UNITED STATES – FINAL ANTI-DUMPING MEASURES ON STAINLESS STEEL FROM MEXICO
Document: Notification of an Appeal by Mexico under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and Rule 20(1) of the Working Procedures for Appellate Review
Date: 4 February 2008
Document codes: WT/DS344/7
Complainant: Mexico
Respondent: U.S.
Third parties: Brazil, Chile, China, EU, Japan, South Korea, Thailand
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 1, 2.1, 2.4, 2.4.2, 9, 18.4  Anti-dumpingArt. VI:1, VI:2  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

UNITED STATES – FINAL ANTI-DUMPING MEASURES
ON STAINLESS STEEL FROM MEXICO

Notification of an Appeal by Mexico under Article 16.4 and Article 17 of the Understanding

on Rules and Procedures Governing the Settlement of Disputes (DSU) and
Rule 20(1) of the Working Procedures for Appellate Review

 The following notification dated 31 January 20 08, from the delegation of Mexico, is being
circulated to Members.

 Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing
the Settlement of Disputes (DSU) and Rule 20(1) of the Working Procedures for Appellate Review ,
Mexico hereby notifies its decision to appeal to th e Appellate Body certain issues of law covered in
the Panel Report on
() (Panel Report), and certain legal in terpretations developed by the Panel in this
dispute.

 At issue is "simple zeroing," whereby the Unite d States investigating authorities, in a periodic
review, compare individual export transactions agai nst average normal values and do not fully take
into account the results of comparisons where the export price exceeds the average normal value when
such results are aggregated in order to calculate the exporter's or producer's margin of dumping for the
product under consideration.
1

 In making its findings and conclusions regardi ng simple zeroing, the Panel failed to interpret
the relevant provisions of the General Agreement on Tariffs and Trade 1994 (GATT 1994) and the
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
(Anti-Dumping Agreement ) in accordance with the customary rules of interpretation of public
international law as required by Articles 3.2 an d 11 of the DSU and Article 17.6(ii) of the Anti-
Dumping Agreement. In particular, the relevant interpretati ons set out in the Panel Report are at odds
with the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention on the Law of
Treaties.

 Mexico seeks review by the Appellate Body of the following:

1. The Panel's findings and conclusions that "sim ple zeroing" in periodic reviews is "as such"
not inconsistent with Articles VI:1 and VI:2 of the GATT 1994 and Articles 2.1, 9.3 of the
Anti-Dumping Agreement .
2 These findings and conclusions are based on an erroneous

1 See Panel Report, paragraphs 7.7 and 7.84-7.97.
2 See Panel Report, paragraphs 7.145, 7.149, and 8.1(c).

interpretation and application of these provisions. In particular, the Panel erred in finding
that:

 (i) Articles VI:1 and VI:2 of the GATT 1994 and Articles 2.1 and 9.3 of the Anti-
Dumping Agreement do not require, for purposes of periodic reviews, that "dumping"
and "margins of dumping" be determined for the "product" under investigation as a
whole and, instead, permit a determin ation of dumping for individual export
transactions
3;

 (ii) Articles VI:1 and VI:2 of the GATT 1994 and Articles 2.1 and 9.3 of the Anti-
Dumping Agreement , do not require, for the purposes of periodic reviews, that
"dumping" and "margins of dumping" be determined for each exporter and producer
subject to the proceeding and, instead, permit a determination of dumping for
individual importers or import transactions
4; and

 (iii) Articles VI:1 and VI:2 of the GATT 1994 and Articles 2.1 and 9.3 of the Anti-
Dumping Agreement, do not prohibit simple zeroing in periodic reviews.5

2. The Panel's findings and conclusions that "sim ple zeroing" in periodic reviews is "as such"
not inconsistent with Article 2.4 of the Anti-Dumping Agreement.
6 This conclusion is based
on an erroneous interpretation and application of Articles VI:1 and VI:2 of the GATT 1994
and Articles 2.1 and 9.3 of the Anti-Dumping Agreement, as described in paragraph 1.7

3. The Panel's findings and conclusions that by applying simple zeroing in the five periodic
reviews on Stainless Steel Sheet and Strip in Coils from Mexico identified by Mexico in its
request for establishment of a panel, the U.S. Department of Commerce (USDOC), did not act
inconsistently with Articles VI:1 and VI:2 of the GATT 1994 and Articles 2.1, 2.4 and 9.3 of
the Anti-Dumping Agreement.
8 This conclusion is based on an erroneous interpretation and
application of these provisions, as described in the above paragraphs.

4. The Panel's findings and conclu sions that directly contradict those in adopted Appellate Body
reports and force a WTO Member to appeal findings and conclusions that have already been
specifically overturned on appeal. In the par ticular circumstances of this dispute, such
findings and conclusions are inconsistent w ith the function of the Panel which, under
Article 11 of the DSU, is to assist the Dispute Settlement Body (DSB) in discharging its
responsibilities under the DSU. Underlying tho se responsibilities are Articles 3.2 and 3.3 of
the DSU which establish that the WTO dispute se ttlement system is a "central element in
providing security and predictability" and that the "prompt settlement of situations" is
"essential to the effective functioning of the WTO".

5. The Panel's failure to consider in their entiret y the claims presented by Mexico relating to the
inconsistency of zeroing with Article 2.4 of the Anti-Dumping Agreement. By failing to fully
address these claims the Panel failed to make an objective assessment of the matter before it
as required by Article 11 of the DSU.

3 See, for example, Panel Report, paragraphs 7.117 to 7.123.
4 See, for example, Panel Report, paragraphs 7.124 to 7.128.
5 See Panel Report, paragraphs 7.129-7.143 and 7.146-7.148.
6 See Panel Report, paragraphs 7.145 and 8.1(c).
7 See Panel Report, paragraph 7.145.
8 See, for example, Panel Report, paragraphs 7.149 and 8.1(d).

 Mexico considers that the Panel erred in law in the interpretation and application of
Articles VI:1 and VI:2 of the GATT 1994 and Articles 2.1, 2.4, and 9.3 of the Anti-Dumping
Agreement and acted inconsistently with Article 11 of the DSU. Mexico requests that, upon reversal
of the Panel's erroneous findings and conclusions id entified above, the Appellate Body resolve this
dispute promptly by finding that simple zeroing is "as such" inconsistent with Articles VI:1 and VI:2
of the GATT 1994 and Articles 2.1, 2.4, and 9.3 of the Anti-Dumping Agreement, and that the United
States violated these provisions by applying simple ze roing in the five periodic reviews identified by
Mexico.