COLOMBIA – ANTI-DUMPING DUTIES ON FROZEN FRIES FROM BELGIUM, GERMANY AND THE NETHERLANDS ARBITRATION UNDER ARTICLE 25 OF THE DSU AWARD OF THE ARBITRATORS
Document: AWARD OF THE ARBITRATOR
Date: 21 December 2022
Document codes: WT/DS591/ARB25
Complainant: EU
Respondent: Colombia
Third parties: Brazil, China, Honduras, India, Japan, Russia, Turkey, U.S.
Dispute stage: Panel
Agreements cited: Art. 1, 2.1, 2.4, 2.4.1, 2.6, 3, 3.1, 3.2, 3.4, 3.5, 3.6, 3.7, 3.8, 5.3, 5.8, 6.1.2, 6.2, 6.4, 6.5, 6.5.1, 6.8, 6.9, 9.1, 9.2, 9.3, 11.1, 12.2, 12.2.2, 18.1, Annex II  Anti-dumpingArt. 10  Customs valuationArt. VI  GATT 1994

COLOMBIA – ANTI-DUMPING DUTIES ON FROZEN FRIES
FROM BELGIUM, GERMANY AND THE NETHERLANDS
ARBITRATION UNDER ARTICLE 25 OF THE DSU
AWARD OF THE ARBITRATORS

LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES FOR THE ARBITRATION
Contents
Annex A-1 Agreed Procedures for Arbitration under Article 25 of the DSU, notified by the parties to the
Dispute Settlement Body on 20 April 2021 ()
Annex A-2 Additional Procedures for Arbitration under Article 25 of the DSU, adopted by the Arbitrators
on 19 October 2022
Annex A-3 Additional Procedures for BCI protection and partial public viewing of the hearing, adopted
by the Arbitrators on 1 November 2022
ANNEX B
NOTIFICATION OF AN APPEAL BY COLOMBIA
Contents
Annex B-1 Notification of an Appeal by Colombia under Article 25 of the DSU, paragraph 5 of the Agreed
Procedures, and Rule 20 of the Working Procedures for Appellate Review
ANNEX C
ARGUMENTS OF THE PARTIES
Contents
Annex C-1 Executive summary of Colombia's written submission
Annex C-2 Executive summary of the European Union's written submission
ANNEX D
ARGUMENTS OF THE THIRD PARTIES
Contents
Annex D-1 Executive summary of Brazil's third party's written submission
Annex D-2 Executive summary of Japan's third party's written submission
Annex D-3 Executive summary of the United States' third party's written submission

ABBREVIATIONS USED IN THIS AWARD
Abbreviation Description
Agreed Procedures Agreed Procedures for Arbitration under Article 25 of the DSU, notified by
the parties to the Dispute Settlement Body on 20 April 2021

Anti-Dumping Agreement Agreement on the Implementation of Article VI of the General Agreement
on Tariffs and Trade 1994
BCI business confidential information
Customs Valuation Agreement Agreement on Implementation of Article VII of the General Agreement on
Tariffs and Trade 1994
DIAN National Directorate for Taxes and Customs
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of
Disputes
FEDEPAPA Colombian Federation of Potato Producers
GATT 1994 General Agreement on Tariffs and Trade 1994
MINCIT Colombia's Ministry of Trade, Industry and Tourism
MPIA Multi-Party Interim Appeal Arbitration Arrangement
Panel Report Final Panel Report as circulated to Members on 10 October 2022 in
Colombia – Anti-Dumping Duties on Frozen Fries from Belgium, Germany
and the Netherlands, attached to the Notification of an Appeal by Colombia
under Article 25 of the DSU, paragraph 5 of the Agreed Procedures, and
Rule 20 of the Working Procedures for Appellate Review (WT/DS591/7 and
WT/DS591/7/Add.1)
Vienna Convention Vienna Convention on the Law of Treaties, done at Vienna, 23 May 1969,
WTO World Trade Organization

CASES CITED IN THIS AWARD
Short title Full case title and citation
Argentina – Poultry Anti-
Dumping Duties
Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from
Brazil, WT/DS241/R, adopted 19 May 2003, DSR 2003:V, p. 1727
Canada – Welded Pipe Panel Report, Canada – Anti-Dumping Measures on Imports of Certain
Carbon Steel Welded Pipe from the Separate Customs Territory of Taiwan,
Penghu, Kinmen and Matsu, WT/DS482/R and Add.1, adopted
25 January 2017, DSR 2017:I, p. 7
China – HP-SSST (Japan) /
China – HP-SSST (EU)
Appellate Body Reports, China – Measures Imposing Anti-Dumping Duties
on High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from
Japan / China – Measures Imposing Anti-Dumping Duties on High-
Performance Stainless Steel Seamless Tubes ("HP-SSST") from the
European Union, WT/DS454/AB/R and Add.1 / WT/DS460/AB/R and
Add.1, adopted 28 October 2015, DSR 2015:IX, p. 4573
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of
Various Raw Materials, WT/DS394/AB/R / WT/DS395/AB/R /
WT/DS398/AB/R, adopted 22 February 2012, DSR 2012:VII, p. 3295
Colombia – Anti-Dumping
Duties on Frozen Fries from
Belgium, Germany and the
Netherlands
Final Panel Report as circulated to Members on 10 October 2022 in
Colombia – Anti-Dumping Duties on Frozen Fries from Belgium, Germany
and the Netherlands, attached to the Notification of an Appeal by
Colombia under Article 25 of the DSU, paragraph 5 of the Agreed
Procedures, and Rule 20 of the Working Procedures for Appellate Review
(WT/DS591/7 and WT/DS591/7/Add.1)
Costa Rica – Avocados
(Mexico)
Panel Report, Costa Rica – Measures Concerning the Importation of Fresh
Avocados from Mexico, WT/DS524/R and Add.1, adopted 31 May 2022
EC – Bed Linen Panel Report, European Communities – Anti-Dumping Duties on Imports
of Cotton-Type Bed Linen from India, WT/DS141/R, adopted
12 March 2001, as modified by Appellate Body Report WT/DS141/AB/R,
DSR 2001:VI, p. 2077
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R,
adopted 28 July 2011, DSR 2011:VII, p. 3995
EC – Fasteners (China)
(Article 21.5 – China)
Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China – Recourse to
Article 21.5 of the DSU by China, WT/DS397/AB/RW and Add.1, adopted
12 February 2016, DSR 2016:I, p. 7
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumping Measure on Farmed
Salmon from Norway, WT/DS337/R, adopted 15 January 2008, and
Corr.1, DSR 2008:I, p. 3
EC – Selected Customs Matter Appellate Body Report, European Communities – Selected Customs
Matters, WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX,
p. 3791
EC – Tube or Pipe Fittings Panel Report, European Communities – Anti-Dumping Duties on Malleable
Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/R, adopted
18 August 2003, as modified by Appellate Body Report WT/DS219/AB/R,
DSR 2003:VII, p. 2701
EU – Biodiesel (Argentina) Panel Report, European Union – Anti-Dumping Measures on Biodiesel from
Argentina, WT/DS473/R and Add.1, adopted 26 October 2016, as modified
by Appellate Body Report WT/DS473/AB/R, DSR 2016:VI, p. 3077
EU – Fatty Alcohols
(Indonesia)
Appellate Body Report, European Union – Anti-Dumping Measures on
Imports of Certain Fatty Alcohols from Indonesia, WT/DS442/AB/R and
Add.1, adopted 29 September 2017, DSR 2017:VI, p. 2613
Guatemala – Cement II Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey
Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000,
DSR 2000:XI, p. 5295
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports
of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000, DSR
2000:I, p. 3
Korea – Pneumatic Valves
(Japan)
Appellate Body Report, Korea – Anti-Dumping Duties on Pneumatic Valves
from Japan, WT/DS504/AB/R and Add.1, adopted 30 September 2019,
DSR 2019:XI, p. 5637

Short title Full case title and citation
Korea – Pneumatic Valves
(Japan)
Panel Report, Korea – Anti-Dumping Duties on Pneumatic Valves from
Japan, WT/DS504/R and Add.1, adopted 30 September 2019, as modified
by Appellate Body Report WT/DS504/AB/R, DSR 2019:XI, p. 5935
Mexico – Anti-Dumping
Measures on Rice
Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on
Beef and Rice, Complaint with Respect to Rice, WT/DS295/AB/R, adopted
20 December 2005, DSR 2005:XXII, p. 10853
Mexico – Anti-Dumping
Measures on Rice
Panel Report, Mexico – Definitive Anti-Dumping Measures on Beef and
Rice, Complaint with Respect to Rice, WT/DS295/R, adopted
20 December 2005, as modified by Appellate Body Report
WT/DS295/AB/R, DSR 2005:XXIII, p. 11007
Mexico – Steel Pipes and
Tubes
Panel Report, Mexico – Anti-Dumping Duties on Steel Pipes and Tubes
from Guatemala, WT/DS331/R, adopted 24 July 2007, DSR 2007:IV,
p. 1207
Morocco – Definitive AD
Measures on Exercise Books
(Tunisia)
Panel Report, Morocco – Definitive Anti-Dumping Measures on School
Exercise Books from Tunisia, WT/DS578/R and Add.1, circulated to WTO
Members 27 July 2021, appealed on 28 July 2021
US – Oil Country Tubular
Goods Sunset Reviews
Appellate Body Report, United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R,
adopted 17 December 2004, DSR 2004:VII, p. 3257
US – Shrimp II (Viet Nam) Panel Report, United States – Anti-Dumping Measures on Certain Shrimp
from Viet Nam, WT/DS429/R and Add.1, adopted 22 April 2015, upheld by
Appellate Body Report WT/DS429/AB/R, DSR 2015:III, p. 1341
US – Softwood Lumber V Panel Report, United States – Final Dumping Determination on Softwood
Lumber from Canada, WT/DS264/R, adopted 31 August 2004, as modified
by Appellate Body Report WT/DS264/AB/R, DSR 2004:V, p. 1937

Parties:

Colombia
European Union

Arbitrators:
José Alfredo Graça Lima, Chairperson
Alejandro Jara
Joost Pauwelyn
Third Parties:

Brazil Japan
China Russian Federation
Honduras Türkiye
India United States

1 INTRODUCTION
1.1. This Arbitration concerns certain issues of law and legal interpretations developed in the
Panel Report, Colombia – Anti-Dumping Duties on Frozen Fries from Belgium, Germany and the
Netherlands.1 These issues of law and legal interpretations relate to the Panel's findings regarding
the consistency with the Agreement on the Implementation of Article VI of the General Agreement
on Tariffs and Trade 1994 (Anti -Dumping Agreement) of the anti-dumping duties imposed by
Colombia on certain frozen potato products originating in Belgium, Germany, and the Netherlands.
1.2. The Panel was established on 29 June 2020 to consider a complaint by the European Union
that, in imposing the above -mentioned duties, Colombia acted inconsistently with Articles 1, 2.1,
2.4, 2.4.1, 2.6, 3.1, 3.2, 3.4, 3.5, 3.6, 3.7, 3.8, 5.3, 5.8, 6.1.2, 6.2, 6.5, 6.5.1, 6.8, 6.9, 9.1, 9.2,
9.3, 11.1, 12.2, 12.2.2, and 18.1, and paragraphs 3 and 6 of Annex II to the Anti -Dumping
Agreement, Article 10 of the Agreement on Implementation of Article VII of the General Agreement
on Tariffs and Trade 1994 (Customs Valuation Agreement), and Article VI of the General Agreement
on Tariffs and Trade 1994 (GATT 1994).2
1.3. On 13 July 2020, the European Union and Colombia informed the Dispute Settlement Body
(DSB) that they had agreed to procedures for arbitration under Article 25 of the Understanding on
Rules and Procedures Governing the Settlement of Disputes (DSU) in this dispute.3 These procedures
were subsequently revised on 20 April 2021 (Agreed Procedures), and were entered into by the
parties "to give effect to communication JOB/DSB/1/Add.12 ", i.e. the Multi-Party Interim Appeal
Arbitration Arrangement (MPIA) pursuant to Article 25 of the DSU, and "to decide any appeal from
any final panel report as issued to the parties in [this] dispute".4
1.4. On 29 August 2022, the Panel issued the final Panel Report in English to the parties.5 Following
a communication from Colombia requesting the Panel to suspend its work in order to facilitate
arbitration under the Agreed Procedures6, the Panel, on 13 September 2022, instructed the Dispute
Settlement Registry to "transmit immediately the original English language version of the final
Panel Report … to the pool of [MPIA] arbitrators"7, pursuant to the Additional Working Procedures of
the Panel to facilitate arbitration under Article 25 of the DSU (the Panel 's Additional Working
Procedures).8 On 16 September 2022, the Panel transmitted the final Panel Report in the

1 In accordance with paragraph 5 of the Agreed Procedures for Arbitration under Article 25 of the DSU
(Agreed Procedures), the Panel Report in the three working languages of the WTO was attached to the
Notification of an Appeal by Colombia under Article 25 of the DSU, paragraph 5 of the Agreed Procedures, and
Rule 20 of the Working Procedures for Appellate Review circulated to Members when Colombia initiated these
Arbitration proceedings. (WT/DS591/7 and WT/DS591/7/Add.1) (See para. 1.7 and infra fns 16 and 17)
2 Request for the establishment of a panel by the European Union, WT/DS591/2 (European Union's
panel request).
3 WT/DS591/3.
4 WT/DS591/3/Rev.1, para. 1. (fn omitted) (See Annex A-1 of the Addendum to this Award
(WT/DS591/ARB25/Add.1))
5 See Communication from the Panel, WT/DS591/6, p. 1.
6 WT/DS591/6, p. 2. The Panel noted in its communication that "[a]ccording to paragraph 4 of the
Agreed Arbitration Procedures 'such request by any party is deemed to constitute a joint request by the parties
for suspension of the panel proceedings for 12 months pursuant to Article 12.12 of the DSU'." (Ibid.)
7 WT/DS591/6, p. 2.
8 Additional Working Procedures of the Panel to facilitate arbitration under Article 25 of the DSU,
WT/DS591/7/Add.1, Annex A-5.

three working languages of the WTO to the parties, third parties , and the pool of MPIA arbitrators,
pursuant to the Panel 's Additional Working Procedures. On the same day, the Panel informed the
DSB of its decision to grant the request to suspend the panel proceedings.9
1.5. In its Report, the Panel found that:
a. with respect to the European Union's claims concerning the decision of Colombia 's
Ministry of Trade, Industry and Tourism ( MINCIT) to initiate the underlying
investigation:
i. the European Union had not established that Colombia acted inconsistently with
Article 5.3 of the Anti-Dumping Agreement because MINCIT failed to verify that
there was "sufficient" evidence to initiate the investigation with respect to the full
range of products covered by tariff subheading 2004.10.00.00;
ii. the European Union had not established that Colombia acted inconsistently with
its obligations under Article 5.3 because MINCIT did not have "sufficient" evidence
demonstrating that the Colombian Federation of Potato Producers ( FEDEPAPA)
represented the domestic producers of the "like" product so as to justify initiating
the underlying investigation;
iii. the European Union ha d established that Colombia acted inconsistently with
Article 5.3 of the Anti -Dumping Agreement because, by failing to examine
whether the use of third -country sales pr ices, instead of domestic sales prices,
was "appropriate" in the specific facts and circumstances of the investigation at
issue, MINCIT did not examine the "adequacy" of the evidence in the application
to determine whether there is "sufficient" evidence to justify the initiation of the
underlying investigation;
iv. the European Union had not established that Colombia acted inconsistently with
its obligations under Article 5.3 because the evidence of injury examined and
relied upon by MINCIT was insufficient to justify the initiation of the underlying
investigation;
v. the European Union had not established that Colombia acted inconsistently with
its obligations under Article 5.3 because the evidence of causal link examined and
relied upon by MINCIT was insufficient to justify the initiation of the underlying
investigation; and
vi. having found that Colombia acted inconsistently with its obligations under
Article 5.3, the Panel d id not consider it necessary to make additional findings
concerning the European Union's clai m under Article 5.8 of the Anti -Dumping
Agreement in order to provide a positive resolution to the present dispute.10
b. With respect to the European Union's claims concerning the confidential treatment of
certain information by MINCIT:
i. the European Union had established that Colombia acted inconsistently with its
obligations under Article 6.5 of the Anti-Dumping Agreement with respect to the
redacted information in section d(i) of FEDEPAPA 's revised application because
MINCIT granted confidential treatment to this information without a showing of
"good cause" by the applicant. Given this finding of inconsistency, the Panel d id
not consider it necessary to make further findings on the European Union's claim
under Article 6.5.1 concerning the i nformation in section d(i) of the revised
application in order to provide a positive resolution to the present dispute;
ii. the European Union had not established that Colombia acted inconsistently with
its obligations under Article 6.5 in respect of the infor mation contained in

9 WT/DS591/6, p. 2.
10 Panel Report, para. 8.1.a.

Annex 10 of the revised application because the European Union ha d not
demonstrated: (a) that the applicant failed to show the necessary "good cause"
for the confidential treatment requested; and (b) MINCIT did not objectively
assess th e showing of "good cause " as the basis of granting confidential
treatment; and
iii. the European Union had established that Colombia acted inconsistently with its
obligations under Article 6.5.1 of the Anti -Dumping Agreement with respect to
the information contained in Annex 10 of FEDEPAPA's revised application because
MINCIT did not "require" the applicant to "furnish" non-confidential summaries of
the confidential information contained in Annex 10; and, to the extent that this
information was not susceptible of summary, a statement of the reasons as to
why summarization was not possible was not provided.11
c. With respect to the European Union's claims concerning the alleged use of "facts
available" by MINCIT:
i. the European Union had established that C olombia acted inconsistently with its
obligations under Article 6.8 of the Anti -Dumping Agreement because MINCIT
disregarded the export prices that the exporters had provided in their
questionnaire responses and, instead, elected to use export prices extracted from
the National Directorate for Taxes and Customs ( DIAN) database to make its
dumping determination; and
ii. having found that Colombia acted inconsistently with its obligations under
Article 6.8, the Panel did not consider it necessary to make additional findings as
to whether Colombia also acted inconsistently with its obligations under
paragraphs 3 and 6 of Annex II and Article 2.1 in order to provide a positive
resolution to the present dispute.12
d. With respect to the European Union's claims concernin g MINCIT's assessment of the
exporters' requests for adjustments:
i. the European Union had established that Colombia acted inconsistently with its
obligation to make a "fair comparison " under Article 2.4 of the Anti -Dumping
Agreement because MINCIT denied th e product mix -related adjustments
requested by Agrarfrost, Aviko, and Mydibel;
ii. the European Union's claim under Article 2.4 of the Anti -Dumping Agreement
concerning Mydibel's packaging cost-related adjustment request f ell within the
Panel's terms of reference;
iii. the European Union had established that Colombia acted inconsistently with its
obligation to make a "fair comparison " under Article 2.4 of the Anti -Dumping
Agreement because MINCIT denied Mydibel's packaging cost-related adjustment
request;
iv. the European Union had established that Colombia acted inconsistently with its
obligation to make a "fair comparison " under Article 2.4 of the Anti -Dumping
Agreement because MINCIT denied Agrarfrost 's oil cost -related adjustment
request; and
v. having found that Colombia acted inconsistently with its obligation to make a "fair
comparison" under Article 2.4, the Panel d id not consider it necessary to make
additional findings as to whether Colombia also acted inconsistently with its

11 Panel Report, para. 8.1.b.
12 Panel Report, para. 8.1.c.

obligations under the last sentence of Article 2.4 in order to provide a positive
resolution to the present dispute.13
e. With respect to the European Union's claims concerning MINCIT's injury and causation
determinations:
i. the European Union had established that Colombia acted inconsistently with its
obligations under Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement
because MINCIT included in its injury and causation determinations imports from
the exporters that were determined to have: (a) final de minimis margins of
dumping (Clarebout (Belgium), Agristo (Belgium), and Other Companies
(Belgium)); and (b) final negative margins of dumpi ng (Ecofrost (Belgium) and
Farm Frites (the Netherlands)); and
ii. having found that Colombia acted inconsistently with its obligations under
Articles 3.1, 3.2, 3.4, and 3.5, the Panel was not called upon to make further
findings with respect to the other grou nds presented by the European Union in
support of its claims challenging MINCIT 's analysis of the "price effects" under
Articles 3.2 and 3.1; the impact on domestic industry under Articles 3.4 and 3.1;
and the causal link under Articles 3.5 and 3.1.14
1.6. The Panel, pursuant to Article 19.1 of the DSU, recommended that Colombia bring its measures
into conformity with its obligations under the GATT 1994 and the Anti-Dumping Agreement.15
1.7. On 6 October 2022, Colombia notified the DSB of its decision to initiate an arbitration under
Article 25 of the DSU through a "Notification of an Appeal " pursuant to Article 25 of the DSU,
paragraph 5 of the Agreed Procedures , and Rule 20 of the Working Procedures for
Appellate Review.16 On the same day, Colombia filed its written submission. Colombia's Notice of
Appeal, together with the Panel Report, was circulated to Members on 10 October 2022.17
1.8. Pursuant to paragraph 7 of the Agreed Procedures, we were selected to be the Arbitrators in
these arbitration proceedings and we elected Mr José Alfredo Graça Lima as the Chairperson in this
Arbitration.18 On 12 October 2022, Members were informed of our appointment as Arbitrators and
the election of the Chairperson.19
1.9. Following consultation with the parties at an organizational meeting held on 18 October 2022,
and pursuant to paragraph 12 of the Agreed Procedures, we adopted, on 19 October 2022, the
Additional Procedure s for Arbitration under Article 25 of the DSU (A dditional Procedures for
Arbitration), including the Working Schedule. 20 In addition, in response to the parties ' requests at
the organizational meeting with regard to the treatment and handling of business confidential
information (BCI) and public viewing of the hearing , and after requesting and receiving comments
from the parties and third parties, we adopted, on 1 November 2022, the Additional Procedures for
BCI Protection and Partial Public Viewing of the Hearing.21
1.10. In accordance with the Working Schedule contained in the Additional Procedures for
Arbitration, the European Union filed its written submission on 24 October 2022. On 27 October

13 Panel Report, para. 8.1.d.
14 Panel Report, para. 8.1.e.
15 Panel Report, para. 8.2.
16 Hereafter referred to as "Colombia's Notice of Appeal".
17 WT/DS591/7 and WT/DS591/7/Add.1.
18 Paragraph 7 of the Agreed Procedures provides, inter alia, that "[t]he arbitrators shall be
three persons selected from the pool of 10 standing appeal arbitrators composed in accordance with
paragraph 4 of communication JOB/DSB/1/Add.12", that the selection "will be done on the basis of the same
principles and methods that apply to form a division of the Appellate Body under Article 17.1 of the DSU and
Rule 6(2) of the Working Procedures for Appellate Review, including the principle of rotation", and that "[t]he
arbitrators shall elect a Chairperson."
19 WT/DS591/8.
20 Annex A-2 of the Addendum to this Award (WT/DS591/ARB25/Add.1).
21 Annex A-3 of the Addendum to this Award (WT/DS591/ARB25/Add.1).

2022, Brazil, Japan, and the United States each filed a third party's written submission. On the same
day, China and the Russian Federation each notified its intention to appear at the hearing.22
1.11. By letter of 2 November 2022, we invited the parties and third parties to a virtual pre-hearing
conference to assist us in identifying the issues to be addressed at the hearing, and to avoid issues
that were not within our mandate, were not necessary for the resolution of this dispute, or were not
contested between the parties . In particular, we indicated our interest in discussing what specific
issues of law and legal interpretations were to be addressed with respect to particular claims, and
to explore which issues were necessary for the resolution of the dispute. In comments provided on
7 November 2022, Colombia expressed its concern that the proposed topics for the pre -hearing
conference went beyond what was envisaged in paragraphs 12 and 13 of the Agreed Procedures,
and requested that, also for reasons of due process, such issues be reserved for discussion only at
the hearing.
1.12. At the virtual pre-hearing conference held on 9 November 2022, we clarified that the purpose
of the conference was not to replace the hearing, but to signal to the parties what we would like to
explore or focus on at the hearing, and to allow the parties an opportunity to limit their submissions
should they so wish. Accordingly, we informed the parties and third parties of the sequence of
questioning expected at the hearing, highlighted the topics referenced in our 2 November 2022 letter
on which we sought clarification from the parties at the hearing, and provided certain logistical and
practical information in relation to the partial public viewing . On 10 November 2022, a letter was
sent to the parties and third parties containing the information conveyed at the virtual conference
and certain logistical information regarding the hearing.
1.13. The hearing was held in person on 15 November 2022 at the premises of the WTO. The parties
and six third parties (Brazil, China, Japan, the Russian Federation, Türkiye, and the United States)
attended the hearing. The parties and five third parties 23 made oral statements and /or responded
to questions. Pursuant to the Additional Procedures for BCI Protection and Partial Public Viewing of
the Hearing, the opening statements of the European Union, the Russian Federation, and the
United States were video recorded and subsequently posted for viewing by registered viewers on
the WTO website.24 On 16 November 2022, we held a discussion with the other members of the pool
of MPIA arbitrators pursuant to paragraph 5 of the MPIA and paragraph 8 of the Agreed Procedures.25
1.14. Pursuant to the Additional Procedures for BCI Protection and Partial Public Viewing of the
Hearing, a copy of the Award intended for issuance was provided in advance to the parties on
13 December 2022 to ensure that no BCI was included inadvertently. The final Award was issued to
the parties in English on 19 December 2022 and notified to the DSB, the Council for Trade in Goods,
and the Committee on Anti -Dumping Practices in the three working languages of the WTO on
21 December 2022, both within 90 days of the commencement of the Arbitration.
2 ARGUMENTS OF THE PARTIES
2.1. The claims and arguments of the parties are reflected in the executive summaries of their
written submissions. Colombia's Notice of Appeal and the executive summaries of the parties' written
submissions are contained in Annexes B and C of the Addendum to this Award,

3 ARGUMENTS OF THE THIRD PARTIES
3.1. The arguments of the third parties that filed a written submission ( Brazil, Japan, and the
United States) are reflected in the executive summaries of their written submissions, and are
contained in Annex D of the Addendum to this Award, WT/DS591/ARB25/Add.1.

22 See Working Schedule, Additional Procedures for Arbitration. See also paragraphs 11 and 16 of the
Agreed Procedures.
23 These third parties were Brazil, China, Japan, the Russian Federation, and the United States.
24 The video recording is available at
https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds591_e.htm.
25 JOB/DSB/1/Add.12 and WT/DS591/3/Rev.1, respectively.

4 ANALYSIS OF THE ARBITRATORS
4.1 Issues on appeal
4.1. We address the following issues on the basis of claims raised on appeal by Colombia26:
a. Whether it is permissible to interpret the phrase "where appropriate" in Article 5.2(iii) of
the Anti-Dumping Agreement as granting "free choice" in the use of third -country sales
prices as a basis for normal value; and whether the Panel erred under Articles 5.2(iii) and
5.3 of the Anti-Dumping Agreement by requiring an explanation as to why domestic sales
prices were not used;
b. Whether the Panel erred in finding that MINCIT acted inconsistently with Article 6.5 of the
Anti-Dumping Agreement by granting confidential treatment to redacted information
without a showing of "good cause";
c. Whether the Panel erred in finding that the European Union's claim under Article 2.4 of
the A nti-Dumping Agreement concerning an exporter 's packaging cost s fell within the
Panel's terms of reference; and
d. Whether it is permissible to interpret the term "dumped imports" in Articles 3.1, 3.2, 3.4,
and 3.5 of the Anti -Dumping Agreement to include impo rts of exporters determined to
have de minimis margins of dumping.
4.2. The Arbitrators take due note of paragraph 12 of the Agreed Procedures, which mandates that
the Award in this Arbitration be issued within 90 days of the filing of the Notice of Appeal, and which
permits the Arbitrators to "take appropriate organizational measures to streamline the proceedings".
Paragraph 13 of the Agreed Procedures further provides that "the arbitrators may also propose
substantive measures to the parties, such as an exclusion of claims based on the alleged lack of an
objective assessment of the facts pursuant to Article 11 of the DSU". In a pre-appeal letter sent to
the parties on 19 September 2022, we provided guidelines on , inter alia, the length of written
submissions and hearings and the language of proceedings, and the parties were encouraged to be
selective in the number of claims they submitted on appeal and to refrain from making claims under
Article 11 of the DSU. 27 During these proceedings, Colombia agreed to conduct proceedings in
English and explained to us that it had deliberately limited the claims on appeal and brought no
claims under Article 11 of the DSU. The Arbitrators wish to acknowledge Colombia 's efforts in this
Arbitration in a manner facilitating the issuance of the Award in a timely manner.
4.2 Claim under Articles 5.2(iii) and 5.3 of the Anti-Dumping Agreement
4.2.1 Introduction and Panel findings
4.3. Colombia challenges the Panel's finding that Colombia acted inconsistently wit h Article 5.3 of
the Anti-Dumping Agreement because MINCIT initiated the investigation at issue without examining
whether the applicant's use of third-country sales prices, instead of domestic sales prices, as a basis
for normal value, was "appropriate".28 Colombia focuses its appeal on the Panel's understanding of
the phrase "where appropriate" in Article 5.2(iii)29 and the Panel 's disregard for the alleged "free
choice" an applicant has in the selection of pricing information used as a basis for normal value at
the initiation stage of an anti-dumping proceeding.

26 Colombia's Notice of Appeal, Annex B-1.
27 See Additional Procedures for Arbitration, Annex 2 (Annex A-2 of the Addendum to this Award
(WT/DS591/ARB25/Add.1)).
28 See Colombia's Notice of Appeal, para. 1 (referring to Panel Report, paras. 7.75, 7.78, 7.79, and
8.1.a.iii).
29 Unless otherwise specified, all stand-alone references to provisions in this Award refer to Articles of
the Anti-Dumping Agreement.

4.4. Articles 5.2(iii) and 5.3 of the Anti-Dumping Agreement provide:
Article 5
Initiation and Subsequent Investigation
5.2 An application under paragraph 1 shall include evidence of (a) dumping, (b) injury within
the meaning of Article VI of GATT 1994 as interpreted by this Agreement and (c) a causal link
between the dumped imports and the alleged injury. Simple assertion, unsubstantiated by
relevant evidence, cannot be considered sufficient to meet t he requirements of this paragraph.
The application shall contain such information as is reasonably available to the applicant on the
following:
…
(iii) information on prices at which the product in question is sold when destined for
consumption in the dome stic markets of the country or countries of origin or export (or,
where appropriate, information on the prices at which the product is sold from the country
or countries of origin or export to a third country or countries, or on the constructed value
of the product) and information on export prices or, where appropriate, on the prices at
which the product is first resold to an independent buyer in the territory of the importing
Member;
…
5.3 The authorities shall examine the accuracy and adequacy of the e vidence provided in the
application to determine whether there is sufficient evidence to justify the initiation of an
investigation.

(underlining added)

4.5. The Panel found "an explicit connection or link " between Articles 5.2(iii) and 5.3.30 The Panel
noted that, under Article 5.2(iii), the possibility of providing third -country sales prices and
constructed value was, "unlike the case of domestic sales prices, textually limited to 'where' this is
'appropriate' and forms part of a parenthetical text".31 For the purposes of an authority's examination
under Article 5.3, the Panel found that the use of the phrase "where appropriate" implies, "at a
minimum, the exercise of judgment as to the fitness, suitability, or 'appropriateness', of using
third-country sales prices, instead of domestic sales prices , in light of the specific situation at
hand".32 The Panel therefore disagreed with Colombia 's interpretation that the phrase "where
appropriate" indicates "that an applicant enjoys complete 'free choice' to submit any information
that it desires for calculating normal value", noting that it would deny any effect to the meaning or
placement of "where appropriate", contrary to the principle of effective treaty interpretation.33
4.6. The Panel then examined the facts of the underlying investigation. The Panel noted that the
Colombian Federation of Potato Producers (FEDEPAPA) "did not address why it elected to provide
third-country sales prices rather than domestic sal es prices as the basis for the normal value
calculation", but simply stated that export prices to the United Kingdom from Belgium, France,
Germany, and the Netherlands were used. 34 The Panel noted that FEDEPAPA further explained its
specific choice of the United Kingdom for the third -country sales prices on the basis that it was a
major producer, importer, and consumer of frozen precooked potatoes (perhaps the largest market
in Europe), and that it formed part of the European Union, which would make export prices very
close to those in the domestic markets of the countries covered by the application. 35 The Panel
further noted that MINCIT simply recited the reasons provided by FEDEPAPA for choosing
third-country sales prices to the United Kingdom. For the Pan el, the record thus indicated
"a complete absence of any explanation by FEDEPAPA or examination thereof by MINCIT as to why

30 Panel Report, para. 7.63.
33 Panel Report, para. 7.70.
34 Panel Report, para. 7.73.
35 Panel Report, para. 7.73.

domestic sales prices were not contained in the application and could not be used for purposes of
initiation in the specific situation at hand".36
4.7. The Panel concluded that MINCIT had acted inconsistently with Article 5.3 because it did not
examine whether the use of third -country sales prices, instead of domestic sales prices, was
"appropriate", and therefore did not examine the "adequacy" of the evidence contained in the
application to determine whether there was "sufficient evidence" to justify initiation.37
4.2.2 Reviewing Colombia's claim in light of Article 17.6 of the Anti-Dumping Agreement
4.8. The parties agree that our assessment of whether the Panel 's specific findings under
Articles 5.2(iii) and 5.3 constitute a legal error must be guided by Article 17.6.38 This is the case
even though Colombia did not file a separate claim on appeal under Article 17.6. Article 17.6 is
relevant and applies to any interpretation of the Anti -Dumping Agreement, including ours under
Articles 5.2(iii) and 5.3.
Article 17
Consultation and Dispute Settlement
17.6 In examining the matter referred to in paragraph 5:
(i) in its assessment of the facts of the matter, the panel shall determine whether the
authorities' establishment of the facts was proper and whether their evaluation of those
facts was unbiased and objective. If the establishment of the facts was proper and the
evaluation was unbias ed and objective, even though the panel might have reached a
different conclusion, the evaluation shall not be overturned;
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with
customary rules of interpretation of public international law. Where the panel finds that a
relevant provision of the Agreement admits of more than one permissible interpretation,
the panel shall find the authorities ' measure to be in conformity with the Agreement if it
rests upon one of those permissible interpretations.

4.9. Article 17.6(i) concerns the assessment of the facts of the matter. It charges panels with
determining whether an investigating authority's establishment of the facts was "proper", and the
evaluation of those facts was "unbiased and objective ". So long as those elements are met, the
evaluation shall not be overturned, "even though the panel might have reached a different
conclusion". As the Panel in this case put it, this means tha t "a panel examining an investigating
authority's determination should not conduct a de novo review of the evidence, nor substitute its
own judgment for that of the investigating authority ."39 In this light, the Panel stated that the
"applicable standard of review" for examining the European Union's claim under Articles 5.2(iii) and
5.3 is "to consider whether an unbiased and objective investigating authority could have determined
that the application and the revised application that FEDEPAPA submitted to M INCIT contained
'sufficient' evidence – based upon an examination of the 'accuracy' and 'adequacy' of the evidence –
to justify the initiation of an anti -dumping investigation into imports of frozen fries from Belgium,
Germany, and the Netherlands".40 We agree with the Panel in this respect.

36 Panel Report, para. 7.75 (emphasis added by the Panel). Colombia argued that MINCIT relied upon
third-country sales prices in the same way as in an anti-dumping proceeding relating to imports of the same
product to Brazil wherein the Brazilian authority had also provided reasons why the applicant in that
investigation unsuccessfully attempted to obtain domestic sales prices. The Panel, however, rejected
Colombia's argument, noting that there was nothing on the record, as there had been in the Brazilian
investigation, indicating that FEDEPAPA attempted to obtain, or otherwise faced difficulties in obtaining,
domestic sales prices. (Panel Report, para. 7.77)
37 Panel Report, para. 7.78.
38 Parties' responses to questioning at the hearing.
39 Panel Report, para. 7.4.
40 Panel Report, para. 7.14 (referring to Panel Reports, Argentina – Poultry Anti-Dumping Duties,
para. 7.60; Mexico – Steel Pipes and Tubes, paras. 7.26 and 7.32; US – Softwood Lumber V, para. 7.79; and
Guatemala – Cement II, para. 8.31).

4.10. Article 17.6(ii), in turn, concerns matters of legal interpretation. The first sentence requires
that panels "shall interpret the relevant provisions of the Agreement in accordance with customary
rules of interpretation of public international law". The second sentence provides that, where a panel
finds that a relevant provision admits of more than one permissible interpretation , it must find the
authority's measure to be in conformity with the Agreement "if it rests upon one of those permissible
interpretations".
4.11. The Panel stated that whether a provision admits of more than one "permissible"
interpretation (under the second sentence) depends on whether more than one such interpretation
emerges after the Panel has examined the relevant provision under customary rules of interpretation
of public international law (under the first sentence). Accordingly, the Panel stated that the "starting
point" of its interpretative analysis required an interpretation of the relevant provision under treaty
interpretation rules, including Articles 31 and 32 of the Vienna Convention on the Law of Treaties
(Vienna Convention).41
4.12. Our approach to the interpretation c laims in this appeal differs. We do not begin the
interpretative exercise by focusing solely on the first sentence of Article 17.6(ii), as this in our view
pays insufficient regard to the immediate context of this sentence, namely Article 17.6(i) and the
second sentence of Article 17.6(ii). Each of these provisions must be understood in a manner
granting special deference to investigating authorities under the Anti -Dumping Agreement.42 The
second sentence of Article 17.6(ii) mandates panels to defer to and accept an authority's measure
as soon as it "rests upon" a "permissible" interpretation. As we have noted, Article 17.6(i) prevents
a panel from conducting a de novo assessment of the facts on record; an authority's establishment
and evaluation of facts mu st be allowed to stand so long as it is "proper" and "unbiased and
objective", and this is the case "even though the panel might have reached a different conclusion".
4.13. Reading these provisions together, we aim to integrate the elements of interpretation und er
Article 17.6(ii). As a result, we will begin by asking ourselves whether Colombia 's proposed
interpretation of the phrase "where appropriate" in Article 5.2(iii) – reflected in MINCIT's decision to
initiate its investigation, in part, on the basis of third -country sales prices – is a "permissible" one.
As a yardstick for "permissibility", the first sentence of Article 17.6(ii) refers us to the customary
rules of treaty interpretation. However, we will not engage in our own, de novo interpretation of the
terms "where appropriate " so as to arrive at what we consider to be the "final" or "correct"
application of Articles 31 and 32 of the Vienna Convention. Instead, we will ask whether a trea ty
interpreter, using the method for treaty interpretation set out in the Vienna Convention – that is, an
interpretation "in good faith in accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and purpose " and, where appropriate,
"supplementary means of interpretation" – could have reached Colombia's interpretation. And this
even though we, as de novo treaty interpreters, might have reached a different conclusion.
4.14. Our approach assumes, as the second sentence does, that different treaty interpreters
applying the same tools of the Vienna Convention may, in good faith and with solid arguments in
support, reach different conclusions on the "correct" interpretation of a treaty provision.43 This may

41 Panel Report, para. 7.286.
42 To do otherwise would correspond to a standard interpretative exercise applicable to any
WTO Agreement and would fail to give effect to the unique character of Article 17.6 as it applies to the
Anti-Dumping Agreement. Had the drafters considered that Article 17.6 was simply reflective of a conventional
approach to Vienna Convention treaty interpretation, it is hard to see why they would have added the provision
and why, in a separate decision, they mandated that the "standard of review in paragraph 6 of Article 17 …
shall be reviewed after a period of three years with a view to considering the question of whether it is capable
of general application." (Decision on Review of Article 17.6 of the Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994)
43 See Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd edn (Manchester Press, 1984),
p. 153 ("review of recent international case law on treaty interpretation reveals only too clearly that widely
differing results can still be achieved even if a conscious effort is being made to apply the Convention rules");
and D. McRae, "Treaty Interpretation by the WTO Appellate Body: The Conundrum of Article 17(6) of the
Anti-Dumping Agreement", in E. Cannizzaro (ed.), The Law of Treaties Beyond the Vienna Convention (Oxford
University Press, 2011), Chapter 10, p. 179 ("the Vienna Convention rules are not primary rules of obligation;
they are secondary rules telling states and adjudicators how to go about the process of interpretation. They do
contain obligations within them, for example, not to resort to preparatory work unless the result is ambiguous
or manifestly absurd. They do not, however, dictate any particular result. They are facilitative not disciplinary
and do not 'instruct the treaty interpreter to find a single meaning of the treaty' as a former Appellate Body

be particularly true for the Anti-Dumping Agreement, which was drafted with the understanding that
investigating authorities employ different methodologies and ap proaches. Treaty interpretation is
not an exact science and applying the Vienna Convention's method does not magically and inevitably
lead to a single result. In most cases, treaty interpretation involves weighing, balancing, and choice.
4.15. Thus, the ultimate question for us when testing a proposed interpretation is to draw a line
beyond which an interpretation is no longer "permissible" under the Vienna Convention method for
treaty interpretation. D ictionary meanings support the idea that the search for "permissible"
interpretations differs from an attempt to find one 's own – "final" and "correct" – interpretation.44
Rather, t he question is whether someone else 's interpretation is "permitted", "allowable",
"acceptable", or "admissible" as an outcome resulting from a proper application of the interpretative
process called for under the Vienna Convention. Obviously, not just any interpretation put forward
by an authority can be accepted as "permissible". The interpretative process under t he
Vienna Convention sets out an outer range beyond which meanings cannot be accepted. Just as
permissible interpretations cannot be limited to a single "final" and "correct" answer as determined
by a given tribunal, not all interpretations have the required degree of solidness or analytical support
for them to be given deference as "permissible" within the bounds of the Vienna Convention method
for treaty interpretation.
4.2.3 Whether it is permissible to interpret the phrase "where appropriate " in
Article 5.2(iii) of the Anti -Dumping Agreement as granting "free choice " in the use of
third-country sales prices as a basis for normal value
4.16. Colombia maintains that the "core legal issue in this appeal is the meaning of the phrase
'where appropriate'" in Article 5.2(iii) of the Anti-Dumping Agreement.45 Colombia considers that the
Panel erred in its interpretation of this phrase by denying discretion to the applicant in the "free
choice"46 of what pricing information to include in its application, and by requiring an explanation by
the applicant and just ification by the investigating authority of the reasons for not using domestic
sales prices as a source for normal value. 47 Colombia further alleges that the Panel erred in its
contextual consideration of Article 2.2 – which refers to third-country sales prices and constructed
normal value as conditional alternatives to domestic sales prices in a dumping
determination – leading the Panel to import a strict hierarchy from that provision into the selection
of pricing information at the initiation stage under Article 5.2(iii).48
4.17. The European Union maintains that the core legal issue is not the interpretation of the phrase
"where appropriate" in Article 5.2(iii), but rather whether the investigating authority, in accordance
with Article 5.3, examined the evidence provided in the application to determine if it was adequate
and sufficient to justify the initiation of the investigation. 49 For the European Union, the Panel
correctly applied interpretative rules50, and did not disregard or misinterpret the requirements under

member has written … Under this view, an interpretation is authoritative not because of the application of the
Vienna Convention, but rather because of the authority of the tribunal that made the choice amongst the
various possible interpretations. In this light, the existence of one or more permissible interpretations in any
interpretative exercise is the norm rather than the exception. It is based on the view that the core of
interpretation is choice."). (fns omitted)
44 According to the Oxford English Dictionary online,
https://www.oed.com/view/Entry/141213?redirectedFrom=permissible - eid, "permissible" means "[t]hat can
or ought to be permitted; allowable". The French version of the Anti-Dumping Agreement uses the term
"interprétation admissible"; in the Dictionnaires Le Robert online,
https://dictionnaire.lerobert.com/definition/admissible, "admissible" means "[q]u'on peut admettre". The
Spanish version of the Anti-Dumping Agreement uses the term "interpretaciones admisibles"; in the Diccionario
de la lengua española, Real Academia Española online, https://dle.rae.es/admisible?m=form, "admisible"
means "[q]ue puede admitirse". In the Oxford French to English Dictionary online,
https://premium.oxforddictionaries.com/translate/french-english/admissible, "admissible" means "acceptable"
and "admissible". Similarly, in the Oxford Spanish to English Dictionary online,
https://premium.oxforddictionaries.com/translate/spanish-english/admisible, "admisible" means "acceptable"
(all definitions accessed on 2 December 2022).
46 Colombia's written submission, para. 4.42. See also ibid., para. 4.19 (stating that "[t]he applicant
may thus freely decide whether to rely on domestic sales price, third-country sales prices, or constructed
normal value.").
47 Colombia's written submission, paras. 4.18-4.19 and 4.24.
48 Colombia's written submission, paras. 4.19, 4.43-4.44, and 4.70-4.77.
49 European Union's written submission, para. 30.
50 European Union's written submission, paras. 36 and 40.

Articles 5.2(iii) and 5.3. 51 The European Union also disagreed with Colombia that the Panel 's
interpretation leads to empty formalism or an unworkable substantive test.52
4.18. The reading of Article 5.2(iii) advanced by Colombia poses an immediat e interpretative
difficulty as it seeks to minimize the significance of the meaning and placement of the phrase "where
appropriate". Article 5.2(iii) specifies three types of product prices for normal value: (i) domestic
sales; (ii) third-country sales; and (iii) constructed normal value. The structure of the sentence,
however, does not place these three sources of prices on equal footing. Rather than simply listing
the three in sequence, third -country sales prices and constructed normal value, but not dome stic
sales prices, are qualified by the phrase "where appropriate".
4.19. Article 5.3, in turn, provides the lens through which this pricing information is to be examined
at the initiation stage of an anti -dumping investigation. Specifically, Article 5.3 provide s that
investigating authorities "shall 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 Colombia and certain third parties su bmit in this case, examining the sufficiency
of evidence for initiation does not require the same quantity and quality of evidence as that required
under Article 2.2, which sets out more explicit and detailed requirements when determining normal
value during the investigation phase.53 Moreover, Article 5.3 does not require an explanation as to
how an authority's examination is carried out.54 Article 5.2, which provides that "[s]imple assertion,
unsubstantiated by relevant evidence, cannot be considered sufficient " and limits what must be
contained in an application to "information as is reasonably available to the applicant", confirms this
relatively low evidentiary threshold at the initiation stage.
4.20. When we read Articles 5.2(iii) and 5.3 together, in accordance with the Vienna Convention
method for treaty interpretation, we cannot accept Colombia's interpretation as a "permissible" one.
First, the fact that the phrase "where appropriate" only applies to third -country sales prices and
constructed normal value signifies that only these prices require an authority to "examine" their
"appropriateness" to initiate an investigation. We note that, with regard to such an assessment,
Colombia does not take issue with the Panel's proposed definitions of "where appropriate" as "[i]n a
or the case in which, in the circumstances in which ", or "[s]pecially fitted or suitable ".55 Colombia
also agrees that Article 5.3 requires an investigating authorit y to examine an application to
determine that there is sufficient evidence to initiate an investigation, albeit limited to assessing
whether the evidence is "accurate" and "adequate" as a matter of substance.56
4.21. Second, the fact that the phrase "where appropriate" attaches to third-country sales prices
and constructed normal value indicates to us that, as a general matter, domestic sales prices are to
be accorded greater evidentiary value since an assessment as to "appropriateness" with regard to
such prices is not required. 57 Colombia argues that the fact that the language in Article 5.2(iii)
"stands in stark contrast" to the detailed language in Article 2.2 "strongly suggests" that the drafters
did not intend the "strict hierarchy" in Article 2.2 to apply in the context of Article 5.2.58 We agree.
However, recognizing the evidentiary value of domestic sales prices does not amount to importing
the requirements or a "strict hierarchy" from Article 2.2 into Article 5.2(iii). As noted, in the context
of initiation of an investigation under Article 5.3, all that is required is that the evidence in the

51 European Union's written submission, paras. 43-48.
52 European Union's written submission, paras. 49-50 (referring to Colombia's written submission,
paras. 4.84-4.87).
53 Colombia's written submission, paras. 4.19 and 4.43-4.44; Brazil's third party's written submission,
paras. 3-6; Japan's third party's written submission, para. 21; United States' third party's written submission,
paras. 6 and 8. See also Panel Report, Guatemala – Cement II, para. 8.35.
54 Panel Report, EC – Bed Linen, para. 6.198.
55 Colombia's written submission, para. 4.23 (quoting Panel Report, para. 7.69). Colombia maintains the
same meaning is conveyed by the French phrase "le cas échéant" and the Spanish phrase "cuando proceda".
(Ibid.)
56 Colombia's written submission, paras. 4.20, 4.52, and 4.79.
57 Similarly, the appearance in Article 5.2(iii) of the phrase "where appropriate" before the reference to
"prices at which the product is first resold to an independent buyer" in the importing Member suggests that
greater evidentiary value attaches to "information on export prices". Although, like Colombia, we see no reason
to import the strict hierarchy from Article 2 into the selection of pricing information at the initiation stage under
Article 5.2(iii), we disagree with Colombia that Article 2.3 grants the authority discretion in its use of
constructed export prices, since such reliance is conditioned on there being no export price or an export price
that is unreliable. (Colombia's written submission, para. 4.48)
58 Colombia's written submission, paras. 4.43-4.44.

application must be sufficient. Indeed, as Brazil argued before us, Article 5.2 does not demand the
submission of the best information available, but only that information which is reasonably available
to the applicant. 59 Thus, when MINCIT was faced with an application that advanced third -country
sales prices, Articles 5.2(iii) and 5.3, when read together, required an exami nation of the
"appropriateness" of that evidence, bearing in mind that the use of domestic sales prices would not
have attracted such an assessment.
4.22. Accordingly, we do not see how a treaty interpreter, using the method for treaty interpretation
set out in the Vienna Convention, could ha ve reached Colombia 's understanding of the phrase
"where appropriate". We agree with the Panel that Colombia's interpretation of "where appropriate"
as granting an applicant "free choice" in the selection of normal value prices "would deny any effect
to th e meaning or placement of the term 'where appropriate ', contrary to the principle of
effectiveness in treaty interpretation ".60 At the hearing, Colombia indicated that the phrase is not
redundant because it is meant precisely to signal that the strict hierarchy set out in Article 2.2 is not
to be imported into the selection of pricing information under Article 5.2(iii). However, this would
seemingly have been accomplished had the phrase "where appropriate" simply not featured in the
provision. While we agree with Colombia and third parties when they argue that the strict hierarchy
in Article 2.2 cannot be imported into Articles 5.2(iii) and 5.3 given that Article 2.2 requires a more
stringent evidentiary standard for the investigation phase of an anti -dumping proceeding, the
meaning and placement of the phrase "where appropriate" can only be given effect if it indicates, as
we have suggested, some duty on MINCIT to examine the sufficiency of third -country sales prices
in light of an evidentiary preference for domestic sales prices.
4.23. We also find unavailing Colombia's other arguments regarding the level of discretion it reads
into Article 5.2(iii). For instance, Colombia points to provisions in several WTO agreements where
the phrase "where appropriate" appears in order to support its view that the phrase denotes a
discretionary choice.61 Given the very different agreements and circumstances in which the phrase
appears, in relation to different decision makers in different settings, we are unable to discern that
they support a generalized understanding of the phrase to grant "free choice" in the selection of
pricing information under Articles 5.2(iii) and 5.3, as argued by Colombia.
4.24. Accordingly, we see no reason to disturb the Panel 's view that an authority's examination of
the sufficiency of evidence under Article 5.3 "requires, at the very least, an exercise of judgment as
to the suitability or appropriateness of using third -country sales prices, instead of domestic sales
prices, in the specific situation before it".62
4.2.4 Whether the Panel erred under Articles 5.2(iii) and 5.3 of the Anti -Dumping
Agreement by requiring an explanation as to why domestic sales prices were not used as
a basis for normal value
4.25. Colombia further contends that the Panel erred under Articles 5.2(iii) and 5.3 of the
Anti-Dumping Agreement by requiring FEDEPAPA to explain why it did not use domestic sales
prices.63 For Colombia, this constitutes legal error because the relevant provis ions do not mandate
such an explanation, and leads to empty formalism or an unworkable substantive test.64
4.26. The European Union maintains that the Panel was correct not to require an explanation by
the applicant as a matter of interpretation under Article 5.3, but rather noted that there was no
explanation from FEDEPAPA on the record as to why domestic sales prices were not provided.65
4.27. We observe from the Panel's consideration of this issue that MINCIT requested FEDEPAPA to
submit information on "[a] definition of the normal value selected for the purpose of determining
the dumping margin … that is to say, the price of the product under consideration set by Belgium".66

59 Brazil's third party's written submission, para. 7. See also Japan's third party's written submission,
para. 19; and United States' third party's written submission, paras. 6-7.
60 Panel Report, para. 7.70.
61 Colombia's written submission, paras. 4.45-4.46.
62 Panel Report, para. 7.70.
63 Colombia's written submission, paras. 4.18-4.19 and 4.24.
64 Colombia's written submission, paras. 4.50-4.65 and 4.84-4.89.
65 European Union's written submission, paras. 24-28.
66 Panel Report, para. 7.72 (quoting MINCIT's deficiency letter to FEDEPAPA (Panel Exhibit EU-9a)).

In its revised application, FEDEPAPA indicated that it was using export prices to the United Kingdom
as a basis for normal value, adding that the United Kingdom (like the countries covered by the
application) was a member of the European Union and subscribed to the free movement of goods
within a common market. This, FEDEPAPA explained, "would make the prices of exports from these
countries to the British market very close to those in the domestic market of the country that is the
subject of this application ".67 Finally, we know that MINCIT repeated in its no tice of initiation
FEDEPAPA's rationale for the use of export prices to the United Kingdom.68 The Panel concluded from
this that the record indicates "a complete absence of any explanation by FEDEPAPA or examination
thereof by MINCIT as to why domestic sales prices were not contained in the application and could
not be used for purposes of initiation in the specific situation at hand".69
4.28. The Panel 's analysis represents, in our view, an overly stringent application of the legal
standard. As the Panel itself acknowledged, the task is to consider whether an unbiased and objective
investigating authority, based on an examination of the "accuracy" and "adequacy" of the evidence,
could have determined that the application contained "sufficient evidence " to initiate the
investigation.70 To satisfy Articles 5.2(iii) and 5.3 in the present case, MINCIT was required to
examine the "appropriateness" and "sufficiency" of the United Kingdom export prices in light of the
evidentiary value of domestic sales prices. Given that the authority had asked the applicant to define
the normal value selected with reference to domestic sales prices for Belgium, and that the applicant
then explained that it was relying on export prices to the United Kingdom, which formed part of a
common market with the relevant countries (like Belgium) and therefore represented prices that
were "very close " to domestic sales prices, we consider that fa ctual findings by the Panel
demonstrate that there was a proper basis in the application for MINCIT to have examined the
"appropriateness" and "sufficiency" of those export prices because the information was framed in
terms of their evidentiary value vis-à-vis domestic sales prices.71 We recall that, for the purpose of
initiating an investigation under Article 5.3, the quantity and quality of evidence needed is
necessarily lower than what is required to impose anti-dumping measures.72 The information need
not be the best evidence, only that which is sufficient to initiate an investigation. Moreover, as
Colombia noted, MINCIT ultimately relied on domestic sales prices as the basis for normal value in
its final determination.73
4.29. We also take note of the Panel 's recognition that FEDEPAPA had included as an annex in its
application a Brazilian investigating authority 's initiation decision in its anti -dumping investigation
on frozen potatoes, in which it was explained that the Brazilian applicant was unable to obtain the
internal price within the relevant European Union member States, and that, because the
United Kingdom was part of the European Union's single market, its prices were an appropriate basis
for normal value. 74 This provides an additional indicator of what was contained in the application
before MINCIT that could have informed its examination of the "appropriateness" and "sufficiency"
of using export prices to the United Kingdom in relation to domestic sales prices.
4.2.5 Conclusion
4.30. Taking due account of the special standards set out in Article 17.6 of the Anti -Dumping
Agreement, we conclude that Colombia 's interpretation of th e phrase "where appropriate " in
Article 5.2(iii) is not a permissible one; that is, one that a treaty interpreter, using the
Vienna Convention method for treaty interpretation, could have reached. Accordingly, we see no
basis to disturb the Panel's articulation of the legal standard that an authority's examination of the

67 Panel Report, para. 7.73 (quoting revised application (Panel Exhibit EU-10)).
68 Panel Report, para. 7.74 (referring to notice of initiation (Panel Exhibit EU-1a)).
70 See Panel Report, para. 7.14 (referring to Panel Reports, Argentina – Poultry Anti-Dumping Duties,
para. 7.60; Mexico – Steel Pipes and Tubes, paras. 7.26 and 7.32; US – Softwood Lumber V, para. 7.79; and
Guatemala – Cement II, para. 8.31).
71 Arguably, sales to the United Kingdom did not, at the time, constitute sales to a distinct market since
the United Kingdom was part of the customs union of the European Union. The Anti-Dumping Agreement does
not clarify how the concept of a "third country" is to be understood where multiple countries comprise a
customs territory or single market. In any event, this interpretative question is not before us.
72 See paras. 4.19-4.21 above; and Panel Report, Morocco – Definitive AD Measures on Exercise Books
(Tunisia), para. 7.353 ("[A] number of panels have recognized that the quantity and quality of evidence
provided at the complaint stage would necessarily be lower than the evidence required to impose anti-dumping
measures."). See also Colombia's written submission, paras. 4.66-4.69 and 4.78-4.80.

sufficiency of evidence under Article 5.3 "requires, at the very least, an exercise of judgment as to
the suitability or appropriateness of using third-country sales prices, instead of domestic sales prices,
in the specific situation before it".75
4.31. At the same time, we find that the Panel applied this standard in an overly stringent manner
to MINCIT 's examination of the evidence in the circumstances before it. Given that Article 5.3
requires that an investigating authority must find "sufficient evidence" in the application to initiate
an investigation, we consider that relevant factual findings by the Panel show that the application,
which MINCIT examined, reflected information on the use of third -country sales prices that was
framed in terms of their evidentiary value vis -à-vis domestic sales prices, and we therefore do not
see that an assessment of "appropriateness" required that an additional explanation be provided or
examined as to why domestic sales prices were not used. We therefore disagree with the Panel that
an unbiased and objective authority could not have found that the evidence in FEDEPAPA 's
application was "sufficient" to initiate the investigation.
4.32. On the basis of th e above, we reverse the Panel's findings in paragraphs 7.75, 7.78, 7.79,
and 8.1.a.iii of its Report, and find that relevant factual findings by the Panel demonstrate that
MINCIT satisfied its duty under Articles 5.2(iii) and 5.3 of the Anti -Dumping Agreement, for the
purpose of initiating an investigation, by examining the "appropriateness" of third-country sales
prices consisting of export prices to the United Kingdom, including, in particular, their sufficiency
vis-à-vis domestic sales prices. Accordingl y, we find that the European Union has not established
that Colombia acted inconsistently with Article 5.3 of the Anti-Dumping Agreement.
4.3 Claim under Article 6.5 of the Anti-Dumping Agreement
4.3.1 Introduction and Panel findings
4.33. Colombia challenges the Panel's finding that Colombia acted inconsistently with its obligations
under Article 6.5 of the Anti -Dumping Agreement with respect to certain redacted information in
section d(i) of FEDEPAPA's revised application because MINCIT granted confidential treatment to this
information without a showing of "good cause".76 In Colombia's view, because FEDEPAPA never
submitted a request for confidential treatment of the information at issue, and MINCIT never granted
confidentiality to that information, the requirement under Article 6.5 to treat the information as
confidential upon a showing of good cause was not triggered. Colombia further argues that the
information at issue was in any event disclosed in other documents on the public record.
4.34. Article 6.5 of the Anti-Dumping Agreement provides:
Article 6
Evidence
6.5 Any information which is by nature confidential (for example, because its disclosure would be
of significant competitive advantage to a competitor or because its disclosure would have a
significantly adverse effect upon a person supplying the information or upon a person from whom
that person acquired the information), or which is provided on a confidential basis by parties to an
investigation shall, upon good cause shown, be treated as such by the authorities. Such information
shall not be disclosed without specific permission of the party submitting it.

4.35. The Panel noted that Article 6.5 addresses confidential treatment by investigating authorities
of two categories of information: that which is by nature confidential, and that which is submitted
on a confidential basis by parties to an investigation. The Panel further noted that a showing of "good
cause" is a "condition precedent for according confidential treatment to information submitted to an

75 Panel Report, para. 7.70.
76 See Colombia's Notice of Appeal, para. 2 (referring to Panel Report, paras. 7.126, 7.152.a, and
8.1.b.i).

authority"77 and applies to both categories of information. 78 The Panel added that authorities are
required to objectively assess the alleged "good cause " offered as the basis of the request for
confidential treatment.79
4.36. The Panel then noted that the information at issue – contained in section d(i) of the revised
application – concerned the injury alleged by FEDEPAPA with respect to the Colombian
potato-processing industry. 80 As the Panel further observed, that section contained certain
information that was redacted by the applicant81, but for which no showing of "good cause" had been
offered by the applicant or requested by MINCIT. 82 Nonetheless, the Panel considered it "apparent
that MINCIT treated this information as confidential, even in the absence of a showing of 'good
cause' by the applicant".83 The Panel rejected Colombia 's argument that, given that the applicant
never requested that the redacted information be treated as confidential, MINCIT did not grant such
confidential treatment, and therefore Article 6.5 does not apply. The Panel instead found that "the
fact that the applicant submitted information on a redacted basis without a showing of 'good cause' –
coupled with the fact that M INCIT treated this information confidentially – demonstrates a lack of
compliance with Article 6.5."84
4.37. The Panel further rejected Colombia 's argument that the availability of the redacted
information elsewhere on the record discharged MINCIT from complying with the obligations under
Article 6.5. According to the Panel, there was no clear indication that the content of the redacted
information was made available elsewhere on the record. In addition, the Panel rejected Colombia's
assertion that the fact that the relevant tables , one of which was in the original application and
non-redacted, share the same title, structure, and source of information was enough to show that
the information in the original and revised applications were the same. The Panel therefo re
"disagree[d] with Colombia's argument that a joint reading of both applications 'clearly shows', and
enables a reader to 'easily infer', that the redacted information in the revised application was, 'in
reality', the same as the relevant information contained in the original application".85
4.3.2 Whether the Panel erred in finding that MINCIT acted inconsistently with Article 6.5
of the Anti -Dumping Agreement by granting confidential treatment to redacted
information without a showing of "good cause"
4.38. The core premise of Colombia 's claim on appeal is that a "request" for confidentiality was
required to trigger the obligations in Article 6.5.86 Colombia argues that, since there was not an
explicit request to treat certain redacted information in the revised application as confidential,
MINCIT can neither be found to have accorded confidential treatment to the information nor to have
failed to require a showing of good cause under Article 6.5.87 In addition, Colombia maintains that
the redacted information at issue was not treated as confidential as it was available in a non-redacted
form elsewhere on the public record (i.e. the original application).88
4.39. The European Union responds that the Panel correctly found that, despite the absence of an
explicit request, MINCIT did grant confidential treatment to the information in section d( i) of the
revised application, and that other interested parties were prevented from viewing the information
redacted from the revised application.89

77 Panel Report, para. 7.115 (quoting Appellate Body Report, EC – Fasteners (China) (Article 21.5 –
China), para. 5.38).
78 Panel Report, para. 7.115 (referring to Appellate Body Report, EC – Fasteners (China), para. 537; and
Panel Report, Guatemala – Cement II, para. 8.219).
79 Panel Report, para. 7.117 (referring to Appellate Body Report, EC – Fasteners (China) (Article 21.5 –
China), paras. 5.39-5.40; and Panel Report, Korea – Pneumatic Valves (Japan), paras. 7.427 and 7.440).
80 Panel Report, para. 7.120.
81 Panel Report, para. 7.120.
82 Panel Report, para. 7.122.
83 Panel Report, para. 7.122.
84 Panel Report, para. 7.126.
86 Colombia's written submission, paras. 5.12-5.13.
87 Colombia's written submission, paras. 5.16-5.23.
88 Colombia's written submission, paras. 5.26-5.28.
89 European Union's written submission, paras. 61-63.

4.40. We do not understand Colombia to challenge the Panel 's articulation of the legal standard
with respect to Article 6.5 per se. As Colombia clarified at the hearing, it does not maintain that an
explicit request for confidential treatment is always required to trigger the obligations under
Article 6.5, but rather that, in the circumstances of this case, where the redacted information at
issue, unlike other information provided, was not subject to such an explicit request, MINCIT could
not be found to have acted inconsistently with Article 6.5.90 We note that Article 6.5 does not itself
refer to a "request", but rather provides that, when information "is provided on a confidential basis"
by a party to an investigation, it shall be "treated as such " by the investigating authority upon a
showing of "good cause".
4.41. The underlying facts set out by the Panel are as follows. After FEDEPAPA filed its original
application in this dispute, MINCIT sent a letter requesting, inter alia, "[t]he identification and
justification of confidential documents and a summary or non -confidential version of these
documents".91 FEDEPAPA, in its revised application, stated that "[t]he specific names of the domestic
industry companies, all their financial information, and in general numerical, and any data that is
classified as a trade secret, are confidential. "92 FEDEPAPA then submitted an annex of its revised
application as confidential information ( Annex 10) and redacted certain information in a separate
section of the revised application (section d(i)), entitled "injury for the potato-processing industry".93
MINCIT thereafter granted c onfidential treatment to "anything related to financial information or
data considered to be part of trade secrets", but stated that the specific names of the companies in
the domestic industry cannot be considered confidential. 94 Only the revised applicat ion with the
redactions to section d(i) was on the public record.95
4.42. As we understand it, FEDEPAPA submitted both redacted and non -redacted versions of its
revised application. 96 The redacted version contained redactions to two portions of the revised
application: (i) section d(i), which concerned the alleged injury to the Colombia potato -processing
industry; and (ii) Annex 10, which contained information on the three domestic companies on whose
behalf FEDEPAPA filed its application. 97 However, as Colombia confirmed before the Panel,
FEDEPAPA's explicit request for confidential treatment concerned Annex 10 only, and did not relate
to section d(i). 98 Subsequently, however, the redac tions to section d(i) of the revised application
remained on the public record without any further action, including any showing of "good cause",
being undertaken by FEDEPAPA or MINCIT.99 Moreover, a non-redacted version of section d(i) of the
revised application was never put on the public record.100
4.43. Article 6.5 states that a showing of good cause is required as soon as information was
"provided on a confidential basis " by a party to an investigation, and that it was "treated as such"
by the investigating authority. As we see it, the act of submitting information in both redacted and
non-redacted forms indicates that such information was, in the language of Article 6.5, "provided on
a confidential basis". Likewise, the fact that MINCIT allowed section d(i) o f the revised application
to remain on the public record in that redacted form indicates that such information was, in the
language of Article 6.5, "treated" as confidential by MINCIT. Because there was no showing of "good

90 Colombia's responses to questions at the hearing.
91 Panel Report, para. 7.110 (quoting MINCIT's deficiency letter to FEDEPAPA (Panel Exhibit EU-9a),
numeral 5).
92 Panel Report, para. 7.110 (quoting revised application (Panel Exhibit EU-10), section 11).
93 Panel Report, para. 7.110 and fn 241 thereto (referring to Colombia's response to Panel question
No. 1.1, para. 3; and quoting revised application (Panel Exhibit EU-10), section 10 d(i)).
94 Panel Report, para. 7.110 (quoting notice of initiation (Panel Exhibit EU-1a), section 1.5).
95 Panel Report, paras. 7.122 and 7.126. See also Panel Report, fn 261 to para. 7.120 (referring to the
redacted and non-redacted versions of the revised application in Panel Exhibits EU-10 and COL-67).
96 Panel Exhibits EU-10 and COL-67, respectively.
97 Panel Report, para. 7.110 and fn 241 thereto. The Panel explained that, although the confidential
information of the domestic companies was set out in Annexes 10-12 of the revised application, it would refer
to these three annexes as "Annex 10" for ease of reference. (Ibid., fn 241 to para. 7.110)
98 Panel Report, paras. 7.120 and 7.122 and fn 267 thereto (referring to Colombia's response to Panel
question No. 13.2, para. 67).
99 Panel Report, para. 7.122 (stating that "[t]he parties thus do not dispute that the applicant did not
attempt to show 'good cause' for the confidential treatment of this information.").
100 The European Union noted at the hearing that the first time it was able to see the information that
had been redacted was when the non-redacted version had been provided to the Panel in these proceedings.
(European Union's responses to questions at the hearing; see also Panel Report, fn 261 to para. 7.120
(referring to section d(i) of the redacted and non-redacted versions of the revised application in Panel Exhibits
EU-10 and COL-67))

cause" for the information to be treated as confidential, MINCIT has acted in a manner inconsistent
with Article 6.5.101
4.44. Colombia further contends that the redacted information in section d(i) cannot be found to
have been treated as confidential as it was available in a non-redacted form elsewhere on the record.
As Colombia puts it, "any interested party seeking the information otherwise redacted in the revised
application could have found it in the equivalent table in the original application, which was placed
on the public record. "102 In support, Colombia points to the Panel 's statement that the "'relevant
tables' in both applications 'share the same title, structure, and source of information'".103
4.45. The Panel stated that such similarities were "not enough to demonstrate that the information
at issue was the same".104 Specifically, the Panel found that the similarities did not by themselves
"demonstrate (or make it easy to 'infer') that the specific 'values' or 'trends' redacted in one table are
the same as the 'values' or 'trends' allegedly available in another table ".105 Accordingly, the Panel
rejected Colombia 's argument that a reading of both applications "clearly shows ", or enabled a
reader to "easily infer", that the redacted information in section d(i) of the revised application was
the same as the relevant information contained in the original application.106
4.46. That the same information redacted in one document is available and disclosed in another
document may mean that the applicant no longer considers that the information is truly kept
"confidential". However, for the exporter and other interested parties, that is not necessarily the
case. Interested parties must not only search and identify the exact place in the other document
where the information can be found. In addition, they cannot be certain if the information provided
in one document and that withheld in another is really the same. The applicant may know for certain;
the exporter cannot be sure. On the contrary, the fact that the information was redacte d in a later
document could lead an interested party to believe that there must have been a change to that
information justifying the difference in treatment from non-redacted to redacted.
4.47. In light of the Panel 's factual finding that a joint reading of bot h applications did not clearly
show, or enable a reader to easily infer, that the redacted information in section d(i) was the same
as the information contained in the original application, we see no basis to disturb the Panel 's
understanding that such inf ormation was properly regarded as having been granted confidential
treatment by MINCIT.107
4.3.3 Conclusion
4.48. On the basis of the above, we uphold the Panel's finding, in paragraphs 7.126, 7.152.a, and
8.1.b.i of its Report, that the European Union had established that Colombia acted inconsistently
with its obligations under Article 6.5 of the Anti -Dumping Agreement with respect to the redacted
information in section d(i) of FEDEPAPA 's revised application because MINCIT granted confidential
treatment to this information without a showing of "good cause" by the applicant.

101 For this reason, our consideration of this matter is not coloured by Colombia's contention that the
European Union should have instead brought a claim under Article 6.4 of the Anti-Dumping Agreement, which
relates to the requirement of an authority to provide timely opportunities to interested parties to see
non-confidential information relevant to the presentation of their cases. (Colombia's responses to questions at
the hearing; see also Colombia's written submission, para. 5.23 and fn 86 thereto) Because we deem that
information in section d(i) of the revised application was accorded confidential treatment by MINCIT, Article 6.4
is not applicable to that information.
106 Panel Report, para. 7.125.
107 Colombia argues that the information in footnote 3 to section d(i) of the revised application was not
treated as confidential because it was ultimately disclosed by MINCIT in its notice of initiation. (Colombia's
written submission, paras. 5.24-5.25) However, we do not see that this alters the Panel's and our
consideration that the information contained in the main text of section d(i), which remained on the public
record in its redacted form, was properly regarded as having been granted confidential treatment by MINCIT.

4.4 Claim under Article 6.2 of the DSU
4.4.1 Introduction and Panel findings
4.49. Colombia appeals the Panel 's finding that the European Union's panel request satisfied the
requirement of Article 6.2 of the DSU with respect to the European Union's "packaging cost-related
claim" under Article 2.4 of the Anti-Dumping Agreement and that, therefore, such claim fell within
the Panel 's terms of reference. 108 The "packaging cost -related claim " at issue con cerned the
European Union's allegation before the Panel that "Colombia acted inconsistently with the
requirement under Article 2.4 to make a fair comparison because MINCIT did not grant [Belgium
exporter] Mydibel's adjustment request and, instead, elected to exclude certain packaging costs
from the export price but retained packaging costs on the normal value side ."109 According to
Colombia, while the first part of this allegation, on the failure to grant an adjustment request, was
contained in the panel request, the second part, regarding the exclusion of certain packaging costs
from the export price side alone, was a separate claim raised only during the panel proceedings and
hence fell outside the Panel's terms of reference.110
4.50. Article 6.2 of the DSU provides, in relevant part:
Article 6
Establishment of Panels
2. 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.
4.51. The relevant part of the European Union's panel request, including its paragraph 5, reads as
follows:
The measures at issue described above [in the panel request] appear to be inconsistent
with Colombia's obligations under the following provisions of the covered agreements:
5. Article 2.4 of the Anti -Dumping Agreement because Colombia did not make a fair
comparison between the export price and the normal value. In particular, Colombia did
not make due allowances for differences which affect price comparability, including for
differences in physical characteristics and/or any other differences between the products
sold on the domestic markets in Belgium, G ermany and the Netherlands, and the
products under investigation sold on the export market, which were demonstrated to
affect price comparability. Inter alia, Colombia disregarded the differences between the
types of products, the different proportions of high and low value products exported to
Colombia, as compared to domestic sales in Belgium, Germany and the Netherlands, as
well as differences in packaging and differences resulting from the use of different types
of oils.111
4.52. In addition, Article 2.4 of the Anti-Dumping Agreement provides, in relevant part:

108 See Colombia's Notice of Appeal, para. 3 (referring to Panel Report, paras. 7.232-7.233, 7.244, and
8.1.d.ii).
110 Colombia's written submission, para. 6.1. See also Panel Report, paras. 7.219 and 7.223. Colombia
requests that we declare "moot and of no legal effect" the Panel's substantive finding under Article 2.4 should
we accept Colombia's appeal under Article 6.2 of the DSU. (Colombia's written submission, paras. 6.35 and
6.38)
111 WT/DS591/2, pp. 2-3. (emphasis added)

Article 2
Determination of Dumping
2.4 A fair comparison shall be made between the export price and the normal value. … Due
allowance shall be made in each case, on its merits, for differences which affect price
comparability, including differences in conditions and terms of sale, taxation, levels of trade,
quantities, physical characteristics, and any other differences whi ch are also demonstrated
to affect price comparability.
4.53. By way of background, the European Union's "packaging cost-related claim" at issue arose
from the following facts that transpired before MINCIT. 112 In its questionnaire response during the
investigation, Mydibel stated that, while it used the same packaging materials in all of its sales, the
costs of these common components differed between products made for export and those made for
domestic sales, due to differences in product types and customer spe cifications.113 In particular,
customers in its domestic market requested packaging material that incurred higher costs. 114 To
account for this difference, Mydibel requested an adjustment 115 by listing the cost of "packaging
material" as one of the elements of the cost of manufacture, and identifying the amount incurred
for packaging for each product type.116
4.54. MINCIT did not make the adjustment requested by Mydibel. 117 Instead, MINCIT deducted
certain packaging costs from the export price 118, without making any corresponding adjustment to
the normal value 119, resulting in a so -called "asymmetrical deduction ".120 In its comments on
MINCIT's essential facts disclosure, Mydibel stated explicitly that its exports did not incur any
additional export packaging costs distinct from those incurred in its domestic sales. 121
Notwithstanding Mydibel's comment, MINCIT maintained that it deducted costs for "export packaging
material" from the export price alone (thereby increasing any margin of dumping), and that it did
not make any normal value adjustment for packaging costs (which would have decreased the margin
of dumping) because, in its view, "packaging costs … are part of the production … costs."122
4.55. During the panel proceedings, the European Union submitted that Colombia acted
inconsistently with the requirement under Article 2.4 to make a fair comparison, because MINCIT
"erred in declining " Mydibel's adjustment request "for differences in the cost of the common
packaging components ", and then "compounded the error " by making the "asymmetrical
deduction".123 Colombia challenged the sufficiency of the panel request under Article 6.2 of the DSU,

112 Our brief description of these facts is based on the Panel's factual findings not subject to appeal.
113 Panel Report, paras. 7.217 and 7.234 (referring to Mydibel's questionnaire response (Panel
Exhibit EU-30a (BCI)), section 5; Mydibel's comments on the essential facts technical report (Panel
Exhibit COL-1 (BCI)), pp. 10-11 and 21).
114 Panel Report, para. 7.234 (referring to Mydibel's comments on the essential facts technical report
(Panel Exhibit COL-1 (BCI)), p. 21).
115 Panel Report, para. 7.217 (referring to European Union's first written submission to the Panel,
paras. 182-183; Mydibel's questionnaire response (Panel Exhibit EU-30a (BCI)), section 5).
116 Panel Report, para. 7.238 (referring to Mydibel's questionnaire response (Panel Exhibit EU-30a
(BCI)), section 5; Mydibel's questionnaire response, Annex 3.2.1.2, 3rd workbook "costes de manufactura"
(Panel Exhibit EU-30.1 (BCI)).
117 Panel Report, para. 7.217.
118 See Panel Report, fn 468 to para. 7.242 (referring to European Union's second written submission to
the Panel, para. 74 (arguing that "the amount that MINCIT deducted from the export price … corresponds to
what Mydibel indicated as regular full packaging costs" and "is roughly the same amount as what was included
as full packaging costs on the normal value side")). The Panel noted that "Colombia neither substantiated its
assertions concerning the existence of export … packaging costs, nor attempted to rebut the
European Union's arguments to the contrary." (Ibid., para. 7.242)
119 Panel Report, para. 7.217 (referring to MINCIT's responses to comments on essential facts (Panel
Exhibit EU-17a), section 7).
120 See e.g. Colombia's written submission, para. 6.4.
121 Panel Report, para. 7.238 (referring to Mydibel's comments on the essential facts technical report
(Panel Exhibit COL-1 (BCI)), pp. 14 and 17).
122 Panel Report, para. 7.239 (quoting MINCIT's responses to comments on essential facts (Panel
Exhibit EU-17a), section 7) (emphasis added by the Panel); European Union's response to questioning at the
hearing.
123 Panel Report, para. 7.235 (referring to European Union's first written submission to the Panel,

arguing that, whereas the panel request referred to MINCIT's alleged "disregard" of packaging costs
differences, the allegation against the "asymmetrical deduction" developed in the European Union's
first written submission was "substantively different" from that which was in the panel request. 124
In the alternative, Colombia also challenged the merits of the European Union's above allegation.125
4.56. The Panel, having examined the panel request and how the European Union developed its
claim during the panel proceedings, found that "the European Union's panel request did not need to
engage in detail with all the factual aspects of the calculation that led to Colombia 's alleged failure
to perform a fair comparison."126 "In particular", the Panel stated, "it was not necessary for the panel
request to outline which specific adjustment was allegedly not – or incorrectly – made and why."127
The Panel therefore concluded that Article 6.2 of the DSU does not require the European Union to
include its argument regarding the "asymmetrical deduction" in the panel request in order to provide
a brief summary of the legal basis of its "fair comparison" complaint.128 These findings are subject
to Colombia's appeal.
4.57. In examining the merits of the European Union's claim under Article 2.4, the Panel observed
a "disconnect" between the parties' arguments as they addressed "different types of packaging costs
and, hence, distinct and unrelated types of adjustments ".129 Specifically, the European Union's
arguments referred to Mydibel's request for an adjustment "to account for alleged cost differences"
due to "differences in product types and customer specifications ", while Colombia 's rebuttal
arguments related to an adjustment made by MINCIT "to account for the fact that Mydibel's export
sales allegedly incurred additional – and different – packaging costs than its domestic sales ".130
Having examined the relevant facts underlying these arguments 131, the Panel considered that,
because MINCIT's actual consideration of packaging costs "did not respond to the substance" of the
requested adjustment, MINCIT "failed to provide a proper basis to deny " Mydibel's request.132 The
Panel also considered that "MINCIT had no proper basis … to deduct certain other packaging costs
from the export price " alone.133 Both considerations served as the basis for the Panel 's ultimate
conclusion that Colombia had acted inconsistently with Article 2.4 for its failure to make a fair
comparison. These findings are not subject to , but pro vide relevant background for assessing ,
Colombia's appeal under Article 6.2 of the DSU.
4.4.2 Whether the Panel erred in finding that the European Union's "packaging
cost-related claim " under Article 2.4 of the Anti -Dumping Agreement was within the
Panel's terms of reference pursuant to Article 6.2 of the DSU
4.58. Pursuant to Article 6.2 of the DSU, the "specific measures at issue" and "a brief summary of
the legal basis of the complaint" identified in a panel request constitute the "matter referred to the
DSB" which, pursuant to Article 7.1 of the DSU, forms the basis of a Panel's terms of reference. The
term "legal basis of the complaint" in Article 6.2 has been understood to mean the "claim" brought
by a complainant in a dispute, such as an allegation that th e responding party has acted
inconsistently with an identified provision of a particular agreement. 134 To fulfil the requirement to
provide a "brief summary" of the claim sufficient to "present the problem clearly", findings in prior
disputes suggest that t he complaining party must plainly connect the challenged measure(s) with
the provision(s) of the covered agreements claimed to have been infringed .135 Furthermore, while
the failure to set out a claim in the panel request excludes such claim from the panel 's terms of
reference, the same is not true for arguments. In contrast to claims, "arguments" are the reasons
put forth by a complaining party to demonstrate that the responding party 's measure does indeed

124 Panel Report, paras. 7.219 and 7.223 (referring to Colombia's first written submission to the Panel,
paras. 10.10, 10.12, and 10.14).
125 Panel Report, para. 7.219 (referring to Colombia's first written submission to the Panel, paras. 10.24
and 10.26-10.27; responses to Panel questions No. 5.5(a), paras. 184-186, and No. 5.6, para. 190).
126 Panel Report, para. 7.231.
127 Panel Report, para. 7.231.
128 See Panel Report, para. 7.232.
129 Panel Report, para. 7.237
130 Panel Report, para. 7.237.
131 See Panel Report, paras. 7.238-7.242.
133 Panel Report, para. 7.244.
134 See e.g. Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.14
(quoting Appellate Body Report, Korea – Dairy, para. 139).
135 See e.g. Appellate Body Reports, Korea – Pneumatic Valves (Japan), para. 5.6; China – Raw
Materials, para. 220.

infringe upon the identified treaty provision.136 As such, they are not part of "a brief summary of the
legal basis of the complaint" and need not be included in the panel request. 137 We understand that
the parties, in principle, agree with the applicable legal standard under Article 6.2 as set out
above.138
4.59. On appeal, Colombia contends that the Panel 's findings under Article 6.2 of the DSU do not
correctly reflect the distinction between "claims" and "arguments".139 According to Colombia, the
European Union's panel request only lists a claim regarding packaging cost adjustments, and does
not cover calculation-related and similar errors such as, in Colombia 's view, the European Union's
asymmetrical deduction "claim". Colombia considers that the two "claims" are "distinct, involve
two different sets of facts and two separate, independent decisions by an investigating authority".140
The European Union responds that "Colombia attempts to create an impression of two distinct claims
where there is, in fact, only one: MINCIT disregarded its obligations under Article 2.4 … by carrying
out an unfair comparison between normal value and export price, because various due
allowances/adjustments were not done properly (which includes due allowances/adjustments for
packaging costs)."141
4.60. The European Union's claim related to packaging costs is set out in paragraph 5 of its panel
request and incorporates language from the first and t hird sentences of Article 2.4 of the
Anti-Dumping Agreement. Reading paragraph 5 of the panel request in light of Article 2.4, both
quoted above142, we agree with the Panel's description of the relevant claim set out in paragraph 5:
[T]he European Union describes the elements of its Article 2.4 complaint as
being: (a) the alleged failure to "make a fair comparison between the export price and
the normal value"; (b) "[i]n particular", the alleged failure to "make due allowances for
differences … affect[ing] price comparability "; and (c) as an example ( "inter alia"),
Colombia's alleged disregard for "differences in packaging".143
4.61. Therefore, the European Union's panel request plainly connects (i) the relevant aspect of the
measure, i.e. MINCIT's treatment of differences affecting price comparability, including its alleged
disregard of packaging differences, with (ii) the relevant provision of the covered agreements,
namely, the requirement to make "due allowance" for differences affecting price comparability and
a "fair comparison" under Article 2.4.144 As the Panel also noted, the alleged disregard for differences
in packaging is listed as an "example". As such, it helps to illustrate the claim, but the fact that the
European Union chose to elaborate by providing examples should not be taken as narrowing the
scope of the claim.145
4.62. The requirement to make "[d]ue allowance" in Article 2.4 has been understood to mean that
"additions or deductions in appropriate amounts to the export price or normal value may be required
to account for 'differences' … affect[ing] price comparability, thereby ensuring the 'fairness' of the
comparison".146 It has also been noted that "Article 2.4 prohibits investigating authorities from
making adjustments … when [differences in characteristics] have no impact on price comparability",
and that "making allowances that are not warranted will render the comparison unfair".147 The text
of Article 2.4 and its interpretation thus indicate that not only a lack of due allowance (e.g. MINCIT's
refusal of Mydibel's request to make due allowance for higher packaging costs for domestic sales),
but also an adjustment that is unwarranted (e.g. MINCIT's asymmetrical deduction of packaging

136 See e.g. Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.14
(referring to Appellate Body Report, Korea – Dairy, para. 139). The United States similarly noted at the hearing
that the standard Working Procedures in Appendix 3 of the DSU clarify that "facts" and "arguments" are to be
presented in a party's written submission. (United States' third party's opening statement at the hearing)
137 See e.g. Panel Report, Costa Rica – Avocados (Mexico), para. 3.8 of Annex D; Appellate Body Report,
Korea – Pneumatic Valves (Japan), paras. 5.6 and 5.31.
138 Parties' responses to questioning at the hearing.
141 European Union's written submission, para. 66.
142 See paras. 4.51-4.52 above.
143 Panel Report, para. 7.227.
144 See also European Union's written submission, paras. 70-73.
145 See Appellate Body Report, EC – Selected Customs Matter, para. 153.
146 Panel Report, EU – Biodiesel (Argentina), para. 7.294. (emphasis added)
147 Appellate Body Report, EU – Fatty Alcohols (Indonesia), para. 5.22. (fn omitted)

costs only on the export price side), could lead to a violation of the principle of "fair comparison".148
Both types of conduct on the part of an authority concern differences affecting price c omparability
that could have a bearing on the ability to ensure a fair comparison.
4.63. In light of the applicable legal standard under Article 2.4, therefore, we fail to see a basis in
Article 2.4 to support Colombia 's restricted reading of "allowance" as pert aining only to
"[a]djustments … requested by investigated parties " and involving "the treatment of particular
expenses incurred by the exporter ".149 Neither do we see a distinction between "due allowances"
and "issues such as calculation-related or similar errors ", the latter of which are not, according to
Colombia, listed in paragraph 5 of the panel request.150 Rather, in our view, paragraph 5 of the panel
request potentially covers errors made by the authority that allegedly r endered an "allowance" it
made "undue" or "unfair".
4.64. Similarly, we do not find that paragraph 6 of the panel request lend s support to Colombia's
position.151 Paragraph 6 states as follows:
[The measures at issue described above appear to be inconsistent with Colombia's
obligations under] Article 2.4 of the Anti-Dumping Agreement because Colombia did not
make a fair comparison between the export price and the normal value by deducting
certain sea freight and insurance costs twice from the export price of a com pany,
thereby unduly lowering the export price.152
4.65. Both paragraphs 5 and 6 concern a failure to make a "fair comparison" under Article 2.4,
although each has its own focus. The fact that paragraph 6 appears to be directed at certain
duplicative deductions d oes not preclude the possibility that the claim raised under paragraph 5
covers other errors in MINCIT's determination on "due allowance ". We therefore do not read
paragraph 6 as diminishing or altering the scope of the claim set out in paragraph 5 regarding a
failure to make "due allowance".
4.66. Turning to the European Union's allegations during the panel proceedings 153, we recall that
both MINCIT's disregard of the requested adjustment and its asymmetrical deduction occurred within
the same context and investigative step, i.e. as part of MINCIT 's treatment of packaging costs for
the purpose of conducting the price comparison with respect to Mydibel.154 To elaborate on its claim
under Article 2.4 during the panel proceedings, the European Union relied on both MINCIT's alleged
error in declining the requested adjustment, as well as the asymmetrical deduction which, in its
view, "compounded" that error.155 We therefore share the Panel's view that both allegations concern
"detail[s]" in the "factual aspects of the calculation that led to Colombia's alleged failure to perform
a fair comparison".156 As the Panel rightly found, the panel request need not engage in these details
or outline "which specific adjustment was allegedly not – or incorrectly – made and why".157
4.67. Colombia nonetheless submits that the European Union's allegations regarding these
two aspects of MINCIT's conduct "involve two factually and legally 'distinct and unrelated ' issues"
and are "two different claims".158 As a linchpin of this argument, Colombia submits that "[t]he Panel
itself described these two issues as 'of a different type and of a different nature ' and as 'different
types of packaging costs and, hence, distinct and unrelated types of adjustments'."159

148 See also European Union's written submission, para. 69.
149 Colombia's written submission, para. 6.22. (emphasis added) Colombia refers to paragraph 5 as
listing "a range of adjustments". In light of the language used in paragraph 5, we understand Colombia uses
the word "adjustments" to refer to "allowance". (Ibid.)
152 WT/DS591/2, p. 3. (emphasis added)
153 Panel Report, para. 7.228.
154 See factual background contained in paras. 4.53-4.54 above.
156 Panel Report, para. 7.231.
157 Panel Report, para. 7.231.
158 Colombia's written submission, paras. 6.3 and 6.28. (emphasis omitted)
159 Colombia's written submission, para. 6.29 (quoting Panel Report, paras. 7.237 and 7.243).
(emphasis omitted)

4.68. The statements quoted by Colombia were made by the Panel when describing a certain
"disconnect" between the parties' arguments and the facts underlying these arguments.160 Read in
context, these statements reflect the Panel's appreciation of the fact that, in addressing the issue of
packaging costs, what MINCIT was requested to do and what it actually did were different. As noted
above, having examined how this mismatch transpired in MINCIT 's treatment of packaging cost
adjustments161, the Panel came to the view that MINCIT "failed to provide a proper basis to deny "
Mydibel's request because what MINCIT actually did (i.e. the asymmetrical deduction) "did not
respond to the substance of [the requested] adjustment".162 The mismatch between the two factual
aspects at issue was thus one of the reasons supporting the Panel 's conclusion that MINCIT 's
treatment of packaging costs was inconsistent with Article 2.4.163 This does not turn these two
factual aspects, as Colombia argues, into two separate "claims" that are "legally independent of each
other", let alone claims that are somehow not covered by the European Union's panel request.164
4.69. Furthermore, Colombia highlights the due process objective of a panel request, including to
enable the respondent to know what case it has to answer and begin preparing its defence. 165
However, apart from a general reference to the number of claims contained in the European Union's
panel request, of which the European Union pursued only a "subset"166, Colombia's arguments do
not indicate how its due process rights were breached due to the alleged lack of clarity of the
European Union's panel request. On the contrary, given that the two f actual elements underlying
the European Union's allegations related to the same investigative step regarding Mydibel's
packaging costs167, we see no grounds to consider that Colombia received insufficient notice as to
the scope of the European Union's claim listed in paragraph 5 of the panel request.
4.70. Finally, Colombia argues that Article 6.2 of the DSU and Article 17.5(ii) of the Anti-Dumping
Agreement, read together, "require[] the complainant … to identify [in the panel request] the
discrete set of 'facts made available' to the investigating authority during the investigation".168 This
means that, for purposes of a claim under Article 2.4 of the Anti-Dumping Agreement, a complainant
must identify "the particular element of the determination ", such as adjustments, the construction
of the export price, or the mechanics of the comparison, so that the respondent can "know what
case it has t o answer".169 We note that Article 17.5(ii) governs the scope of evidence a panel is
allowed to review in disputes involving anti -dumping measures. 170 The "facts" referred to in
Article 17.5(ii) are what a panel may examine during the panel proceedings, not what a complainant
must spell out in the panel request. We therefore fail to see how Article 17.5(ii) of the Anti-Dumping
Agreement is relevant for assessing the sufficiency of a panel request.171 Instead, we consider that

160 See relevant summary of panel findings in para. 4.57 above. See also Panel Report, paras. 7.237 and
7.243. Given the Panel's description of the parties' arguments before it, we are not convinced by Colombia's
assertion that "[t]he EU never raised Mydibel's adjustment request before the Panel" and that "[t]he entirety of
the EU's case, from the first written submission all the way to its responses to the Panel's questions, revolves
around the alleged asymmetrical deduction." (Colombia's written submission, para. 6.29) (emphasis omitted)
See also Panel Report, para. 7.228 (quoting the European Union's first written submission to the Panel,
para. 183 (in turn, referring to both MINCIT's denial of adjustment request and its asymmetrical deduction)).
161 See Panel Report, paras. 7.238-7.242.
163 Panel Report, para. 7.244. See also Panel Report, paras. 7.242-7.243.
164 Colombia's written submission, para. 6.29. (emphasis omitted) Given the facts of the case, we do not
find it pertinent to address the hypothetical scenarios raised by Colombia that "[t]he asymmetrical deduction
problem could have arisen even if Mydibel had made no adjustment request for packaging costs." (Ibid.,
para. 6.29) Neither do we find it relevant to consider, for purposes of resolving Colombia's appeal, how a
respondent could bring itself into compliance in "a hypothetical instance where both allegations are accepted
by a panel". (Ibid.)
165 Colombia's written submission, paras. 6.13-6.16.
167 MINCIT discussed its asymmetrical deduction, and its reason for not making any packaging cost
adjustments to the normal value, in the same section of its response to comments on the essential facts
disclosure. (See MINCIT's responses to comments on essential facts (Panel Exhibit EU-17a), section 7 (referred
to in Panel Report, fns 464 and 465), pp. 28-30)
169 Colombia's written submission, para. 6.19 (quoting Appellate Body Report, US – Oil Country Tubular
Goods Sunset Reviews, para. 162).
170 See e.g. Panel Reports, EC – Salmon (Norway), paras. 7.835-7.843; US – Shrimp II (Viet Nam),
paras. 7.7-7.8; US – Softwood Lumber V, paras. 7.31-7.43; and EC – Tube or Pipe Fittings, paras. 7.42-7.47.
171 As the European Union submits, Article 17.5(ii) "has nothing to do with the panel request".
(European Union's written submission, para. 67) As the United States similarly notes, Article 17.5(ii) delineates

a granular description of the fact s, as Colombia suggests, is not required in a panel request under
Article 6.2 of the DSU.
4.4.3 Conclusion
4.71. On the basis of the above, we uphold the Panel's finding, in paragraphs 7.232, 7.233, 7.244,
and 8.1.d.ii of its Report, that the European Union's claim un der Article 2.4 of the Anti -Dumping
Agreement concerning Mydibel 's packaging cost -related adjustment request fell within the
Panel's terms of reference. For these reasons, we also decline Colombia's request to "declare moot
and of no legal effect" the Panel's substantive findings under Article 2.4.
4.5 Claim under Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement
4.5.1 Introduction and Panel findings
4.72. Colombia appeals the Panel's finding that MINCIT acted inconsistently with Articles 3.1, 3.2,
3.4, and 3.5 by including in its final injury and causation determinations imports from exporters that
were determined to have final de minimis dumping margins.172 According to Colombia, interpreting
the term "dumped imports" in Articles 3.1, 3.2, 3.4, and 3.5 to include imports with final de minimis
dumping margins, as MINCIT did, "is correct or, at the very least, a 'permissible' interpretation within
the meaning of Article 17.6(ii) of the Anti-Dumping Agreement".173
4.73. Article 3 of the Anti -Dumping Agreement, entitled "Determination of Injury ", elaborates on
the requirement of injury. Article 3.1 provides:
Article 3
Determination of Injury
3.1 A determination of injury for purposes of Article VI of GATT 1994 shall be based on positive
evidence and involve an objective examination of both (a) the volume of the dumped imports and
the effect of the dumped imports on prices in the domestic market fo r like products, and (b) the
consequent impact of these imports on domestic producers of such products. (underlining added)
4.74. Articles 3.2, 3.4, and 3.5 similarly refer to "dumped imports" without explicitly addressing
whether this includes or excludes imports with de minimis dumping margins.

the scope of a panel's evidentiary review of the investigating authority's evaluation of the facts before it, and
does not address, nor concern itself with, the identification of the specific measures at issue and of the legal
basis of the complaint under Article 6.2 of the DSU. (United States' third party's opening statement at the
hearing)
172 See Colombia's Notice of Appeal, para. 4 (referring to Panel Report, paras. 7.303, 7.307, and
8.1.e.i). See also Colombia's written submission, para. 7.1. Colombia does not appeal the Panel's finding, in
paragraph 7.305, that MINCIT acted inconsistently with the same provisions by including in its injury and
causation analysis imports from exporters found to have negative dumping margins. (Ibid., fn 116 to
para. 7.1)

4.75. In addition to the above provisions at issue under Article 3, the parties and the Panel also
referred to, inter alia, Article 2.1 and Article 5.8 as pertinent context. Article 2 contains rules on the
determination of dumping, and its first paragraph provides:
Article 2
Determination of Dumping
2.1 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 norma l 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.

4.76. Article 5, in turn, entitled "Initiation and Subsequent Investigation", sets out rules and more
precise steps for specific anti-dumping applications and investigations. Article 5.8 provides:
Article 5
Initiation and Subsequent Investigation
5.8 An application unde r paragraph 1 shall be rejected and an investigation shall be terminated
promptly as soon as the authorities concerned are satisfied that there is not sufficient evidence of
either dumping or of injury to justify proceeding with the case. There shall be im mediate
termination in cases where the authorities determine that the margin of dumping is de minimis, or
that the volume of dumped imports, actual or potential, or the injury, is negligible. The margin of
dumping shall be considered to be de minimis if this margin is less than 2 per cent, expressed as
a percentage of the export price. (underlining added)
4.77. The Panel observed that, while the term "dumped imports" carries the same meaning across
Articles 3.1, 3.2, 3.4, and 3.5, it is not defined in Article 3.174 The Panel noted that the parties
identified different textual and contextual elements in support of their positions.175 To the Panel, the
principle of effectiveness, which flows from Article 31 of the Vienna Convention, meant that it may
not ad opt an interpretation that would result in reducing the provisions of the Anti -Dumping
Agreement to redundancy or inutility.176
4.78. The Panel considered that, "[i]n this case ", Article 5.8 of the Anti -Dumping Agreement
"provides important context for the interpretation of the term 'dumped imports'" because, in addition
to Article 2.1, provisions of Article 5 are applicable to and regulate the entire anti -dumping
investigation to determine the existence, degree, and effect of any alleged dumping. 177 Article 5.8
requires an authority to end its investigation as soon as it determines that the margin of dumping is
de minimis. Furthermore, an injury determination under Article 3 follows and takes into account the
determination of the margin of dumping. Read together, t hese provisions indicate that, once a
producer or exporter has been assigned a de minimis margin of dumping, the continued treatment
of any imports from that producer or exporter as "dumped imports", in any subsequent injury and
causation analyses under Ar ticle 3, would render ineffective the requirement to "immediate[ly]
terminate" the investigation.178
4.79. Colombia argued before the Panel that Articles 3.3 and 9.4 (which do explicitly exclude
de minimis margins of dumping) demonstrate the absence of a link bet ween Article 5.8 and
Articles 3.1, 3.2, 3.4, and 3.5 because, when drafters decided to qualify the dumping margins as
those above the de minimis threshold, they did so expressly.179 In the Panel's view, however, given
the "considerably different" scope of these provisions, the fact that Articles 3.3 and 9.4 explicitly
make Article 5.8 operational in the specific situations contemplated under those provisions

174 Panel Report, paras. 7.287-7.289.
175 Panel Report, paras. 7.289-7.291.
176 Panel Report, para. 7.291.
177 Panel Report, para. 7.292.
179 Panel Report, para. 7.295 (referring to Colombia's response to Panel question No. 6.3, para. 204;
second written submission to the Panel, para. 9.23).

highlighted the contextual relevance of Article 5.8 for the general injury and causation
determinations under Article 3.180 In addition, the Panel rejected Colombia's reliance on the panel's
finding in Canada – Welded Pipe, where the panel found that the notion of "dumping" does not have
a de minimis component, because that finding concerns the interpretation of "dumping" in
Article 7.1(ii), which is limited to the application of provisional anti-dumping measures not at issue
in this dispute.181 The Panel highlighted, instead, the same panel's statement that imports from an
exporter with a final de minimis margin of dumping "should not be treated as 'dumped' for the
purpose of the analysis and final determinations of injury and causation ", because "Article 5.8
effectively means that there is no legally cognizable dumping" by that exporter.182
4.80. Finally, the Panel disagreed with Colombia that, under its legal system, in which final
determinations of dumping, injury, and causation occur at the same time, "the only way to terminate
immediately an investigation, in respect of producers or exporters for which a de minimis margin of
dumping is determined, is to exclude them from the scope of the order ."183 The Panel found that
authorities' freedom to structure their investigations cannot be used as a justification for
non-compliance with the unambiguous requirement under Article 5.8 to terminate immediately an
investigation in cases where the authorities determine that the margin of dumping is de minimis.184
In conclusion, the Panel found that Colombia 's interpretation of the term "dumped imports " as
including de minimis margin imports is not "permissible" within the meaning of the second sentence
of Article 17.6(ii) of the Anti-Dumping Agreement.185
4.81. In paragraphs 4.8 to 4.15 above, we set out our approach to addressing the interpretative
issues before us under Articles 5.2(iii) and 5.3 (especially, the phrase "where appropriate") in light
of Article 17.6(ii). We follow the same approach below in examining Colombia 's appeal under
Articles 3.1, 3.2, 3.4, and 3.5 regarding the term "dumped imports". In doing so, our task is not to
search for a single interpretation that we consider to be "final" or "correct". Rather, we will test
Colombia's interpretation of the term "dumped imports" and ask whether a treaty interpreter, using
the Vienna Convention method for treaty interpretation, could have reached Colombia 's
interpretation. In other words, we will examine whether Colombia's interpretation has the required
degree of solidness or analytical support for it to be given deference as "permissible" within the
bounds of the Vienna Convention method for treaty interpretation.
4.5.2 Whether it is permissible to interpret the term "dumped imports" in Articles 3.1,
3.2, 3.4, and 3.5 of the Anti -Dumping Agreement to include imports of exporters
determined to have final de minimis margins of dumping
4.82. On appeal, Colombia contends that the Panel ig nored the ordinary meaning of the term
"dumped imports " in light of the definition of "dumping" in Article 2.1 of the Anti -Dumping
Agreement186, and instead focused on one contextual provision, i.e. Article 5.8, at the expense of
the context provided by oth er provisions such as Articles 3.3, 3.5 , and 9.4.187 Colombia further
argues that the Panel's reliance on Article 5.8 is premised on the erroneous understanding that an
authority must definitely determine the existence of dumping before assessing the existence of injury
and causation, even though such a sequential decision -making process is not required by the
Anti-Dumping Agreement.188 Colombia also seeks to support its view with supplementary means of
treaty interpretation, including preparatory work for the Kennedy Round Anti-Dumping Code.189
4.83. The European Union maintains that the "ordinary meaning" of the term "dumped imports" in
Article 3 refers to those imports attributable to producers or exporters for which, at the end of an
investigation, a margin of dumping greater than de minimis has been calculated. 190 To the
European Union, such a reading comports with the "terms and objectives " of the Anti -Dumping

180 Panel Report, para. 7.298. See also Panel Report, paras. 7.296-7.297.
181 Panel Report, para. 7.299 (referring to Panel Report, Canada – Welded Pipe, paras. 7.59 and 7.64).
183 Panel Report, para. 7.300 (quoting Colombia's response to Panel question No. 6.3, para. 210
(in turn, quoting Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 219)).
184 Panel Report, paras. 7.301-7.302.
185 Panel Report, para. 7.303.
186 Colombia's written submission, paras. 7.16-7.26.
187 Colombia's written submission, paras. 7.27-7.36.
188 Colombia's written submission, paras. 7.37-7.57.
189 Colombia's written submission, paras. 7.21-7.24 and 7.58-7.60.
190 European Union's written submission, para. 105.

Agreement as a whole 191, ensures the effectiveness of all relevant provisions includ ing Articles 5
and 6 of the Agreement 192, and is supported by findings in previous disputes. 193 In reaching its
finding, therefore, the Panel gave due consideration to the ordinary meaning of the term "dumped
imports" in its context194, and did not err in its reliance on Article 5.8 or in its rejection of Colombia's
arguments on the basis of context and preparatory work.195
4.84. At the outset, we note that MINCIT based its final injury and causation determinations in this
case on all investigated imports, i.e. those from exporters for whom it determined final margins of
dumping that were (i) above the de minimis threshold (2% or greater); (ii) below the de minimis
threshold (less than 2%); and (iii) negative.196 The question raised by Colombia's appeal is whether,
by including imports from exporters for whom final de minimis margins of dumping were determined,
MINCIT's injury and causation determinations rest upon a "permissible" interpretation of the term
"dumped imports" in Articles 3.1, 3.2, 3.4, and 3.5. The Spanish and French versions of the same
term are, respectively, "importaciones objeto de dumping " and "importations faisant l 'objet d'un
dumping". The text of these provisions does not define the term "dumped imports" and, on its face,
is silent as to whether the term is limited to imports with margins of dumping above a particular
threshold.
4.5.2.1 Context provided by Article 2.1 and relevant provisions of Article 5
4.85. Colombia's interpretation relies principally on the fact that, under the definition of "dumping"
in Article 2.1, dumping exists when the dumping margin is above 0%. To Colombia, absent an
express indication to the contrary, every time there is a reference to "dumping" anywhere in the
Anti-Dumping Agreement, the definition in Article 2.1 must apply. Thus, the term "dumped imports"
refers to "any imports for which an authority calculates a positive dumping margin regardless of the
magnitude of the margin".197
4.86. Article 2.1, entitled "Determination of Dumping", outlines provisions relevant to determining
whether a "product" can be "considered as being dumped " and does so "[f]or the purpose of " the
Anti-Dumping Agreement. Article 3, however, refers specifically to "dumped imports"198 in the
context of injury determinations, rather than the generic concept of "dumping" in isolation, as
Article 2.1 does. While the definition in Article 2.1 is relevant for interpreting the term "dumped
imports", it is not the only relevant context for assessing the ordinary meaning of this term under
Article 3. This is because, unlike the considerations in Article 2.1 relating to a determination of
"dumping" (or "dumped"), the term "dumped imports" in Article 3 refers to a specific group of
imports subject to an authority 's injury determination in the context of a specific anti -dumping
investigation which, in turn, may lead to the application of duties. This is supported by Article 1 of
the Anti-Dumping Agreement, which states that an anti -dumping measure may be "applied only
under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigations
initiated and conducted in accordance with the provisions of this Agreement".199 Thus, in addition to
Article 2.1, other provisions of the Anti-Dumping Agreement regarding the initiation and conduct of
investigations are also instructive as to the meaning and scope of the term "dumped imports".
4.87. The "provisions" referred to in Article 1 begin with the "Determination of Dumping " in
Article 2, proceed to the "Determination of Injury" in Article 3, and continue with the "Definition of
Domestic Industry " in Article 4. Each provision, separately, addresses one of the substantive
components of an anti-dumping investigation, including by defining the relevant concepts. Article 5,
in turn, links these components together by regulating an investigating authority 's "Initiation and
Subsequent Investigation" to determine the "existence, degree and e ffect of any alleged
dumping".200 Read in its totality, the disciplines imposed by Article 5 are intended to cover all stages

191 European Union's written submission, paras. 106.a and 108-110.
192 European Union's written submission, paras. 106.b and 111-124.
193 European Union's written submission, paras. 125-132.
194 European Union's written submission, paras. 146-155.
195 European Union's written submission, paras. 156-224.
196 See Panel Report, para. 7.282.
197 Colombia's written submission, para. 7.16. (emphasis added)
198 Emphasis added.
199 Emphasis added; fn omitted.
200 Anti-Dumping Agreement, Article 5.1. (emphasis added)

of an investigating authority 's investigation, including the analysis leading to the injury
determination.201
4.88. We recall Colombia 's a rgument that the reference to dumping "anywhere" in the
Agreement202, including in Articles 5.1 and 5.7, must mean "the difference between a higher normal
value and a lower export price regardless of the magnitude ".203 This reading, however, is
contradicted by Article 5.1, which refers to "an investigation to determine the existence, degree and
effect of any alleged dumping " and indicates that not only the existence of dumping, but also its
degree, are pertinent for the conduct of an anti -dumping investigation. Under the Anti -Dumping
Agreement, the degree of dumping is expressed in terms of the margin of dumping. Where an
authority determines the margin of dumping to be de minimis, Article 5.8 requires that there must
be "immediate termination" of the investigation. Thus, notwithstanding the existence of dumping in
the meaning of Article 2.1, if the degree of the dumping is determined to be de minimis for an
exporter, it ends the investigation with regard to that exporter. This also means that, in the scenarios
triggering "immediate termination" under Article 5.8 (i.e. de minimis dumping margins, negligible
volumes of dumped imports, or negligible injury), dumping is not "to be condemned " within the
meaning of Article VI:1 of the GATT 1994204, and hence cannot be the subject of an anti -dumping
measure. Immediate termination, as noted by panels in prior disputes, indicates that there is no
longer "legally cognizable dumping".205
4.89. The term "dumped imports" in Article 3 and the reference to "the magnitude of the margin of
dumping" in Article 3.4 indicate that a determination regarding the injurious effect of dumping under
Article 3 cannot be disconnected from the existence and degree of such dumping . In view of this
connection, where an authority determines final de minimis margins for an exporter206, the fact that
dumping is no longer "legally cognizable" means that imports by that exporter may no longer form
part of "dumped imports" for purposes of the final injury determination required for the imposition
of duties on imports with dumping margins above de minimis.207 In this sense, we agree with the
Panel that "the determination of injury follows – and takes into account – the determination of the
existence and degree of any alleged dumping (i.e. the determination of the margin of dumping)."208
Rather than imposing a "sequential" decision-making process on an investigating authority 209, the
Panel's statement rightly reflects the interconnected nature of an authority's final dumping and injury
determinations as two prerequisites for imposing a definitive anti -dumping measure.210 Reading all
of these provisions holistically, we find, as the Panel found, that inclusion in the injury determination
of imports by exporters with final de minimis margins would "render ineffective the requirement … to
'immediate[ly] terminate' the investigation" under Article 5.8.211

201 See European Union's written submission, para. 117.
203 Colombia's written submission, para. 7.41. (emphasis added) See also ibid., para. 7.42.
204 Article VI:1 of the GATT 1994 provides in relevant part that "dumping … is to be condemned if it
causes or threatens material injury to an established industry … or materially retards the establishment of a
domestic industry". (emphasis added) The requirement regarding "material" injury also aligns with the notion
of "negligibility" underlying the scenarios triggering "immediate termination" in Article 5.8.
205 See e.g. Panel Reports, EC – Salmon (Norway), para. 7.625; Canada – Welded Pipe, para. 7.83.
206 Thus, we are not addressing a scenario in which "an investigating authority calculates a positive
dumping margin below 2% (de minimis) at a particular point in time during the investigation", i.e. before its
final dumping determination. (Colombia's written submission, para. 7.45 (emphasis added)) We therefore do
not find it pertinent to address Colombia's reliance on the panel's finding in Canada – Welded Pipe as those
findings relate to provisional measures. (See ibid., paras. 7.17-7.18 (referring to Panel Report, Canada –
Welded Pipe, para. 7.59); Panel Report, para. 7.299) Furthermore, the significance Colombia attaches to that
panel's finding is premised on Colombia's assumption that the ordinary meaning of the term "dumped imports"
flows directly from the definition of "dumping" in Article 2.1. (See e.g. ibid., paras. 7.16 and 7.26) Our analysis
above addresses and disagrees with such an assumption.
207 As Japan similarly notes, in light of the first sentence of Article VI:1 of GATT 1994, "dumped imports
should not be condemned (i.e., should not be offset by anti-dumping duties) for material injury that is not
attributable to those dumped imports." (Japan's third party's written submission, para. 48 (emphasis added))
208 Panel Report, para. 7.293.
210 Similarly, we do not view the Panel's statement as contradictory to the requirement in Article 5.7
that "[t]he evidence of both dumping and injury … be considered simultaneously". (See Colombia's written
submission, para. 7.41) The word "simultaneously", instead of imposing a strict temporal structure, highlights
that an investigating authority should not consider the evidence regarding dumping and injury "in silos".
(European Union's written submission, para. 187. See also ibid., paras. 189-190.)
211 Panel Report, para. 7.302.

4.90. Colombia disagrees with the view that interpreting "dumped imports" as including those with
a de min imis dumping margin would render Article 5.8 ineffective. 212 To Colombia, the final
"determination" in Article 5.8, upon which the "immediate termination " is required, refers to "a
definitive determination that admits of no further modification " at the end of the investigation. 213
Given that, under Colombia's legal system, authorities make the final determinations of dumping
and injury at the same time, Colombia maintains that the only legal consequence of the "immediate
termination" of the investigation is to exclude the exporters with final de minimis margins from the
scope of the anti-dumping duties.214
4.91. We recall that, according to Colombia, the term "dumped imports" refers to "any imports for
which an authority calculates a positive dumping marg in regardless of the magnitude of the
margin".215 Yet, as Colombia acknowledges, under its interpretation, imports of those exporters
assigned a negative margin of dumping may not form part of the "dumped imports" for purposes of
injury and causation analyses.216 Thus, regardless of how the various steps of an investigation are
structured, Colombia's authority, acting consistently with its own interpretation, must ensure that
imports of exporters determined to have final negative dumping margins are excluded from "dumped
imports" in its final injury determination. 217 In other words, the authority must first make a final
determination on dumping (albeit not necessarily in a separate, formal decision), next delete certain
imports for the purpose of analysing injury and, finally, conduct an injury and causation analysis to
determine appropriate duties (to be applied only to imports with dumping margins above
de minimis). Following this logic, we fail to see why Colombia's investigating authority is prevented
from giving effect to the "immediate termination" requirement by excluding imports not only with
final negative dumping margins but also with final de minimis margins from "dumped imports" for
the final injury determination. 218 Colombia's reference to its anti -dumping practice therefore does
not support its view that th e only legal consequence of the "immediate termination" of the
investigation under Article 5.8 is to exclude exporters with de minimis margins from the application
of duties.219
4.92. Similarly, we do not consider that the Appellate Body's findings under Article 5.8 in Mexico –
Anti-Dumping Measures on Rice lend support to Colombia 's view.220 The findings in that dispute,
including the statement that "the only way to terminate immediately [with respect to those exporters
with 0% dumping margins] is to exclude them from the scope of the order ", flow from the
Appellate Body's application of Article 5.8 to the particular factual scenario of that dispute, namely,
where Mexico did apply duties to imports with 0% dumping margins. 221 Those findings do not
exhaustively define the way in which an investigation is to be "terminated" under Article 5.8 in case
of a final determination of a de minimis margin of dumping.222

214 Colombia's written submission, paras. 7.49, 7.56, 7.57, and 7.59; response to questioning at the
hearing.
215 Colombia's written submission, para. 7.16. (emphasis added)
216 Colombia's response to questioning at the hearing.
217 Brazil's response to questioning at the hearing.
218 See European Union's written submission, para. 198 (noting that "the practical difficulties Colombia
invoked … are illusory"). See also Japan's third party's written submission, para. 56 (noting that "it is
undisputable that at least imports from exporters with zero dumping margins should not be included in the
dumped imports under Article 3" and that, "regardless of the precise timing of each determination, it is obvious
that the determination, finding or analysis of injury and causation follows and takes into account those of
dumping margin, as a 'logical' sequence").
220 Colombia's written submission, paras. 7.56, 7.57, and 7.59.
221 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 219. (emphasis original) The
Appellate Body made this statement after noting that, "[i]n the present case, the order establishing
anti-dumping duties came after the final determination of a margin of dumping of zero per cent was made for
[the exporters at issue], but the order nevertheless covered these exporters." (Ibid., para. 219 (emphasis
added)) As Japan also notes, "the focus in Mexico – Anti-Dumping Measures on Rice was the final treatment of
exporters with de minimis dumping margins themselves, and not their role in the injury determination."
(Japan's third party's written submission, para. 57)
222 We emphasize that our analysis is framed by the question put before us, namely, whether it is
permissible to interpret the term "dumped imports" to include imports of exporters who are "determined" to
have final de minimis dumping margins. For greater clarity, we are not asked to, and we do not, address the
implication of a preliminary determination of a de minimis margin in an authority's investigation prior to the
final dumping determination.

4.5.2.2 Context provided by Articles 3.3, 3.5, and 9.4
4.93. In addition to the definit ion of "dumping" in Article 2.1, Colombia relies on several other
contextual elements to highlight the "absence of a link " between Article 5.8 and Articles 3.1, 3.2,
3.4, and 3.5. To Colombia, "nothing in the Anti-Dumping Agreement explicitly states that the legal
consequence (or purpose) of immediately terminating an investigation in Article 5.8 is to exclude
the imports with de minimis dumping margins from the injury and causation analysis in Article 3"223,
and this is confirmed by Articles 3.3, 9.4, and 3.5.
4.94. Beginning with Article 3.5, this provision prohibits an authority from attributing to the
"dumped imports" those injuries caused by "any known factors other than the dumped imports ",
including, "inter alia, the volume and prices of imports not sold at dumping prices ."224 "Evidently",
Colombia argues, "imports with de minimis dumping margins fall outside of the category of imports
not sold at dump[ing] prices " and, "therefore", such de minimis margin imports "form part of the
'dumped imports'".225 This argument assumes that all imports that are "sold at dumping prices "
must necessarily belong to the group of "dumped imports". However, whether this assumption is
correct depends on the answer to the very question of what is meant by "dumped imports". Relying
on this non -attribution factor to interpret "dumped imports " is thus "self-referential"226 and
unavailing.
4.95. Colombia nonetheless considers that the contextual relevance of Article 3.5 becomes even
more apparent when that provision is juxtaposed with Articles 3.3 and 9.4. Colombia notes that the
fourth sentence of Article 3.5 (i.e. the illustrative list of non -attribution factors) was added during
the Uruguay Round at the same time as Articles 3.3 and 9.4. To Col ombia, the absence of any
reference to de minimis dumping margins in Article 3.5, and the express references to such margins
in Articles 3.3 and 9.4, supports its view that, had the drafters wished to limit the "dumped imports"
in Articles 3.1, 3.2, 3.4 , and 3.5 to dumped imports above de minimis margins, they could have
done so explicitly.227
4.96. Under Article 3.3, investigating authorities may cumulatively assess the effects of imports
from more than one country only if they determine, inter alia, that "the margin of dumping
established in relation to the imports from each country is more than de minimis as defined in
paragraph 8 of Article 5."228 The reference to "the margin of dumping established in relation to the
imports from each country" departs from the general rule229 that "[t]he authorities shall … determine
an individual margin of dumping for each known exporter or producer concerned."230 Similarly,
Article 9.4 "also has a different scope than Articles 3.1, 3.2, 3.4, and 3.5"231, as it "focuses on the
determination of the so-called 'all others' rate, i.e. the anti-dumping duty that is applied to imports
from exporters or producers that are not examined by an investigating authority ", requiring an
authority to "disregard … any zero and de minimis margins" in calculating the "all others" rate.232 In
contrast, Articles 3.1, 3 .2, 3.4 , and 3.5, at issue in this dispute, "concern an investigating
authority's determination of injury caused by 'dumped imports' from producers and exporters that
are examined by an investigating authority".233
4.97. In Articles 3.3 and 9.4, therefore, the cross-reference to the de minimis threshold as defined
in Article 5.8, which generally relates to the dumping margin determined for an exporter or producer
individually234, makes this threshold "operational"235 for the specific situations under these
provisions. Thus, the fact that the de minimis threshold is made operational in specific situations

224 Emphasis added.
225 Colombia's written submission, para. 7.30. (emphasis added)
226 European Union's written submission, para. 166.
228 Emphasis added.
229 See Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 220. See also
Panel Report, fns 551 and 552 to paras. 7.296 and 7.298, respectively.
230 Anti-Dumping Agreement, Article 6.10. (emphasis added)
231 Panel Report, para. 7.297.
234 See e.g. Panel Reports, Canada – Welded Pipe, paras. 7.21 and 7.26; Mexico – Anti-Dumping
Measures on Rice, para. 7.140; Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 216.
235 Panel Report, para. 7.298.

under Articles 3.3 and 9.4 reinforces, rather than refutes236, the link between Article 5.8 and Article 3
generally. Given this link, there was no need for the drafters, each time they mentioned "dumped
imports", to cross -reference Article 5.8 in the context of Articles 3.1, 3.2, 3.4 , and 3.5. In those
provisions, the relevance of the de minimis threshold is implied fro m a holistic reading of these
provisions. We share, in this respect, the European Union's view that, as a matter of treaty drafting,
a generally applicable rule need not be repeated in every instance where it is relevant.237 Rather, as
the Panel stated, "the fact that Articles 9.4 and 3.3 refer to Article 5.8 and 'de minimis margins',
and make Article 5.8 operational in the specific situations contemplated under these provisions
highlights … the contextual relevance of Article 5.8 for purposes of the general injury and causation
determinations under Article 3."238
4.5.2.3 Supplementary means of interpretation relied upon by Colombia
4.98. Colombia submitted to the Panel certain documents regarding the negotiating history related
to Article 5.8 of the Anti-Dumping Agreement. This included records of discussion on a provision of
the Kennedy Round Anti-Dumping Code that is "almost identical to … Article 5.8 of the Anti-Dumping
Agreement".239 The Panel did not address Colombia 's arguments concerning negotiating history,
finding, instead, that doing so was unnecessary given its "unambiguous conclusion resulting from
the interpretative exercise under Article 31 of the Vienna Convention".240
4.99. On appeal, Colombia similarly contends th at the negotiating history demonstrates that the
GATT Contracting Parties explicitly rejected a proposal to limit the definition of "dumping" to margins
above a de minimis level.241 Certain documents cited by Colombia may indeed suggest that the
negotiators of the Kennedy Round Anti-Dumping Code chose not to limit the definition of dumping
to instances in which the price difference between normal value and export price was above a certain
minimal percentage. 242 The significance ascribed by Colombia to such ma terials, however, is
premised on its view that the definition of "dumping", alone, is sufficient for deriving the "ordinary
meaning" of the term "dumped imports". In the preceding analysis, we have found that such a
reading runs counter to the overall cont ext of the provisions under the Anti -Dumping Agreement
regarding the initiation and conduct of investigations. Thus, what the negotiating history may have
revealed about the discussions underlying the definition of "dumping" does not elevate Colombia's
interpretation as one that is "permissible".
4.100. Furthermore, even if documents cited by Colombia 243 could be read to indicate that
the de minimis rule "concern[s] the imposition or the right to take anti-dumping measures"244, this
alone does not preclude that the de minimis rule may also be relevant for demarcating the scope of
"dumped imports" for the purposes of the injury determination. As the European Union notes, the
fact that the de minimis rule is of relevance to the imposition of an anti-dumping measure does not
mean that this is the only way in which such rule is relevant.245 Finally, Colombia contends that "the

236 See Colombia's written submission, para. 7.35.
237 European Union's response to questioning at the hearing.
242 Colombia's written submission, paras. 7.21-7.24 (quoting Anti-Dumping Checklist, Addendum,
Comments by the United States on Items I-V, 30 June 1966, TN.64/NTB/W/12/Add.5 (Panel Exhibit COL-19),
p. 4; Possible Elements to be Considered for Inclusion in an Anti-Dumping Code: Note by the Secretariat,
TN.64/NTB/W/13, 23 August 1966 (Panel Exhibit COL-20), p. 9; and referring to Possible Elements to be
Considered for Inclusion in an Anti-Dumping Code: Note by the Secretariat (Revised List), TN.64/NTB/W/14,
9 December 1966 (Panel Exhibit COL-21)).
243 Colombia's written submission, para. 7.58 (quoting Anti-Dumping Checklist, Addendum, Comments
by the United States on Items I-V, TN.64/NTB/W/12/Add.5, 30 June 1966 (Panel Exhibit COL-19), p. 5;
Anti-Dumping Checklist, Comments by Norway on Items I-V and IX-XIII, TN.64/NTB/W/12/Add.1,
23 June 1966 (Panel Exhibit COL-51), at 3; Anti-Dumping Checklist, Comments by the European Economic
Community on Items I-V and IX- XIII, TN.64/NTB/W/12/Add.2, 24 June 1966 (Panel Exhibit COL-52), p. 3;
Anti-Dumping Checklist, Comments by Denmark on Items I-V and IX-XIII, TN.64/NTB/W/12/Add.7
30 June 1966 (Panel Exhibit COL-54), pp. 1-2; Anti-Dumping Checklist, Addendum, Comments by Sweden on
Items I-V and IX-XIII, TN.64/NTB/W/12/Add.8, 7 July 1966 (Panel Exhibit COL-55), p. 3; and referring to
Anti-Dumping Checklist, Addendum, Comments by the Government of Canada on Items I-V and IX-XI, and XIII
TN.64/NTB/W/12/Add.3, 30 June 1966 (Panel Exhibit COL-53), p. 3)).
245 European Union's written submission, paras. 218-219.

negotiators conceived of the 'percentage limit' rule as applying even if … imp orts, including those
with de minimis dumping margins, have been assessed and found to cause injury within the meaning
of Article VI."246 However, a review of the materials cited does not show that the relevance of
de minimis margins vis -à-vis the injury de termination was discussed by the negotiators. 247 The
reference to "imports, including those with de minimis dumping margins", which is not discernible
from the materials, is dependent on Colombia's view that the term "dumped imports" includes de
minimis margin imports.248 In sum, the supplementary means of interpretation relied on by Colombia
do not lend credence to its interpretation of "dumped imports" as a "permissible" one.
4.5.3 Conclusion
4.101. Our analysis of the textual and contextual arguments advanced by Colomb ia indicates that
its interpretation of the term "dumped imports" as including imports of exporters determined to have
final de minimis dumping margins does not comport with a holistic reading of relevant provisions of
the Anti -Dumping Agreement, and rende rs the requirement of "immediate termination " under
Article 5.8 ineffective. Having tested Colombia 's interpretation in light of Articles 31 and 32 of the
Vienna Convention, we do not consider that a treaty interpreter, using the Vienna Convention
method for treaty interpretation, could have reached Colombia's interpretation. This interpretation
does not have the required degree of solidness or analytical support for it to be given deference as
"permissible" within the bounds of the Vienna Convention method for treaty interpretation.
4.102. On the basis of the above, we uphold the Panel's finding, in paragraphs 7.303, 7.307, and
8.1.e.i of its Report, that the European Union had established that Colombia acted inconsistently
with its obligations under Articles 3.1, 3.2, 3.4, and 3.5 of the Anti -Dumping Agreement because
MINCIT included in its final injury and causation determinations imports from the exporters that
were determined to have final de minimis margins of dumping.
4.6 Award findings
4.103. In this Award, we have reached the following findings:
a. we reverse the Panel's finding in paragraphs 7.75, 7.78, 7.79, and 8.1.a.iii of its Report,
and find that relevant factual findings by the Panel demonstrate that MINCIT satisfied its
duty under Articles 5.2(iii) and 5.3 of the Anti -Dumping Agreement, for the purpose of
initiating an investigation, by examining the "appropriateness" of third-country sales prices
consisting of export prices to the United Kingdom, including, in particular, their sufficiency
vis-à-vis domestic sales prices; accordingly, we find that the European Union has not
established that Colombia acted inconsistently with Article 5.3 of the Anti -Dumping
Agreement;
b. we uphold the Panel's finding, in paragraphs 7.126, 7.152.a, and 8.1.b.i of its Report, that
the European Union had established that Colombia acted inconsistently with its obligations
under Article 6.5 of the Anti-Dumping Agreement with respect to the redacted information
in section d(i) of FEDEPAPA 's revised application because MINCIT granted confidential
treatment to this information without a showing of "good cause" by the applicant;
c. we uphold the Panel 's finding, in paragraphs 7.232, 7.233, 7.244, and 8.1.d.ii of its
Report, that the European Union's claim under Article 2.4 of the Anti-Dumping Agreement
concerning Mydibel 's packaging cost -related adjustment request fell within the

246 Colombia's written submission, para. 7.60. (emphasis added)
247 See Colombia's written submission, para. 7.58. See also Japan's third party's written submission,
para. 58 (noting that "the negotiators' comments cited by Colombia was made in a different context where the
issue was whether anti-dumping duties should be imposed to imports with de minimis dumping margins, not in
the context of whether imports with de minimis dumping margins should be included in the injury and
causation analysis").
248 See Colombia's written submission, para. 7.60 (noting that "the negotiators conceived of the
'percentage limit' rule as applying even if the conditions of Article VI of the GATT 1947 were met"; that "[o]ne
of these conditions … is the determination of injury and causation"; and that "[i]n other words, the 'percentage
limit' rule would apply even if, and therefore when, imports, including those with de minimis dumping margins,
have been assessed and found to cause injury within the meaning of Article VI" (underlining original; emphasis
added)).

Panel's terms of reference; we also decline Colombia's request to "declare moot and of no
legal effect" the Panel's substantive findings under Article 2.4; and
d. we uphold the Panel's finding, in paragraphs 7.303, 7.307, and 8.1.e.i of its Report, that
the European Union had established that Colombia acted inconsistently with its obligations
under Articles 3.1, 3.2, 3.4, and 3.5 of the Anti -Dumping Agreement because MINCIT
included in its final injury and causation determinations imports from the exporters that
were determined to have final de minimis margins of dumping.
4.104. Paragraph 9 of the Agreed Procedures provides that the findings of the Panel that have not
been appealed in this Arbitration shall be deemed to form an integral part of this Award together
with our own findings, and that the Award shall include recommendations where applicable.
Accordingly, we recommend that Colombia bring into conformity with the Anti-Dumping Agreement
those measures found in this Award , and in the Panel Report as modified by this Award , to be
inconsistent with that Agreement.

______________ ____________________ ______________
 Alejandro JARA José Alfredo GRAÇA LIMA Joost PAUWELYN
 Arbitrator Chairperson Arbitrator