MOROCCO – ANTI-DUMPING MEASURES ON CERTAIN HOT-ROLLED STEEL FROM TURKEY
Document: AB-2018-11 Report of the Appellate Body Addendum
Date: 10 December 2019
Document codes: WT/DS513/AB/R/Add.1; WT/DS513/AB/R.
Complainant: Turkey
Respondent: Morocco
Third parties: China, Egypt, EU, India, Japan, Kazakhstan, South Korea, Oman, Russia, Singapore, UAE, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. 5.10, 6.8, Annex II, 6.9, 3.1, 3.4  Anti-dumpingArt. VI:6  GATT 1994Art. 6.5, 6.5.1, 18.1  Anti-dumpingArt. I:1, X:3(a), XI:1  GATT 1994Art. 3.2, 3.3  Import LicensingArt. VI  GATT 1994Art. 1, 18  Anti-dumping

MOROCCO – ANTI-DUMPING MEASURES ON CERTAIN HOT-ROLLED STEEL FROM TURKEY

AB-2018-11
Report of the Appellate Body
Addendum
This Addendum contains Annexes A to C to the Report of the Appellate Body circulated as document

The Notice of Appeal and the executive summaries of written submissions contained in this
Addendum are attached as they were received from the participants and third participants. The
content has not been revised or edited by the Appellate Body, except that paragraph and footnote
numbers that did not start at 1 in the original may have been renumbered to do so, and the text
may have been formatted in order to adhere to WTO style. The executive summaries do not serve
as substitutes for the submissions of the participants and third participants in the Appellate Body's
examination of the appeal.

LIST OF ANNEXES
ANNEX A
NOTICE OF APPEAL
Contents Page
Annex A-1 Morocco's Notice of Appeal 4
ANNEX B
ARGUMENTS OF THE PARTICIPANTS
Contents Page
Annex B-1 Executive summary of Morocco's appellant's submission 9
Annex B-2 Executive summary of Turkey's appellee's submission 13
ANNEX C
ARGUMENTS OF THE THIRD PARTICIPANTS
Contents Page
Annex C-1 Executive summary of the European Union's third participant's submission 21
Annex C-2 Executive summary of Japan's third participant's submission 22
Annex C-3 Executive summary of the United States' third participant's submission 23

ANNEX A
NOTICE OF APPEAL
Contents Page
Annex A-1 Morocco's Notice of Appeal 4

ANNEX A-1
MOROCCO'S NOTICE OF APPEAL
1. Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review
(WT/AB/WP/6, 16 August 2010) ("Working Procedures"), Morocco hereby notifies the Dispute
Settlement Body ("DSB") of its decision to appeal certain issues of law and legal interpretations in
the Panel Report i n Morocco — Anti-Dumping Measures on Certain Hot -Rolled Steel from Turkey
(WT/DS513/R) ("Panel Report").
2. Pursuant to Rules 21 of the Working Procedures, Morocco files this Notice of Appeal together
with its Appellant Submission with the Appellate Body Secretariat.
3. Pursuant to Rule 20(2)(d)(iii) of the Working Procedures, this Notice of Appeal includes an
indicative list of the paragraphs of the Panel Report containing the alleged errors, without prejudice
to Morocco's ability to rely on other paragraphs of the Panel Report in its appeal.
4. Morocco seeks review by the Appellate Body of the Panel's findings regarding its terms of
reference. In particular, the Panel erred in finding that Turkey's claims under Articles 3.1 and 3.4 of
the Anti-Dumping Agreement fell within its terms of reference.1 Accordingly, Morocco requests that
the Appellate Body reverse the Panel's findings in, inter alia, paragraphs 7.27-7.29 and 7.66, and
find that Turkey's claims under Articles 3.1 and 3.4 were not within the Panel's terms of reference.
Morocco additionally requests the Appellate Body to reverse all of the Panel's substantive findings
under Articles 3.1 and 3.4 of the Anti -Dumping Agreement, including, inter alia , the findings in
paragraphs 7.166, 7.175, 7.191, 7.198, 7.207, 7.218, 7.219, 7.222, 7.235, 7.245, 7.250, 7.254,
7.262, 7.274, 7.277, 7.278, 7.283, 7.285, 7.287, 7.288, 7.289, and 8.3 d-f.
5. Morocco seeks review by the Appellate Body of the Panel's findings under Article 6.8 of the
Anti-Dumping Agreement. The Panel erre d in the interpretation and application of Article 6.8, and
also failed to make an objective assessment of the matter, including an objective assessment of the
facts of the case, under Article 11 of the DSU. The Panel's errors include, inter alia:
• finding that the MDCCE had not made an affirmative determination of non-cooperation in
the final determination.2 The Panel also acted inconsistently with Article 11 of the DSU in
reaching its finding;
• finding that the MDCCE was required to "engage meaningfully" wi th the producers and
that the MDCCE failed to do so;3
• finding that the MDCCE could not have reasonably applied facts available as a result of the
MDCCE's inability to verify export sales information at third-party traders;4
• finding that the MDCCE did not have a proper basis to determine that the two producers
had themselves failed to report the export sales;5 and,
• finding that MDCCE could not reject and replace all the sales information that the
producers had reported.6

  This document, dated 23 November 2018, was circulated to Members as document WT/DS513/5.

1 See, for example, Panel Report, para. 7.29.
2 See, for example, Panel Report, para. 7.91.
3 See, for example, Panel Report, paras. 7.92, 7.93, 7.99, and 7.101.
4 See, For example, Panel Report, paras. 7.94-7.95.
5 See, for example, Panel Report, paras. 7.95, 7.97, 7.99, 7.100, 7.101, and 7.102.
6 See, for example, Panel Report, para. 7.103.

6. Morocco also seeks review by the Appellate Body of the Panel's treatment of Exhibit MAR-11
(BCI) in the context of the Panel 's assessment of Turkey 's claim under Article 6.8 o f the
Anti-Dumping Agreement. The Panel 's treatment of MAR -11 is not consistent with the obligation
under Article 11 of the DSU to make an objective assessment of the matter, including an objective
assessment of the facts of the case.7
7. As a result of the errors indicated in paragraphs 5 and 6 above, Morocco requests that the
Appellate Body reverse the Panel 's findings, inter alia, in paragraphs 7.92, 7.93, 7.94, 7.95, 7.97,
7.99, 7.100, 7.101, 7.102, 7.103, 7.104, 7.107, and 8.3 b., that the MDCCE 's recourse to facts
available in respect of the producers' alleged failure to report the entirety of their export sales was
inconsistent with Article 6.8.
8. Morocco seeks review by the Appellate Body of the Panel 's findings under Article 3.1 of the
Anti-Dumping Agreement. The Panel erred in the interpretation and application of Article 3.1, and
also failed to make an objective assessment of the matter under Article 11 of the DSU. The Panel's
errors include:
• finding that Article 3.1 can be violated independently when an erroneous act or omission,
such as an erroneous finding that the domestic industry in question is unestablished, taints
the overall injury analysis;8
• finding that it need not rule on whether the Anti -Dumping Agreement requires an
investigating authority to determine that the domestic industry is unestablished in the
context of making a determination that the establishm ent of that industry is materially
retarded;9
• undertaking an assessment and making findings under Article 3.1 in the abstract without
regard to whether an obligation to determine "unestablishment" exists or the contours of
that obligation;10
• finding that th e MDCCE did not assess, based on positive evidence and an objective
examination, whether the domestic industry was established;11
• finding that the MDCCE did not properly examine the question of the domestic industry's
establishment;12
• finding that the MDCCE acted inconsistently with Article 3.1 of the Anti -Dumping
Agreement in determining that the domestic industry was unestablished;13 and
• additionally, the Panel acted inconsistently with Article 11 of the DSU in finding that the
MDCCE's analysis of "establishment" violated the Anti-Dumping Agreement without finding
that the Anti -Dumping Agreement requires an investigating authority to determine that
the domestic industry is "unestablished". 14 In reaching this finding, the Panel failed to
make an objective assessment of the matter, including an objective assessment of the
applicability of and conformity with the relevant covered agreements.
9. Based on the above, Morocco requests that the Appellate Body reverse the Panel's findings in,
inter alia, footnote 213 to paragraph 7.148 and paragraphs 7.148, 7.151, 7.166, 7.175, 7.191,
7.198, 7.207, 7.218, 7.219, and 8.3 d. of the Panel Report. Morocco also requests that the Appellate
Body find that the Panel acted inconsistently with its duty to conduct an objective assessment of the
matter under Article 11 of the DSU.

7 See, for example, Panel Report, para. 7.101.
8 See, for example, Panel Report, paras. 7.148 and 7.151.
9 See, for example, Panel Report, fn 213 to para. 7.148.
10 See, for example, Panel Report, paras. 7.151, 7.166, 7.175, 7.191, 7.198, 7.207, 7.218, 7.219,
and 8.3 d.
11 See, for example, Panel Report, para. 7.219.
12 See, for example, Panel Report, para. 7.219.
13 See, for example, Panel Report, paras. 7.166, 7.175, 7.191, 7.198, 7.207, 7.218, 7.219, and 8.3 d.
14 See, for example, Panel Report, fn. 213 to para. 7.148.

10. Morocco seeks review by the Appellate Body of the Panel's findings under Articles 3.1 and 3.4
of the Anti -Dumping Agreement with respect to "material retardation of the establishment of the
domestic industry". The Panel's finding regarding the MDCCE's decision to conduct the injury analysis
in the form of "material retardation of the establishment of the domestic industry" is entirely
premised on its finding under Article 3.1 regarding "unest ablishment".15 Accordingly, as a
consequence of reversing the Panel's finding under 3.1 regarding the finding of "unestablishment"16,
Morocco requests that the Appellate Body also reverse the Panel 's findings in, inter alia ,
paragraphs 7.222 and 8.3 e., that the MDCCE acted inconsistently with Articles 3.1 and 3.4 of the
Anti-Dumping Agreement by conducting the injury analysis in the form of "material retardation of
the establishment of the domestic industry".
11. Morocco seeks review by the Appellate Body of the Panel's findings under Articles 3.1 and 3.4
of the Anti-Dumping Agreement with regard to its assessment of the captive market. The Panel erred
in the interpretation and application of Articles 3.1 and 3.4. The Panel's errors include, inter alia:
• finding that, in failing to evaluate each of the two parts that made up the hot-rolled steel
domestic industry in Morocco, the MDCCE failed to even -handedly evaluate the domestic
industry as a whole, and therefore failed to meet the requirement of objectivity set out in
Article 3.1 of the Anti-Dumping Agreement;17
• finding that the requirement of objectivity in Article 3.1 applies to the MDCCE's evaluation
of each injury factor that formed part of its injury analysis, and therefore required the
MDCCE to evaluate data pertaining to the captive market in its evaluation of each of those
injury factors;18
• finding that MDCCE's conclusion that captive sales do not compete directly with imports
did not serve as a satisfactory explanation based on which the MDCCE could exclude the
captive market from its injury analysis;19 and,
• finding that the MDCCE acted inconsistently with Articles 3.1 and 3.4 of the Anti-Dumping
Agreement in disregarding the captive market in its injury analysis.20
12. Accordingly, Morocco requests that the Appell ate Body reverse the Panel 's findings in,
inter alia, paragraphs 7.273, 7.274, 7.277, 7.278, 7.289 b., and 8.3 f(ii) of the Panel Report.
13. Morocco also seeks review by the Appellate Body of the Panel's interpretation and application
of Articles 3.1 and 3.4 of the Anti -Dumping Agreement with regard to its assessment of the
McLellan Report. The Panel erred in its interpretation and application of Articles 3.1 and 3.4. The
Panel's errors include, inter alia:
• faulting the MDCCE for relying on the McLellan report because some of the projections in
the report did not turn out to be entirely accurate;21
• finding that the MDCCE did not base its injury determination on an objective examination22
because it dismissed the significance of the inaccuracies in the Business P lan without
further investigating the impact of those inaccuracies on Maghreb Steel 's actual and
projected performance levels based on explanations that were not reasoned and
adequate;23 and,

15 See, for example, Panel Report, para. 7.222 and 8.3 e.
16 See, for example, Panel Report, paras. 7.166, 7.175, 7.191, 7.198, 7.207, 7.218, 7.219, and 8.3 d.
17 See, for example, Panel Report, para. 7.274.
18 See, for example, Panel Report, para. 7.274.
19 See, for example, Panel Report, para. 7.277.
20 See, for example, Panel Report, paras. 7.278, 7.289 b., and 8.3 f(ii).
21 See, for example, Panel Report, paras. 7.283, 7.285, 7.287, and 7.288.
22 See, for example, Panel Report, para. 7.289 c.
23 See, for example, Panel Report, paras. 7.283, 7.285, 7.287, 7.288, 7.289 c., 8.3 f.(iii).

• finding that that the MDCCE's reliance on the McLellan Report was improper, and that the
MDCCE's overall injury analysis, which was based on that report, was inconsistent with
Articles 3.1 and 3.4 of the Anti-Dumping Agreement.24
14. Accordingly, Morocco requests that the Appellate Body reverse the Panel 's findings in,
inter alia, paragraphs 7.283, 7.285, 7.287, 7.288, 7.289 c., and 8.3 f(iii) of the Panel Report.

ANNEX B
ARGUMENTS OF THE PARTICIPANTS
Contents Page
Annex B-1 Executive summary of Morocco's appellant's submission 9
Annex B-2 Executive summary of Turkey's appellee's submission 13

ANNEX B-1
EXECUTIVE SUMMARY OF MOROCCO'S APPELLANT'S SUBMISSION1
1. Morocco appeals the Panel Report in .2 The Panel made serious errors of law and legal interpretation, and failed to make
an objective assessment of the matter, in finding that Morocco 's anti-dumping determination is
inconsistent with the Agreement on the Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994 ("Anti-Dumping Agreement").
A. THE PANEL ERRED IN ITS INTERPRETATION AND APPLICATION OF ARTICLE 4.4 OF
THE DSU
2. The Panel erred in finding that Turkey's claims under Articles 3.1 and 3.4 of the Anti-Dumping
Agreement regarding "establishment" and "retardation" fell within its terms of reference. The Panel
also erred in finding that Turkey's argument regarding the injury factors under Article 3.4 fell within
its terms of reference. Turkey 's claims under Articles 3.1 and 3.4 regarding "establishment" and
"retardation", and the injury factors, were not subject to consultations and therefore were not
properly before the Panel.
3. The fact that Turkey took issue with the MDCCE's finding of unestablishment or determination
of retardation, or the alleged failure to address the relevant injury factors, should have been
mentioned in the consultations request in order for th e request to give an indication of the legal
basis for the complaint. This is more so considering that none of the provisions expressly mentioned
in Turkey 's consultations request refers to "establishment" or "material retardation ". Turkey 's
consultations request also does not refer to the MDCCE 's alleged failure "to assess all the relevant
injury factors ". However, Turkey only made a very generic reference to "Injury/Causation
Determination" and to four different provisions under the Anti -Dumping Agreement that contain
distinct obligations and do not refer to or provide a legal standard for establishment or retardation,
and referred to a narrative that was unrelated to the provisions listed. The mere listing of the legal
provisions, together w ith the reference to "Injury/Causation Determination " without more was
insufficient to give an indication of the legal basis of Turkey 's claims. What is more, the Panel
acknowledged that the narrative actually provided in Turkey 's consultations request was unrelated
to the claims under Articles 3.1 and 3.4. Such request does not sufficiently indicate the legal basis
of the complaint Turkey pursued in its panel request.
4. For these reasons, Morocco respectfully requests that the Appellate Body reverse the Pane l's
finding, and find that Turkey 's claims under Articles 3.1 and 3.4 were not within the Panel 's terms
of reference. Consequently, Morocco respectfully requests the Appellate Body to reverse all the
Panel's substantive findings under these provisions.
B. THE PANEL ERRED UNDER ARTICLE 6.8 OF THE ANTI -DUMPING AGREEMENT AND
ARTICLE 11 OF the DSU IN FINDING THAT THE MDCCE WAS NOT ENTITLED TO RELY
ON FACTS AVAILABLE
5. Article 6.8 of the Anti-Dumping Agreement allows the use of facts available in an anti-dumping
investigation in certain circumstances. An investigating authority may resort to the facts available
where a party: (i) refuses access to necessary information; (ii) otherwise fails to provide necessary
information within a reasonable period; or (iii) significantly impedes the investigation.3
6. In the investigation at issue, the MDCCE had to rely on facts available in calculating the
dumping margin because of a lack of cooperation by the Turkish producers, Erdemir Group and
Colakoglu, in the investigation. Du ring the investigation, the MDCCE determined that the Turkish
producers had failed to report a significant part of their export transaction to Morocco in their

1 Total number of words, 2,442.
2 Panel Report, Morocco – Hot-Rolled Steel (Turkey) ("Panel Report").
3 Panel Report, Argentina – Ceramic Tiles, para. 6.20.

questionnaire responses, which indicated a lack of cooperation.4 The two Turkish producers had thus
failed to provide necessary information within a reasonable period. On this basis, the MDCCE decided
to resort to facts available. 5 The producers' explanations regarding these sales were not sufficient
to demonstrate that they would have in fact reported all their sales.6 Therefore, the MDCCE's reliance
on facts available was consistent with Article 6.8 of the Anti-Dumping Agreement.
7. The Panel's conclusion under Article 6.8 is based primarily on its finding that the MDCCE did
not maintain its determinat ion in the final determination that the Turkish producers had failed to
report the relevant export sales. 7 The Panel 's finding is incorrect, as the MDCCE did make an
affirmative determination of non-cooperation in the final determination.8
8. The Panel also went on to criticize the MDCCE's determination on the grounds that the MDCCE
did not "engage meaningfully " with the Turkish producers. 9 In doing so, the Panel applied an
incorrect legal standard under Article 6.8. If the Panel considered that the MDCCE had not
communicated sufficiently with interested parties, it should have analyzed the MDCCE 's conduct in
light of the specific obligations under Annex II. However, the Panel provided no analysis under
Annex II. In any case, the Panel 's finding is in error as the MDCCE engaged sufficiently with the
producers on the issue of unreported sales, and substantiated its finding of the non-reported sales.
The MDCCE thoroughly looked into the issue of the unreported sales, and based its finding of non -
cooperation on objective assessment of the facts on the record. Furthermore, given the fact that the
unreported sales constituted around 50% of the reported sales and 30% of the total sales, the
MDCCE was entitled to reject all of the reported information. 10 In making its findings regarding the
MDCCE's engagement, the Panel also erred in its appreciation of Morocco 's evidence under Article
11 of the DSU. Therefore, Morocco requests the Appellate Body to reverse the Panel 's finding that
the MDCCE's recourse to facts available was inconsistent with Article 6.8.
C. THE PANEL ERRED UNDER ARTICLE 3.1 OF THE ANTI -DUMPING AGREEMENT AND
ARTICLE 11 OF THE DSU IN ITS FINDINGS REGARDING "ESTABLISHMENT"
9. Compliance with Article 3 cannot be assessed in the abstract. A panel cannot assess whether
an investigating authority has conducted an objective examination based on positive evidence
without knowing what obligation the investigating authority is required to fulfill. In order to assess
the objectivity of an assessment, a panel must first know what should be assessed, and what is the
standard for such assessment. Whether a determination is based on positive evidence necessarily
depends on the elements that need to be established under the relevant treaty provision. However,
the Panel did not identify or define the contours of the underlying obligation before conducting its
analysis under Article 3.1. On the contrary, it deliberately declined to decide whether the obligation
to make a determination of "unestablishment" existed and, as a consequence, also declined to define
the contours of such an obligation.11 As a result, it also did not decide what factors an investigating
authority should assess in its examination of establishment or whether a particular methodology is
required. In other words, the Panel did not explain what obligations, if any, exist on the investigation
authority with regard to its "establishment" analysis. As the Panel did not determine wh at the
obligations on the MDCCE were in this context, it also could not determine whether the assessment
was done objectively or was based on positive evidence.
10. Because the Panel did not identify any obligation set for the MDCCE 's analysis of
establishment, it erred in its interpretation and application of Article 3.1. For these reasons, Morocco
respectfully requests that the Appellate Body reverse the Panel 's finding that Morocco acted
inconsistently with Article 3.1 of the Anti -Dumping Agreement in determ ining that the domestic
industry was unestablished.

4 Final Determination, Exhibit TUR-11, para. 53; See also, Preliminary Determination, Exhibit TUR-6,
Table No. 4
5 Draft Final Determination, Exhibit TUR-10, para. 56.
6 Final Determination, Exhibit TUR-11, paras. 60-61.
7 Panel Report, para. 7.91.
9 Panel Report, para. 7.92.
10 See, Panel Report, US – Steel Plate, paras. 7.60-7.62.

11. The Panel also erred under Article 11 of the DSU in finding that the MDCCE 's analysis of
"establishment" violated the Anti-Dumping Agreement even though the Panel did not find that the
Anti-Dumping Agreement requires an investigating authority to determine that the domestic industry
is "unestablished". The Panel recognized that the parties disagreed as to whether there exists such
an obligation, but decided that it did not need to address that question. 12 The Panel was under an
obligation to assess whether or not there exists an obligation in Article 3.1 of the Anti -Dumping
Agreement for an investigating authority to determine that the domestic industry is not established.
The Panel could not have examined the consistency with Article 3.1 without first having resolved
this issue of legal interpretation. Morocco notes that there is nothing in Article 3.1 that suggests that
an investigating authority is required to determine whether the domestic industry is "established" in
order to rely on the concept of material retardation. Moreover, Turkey's claim that an investigating
authority is required to determine that t he industry is unestablished was not even based on
Article 3.1. In finding that it need not address this question, the Panel acted inconsistently with its
obligation to make an objective assessment of the matter under Article 11 of the DSU.
12. As a consequenc e of reversing the Panel 's finding under 3.1 regarding "unestablishment",
Morocco requests that the Appellate Body also reverse the Panel's finding that the MDCCE improperly
proceeded to conduct its injury analysis in the form of material retardation and t hus acted
inconsistently with Articles 3.1 and 3.4 of the Anti-Dumping Agreement.
D. THE PANEL ERRED IN FINDING THAT THE MDCCE FAILED TO COMPLY WITH
ARTICLES 3.1 AND 3.4 OF THE ANTI -DUMPING AGREEMENT WITH RESPECT TO THE
CAPTIVE MARKET
13. The Panel erroneously found that an investigating authority must separately examine and
discuss merchant and captive markets for each of the factors listed in Article 3.4 in order to comply
with Article 3.1 requirement of an "objective examination ".13 Neither the text of Anti -Dumping
Agreement nor prior Appellate Body statements support the Panel's finding.
14. Article 3.1 requires "an objective examination" that is "based on positive evidence". Article 3.4
lists numerous "economic factors and indices having a bearing on the state o f the industry". This
includes factors that either do not exist within the captive market or are irrelevant within the context
of the captive market. The Panel 's interpretation is a mischaracterization of the Appellate Body 's
previous findings. The Appellate Body has found that, to be consistent with their obligations under
Article 3.4, investigating authorities must address all the factors listed thereunder. 14 However, the
Appellate Body has not found that an investigating authority must separately address each factor as
to the captive and merchant markets.
15. MDCCE's actions are supported by the Appellate Body 's statement that "investigating
authorities must determine, objectively, and on the basis of positive evidence, the importance to be
attached to each potentially relevant factor and the weight to be attached to it" under Article 3.4.15
In other words, the Appellate Body found that it is up to the investigating authority to weigh the
evidence and decide the importance of each potential factor. MDCCE weighed the evidence and found
that it was appropriate to exclude the captive market from its analysis. The Panel 's interpretation
that MDCCE should have examined the captive market under each factor of Article 3.4 fails to take
into account how an investigating authority must perform its injury analysis and creates meaningless
obligations unsupported by the Agreement. For these reasons, Morocco requests the Appellate Body
reverse the Panel's finding that the MDCCE 's analysis of the captive market was inconsistent with
Articles 3.1 and 3.4.
E. THE PANEL ERRED IN ITS APPLICATION OF ARTICLE S 3.1 AND 3.4 OF THE
ANTI-DUMPING AGREEMENT IN FINDING THAT THE MDCCE 'S RELIANCE ON THE
MCLELLAN REPORT WAS IMPROPER
16. To make its assessment of material retardation, the MDCCE compared the projections in the
business plan prepared by Maghreb Steel to its actual performance. 16 The business plan had been

13 See Panel Report, para. 7.274.
14 Appellate Body Report, Thailand – H-Beams, paras. 121-128.
15 Appellate Body Report, US – Hot Rolled Steel, para 197.

drawn up on the basis of a pre -feasibility report prepared by McLellan.17 Most of the projections in
the McLellan report we re accurate and it was thus a reliable basis against which to compare the
Maghreb Steel's actual performance. 18 The MDCCE, however, noted that some of the hypotheses
were imprecise, and decided to analyse these issues in the light of what had actually taken place, in
order to assess the reliability of the plan.19
17. The Panel faulted the MDCCE for relying on the McLellan report because three of the
projections in the report did not turn out to be accurate. The Panel failed to recognize that projections
by their very nature cannot be expected to always be accurate. The fact that all of the projections
in a report do not turn out to be 100% accurate is not a sufficient basis to invalidate the report,
much less to fault an investigating authority for relying on such a report. Faulting the MDCCE for
relying on the McLellan report is to subject MDCCE to an impossible standard.
18. In any case, the reasons given by the Panel with respect to each of the three inaccuracies are
also unpersuasive. The Panel acknowledged that t he MDCCE properly recognized that there were
certain shortcoming in the McLellan report and addressed the inaccuracies. 20 Importantly, the
MDCCE did not simply accept the projections without more, but rather assessed them in light of
what actually happened and analysed their appropriateness based on the facts before it.21 Therefore,
contrary to the Panel 's finding, the MDCCE reached its conclusion on the appropriateness of the
McLellan report based on an unbiased and objective assessment of the facts.
19. The MDCCE properly considered all the differences in the projections and the actual figures.
The MDCCE reached a reasonable conclusion that the differences did not render the business plan
unreliable. For these reasons, the Panel erred in finding that the MDCCE i mproperly relied on the
McLellan report. Therefore, Morocco respectfully requests the Appellate Body to reverse the Panel's
finding that the MDCCE dismissed the significance of the inaccuracies in the Business Plan without
further investigating the impact of those inaccuracies on Maghreb Steel 's actual and projected
performance levels and based on explanations that were not reasoned and adequate. Accordingly,
Morocco respectfully requests the Appellate Body to reverse the Panel 's finding that the MDCCE 's
overall injury analysis, which was based on that report, is inconsistent with Articles 3.1 and 3.4 of
the Anti-Dumping Agreement.

18 Final Determination, Exhibit TUR-11, paras. 155-158.

ANNEX B-2
EXECUTIVE SUMMARY OF TURKEY'S APPELLEE'S SUBMISSION1
1 MOROCCO'S APPEAL OF THE PANEL'S FINDING OF INCONSISTENCY WITH ARTICLE 6.8
OF THE ANTI-DUMPING AGREEMENT
In the underlying investigation, the Moroccan investigating authority (MDCCE) alleged that
there was a shortfall of 10'200 metric tonnes in the reporting by the two investigated Turkish
exporters, Erdemir Group and Colakoglu, of their sales of the subject product to Morocco during the
period of investigation (PoI). The MDCCE derived this figure by subtracting the 18'800 metric tonnes
of sales reported by the Turkish exporters in their questionnaire responses from t he figure of
29'000 metric tonnes of sales, which the MDCCE claimed was the total volume of subject imports
during the PoI, based on Moroccan official statistics. The MDCCE, therefore, rejected all of the sales
data submitted by the two Turkish exporters a nd determined the dumping margins for these
companies by relying solely on "facts available".2
The Panel stated that "[i]n order to resort to facts available as a result of a failure by the
producers to report certain export sales, the MDCCE was required to determine affirmatively that
these producers had in fact failed to report the relevant export sales".3 The MDCCE did not, however,
make a sufficient determination that the exporters had, in fact, failed to provide information. The
Panel also found fault with the MDCCE's "failure to engage meaningfully with the producers on this
issue", in order to resolve whether the exporters had actually failed to report any sales. 4 The Panel
thus upheld Turkey's claim "that the MDCCE's recourse to facts available in respect of the producers'
alleged failure to report the entirety of their export sales [was] inconsistent with Article 6.8".5
Morocco appealed the Panel's findings on several grounds. As explained below, all of these
grounds lack merit, and should be dismissed.
With respect to ground 1, Morocco disagrees with the Panel's view that " [t]he MDCCE … did
not affirmatively determine that the producers had in fact failed to report particular export sales". 6
Morocco presents this ground of appeal as "a matter of leg al characterization [of the MDCCE's
determination] that falls within the scope of appellate review under Article 17.6 of the DSU".7 In the
alternative, "Morocco considers that the Panel did not conduct an objective assessment of the final
determination", and, therefore, "acted inconsistently with its obligations under Article 11 of the
DSU".8
Morocco improperly describes this ground as an error in the legal characterization of the
MDCCE's Final Determination. This ground of appeal is clearly directed at the Panel's assessment of
the content of the Final Determination, i.e. the Panel's appreciation of the record facts. Such
assessments are factual in their nature, and may not be reviewed on any basis except under
Article 11 of the DSU.9
Furthermore, regarding the Panel's factual assessment of the Final Determination, Morocco has
not pointed to any instance where the Panel acted inconsistently with Article 11 of the DSU.
However, even assuming that Morocco's ground of appeal concerns the legal characterization
of the MDCCE's Final Determination, Morocco has not established that the Panel made any legal
errors in its assessment of the MDCCE's findings. In finding that the MDCCE's use of facts available

1 This Executive Summary contains a total of 3,741 words (including footnotes). Turkey's appellee's
submission contains a total of 42,142 words (including footnotes).
2 Final Determination, Exhibit TUR-11, paras. 52-63.
3 Panel Report, para. 7.91.
4 Panel Report, para. 7.92.
5 Panel Report, paras. 7.104-7.107.
6 Panel Report, para. 7.91.
7 Morocco's appellant's submission, para. 65.
8 Morocco's appellant's submission, para. 66.
9 See, inter alia, Appellate Body Report, EC – Tube or Pipe Fittings, para. 177.

was not based on any affirmative finding of non-cooperation, or failure to provide information,10 the
Panel found many shortcomings and deficiencies in the MDCCE's investigation.11 The Panel's finding
of inconsistency with Article 6.8 should therefore be affirmed.
With respect to ground 2.1, Morocco considers that "[t]he Panel applied an incorrect legal
standard under Article 6.8 in requiring that there be a 'meaningful engagement' before an
investigating authority is allowed to resort to facts available". 12 However, rather than "set[ing] out
a 'meaningful engagement' requirement",13 in its assessment, the Panel addressed in a diligent and
comprehensive manner the parties' arguments concerning the MDCCE's conduct of the investigation,
and made relevant factual findings to buttress its overall finding of inconsistency with Article 6.8. In
any event, Morocco's statement that "there is no specific requirement of 'meaningful engagement'
under Article 6.8"14 is clearly contradicted by the plain wording of Article 6.8, Annex II and WTO case
law interpreting these provisions.15 Thus, Morocco's ground of appeal should be dismissed.
Morocco appeals certain additional factual findings of the Panel ( grounds 2.2-2.5), without,
however, specifying the precise legal bases for its appeal. As a preliminary matter, Turkey considers
that these grounds of appeal fail to meet the requirements of Rules 20(2)(d) and 21(2)(b) in the
Working Procedures for Appellate Review, and, therefore, should be dismissed. In the alternative,
should the Appellate Body decide otherwise, Turkey s ubmits that Morocco failed to substantiate
these grounds of appeal, by referring to specific legal errors of the Panel.
With respect to ground 2.2 , Morocco states that "the Panel erred in considering that the
MDCCE failed to engage sufficiently with the producers on the issue of unreported sales".16 Morocco,
however, omits to mention that, throughout the investigation, the MDCCE did not provide the
Turkish exporters with details of the specific sales that it considered were not reported. In these
circumstances, the Panel expressed its doubts "regarding the producers' alleged failure to report any
additional, unidentified export sales". 17 Likewise, the Panel rejected Morocco's argument that the
Turkish producers failed to report the portion of their export sal es for which the MDCCE provided
documents as an ex post explanation.18 In sum, the Panel reached a reasonable and well-grounded
factual finding and Morocco's appeal of this finding should be dismissed.
With respect to ground 2.3 , Morocco submits that the Pa nel erred in suggesting that "the
MDCCE did not have a proper basis to determine that the two producers had themselves failed to
report the export sales" as the MDCCE "thoroughly looked into the issue of the unreported sales,
and based its finding of non -cooperation on objective assessment of the facts on the record". 19
However, the Panel found that the MDCCE's investigation of the alleged discrepancy was anything
but thorough and objective.20 Given that Morocco essentially repeats its arguments made before the
Panel, Turkey respectfully requests the Appellate Body to reject Morocco's attempt to re -argue the
case.
With respect to ground 2.4, Morocco submits that the Panel erred in finding that "the MDCCE
could not have reasonably applied facts available as a result of the MDCCE's inability to verify export
sales information at third -party traders".21 While Morocco disagrees with the Panel's finding that
whether the investigated exporters reported all of their sales could have been easily verified during
the verification visits at the exporters, it has not explained why the Panel's finding was incorrect. 22
Morocco has failed to establish any error in the Panel's finding.

10 Panel Report, para. 7.91.
11 Panel Report, paras. 7.92-7.104.
12 Morocco's appellant's submission, para. 70.
13 Morocco's appellant's submission, para. 71.
14 Morocco's appellant's submission, para. 72.
15 See, inter alia , Appellate Body Report, US – Hot-Rolled Steel , paras. 82, 86 ; Panel Report,
Guatemala – Cement II, para. 8.251.
16 Morocco's appellant's submission, paras. 80 and 92.
17 Panel Report, para. 7.99.
18 Panel Report, para. 7.97.
19 Morocco's appellant's submission, paras. 84, 92.
20 Panel Report, paras. 7.97, 7.101, 7.102, footnote 153.
21 Morocco's appellant's submission, para. 92.

With respect to ground 2.5, Morocco submits that "the Panel erred in finding that the MDCCE
failed to explain why the [Turkish exporters' alleged] failure to report the sales [amounting to
10,200 MT] tainted the sales data that had been reported".23 As the Appellate Body and the panels
in US – Steel Plate and China – Broiler Products (Article 21.5 – US) have clarified, if the investigating
authority concludes that certain facts that were not reported taint the reliability of the investigated
exporter's entire data set, the authority must explain this conclusion in its determinations. 24 As
confirmed by the Panel, the MDCCE's Final Determination does not contain any such explanation. 25
In sum, Morocco failed to establish any error in this part of the Panel's analysis.
Finally, with respect to ground 3, Morocco appeals the Panel's dismissal of Exhibit MAR -11
(BCI), which, according to Morocco, listed the export sales constituting the alleged discrepancy. 26
Morocco fails to identify any legal error that would amount to a violation of Article 11 of the DSU.
Morocco merely recasts its arguments, which the Panel has already rejected, and attempts to
re-argue the case before the Appellate Body. As is well settled, the mere fact that the Panel disagreed
with Morocco's arguments and evidence is insufficient to substantiate an Article 11 claim.27
For these reasons, Turkey submits that Morocco failed to establish that the Panel erred in its
finding of inconsistency with Article 6.8. However, in the event that the Appellate Body reverses this
finding, Turkey requests the Appellate Body to complete the legal analysis with respect to its claims
under Article 6.8 and Annex II to the Anti-Dumping Agreement, and to find that the MDCCE's use of
facts available was inconsistent with these provisions.
2 MOROCCO'S APPEAL OF THE MDCCE'S ANALYSIS OF "ESTABLISHMENT" IN THE INJURY
ANALYSIS
In its analysis of material retardation, the MDCCE conducted a two -step analysis. First, it
determined whether the industry was "established". The MDCCE described this first step as
"indispensable".28 Second, the MDCCE ascertained whether that establishment was materially
retarded.29
The Panel concluded that Article 3.1 of the Anti -Dumping Agreement can be violated
independently when an erroneous finding that the domestic industry is "unestablished" ta ints the
overall injury analysis.30
Morocco appeals, both as an issue of law and an issue of "applicability" under Article 11 of the
DSU, the fact that the Panel allegedly failed to identify any obligation in Article 3 requiring the MDCCE
to conduct an analysis of "establishment".
Article 3.1 requires that "[a] determination of injury" be based on objective examination and
positive evidence. Article 3.1 applies not only to the ultimate conclusion of injury but also to each of
the necessary intermediate steps leading up to the overall finding of injury. In an injury assessment
based on "material retardation of the establishment of an industry", an authority must satisfy itself
that the determinations that (1) an industry was "unestablished" and (2) the establ ishment was
"retarded", were based on objective examination and positive evidence.
The Panel observed that the MDCCE "relied on" its analysis of "establishment" in determining
that the appropriate form of injury to be examined was material retardation of the establishment of
the domestic industry.31 Thus, the Panel correctly concluded that, once the MDCCE had relied on an

23 Morocco's appellant's submission, paras. 93-94.
24 Appellate Body Report, Mexico – Anti Dumping Measures on Rice, paras. 293 (and 289); Panel Report,
US – Steel Plate, paras. 7.60 -7.61, footnote 60; Panel Report, China – Broiler Products (Article 21.5 – US),
para. 7.343.
25 Panel Report, para. 7.103.
26 Panel Report, para. 7.101, footnote 153; Morocco's appellant's submission, paras. 97, 102.
27 Appellate Body Report, China – Rare Earths, para. 5.227.
29 Turkey's first written submission, paras. 8.6-8.9 and 9.1-9.5.
30 Panel Report, Footnote 213.
31 Panel Report, para. 7.148.

analytical step as a basis for its overall injury determination, it was required to take that step in
accordance with Article 3.1.32 The Panel did not commit legal error.
Morocco further claims, under Article 11 of the DSU, that the Panel made an error of
"applicability" by failing to ascertain whether there exists an obligation in Article 3.1 for an
investigating authority to determine whether the domestic industry is unestablished.33
The Panel assessed whether Article 3.1 applied to the MDCCE's analysis of establishment and
concluded "that Article 3.1 can be violated independently when an erroneous act or omission, such
as an erroneous find ing that the domestic industry in question is unestablished, taints the overall
injury analysis". 34 Thus, Article 3.1 is applicable to any measure that taints the overall injury
analysis. The Panel explicitly addressed the issue of applicability of Article 3.1 to the
MDCCE's analysis of "establishment".
For these reasons, Morocco's appeal should be rejected.
If, however, the Appellate Body finds that the Panel acted inconsistently with Article 11 of the
DSU, Turkey requests the Appellate Body to complete the analysis and find that Article 3.1 imposes
obligations for injury analyses in the form of material retardation. If an industry is established, there
is nothing to retard anymore. Thus, as a threshold matter, an authority must ensure that an industry
is "unestablished" before it assesses whether that establishment has been retarded.
Turkey thus requests the Appellate Body to uphold the Panel's finding that the MDCCE's
"establishment" determination was inconsistent with Article 3.1. 35 Similarly, Turkey requ ests the
Appellate Body to uphold the separate Panel's finding that the MDCCE's "establishment" analysis
was also inconsistent with Article 3.4.36
3 MOROCCO'S APPEAL REGARDING THE CAPTIVE MARKET IN THE INJURY ANALYSIS
The MDCCE excluded the captive production from its injury analysis under Article 3.4. 37 The
Panel agreed that the MDCCE should have assessed the data for the captive market in its overall
injury analysis.38 The Panel also found that the MDCCE's explanation for dismissing the significance
of the captive market was not objective. The Panel concluded that the MDCCE acted inconsistently
with Articles 3.1 and 3.4 in disregarding the captive market in its analysis.39
On appeal, Morocco raises two arguments.
First, Morocco argues that " the Panel erroneously concluded that an investigating authority
must separately examine and discuss merchant and captive markets for each of the factors listed in
Article 3.4".40 The Panel recalled the Appellate Body's guidance that Article 3.1 requires that, where
an authority undertakes an examination of one part of a domestic industry, it should, in principle,
examine, in like manner , all of the other parts that make up the industry, as well as examine the
industry as a whole.41
Morocco claims that there are several factors that may not be relevant to the analysis of the
captive market. However, even if that were case, the authority would still be required to evaluate
those factors and, if not applicable to the captive market, to say so. Accordingly, no factor may be
excluded a priori from the analysis of the captive market. Rather, the authority must satisfy itself,
on a case -by-case basis, whether each factor is relevant. For this reason, Turkey requests the

32 Panel Report, paras. 7.149 and 7.150.
33 Morocco's appellant's submission, para. 124.
34 Panel Report, para. 7.151.
35 Panel Report, paras. 7.219 and 8.3.d.
36 Panel Report, paras. 8.3.d and 8.3.e.
38 Panel Report, para. 7.273.
39 Panel Report, paras. 7.278 and 8.3(f)(ii).
40 Morocco's appellant's submission, para. 135.
41 Appellate Body Report, US – Hot-Rolled Steel, para. 204. (italics added)

Appellate Body to reject Morocco's appeal concerning the P anel's statement that the MDCCE was
required to evaluate "each injury factor that formed part of its injury analysis".
Second, Morocco criticizes the Panel's finding that the MDCCE's explanation that captive sales
needed to be excluded from the injury ana lysis because they do not compete directly with imports
was not "satisfactory".42 Morocco's appeal effectively requests the Appellate Body to reverse its own
rulings in US – Hot-Rolled Steel and in US – Cotton Yarn, where it emphasized that the fact that the
captive production is not in competition with imports is "highly pertinent" to the injury inquiry. Thus,
the Panel correctly found that the MDCCE could not properly rely on its assertion that
Maghreb Steel's captive production was not in competition with imports as a justification for
disregarding the captive production.
Turkey thus requests the Appellate Body to uphold the Panel's finding concerning the treatment
of the captive market.43
4 MOROCCO'S APPEAL REG ARDING THE ERRORS IN THE MCLELLAN REPORT IN TH E
INJURY ANALYSIS
 The MDCCE relied on the projections contained in the MCLELLAN report for purposes of the
evaluating the injury factors listed in Article 3.4. However, the MDCCE recognized that at least three
critical projections in that report were inac curate. The Panel found that the MDCCE acted
inconsistently with Articles 3.1 and 3.4 by failing to assess the relevance and consequences of those
errors.44
First, Morocco argues that the fact "[t]hat some of the projections may have turned out to be
inaccurate does not undermine the objectivity of the analysis". 45 Morocco mischaracterizes the
Panel's finding, which was that the MDCCE failed to analyze properly the impact of the inaccuracies,
and not the fact that there were inaccuracies. Morocco's argument, if accepted, would mean that
the MDCCE could use the MCLEL LAN report as a valid benchmark against which to compare the
actual performance, even if those inaccuracies had the effect of exacerbating the existence of injury.
Morocco's argument should be rejected.
 Second, Morocco criticizes the Panel's analysis of t he MDCCE's consideration of each of the
three inaccuracies in the MCLELLAN report.
Regarding the projected increase in demand, Morocco merely repeats the MDCCE's factual
findings and states that the MDCCE'S explanations were appropriate. The Panel noted t hat the
inaccuracy in the increase in demand would, "in all likelihood", lead to an overestimation in the
projections of certain factors relevant to the injury analysis, such as sales, investment decisions,
inventories among others. Morocco fails to explai n how the MDCCE considered that the inaccurate
increase in demand did not affect the projections for the relevant injury factors.
Regarding the projected sales of the downstream product, Morocco criticizes the Panel's finding
that the MDCCE should have add ressed whether the internal consumption of hot -rolled steel
remained "unaffected" notwithstanding the inaccuracy in the projected increase in sales of the
downstream product.46 The projected consumption for hot -rolled steel was used to forecast the
performance of several economic factors under Article 3.4. The question, therefore, was whether
the projection for hot-rolled steel consumption remained unaffected by the actual decrease in sales
of the downstream product even though those sales were projected to increase. As the Panel found,
the MDCCE should have assessed whether the error affected the projected hot -rolled steel
consumption.
Regarding the projected slab prices, Morocco argues that the Panel erred in finding that the
MDCCE should have investigated what impact this inaccuracy had during the period
June 2010 December 2011.47 Morocco further argues that the difference in slab prices did not affect

42 Morocco's appellant's submission, para. 149.
44 Panel Report, para. 7.288.
45 Morocco's appellant's submission, para. 165.
46 Morocco's appellant's submission, para. 169.
47 Morocco's appellant's submission, para. 173.

Maghreb Steel during 2012, after the electric plants were put into operation. However, since s teel
slab is a raw material used in the production of hot -rolled steel, the inaccurate projected steel slab
prices "must have had an impact on business decisions, such as investment and production capacity,
among others"48, during at least the first 19 months of the period of investigation.
Turkey requests the Appellate Body to uphold the Panel's findings with respect to the errors
identified in the MCLELLAN report.
5 MOROCCO'S APPEAL CONCERNING TURKEY'S CONSULTATIONS REQUEST
 Morocco's appeal concerns the al leged insufficiency of the "legal basis of the complaint" in
Turkey's consultations request. Morocco argues that Turkey was required to state in its consultations
request that Turkey took issue with the specific MDCCE's analyses of "establishment" and
"retardation", as well as the failure to analyze six economic factors listed in Article 3.4 of the
Anti-Dumping Agreement.
Article 4.4 of the DSU contains the requirements of a consultations request. The "legal basis of
the complaint" refers to "the claims per taining to a specific provision of a covered agreement
containing the obligation alleged to be violated". 49 Moreover, the requirement in Article 4.4 of the
DSU is to "indicate" the legal basis in the consultations request. Unlike Article 6.2, Article 4.4 do es
not require a "brief summary" of the legal basis in a consultations request.
In its consultations request, Turkey "indicated" the legal basis of the complaint in its
consultations request: i.e. Articles 3.1, 3.2, 3.4 and 3.5 of the Anti -Dumping Agreement. Each of
these provisions contains a single obligation. Moreover, Turkey's consultations request clearly took
issue with the MDCCE's own and only injury determination.
In its appeal, Morocco also conflates the legal standards applicable to Articles 4.4 and 6.2 of
the DSU. Specifically, Morocco seeks to extrapolate the legal standard applicable to the "brief
summary" in Article 6.2 to Article 4.4 of the DSU, even though the latter does not contain such a
requirement.
Accordingly, Turkey requests the Appellate Body to uphold the Panel's finding that Articles 3.1
and 3.4 were properly within its terms of reference.50
6 REQUEST FOR FINDINGS AND RULINGS
Turkey requests that the Appellate Body decline Morocco's requests to reverse the Panel's
findings of inconsistency with Articles 3.1, 3.4 and 6.8 of the Anti-Dumping Agreement. In addition,
Turkey requests the Appellate Body to uphold the Panel's finding that Articles 3.1 and 3.4 were
properly within its terms of reference as Turkey satisfied the requirements of Article 4.4 of the DSU
regarding its consultations request.
7 REQUEST FOR A SUGGESTION FOR IMPLEMENTATION
Turkey requests the Appellate Body to suggest that Morocco terminate the anti-dumping duty
at issue.
Regarding the Panel's finding under Article 5.10 of the Anti -Dumping Agreement, Morocco
considers that a violation of this provision "would have no real implications for the anti -dumping
measure in question". 51 Furthermore, the multiple findings of violation of Articles 3.1, 3.4, 6.8
and 6.9 require, for implementation, the termination of the measure at issue.
A suggestion by the Appellate Body would help avoid potential Article 21.5 proceedings. This
suggestion is necessary because the Appellate Body report would likely be circulated in the course

48 Panel Report, para. 7.286.
49 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.80, referring to A ppellate Body
Report, EC – Selected Customs Matters, para. 130.
50 Panel Report, para. 7.29.
51 Morocco's first written submission, para. 58.

of the sunset review investigation. A suggestion would timely assist the parties in furthering the
objective of a positive and prompt solution to the dispute.
Turkey requests the Appellate Body to suggest to Morocco that it terminate the anti -dumping
duty at issue.

ANNEX C
ARGUMENTS OF THE THIRD PARTICIPANTS
Contents Page
Annex C-1 Executive summary of the European Union's third participant's submission 21
Annex C-2 Executive summary of Japan's third participant's submission 22
Annex C-3 Executive summary of the United States' third participant's submission 23

ANNEX C-1
EXECUTIVE SUMMARY OF THE EUROPEAN UNION'S THIRD PARTICIPANT'S SUBMISSION1
1. The European Union agrees with the Panel that an investigating authority is required to engage
meaningfully with the producers when doubts arise as to the completeness, accuracy or reliability of
the information provided. However, this obligation does not require the investigating authority to
tell exporters how to cure defects in their initial replies to questionnaires. Requests for explanations
or additional information must be sufficiently clear and precise, taking account of the circumstances
of each investigation.
2. The European Union notes that an investigating authority may only make determinations on
the basis of facts available if it has observed the provisions of Annex II. Therefore, compliance with
all the obligations laid down by those provisions is relevant for the evaluation of a claim of
inconsistency with Article 6.8. Since Annex II contains the specific provisions informing the question
of whether the necessary information has been provided a nd whether resort to facts available is
justified, the Panel could have chosen to examine first the claims brought under the various
paragraphs of Annex II.
3. The European Union submits that investigating authorities may search for missing additional
information during on-the-spot verifications at the producers, but are under no obligation to do so.
Cooperating producers should provide all relevant sales data during the stages of the investigation
preceding the verification.
4. The European Union agrees with th e Panel that an investigating authority may consider that
a failure to report certain sales taints or renders unusable the sales data that has been reported.
When rejecting incomplete data, the investigating authority must provide an appropriate explanation
to that effect, focusing specifically on the manner in which the omitted information undermines the
reliability of the sales information submitted during the investigation.
5. The European Union considers that, when an investigating authority relies in order to make a
determination of injury on findings that are not required by the Anti -Dumping Agreement, those
findings must nonetheless be based on positive evidence and an objective examination. Article 3.1
of the Anti -Dumping Agreement requires that an investigating authority base on an objective
examination and positive evidence any of its findings that form part of the inquiry into the impact of
dumped imports on domestic producers. In particular, it is key that the determination that the
industry is unestablished, a necessary logical precondition for a finding of retardation, complies with
Article 3.1 since an erroneous determination would taint the overall injury analysis.
6. The European Union submits that an investigating authority must consider, in the absence of
a satisfactory explanation, all of the Article 3.4 factors in relation to the merchant and captive
segments of the domestic market and the domestic market as a whole.

1 Total words of the submission (including footnotes but excluding the executive summary) = 4,478;
total words of the executive summary = 444.

ANNEX C-2
EXECUTIVE SUMMARY OF JAPAN'S THIRD PARTICIPANT'S SUBMISSION1
1. Japan welcomes this opportunity to present its views to the Appellate Body on three systemic
interpretive issues arising in this dispute.
2. First, the consultations process is for the parties to define and delimit the scope of the dispute.
The scope of a consultations request is not necessarily identical to the request for panel
establishment, because the claims in a panel request co nstitute a natural evolution of the
consultations process.
3. Second, "facts available" under Article 6.8 (incorporating Annex II ) of the Anti -Dumping
Agreement should be used, not to punish non -cooperation by interested parties , but to replace
information that may be missing , in order to arrive at an accurate determination of dumping or
injury.

4. Finally, a ll Anti-Dumping Agreement provisions on "injury", including t he fifteen factors
specified in Article 3.4, apply to a determination of "material retardation". Where a particular factor
listed in Article 3.4 is not relevant, that irrelevance must be explained.

1 Total Number of words, 160.

ANNEX C-3
EXECUTIVE SUMMARY OF THE UNITED STATES' THIRD PARTICIPANT'S SUBMISSION1
1. The United States welcomes the opportunity to present its views on certain findings raised on
appeal by Morocco. In this submission, the United States will present its views on the proper legal
interpretation of certain provisions of the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 ("AD Agreement") and the Understanding on Rules and
Procedures Governing the Settlement of Disputes ("DSU") that have been raised in this dispute.
2. The United States' submission addresses Morocco's claims under Articles 3.1 and 6.8 of the
AD Agreement, as well as Article 11 of the DSU. First, the United States addresses certain of
Morocco's claims concerning the Panel's findings under Article 6.8 of the AD agreement. As set forth
below, the United States agrees that the Panel erred in reading an additional obligation into the text
of Article 6.8 by finding that the MDCCE failed to "meaningfully engage" with the parties at issue.
3. However, Morocco 's appeal concerning the Panel 's findin gs under Article 6.8 of the
AD Agreement also raises systemic concerns. Specifically, Morocco 's claim under Article 11 of the
DSU highlights the burden placed on the Appellate Body and other parties when parties appeal what
are clearly factual determinations by a panel through characterizing such determinations as a failure
of a panel 's obligation to make an "objective assessment" under Article 11 of the DSU. The
Appellate Body has an opportunity in this appeal to reconsider how its originally limited approach to
review the "objective assessment" of a panel has been seized by appellants to cover practically all
factual determinations by a panel. Given the lack of textual basis in the DSU for appellate review of
panel fact-finding, the Appellate Body should instead reassert that the proper issues for appeal are
limited to issues of law and legal interpretations covered by a panel report.2
4. Furthermore, the United States will also explain that Morocco's appeal under Article 6.8 raises
the issue of whether the mu nicipal law of a WTO Member is an issue of law or fact. As the
United States has previously stated, the meaning of a Member 's municipal law, and certainly the
application of a Member 's municipal law as in this case, is an issue of fact and not law under th e
scope of appellate review.
5. The United States will then address Morocco 's claim under Article 3.1 of the AD Agreement,
and explain that while it disagrees with Morocco that Article 3.1 cannot be breached independently
of other obligations under Article 3 , a panel may also not assess Article 3.1 in the abstract. Thus,
the United States agrees with Morocco that the Panel erred in its interpretation of Article 3.1 by
imposing obligations that do not exist in the text of Article 3.1.