 depends on the time at which the investigating
authority determines that there is sufficient evidence to initiate an investigation, in conformity with
Article 5.3. Similarly, th e information contained in the notice of initiation of an investigation, in
particular information on which the dumping and injury allegations are based, depend on the
information which the investigating authority has examined or gathered during its examin ation in
accordance with Article 5.3.

12 Panel Report, Mexico – Corn Syrup, para. 7.88.

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ANNEX C-2
INTEGRATED EXECUTIVE SUMMARY OF THE
ARGUMENTS OF THE UNITED STATES*
EXECUTIVE SUMMARY OF U.S. THIRD PARTY SUBMISSION
1. As set out in Article 11 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU"), the Panel is 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 the relevant covered agreements". Pursuant to the Panel's terms of reference, as established
by Article 7.1 of the DSU, the Panel is then to "make such findings as will assist the DSB in making
the recommendations or in giving the rulings provided for" in the covered agreements, as required
by Article 19.1 of the DSU.
2. With respect to the specific standard of review for anti-dumping measures under Article 17.6
of the Anti-Dumping Agreement, it is the Panel's task to assess whether the investigating authority
properly established the facts and evaluated them in an unbiased and objective way. The Panel's
task is not to determine whether it would have reached the same results as the investigating
authority. Put differently, the Panel's task is to determine whether a reasonable, unbiased person,
looking at the same evidentiary record as the investigating authority, could have—not would have—
reached the same conclusions that the investigating authority reached.
3. The Panel must not conduct a de novo evidentiary review. It would be inconsistent with a
panel's function under Article 11 of the DSU to go beyond its role as reviewer and instead substitute
its own assessment of the evidence and judgment for that of the investigating authority.
EXECUTIVE SUMMARY OF U.S. THIRD PARTY ORAL STATEMENT
4. Article 3 of the Anti -Dumping Agreement does not prescribe a particular methodology or
mandatory set of factors to be considered in an underselling analysis by the authority.
5. In the context of an underselling analysis by the authority, Article 3.2 directs an authority to
examine whether subject imports significantly undercut the prices of like domestic pr oducts and
Article 3.1 provides that a determination of injury shall be based on positive evidence and involve
an objective examination.
6. In addition, Articles 3.1 and 3.2 require the authority to ensure comparability between the
domestic and subject imported products for which prices are being examined by making adjustments
where required to reflect any material differences.
7. Article 3 of the Anti-Dumping Agreement does not prescribe a particular methodology for an
authority to analyse impact of dumped imports on the domestic industry.
8. With respect to an authority's obligation to ascertain the impact of dumped imports on the
domestic industry, Article 3.4 mandates that "[t]he examination of the impact of dumped imports
on the domestic industry concerned shall include an evaluation of all relevant economic factors and
indices having a bearing on the state of the industry", and lists a series of factors to be evaluated.
As the text of Article 3.4 states, no one injury factor is necessarily "decisive".
9. Article 3.4 does not dictate the methodology that should be employed in conducting the
examination under this article, or the manner in which the results of this evaluation are to be set
out.
10. The United States also notes that a negative material inju ry determination is not compelled
merely because a domestic industry has reported a number of positive or improving injury indicators
during the POI. As the EU – Footwear panel explained, it is "clear" that "it is not necessary that all

* In the original English.

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relevant factors, or even most or a majority of them, show negative developments in order for an
investigating authority to make a determination of injury". Thus, an authority is not required to find
that any certain number of injury factors declined during the POI in order to make an affirmative
determination of injury.
11. Article 3.5 of the Anti -Dumping Agreement does not prescribe a particular methodology for
an authority to analyse non-attribution factors.
12. The third sentence of Article 3.5 requires an authority to examine "any known factors other
than the dumped imports which at the same time are injuring the domestic industry" to ensure that
"the injuries caused by these other factors must not be attributed to the dumped imports". A non -
attribution analysis is therefore necessary only if (1) there are one or more other known factors
other than the dumped imports that (2) are injuring the domestic industry (3) at the same time.
13. In situations where there are such other injury -causing factors as defined in Article 3.5, the
article does not require an investigating authority to utilize any particular methodology in examining
such factors. In light of this, the Appellate Body has acknowledged that an authority "is free to
choose the methodology it will us e in examining the 'causal relationship' between dumped imports
and injury".
EXECUTIVE SUMMARY OF U.S. THIRD PARTY RESPONSES TO QUESTIONS
14. Response on Question 3.1: With respect to an investigating authority's obligation to ascertain
the impact of dumped imports on the domestic industry, Article 3.4 of the AD Agreement mandates
that "[t]he examination of the impact of dumped imports on the domestic industry concerned shall
include an evaluation of all relevant economic factors and indices having a bearin g on the state of
the industry", and lists a series of factors that must be evaluated if they are relevant and have a
bearing on the state of the industry under investigation – including the "actual and potential decline
in sales, profits, output, market share, productivity, return on investments, or utilization of capacity".
15. The inquiry under Article 3.4 is not limited to its list of enumerated factors; as the text of
Article 3.4 confirms, the list is "not exhaustive", and no one factor is necessarily "decisive". Rather
than undertake a rote checklist as to whether each factor points to injury in an underlying
investigation, an authority "must consider, in light of the interaction among injury indicators and the
explanations given" whether a domestic industry is injured.
16. Response on Question 3.2: Article 3.1 of the AD Agreement provides that "[a] determination
of injury for purposes of Article VI of GATT 1994 shall be based on positive evidence and involve an
objective examination of ... the consequent impact of [dumped] imports on the domestic producers
of [the like domestic] products". The approach taken by a number of panels is instructive with
respect to applying the concepts of balancing negative and positive factors in a practical manner.
For example, the panel in EU – Footwear (China) considered it "clear" that a negative material injury
determination is not compelled merely because a domestic industry has reported a number of
positive or improving injury indicators during the POI. As that panel explained "it is not necessary
that all relevant factors, or even most or a majority of them, show negative developments in order
for an investigating authority to make a determination of injury".
17. Response on Question 4.3: Article 5.2 and Article 5.3 of the Anti-Dumping Agreement set out
the following requirements for applications and obligations on investigative authorities in order to
initiate an anti-dumping investigation. First, under Article 5.2, the application must contain evidence
of dumping, i njury within the meaning of Article VI of GATT 1994 as interpreted in the Anti -
Dumping Agreement, and a causal link between the dumped imports and the alleged injury. Article
5.2 explains that the application shall contain such information that is reasonab ly available to the
applicant on the items identified in 5.2(i) -(iv). Second, under Article 5.3 of the
Anti-Dumping Agreement, the investigative authority must examine the accuracy and adequacy of
the evidence in the application to determine whether there is sufficient evidence to justify initiation.
18. The text of Articles 5.2 and 5.3 does not provide the Panel with a standard of review that is
unique to initiations. Rather, Article 17.6 of the Anti -Dumping Agreement provides the applicable
standard of r eview for anti -dumping disputes. In the context of Articles 5.2 and 5.3 of the
Anti-Dumping Agreement, the Panel is to determine whether a reasonable, unbiased person, looking

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at the same evidentiary record as the authority, could have —not would have —reached the same
conclusions that the authority reached. In particular, whether a reasonable, unbiased person, after
looking at the information contained in the application could reach the same decision to initiate an
anti-dumping investigation.
19. Response on Question 4.7 : The use of the term "evidence" in Articles 5.2 and 5.3 of the
Anti-Dumping Agreement does not dictate that the applicant or the investigating authority —at the
point at which Article 5.2 or 5.3 is implicated in an antidumping proceeding—must demonstrate how
the information provided justifies the initiation of an investigation. Of course, it befits the applicant
to explain how the information in the application constitutes "evidence" of, and demonstrates,
dumping, injury, and causation for pu rposes of the investigating authority examining the accuracy
and adequacy of that evidence. However, neither of the aforementioned Articles require a
demonstration at that stage. If the applicant fails to demonstrate that the information in the
application is sufficient to justify initiation of an investigation, it risks the investigating authority not
initiating on the basis of the application.
20. Response on Question 4.8 : As an initial matter, the evidence in the application need not
"prove" the existence of all elements of dumping. As the panel in US Softwood Lumber V stated,
"[w]hat constitutes sufficient evidence to justify the initiation of an anti -dumping investigation, is
not defined in the Anti-Dumping Agreement". Furthermore, "the quantity and quality of evidence
required to meet the threshold of sufficiency of the evidence is of a different standard for purposes
of initiation of an investigation compared to that required for a preliminary or final determination of
dumping".
21. An investigating authority may request supplemental information from the applicant. Indeed,
an investigating authority's request for supplemental information from an applicant is fully consistent
with the Article 5.3 obligation that the investigating authority examine the accuracy and adequacy
of the information contained in the application.

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ANNEX C-3
INTEGRATED EXECUTIVE SUMMARY OF THE
ARGUMENTS OF JAPAN*
I. THE "LOGICAL PROGRESSION" UNDER ARTICLE 3 OF THE
ANTI-DUMPING AGREEMENT
1. The paragraphs of Article 3 of the Anti -Dumping Agreement have been described as
contemplating a "logical progression of inquiry". The inquiries under Articles 3.2 and 3.4 are
accordingly required for the overall causation analysis contemplated in Article 3.5 and their outcomes
form the basis of such analysis.1 Without a proper examination under these provisions, an affirmative
finding of the effect of the dumped imports or the impact of the dumped imports would be neither
reasonable nor objective because it would lack positive evidence inconsistently with Article 3.1.
Japan therefore considers that an investigating authority must undertake thorough analyses of the
price and volume effects and of the impact of dumped imports on the domestic industry, in order to
properly determine the existence of injury and causation.
II. THE ANALYSIS OF VOLUME EFFECTS UNDER ARTICLE 3.2 OF THE
ANTI-DUMPING AGREEMENT
2. Japan considers that an investiga ting authority should consider whether and to what extent
dumped imports are increasing by substituting for the domestic like products in the market. As Japan
sees it, an increase in the dumped imports, with no substitution effect, cannot be characterized as
"significant". The absence of such an effect indicates that the sales quantity of the domestic like
product would have been the same in the absence of the dumping, and logically, the domestic
industry has not been injured by the dumped imports.
3. With respect to the case at issue, if the market share of the dumped imports had fluctuated
during the period of investigation ("POI"), it would be questionable whether it could be concluded
that the increase during a period shorter than a year properly represe nts the true trend of the
dumped imports, or that the dumped imports were increasing and replacing the domestic like
products on a volume basis. In particular, considering that the product under investigation is school
exercise books, it appears reasonable to consider that there could have been seasonal trends. The
Panel should carefully review whether Morocco's Ministry of Industry, Investment, Trade and the
Digital Economy ("MIICEN") took into account such a seasonal trend, as alleged, and the domestic
market situation throughout the entire year when determining whether the imports increased
relative to production or consumption.
III. THE ANALYSIS OF PRICE EFFECTS UNDER ARTICLE 3.2 OF THE
ANTI-DUMPING AGREEMENT
A. Price Effect Analysis
4. Prior panels and the Appellate Body have underscored that the analysis under the
second sentence of Article 3.2 must be dynamic and must consider the interaction of the prices of
dumped imports and domestic products in the specific market. In this regard, Japan is of the view
that a mere demonstration of correlation between the prices of dumped imports and domestic prices
does not provide a sufficient basis for the existence of price effects within the meaning of Article 3.2,
because it does not show whether the price of d umped imports had an effect on the domestic like
products and thus is not based on positive evidence. It is common knowledge that the correlation
between two figures does not necessarily entail a causal relationship between the two.
5. In Japan's view, for all three types of price effects set out in Article 3.2 —that is, price
undercutting, price depression, and price suppression —the key question is the same: the price
effects analysis must consider what the domestic price would have been without the dumped imports

* In the original English.
1 Appellate Body Report, China – GOES, para. 128.

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(i.e., if the imports had been priced at their normal value), compared to the actual price of the
domestic like products where there are dumped imports. Article 3.2 requires a consideration of "the
relationship between subject imports and domestic prices, so as to understand whether the former
may have explanatory force" for the observed pricing trends, and an investigating authority may not
"disregard evidence that calls into question the explanatory force of subject imports".2 Further, the
analysis must be based on an objective examination and positive evidence.3
6. In conducting the analysis contemplated in Article 3.2, the investigating authority would
normally need to examine market interactions between subject imports and the domestic like
products. Without such market interaction, there will be no positive evidence that the observed price
differences of the domestic like products were caused by the dumped imports (i.e., constituting price
effects), and the observation will not provide a basis for the next step of the "logical progression".
7. Specifically, the investigating authority should carefully consider factors that may explain why
the domestic industry of the importing Member could not have raised its prices, or factors that show
what the price would have been had it not been for the dumped imports, before finding that the
dumped imports have price effects. This consideration must be reflected in the relevant documents
of the investigating authority.4
B. Price Undercutting
8. Japan does not comment on the particular price effect analysis carried out by MIICEN in the
case at issue. Having said that, as far as the legal standard for the "price undercutting" analysis is
concerned, Japan first has doubts about MIICEN's understanding of the "comparability" reflected in
the aforesaid analysis. The key question under Article 3.2 is again, whether the price of the domestic
like products would have been higher but for the dumped imports. Japan requests that the Panel
carefully examine whether MIICEN's approach conforms to the requirement of "comparability", in
particular as regards the use of the profit margins earned by the exporters in Tunisia as a
representative of the profit margins that should have been earned by the domestic producers.
9. Japan's view is that the use of a constructed price is not per se inconsistent with Articles 3.1
and 3.2. It is recognized that investigating authorities enjoy a certain discretion in adopting a
methodology to guide their injury anal ysis.5 However, Japan also considers that the mere
comparison with actual prices does not provide a sufficient basis for the affirmative finding of
"significant" price undercutting. Even in the absence of an actual decrease in prices, where the
investigating authority has found that prices are lower than they would have been (because the
profit margin of domestic products was set lower than it would have been), to allow the "logical
progression" leading to the subsequent impact and causal link inquiries, the investigating authority
would need to find that the lower-priced imports caused the domestic producers' inability to increase
their sales price despite their cost increase.
10. Leaving aside MIICEN's decision to use a constructed price, it does not appe ar that a
reasonable explanation was provided for the use of the profit margins of Tunisian exporters in the
case at hand. If the approach was based on an assumption that the profits of the domestic industry
should have been higher than the actual profit b ecause the price of school exercise books of the
domestic industry should have been higher, the finding cannot be considered adequate or reasonable
unless the underlying assumption is otherwise established by positive evidence. There should be an
explanation based on positive evidence to substantiate that the domestic producers would have
earned the same profit rate but for the dumped imports. A mere allegation that the Tunisian
competitors were earning such a profit rate is insufficient to use the same pro fit rate to reach a
constructed price of domestic producers.
C. Price Depression
11. In the case at issue, MIICEN found that the price of the like products was depressed every
year during the POI. However, it is unclear whether the relationship between the subject imports

2 Appellate Body Report, China – GOES, para. 151.
3 Appellate Body Report, China – GOES, para. 152.
4 Appellate Body Report, China – GOES, para. 131. (original emphasis)
5 See, for example, Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 204 and
Panel Report, EC – Tube or Pipe Fittings, paras. 7.278 and 7.281.

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and the domestic prices was considered in determining whether the effect of subject imports was to
depress domestic prices.
D. Price Suppression
12. Japan reiterates that, if the affirmative finding of price suppression is based solely on a mere
price comparison, it must be concluded that the finding is not supported by positive evidence. An
affirmative finding of "price suppression" must be based on an assessment of the market interaction
between the dumped imports and the domestic like pr oducts. As the existence of domestic
competitors, not included within the scope of the domestic industry in the investigation, has been
pointed out when conducting the injury inquiries, for example, it should be carefully reviewed
whether or not the price suppression is indeed caused by the dumped imports. Japan requests that
the Panel examine these arguments from the aforesaid viewpoint.
IV. INJURY ANALYSIS UNDER ARTICLE 3.4 OF THE ANTI-DUMPING AGREEMENT
13. While Article 3.2 concerns the volume and price effect of dumped imports, Article 3.4 concerns
"the consequent impact" of the dumped imports on the domestic industry. Japan understands that
"the impact of" the dumped imports on the state of the domestic industry within the meaning of
Article 3.4 refers to the impact of the volume/price effect identified under Article 3.2. Therefore,
Japan considers that Article 3.4 requires an investigating authority to examine whether and to what
extent the factors showing certain trends in the domestic industry can be explained as resulting from
the identified effects of dumped imports (i.e., volume effects and price effects) under Article 3.2.
14. Further, if the investigating authority finds that the "impact of the dumped imports" is one
that results from the volume/price effect of dumped imports, the investigating authority must also
provide an adequate and reasonable explanation on why such impact demonstrates an injury to the
domestic industry to satisfy the explanatory force requirement of Article 3.4.
15. In this regard, while Japan does not take a position as to the facts of the case, if MIICEN
engaged in a selective examination, and did not examine or provide a satisfactory explanation of
certain factors and indices, it would have failed to undertake the examination required by Article 3.4.
In addition, if there were cost factors that impacted profits, the investigating authority should have
explained how it considered such factors. Without such an explanation, it would be incorrect to
assume that the impact on profits reflects the impact of dumped imports.
16. Japan does not believe that the mere presence of factors other than the dumped imports that
explain in part certain negative trends necessarily denies the "explanatory force" of the dumped
imports for the st ate of the domestic industry. However, it appears that MIICEN did not find any
price effects or volume effects of the dumped imports other than that the domestic industry's profits
were lower than what it would have earned without the dumped products. Ther e should be some
explanation as to why the changes in production, sales, and market share reflect the impact of
dumped imports when there appears to be no price or volume effect of dumped imports other than
the impact on profits.
V. ARTICLE 3.5 - CAUSAL LINK
17. In Japan's view, an investigating authority's consideration of other factors in the price effects
analysis under Article 3.2 does not duplicate, but rather contributes to, the non-attribution analysis
under the third sentence of Article 3.5. In fact , Article 3.5 requires that an investigating authority
"demonstrate[] that the dumped imports are, through the effects of dumping, as set forth in
[Articles 3.2 and 3.4], causing injury within the meaning of this Agreement".6 Therefore, factors that
do not affect prices, and that accordingly are not considered within the price effect analysis, cannot
constitute "factors attributable to dumped imports" by definition.
18. If MIICEN had obtained information regarding domestic com petitors of the "domestic
industry", the Panel should carefully consider whether there were any effects caused by the above

6 Emphasis added.

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mentioned domestic competitors as alleged that should not have been attributed to the dumped
imports.
19. In addition, although Tunisia does not appear to have raised the issue in this dispute, Japan
has questions as to whether the determination of the scope of the "domestic industry" was
appropriate. In the present case, had the MIICEN included all domestic producers within the scope
of the "domestic industry", the competition among all domestic producers would have been
appropriately considered within the injury determination, especially when considering the price
effects of dumped imports under Article 3.2.
VI. FINDING OF DUMPING UND ER ARTICLES 2.1 AND 2.4 OF THE
ANTI-DUMPING AGREEMENT
20. In order to determine a comparable price and to undertake a fair comparison in accordance
with Articles 2.1 and 2.4, it is necessary to take into account the status of competition within the
relevant market. Although Japan does not take a position on the specific factual allegations made
by the parties, Japan respectfully requests the Panel to examine carefully whether the calculation of
the normal value by the MIICEN was indeed proper. If there is no explanation about how the
authority compared several models taking into account market practices, seasonality and other
factors that affect competition in the market, the lack of an explanation may suggest that the
comparison is arbitrary.

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ANNEX C-4
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION *
1. The European Union is exercising its right to participate as a third party in this dispute owing
to its systemic interest in the proper and consistent interpretation and application of the covered
agreements and other relevant documents, and the multilateral nature of the rights and obligations
contained therein.
2. With regard to the construction of normal value, Tunisia has detected two erro rs that the
Moroccan authority, MIICEN, made in calculating the profit margin of Tunisian producers.
3. The European Union understood the first error raised by Tunisia to be the fact that MIICEN
included in the profit margin of producers certain costs and expenses that do not count as profits,
such as taxes, duties, transport costs and the cost of credit. According to Articles 2 and 2.2.2 of the
Anti-Dumping Agreement, the cost of production may only be increased by reasonable amounts for
administrative, selling and general costs, as well as profits, based, to the extent possible, on actual
data.
4. In the view of the European Union, the Panel is not prevented from considering the issue of
interpretation of the Anti-Dumping Agreement raised by Tunisia due to the mere fact that this issue
was not previously submitted to the investigating authority. Article 17 of the Anti -Dumping
Agreement does not require that matters referred to the Dispute Settlement Body first be submitted
to the investigating authorities.
5. An erroneous calculation of the reasonable profit margin could be considered by a Panel as an
improper establishment of the facts by the investigating authority if the claim brought to the Panel
concerns a calculation error that results from the facts established in the course of the investigation
or assessment. In this case, the claim must be examined by the Panel on the basis of "the facts
made available in accordance with appropriate domestic procedures to the authorities of the
importing Member" as r equired by Article 17.5(ii) of the Anti -Dumping Agreement, and in relation
to the test under Article 17.6(i). Under this standard, in its assessment of the facts of the case, the
Panel shall determine whether the authorities' establishment of the facts was proper and whether
their evaluation of those facts was unbiased and objective. If the establishment of the facts was
proper and the evaluation was unbiased and objective, even if the Panel may have reached a
different conclusion, the evaluation shall not be overturned. The European Union shares the view
expressed by the United States regarding this measure1.
6. However, if the allegation concerning the wrong calculation of the profit margin of the
producers is not based on an error in the establishment of the facts or their evaluation, but rather
on an error of interpretation of the provisions of the Anti -Dumping Agreement applicable to the
calculation of that margin, the Panel must examine this claim under Article 17.6(ii).
7. With respect to the second error in the calculation of the profit margin of the producers alleged
by Tunisia, the matter brought to the Panel appears to be of a completely different nature.
8. The European Union considers the decision by MIICEN to exclude sales of numbered or
watermarked exercise books from the calculation of the profit margin of the producers can be
justified due to the fact that these are product models or types of product whose export is strictly
prohibited and is therefore not sold on the market of the importing c ountry. In this case, the
exclusion of sales of this model from the calculation of normal value appears to be in conformity
with the obligation under Article 2.4 of the Anti -Dumping Agreement to ensure a fair comparison
between normal value and export price. Therefore, no breach of Articles 2.1, 2.2 and 2.2.2 can be
found to exist as a result of this exclusion.

* French original.
1 United States' third-party written submission, para. 6.

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9. Tunisia's claim regarding determination of the normal value of SOTEFI raises the question
of whether "distribution cost" is part of the "administrative and selling expenses" or "general costs"
which, under Article 2.2 of the Anti-Dumping Agreement, may be added to the " production cost" to
reconstruct the normal value of the product concerned in the country of origin. In the view of the
European Union, this is a matter of interpretation of Article 2.2, which may be considered by the
Panel, even if it was not raised during the investigation.
10. Article 2.2 of the Anti-Dumping Agreement does not make an explicit reference to distribution
costs. The ordinary meaning of the terms "production cost" and "profits" does not appear a priori to
cover costs associated with the distribution of products. However, doubts about what is covered by
the ordinary meaning of the terms "administrative and selling expens es" and/or "general costs"
could be justified.
11. Article 2.2 of the Anti -Dumping Agreement must therefore be interpreted in its context,
including the provisions of Article 2.4 in particular.
12. According to Article 2.4 of the Anti -Dumping Agreement, th e fair comparison between the
export price and the normal value, which the investigating authority must make, must be "made at
the same level of trade, normally at the ex-factory level".
13. If the fair comparison between the export price and the normal va lue is "normally" made at
the "ex-factory level", it is reasonable to conclude that distribution costs, in particular the costs of
transporting products to customers within the country of origin, should normally not be included in
the constructed normal value in accordance with Article 2.2 of the Anti-Dumping Agreement.
14. Nevertheless, the last sentence of Article 2.4 should also be taken into account, whereby the
authorities "shall indicate to the parties in question what information is necessary to ensu re a fair
comparison and shall not impose an unreasonable burden of proof on those parties". This provision
would suggest that it is incumbent on the interested parties to provide the authorities with the
necessary information to identify the domestic tran sport costs of the products concerned by the
investigation, with a view to enabling a fair comparison between the export price and the normal
value.
15. With respect to the fair comparison stipulated under Article 2.4 of the Anti -Dumping
Agreement, the European Union considers that a comparison methodology that results in collection
from importers of anti-dumping duties in excess of the amount of the exporter's or foreign producer's
margin of dumping cannot lead to a "fair comparison" within the meaning of the first sentence of
Article 2.4, even if this is due to an error in the mathematical formula. When the investigating
authority uses the so-called weighted-average comparison methodology, it must first establish the
differences observed between export unit prices and normal values for each model (which will then
be weighted). These intermediate results are not "margins of dumping". As a result, they are
correctly expressed in monetary terms, not as percentages, as MIICEN appears to have done.
Expressing these intermediate results as percentages would amount to basing the calculations not
on absolute values, but on relative values and thus could distort the calculations.
16. On the use of licences, the European Union considers that the key question is the fa ct of
whether the exporters did indeed provide, in the course of the investigation , sufficiently concrete
elements of information to demonstrate that the use of licences actually affected price comparability.
It is obviously not sufficient for the complaining party to itself demonstrate this fact to the Panel.
17. With regard to determination of injury, the European Union submits that Article 3.2 of the
Anti-Dumping Agreement enumerates three specific effects that the imported volumes may have on
prices in the importing country, namely: significant price undercutting; significant price depression
or significant price suppression.
18. The European Union considers that the relationship between these three types of price effects
is as follows:
19. First, these three types of effects are alternatives. The concepts of price undercutting, price
depression and price suppression describe three distinct forms of price development that may be
caused by imports. The specificity of each of these three forms of price effects must be recognized.

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20. Second, these three types of price effects are not completely set in stone as concepts; nor are
they unrelated. These three types of effects may be present at the same time or may occur
sequentially over time in a given market. The application of Article 3.2 of the Anti -Dumping
Agreement must be balanced and must accurately reflect the economic reality.
21. Price undercutting refers to a direct comparison between the prices of the imported products
and the prices of the domestic industry products at issue. Such a comparison may well make it
necessary to adjust observed price data, to ensure comparability. However, it is not consistent with
the very idea of a price comparison to fully rebuild the price of domestic products. Rather,
establishment of price undercutting should be based, in principle, on the actual prices observed in
the markets.
22. Examination of the state of the domestic industry in terms of Article 3.4 of the Anti-Dumping
Agreement does not require an analysis of wh ether lack of profitability is due to causes other than
import of dumped products.
23. The European Union considers that the fact that certain factors or indicators relating to the
domestic industry show positive developments during the period concerned do es not preclude a
determination that dumped imports may have caused injury to that industry within the meaning of
Article 3 of the Anti-dumping Agreement.
24. However, the requirement to conduct an objective examination requires, in such a situation,
that the investigating authority convincingly explain its examination of the various factors and
indicators. The European Union does not, however, consider that Article 3 of the Anti -Dumping
Agreement stipulates that the explanation provided by that authority in such a situation must be
particularly in-depth.
25. Lastly, regarding the initiation of the investigation, the European Union considers that the
standard of review under Article 5.2 (reasonably available elements) is different from that under
Article 5.3 (sufficiency of evidence). Both obligations, nevertheless, are incumbent on the authorities
of the Member c oncerned. It is up to the investigating authority to verify whether the petition on
which it initiates the investigation satisfies the requirements of Article 5.2. Should an investigating
authority initiate an investigation on the basis of a petition that does not meet the criteria of
Article 5.2, this will constitute a breach of Articles 5.1 and 5.2 (as well as Article 1 and footnote 1)
of the Anti-Dumping Agreement.
26. The review under Article 5.3 of the Anti-Dumping Agreement establishes whether an unbiased
and objective authority, taking into account the accuracy and adequacy of the facts before it, could
properly have determined that there was sufficient evidence to justify the initiation of an anti -
dumping investigation.
27. The evidence referred to in Article 5.3 are those referred to in the chapeau of Article 5.2, that
is, evidence of the existence of (a) dumping; (b) injury; and (c) a causal link between the dumped
imports and the alleged injury. The evidence relating to the three elements necessary to impose an
anti-dumping measure may be inferred in Article 5.3 from Article 5.2, by considering the contextual
relevance of Articles 2 and 3 of the Anti-Dumping Agreement.
28. Article 5.3 of the Anti -Dumping Agreement requires an investigating authority to determine
whether the initiation of an investigation is justified in light of the evidence that it can objectively
possess. This obligation includes an examination of the petition and whether it meets the
requirements of Article 5.2 or Article 5.4 of t he Anti -Dumping Agreement, but not only. The
obligation to determine whether the initiation of an investigation is warranted also includes the
possibility for an investigating authority to rely on other necessary evidence that the authority would
have to decide on the initiation of an investigation. Article 5.3 does not rule on how to communicate
the results of this analysis to the interested parties. The question of how much detail and at what
stage of the proceedings the investigating authority must provide the underlying facts and analyses
in its decision to initiate the investigation is therefore governed by the general rules on the rights of
defence of interested parties, and in particular Article 6 of the Anti-Dumping Agreement.
29. With regard to the sufficiency of evidence in this dispute, the European Union notes that,
where the product concerned consists of a multitude of models, other panels have previously

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determined that an isolated piece of evidence, concerning an insignificant sub-category of t he
subject product or prices, without any effort by the investigating authority to establish its
representativeness, is insufficient to justify the initiation of an investigation. Such jurisprudence may
usefully guide the Panel in its consideration of this dispute.