KOREA – SUNSET REVIEW OF ANTI-DUMPING DUTIES ON STAINLESS STEEL BARS REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 30 November 2020
Document codes: WT/DS553/R
Complainant: Japan
Respondent: South Korea
Third parties: China, EU, India, Kazakhstan, Russia, Taiwan, U.S.
Dispute stage: Panel
Agreements cited: Art. 11.3, 11.4, 6.8, Annex II, 6.5, 6.5.1, 6.9, 12.3, 12.2, 12.2.2  Anti-dumping

KOREA – SUNSET REVIEW OF ANTI-DUMPING DUTIES
ON STAINLESS STEEL BARS
REPORT OF THE PANEL
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LIST OF ANNEXES
ANNEX A
PANEL DOCUMENTS
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures on Business Confidential Information 11
Annex A-3 Interim Review 13
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 First integrated executive summary of the arguments of Japan 63
Annex B-2 First integrated executive summary of the arguments of Korea 74
Annex B-3 Second integrated executive summary of the arguments of Japan 84
Annex B-4 Second integrated executive summary of the arguments of Korea 94
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of the European Union 106
Annex C-2 Integrated executive summary of the arguments of the United States 110

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CASES CITED IN THIS REPORT
Short Title Full Case Title and Citation
Argentina – Ceramic Tiles Panel Report, Argentina – Definitive Anti-Dumping Measures on Imports
of Ceramic Floor Tiles from Italy, , adopted
5 November 2001, DSR 2001: XII, p. 6241
Argentina – Financial
Services
Panel Report, Argentina – Measures Relating to Trade in Goods and
Services, and Add.1, adopted 9 May 2016, as modified by
Appellate Body Report , DSR 2016: II, p. 599
Argentina – Import
Measures
Appellate Body Reports, Argentina – Measures Affecting the Importation
of Goods, / / ,
adopted 26 January 2015, DSR 2015: II, p. 579
Argentina – Import
Measures
Panel Reports, Argentina – Measures Affecting the Importation of
Goods, and Add.1 / and Add.1 /
 and Add.1, adopted 26 January 2015, as modified
(WT/DS438/R) and upheld (WT/DS444/R / WT/DS445/R) by
Appellate Body Reports WT/DS438/AB/R / WT/DS444/AB/R /
WT/DS445/AB/R, DSR 2015: II, p. 783
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
Argentina – Textiles and
Apparel
Appellate Body Report, Argentina – Measures Affecting Imports of
Footwear, Textiles, Apparel and Other Items, WT/DS56/AB/R and
Corr.1, adopted 22 April 1998, DSR 1998: III, p. 1003
Australia – Apples Panel Report, Australia – Measures Affecting the Importation of Apples
from New Zealand, WT/DS367/R, adopted 17 December 2010, as
modified by Appellate Body Report WT/ DS367/AB/R, DSR 2010 : VI,
p. 2371
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of
Salmon, WT/DS18/AB/R, adopted 6 November 1998, DSR 1998: VIII,
p. 3327
Brazil – Retreaded Tyres Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres ,
WT/DS332/R, adopted 17 December 2007, as modified by Appellate
Body Report WT/DS332/AB/R, DSR 2007:V, p. 1649
Canada – Autos Appellate Body Report, Canada – Certain Measures Affecting the
Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted
19 June 2000, DSR 2000: VI, p. 2985
Canada – Wheat Exports
and Grain Imports
Appellate Body Report, Canada – Measures Relating to Exports of Wheat
and Treatment of Imported Grain, WT/DS276/AB/R, adopted
27 September 2004, DSR 2004: VI, p. 2739
China – Autos (US) Panel Report, China – Anti-Dumping and Countervailing Duties on
Certain Automobiles from the United States , WT/DS440/R and Add.1,
adopted 18 June 2014, DSR 2014:VII, p. 2655
China – Broiler Products Panel Report, China − Anti-Dumping and Countervailing Duty Measures
on Broiler Products from the United States, WT/DS427/R and Add.1,
adopted 25 September 2013, DSR 2013: IV, p. 1041
China – Broiler Products
(Article 21.5 – US)
Panel Report, China − Anti-Dumping and Countervailing Duty Measures
on Broiler Products from the United States – Recourse to Article 21.5 of
the DSU by the United States, WT/DS427/RW and Add.1, adopted
28 February 2018
China – GOES Appellate Body Report, China – Countervailing and Anti-Dumping Duties
on Grain Oriented Flat-Rolled Electrical Steel from the United States,
WT/DS414/AB/R, adopted 16 November 2012, DSR 2012: XII, p. 6251
China – GOES Panel Report, China – Countervailing and Anti-Dumping Duties on Grain
Oriented Flat-Rolled Electrical Steel from the United States,
WT/DS414/R and Add.1, adopted 16 November 2012, upheld by
Appellate Body Report WT/DS414/AB/R, DSR 2012: XII, p. 6369

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Short Title Full Case Title and Citation
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 – HP-SSST (Japan)
/ China – HP-SSST (EU)
Panel 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/R and Add.1 / WT/DS460/R, Add .1 and
Corr.1, adopted 28 October 2015, as modified by Appellate Body
Reports WT/DS454/AB/R / WT/DS460/AB/R, DSR 2015:IX, p. 4789
China – Publications and
Audiovisual Products
Appellate Body Report, China – Measures Affecting Trading Rights and
Distribution Services for Certain Publications and Audiovisual
Entertainment Products, WT/DS363/AB/R, adopted 19 January 2010,
DSR 2010: I, p. 3
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 – Countervailing
Measures on DRAM Chips
Panel Report, European Communities – Countervailing Measures on
Dynamic Random Access Memory Chips from Korea , WT/DS299/R,
adopted 3 August 2005, DSR 2005:XVIII, p. 8671
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) Panel Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China, WT/DS397/R
and Corr.1, adopted 28 July 2011, as modified by Appellate Body
Report WT/DS397/AB/R, DSR 2011: VIII, p. 4289
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 – Hormones Appellate Body Report, European Communities – Measures Concerning
Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R,
adopted 13 February 1998, DSR 1998: I, p. 135
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the
Importation of Certain Poultry Products, WT/DS69/AB/R, adopted
23 July 1998, DSR 1998: V, p. 2031
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
Egypt – Steel Rebar Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar
from Turkey, WT/DS211/R, adopted 1 October 2002, DSR 2002:VII,
p. 2667
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
EU – Fatty Alcohols
(Indonesia)
Panel Report, European Union – Anti-Dumping Measures on Imports of
Certain Fatty Alcohols from Indonesia, WT/DS442/R and Add.1,
adopted 29 September 2017, as modified by Appellate Bod y Report
WT/DS442/AB/R, DSR 2017: VI, p. 2765

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Short Title Full Case Title and Citation
EU – Footwear (China) Panel Report, European Union – Anti-Dumping Measures on Certain
Footwear from China, WT/DS405/R, adopted 22 February 2012,
DSR 2012: IX, p. 4585
EU – PET (Pakistan) Appellate Body Report, European Union – Countervailing Measures on
Certain Polyethylene Terephthalate from Pakistan, WT/DS486/AB/R and
Add.1, adopted 28 May 2018
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation
Regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted
25 November 1998, DSR 1998: IX, p. 3767
India – Autos Panel Report, India – Measures Affecting the Automotive Sector,
WT/DS146/R, WT/DS175/R, and Corr.1, adopted 5 April 2002,
DSR 2002: V, p. 1827
India – Solar Cells Appellate Body Report, India – Certain Measures Relating to Solar Cells
and Solar Modules, WT/DS456/AB/R and Add.1, adopted
14 October 2016, DSR 2016: IV, p. 1827
Japan – Agricultural
Products II
Appellate Body Report, Japan – Measures Affecting Agricultural
Products, WT/DS76/AB/R, adopted 19 March 1999, DSR 1999: I, p. 277
Japan – Alcoholic
Beverages II
Appellate Body Report, Japan – Taxes on Alcoholic Beverages,
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted
1 November 1996, DSR 1996: I, p. 97
Japan – DRAMs (Korea) Appellate Body Report, Japan – Countervailing Duties on Dynamic
Random Access Memories from Korea, WT/DS336/AB/R and Corr.1,
adopted 17 December 2007, DSR 2007: VII, p. 2703
Korea – Certain Paper Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper
from Indonesia, WT/DS312/R, adopted 28 November 2005,
DSR 2005: XXII, p. 10637
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
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
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 – 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 – Hot-Rolled
Steel (Turkey)
Panel Report, Morocco – Anti-dumping Measures on Certain Hot-Rolled
Steel from Turkey, WT/DS513/R and Add.1, adopted 8 January 2020;
appeal withdrawn by Morocco as reflected in Appellate Body Report

Russia – Commercial
Vehicles
Appellate Body Report, Russia – Anti-Dumping Duties on Light
Commercial Vehicles from Germany and Italy, WT/DS479/AB/R and
Add.1, adopted 9 April 2018
Thailand – Cigarettes
(Philippines)
Appellate Body Report, Thailand – Customs and Fiscal Measures on
Cigarettes from the Philippines, WT/DS371/AB/R, adopted
15 July 2011, DSR 2011: IV, p. 2203
Thailand – H-Beams Appellate Body Report, Thailand – Anti-Dumping Duties on Angles,
Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from
Poland, WT/DS122/AB/R, adopted 5 April 2001, DSR 2001 : VII,
p. 2701

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Short Title Full Case Title and Citation
Thailand – H-Beams Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and
Sections of Iron or Non-Alloy Steel and H-Beams from Poland,
WT/DS122/R, adopted 5 April 2001, as modified by Appellate Body
Report WT/DS122/AB/R, DSR 2001: VII, p. 2741
Ukraine – Ammonium
Nitrate
Panel Report, Ukraine – Anti-Dumping Measures on Ammonium Nitrate,
WT/DS493/R, Add.1 and Corr.1, adopted 30 September 2019, as
upheld by Appellate Body Report WT/DS493/AB/R
US – Anti-Dumping and
Countervailing Duties
(China)
Appellate Body Report, United States – Definitive Anti-Dumping and
Countervailing Duties on Certain Products from China, WT/DS379/AB/R,
adopted 25 March 2011, DSR 2011: V, p. 2869
US – Anti-Dumping
Measures on Oil Country
Tubular Goods
Appellate Body Report, United States – Anti-Dumping Measures on Oil
Country Tubular Goods (OCTG) from Mexico, WT/DS282/AB/R, adopted
28 November 2005, DSR 2005: XX, p. 10127
US – Carbon Steel
(India)
Appellate Body Report, United States – Countervailing Measures on
Certain Hot-Rolled Carbon Steel Flat Products from India,
WT/DS436/AB/R, adopted 19 December 2014, DSR 2014: V, p. 1727
US – Carbon Steel
(India) (Article 21.5 –
India)
Panel Report, United States – Countervailing Measures on Certain Hot-
Rolled Carbon Steel Flat Products from India – Recourse to Article 21.5
of the DSU by India, WT/DS436/RW and Add.1, circulated to
WTO Members 15 November 2019 [ appealed by the United States
18 December 2019]
US – Coated Paper
(Indonesia)
Panel Report, United States – Anti-Dumping and Countervailing
Measures on Certain Coated Paper from Indonesia, WT/DS491/R and
Add.1, adopted 22 January 2018
US – Corrosion-Resistant
Steel Sunset Review
Appellate Body Report, United States – Sunset Review of Anti-Dumping
Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan,
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004: I, p. 3
US – Countervailing Duty
Investigation on DRAMS
Appellate Body Report, United States – Countervailing Duty
Investigation on Dynamic Random Access Memory Semiconductors
(DRAMS) from Korea, WT/DS296/AB/R, adopted 20 July 2005,
DSR 2005: XVI, p. 8131
US – Countervailing
Measures (China)
Appellate Body Report, United States – Countervailing Duty Measures
on Certain Products from China, WT/DS437/AB/R, adopted
16 January 2015, DSR 2015: I, p. 7
US – Countervailing
Measures (China)
(Article 21.5 – China)
Appellate Body Report, United States – Countervailing Duty Measures
on Certain Products from China – Recourse to Article 21.5 of the DSU
by China, WT/DS437/AB/RW and Add.1, adopted 15 August 2019
US – FSC Appellate Body Report, United States – Tax Treatment for "Foreign
Sales Corporations", WT/DS108/AB/R, adopted 20 March 2000,
DSR 2000: III, p. 1619
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and
Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996,
DSR 1996: I, p. 3
US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on
Certain Hot-Rolled Steel Products from Japan, WT/DS184/AB/R,
adopted 23 August 2001, DSR 2001: X, p. 4697
US – Lamb Appellate Body Report, United States – Safeguard Measures on Imports
of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia,
WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:
IX, p. 4051
US – Large Civil Aircraft
(2nd complaint)
Panel Report, United States – Measures Affecting Trade in Large Civil
Aircraft (Second Complaint), WT/DS353/R, adopted 23 March 2012, as
modified by Appellate Body Report WT/DS353/AB/R, DSR 2012 : II,
p. 649

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Short Title Full Case Title and Citation
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 – Oil Country Tubular
Goods Sunset Reviews
(Article 21.5 – Argentina)
Appellate Body Report, United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubular Goods from Argentina – Recourse to
Article 21.5 of the DSU by Argentina, WT/DS268/AB/RW, adopted
11 May 2007, DSR 2007: IX, p. 3523
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 VI (Article 21.5 –
Canada)
Appellate Body Report, United States – Investigation of the
International Trade Commission in Softwood Lumber from Canada –
Recourse to Article 21.5 of the DSU by Canada, WT/DS277/AB/RW,
adopted 9 May 2006, and Corr.1, DSR 2006: XI, p. 4865
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures
on Imports of Certain Steel Products, WT/DS248/AB/R,
WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R,
WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R,
WT/DS259/AB/R, adopted 10 December 2003, DSR 2003: VII, p. 3117
US – Tyres (China) Appellate Body Report, United States – Measures Affecting Imports of
Certain Passenger Vehicle and Light Truck Tyres from China,
WT/DS399/AB/R, adopted 5 October 2011, DSR 2011: IX, p. 4811
US – Washing Machines Appellate Body Report, United States – Anti-Dumping and
Countervailing Measures on Large Residential Washers from Korea,
WT/DS464/AB/R and Add.1, adopted 26 September 2016,
DSR 2016: V, p. 2275
US – Washing Machines Panel Report, United States – Anti-Dumping and Countervailing
Measures on Large Residential Washers from Korea, WT/DS464/R and
Add.1, adopted 26 September 2016, as modified by Appellate Bod y
Report WT/DS464/AB/R, DSR 2016: V, p. 2505
US – Wheat Gluten Appellate Body Report, United States – Definitive Safeguard Measures
on Imports of Wheat Gluten from the European Communities,
WT/DS166/AB/R, adopted 19 January 2001, DSR 2001: II, p. 717
US – Wool Shirts and
Blouses
Appellate Body Report, United States – Measure Affecting Imports of
Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted
23 May 1997, and Corr.1, DSR 1997: I, p. 323

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EXHIBITS REFERRED TO IN THIS REPORT
Exhibit Short Title (if any) Description
JPN-1.b OTI's revised interim report OTI, Interim report regarding the sunset review of
anti-dumping duties on Japanese, Indian, and
Spanish stainless steel bars (revised after public
hearing) (February 2017)
JPN-2.b (redacted)
KOR-4.b (BCI)
KTC's final resolution KTC, Final resolution regarding the sunset review of
anti-dumping duties on Japanese, Indian, and
Spanish stainless steel bars (17 March 2017)
JPN-3.b (redacted)
KOR-5.b (BCI)/
KOR-5.c (BCI)
OTI's final report OTI, Final report regarding the sunset review of
anti-dumping duties on Japanese, Indian, and
Spanish stainless steel bars (March 2017)
JPN-4.b Application Application for the sunset review of anti-dumping
duties on Japanese, Indian, and Spanish stainless
steel bars (29 March 2016)
JPN-7.b (BCI) Sanyo questionnaire response Sanyo, respondent's response in relation to sunset
review on stainless steel bars from Japan, India,
and Spain (21 July 2016)
JPN-8.b (BCI) Aichi questionnaire response Aichi, response to anti-dumping inquiry
(Case No. Guje23-2016-4) (27 July 2016)
JPN-9.b (BCI) Daido questionnaire response Daido, respondent's response in relation to sunset
review on stainless steel bars from Japan, India,
and Spain (27 July 2016)
JPN-10.b (BCI) Japanese exporters' opinion
regarding injuries
Submission of opinion regarding injuries to the
industry related to the sunset review of
anti-dumping measures against Japanese stainless
steel bars (31 August 2016)
JPN-11.b Rebuttal opinion of the
applicants
Rebuttal opinion of the applicants for the review
against the industrial injury opinion of the Japanese
companies subject to the review
(4 November 2016)
JPN-12.b Consumer's summary of the
statement at public hearing
Summary Statement dated 7 November 2016 of
Consumer at public hearing
JPN-13.b (BCI) Japanese exporters' opinion
regarding applicants' rebuttal
Submission of exporters' opinion regarding
applicants' rebuttal regarding injuries to the
industry arising from stainless steel bars from
Japan, India, and Spain (23 November 2016)
JPN-15.b Applicants' statement of
opinion after the public hearing
Statement dated 8 December 2016 of the applicants
after the public hearing
JPN-16.b (BCI) Japanese
exporters' post-hearing opinion
Written opinion after the public hearing for the
three Japanese exporters (8 December 2016)
JPN-17.b (BCI) Japanese exporters' response
to KTC's additional inquiries
Japanese exporters, response to additional inquiries
of the KTC (20 January 2017)
JPN-18.b Japanese exporters' opinion
regarding OTI's revised
interim report
Submission of opinion of Japanese manufacturers
on the revised interim report following public
hearing regarding sunset review of the
anti-dumping measures on stainless steel bars from
Japan, India, and Spain (8 February 2017)
JPN-21.b KTC's notification of final
determination
KTC's notification of final determination on the
sunset review of anti-dumping duties on stainless
steel bars from Japan, India, and Spain
(3 April 2017)
JPN-24.b Ordinance No. 624 and
Public Notice No. 2017-86
Ministry of Strategy and Finance, Ordinance No. 624
and Public Notice No. 2017-86 (2 June 2017)
JPN-28.a USITC's fourth review into
stainless steel bar
USITC, Stainless steel bar from Brazil, India, Japan,
and Spain: Investigation Nos. 731-TA-678, 679,
681 and 682 (fourth review) (September 2018)
JPN-30.b (BCI) Email reporting the meeting
dated 21 September 2016
Email dated 21 September 2016 from Kim & Chang
to the Japanese exporters reporting the meeting
with KTC (21 September 2016)
JPN-39 Japan's rebuttals to Exhibit KOR-35
JPN-41.b Guideline on the scope of the
product under investigation
KTC, Guideline on the scope of the product under
investigation related to section C-1 of the
questionnaire (3 June 2016)
JPN-44 Japan's correction to Exhibit KOR-82
KOR-8 ISO stainless steel grade
comparability tables
ISO stainless steel grade comparability tables in
Ugitech, "Key to steel" (2010), p. 505

BCI deleted, as indicated [[***]]

Exhibit Short Title (if any) Description
KOR-9.b (BCI) OTI's final report (original
investigation)
OTI, Final report on dumping and injury to the
domestic industry by the stainless steel bars
originating from Japan, India, and Spain
(30 June 2004)
KOR-11 (BCI) OTI's final report
(second sunset review)
OTI, Final report for the sunset review of
anti-dumping duties on stainless steel bars
originating from Japan, India, and Spain and price
undertaking (24 July 2009)
KOR-13 USITC report (first review) USITC, Stainless steel bars from Brazil, India,
Japan, and Spain, Investigation Nos. 731-TA-678-
679 and 681-682, Publication No. 3404
(March 2001)
KOR-14 USITC report (second review) USITC, Stainless steel bars from Brazil, India,
Japan, and Spain, Investigation Nos. 731-TA-678-
679 and 681-682, Publication No. 3895
(January 2007)
KOR-17 KS specification KS specification of stainless steel bar products
KOR-18 JIS specification JIS specification of stainless steel bar products
KOR-19.b (BCI) Minutes of public hearing
(24 November 2016)
KTC and interested parties, minutes of public
hearing dated 24 November 2016
KOR-20-b (BCI) ISSF statistics ISSF public realm data stainless steel capacity
archive
KOR-21 ISSF Website profile page ISSF Website profile page, available
KOR-22 JSSA Website members page JSSA Website members page
KOR-24 USITC report (original
investigation)
USITC, Stainless steel bar from Brazil, India, Japan,
and Spain, Investigation Nos. 731-TA-678, 679,
681, and 682, Publication No. 2856 (February 1995)
KOR-25.b (BCI) Japanese
exporters' submission of
opinion dated
7 November 2016
Japanese exporters, submission of response to
supplementary questionnaires regarding the opinion
on industrial injury caused by stainless steel bars
from Japan, India, and Spain (7 November 2016)
KOR-26.b (BCI) Minutes of meeting dated
21 September 2016
OTI and Japanese exporters, minutes of the
meeting dated 21 September 2016
KOR-27.b (BCI) Official log of investigation Official log of investigation of the third sunset
review
KOR-34.b Article 15 of the Enforcement Rules of the Customs
Act of Korea
KOR-35 Korea's response to Japan's Article 6.5.1 allegations
KOR-37 OTI import statistics Compilation of import statistics presented in the
OTI's final reports in the original investigation, first,
second, and third sunset reviews
KOR-40 (BCI) Excerpt of
applicants' statement of
opinion after the public hearing
Applicants' statement of opinion after the public
hearing, (Exhibit JPN-15.b, pp.1-2)
KOR-41.b (BCI) Korea's response to the
Panel's Article 13 of the DSU
information request
Appendix 1 of information request under Article 13
of the DSU (statistics on general-purpose steels and
special steels originating from Japan, India, Spain,
China, Chinese Taipei, Italy, and other countries)
KOR-43.b Import Clearance Matrix Korean Customs Service Import Clearance Matrix
KOR-48.b (BCI) KTC's submission of review
to MOSF
KTC, Submission of review to MOSF (1 May 2017)
KOR-51 Translation of the JSSA
Website members page
Translation of JSSA Website Members Page (full
translation of exhibit KOR-22.a)
KOR-52 Sanyo and Aichi catalogues Catalogues of the Sanyo and Aichi manufacturing
process of relevant steel products
KOR-53 Websites of Yamashin, Kansai,
and Tohoku
Websites of other Japanese producers (Yamashin,
Kansai, and Tohoku)
KOR-56 (BCI) Purchase order Purchase order of a domestic consumer
KOR-57 Explanation on ISSF statistics methodology
KOR-58 Commentary on HS code classification
KOR-62 High adaptability of secondary
processing facilities
High adaptability of secondary processing facilities
for various steel products, including stainless steel
KOR-64 Atlas steels stainless steel grade database
KOR-68 (BCI) More purchase order examples More purchase order examples showing that orders
are placed on the basis of grade specifications
KOR-72.b (BCI) Injury questionnaire response SeAH Special Steel Co., Ltd., response from
domestic producer (29 July 2016)
KOR-82 (BCI) Korea's response to Exhibit JPN-39

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ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
Aichi Aichi Steel Corporation
Daido Daido Steel Corporation
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
GATT 1994 General Agreement on Tariffs and Trade 1994
ISSF International Stainless Steel Forum
Japanese respondents;
Japanese exporters
Aichi, Daido, and Sanyo
JSSA Japan's Stainless Steel Association
KIA Korean investigating authorities
KITA Korea International Trade Association
KRW Korean Won
KTC Korea Trade Commission
OTI Office of Trade Investigation
POR period of review
Sanyo Sanyo Special Steel Corporation
SSB stainless steel bar
USITC United States International Trade Commission
Vienna Convention Vienna Convention on the Law of Treaties
WTO World Trade Organization

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1 INTRODUCTION
1.1 Complaint by Japan
1.1. On 18 June 2018, Japan requested consultations with Korea pursuant to Articles 1 and 4 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Article XXIII:1
of the General Agreement on Tariffs and Trade 1994 ( GATT 1994), and Articles 17.2 and 17.3 of
the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
(Anti-Dumping Agreement), with respect to the measures and claims set out below.1
1.2. Consultations were held on 13 August 2018, but failed to resolve the dispute.
1.2 Panel establishment and composition
1.3. On 13 September 2018, Japan requested the establishment of a panel pursuant to Articles 4.7
and 6 of the DSU, Article XXIII of the GATT 1994, and Article 17.4 of the Anti-Dumping Agreement.2
At its meeting on 29 October 2018, the Dispute Settlement Body (DSB) established a panel pursuant
to the request of Japan in document WT/DS553/2, in accordance with Article 6 of the DSU.
1.4. The Panel's terms of reference are the following:
To examine, in the light of the relevant provisions of the covered Agreements cited by
the parties to the dispute, the matter referred to the DSB by Japan in document
WT/DS553/2 and to make such findings as will assist the DSB in making t he
recommendations or in giving the rulings provided for in those Agreements.3
1.5. On 14 January 2019, Japan requested the Director -General to determine the composition of
the Panel, pursuant to Article 8.7 of the DSU. On 21 January 2019, the Director-General accordingly
composed the Panel as follows:
Chairperson: Ms Elaine Feldman
Members: Ms Ana Teresa Caetano
 Mr Justin Wickes
1.6. China, the European Union, India, Kazakhstan, the Russian Federation, Chinese Taipei, and the
United States notified their interest in participating in the Panel proceedings as third parties.
1.3 Panel proceedings
1.7. After consultation with the parties, the Panel adopted its Working Procedures 4, Additional
Working Procedures on Business Confidential Information 5, and timetable on 23 April 2019. The
timetable was subsequently updated and revised as appropriate during the proceedings.
1.8. The Panel held a first substantive meeting with the parties on 9 and 10 September 2019. A
session with the third parties took place on 10 September 2019. The Panel held a second substantive
meeting with the parties on 17 and 18 December 2019. On 17 March 2020, the Panel issued the
descriptive part of its Report to the parties. The Panel issued its Interim Report to the parties on
29 June 2020. The Panel issued its Final Report to the parties on 21 October 2020.

1 Request for consultations by Japan, WT/DS553/1 (Japan's consultations request).
2 Request for the establishment of a panel by Japan, WT/DS553/2 (Japan's panel request).
3 Constitution note of the Panel, WT/DS553/3.
4 See the Panel's Working Procedures in Annex A-1.
5 See the Panel's Additional Working Procedures on Business Confidential Information in Annex A-2.

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1.9. In its first written submission, Korea made a request for certain preliminary rulings pursuant
to Article 6.2 of the DSU. On 21 October 2019, the Panel informed the parties that it wou ld defer
making rulings based on Korea's request until the issuance of its Report to the parties.6
2 FACTUAL ASPECTS
2.1 The measures at issue7
2.1. Japan's challenge concerns the third sunset review by the Korean investigating authorit y
(KIA) of anti-dumping duties on certain stainless steel bars (SSB) from Japan, namely:
Korea's measures to continue the imposition of anti -dumping duties on stainless steel
bars from Japan is set forth in the Korea Trade Commission 's ("KTC") "Resolution of
Final Determination on the Sunset Review of Anti -Dumping Duties on Stainless Steel
Bars from Japan, India and Spain" ("Resolution of Final Determination" ) and in the
Office of Trade Investigation 's "Final Report on the Sunset Review of Anti -Dumping
Duties on Stainless Steel Bars from Japan, India and Spain" ("Final Report" ) with
respect to Investigation Trade Remedy 23-2016-3, both dated 20 March 2017, including
any and all annexes and amendments thereto.[2]8
2 This determination in the third sunset review is identifi ed in Korea 's notification
G/ADP/N/300/KOR dated 17 August 2017.
For the sake of completeness, the measures include the Office of Trade Investigation's "Preliminary
Report regarding the Sunset Review of Anti -Dumping Duties on Japanese, Indian, and Spanish
Stainless Steel Bar (Amended after Public Hearing)" ("Preliminary Report") dated 1 February 2017,
to the extent it is referred to in paragraph 4 below.
3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1. Japan requests that the Panel find that:
a. The KIA's determination that the expiry of the anti-dumping duties would be likely to lead
to recurrence of injury is inconsistent with Article 11.3 of the Anti -Dumping Agreement
because the determination (including the finding of a causal nexus between the expir y of
the duties and the likelihood of injury, if any ) does not rest on a sufficient factual basis
and reasoned and adequate conclusions, due to the following specific reasons individually
and collectively:
i. the use of a cumulative assessment of the effects of the imports from Japan, India ,
and Spain was not based on positive evidence and an objective examination, because
the KIA did not examine the competitive relationships or market interactions among
the alleged dumped imports from Japan, on one hand, and the domestic like products
and the dumped imports from India, on the other hand;
ii. factors other than dumping that may lead to the likelihood of injury (in particular, the
third-country imports, the material costs, and the weak demand in the domestic and
export markets) were not examined in the analysis of likelihood of injury, despite the

6 Clause 4(1)(b) of the Working Procedures provides: "[t]he Panel may issue a preliminary ruling on the
issues raised in such a preliminary ruling request before, during or after the first substantive meeting, or the
Panel may defer a ruling on the issues raised by a preliminary ruling request until it issues its Report to the
parties."
7 For the avoidance of doubt, this description is based on Japan's panel request setting forth the
Panel's terms of reference (WT/DS553/2), and is without prejudice to the Panel's resolution of Korea's request
for preliminary rulings under Article 6.2 of the DSU. These objections are addressed in section 7.1.
8 Japan's panel request, p. 1. In its first written submission, Japan sought to correct certain errors
concerning the dates referenced in this extract from its panel request, as follows:
In the consultation and panel requests, Japan described the date of OTI's Final Report as
"20 March 2017"; the actual date noted on the report is "March 2017".
…
In the consultation and panel requests, Japan described the date of KTC's Resolution of Final
Determination as "20 March 2017"; the actual date noted on the report is "17 March 2017".
(Japan's first written submission, fns 14 and 20)

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fact that the KIA itself recognized that they had effects on the current actual injury to
the domestic industry;
iii. the volume and price effect analyses relied upon in the determination are not reasoned
and adequate since (a) these analyses failed to examine the conditions of competition
among the relevant products, the other factors, and the incentive for the Japanese
exporters to export the product under investigation; and (b) the evaluation of specific
data is biased and unreasonable; and
iv. the finding that Japan 's SSB sector had sufficient additional production capacity for
exports cannot by itself support the determination of likelihood of injury, unless the
competitive relationships among the imports from Japan and India and the
domestic like products are examined, and is based on the International Stainless Steel
Forum (ISSF) data that is less accurate and reliable than the production capacity data
that the three Japanese exporters themselves submitted.
b. The likelihood -of-injury determination is inconsistent with Article VI:6(a) of the
GATT 1994, because Korea is levying the anti -dumping duties without establishing that
the effect of the dumping is such as to cause or threaten material injury to an established
domestic industry due to the reasons set out in paragraphs 3.1(a)(i)-(iv).
c. With respect to the KIA's recourse to facts available by using the ISSF data instead of the
data submitted by the three Japanese exporters regarding the production capacity of the
industry in Japan, the KIA acted inconsistently with:
i. Articles 11.4 and 6.8 and paragraph 3 of Annex II to the Anti-Dumping Agreement
because the KIA adopted the ISSF data even though the data submitted by the
Japanese exporters were verifiable, were appropriately submitted so that they could
be used in the investigation wi thout undue difficulties, and were supplied in a timely
fashion; and
ii. Articles 11.4 and 6.8 and paragraph 7 of Annex II to the Anti-Dumping Agreement
because the KIA relied upon information from a secondary source regarding the
production capacity of Japanese exporters without special circumspection.
d. The KIA acted inconsistently with:
i. Articles 11.4 and 6.5 of the Anti-Dumping Agreement with respect to its treatment of
information provided by the applicants as confidential information without requiring
that good cause be shown; and
ii. Articles 11.4 and 6.5.1 of the A nti-Dumping Agreement with respect to its failure to
(a) require the applicants to furnish non-confidential summaries of their submissions,
questionnaire responses, and amendments thereof ; and (b) irrespective of whether
such summari es have been provided, require that such summaries be in sufficient
detail to permit a reasonable understan ding of the substance of the information
submitted in confidence.
e. The KIA acted inconsistently with Articles 11.4 and 6.9 of the A nti-Dumping Agreement
with respect to its failure to inform all interested parties of the essential facts under
consideration that formed the basis for the decision to extend the anti-dumping duties.
f. The KIA acted inconsistently with Articles 12.2, 12.2.2, and 12.3 of the
Anti-Dumping Agreement with respect to its failure to provide , in sufficient detail , the
findings and conclusions reached on all issues of fact and law that it considered material,
as well as all relevant information on the matters of fact , law, and reasoning that led to
the sunset review determination.9

9 Japan's second written submission, para. 584.

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3.2. Japan further requests, pursuant to Article 19.1 of the DSU, that the Panel recommend that
Korea bring its measures into conformity with its WTO obligations.10
3.3. Korea requests that the Panel reject Japan 's claims in this dispute in their entirety. As
mentioned above, Korea also requests the Panel to find that Japan's claims are not properly before
the Panel under Article 6.2 of the DSU.11
4 ARGUMENTS OF THE PARTIES
4.1. The arguments of the parties are reflected in their executive summaries, provided to the Panel
in accordance with paragraph 23 of the Working Procedures adopted by the Panel (see Annexes B-1,
B-2, B-3, and B-4).
5 ARGUMENTS OF THE THIRD PARTIES
5.1. The arguments of the United States and the European Union a re reflected in their
executive summaries, provided in accordance with paragraph 26 of the Working Procedures adopted
by the Panel (see Annexes C -1 and C -2). The other third parties did not submit written or oral
arguments to the Panel.
6 INTERIM REVIEW
6.1. On 29 June 2020, the Panel issued its Interim Report to the parties. On 13 July 2020, Japan
and Korea each submitted written requests for the review of precise aspects of the Interim Report.
Neither party requested an interim review meeting. On 27 July 2020, both parties submitted
comments on each other's requests for review. The Panel's discussion and disposition of the
parties' submissions related to the interim review are set out in Annex A-3.
7 FINDINGS
7.1 Terms of reference: Korea's request for a preliminary ruling
7.1. We begin with the initial question concerning Korea 's objections as to whether Japan's claims
are properly before the Panel under Article 6.2 of the DSU. Korea claims that Japan's request for the
establishment of a panel (panel request ) is inconsistent with the requirements of Article 6.2 of the
DSU and Article 17.4 of the Anti-Dumping Agreement because it fails to identify the specific measure
challenged.12
7.2. Korea further claims that the inclusion of certain matters in Japan 's panel reque st and
first written submission is inconsistent with Articles 4.4 and 6.2 of the DSU and Article 17.3 of the
Anti-Dumping Agreement.13 In particular, Korea argues:
a. in relation to claim 3 of the panel request, that Japan failed to link claim 3 to the particular
circumstances of the investigation at issue14;
b. in relation to c laims 1(b), 1(d), 5(b), and 5(c) of the panel request, that Japan unduly
expanded the scope of the dispute beyond what had been included in Japan's request for
consultations (consultations request)15; and
c. in relation to claims 1, 4, and 5 of the panel request, that Japan's first written submission
unduly expanded the scope of the dispute beyond what had been included in its panel
request.16

10 Japan's first written submission, para. 389.
11 See para. 1.9 above and section 7.1 below.
12 Korea's first written submission, paras. 8-16 and 28.
13 Korea's first written submission, paras. 17-26.
14 Korea's first written submission, para. 22.
15 Korea's first written submission, paras. 17-20.
16 Korea's first written submission, paras. 21 and 23-26.

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7.3. Korea first made a request under Article 6.2 of the DSU in its first written submission. 17
Although there was no explicit mention of clause 4.1 of the Working Procedures, the Panel afforded
Korea the opportunity to clarify whether it intended to follow the procedures pursuant to clause 4.1
at the first substantive meeting.18 Korea confirmed that it did indeed intend for the procedures under
clause 4.1 of the Working Procedures to be applied. Accordingly, upon affording an opportunity to
the parties to comment, the Panel announced that , in accordance with clause 4.1 of the Working
Procedures, it would set 24 September 2019 as the date for Japan to submit a response to
Korea's request for a preliminary ruling, and 1 October 2019 for Korea to respond, with 8 October
for Japan's comments on Korea's response. At the third -party session on 10 September 2019, the
Panel informed the third parties of this approach and gave the third parties an opportunity to
comment. On 21 October 2019, the Panel conveyed to the parties that it would defer its ruling on
the issues raised by Korea's preliminary ruling requests until the issuance of its Report to the
parties.19
7.1.1 Whether Japan failed to identify the measure at issue in its panel request
7.4. Korea claims that Japan's panel request failed to identify the measure at issue as required by
Article 17.4 of the Anti -Dumping Agreement and Article 6.2 of the DSU. 20 Korea argues that a
dispute concerning compliance with the Anti-Dumping Agreement can only be based on a challenge
to the three categories of measures identified in Article 17.4 of the Anti -Dumping Agreement.21
These three measures are : a definitive anti-dumping duty, the acceptance of a price undertaking,
or a provisional measure. 22 Korea argues that Japan fails to meet this requirement as the panel
request only refers to relevant sunset review determinations .23 Japan responds that the panel
request identified the definitive anti -dumping duties levied by Korea as constituting the specific
measures at issue.24
7.5. Article 6.2 of the DSU requires that a panel request identify the specific measure at issue in a
dispute. As noted by Korea, Article 17.4 provides for challenges regarding, inter alia, the imposition
of definitive anti -dumping duties. Japan 's panel request identifies the challenged measure as the
continued "imposition of anti -dumping duties on stainless steel bars" as set forth in the
KTC's resolution of final determination and Office of Trade Investigation ( OTI)'s final report, both
dated 20 March 2017.25 Japan's panel request further identifies the measure referred to as the
third sunset review contained in Korea 's notification G/ADP/N/300/KOR dated 17 August 2017,
which in turns refers to the "[d]efinitive [d]uty" .26 Accordingly, Japan's panel request adequately
identifies the definitive anti -dumping duty at issue as required by Article 6.2 of the DSU and
Article 17.4 of the Anti-Dumping Agreement. Korea's claim thus fails.27

17 Korea's first written submission, paras. 8-28.
18 This followed a letter from Japan to the Panel dated 2 September 2019 inquiring into whether Korea
intended for the procedures under clause 4.1 of the Working Procedures to be applied.
19 We also note that, in response to Korea's comments on Japan's responses to questions from the Panel
(dated 3 February 2020), Japan requested the opportunity to make a submission on a matter that had been
raised by Korea concerning the Panel's jurisdiction (dated 10 February 2020). Korea objected to
Japan's request, and noted inter alia that "there is nothing 'new' about the argument reflected in
Korea's comments on the replies of Japan" (dated 12 February 2020). With this understanding of
Korea's argument in mind, and in light of the proper timing and nature of the arguments to be submitted at the
various stages of the proceedings as provided for in the Working Procedures, the Panel declined
Japan's request.
20 Korea's first written submission, para. 12; opening statement at the first meeting of the Panel,
para. 5.
21 Korea's first written submission, paras. 14-15 (quoting Appellate Body Report, Guatemala –
Cement I, para. 79).
22 Korea's first written submission, paras. 14-15.
23 Korea's first written submission, para. 15.
24 Japan's response to Korea's preliminary ruling request, paras. 6-7 and 10-11; response to
Korea's comments on Korea's preliminary ruling request, paras. 2-10.
25 Japan's panel request, p. 1.
26 Japan's panel request, fn 2.
27 We note that Korea also appears to argue that Japan's claim fails to meet the requirements of
Article 6.2 because it refers to both the final and preliminary sunset review determinations.
(Korea's first written submission, para. 12). Korea's argument fails as it is clear that the subject of the
challenge is the continued imposition of anti-dumping duties on SSBs.

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7.1.2 Whether Japan failed to identify the confidentiality claims with sufficient precision
in its panel request
7.6. Korea claims that claim 3 of Japan's panel request concerning confidentiality under Articles 6.5,
6.5.1, and 11.4 of the Anti -Dumping Agreement failed to present the legal basis of
Japan's complaint. In particular, Korea argues that claim 3 of Japan 's panel request merely
paraphrases Articles 6.5 and 6.5.1 of the Anti -Dumping Agreement, and is not linked to any
particulars of Korea's third sunset review.28 Japan responds that claim 3 of its panel request connects
the alleged breaches of Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement with the measure at
issue.29
7.7. Article 6.2 of the DSU requires that a panel request provide a brief summary of the legal basis
of the complaint sufficient to present the problem clearly. Claim 3 of Japan 's panel request puts
forward the legal basis of Japan 's claims concerning confidentiality with sufficient precision to
present the problem clearly. First, Japan 's panel request clearly identifies Articles 6.5 and 6.5.1 as
the provisions that were allegedly breached. Second, the panel request indicates which components
of the measure at issue are involved in the alleged breach, being the KIA's treatment of certain
information as confidential and the KIA's alleged failure to ensure the provision of sufficiently
detailed non-confidential summaries. Third, the text of Articles 6.5 and 6.5.1 provide for clear legal
obligations that are alleged to have been breached by the challenged aspects of the measure at
issue. This information is sufficient to present the problem clearly as required by Article 6.2.
Korea's argument thus fails.30
7.1.3 Whether Japan's panel request unduly expand ed the scope of the dispute beyond
what was included in the consultations request
7.8. As noted above, Korea contends that claims 1(b), 1(d), 5(b), and 5(c) of Japan's panel request
unduly expand the scope of the dispute beyond what had been included in the consu ltations
request.31 Korea argues that claims 1(b), 1(d), 5(b), and 5(c) concern matters for which no proper
consultations were held, in violation of Articles 4.4 and 6.2 of the DSU and Article 17.3 of the
Anti-Dumping Agreement.32 Japan responds that claims 1(b), 1(d), and 5 of its panel request merely
clarify and further specify issues raised in the consultations request, and do not change or expand
the scope of Japan's complaint.33
7.9. We note that it is well established that the legal basis for a complaint in a panel request may
reasonably evolve from the consultations request, although the addition of new aspects to a panel
request should not have the effect of changing the essence of the complaint as set out in the
consultations request.34
7.10. In respect of claim 1(b), Korea argues that Japan added two novel items to the list of factors
alleged by Japan to have been inadequately considered by the KIA in determining that the expiry of
duties on SSBs would be likely to lead to continuation or recurrence of injury to the domestic industry
under Article 11.3 of the Anti-Dumping Agreement.35 The essence of claim 1(b) is the alleged failure
of the KIA to assess factors other than the Japanese imports that may have caused injury to the
domestic industry irrespective of the expiry of the anti -dumping duties. 36 We consider that the
additional two factors are further specifications of this claim, which could reasonably be said to flow

28 Korea's first written submission, para. 22.
29 Japan's response to Korea's preliminary ruling request, para. 36.
30 We note that the Appellate Body reached the same conclusion in respect of a substantially similar
matter. (Appellate Body Report, Korea – Pneumatic Valves (Japan), paras. 5.370-5.385).
31 Korea's first written submission, paras. 17-20.
32 Korea's first written submission, paras. 17-18.
33 Japan's response to Korea's preliminary ruling request, para. 16.
34 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 138.
35 Japan added: 1(b)(ii) "the decline of the sales price of such imports"; and 1(b)(v) "the continuing
trend of decrease in the volume of exports by the domestic industry and the ratio of the export volume to the
total volume of sales by the domestic industry". (Japan's panel request, p. 2). The consultation request only
identified "the growing volume and market share of the imports of SSB from third countries", "the declining
material costs" and "the continuing trend of slow growth in domestic demand". (Japan's consultations request,
p. 2).
36 Japan's consultations request, p. 2; panel request, p. 2.

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from a natural evolution of the consultation process.37 We thus find the addition of these two items
does not change the essence of the complaint as set out in the consultations request.38
7.11. In respect of claim 1(d), Korea alleges that Japan added novel concerns and improperly
elaborated its claims through the addition of subsections 1 (d)(i) and 1(d)(ii). 39 The essence of
claim 1(d) is the alleged failure of the KIA to establish that the expiry of the anti-dumping duties
was likely to lead to an increase of imports from Japan. Claim 1(d) in Japan's consultations request
and panel request is directed at linking the expiry of the anti-dumping duties with the continuation
or recurrence of dumping and injury as required under Article 11.3 of the
Anti-Dumping Agreement.40 Claim 1(d) in Japan's panel request added an element concerning th e
impact of an increase in Japanese imports on the domestic industry. The consultations request
already referred to the effects of increased imports from Japan by stating that Korea had failed to
demonstrate how such imports could affect imports of SSBs fr om other countries and domestically
produced SSBs.41 We thus consider the modifications in the panel request to be a further clarification
of the claims in the consultations request , and to reflect a natural evolution of the consultation
process. Further, subsections 1(d)(i) and 1(d)(ii) simply restructure information already contained
in the consultations request and thus do not change the essence of the complaint.
7.12. Finally, Korea argues in respect of claim 5 that Japan added two additional items. 42 The
essence of claim 5 is the alleged failure of the KIA to provide, in sufficient detail, public notice of the
findings and conclusions reached by the investigating authority on all issues of fact and law as
required under Articles 12.2, 12.2.2 , and 12.3 of the Anti-Dumping Agreement.43 In both its
consultations request and panel request, Japan identified certain matters for which Korea allegedly
failed to meet its obligations under Articles 12.2, 12.2.2, and 12.3 of the Anti-Dumping Agreement.
We find that the two additional items in th e panel request simply support the claim under
Articles 12.2, 12.2.2, and 12.3 and do not change the essence of the dispute as set out in the
consultations request. Korea's claim on the foregoing points thus fails.
7.1.4 Whether Japan's first written submission unduly expanded the scope of the dispute
beyond what was included in the panel request
7.13. Korea claims that Japan's first written submission unduly expands the scope of the dispute as
set out in the panel request.44 First, in relation to Japan 's arguments under Article 11.3 of the
Anti-Dumping Agreement, Korea argues that Japan "abruptly changed its position" in its first written
submission by introducing arguments that a "causal nexus" should be established between the expiry
of the anti-dumping duties and the continuation or recurrence of dumping.45 Second, Korea argues
that Japan 's references to "dumping" in the claims made under Articles 6.9 and 12 of the
Anti-Dumping Agreement in its first written submissions fall outside the scope of claims 4 and 5 of
the panel request.46
7.14. In relation to Korea's first argument, Japan responds that it has not raised a separate claim
with regard to Korea's determination on the likelihood of recurrence of dumping as being inconsistent
with Article 11.3 of the Anti -Dumping Agreement.47 A review of Japan 's first written submission
makes clear that Japan 's "causal nexus" arguments are related to and support Japan 's claims that
the determination of the likelihood of recurrence of injury is inconsistent with Article 11.3 of the

37 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 138.
38 This is consistent with a substantially similar finding by the Appellate Body in Korea – Pneumatic
Valves (paras. 5.99 and 5.108).
39 Korea's first written submission, para. 18.
40 Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods, para. 108.
41 Japan's consultations request, p. 2.
42 Japan added in the panel request the following two items: 5(b) "the finding of additional production
capacity, and the capacity for exports, of foreign producers including those in Japan"; and 5(c) "the finding of a
nexus between the expiry of the duties and a continuation or recurrence of dumping and injury by imports
under review, despite acknowledging the impact of other known factors on the domestic industry".
(Japan's panel request, p. 3).
43 Japan's response to Korea's preliminary ruling request, para. 20.
44 Korea's first written submission, paras. 21 and 23-26.
45 Korea's first written submission, para. 21.
46 Korea's first written submission, paras. 23-26.
47 Japan's response to Korea's preliminary ruling request, para. 27.

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Anti-Dumping Agreement. As this claim was clearly established in Japan 's panel request, Japan did
not improperly introduce arguments relating to a "casual nexus" in its first written submission.
7.15. In relation to Korea's second argument, Japan notes that contrary to Korea's arguments, the
wording in Japan's panel request does not limit the scope of claims 4 and 5 to the determination of
the likelihood of "injury". 48 We agree with Japan, and consider Korea's allegations to be based on
the flawed premise that there was no reference to "dumping" in claims 4 and 5 of the panel request.
Claim 4 plainly refers to "the continuation or recurrence of dumping and injury". Claim 5 refers to
sufficient public notice of matters of fact and law leading to the "sunset review determination", which
necessarily entails a review of whether the expiry of the duties would lead to the recurrence or
continuation of dumping and injury. Additionally, subparagrap hs 5(c ) and 5(d ) refer to the
"recurrence of dumping" as part of the matters challenged under claim 5. Consequently, we do not
consider that Japan unduly expanded the scope of the dispute in its first written submissions. In any
event, having reviewed the substance of Japan's first written submission on these points, we take
the view that they are squarely part of the KIA 's likelihood-of-injury determination. Some of
Japan's arguments under Articles 6.9 and 12 ostensibly reference the "recurrence of dumping" but
pertain, in substance, to factual or analytical matters that were part of the KIA 's "recurrence of
injury" assessment, such as unused export capacity, trends in the import volume and domestic
market share of the "product under investigation", and the Japanese exporters' failure to cooperate
with the dumping investigation as a basis for rejecting their production capacity figures. 49 In that
regard, we consider it noteworthy that Japan stated explicitly in its first written submission that
"Japan is not disputing the [KIA's] determination of likelihood of dumping in this proceeding".50 We
construe Japan's claims and arguments in light of that statement.
7.2 Introduction: Japan's claims under the Anti-Dumping Agreement
7.16. The proceedings involved extensive exchanges between the parties. Over one thousand seven
hundred pages have been submitted in argumentation and rebuttal, together with well over one
hundred exhibits. We have reviewed all of these materials closely, and as we will explain in this
Report, it is apparent that the prompt and effective resolution to the dispute hinges on two key
questions. These concern whether Japan has demonstra ted that the KIA failed to undertake an
"unbiased and objective" evaluation of the facts in respect of the following two findings:
a. the finding that the lifting of the anti-dumping duties and the resulting drop in the price of
Japanese imports by [[***]] ([[***]]in 201551) would lead to a weakening of domestic
price competitiveness and an increase in the volume of Japanese imports52; and
b. the finding of a capacity utilization rate of [[***]] for Japan, together with the conclusion
that Japan had "sufficient additional production capacity and room for exports".53
7.17. In sections 7.5.3 and 7.5.5.1 we examine these two overarching questions. In section 7.5.4
we address Japan 's claims concerning "ot her injury factors" , and in section 7.5.5.2 we address
Japan's claims concerning the alleged use of "facts available" regarding capacity utilization . In
section 7.6 we examine Japan 's confidentiality-related claims under Article 6.5 of the
Anti-Dumping Agreement. In section 7.7 we explain why it is unnecessary for the prompt and

48 Japan's response to Korea's preliminary ruling request, para. 39.
49 See, e.g. Japan's first written submission, paras. 290, 292-294, 363-364, and 367.
50 Japan's first written submission, fn 80.
51 See paras. 7.71-7.72 below.
52 KTC's final resolution, (Exhibit KOR-4.b (BCI)), pp. 21-22. See also OTI's final report,
(Exhibit KOR-5.c (BCI)), pp. 63 and 67. The public versions of these same documents are exhibit JPN-2.b and
exhibit JPN-3.b respectively. For ease of reference, we generally refer to the versions submitted by Korea,
including where e.g. a party has quoted from the other version, unless the matter at issue pertains specifically
to the public version. The Panel took note of the cited differences in translation between these versions, and
did not consider that they had a bearing on the outcome of this dispute. Finally, we note that Korea submitted
a further version of exhibit KOR-5.b (BCI) – namely, exhibit KOR-5.c (BCI) – which highlighted a series of
corrigenda and revisions. Since we understand the latter version to supersede the earlier version, we generally
refer to the latter version, even if a given quotation or reference was cited to the earlier version. In that
regard, we reviewed the changes between these versions referred to in the document "Exhibit KOR-5.c
addendum" and did not consider that they materially altered the outcome of this dispute.
53 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 22. See also OTI's final report,
(Exhibit KOR-5.c (BCI)), p. 67.

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effective resolution of the present dispute to present recommendations to the DSB regarding the
remaining claims and arguments of the parties. The Panel recalls that it has the autonomy to decide
the order of its own analysis.54
7.3 General principles regarding treaty interpretation, standard of review, and burden of
proof
7.3.1 Treaty interpretation
7.18. Article 3.2 of the DSU provides that the WTO dispute settlement system serves to clarify the
existing provisions of the covered Agreements "in accordance with customary rules of interpretation
of public international law". It is generally accepted that the principles codified in Articles 31 and 32
of the Vienna Convention on the Law of Treaties (Vienna Convention) are such customary rules.55
7.19. Article 17.6(ii) of the Anti -Dumping Agreement sets forth a specific standard of review
applicable to anti-dumping disputes, namely:
[T]he 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.
7.3.2 Burden of proof
7.20. The general principles applicable to the allocation of the burden of proof in WTO dispute
settlement require that a party claiming a violation of a provision of the WTO Agreements must
assert and prove its claim.56 Therefore, Japan bears the burden of demonstrating that the challenged
measures are inconsistent with the cited provisions of the WTO Agreements.
7.21. A complaining party will satisfy its burden when it establishes a prima facie case, namely a
case that, in the absence of eff ective refutation by the responding party, requires a panel, as a
matter of law, to rule in favour of the complaining party.57 It is generally for each party asserting a
fact to provide proof thereof.58
7.22. Korea raised a concern that the Panel, through its qu estioning of the parties, had appeared
to apply a "double standard of proof". 59 Korea's concern seemed to be that the Panel 's questions
unduly helped Japan to make its case, whilst also applying greater scrutiny to Korea 's case and
unduly shifting the burden onto Korea despite the fact that Japan bears the initial burden of proof
to make a prima facie case.60
7.23. It is not the task of a panel to enter into a debate with the parties about how it chooses to
exercise discretion in conducting the proceedings within the parameters of the DSU and the Working
Procedures, such as through the questions it puts to the parties.61 We nonetheless make a number
of observations of relevance to the concerns raised by Korea.

54 Appellate Body Report, Canada – Wheat Exports and Grain Imports, para. 126; Panel Report,
Argentina – Financial Services, para. 7.67. We are mindful that the order we choose may also have an impact
on the potential to apply judicial economy when making our determinations in this case. (Panel Reports,
55 Appellate Body Reports, US – Gasoline, DSR 1996:I, pp. 15-16; Japan – Alcoholic Beverages II,
DSR 1996:I, pp. 104-105, section D.
56 Appellate Body Report, US – Wool Shirts and Blouses, DSR 1997:I, p. 337.
57 Appellate Body Report, EC – Hormones, para. 104.
58 Appellate Body Report, US – Wool Shirts and Blouses, DSR 1997:I, p. 335.
59 Korea's common response to Panel questions after the second meeting with the Panel, para. 6.
60 Korea's common response to Panel questions after the second meeting with the Panel, paras. 5-7;
61 We are cognisant of the requirements in the Working Procedures and the DSU to consult with the
parties upon adopting and modifying rules of procedure. However, beyond certain special circumstances that
are not relevant to the present case, nothing in the Working Procedures or the DSU prescribes a role for the

BCI deleted, as indicated [[***]]

7.24. Our primary task is to help the part ies resolve their dispute in a prompt and effective
manner.62 Ordinarily63, this involves making findings as to whether a complaining party has
presented a prima facie case of inconsistency with the applicable obligations of the WTO Agreements
and whether, in response, a responding party has effectively rebutted the prima facie case of the
complaining party.64 While a panel may develop its own reasoning in arriving at its findings, it is of
course not for a panel to make the case for either party.
7.25. The fact that it is for the complaining party to discharge its burden of proof by establishing a
prima facie case at first instance, and then for the responding party to effectively refute that case,
does not mean that a panel is frozen into inactivity. 65 The extensive discretionary authority of a
panel to request information from any source (including a Member that is a party to the dispute ) is
not conditional upon a party having established, on a prima facie basis, a claim or defence .66 The
same is true for a panel's extensive discretionary authority to put questions to the parties in order
to inform itself of the relevant facts of the dispute and the legal considerations applicable.67 It would
thus be erroneous for a party to suggest that we can ask a questio n of the responding party only
upon arriving at an initial determination that the complaining party has established a prima facie
case. It would further be erroneous for a party to seek to divine from the existence or formulation
of a given question that it is reflective of a position already adopted by the Panel, for instance that
we had already determined that the complaining party established a prima facie case.68
7.26. Indeed, in all instances during the proceedings where the Panel posed questions to the parties
orally and in writing, we explained that our questions were intended to facilitate our work, and that
our questions did not in any way prejudge our findings on the matter before us.69 For the avoidance
of doubt, the purpose of this explanation was to assure the parties that the inclusion of a certain
proposition in a question was not reflective of a predetermined position adopted by the Panel
regarding that question. While it should be self -evident, we addition ally explained that " [a]ll
questions are without prejudice to the Panel's resolution of the claims and arguments of the parties,
including objections pertaining to the Panel's terms of reference or the admissibility or relevance of
certain evidence".
7.27. To r eiterate, we explained throughout the proceedings that the Panel 's questions were
intended to "facilitate its work ". The "work" of the Panel is guided at all times by the standard of
review prescribed in Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement. It should
be unsurprising tha t where a determination by the authority of one party is the matter at issue,
more questions may be directed towards that party. For instance, that party may be in a better
position to shed light on the eviden ce and reasoning underpinning the determination made by its
own authority, and what may or may not have been taken into account by its own authority in that

parties in determining the precise formulation, nature, or content of the questions that a panel seeks to put to
the parties.
62 Articles 3.3, 11, and 21.1 of the DSU.
63 We note that parties may resolve their dispute through a mutually satisfactory solution, and pursuant
to Article 11 of the DSU, "[p]anels should consult regularly with the parties to the dispute and give them
adequate opportunity to develop a mutually satisfactory solution".
64 Panel Report, China – Broiler Products (Article 21.5 – US), para. 7.354.
65 Panel Report, Thailand – H-Beams, para. 7.50.
66 Article 13 of the DSU. See also Panel Reports, Thailand – H-Beams, para. 7.50; and Argentina –
Import Measures, para. 6.59. Of course, we cannot use such authority to rule in favour of a complaining party
who has not established a prima facie case. (Appellate Body Report, Japan – Agricultural Products II,
paras. 129-130). But that does not mean that a panel's ability to put questions to the parties is conditional
upon arriving at an initial finding that a prima facie case or defence has been established.
67 Appendix 3, clause 8 of the DSU; Working Procedures, clause 9; and Panel Report, Thailand –
H-Beams, para. 7.50. Of course, the nature, form, and quantity of the questions posed is guided by the overall
task of helping the parties to resolve their dispute in a prompt and effective manner, as well as our standard of
review.
68 Moreover, the DSU does not contemplate that a party can decide for itself whether a question posed
by a panel is relevant for the resolution of the dispute, nor whether the other party has already established a
prima facie case on a given point that would in turn justify a question by a panel to the other party on that
point. (Panel Reports, Argentina – Import Measures, para. 6.59).
69 For instance, all written documents containing questions from the Panel to the parties included the
covering note that "[t]hese questions are intended to facilitate the work of the Panel, and do not in any way
prejudge the Panel's findings on the matter before it". This was also conveyed to the parties at the hearing
regarding the Panel's oral questions.

BCI deleted, as indicated [[***]]

regard. That is especially so in circumstances where the responding party relies on "implicit" findings
or uncited record evidence as part of its defence of its authority's determination.
7.28. Likewise, with respect to our examination of the facts, it should be unsurprising that our focus
is on how the authority solicited and examined the facts, including whether and where such an
examination might be reflected in the authori ty's determination. Such a focus is not indicative of a
"double standard of proof" 70, but merely reflects that "[t] he authority is under an obligation to
properly establish the facts and evaluate them in an objective and unbiased manner " in the
underlying investigation.71
7.29. Indeed, the party of the authority may be best placed to explain why it did not address, in its
determination (or any other document), a matter that an interested party raised during the
underlying investigation, for instance because the matter was unsubstantiated or irrelevant.
7.30. Accordingly, for some questions, we chose to direct the question to a particular party,
e.g. where it appeared that this party might be better placed to respond. However, the Panel
explained that " [t]he fact that a question may be primarily directed towards one party does not
preclude a res ponse from the other party ".72 It would therefore be erroneous for a party to draw
any inferences from whether the Panel addressed a question to one party or another.
7.31. We also observe that the posing of questions in panel proceedings can serve multiple
purposes. One purpose can be to obtain missing information or fill gaps in the panel record. Another
purpose can be to clarify the precise nature and scope of a party's legal claim or defence. A further
purpose can be to scrutinize the credibility or reliability of the contested materials before the panel.
The way in which a question is framed can depend on the purpose for which it is asked. None of
these purposes, however, are indicative of a panel having reached any predetermined conclusions
on any point, nor having decided to adopt a particular approach. Indeed, a panel 's discretion
concerning the form, nature, and content of its questions to parties is unfettered in the DSU.73 In all
instances, the posing of questions is intended to build a sufficient understanding of the legal
arguments and evidence at issue to "facilitate [the Panel's] work". It may well emerge from the
response to a question that it is not a relevant conside ration in resolving the dispute ; it may also
emerge that it is unnecessary for the Panel to address the substance of the response , for instance
due to the exercise of judicial economy over the relevant claim, or because the Panel ultimately finds
that the other side did not make a prima facie case. It would therefore be erroneous for a party to
extrapolate anything from the posing of a given question, other than that the Panel seeks a response.
7.32. Finally, we note that the parties' respective positions in panel proceedings are not prejudiced
by the specific formulation of a question posed by a panel when, as in the present case, each party
is allowed to comment on responses to the panel's questions received from the other side, to pose
its own questions to the other side at multiple junctures during the proceedings , and to comment
on the responses received from the other side to its own questions. 74 The parties in the present
dispute have had exhaustive opportunities to present their respective cases and rebuttals. As
affirmed above75, we have taken into account all of the materials submitted by the parties during
these proceedings in arriving at a resolution to the dispute that is as effective and prompt as possible.
7.3.3 Standard of review
7.33. Panels are bound by the standard of review set forth in Article 11 of the DSU, which provides,
in relevant part, that:

70 Korea's common response to Panel questions after the second meeting with the Panel, paras. 5-7;
response to Panel question No. 92, para. 50.
71 Korea's response to Panel question No. 3(b) (emphasis added). See also first written submission,
para. 43; and response to Panel question No. 32(b)(ii).
72 For instance, all written documents containing questions from the Panel to the parties included this in
the covering note.
73 Appendix 3, clause 8 of the DSU. Of course, in all aspects of the conduct of the proceedings, a panel
must ensure that its assessment of the matter is "objective" under Article 11 of the DSU and must ensure due
process for both sides to the dispute. A panel must also ensure that the resolution of the dispute is prompt and
effective. We thus agree with the Appellate Body Report, Thailand – Cigarettes (Philippines), paras. 147-150.
74 See, by analogy, Panel Report, Australia – Apples, para. 7.67.
75 See para. 7.16 above.

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[A] panel should make an objective assessment of the matter before it, including an
objective assessment of the facts of the case and the applicability of and conformity
with the relevant covered Agreements[.]
7.34. Both parties accept the Appellate Body's explanation that the "objective assessment" to be
made by a panel reviewing an investigating authority's determination under Article 11 of the DSU is
to be informed by an examination of whether the authority provided a "reasoned and adequate "
explanation as to (a) how the evidence on the record supported its factual findings; and (b ) how
those factual findings supported the overall determination.76 We proceed on that basis.
7.35. Both parties also accept that Article 17.6(i) of the Anti -Dumping Agreement sets forth a
specific standard of review applicable to anti-dumping disputes, namely:
(i) [I]n 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 unbiased and objective, even though the panel might have reached a
different conclusion, the evaluation shall not be overturned[.]77
7.36. It is common ground amongst the parties that, based on this standard of review, a panel
reviewing an investigating authority 's determination may not undertake a de novo review of the
evidence, nor substitute its judg ement for that of the investigating auth ority.78 For instance, an
alternative explanation of the record evidence cannot impugn an authority 's determination merely
because it seems preferable.
7.37. At the same time, a panel must not simply defer to the conclusions of the investigating
authority.79 Rather, we understand it to be common ground amongst the parties that a failure by
the authorities to adequately account for an alternative explanation of the record evidence can
potentially illustrate that the "establishment of the facts was [not] proper and … the evaluation was
[not] unbiased and objective".80 This is because, as Korea indicates, an authority's explanation must
"fully address [] the nature, and especially the complexities, of the data and respond[] to other
plausible interpretations of the d ata", a nd that "[w] hat matters is simply that the overall
determination remains adequate in light of such alternative explanation of the data". 81 Of course,
this does not mean that an authority must explicitly and exhaustively discuss every matter raised
or alleged by an interested party during a review.82 However, the failure of an authority to address
a directly-relevant and substantiated point, or the adoption by the authority of one side's argument
and evidence without addressing the other side 's argument and evidence, or the presence of
meaningful inconsistencies in the authorities ' own reasoning, could impugn the "objectivity" of an
authority's assessment insofar as it improperly favours the interests of certain interested parties
over others.83

76 Japan's first written submission, para. 54; Korea's second written submission, para. 22. This language
comes from the Appellate Body Report, US – Countervailing Duty Investigation on DRAMS, para. 186.
77 Japan's first written submission, paras. 51-53; Korea's response to Panel question No. 1.
78 Japan's response to Panel question No. 2, para. 8; Korea's first written submission, paras. 33 and 36.
See also Appellate Body Report, EU – Fatty Alcohols (Indonesia), paras. 5.84 and 5.86.
79 Appellate Body Reports, US – Softwood Lumber VI (Article 21.5 – Canada), para. 93; US – Lamb,
paras. 106-107.
80 Korea's response to Panel question No. 1; Japan's response to Panel question No. 1, para. 5; and
Japan's first written submission, paras. 52-54. See also Appellate Body Report, US – Softwood Lumber VI
(Article 21.5 – Canada), para. 93.
81 Korea's response to Panel question No. 1. See also Japan's first written submission, para. 53.
82 We agree with Korea in that regard. (Korea's responses to Panel question No. 2, and No. 97,
para. 121). An investigating authority would ordinarily be expected to consider a pertinent matter explicitly
when confronted with sufficient evidence. (Panel Report, EU – Fatty Alcohols (Indonesia), paras. 7.196
and 7.204).
83 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.138 (quoting
Appellate Body Report, China – GOES, para. 126); Mexico – Anti-Dumping Measures on Rice, paras. 180-181;
and US – Softwood Lumber VI (Article 21.5 – Canada), paras. 93 and 97.

BCI deleted, as indicated [[***]]

7.38. Since a panel may not conduct a de novo assessment of the case, it must limit its examination
to the evidence that was before the authority during the investigation .84 However, a
panel's assessment is not limited to the evidence cited by an authority in its determination, and we
understand this to be the position of both parties.85 Rather, a panel must take into account all record
evidence submitted by the parties in the panel proceedings.86 In that regard, a panel may be called
upon to respond to allegations by a complainant concerning the significance of record evidence that
the investigating authority allegedly ignored, or on which it placed insufficient weight, or from which
it drew incorrect inferences.87 The fact that an investigating authority has not cited every piece of
record evidence that negates or substantiates these kinds of allegations does not mean that a panel
is prevented from considering such evidence to test the veracity of those allegations.
A panel's review of the record evidence in order to establish the veracity of such allegations, and
thus determine whether the com plaining party has demonstrated that the authority 's conclusions
were not reasoned and adequate, does not amount to a de novo review of the record evidence. 88
We understand that both parties accept this as a general proposition.89
7.39. Equally, a panel's examination of whether an investigating authority 's conclusions were
reasoned and adequate is not necessarily limited to the pieces of evidence expressly relied upon by
the authority in its establishment and evaluation of the facts in arriving at a particular conclusion.90
Rather, a panel may also take into consideration other pieces of evidence that were on the record
and that corroborate the explanation provided by the investigating authority in its determination.
This is because investigating authorities are not required to cite or discuss every piece of supporting
record evidence for each fact in their determination .91 There is no such obligation in the
Anti-Dumping Agreement. Thus, Korea is not precluded from now relying on record evidence that
was not explicitly cited or discussed by the KIA, but nonetheless substantiates the reasoning of the
KIA as reflected in its determination.92
7.40. In summary, there are at least two general ways in which panels may permissibly consider
record evidence that was not explicitly cited by an investigating authority in its determination:
a. where the complaining party bases its claim on record evidence that was not cited by the
authority, and asserts that this uncited record evidence demonstrates that the
authority's evaluation was not "unbiased and objective"; and
b. where the evidence was not cited by the investigating authority but nonetheless
corroborates the inferences, reasoning and conclusions reached by the authority.93
7.41. However, since a panel's review cannot be de novo, ex post rationalizations unconnected to
the investigating authority's explanation – even when founded on record evidence – cannot form the
basis of a panel 's finding that the authority 's conclusion was reasoned and adequate .94 This is
because such rationa lizations would be new rationalizations. If a panel were to rely on new
rationalizations to substantiate an authority 's determination, it would effectively be substituting its
own judgement for that which was actually made by the authority, and hence engag e in a de novo
assessment.95 Thus, we accept Korea's point that it "is entitled to rely on and refer to evidence on
the record to confirm the reasonableness of the authorities' determination so long as it is clear that

84 This is also reflected in Article 17.5(ii) of the Anti-Dumping Agreement, through which panels are
limited to examining the matter based on "the facts made available in conformity with appropriate domestic
procedures to the authorities of the importing Member".
85 Korea's response to Panel question No. 2; Japan's response to Panel question No. 2, paras. 9 and 11.
86 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS, para. 187.
87 Appellate Body Report, EU – Fatty Alcohols (Indonesia), para. 5.99.
88 Appellate Body Report, EU – Fatty Alcohols (Indonesia), para. 5.99.
89 Korea's response to Panel question No. 2 (agreeing with the extracts of Appellate Body Report, EU –
Fatty Alcohols (Indonesia), paras. 5.86 and 5.99); Japan's response to Panel question No. 2, para. 11.
90 Appellate Body Report, Thailand – H-Beams, paras. 117-119.
91 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS, para. 164. See also
Korea's responses to Panel question Nos. 2 and 3(a); and second written submission, para. 154.
92 We note, however, that if the uncited evidence constitutes an "essential fact" under Article 6.9 of the
Anti-Dumping Agreement, the failure to cite that fact (i.e. "disclose" it) could lead to a violation of Article 6.9.
93 Panel Report, US – Carbon Steel (India) (Article 21.5 – India), paras. 7.5-7.6 and fn 196.
94 See e.g. Appellate Body Reports, US – Tyres (China), para. 329; Japan – DRAMs (Korea), para. 159;
and Panel Reports, Argentina – Ceramic Tiles, para. 6.27; Argentina – Poultry Anti-Dumping Duties,
paras. 7.48-7.49.
95 Japan's response to Panel question No. 1, para. 4.

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this was evidence taken into consideration by the authorities".96 We also accept Korea's point that
certain intermediary findings or considerations may be "implicit" in an authority 's determination.97
The existence, as a factual matter, of "implicit" findings, analyses, or considerations by an authority
must be demonstrated by the party asserting their existence. This could be shown, for instance, by
reference to the nature and implications of the investigating authority 's reasoning on a given point
or to the procedural circumstances of the review . We would therefore disagree with Japan that a
panel can never take into account "implicit" findings, analyses, or considerations that are not
expressed in the text of an authority's determination.98 However, we accept Japan's point that Korea
cannot rely on uncited evidence or "implicit" analyses to substantiate a new or different rationale to
that articulated by the KIA in its determination. 99 In our view, the party asserting the existence of
an " implicit" finding, analysis, or consideration must demonstrate a link to the text of the
determination, such that it does not constitute an ex post rationalization or lead the Panel to make
a de novo finding.
7.42. This leads to a related point, namely the extent to which the responding party can link
together different aspects of its investigating authority's determination to clarify what the authority
meant, or to rebut the complaining party's claims in WTO panel proceedings. Determinations of
investigating authorities are often segmented into distinct parts that contain different headings and
different analyses. This does not mean that one is unrelated to another, nor that the analysis
ostensibly directed at one matter cannot be used by a responding party in WTO panel proceedings
to shed light on another matter in a different part of the determination.100 Thus, the mere fact that
a given analysis occurs under one heading/ section of a determination does not preclude i t from
shedding light on the analysis of another matter in a different heading/ section for the purposes of
WTO dispute settlement.101
7.43. On the other hand, " it is not for panels to find support for [an authority's] conclusions by
cobbling together disjointed references scattered throughout a competent authority's report".102 We
understand, at least in general terms, that both parties accept that there must be some form of
reasonable "connection" or "linkage" between findings or reasoning that appear in different parts of
a determination before they may permissibly be used to shed light on each other.103
7.44. At this juncture, it is useful to set out how we intend to approach Japan 's objections that
numerous aspects of Korea 's description of the KIA 's determination and reasoning comprise
impermissible ex post explanations104, which Korea considers to be meritless and unsupported by
the record. 105 As the foregoing discussion shows , objections that an explanation comprises
impermissible ex post reasoning are significant. To reiterate, i f a panel were to uphold a
determination on the basis of impermissible ex post reasoning, it would be conducting a de novo
review of the underlying in vestigation, contrary to its basic duty under Article 17.6 of the
Anti-Dumping Agreement. However, whilst an authority 's reasoning must be "discernible from the
published determination itself", "the meaning of a determination [can] be clarified" by parties to a
dispute, for instance "by referring to evidence on the record".106 In our consideration of the matters
before us, we see no reason why Korea might be precluded a priori from clarifying the meaning of
the KIA's determination in this dispute, including by reference to record evidence, so long as the
clarification d oes not amount to a new rationale absent from the determination itself. We will
examine the veracity of Japan 's objection that a given aspect of Korea 's case comprise s

96 Korea's response to Panel question No. 7. (emphasis added)
97 Korea's second written submission, para. 160. See, e.g. Panel Report, US – Carbon Steel
(India) (Article 21.5 – India), paras. 7.211 and 7.219.
98 Japan's second written submission, paras. 32-37.
99 Japan's second written submission, para. 36.
100 See, e.g. Panel Reports, US – Coated Paper (Indonesia), paras. 7.159 and 7.164; EU – Fatty Alcohols
(Indonesia), paras. 7.173-7.174; and US – Carbon Steel (India) (Article 21.5 – India), para. 7.178.
101 See, e.g. Appellate Body Report, US – Countervailing Measures (China), para. 4.144.
102 Appellate Body Report, US – Steel Safeguards, para. 326. See also Appellate Body Report, US –
Countervailing Measures (China) (Article 21.5 – China), para. 5.239.
103 Korea's response to Panel question No. 6(c); Japan's responses to Panel question No. 6(a), para. 24,
104 See, e.g. Japan's second written submission, paras. 21, 231, 265-266, and 284; and responses to
105 Korea's second written submission, paras. 71 and 160-162.
106 Appellate Body Report, US – Countervailing Measures (China) (Article 21.5 – China),
paras. 5.164-5.165.

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impermissible ex post reasoning where such objections arise below in our substantive evaluation of
the claims advanced in this dispute . However, given the volume of ex post objections made by
Japan, we decline to examine every such objection in an itemized way, particularly if such an
examination is not strictly required to ensure the proper resolution of the claim at issue. Thus, we
will limit our examination to only those instances where the challenged aspect of Korea 's case has
the potential to uphold th e KIA's determination. This avoids the risk of an outcome based on a de
novo review, whilst focusing the assessment of Japan's ex post objections on those instances where
resolving the objection was necessary to the resolution of the claim.
7.45. Finally, we note that not every error made or questionable inference drawn by an investigating
authority in its treatment of a given piece of evidence will necessarily rise to the level of a violation
of an obligation of the WTO Agreements.107 Rather, a panel's evaluation of whether an investigating
authority's evaluation is " unbiased and objective " requires an assessment of the totality of the
evidence, inferences, and intermediary findings relied upon by an investigating authority to justify
its reasoning on a given point.108 We have been particularly cognisant of this point in relation to
Japan's claims under Article 11.3 of the Anti -Dumping Agreement in light of the nature of that
particular provision.109
7.4 Japan's objections concerning certain exhibits
7.46. Japan objects that numerous documents submitted by Korea in these proceedings have not
been shown to be on the record in the underlying review.110 Korea responds that all of the submitted
documents were properly on the record in the underlying review.111
7.47. Japan argues that, in respect of exhibits KOR-8, 13, 14, 17, 18, 21, 22, 24, 37, 41, 43, 51,
52, 53, 56, 57, 58, 62, 64, and 68112, there is no indication from the evidence submitted in these
dispute settlement proceedings that they form ed part of the record in the underlying review .113
Japan contends this is inconsistent with the requirement in Article 17.5(ii) of the
Anti-Dumping Agreement that a panel shall examine a matter, inter alia, based upon "the facts made
available in conformity with appropriate domestic procedures to the authorities of the importing
Member". Korea responds that all the contested exhibits can be reasonably inferred to have been
considered by its authorities at the time of the underlying review, and were thus within the scope of
our purview in these proceedings.114
7.48. As stated by the Appellate Body in Russia – Commercial Vehicles, when faced with a challenge
that certain documents do not form part of the record before an investigating authority, a panel
must take certain st eps to assure itself that the documents are genuine and contemporaneous. 115
The steps required depend on the facts of a particular case, and may include posing additional

107 Panel Report, US – Carbon Steel (India) (Article 21.5 – India), para. 7.7.
108 See e.g. Appellate Body Report, Japan – DRAMs (Korea), paras. 133-134. See also Panel Report,
EC – Fasteners (China), para. 7.359.
109 See para. 7.57 below. We agree with Korea that the proper standard of review to be applied by a
panel must also be understood in the light of the specific obligations of the relevant agreements that are at
issue in the case. (Korea's second written submission, para. 16 (referring to Appellate Body Report US –
Softwood Lumber VI (Article 21.5 – Canada), para. 92)).
110 See generally Japan's response to Panel question No. 120.
111 Korea's comments on Japan's response to Panel question No. 120, p. 70; response to
Japan's question after the first meeting of the Panel No. 1, paras. 3-40.
112 ISO stainless steel grade comparability tables, (Exhibit KOR-8); USITC report (first review),
(Exhibit KOR-13); USITC report (second review), (Exhibit KOR-14); KS specification, (Exhibit KOR-17),
JIS specification, (Exhibit KOR-18); ISSF Website profile page, (Exhibit KOR-21); JSSA Website members page,
(Exhibit KOR-22); USITC report (original investigation), (Exhibit KOR-24); OTI import statistics,
(Exhibit KOR-37); Korea's response to the Panel's Article 13 information request, (Exhibit KOR-41); Import
Clearance Matrix, (Exhibit KOR-43); Translation of the JSSA Website members page, (Exhibit KOR-51); Sanyo
and Aichi catalogues, (Exhibit KOR-52); Websites of Yamashin, Kansai, and Tohoku, (Exhibit KOR-53);
Purchase order, (Exhibit KOR-56); Explanation on ISSF statistics methodology, (Exhibit KOR-57); Commentary
on HS code classification, (Exhibit KOR-58); High adaptability of secondary processing facilities,
(Exhibit KOR-62); Atlas steels stainless steel grade database, (Exhibit KOR-64); and More purchase order
examples, (Exhibit KOR-68).
113 Japan's response to Panel question No. 120, para. 125; Korea's response to Japan's question after
the second meeting of the Panel No. 1, paras. 1-56.
114 Korea's comment on Japan's response to Panel question No. 120, p. 70; response to
Japan's question after the second meeting of the Panel No. 1, paras. 1-56.
115 Appellate Body Report, Russia – Commercial Vehicles, para. 5.134.

BCI deleted, as indicated [[***]]

questions to the submitting party or examining additional evidence concerning the cont ested
documents.116
7.49. We do not consider in this case that Japan has established cause to doubt that the documents
in question were genuine and contemporaneous parts of the record before the KIA. As there is no
domestic law governing the KIA 's management of r ecord evidence, whether evidence was on the
record must be assessed on the basis of the totality of the evidence. 117 In response to questions
from the Panel, Korea explained that "every single piece of evidence that Korea submitted in this
dispute properly supports or ties to the explicit determinations by the Korean authorities, either
directly or indirectly through intermediate findings". 118 Korea specifically identified that (a) the
applicant's application contained a section titled "Evidentiary Materials " which included
exhibits KOR-8, KOR-17, KOR-18, KOR-52, and, KOR -64; (b) exhibits KOR-56 and KOR -68 were
obtained from the applications by the KIA during on-site verification; (c) exhibit KOR-62 is composed
of material contained in the KIA's case handler's file; (d) exhibit KOR-43 contains customs data from
the Korean Customs Service and that was referred to in the OTI 's final report; (e) exhibit KOR-41
was prepared in response to a request from the Panel and is based on data contained in the
OTI's final report; (f) exhibit KOR-37 is a compilation of import statistics contained in the OTI's final
report; ( g) exhibits KOR -13, KOR -14, KOR -21, KOR -22, KOR -24, KOR -51, and KOR -53 were
obtained by the KIA on its own initiative; and (h) exhibit KOR-58 is an HS code classification referred
to in the OTI 's final report.119 We consider that Korea's response leaves no reason to doubt that
these exhibits are genuine and contemporaneous. 120 Japan's argument thus fails , and we do not
exclude these materials from our evaluation of the matters at issue in this dispute.
7.5 Likelihood of recurrence of injury : Japan's claims under Articles 11.3 and 6.8 of the
Anti-Dumping Agreement
7.5.1 Introduction
7.50. Japan made several substantive claims in these proceedings concerning the KIA's finding that
lifting the anti-dumping duties would be "highly likely" 121 to lead to a recurrence of material injury
to the domestic industry. Japan structured these claims under Article 11.3 of the
Anti-Dumping Agreement as follows: (a) the KIA erred in cumulating Japanese imports with Indian
imports for the purposes of its likelihood-of-injury assessment; (b ) the KIA erred by disregarding
the Japanese exporters' data in making findings on the exporters' production capacity and capacity
utilization; (c) the KIA erred in its examination of the price and volume effects of the Japanese
imports; and (d) the KIA erred by failing to examine other potential injury factors. 122 According to
Japan, each of these alleged errors gives rise to a standalone violation of Article 11.3.123 Japan also
made a standalone claim under Article 6.8 that is similar in substance to the alleged error mentioned
in (b) concerning the exporters' production capacity and capacity utilization.
7.51. We begin in this section with Japan's claims under Article 11.3 concerning price and volume
effects, and other injury factors. We then examine Japan's claims under Articles 11.3 and 6.8 of the
Anti-Dumping Agreement concerning capacity utilization.
7.5.2 Legal standard under Article 11.3 of the Anti-Dumping Agreement
7.52. Article 11.3 of the Anti-Dumping Agreement provides:

116 Appellate Body Report, Russia – Commercial Vehicles, para. 5.134.
117 Korea's comments on Japan's response to Panel question No. 120, p. 70.
118 Korea's comments on Japan's response to Panel question No. 120, p. 70.
119 Korea's comments on Japan's response to Panel question No. 120, p. 70; response to
Japan's question after the second meeting of the Panel No. 1, paras. 3-40.
120 We note that Korea asserted that all evidence submitted in this dispute was properly on the record of
the underlying investigation, but did not provide any particular discussion of Japan's concerns regarding
exhibit KOR-57. Given the extensive response by Korea in relation to the other challenged items, we do not
consider there to be any reasons to doubt the genuineness of exhibit KOR-57.
121 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 23; OTI's final report,
(Exhibit KOR-5.c (BCI)) p. 67.
122 Japan's first written submission, paras. 5-8.
123 Japan's first written submission, para. 4.

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Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping duty
shall be terminated on a date not later than five years from its imposition (or from the
date of the most recent review under paragraph 2 if that review has covered both
dumping and injury, or under this paragraph), unless the authorities determine, in a
review initiated before that date on their own initiative or upon a duly substantiated
request made by or on behalf of the domestic industry within a reasonable period of
time prior to that date, that the expiry of the duty would be likely to lead to continuation
or recurrence of dumping and injury. The duty may remain in force pending the outcome
of such a review.124
7.53. Japan's claims before us relate to the KIA's determination that the expiry of the anti-dumping
duties would be likely lead to the recurrence of injury. 125 A determination that the expiry of the
anti-dumping duties would likely lead to the recurrence of injury requires, in effect, the
establishment of a link between the expiry of the anti-dumping duties and the likely recurrence of
injury to the relevant dom estic industry. 126 Although the parties used different terminology to
describe such a link, we understand this general proposition to be common ground amongst the
parties.127 Korea took issue with Japan's description of this link as a "causal nexus" or "causal link",
inferring that Japan was thereby contending for a "new causation analysis" in a sunset review. 128
Korea instead used the term "nexus".129 In our view, the text "unless" and "would be likely to lead
to" in Article 11.3 clearly presuppose a relations hip of cause and (likely ) effect between the expiry
of the duty and the continuation or recurrence of injury.130
7.54. As the text of Article 11.3 shows, there is no prescribed methodology that authorities are
required to follow in determining whether such a link exists.131 More specifically, we agree with Korea
that there is no legal requirement on authorities to follow the disciplines set out in Article 3 of the
Anti-Dumping Agreement that govern the establishment of the causal link between dumping and
injury in the original investigation. 132 This is because the injury assessment under Article 11.3 is
different to that under Article 3. The assessment under Article 11.3 is not about whether dumping
is causing injury133, but is instead about whether the expiry of anti-dumping duties would be likely
to lead to the continuation or recurrence of injury. 134 Thus, as both parties accept, the causal link
between dumping and injury need not be established afresh in a sunset review. 135 Of course, this
does not foreclose the ability for an interested party in a sunset review to seek to rebut the continued
existence of a causal link between dumping and injury, by e.g. substantiating that continued
dumping would not be likely to lead to a continuation or recurrence of injury if the anti-dumping
duty were lifted.

124 Fn omitted.
125 Japan's first written submission, para. 191.
126 Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods, para. 123.
127 Korea's first written submission, para. 52; Japan's first written submission, para. 2.
128 Korea's comments on Japan's response to Korea's question No. 3, pp. 9-10; first written submission,
paras. 134 and 140.
129 Korea's comments on Japan's response to Korea's question No. 3, pp. 9-10; first written submission,
paras. 52 and 286.
130 European Union's third-party submission, para. 9.
131 Panel Report, EU – Footwear (China), para. 7.157 (referring to Appellate Body Reports, US –
Corrosion-Resistant Steel Sunset Review, paras. 124 and 149; and US – Oil Country Tubular Goods Sunset
Reviews (Article 21.5 – Argentina), para. 105).
132 Korea's first written submission, paras. 46 and 52. See also Panel Report, EU – Footwear (China),
para. 7.157; and Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, paras. 274-280.
133 Indeed, for the purposes of a sunset review, this causal link is assumed to have already been
established in the original investigation. (Appellate Body Report, US – Anti-Dumping Measures on Oil Country
Tubular Goods, para. 121; see also Panel Report, EU – Footwear (China), para. 7.157; and Appellate Body
Report, US – Corrosion-Resistant Steel Sunset Review, paras. 106-107).
134 See, by analogy, Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review,
paras. 106-107. We recognize, as have past panels and the Appellate Body, that the disciplines and concepts in
Article 3 on how to establish whether dumping is causing injury could provide guidance on the kinds of factors
and evidence that authorities may seek to consider under Article 11.3 to produce a reasoned and adequate
determination on the link between the expiry of anti-dumping duties and the likelihood of injury. (Panel Report,
EU – Footwear (China), paras. 7.158 and 7.333; Appellate Body Report, US – Oil Country Tubular Goods
Sunset Reviews, para. 284). We note that both parties accept this point. (Korea's first written submission,
para. 50; Japan's first written submission, paras. 62-63).
135 Japan's response to Korea's question No. 3, para. 10; Japan's first written submission paras. 62-64;
and Korea's first written submission, para. 140.

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7.55. Despite the absence of a prescribed methodology in Article 11.3, authorities must conform to
certain basic standards in reaching a determination in a sunset review. In particular, both parties
agree that authorities are required to act with an " appropriate degree of diligence" in arriving at a
"reasoned and adequate explanation" for the likelihood-of-injury determination.136 The "appropriate
degree of diligence" involves making an objective evaluation of the arguments and evidence
submitted by interested parties to the review, conducting a "rigorous examination", and basing the
determination on a sufficient factual foundation. 137 These requirements flow from the text of
Article 11.3, which places the onus on the "authorities" to conduct a "review" and proactively reach
a "determin[ation]".138
7.56. The onus on the "authorities" to conduct a "review" and reach a "determin[ation]" on the
basis of information gathered in the process of examination under Article 11.3 implies an active role
on the part of the authorities. 139 This implication is strengthened by the reapplication, through
Article 11.4 of the Anti -Dumping Agreement, of the evidentiary and due process disciplines to the
authorities' conduct of the review that were applicable i n the original investigation. 140 This
implication is also strengthened by reviews being contemplated to run for up to 12 months. Thus,
authorities have a duty under Article 11.3 to conduct a sufficiently diligent investigation into, and
solicitation of, rel evant facts.141 Both parties accept that if an interested party submits a relevant
argument to the authorities and substantiates it with sufficient evidence, it is incumbent on the
authorities to take that argument into account, as appropriate, in arriving at their determination.142
Further, though an interested party must substantiate its case, its argumentation and evidence need
not be perfect in all respects in order to warrant consideration by the authorities. 143 Rather,
Article 11.3 assigns an "active rather than a pas sive decision-making role to the authorities", and
thus places upon authorities "a duty to seek out relevant information and to evaluate it in an
objective manner". 144 Consequently, if an authority identifies deficiencies in an interested
party's case, it w ould ordinarily be incumbent on the authority to actively seek out pertinent
information and clarify such shortcomings as appropriate to the investigation at hand. 145 We also
agree with the general sentiment expressed by Korea that "[a]n interested party cannot merely raise
a matter and expect the authorities to examine it without substantiating the argument with evidence,
especially not if the relevant information is in the hands of that exporter". 146 In our view, it would
be reasonable to expect only a limi ted or implicit analysis (including e.g. the authorities ' dismissal
of an argument) if the argument was raised without substantiating evidence.147

136 Korea's first written submission, para. 41 (quoting Appellate Body Reports, US – Corrosion-Resistant
Steel Sunset Review, para. 111; and US – Oil Country Tubular Goods Sunset Reviews, paras. 283-284);
Japan's second written submission, para. 73 (also quoting Appellate Body Report, US – Corrosion-Resistant
Steel Sunset Review, para. 111).
137 Panel Report, EU – Footwear (China), para. 7.158; Appellate Body Reports, US – Corrosion-Resistant
Steel Sunset Review, paras. 111-112; US – Oil Country Tubular Goods Sunset Reviews, para. 180. See also
Korea's first written submission, para. 47; Korea's opening statement at the first meeting of the Panel,
para. 10; Japan's first written submission, para. 2; and Japan's opening statement at the first meeting of the
Panel, para. 21.
138 Korea's first written submission, paras. 41, 43, and 47; Japan's second written submission, para. 73.
These basic standards also flow from the very nature of sunset reviews as an exception to what would
otherwise be the expiry of the anti-dumping duties.
139 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 111. See also
Korea's first written submission, para. 43.
140 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, paras. 112-113.
141 Appellate Body Report, US ‒ Corrosion-Resistant Steel Sunset Review, para. 199. See also
Appellate Body Report, US – Carbon Steel (India), para. 4.152 (quoting Appellate Body Report,
US – Anti-Dumping and Countervailing Duties (China), para. 602).
142 Korea's response to Panel question No. 3(a) (where the specific context and legal provision in
question makes such consideration appropriate); Japan's response to Panel question No. 3(a), para. 13.
143 See, by analogy, Appellate Body Reports, EC – Fasteners (China) (Article 21.5 – China), para. 5.163;
EC – Fasteners (China), paras. 488 and 519; and Panel Reports, Argentina – Poultry Anti-Dumping Duties,
144 Appellate Body Report, US ‒ Corrosion-Resistant Steel Sunset Review, paras. 111 and 199.
145 Appellate Body Report, US ‒ Corrosion-Resistant Steel Sunset Review, paras. 111 and 199. See also,
Appellate Body Reports, EU – PET (Pakistan), paras. 5.130 and 5.133; US – Washing Machines, para. 5.268;
US – Wheat Gluten, paras. 53 and 55; US – Anti-Dumping and Countervailing Duties (China), para. 344; and
Panel Report, China – Broiler Products, para. 7.261.
146 Korea's comments on Japan's response to Korea's question No. 10, p. 23.
147 See, e.g. Panel Report, EU – Fatty Alcohols (Indonesia), paras. 7.196 and 7.203-7.204.

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7.57. We recall that not every error made or questionable inference drawn by an investigating
authority in its treatment of a given matter or piece of evidence will necessarily rise to the level of
a violation of an obligation of the WTO Agreements.148 This is particularly relevant to Article 11.3,
which is a single holistic provision that does not prescribe a specific methodology nor particular steps
or analyses that must be undertaken by investigating authorities. Thus, even where there is a clear
factual or analytical error by an authority in respect of one facet of its likelihood -of-injury
determination, it is po ssible that the final conclusion could remain consistent with Article 11.3. A
panel's evaluation of whether an investigating authority 's determination is consistent with
Article 11.3 requires an assessment of the totality of the evidence, inferences, and i ntermediary
findings relied upon by the authority to arrive at its final conclusion.149
7.5.3 Japan's claim under Article 11.3 of the Anti -Dumping Agreement concerning price
and volume effects
7.58. Japan challenges the KIA 's conclusion that " it is highly likely that once the anti -dumping
measures are terminated, a drop in the price of the product under investigation and an increase in
imports will again cause material injury to the domestic industry". 150 Japan presents multiple
grounds on which this conclusion is inconsistent with Article 11.3 of the Anti-Dumping Agreement.151
We begin our analysis with Japan 's contention that this conclusion reflects a failure to properly
analyse the likely consequences of the drop in the price of Japanese imports of the dumped products
as a result of the removal of the anti-dumping duties (the "Japanese price drop").
7.59. Japan contends that the KIA's conclusion quoted above rests on a defective analysis of the
likely consequences of the Japanese price drop. Japan focuses on the KIA 's intermediate finding
that:
Where the anti-dumping measures are terminated, it is predicted that a steep fall in the
price of the dumped imports (Japanese △ [[***]]%) will lead to an increase in exports
to Korea and weaken the price competitiveness of Like Products.152
7.60. As we understand it, Japan presents three main arguments in contending that this
intermediate finding lacks reasoning and is unsupported by positive evidence 153, namely that the
KIA erred by:
a. considering that the Japanese price drop would weaken the price competitiveness of the
domestic like products154;
b. considering that the Japanese price drop would lead to an increase in the volume of
Japanese imports into Korea155; and

148 See para. 7.45 above.
149 By analogy, see Appellate Body Report, Japan – DRAMs (Korea), paras. 133-134. See also
Panel Report, EC – Fasteners (China), para. 7.359.
150 Japan's first written submission, para. 148 (referring to KTC's final resolution,
(Exhibit KOR-4.b (BCI)), p. 23; and OTI's final report, (Exhibit KOR-5.c (BCI)), p. 67). As we have explained,
we generally refer to the unredacted Korean versions of these exhibits, even where Japan cited the redacted
Japanese versions.
151 Japan's first written submission, paras. 7 and 151; second written submission, paras. 161-168.
152 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 22; OTI's final report,
(Exhibit KOR-5.c (BCI)), p. 67; and Japan's first written submission, paras. 151 and 158-159.
153 Japan's first written submission, para. 151.
154 Japan's first written submission, paras. 158, 164, and 166; second written submission,
paras. 387-388.
155 Japan's first written submission, paras. 151, 166, and 171-172; second written submission,
paras. 336 and 355-359.

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c. failing to account for differences in the levels of " general-purpose steel"156 and "special
steel"157 in the product mixes of the various countries at issue, given that these product
types would have differing effects on the prices of domestic like products.158
7.61. We address each of these arguments in turn. In evaluating these arguments, we are cognisant
of Korea's point that the KIA's likelihood-of-injury determination under Article 11.3 was based on
multiple intermediate findings and considerations arising from the interaction between various pieces
of evidence.159 We agree with Korea that it is important to avoid examining certain pieces of evidence
or intermediary findings in isolation from the overall body of reasoning that supports the KIA's final
conclusion.160 To the extent that Japan demonstrates that there are errors or flaws in the
KIA's assessment of the consequences of the Japanese price drop, we examine holistically whether
such errors rise to the level of a violation of Article 11.3 in section 7.5.3.4 in light of the totality of
evidence and other intermediary findings.
7.5.3.1 Whether the KIA erred by finding that the Japanese price drop would weaken the
price competitiveness of the domestic like products
7.62. Japan contends that Japanese prices would still be "substantially higher than other products
(and particularly, higher than the domestic like products)" upon the lifting of the anti -dumping
duties.161 According to Japan, therefore, "the fact that [Japanese] prices fall somewhat does not
sufficiently indicate that they have a negative impact on the price of the domestic like products".162
7.63. According to Korea, "[t]he removal of the duties would automatically mean that import prices
would decrease at least equal to the level of the duty", and the KIA "found that this would of course
put additional pressure on domestic prices as well".163 For Korea, this was the "logical conclusion" in
light of the KIA 's examination of prices 164, as well as the situation that had prevai led prior to the
imposition of anti-dumping duties165 and the totality of other intermediate findings by the KIA, which
together "supported the reasonable conclusion that removal of the duties would likely lead to a
continuation of dumping and a recurrence of injury".166
7.64. We examine the parties ' arguments and rebuttals in greater detail below. We begin with a
brief overview of the relevant background, record evidence, and findings by the KIA.
7.65. In their application for the third sunset review, the applicants stated that "the main deciding
factor for the purchase of Product Under Investigation is the price".167 They explained that "during
the term when anti-dumping measures have been implemented from 2004 up to the present, [they]
have proactively made e fforts to improve competitiveness at various levels … in order to deal
with … a large volume of low price imported products".168 They further explained that, during the

156 In this Report, our use of the term "general-purpose steel" relates to Japan's definition for this term.
(Japan's first written submission, para. 27 and fn 17). For the avoidance of doubt, our use of the term is for
convenience only, and does not imply that we have reached a view on the utility of this term. In particular, our
use of the term is without prejudice to any findings that we may reach on the existence, relevance, or scope of
a category of SSBs described as "general-purpose steel".
157 See ibid.
158 Japan's first written submission, paras. 164-167; second written submission, para. 350.
159 Korea's first written submission, para. 6; second written submission, paras. 29, 37, and 185; and
response to Panel question No. 2.
160 Korea's first written submission, para. 37; second written submission, paras. 37 and 106; responses
to Panel question Nos. 2, 6(b)(iv), 6(d)(iv), and No. 98, paras. 148-149; and common response to Panel
questions after the second meeting with the Panel, para. 2.
161 Japan's second written submission, para. 387.
162 Japan's second written submission, para. 387. See also first written submission, paras. 158, 160(c),
160(d), 164 (including the cross-reference to paras. 110(g) and 111), and 166; and responses to Panel
163 Korea's second written submission, paras. 185 and 227-229.
164 Korea's first written submission, paras. 247-248 and 263-265; second written submission,
paras. 185 and 227-229; and response to Panel question No. 64(a).
165 Korea's second written submission, para. 238.
166 Korea's second written submission, para. 29.
167 Application, (Exhibit JPN-4.b), p. 46. (emphasis added)
168 Application, (Exhibit JPN-4.b), pp. 2-3. (emphasis added)

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period of review (POR), there had been an " inevitable price reduction of domestic products due to
competition with products from India and other countries that are imported at a low price".169
7.66. According to the applicants' data, average Japanese prices in 2015 were [[***]] higher than
those of other imports and the domestic like products.170 However, the applicants believed that this
was because their data additionally encompassed "products excluded from the anti -dumping
measures and high-quality special-purpose steel".171 The applicants anticipated that the Japanese
prices would "change" 172 and become "significantly lower" 173 once the data were limited to the
products subject to anti-dumping duties.
7.67. The applicants also explained in their application that "stainless steel bar s, which is Product
Under Investigation have significantly different prices depending on the grades of steel".174 However,
with respect to prices within a given steel grade, the applicants stated a t the public hearing that
"there is virtually no price diffe rence when comparing 'Apples to Apples 304 ' steel grades", and
"there are no price differences between domestic products and products from Japan and India, when
selling the same steel grades of 304 and [316]". 175 A Korean consumer speaking in support of the
applicants during the public hearing also explained that:
Unlike IT-related electronic products whose price can be differentiated according to their
quality characteristics, because stainless steel bars can be used when manufactured
based on internationa lly agreed specification, products manufactured within such
specification whether produced in Japan or India, will have no significant difference in
quality, and thus price has an absolute effect in deciding whether to purchase the
product. In particular, steel grades of 304 and 316, which are general purpose steel
grades that account for most of the demand, are even more sensitive to price.176
7.68. According to this piece of record evidence, there is price-sensitivity for all SSBs, even if certain
grades like 304 and 316 are "even more sensitive". We are not aware of any record evidence in
which either the applicants or the KIA stated that price was limited to being the most important
factor in purchasing decisions for "basic grades" only.177
7.69. The Japanese exporters contended that they shipped "high-value products" at higher prices,
and could not compete with low-priced products from other countries in the Korean market.178 They
rejected the proposition that they would resume importing high volumes of low-priced products into
the Korean domestic market , particularly in view of the aggressive price competition from those
low-priced products.179
7.70. Turning to the KIA's findings in the third sunset review, the KIA found the "price competition"
in 2015 to be (KRW/tonne) [[***]] for dumped imports measured cumulatively, [[***]] for

169 Application, (Exhibit JPN-4.b), pp. 25-26. (emphasis added)
170 Excerpt of applicants' statement of opinion after the public hearing, (Exhibit KOR-40 (BCI)), p. 2;
Application, (Exhibit JPN-4.b), pp. 20 and 25.
171 Application, (Exhibit JPN-4.b), pp. 20 and 25. See also Excerpt of applicants' statement of opinion
after the public hearing, (Exhibit KOR-40 (BCI)), p. 2.
172 Application, (Exhibit JPN-4.b), p. 15.
173 Excerpt of applicants' statement of opinion after the public hearing, (Exhibit KOR-40 (BCI)), p. 2.
174 Application, (Exhibit JPN-4.b), p. 14.
175 Minutes of public hearing (24 November 2016), (Exhibit KOR-19.b (BCI)), p. 31 (representative of
applicants, Ki-Seok You, accountant). We have corrected the clerical error in the translated version, which
referred to grade "306" rather than grade "316" as per the original.
176 Minutes of public hearing (24 November 2016), (Exhibit KOR-19.b (BCI)), pp. 20-21.
(emphasis added)
177 See paras. 7.65 and 7.67 above, and para. 7.73 below.
178 Japanese exporters' opinion regarding injuries, (Exhibit JPN-10.b (BCI)), pp. 9-10; Japanese
exporters' post-hearing opinion, (Exhibit JPN-16.b (BCI)), p. 6; and Japanese exporters' opinion regarding
OTI's revised interim report, (Exhibit JPN-18.b), p. 2.
179 Japanese exporters' opinion regarding injuries, (Exhibit JPN-10.b (BCI)), pp. 16-17. See also Minutes
of public hearing (24 November 2016), (Exhibit KOR-19.b (BCI)), pp. 30-31 (Gwang-yeon Hwang, attorney
representing the exporters); and Japanese exporters' opinion regarding OTI's revised interim report,
(Exhibit JPN-18.b), p. 2.

BCI deleted, as indicated [[***]]

Japanese imports, [[***]] for Indian imports, [[***]] for imports from other countries, and [[***]]
for domestic like products.180 The KIA determined that:
• During the period of review in which anti -dumping duties were imposed, the
sales prices of the dumped imports were lower by KRW [[***]] – [[***]] per
ton than that of like products.
­ If no anti -dumping duties were levied, the sales price of the dumped
imports would have been lower by KRW [[***]] – [[***]] per ton than
that of like products.
• Once the anti-dumping measures are terminated, this would bring a drastic fall
in the price of the dumped imports from Japan (KRW [[***]] per ton in 2015),
which would also result in large recovery of price com petitiveness in the
domestic market.181
7.71. We understand that the figure of KRW/tonne [[***]] in the final bullet point in this extract
represents the amount of anti -dumping duty in the average Japanese resale price of KRW/tonne
[[***]] in 2015.182 Thus, the KIA's finding in the final bullet point pertains to an average Japanese
resale price of KRW/tonne [[***]].183 As mentioned earlier, the KIA proceeded to find ( inter
alia) that:
Once the anti-dumping measures are terminated, it is predicted that a deep fall i n the
price of the dumped imports (△ [[***]]% for Japanese products) … will lead to a growth
in exports to Korea and weaken the price competitiveness of the like products.184
7.72. We likewise understand that the reference to a [[***]] drop in the price of Japanese imports
represents the aforementioned figure of KRW/tonne [[***]], i.e. the amount by which the average
Japanese resale price would be lower in 2015 if the anti -dumping duties were removed.185 In
conjunction with other intermediary findings 186, the KIA proceeded to conclude that "[i] t is highly
likely that once the anti -dumping measures are terminated, a drop in the price of the dumped
imports and an increase in the volume of dumped imports will lead to recurrence of material injuries
to the domestic industry".187
7.73. Korea explains188 that the KIA's findings in the third sunset review rest on its conclusion in
earlier reviews and the original investigation that price is the most important factor in purchasing

180 OTI's final report, (Exhibit KOR-5.c (BCI)), p. 34.
181 OTI's final report, (Exhibit KOR-5.c (BCI)), p. 63.
182 Korea's response to Panel question Nos. 64(a) and 64(b); second written submission, fn 130. See
also OTI's final report, (Exhibit KOR-5.c (BCI)), p. 63, table 42.
183 Korea's response to Panel question No. 64(b); second written submission, fn 130.
184 OTI's final report, (Exhibit KOR-5.c (BCI)), p. 67.
185 Korea's second written submission, paras. 124-125 and fn 130; response to Panel question No. 69.
We understand that, since the intermediate finding pertained to the 2015 average Japanese resale price in
particular (OTI's final report, (Exhibit KOR-5.c (BCI)), p. 63), the subsequent correlative finding in the
"Overall Evaluation" section was likewise based on this 2015-specific finding. (Korea's second written
submission, para. 160; response to Panel question No. 6(c)). We note that the KIA referenced only the
2015 price levels in the "price competition" column of the table 12 in the OTI's final report (OTI's final report,
(Exhibit KOR-5.c (BCI)), p. 34; see also Korea's response to Panel question No. 40; and second
written submission, para. 229). Korea also stated that "the most relevant trend should be the trend that is the
most recent in time" when explaining why the KIA focused on the slight [[***]] in the volume of dumped
imports from 2014-2015 than the larger overall [[***]] in volume over the POR 2012-2015. (Korea's response
to Panel question No. 66).
186 We discuss the significance of these below in section 7.5.3.4.
187 OTI's final report, (Exhibit KOR-5.c (BCI)), p. 67.
188 Our depiction of Korea's description of the KIA's findings in this Report is for convenience only and is
without prejudice to any objections by Japan that this depiction encompasses impermissible ex post reasoning.
(See, e.g. Japan's second written submission, para. 21). For the reasons set out in section 7.3.3, we proceed
on the basis of Korea's description in this regard and limit our assessment of Japan's objections in this dispute
concerning ex post rationalizations to those aspects in which it is specifically necessary to resolve the dispute.

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decisions.189 According to Korea, t he importance of price in purchasing decisions arises from the
interchangeability of certified products within a given grade.190 In particular, Korea explains that the
KIA found that competition in the SSB market hinged on obtaining certification that a given product
type satisfied the criteria for a certain grade, and once such certification was obtained, competition
generally occurred amongst SSBs within a given grade, i.e. on a grade-by-grade basis.191 According
to Korea, the KIA " repeatedly confirmed that SSB products with the same grade are being used
interchangeably in the market irrespective of their origin".192 Once certification for a given grade is
obtained, "there is no substantial difference to the quality of products that are produced within such
standards, be it Japanese or Indian" 193, with " transactions … made based on
internationally-recognized standard [s]".194 Thus, Korea explains that "[t] he Korean authorities
obviously considered that [the] termination of the anti-dumping duties would lead to improved price
competitiveness of the dumped imports on [a] grade-by-grade basis".195
7.74. However, Korea also explains that perceptions of quality, credibility, and technical superiority
were found by the KIA to lead to price differences. 196 Specifically, the KIA found that "[s] tainless
steel bars have different uses depending on the steel grade, and within the same steel grade, Korean
and Japanese products have high credibility in quality and Indian and Chinese products have high
price competitiveness".197
7.75. We turn now to the parties' arguments and rebuttals, and to our evaluation. Japan contends
that the KIA erred by considering that the removal of the anti-dumping duties from Japanese prices
would weaken the price competitiveness of domestic like products. 198 For Japan, t his is because,
even without the anti -dumping duties, Japanese prices would remain significantly higher than the
prices of the domestic like product. 199 Given the price sensitivity of the SSB market, Japan argues
that the KIA's determination failed to articulate h ow prices at a significantly higher level than the
prices of domestic like products could weaken the price competitiveness of domestic like products.200

189 For a detailed discussion on this point, see Annex A-3 (Interim Review), paras. 2.9-2.30. In its first
written submission Korea "recount[ed] … relevant facts and findings reached by the Korean authorities in the
original investigation and the previous reviews" (Korea's first written submission, para. 60), which included the
finding in the second sunset review that "price was the most important factor for the consumers in making a
decision to purchase". (Ibid. paras. 84-85 (quoting OTI's final report (second sunset review),
(Exhibit KOR-11.b (BCI)), p. 9)). Korea again quoted this passage when providing pinpoint references about
the "repeated confirmations" made by the KIA with respect to the conditions of competition for SSBs in the
Korean market. (Korea's response to Panel question No. 6(a)). We note that Korea sought to contextualize this
finding by explaining (inter alia) that "[t]he statement that price was the most important factor does not mean
that it is the only factor or that the lowest price always prevails". (Korea's response to Panel question
No. 20(e)(v)). We address the relevance of that matter at paras. 7.74, 7.78, and 7.80 below.
190 Korea's responses to Panel question Nos. 20(b) and 64(c)(ii). As mentioned in para. 7.74, Korea also
stated that the KIA found that there could be price differences based on factors such as quality and reputation.
191 Korea's first written submission, paras. 56-59; second written submission, paras. 21 and 170;
response to Japan's question after the second meeting with the Panel No. 1, para. 15. We note that Korea also
contended that, for some grades, there can be inter-grade competition. (Korea's second written submission,
paras. 21 and 98). For a detailed discussion on this point, see Annex A-3 (Interim Review), paras. 2.31-2.41.
Our findings in this section are without prejudice to that contention.
192 Korea's responses to Panel question Nos. 6(b) and 20(f).
193 Korea's response to Panel question No. 37 (quoting Consumer's summary of the statement at
public hearing, (Exhibit JPN-12.b), and referring to Minutes of public hearing (24 November 2016),
(Exhibit KOR-19.b (BCI)), pp. 20-21).
194 Korea's response to Panel question No. 20(f).
195 Korea's response to Panel question No. 64(c).
196 Korea's responses to Panel question Nos. 6(d), 20(b), and 20(e).
197 OTI's final report, (Exhibit KOR-5.c (BCI)), p. 55.
198 Japan's first written submission, para. 151: "Japan considers that there is a lack of reasoning and
positive evidence in particular with regard to … (ii) the finding that the termination of anti-dumping duties
would lead to a deep fall in the price of the product under investigation and then weaken the price
competitiveness of the domestic like products."
199 Japan's second written submission, paras. 387-388. See also first written submission,
paras. 160(c) and (d), and 164 (including the cross-reference to paras. 110(g) and 111).
200 Japan's second written submission, paras. 194-196 and 387-388. See also Japan's responses to
para. 193. We recognize that some of Japan's arguments to which we refer in this section pertain to the
dynamics of price competitiveness during the POR, as opposed to the dynamics upon the removal of the
anti-dumping duty. We take such arguments into account only to the extent that they shed light conceptually
on the role of price competition in the Korean SSB market. We agree with Korea that comparative price-related

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For Japan, the presence of a large volume of imports from other countries at significantly lower
prices would be a more likely source of price pressure and would effectively nullify any adverse
effects that significantly higher Japanese prices could have on domestic like products.201
7.76. We agree with Japan that it is not obvious how prices at a significantly higher level than the
prices of domestic like products would weaken the price competitiveness of domestic like products
in the context of a price-sensitive market. This is particularly so given that, according to Korea, the
KIA's determination on the competitive relationship amongst SSB products encompassed its finding
from the original investigation that "consumers prefer low-priced products".202
7.77. Thus, we disagree with Korea that the "automatic" price drop as a result of the removal of
the anti -dumping duties would "of course" 203, "necessarily"204, or "undoubtedly" 205 lead to price
pressure on domestic like products, thereby weakening their price competitiveness. Rather, the price
drop would leave average Japanese resale prices in 2015206 at a level almost [[***]]207 higher than
domestic like products and other countries ' imports in a price -sensitive market. On its face, the
KIA's finding that Japanese prices would weaken the price competitiveness of domestic like products
after the price drop is inconsistent with the uncontested facts that the SSB market is price-sensitive
and the average Japanese resale price in 2015 would remain almost [[***]] higher after the price
drop.208 For the KIA to engage in an "unbiased and objective" evaluation of the facts in the sense of
Article 17.6(i) of the Anti-Dumping Agreement, we would expect the KIA to address and reconcile
the apparent contradiction between its finding on this point and these uncontested record facts.209
7.78. Korea makes the point that price overselling does not imply a lack of competition, and higher
on-average import prices can exert detrimental price pressure on lower on -average domestic
prices.210 We do not exclude this possibility . However, we agree with Japan that the KIA never
explained how price overselling could weaken the price competitiveness of domestic like products in
the present sunset review. 211 Indeed, Korea appears to accept that the KIA never undertook such

assessments during the POR may be of limited value where they encompass prices that include the
anti-dumping duty as a pricing component. (Korea's response to Panel question No. 19(a)(i)).
201 Japan's first written submission, paras. 158, 160, and 162; second written submission,
paras. 304-305 and 395; and response to Panel question No. 18(b), para. 100.
202 For a detailed discussion on this point, see Annex A-3 (Interim Review), paras. 2.46-2.54. At
para. 121 of its first written submission, Korea states in respect of the original "likeness" finding that "[t]his
original finding was repeatedly and consistently confirmed in the first, second, and third sunset reviews", and
that this original finding incorporated the consideration that "consumers prefer low-priced products".
(OTI's final report (original investigation), (Exhibit KOR-9.b (BCI)), p. 48). See also Korea's response to Panel
question No. 6(a) (quoting OTI's final report (second sunset review), (Exhibit KOR-11 (BCI)), p. 9; and
OTI's final report, (Exhibit KOR-5.c (BCI)), p. 9 and fn 17 (relying on the "like products" finding in the original
investigation)). See further Korea's response to Panel question No. 5: "[i]n the third sunset review, therefore,
the KTC confirmed based on the record evidence pertaining to the third POR that the relevant situations have
not substantially changed from the PORs of the previous proceedings."
203 Korea's second written submission, para. 229.
204 Korea's second written submission, para. 29.
205 Korea's opening statement at the first meeting of the Panel, para. 24.
206 We focus on the 2015 prices because these were the prices explicitly referred to by the KIA when
evaluating the consequences of the price drop arising from the lifting of the anti-dumping duty. (OTI's final
report, (Exhibit KOR-5.c (BCI)), p. 63).
207 The 2015 average Japanese resale price (KRW/tonne [[***]]), minus an amount representing the
anti-dumping duty (KRW [[***]]), results in KRW/tonne [[***]] (that we refer to as the "Japanese price
without the duty"). The Japanese price without the duty is almost [[***]] higher than the 2015 average
Korean resale price of KRW/tonne [[***]]. Viewed from the inverse perspective, the Korean resale price is
around [[***]] lower than the Japanese price without the duty. (Korea's response to Panel question No. 64(b);
Japan's response to Panel question No. 64(b), para. 328). Given the KIA's premise that price was the most
important factor in purchasing decisions, and that consumers prefer low price, we generally reference the
Japanese price without the duty as being almost [[***]] higher in 2015 than both the equivalent Korean resale
price and the equivalent third-country import resale price in 2015. We recognize the inverse perspective that
average Korean and third-country import resale prices were around [[***]] lower than the Japanese price
without the duty, and we treat these as effectively the same, namely a reflection of difference in price of KRW
[[***]] vis-à-vis the Korean resale price and KRW [[***]] vis-à-vis the third-country import resale price. The
choice of reference point, and the resulting representation of percentage difference, does not affect the
outcome of our findings.
208 Japan's second written submission, para. 387.
209 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), paras. 93 and 97.
210 Korea's response to Panel question No. 64(b); second written submission paras. 179-181.
211 Japan's second written submission, para. 198.

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an analysis.212 For the avoidance of doubt, we do not consider that a price depression/suppression
analysis is legally required under Article 11.3 of the Anti-Dumping Agreement.213 Rather, in our view,
it is the particular circumstances of this case that would warrant addressing the fact that Japanese
prices would remain almost [[***]] higher after lifting the anti-dumping duties. To reiterate, these
circumstances are as follows. First, under the approach adopted by the KIA to determine the
likelihood-of-injury, significance was placed on what the average Japanese resale price in 2015 would
be upon lifting the anti -dumping duties, and whether that price would adversely affect domestic
price competitiveness.214 Second, the KIA's findings rested on the premise that price was the most
important factor in purchasing decisions and that consumers tended to prefer low prices. 215 Third,
the record shows that the applicants themselves described low prices as the source of price pressure
arising from imports .216 In view of these circumstances, as part of an "unbiased and objective"
evaluation of the facts, we would expect the KIA to address how domestic price competitiveness
would be weakened by Japanese prices that would remain almost [[***]] higher even if the
anti-dumping duties were lifted.
7.79. Korea suggests a number of ways in which the KIA did indeed address this apparent
contradiction. These are as follows. First, Korea explains that the KIA found that ave rage Japanese
prices could be higher due to the perception that Japanese products were better in terms of quality
and credibility.217 Second, Korea explains that the "slight difference" in the proportions of product
grades in the respective product mixes of Korea and Japan could explain differences in average
prices218, and that the KIA reached its findings on price competitiveness on a grade -by-grade
basis.219 Third, Korea explains that the "price gap" between higher-priced Japanese imports and
lower-priced domestic like products is not indicative of a lack of competitive ove rlap between the
two due to the fact that all relevant producers could and did produce the same range of products.220
Fourth, Korea explains that the Japanese prices would be "relatively close" to the price of domestic
like products upon the lifting of the anti-dumping duty, and that "the complex law of the market"
would result in even lower prices through "market interplay" , in tandem with the additional
downward price pressure from Indian imports.221 We assess each of these in turn.
7.80. We accept Korea's contention that the KIA did not find price to be the only factor affecting
purchasing decisions. 222 Rather, the KIA found that " within the same steel grade, Korean and

212 Korea's response to Panel question No. 19(c)(ii). In response to the Panel's question "[i]s there any
analysis of price suppression or price depression in the Korean authorities determination?", Korea responded
"no specific price undercutting, suppression and/or depression analyses and findings were made, as they were
never needed". Korea proceeded to list certain "price-based findings" made by the KIA, but none of these
address how domestic price competitiveness would be weakened by Japanese prices that remained almost
[[***]] higher even after the duties were lifted. (See also Korea's second written submission, para. 92).
213 In this regard, we agree with Korea that Article 11.3 of the Anti-Dumping Agreement does not
prescribe this kind of price effects analysis as a matter of law. (Korea's second written submission, para. 92).
We also agree that, when an authority engages in a price-related inquiry under Article 11.3, it stands to reason
that such an inquiry would be directed at the effect of (lifting) the anti-dumping duty on domestic prices as
part of the overall forward-looking analysis of what would likely happen if the duty were to be terminated.
(Korea's second written submission, paras. 103, 106, and 122).
214 For a detailed discussion on this point, see Annex A-3 (Interim Review), paras. 2.55-2.68. This is
apparent from the plain text of pp. 63-67 and table 42 of the OTI's final report, (Exhibit KOR-5.c (BCI)), in
which the KIA examined the future impact of Japanese imports on domestic price competitiveness by deducting
the amount of the anti-dumping duty from the contemporaneous average Japanese resale price. Our
understanding also accords with Korea's description of the KIA's approach in this regard. (Korea's second
written submission, paras. 124, 185, and 240; first written submission, paras. 102 and 239-240; and response
to Panel question No. 69).
215 See paras. 7.73 and 7.76 above.
216 See paras. 7.65-7.67 above. It is noteworthy that the applicants excluded Japanese exporters from
their description of contemporaneous competitors in their application to initiate the third sunset
review. (Application, (Exhibit JPN-4.b), pp. 14-15 and 25-26).
217 Korea's response to Panel question No. 19(c)(iii). See also second written submission, paras. 81
and 178-181; and responses to Panel question Nos. 6(d), 19(b), 20(f), and 64(c) (cross-referencing the
responses to Panel question Nos. 19 and 20).
218 Korea's responses to Panel question Nos. 20(e) and 20(f).
219 Korea's response to Panel question No. 64(c) (cross-referencing the response to Panel question
No. 20).
220 Korea's second written submission, paras. 233-234 and 242 (referring to Japan's response to Panel
question No. 64(c), para. 329).
221 Korea's response to Panel question Nos. 19(a) and 64(d); second written submission, para. 125.
222 Korea's response to Panel question Nos. 19(c)(iii) and 20(e)(v); second written submission,
para. 178.

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Japanese products have high credibility in quality and Indian and Chinese products have h igh price
competitiveness".223 Thus, we accept Korea 's point that "that cheaper priced products will [not]
always win the buyer ".224 However, to the extent that Korea relies on this finding by the KIA to
justify how higher Japanese prices could weaken the price competitiveness of lower-priced domestic
like products225, we do not consider that it supports Korea 's argument. The KIA's finding indicates
that both Japanese and Korean products command a price premium within a given grade. It does
not suggest that Japanese products command a price premium over Korean products within a given
grade due to perceived differences in quality or other features.226 The KIA's findings concerning price
premiums and price discounts for products of different origin do not shed light on how Japanese
prices might affect Korean prices, since they were both found by the KIA to command a premium.
Accordingly, the fact that Japanese products might command a price premium does not explain how
the price competitiveness of Korean producers would be weakened by Japanese prices that remain
significantly higher. We agree with Japan that Korea 's argument in this regard goes beyond the
analysis undertaken by the KIA in the review and reflects ex post reasoning.227 To rely on such
reasoning to uphold the KIA's determination would effectively lead the Panel to engage in a de novo
review.
7.81. We accept Korea's contention that the difference in average prices could be explained by a
difference in the proportions of product grades in the countries' respective product mixes.228 We also
accept that, if a weakening in price competitiveness were to be demonstrated on a grade-by-grade
basis, the difference in each country's average prices in the Korean market may become irrelevant.
This is because an assessment of price competitiveness on a grade-by-grade basis could remove the
distortion that might arise if one country's product mix is comprised of a higher proportion of grades
or product types that occupy a higher price bracket.229 However, we do not understand that the KIA
did, in fact , undertake such an assessment. On one hand, Korea tells us that "[t]he Korean
authorities obviously considered that termination of the anti-dumping duties would lead to improved
price competitiveness of the dumped imports on [a] grade-by-grade basis".230 On the other hand,
Korea tells us that the KIA did not make any adjustments in its price-related analyses to account for
differences in product mixes, grades, or product types .231 From our reading of the determination ,

223 OTI's final report, (Exhibit KOR-5.c (BCI)), p. 55.
224 Korea's response to Panel question No. 19(c).
225 Korea's responses to Panel question No. 19(b)(iii), fn 87, No. 19(c)(iii), fn 92, No. 20(f)(vii), fn 102,
and No. 31(iii), fn 125; second written submission, para. 80 and fn 79. More generally, see Korea's responses
to Panel question Nos. 20(e)(v), 20(f)(v)-(vi), and 64(b); and second written submission, paras. 81 and
178-181.
226 We note that some of Korea's submissions in the present proceedings appear to accord with our
understanding in this regard. For instance, Korea submitted (as relevant findings from the second sunset
review) that "in terms of quality, Japan and Korea have received outstanding reviews" and that "[t]he OTI
noted that the Japanese and Korean SSBs possess relatively higher quality, but confirmed that there was 'no
difference in function and component' between the dumped imports and the like domestic products, and that
'they are interchangeably used'" and "[i]n fact, it was confirmed that price was the most important factor for
purchasers' buying decisions". (Korea's first written submission, para. 85). Along similar lines, Korea stated
that "[b]ecause competition takes place always between SSB products with corresponding grade certification,
there can be no difference between the Japanese and Korean SSB products on steel quality, product type,
grade, or product mixes". (Korea's response to Panel question No. 19(a) (italics original; underlining added)).
227 Japan's second written submission, paras. 195-197.
228 Korea's responses to Panel question Nos. 20(e) and 20(f).
229 For the avoidance of doubt, we do not make any findings concerning the link or correlation between
price and grade through this observation. Our observation simply follows from Korea's assertion that "the slight
difference in the proportions of product grades when looking at averages" may "explain some of the price
range differences", and that "these are averages and that such averages may reflect a slight difference in the
proportion of products in the basket". (Korea's responses to Panel question Nos. 20(e) and 20(f)). We also do
not consider that a grade-by-grade or model-by-model assessment would be legally required under Article 11.3
of the Anti-Dumping Agreement. We simply recognize that such an assessment could be useful if a comparison
of price averages is affected by differences in product mixes.
230 Korea's response to Panel question No. 64(c)(iv). (emphasis added)
231 Korea's response to Panel question No. 19(a)(i)-(ii). According to Korea, this was because price
comparability is "naturally ensured for SSB products" since all relevant producers could and did produce the
same range of products due to the high adaptability of SSB production facilities. (Korea's second written
submission, para. 99; responses to Panel question Nos. 18(a) and 29(ii)). Moreover, the KIA found that the
basket of goods sold in Korea by the various exporters and producers "largely overlapped". (Korea's response
to Panel question No. 8). See also Korea's responses to Panel question Nos. 6(d) ("same range of models in
not too dissimilar proportions"), and No. 7; and comments on Japan's response to Korea's question No. 2,
p. 8 ("as found by the Korean authorities during the review … [the] facts on the record … revealed a relatively
constant and broad overlap in all types of SSB models during the POR").

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the KIA examined the impact of removing the anti-dumping duties on domestic price competitiveness
by reference to the average Japanese resale price across all covered SSBs and not based on the
price within a given grade.232 Japan shares this understanding.233 Against that background, we are
unwilling to speculate as to whether or how a difference in respective product mixes might explain
the apparent contradiction in finding that domestic price competitiveness would weaken as a result
of lifting the anti-dumping duties despite the average Japanese resale price remaining significantly
higher in a price-sensitive market. To engage in such speculation to uphold the KIA's determination
would effectively lead the Panel to engage in a de novo review.
7.82. Korea seems to argue that the "price gap " between higher -priced Japanese imports ( even
upon lifting the anti-dumping duties) and lower-priced domestic like products is irrelevant because
there continued to be a "competitive overlap" between the two.234 According to Korea, this is because
all relevant producers could, and did, produce the same range of product types and models, and
therefore they all competed over the same demand and were in competition with one another. We
accept that such a "price gap" may be come irrelevant when the focus is on what producers could
produce, particularly if production can shift in response to demand for different product types and
between product types that command different prices. We also accept that what producers could
produce in the future may be a useful con sideration as part of the forward -looking analysis under
Article 11.3 of the Anti -Dumping Agreement. However, this was not the basis on which the KIA
reached its finding that domestic price competitiveness would be weakened if the anti -dumping
duties on Ja panese imports were terminated. This finding was instead reached by deducting an
amount representing the anti-dumping duty from the average Japanese resale price in 2015 and by
examining whether the resulting figure would cause domestic price competitivene ss to weaken.235
This finding was not based on the prices of what the Japanese exporters could produce, but on the
average resale price of what they did produce and ship to Korea, minus an amount representing the
anti-dumping duty. To that extent, we would agree with Japan that an explanation of weakened
domestic price competitiveness on the basis of what Japanese exporters could produce in the future
is not present in the KIA's determination and would therefore reflect ex post reasoning.236 Moreover,
we are unwilling to accept that this might have been an "implicit" consideration of the KIA without
any evidence demonstrating this. Rather, we agree with Japan that it is not obvious how the mere
ability to produce a product in and of itself de monstrates that this product would be competitive in
the market, and hence how such an ability would necessarily weaken domestic price
competitiveness.237
7.83. Korea also appear s to contend that removing the anti -dumping duties could lead to a
reduction in Japanese prices that is ultimately larger than the simple quantum of the duties, and this
would also weaken domestic price competitiveness .238 Korea's contention is based on a confluence
of variables that may produce a larger reduction in Japanese prices and result in additional price
pressure through "market interplay" 239 and the "complex law of the market". 240 The KIA's finding
that links the removal of the anti-dumping duties to the weakening of domestic price competitiveness
is based on the deduction of an amount representing the anti -dumping duty from the average

232 OTI's final report, (Exhibit KOR-5.c (BCI)) pp. 63 and 67. The examination focused (at ibid. p. 63) on
the deduction of KRW [[***]], which was the amount of anti-dumping duty in the 2015 average Japanese
resale price of KRW [[***]]. (Korea's response to Panel question No. 69; see also second written submission,
para. 122).
233 Japan's second written submission, para. 350.
234 Korea's second written submission, paras. 233-234 and 242 (referring to Japan's response to Panel
question No. 64(c), para. 329). See also responses to Panel question Nos. 19(a)(ii)-(iii) and 64(c)(i)-(ii).
235 See paras. 7.71-7.72 above. As Korea explains it, the KIA made the Japan-specific finding that
"[t]here would be a drastic fall in the prices of dumped imports from Japan if duties were removed (i.e. at least
by 15%), which would cause them to be increasingly price competitive in the market". (Korea's second written
submission, para. 240 (quoting OTI's final report, (Exhibit KOR-5.c (BCI)), pp. 57-59 and 63 (emphasis
added))). Korea also explained that the figure of KRW/tonne [[***]] in the KIA's analysis "stands for the
difference between KRW [[***]] and KRW [[***]]", with KRW [[***]] representing the average resale price of
the Japanese dumped imports in 2015. (Korea's response to Panel question No. 69).
236 Japan's second written submission, para. 280.
237 Japan's second written submission, para. 283. Our remarks in this regard pertain only to an alleged
link between weakened domestic price competitiveness and the ability to produce, and compete effectively, in
all applicable product lines, and do not imply a broader finding on the conditions of competition generally.
238 Korea's responses to Panel question Nos. 19(a)(i) and 64(d); second written submission,
paras. 124-125.
239 Korea's response to Panel question No. 64(d).
240 Korea's response to Panel question No. 19(a)(i).

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Japanese resale price. 241 The KIA's finding does not encompass an explanation of other variables
that interact in a particular way and thereby cause a further reduction in Japanese prices that would,
in turn, exert additional price pressure on domestic like products . While we do not discount the
possibility that an authority could reach such a finding , we are unwilling to read into the
KIA's determination an "implicit" finding or inference 242 that res ts on the proposition that a
complicated confluence of variables ("the complex law of the market") causes a particular outcome.
There is no evidence that the KIA made that implicit finding or inference243, and therefore to rely on
such reasoning to uphold the KIA's determination would effectively lead the Panel to engage in a de
novo review.
7.84. For the foregoing reasons, we reject the potential ways advanced by Korea in which the KIA
addressed the apparent contradiction in its finding that, in the context of a price-sensitive market,
domestic price competitiveness would be weakened by Japanese prices that remain almost [[***]]
higher upon the lifting of the anti-dumping duties. As a factual matter, we are not convinced that
the KIA sought to address this apparent contradiction as part of arriving at its determination. While
we do not exclude the possibility that Korea 's arguments before us could reconcile this apparent
contradiction, we agree with Japan that these "go well beyond" the analysis undertaken by the KIA
in its determination and that they represent ex post reasoning.244 As we have stated, to rely on such
reasoning to uphold the KIA's determination would effectively lead the Panel to engage in a de novo
review.
7.85. Given that the KIA did not seek to address this apparent contradiction, we consider that the
KIA failed to engage in an "unbiased and objective" evaluation of the facts when concluding that
domestic price competitiveness would be weakened by the Japanese pricing level resulting from the
removal of the anti-dumping duty from the average Japanese resale price . We address in
section 7.5.3.4 below whether this failure rises to the level of a violation of Article 11.3 of the
Anti-Dumping Agreement.
7.86. Japan additionally contends that the KIA should have sought to address this apparent
contradiction due to the large presence of low -priced imports from other countries in the
Korean market.245 For Japan, a weakening in domestic price competitiveness would be unli kely to
arise from higher-priced Japanese imports and would be more likely to arise from these lower-priced
third-country imports. 246 We have already found that the KIA 's conclusion on the relationship
between the drop in Japanese prices upon the termination of the duties and a weakening of domestic
price competitiveness did not reflect an "unbiased and objective" evaluation of the facts. Therefore,
we do not consider it necessary for the effective and prompt resolution of the dispute to address this
additional contention of Japan, nor Korea 's rebuttals on this point . We do, however, address
substantially the same question in the next section (section 7.5.3.2) concerning whether the KIA
erred by considering that the removal of the anti -dumping duties would lead to an increase in
Japanese imports into the Korean market.

241 See paras. 7.71-7.72 and fns 232 and 235 above.
242 As stated earlier, we accept Korea's point that a panel can take account of implicit inferences or
findings, but the burden falls on the party relying on that implicit matter to prove that it exists (see para. 7.41
above). Moreover, we agree with the Appellate Body that "[i]n assessing the WTO-consistency of a decision by
an investigating authority, it is not for a panel to develop an explanation of the basis for the investigating
authority's conclusions, nor to 'infer' the existence of such a basis as China seems to suggest from some
general economic logic". (Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU),
243 To the extent that Korea's contention rests on an increase in volume from Japan upon the lifting of
the anti-dumping duties in light of the situation that prevailed prior to the imposition of the anti-dumping
duties (Korea's second written submission, para. 238), we address it at paras. 7.91-7.93 below.
244 See, e.g. Japan's second written submission, paras. 195-197.
245 Japan's first written submission, paras. 158 and 161.
246 Japan's first written submission, paras. 161-162 and 172; second written submission,
paras. 303-304 and 390.

BCI deleted, as indicated [[***]]

7.5.3.2 Whether the KIA erred by finding that the Japanese price drop would lead to an
increase in Japanese imports
7.87. The KIA found that an increase in the volume of Japanese imports would be a likely
consequence of the drop in the price of those imports upon the expiry of the anti-dumping duties.
Japan contends that the KIA erred in reaching this finding.247
7.88. As a brief overview, we recall that the KIA found specifically that:
Where the anti-dumping measures are terminated, it is predicted that a steep fall in the
price of the dumped imports (Japanese △ [[***]]%) will lead to an increase in exports
to Korea and weaken the price competitiveness of Like Products.248
7.89. During the sunset review, the Japanese exporters had argued that they could not compete
with low-priced imports from third countries in the Korean market and therefore had no incentive to
increase imports into Korea even if the anti-dumping duties were lifted.249 The applicants contended
that the fact that volumes of dumped imports had increased despite the application of anti-dumping
duties showed that their volumes would increase further if the duties were lifted 250, and this was
made possible by the Japanese exporters' low capacity utilization rate.251
7.90. Japan's main argument before us is that the Japanese exporters focused on a different market
segment at higher prices and had no incentive to compete with the large volume of lower -priced
third-country imports , even if the anti -dumping duties were lifted. 252 Japan cites the fact that
Japanese prices would remain substantially higher than third -country imports and domestic like
products253, as well as the fact that the low-priced third-country imports already commanded a much
larger market share than Japanese imports. 254 For Japan, the KIA failed to adequately examine
whether the presence of this large volume of low-priced third-country imports in the Korean market
would disincentivize an increase in the Japanese volume, particularly since Japanese imports would
remain higher-priced regardless of whether the anti-dumping duties were lifted.255
7.91. According to Korea, it was reasonable to assume that the volume of Japanese imports would
increase upon lifting the anti-dumping duties.256 This was because, when compared with the situation
that prevailed prior to the imp osition of the duties, the volume of Japanese imports had been
suppressed and their price had been inflated as a result of the application of the duties.257 Thus, the

247 Japan's first written submission, paras. 151, 166, and 171-172; second written submission,
paras. 336 and 355-359.
248 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 22 (emphasis added). See also OTI's final report,
(Exhibit KOR-5.c (BCI)), p. 67.
249 Japanese exporters' opinion regarding injuries, (Exhibit JPN-10.b (BCI)), pp. 16-17 and 24-25;
Japanese exporters' opinion regarding applicants' rebuttal, (Exhibit JPN-13.b (BCI)), pp. 7-8; and Japanese
exporters' post-hearing opinion, (Exhibit JPN-16.b (BCI)), pp. 4-6. We note that the Japanese exporters
referred mostly to low-priced general-purpose steel in this regard. We understand this to have been in
response to the applicants' contention that "from Japan, there has only been importation of special-purpose
steel and other products excluded from anti-dumping. Accordingly, with the termination of the anti-dumping
measures, the importation of steel grade 304 and other general-purpose type stainless steel bars is anticipated
to increase". (Application, (Exhibit JPN-4.b), p. 11 (emphasis added)).
250 Application, (Exhibit JPN-4.b), pp. 21, 41, and 48; Rebuttal opinion of the applicants,
(Exhibit JPN-11.b), pp. 4-5; and Applicants' statement of opinion after the public hearing, (Exhibit JPN 15-b),
p. 1.
251 Application, (Exhibit JPN-4.b), p. 15; Rebuttal opinion of the applicants, (Exhibit JPN-11.b), p. 3; and
Applicants' statement of opinion after the public hearing, (Exhibit JPN 15-b), pp. 13-14.
252 Japan's second written submission, paras. 336 and 359; first written submission, para. 171.
253 Japan's second written submission, para. 358 (cross-referencing section III.C.1, particularly
paras. 190-197); first written submission, para. 172 (cross-referencing para. 160). See also response to Panel
question No. 15, para. 85.
254 Japan's second written submission, paras. 303-304, 355, and 358; first written submission,
paras. 161 and 172 (cross-referencing paras. 160(a)-(b)). See also response to Panel question No. 6(d),
para. 41.
255 Japan's second written submission, paras. 336 and 355; first written submission, paras. 161-162
and 172. See also response to Panel question No. 30, para. 181.
256 Korea's first written submission, paras. 249-250; second written submission, paras. 182-183; and
response to Panel question No. 64(c)(v).
257 Korea's first written submission, paras. 249-250; second written submission, paras. 182-183; and
response to Panel question No. 64(c)(v).

BCI deleted, as indicated [[***]]

anti-dumping duties were exerting a remedial effect, and it was probable that the lifting of the duties
would remove that remedial effect which would, in turn, lead to a resumption of higher volumes of
Japanese imports.258 Korea also argues that various other findings by the KIA show that the Korean
market would remain attractive to, and be targeted by, the Japanese exporters259, and that the KIA
adequately examined and dismissed the Japanese exporters' argument that they could not compete
on price with third -country imports. 260 Additionally, Korea refers to a determination by the
United States International Trade Commission (USITC) to support its argument that the KIA properly
concluded that the Japanese exporters would increase exports into the Korean market.261
7.92. We accept Korea's general proposition that, if the anti-dumping duties are exerting a remedial
effect, it may be reasonable to consider that the removal of the duties would lead to a return of the
situation that prevailed prior to their application, for instance a higher volume of imports. However,
such an approach must have a factual basis.262 In the present case, we understand that the factual
basis for finding an increase in Japanese imports was, inter alia263, predicated on a Japanese pricing
level that would remain almost [[***]] higher in 2015 than the pricing level of domestic like products
and third-country imports.264 As we understand it, Japan's basic contention is that the KIA failed to
address how Japane se imports into Korea would increase despite remaining at this significantly
higher pricing level, particularly given the large presence of lower-priced imports from third countries
in the Korean market that may disincentive such an increase.265 Although Japan makes reference at
times to the alleged distinction between general -purpose steel and special steel in relation to its
contention on this point, we do not understand its contention to hinge upon that distinction. Rather,
we understand Japan 's contention on this point to concern the product under investigation
generally.266 For instance, Japan states: "[i]ncreasing volumes of lower priced third country imports
created a disincentive for increased Japanese exports, particularly of general -purpose steel
products".267 As this example illustrates, Japan 's reference to general -purpose steel in this
connection is subsidiary to its broader contention that the differing price levels should have been
examined and accounted for when determining whether Ja panese imports would increase. 268 We
therefore reject Korea's contention that "this 'incentive' argument was based on the unsubstantiated
assertion that the Japanese producers had shifted away from general purpose steel" .269

258 Korea's first written submission, paras. 249-250; second written submission, paras. 182-183; and
response to Panel question No. 64(c)(v).
259 Korea's first written submission, paras. 242, 245, 247, 253, 255, and 279; second written
submission, paras. 226-227 and 240.
260 Korea's responses to Panel question Nos. 6(b)(iii) and 16(v); second written submission,
paras. 80-81 and 234; and first written submission, paras. 272 and 280. We note that, according to Korea,
these considerations of the KIA were on an "arguendo" basis to the extent they pertained to general-purpose
versus special steel.
261 Korea's second written submission, para. 226.
262 While we accept that the forward-looking analysis under Article 11.3 calls for a certain degree of
speculation as to the likelihood of future events (Korea's first written submission, para. 256), we agree with
the Appellate Body that an authority's determination must nonetheless rest upon a factual foundation.
(Appellate Body Reports, US – Corrosion-Resistant Steel Sunset Review, para. 178; US – Oil Country Tubular
Goods Sunset Reviews, paras. 234-235).
263 We note that Korea presents other bases for which the KIA reasonably found imports would increase
(e.g. Korea's first written submission, paras. 240, 247, and 252-253). We address these, to the extent relevant
and not already assessed in this section, as part of our discussion of the totality of evidence in
section 7.5.3.4 below.
264 The KIA found that "[o]nce the anti-dumping measures are terminated, it is predicted that a deep fall
in the price of the dumped imports (△ [[***]]% for Japanese products) … will lead to a growth in exports to
Korea." (OTI's final report, (Exhibit KOR-5.c (BCI)), p. 67 (emphasis added)). As explained earlier (see
paras. 7.71-7.72 and fns 183, 212, and 234 above), we consider that the "deep fall in the price" of Japanese
products referred to in this finding relates to the deduction of KRW [[***]] from the average 2015 Japanese
resale price of KRW [[***]]. A deduction of KRW [[***]] would still leave the Japanese price at [[***]], which
is almost [[***]] higher than third-country imports and domestic like products. We focus on the 2015 prices
because these were the prices explicitly referred to by the KIA when evaluating the consequences of the
Japanese price drop. (OTI's final report, (Exhibit KOR-5.c (BCI)) p. 63; see fn 186 above).
265 Japan's first written submission, paras. 171-172; second written submission, paras. 321, 336,
and 358-359. See also response to Korea's question No. 12, paras. 32-35.
266 Japan's second written submission, paras. 321 ("imports from Japan"), 336 ("Japanese imports"),
and 358-359 ("Japanese products"/"Japanese imports"); first written submission, paras. 160-161 ("product
under investigation"), 171 ("product under investigation"), and 172 ("product under investigation").
267 Japan's second written submission, para. 355.
268 See also Japan's first written submission, paras. 160-161 and 172; and second written submission,
para. 357.
269 Korea's comments on Japan's response to Korea's question No. 17, p. 38.

BCI deleted, as indicated [[***]]

Japan's separate argument that th e KIA failed to adequately account for the alleged distinction
between general-purpose steel and special steel in its analysis of price and volume is addressed
below in section 7.5.3.3.
7.93. We agree with Japan that a "substantial difference in the price levels" should be an "obvious
and significant fact" to the authorities270, particularly where the authorities rely on the premise that
"price is one of the most important elements that affects purchaser choice".271 We do not exclude
the possibility that imports could increase despite remaining significantly more expensive. However,
given the price-sensitive nature of the market272, we agree with Japan that such an increase cannot
simply be "assumed", but instead an authority's "unbiased and objective" evaluation of the facts
concerning an increase in volume should account for different pricing levels.273 We would thus expect
to see an explanation in the KIA 's determination of how the volume of Japanese imports would
increase despite their prices remaining almost [[***]] higher in 2015 according to the KIA 's own
metric. We also dismiss Korea's contention that Japan's case is premised on a "possibility" of a lack
of incentive or lack of competition due to price differences, and that "mere possibilities do not rise
to the requisite standard of proof under WTO law". 274 This reflects a misunderstanding of
Japan's case. Japan seeks to demonstrate that the KIA 's failure to examine certain matters left
alternative plausible explanations of the data unaddressed, which in turn calls into question the
KIA's finding on this point.275 Japan does not refer to possibilities in the sense of the likelihood o r
probability of an eventuality, but in the sense of matters that were , in its view , not adequately
explored by the KIA and thus left unaddressed . Moreover, Japan is not requesting us to consider
possibilities in the sense of conducting a de novo review of the facts and reaching the factual finding
that it would have preferred.
7.94. Korea seems to suggest that the "price gap" between Japanese imports and third -country
imports upon the lifting of the anti -dumping duties was irrelevant to whether they were in
competition with one another, and hence to whether the Japanese exporters lacked an incentive to
compete with the third -country imports. 276 This is because, according to Korea, all relevant
producers could, and did, produce the same range of product types and mo dels, and given the
made-to-order nature of the market and the high adaptability of production facilities, all relevant
producers competed over the same demand. 277 For Korea, therefore, the KIA 's finding on the
competitive relationship amongst SSB products rendered the "price gap" or "price differential"
irrelevant.278
7.95. We cannot accept that the "price gap" or "price differential" is irrelevant. The
KIA's determination rested on the premise that price was the most important factor in purchasing
decisions. Moreover, the KIA 's finding on the competitive relationship amongst SSB products
encompassed its finding from earlier investigations that "consumers prefer low-priced products".279
Furthermore, the relevant finding of the KIA is that the drop in Japanese prices would lead to an
increase in imports.280 The Japanese pricing level upon the removal of the anti-dumping duties was
thus central to the KIA's finding. We reject Korea's argument on this point.

270 Japan's second written submission, para. 151.
271 Japan's response to Panel question No. 64(c), paras. 329-320; second written submission, para. 194.
272 See paras. 7.65, 7.67, 7.73, and 7.76 above; Japan's second written submission, paras. 194-195;
and response to Panel question No. 15, para. 85.
273 Japan's opening statement at the second meeting of the Panel, paras. 28-29; second written
submission, para. 194; and responses to Panel question No. 19(b), para. 108, and No. 64(c), paras. 329-330.
274 Korea's comments on Japan's responses to Korea's question, "General Observations" p. 2, and
No. 12, pp. 26-27; first written submission, para. 278.
275 Japan's second written submission, para. 31; opening statement at the second meeting of the Panel,
para. 33; and comments on Korea's common response to Panel questions after the second meeting with the
Panel, paras. 2-3.
276 Korea's second written submission, paras. 233-237.
277 Korea's second written submission, para. 99 and fn 233 (referring to Korea's responses to Panel
question Nos. 19, 20(f), and 40); responses to Panel question Nos. 6(d) and 29(ii).
278 Korea's second written submission, para. 237 and fn 233; responses to Panel question Nos. 6(d),
19(a)(ii), 19(b)(ii), and 20(f)(iii).
279 See paras. 7.73 and 7.76 above.
280 OTI's final report, (Exhibit KOR-5.c (BCI)), p. 67: "[o]nce the anti-dumping measures are
terminated, it is predicted that a deep fall in the price of the dumped imports (△ [[***]]% for Japanese
products) … will lead to a growth in exports to Korea". (emphasis added)

BCI deleted, as indicated [[***]]

7.96. Korea als o explains that, contrary to Japan 's argument, the KIA did indeed consider the
impact of third-country imports as part of examining whether lifting the anti-dumping duties would
be likely to lead to a recurrence of injury. 281 The KIA found that the volume a nd market share of
these imports remained stable over the POR, and that their declining price trend was not dissimilar
to the trends for the dumped imports and domestic like products. 282 According to Korea, none of
these indicators called into question the KIA's likelihood-of-injury finding.283 We agree with Japan,
however, that this assessment of relative trends does not address the actual difference in pricing
levels between the third-country imports and the Japanese imports, including upon the lifting of the
anti-dumping duties. 284 The KIA 's assessment of third -country imports thus fails to address
Japan's point that "the higher priced imports from Japan may not be able to compete with the lower
priced third country imports, even if the anti-dumping duty were to expire".285
7.97. Korea points out that the KIA found that Japanese imports commanded a price premium over
Indian and Chinese imports. According to Korea, this explains the price differential between products
of different origin.286 We accept that the price premium commanded by Japanese products might be
capable of explaining how a higher p rice could lead to an increase in imports despite the
price-sensitive nature of the market. However, we are unable to discern such an explanation in the
KIA's determination. The determination does not provide any indication of the magnitude or nature
of the price premium commanded by Japanese imports, and we are therefore unwilling to speculate
as to whether a n almost [[***]] price differential falls within the bounds of that premium. 287
Moreover, the plain text of the KIA 's determination provides no basis f or considering that the KIA
relied on the existence of the price premium to explain how a n almost [[***]] higher price would
lead to an increase in imports despite the price -sensitive nature of the market. 288 The absence of
any analysis of the magnitude or nature of the price premium , together with the absence of any
explicit indication that the KIA was relying on the price premium in this way, mean that we have no
grounds for accepting Korea 's rebuttal on this point. Rather, w e agree with Japan that
Korea's rebuttal on this point goes beyond the analysis undertaken by the KIA , and would amount
to ex post reasoning.289
7.98. Korea also argues that Japan 's submission concerning the lack of incentives to increase
exports was never substantiated by the Japanese exporters during the underlying review. 290 We
need not express a view on the extent to which the Japanese exporters substantiated their assertion
that they could not compete with low-priced imports from third countries in the Korean market and
therefore had no incentive to increase imports even if the anti -dumping duties were lifted.
Japan's case before us is based not only on the Japanese exporters ' assertions during the sunset
review, but more broadly on the failure of the KIA to properly address and reconcile its own factual
findings in this regard. 291 These include the following factual findings concerning the respective
starting points of the Japanese imports if the anti-dumping duties were lifted and the third-country
imports.292 The average Japanese resale price in 2015 would remain almost [[***]] higher than the

281 Korea's first written submission, paras. 289 and 301-303; second written submission, para. 250.
282 Korea's first written submission, paras. 259-260, 280, 290-292, and 304; opening statement at the
first meeting of the Panel, para. 64; and second written submission, paras. 228, 230, and 250.
283 Korea's opening statement at the first meeting of the Panel, para. 64; first written submission,
paras. 260, 280, and 303; and second written submission, paras. 228, 230, and 250.
284 Japan's second written submission, paras. 320-321 and 360.
285 Japan's second written submission, para. 321. See also response to Korea's question No. 12,
para. 32.
286 Korea's second written submission, paras. 80-81, 178, and 237, and fn 233; response to Panel
question No. 19(c)(iii); and comments on Japan's response to Korea's question No. 12, p. 28.
287 The relevant passage of the determination is limited to the following: "within the same steel grade,
Korean and Japanese products have high credibility in quality and Indian and Chinese products have high price
competitiveness". (OTI's final report, (Exhibit KOR-5.c (BCI)), p. 55).
288 The plain text of the relevant finding is extracted at para. 7.74 above.
289 Japan's second written submission, paras. 195-196.
290 Korea's response to Panel question No. 16(i). See also first written submission, para. 278;
second written submission, para. 231; and comments on Japan's response to Korea's question No. 12, p. 28.
291 Japan's first written submission, paras. 160-162 and 172; second written submission,
paras. 190-191, 198, 303, 336, 358, 360, 388, and 390; responses to Panel question No. 19(c),
paras. 113-114, and No. 34, paras. 196-197; and opening statement at the first meeting of the Panel,
paras. 40-42.
292 We understand that Japan did not refer to the specific figures in its first written submission because
it did not have access to unredacted versions of the relevant documents. (Japan's second written submission,
para. 189). Japan did, however, refer to the relevant aspects of the KIA's findings in its first written

BCI deleted, as indicated [[***]]

domestic price, whereas the average third -country resale price would be [[***]] lower than the
domestic price.293 The market share of Japanese imports in the Korean marke t would be [[***]],
whereas the market share of third-country imports would be [[***]].294 Additionally, the KIA found
that third-country imports were already exerting a degree of downward pressure on the price of
domestic like products during the POR. 295 In these respects, the starting points for the Japanese
imports and the third-country imports upon the lifting of the anti-dumping duties would be different.
7.99. We must also recall that, while price was not the only factor, the KIA considered it to be the
most important factor in purchasing decisions , with consumers preferring lower prices.296 Against
that background, we agree with Japan that the existence of third -party imports whose prices were
at levels lower than domestic like products and which occupied [[***]] of market share represents
a substantial source of price pressure in the Korean market. 297 We would expect an "unbiased and
objective" evaluation of the facts on this point to account for the possibility that the large presence
of low-priced third-country imports might therefore prevent an increase in the volume of Japanese
imports into the price-sensitive Korean market, particularly where the Japanese price would still be
almost [[***]] higher and represent just [[***]] of the market upon the lifting of the anti-dumping
duties.
7.100. But Korea has not indicated to us that the KIA took the differing starting points of the
Japanese imports and third -country imports into account when determining that the volume of
Japanese imports would increase upon the liftin g of the anti -dumping duties . On the contrary,
Korea's explanation for how the KIA took the third -country imports into account pertained to the
stability of their volume and market share during the POR, together with the comparative similarity
in comparati ve price decreases. 298 Korea rejected the relevance of the actual price difference
between Japanese imports and third -country imports.299 None of Korea 's responses to questions
from the Panel concerning whether and how the KIA's determination addressed the proposition that
low-priced third -country imports created a disincentive for Japanese exporters to increase their
volumes indicated that the KIA did, in fact, take these differing starting points into account. 300
Rather, Korea appeared to reject the premise that the Japanese imports might be uncompetitive
with third-country imports due to their higher price levels. 301 We are unable to discern from any
aspect of the determination that the KIA took these differing starting points (discussed above) into
account when finding that the drop in Japanese prices arising from the expiry of the anti -dumping
duties would lead to an increase in imports.

submission, namely the increase in the volume and market share of third-country imports, the differences in
prices between the product under investigation and the third-country imports, and the existing adverse impact
caused by the increased third-country imports, and described these as "conflicting findings by the [KIA]".
(Japan's first written submission, para. 160). Japan then referred to the specific figures, at first instance, in its
oral statement at the first substantive meeting of the Panel at para. 40. (See also second written submission,
paras. 198, 304-305, 390, and 395).
293 OTI's final report, (Exhibit KOR-5.c (BCI)), p. 63.
294 OTI's final report, (Exhibit KOR-5.c (BCI)), pp. 35 and 54.
295 OTI's final report, (Exhibit KOR-5.c (BCI)), pp. 39, 50-51, and 54 (albeit exhibiting less downward
price pressure during the POR than that caused by the fall in raw material costs); KTC's final resolution,
(Exhibit KOR-4.b (BCI)), p. 14. We note that the applicants did not describe the Japanese imports as a source
of price pressure during the POR. (Application, (Exhibit JPN-4.b), pp. 14-15 and 25-26; Minutes of public
hearing (24 November 2016), (Exhibit KOR-19.b (BCI)), pp. 10, 20, and 32-33).
296 See paras. 7.73 and 7.76 above.
297 Japan's second written submission, paras. 304-305, 319-321, 360, and 395. Not only is this
apparent from various aspects of the KIA's determination (OTI's final report, (Exhibit KOR-5.c (BCI)), pp. 39,
50-51, and 54; KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 14), but the applicants themselves
recognized as much in their application to initiate the review. (Application, (Exhibit JPN-4.b), pp. 25-26 and
fn 2). Indeed, the applicants stated that this source of price pressure should be dealt with through a new
anti-dumping investigation: "[i]t is true that the domestic industry is being injured by products from other
countries, such as China. However, current injury to the domestic industry caused by these products from
other countries is a problem that should be considered by a new original investigation." (Applicants' statement
of opinion after the public hearing, (Exhibit JPN-15.b), p. 15).
298 Korea's first written submission, paras. 259-260, 267, 280, 290-292, and 303-304; opening
statement at the first meeting of the Panel, para. 64; and second written submission, paras. 228, 230, 245,
and 250.
299 Korea's second written submission, paras. 234-236.
300 Korea's responses to Panel question Nos. 6(d), 16, 22(c), 67(e), and 77.
301 Korea's response to Panel question No. 16(v); comments on Japan's response to Korea's question
No. 12, pp. 26-27.

BCI deleted, as indicated [[***]]

7.101. Rather, according to Korea, other factual findings by the KIA showed that there would be a
capacity and demand for Japanese exporters to increase their imports into Korea upon the removal
of the anti -dumping duties.302 In particular, according to Korea, Japan ese exporters were already
importing considerable and increasing volumes during the POR, and this indicated clea r demand in
Korea for Japanese products and showed that the Korean market remained attractive to the
Japanese exporters despite the application of the duties.303 Other indicators also showed the Korean
market was a target for the Japanese exporters, such as the increasing ratio of Japanese exports
being shipped to Korea and the application of anti -dumping duties by the United States and the
European Union.304 Moreover, according to Korea, the Japanese exporters had increased their
production volume and made i nvestments in production facilities whilst also experiencing low
capacity utili zation, which supported the finding that exports to Korea would increase if the
anti-dumping duties were lifted.305
7.102. We accept that these factors can be relevant and useful in establishing that, upon lifting the
anti-dumping duties, the exporters would have an interest in, and ability to, increase exports. 306
However, both parties accept that there must be demand in a market for sales to take place. 307 As
Japan points out, consumers would need to have an increased demand for Japanese imports if their
volume were to increase in the Korean market, whereas the KIA 's determination rested on the
premise that price is the most important aspect of consumers' purchasing decisions.308 None of the
factors identified above by Korea explain why there would be additional demand on the part of
consumers in the Korean market for Japanese imports that would still remain significantly more
expensive upon lifting the anti -dumping duties. It is worth reiterating that the KIA 's finding of an
expansion in Japanese imports was made on the basis of a Japanese pricing level that would remain
almost [[***]] more expensive309, and not on the basis of some lower pricing level or the pursuit of
a more aggressive pricing strategy by the Japanese exporters in response to additional pressures to
export to Korea. We note that Korea also appears to refer to the continued dumping by the Japanese
producers, and the fact that they had absorbed the duties and increa sed imports, as additional
grounds indicating an increase in Japanese volumes upon the lifting of the anti -dumping duties.310
However, we again reiterate that the KIA's determination on the increase in Japanese volumes rests
upon a deduction of an amount representing the anti -dumping duty from the average Japanese
resale price.311 It does not rest upon some other pricing level arising from a different circumstance,
such as a greater degree of duty absorption or a higher level of dumping than that oth erwise
observed during the POR. To rely on such ex post reasoning to uphold the KIA's determination would
effectively lead the Panel to engage in a de novo review.
7.103. Thus, none of the factors identified by Korea address the question of how Japanese imports
would increase despite remaining significantly higher -priced in the context of a price -sensitive
market in which large volumes of lower-priced imports were already present. We agree with Japan
that, in light of the particular factual context in the present case, a consideration of factors on the

302 Korea's opening statement at the first meeting of the Panel, paras. 50-53, 56, and 61; first written
submission, paras. 279-281; and second written submission, paras. 226-227, 231, and 240-241.
303 Korea's comments on Japan's responses to Korea's question No. 16, p. 35, and No. 21, p. 44;
second written submission, paras. 128 and 226; and first written submission, paras. 242, 255, and 279.
304 Korea's first written submission, paras. 245, 253, and 281; second written submission,
paras. 226-227.
305 Korea's first written submission, paras. 247, 253-254, and 279; second written submission,
paras. 226-227.
306 For the avoidance of doubt, this does not imply that we express a view on Japan's arguments that
these factors involve impermissible ex post reasoning, or were improperly relied upon by the KIA. We make
this remark on an arguendo basis, in the abstract.
307 Korea's response to Panel question No. 100, para. 175; Japan's second written submission,
para. 357.
308 Japan's responses to Panel question No. 19(b), para. 108, No. 19(c), para. 113, No. 30,
paras. 180-181, and No. 64(c), paras. 329-330; second written submission, para. 194.
309 Korea's second written submission, para. 124 and fn 130; response to Panel question No. 69. See
also paras. 7.71-7.72 and 7.92, and fns 233 and 235 above.
310 Korea's second written submission, paras. 26, 29, and 128; comments on Japan's responses to
Korea's question No. 16, pp. 35-36; and No. 21, p. 44.
311 See fns 211 and 233 above.

BCI deleted, as indicated [[***]]

supply side alone would be insufficient to demonstrate that Japanese imports would increase without
any additional explanation or analysis.312
7.104. Finally, Korea contends that the reasonableness of the KIA 's finding that Japanese imports
would increase was "confirmed by the parallel sunset review by the USITC on SSBs imported from
Japan".313 We decline to take this USITC determination into account to "confirm the reasonableness"
of the KIA's finding on this point.314 It post-dates the KIA's third sunset review, and therefore was
not part of the record of investigation and did not form part of the KIA's finding that the Japanese
price drop would lead to an increase in imports. Accordingly, it does not form part of the relevant
"facts" on which we can base our assessment under Article 17.5(ii) of the Anti-Dumping Agreement.
To find otherwise could lead the Panel into a de novo review on the basis of record evidence that
was not before the KIA. We do, how ever, make some observations regarding this USITC
determination in section 7.5.5 below.
7.105. In summary, Japan has demonstrated that there is an internal tension in the KIA's finding
that the drop in Japanese prices arising from the removal of the anti -dumping duties would lead to
an increase in Japanese imports into the Korean market. This tension arises from the KIA 's finding
being premised on (a ) the understanding that price was the most important factor in purchasing
decisions, and (b ) the fact that Japanese prices would still be almost [[***]] higher than others
upon the removal of the duties in 2015. The significance of this tension is magnified by the fact that
a large volume of low-priced imports from third countries was already present and exerting price
pressure in the Korean market. In particular, upon the lifting of the anti -dumping duties, the
KIA's findings indicate that Japanese imports would represent [[***]] of market share and be priced
almost [[***]] higher than domestic like products, whereas third -country imports would represent
[[***]] of market share and be priced [[***]] lower than domestic prices. By failing to address how
the significantly higher -priced Japanese imports could increase in this context, the
KIA's determination failed to resolve the aforementioned tension in its own findings, and accordingly,
it does not reflect an "un biased and objective" evaluation of the facts on this point. We address
whether the KIA 's failure in this regard rises to the level of a violation of Article 11.3 of the
Anti-Dumping Agreement in section 7.5.3.4 below.
7.5.3.3 Whether the KIA erred by failing to account for different product mixes in
assessing the impact of the Japanese price drop
7.106. Japan contends that the KIA erred by failing to account for di fferences in the respective
countries' product mixes when concluding that domestic price competitiveness would weaken and
Japanese imports would increase upon the lifting of the anti-dumping duties and the resulting drop
in Japanese prices.315 Specifically, Japan argues that the KIA failed to account for the differentiated
effects that general-purpose steel and special steel would have on Korea's domestic industry, despite
the fact that Japanese imports were mostly comprised of special steel and domestic lik e products
were mostly comprised of general-purpose steel.316
7.107. Korea responds that the KIA did indeed examine the Japanese exporters ' "product mix
argument" on the basis of a distinction between general-purpose steel and special steel, and found
that Japan continued to export similar levels of both steel types during the POR.317 For Korea, the
suggestion that Japan 's only likely export increase would be in the special steel segment was
contradicted by official customs data.318 In any event, Korea argues that the KIA rejected this alleged
distinction because SSBs "all form one consolidated group of like products". 319 Korea also
emphasizes that the Japanese exporters never submitted grade-specific pricing data that would have
enabled the kind of grade-specific analysis for which Japan now seeks to fault the KIA.320

312 Japan's comments on Korea's common response to Panel questions after the second meeting with
the Panel, paras. 12-13. See also first written submission, para. 171; and second written submission,
paras. 172-174 and 398.
313 Korea's second written submission, para. 226.
314 Korea's comments on Japan's response to Panel question No. 92, p. 16.
315 Japan's first written submission, paras. 164-167; second written submission, paras. 350 and 352.
316 Japan's first written submission, paras. 164-167; second written submission, para. 350.
317 Korea's first written submission, paras. 261 and 272; second written submission, para. 126.
318 Korea's first written submission, para. 274.
319 Korea's first written submission, para. 273. See also second written submission, para. 231.
320 Korea's comments on Japan's response to Korea's question No. 13, pp. 29-30.

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7.108. We recall that the KIA considered the SSB market to be a price-sensitive market in which
price was the most important factor in consumers ' purchasing decisions and in which consumers
preferred low-priced products, albeit modulated by price premiums for Japanese and Korean
products and price discounts for Indian and Chinese products. 321 Based on the material before us,
Japan has not established the existence of a reliable relationship between pri cing levels and the
categorization of a product as general -purpose steel (grades 304 and 3 16) or special steel (all
others). On the contrary, the uncontested record evidence indicates that Japanese general-purpose
steel was in a different price bracket to general-purpose steel from other sources 322 and was,
according to the applicants, "only general in name, but ha[s] particular specification or size and are
mostly products that are not competitive".323 Moreover, according to the pricing data submitted by
Korea, it was not the case that special steel was necessarily higher-priced and general-purpose steel
was necessarily lower-priced during the POR.324
7.109. Therefore, Japan has not established a prima facie case that the KIA erred by failing to
undertake an analysis that differentiated between general-purpose and special steel when examining
the consequence s of the drop in Japanese prices upon removing the anti -dumping duties . We
consequently find that Japan has failed to demonstrate that the KIA acted inconsistently with
Article 11.3 of the Anti-Dumping Agreement on this point. For the avoidance of doubt, our conclusion
in this regard should not imply a broader finding on the existence or utility of the alleged distinction
between general-purpose steel and special steel , nor on the degree of competitive overlap in the
product mixes of the relevant countries.
7.5.3.4 Whether the KIA 's error in assessing the impact of the Japanese price drop
constitutes a violation of Article 11.3 of the Anti-Dumping Agreement
7.110. In sections 7.5.3.1 and 7.5.3.2, we found that Japan has demonstrated the following
conclusion by the KIA lacks an "unbiased and objective" evaluation of the facts:
Where the anti-dumping measures are terminated, it is predicted that a steep fall in the
price of the dumped imports (Japanese △ [[***]]%) will lead to an increase in exports
to Korea and weaken the price competitiveness of Like Products.325
7.111. Korea contends that determinat ions based on multiple factors do not fail merely because
there is a deficiency in one of those factors.326 Rather, the determination must be upheld if there is
a sufficient factual basis remaining despite the deficiency. According to Korea, all of the factors relied
on by the KIA in the present case provided a sufficient factual basis for reasonably concluding that
the expiry of the anti-dumping duties would likely lead to the recurrence of injury.327 Korea provides
the following summary of the overall likelihood-of-injury determination:
The conclusion of the Korean authorities can be summarized as follows : dumping
continued at margins of 66% from Japan. In the meantime, the volume and market

321 See paras. 7.73-7.74 and 7.76 above.
322 Korea's response to the Panel's Article 13 of the DSU information request, (Exhibit KOR-41.b (BCI)).
We reject Japan's objection that this document does not contain record evidence. (Japan's second written
submission, para. 193). This information request included the following instruction: "[i]n providing the
information in the format requested in Appendix 1, please only use data/evidence that was on the record of
investigation and was available to the Korean investigating authorities for the purposes of its sunset review."
Japan has not demonstrated that Korea failed to follow this instruction in providing the requested data.
Although Japan contested whether this material was on the record – an objection that we reject – it did not
contest the accuracy of this evidence. Both the Japanese exporters and the applicants adopted the position
that Japanese general-purpose steel was not in price competition with general-purpose steel from other
sources in the Korean market. (Japanese exporters' opinion regarding injuries, (Exhibit JPN-10.b (BCI)), p. 12;
Application, (Exhibit JPN-4.b), pp. 5-26).
323 Application, (Exhibit JPN-4.b), p. 15.
324 Korea's second written submission, paras. 59 and 79. We agree with Korea on the lack of a
correlation in that regard.
325 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 22 (emphasis added). See also OTI's final report,
(Exhibit KOR-5.c (BCI)), p. 67.
326 See, e.g. Korea's comments on Japan's responses to Korea's question "General Observations", p. 1;
opening statement at the second meeting of the Panel, paras. 16, 25-26, and 44-45; and response to Panel
question No. 98, para. 143.
327 Korea's response to Panel question No. 98, paras. 143 and 154; second written submission,
paras. 26-37.

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share of the dumped imports in general and from Japan in particular increased at the
end of the POR, but stayed low and in any case well below their volume and market
share before the imposition of the measure. There was significant spare production
capacity in all three investigated countries, including Japan, given the relatively low
capacity utilization. In addition, exporting producers were making additional
investments in production facilities. The prices of dumped imports would necessarily
drop after the removal of the duties and would exhort further price pressure on domestic
prices. Key markets such as the EU and the U.S. remain protected through trade remedy
measures on SSBs, which meant that the Korean market would be attractive if duties
were removed. Furthermore, despite the protection, the domestic industry 's recovery
in the POR was still fragile as witnessed by a number of injury indicators trending
negatively. All of this supported the reasonable conclusion that removal of the duties
would likely lead to a continuation of dumping and a recurrence of injury.328
7.112. The KIA's analysis of the consequences of the drop in Japanese prices upon the expiry of the
anti-dumping dut ies comprised an intermediate finding in support of the likelihood-of-injury
determination. Korea recognizes this, but states that "[w]hereas current price trends may be an
intermediary factor in this analysis, they do not answer the ultimate questi on"329, and "no
investigating authority can humanly draw a 'future price effect ' based on the POR -bound pricing
data".330 For instance, the "prevailing price matrix among the products is destined to shuffle" upon
the removal of the anti -dumping duties 331, and there could be more sales of price -competitive
models that had been previously hindered by the duties. 332 Thus, we understand Korea to contend
that the KIA 's intermediate finding on the consequences of the drop in Japanese prices upon the
expiry of the anti-dumping duties was not dispositive to the likelihood-of-injury determination.
7.113. Japan, on the other hand, draws a link between the KIA 's analysis of the consequences of
the drop in Japanese prices and the KIA's likelihood-of-injury determination that "[i]t is highly likely
that once the anti -dumping measures are terminated, a drop in the price of the product under
investigation and an increase in imports will again cause material injury to the domestic industry".333
For Japan, both co ntain the same "logical leap" and "fundamentally flawed" reasoning. 334 Japan
emphasizes the point that, if the Japanese exporters lacked incentives to increase volumes due to
their inability to compete on price with third -country imports, then the KIA's remaining findings on
the supply side relating to production capacity, export capacity , and import controls by other
countries, cannot support the likelihood-of-injury determination.335
7.114. We agree with Korea that the KIA 's error concerns an intermediate finding and will only
result in a violation of Article 11.3 if it invalidates the KIA's final conclusion on the likelihood of
injury. In determining whether an intermediate finding invalidates a final conclusion, we find useful
the Appellate Body's guidance that:
[T]here may be cases in which certain intermediate findings may be so central to the
ultimate conclusion of an investigating authority that an error at an intermediate stage
of reasoning may invalidate the final conclusion. Indeed, an evaluation of the
significance of the different factors considered by an investigating authority is at the
heart of the assessment a panel must make.336

328 Korea's second written submission, para. 29 (fns omitted). See also responses to Panel question
No. 98, paras. 152-155; and No. 6(c)(iv).
329 Korea's second written submission, para. 185.
330 Korea's response to Panel question No. 19(a)(i).
331 Korea's response to Panel question No. 19(a)(i).
332 Korea's comments on Japan's responses to Korea's question No. 2, p. 8, and No. 4, p. 12.
333 Japan's first written submission, paras. 159, 162, and 170 (referring to OTI's final report,
(Exhibit KOR-5.c (BCI)), p. 67).
334 Japan's first written submission, paras. 159-162 and 170-172.
335 Japan's comments on Korea's common response to Panel questions after the second meeting with
the Panel, paras. 11-14; first written submission, para. 171; and second written submission,
paras. 172-174, 357, and 398.
336 Appellate Body Report, Japan – DRAMs (Korea), para. 135. See also ibid. paras. 131-134.

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7.115. We are therefore called upon to ascertain the significance of the intermediate finding at issue
to the KIA 's likelihood-of-injury determination, and in particular, whether it is so central that it
invalidates the final conclusion. The KIA's likelihood-of-injury determination provides:
Taking the circumstances into consideration as a whole, the Commission finds that it is
highly likely that once the anti -dumping measures are terminated, a drop in the price
of the dumped imports and an increase in volume of the dumped imports will again
cause recurrence of material injury to the domestic industry, such as a downturn in
sales and deterioration in operating profitability.337
7.116. It is clear from the plain text of this final conclusion that the consequences of "a drop in the
price of the dumped imports" was central. It is also clear from the "Overall Evaluation" section (in
which this extract appears) that the reference to "a drop in the price of the dumped imports" in this
conclusion pertains to the intermediate finding that immediately precedes it, namely "[w] here the
anti-dumping measures are terminated, it is predicted that a steep fall in the price of the dumped
imports (Japanese △ [[***]]%) will lead to an increase in exports to Ko rea and weaken the price
competitiveness of Like Products ".338 This intermediate finding, in turn, drew upon the analysis of
Japan's projected price drop upon the removal of the anti-dumping duties.339 Our understanding in
this regard accords with Korea's description of the structure and flow of the KIA's findings.340
7.117. In view of the structure and flow of the KIA 's findings that led to the likelihood-of-injury
determination, we consider that the KIA 's failure to undertake an "unbiased and objective"
evaluation of the facts on the consequence s of the drop in Japanese prices invalidates this
determination and gives rise to a violation of Article 11.3 of the Anti-Dumping Agreement.
7.118. Our conclusion is not altered by the reference to "an increase in the volume of the dumped
imports" in the overall determination extracted above . It is not apparent to us that the KIA found
this to be capable of alone supporting the likelihood -of-injury determination, nor that t his is
necessarily independent of the "drop in the price of the dumped imports".341 Indeed, our examination
in section 7.5.3.2 revealed that the KIA erred in considering that Japanese volumes would expand
as a result of the drop in Japanese prices upon the removal of the anti -dumping duties. In that
section, we considered other factors referred to by the KIA that could explain the increase in imports.
Based on our reading of the KIA's determination in light of the record evidence, none of these factors
established how there would be additional demand on the part of con sumers in the Korean market
for Japanese imports that would still remain almost [[***]] more expensive upon lifting the
anti-dumping duties. To that extent, we agree with Japan that " without sufficient incentives, the
Japanese Respondents would not utilize the unused production capacity (or convert the production
facilities for other products) in order to produce more SSB to increase their exports to Korea".342
7.119. As we understand it, Japan made one single claim concerning the price and volume effects
that was comprised of multiple arguments and various alleged errors. 343 We note that a panel has

337 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 23. See also OTI's final report,
(Exhibit KOR-5.c (BCI)), p. 67.
338 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 22 (emphasis added). See also OTI's final report,
(Exhibit KOR-5.c (BCI)), p. 67.
339 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 21.
340 Korea's response to Panel question No. 6(c)(iv). See also first written submission, paras. 100-103;
and second written submission, paras. 29 and 159-160. By structure and flow, we mean the various stepping
stones and the sequence of logical progression between and within the relevant sections of the determination.
341 Korea's first written submission, paras. 101-103. See also response to Panel question
No. 40(iv): "Korea submits that the 'effect of import volume of products' almost necessarily includes the
products' effect on prices."
342 Japan's comments on Korea's common response to Panel questions after the second meeting with
the Panel, para. 13. For the avoidance of doubt, we do not suggest that identifying "incentives" is a legal
requirement under Article 11.3. (Korea's comments on Japan's response to Korea's question No. 17, p. 38).
Rather, the significance of this matter in the present case arises from the KIA itself placing significance on
whether the Japanese exporters had "inducements to expand their exports to Korea" (OTI's final report,
(Exhibit KOR-5.c (BCI)) p. 67 (emphasis added)), and its reliance on the premise that price is the most
important factor in consumers' purchasing decisions with consumers preferring low-priced products (see
paras. 7.73 and 7.76 above).
343 Japan's first written submission, para. 7; second written submission, paras. 168 and 584(c).

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"the discretion 'to address only those arguments it deems necessary to resolve a particular claim'".344
In light of our finding on the grounds for Japan's price and volume effects claim as addressed in this
section, it is unnecessary for the prompt and effective resolution of the dispute to proceed to address
Japan's various other arguments in support of its claim in this regard. To the extent that these other
arguments themselves constitute separate "claims" or standalone allegations of error, we exercise
judicial economy over them for the same reasons.
7.120. Finally, w e need not express a view on Korea 's contention regarding the limitations of
POR-bound pricing data in projecting the future consequences of lifting of anti-dumping duties. The
text of the KIA 's determination is unambiguous on this point . The KIA's assessment of the
consequences of the drop in Japanese prices upon the removal of the anti -dumping duties was
premised on a certain pricing level . T his pricing level was derived by deducting an amount
representing the anti -dumping duty from the average Japanese resale sale price during the POR
(specifically, during 2015).345 It would be improper for us to now second-guess the KIA and find that
only "limited" or "indicative" value ought to be placed on that assessment .346 The
KIA's determination does not address whether only "limited" or "indicative" value should be placed
on that assessment; indeed the structure and flow of the KIA's determination suggest the contrary.
7.5.4 Japan's claim under Article 11.3 of the Anti-Dumping Agreement concerning other
potential injury factors
7.121. Japan claims that the KIA erred by finding that the expiry of the anti-dumping duties would
likely lead to a recurrence of injury without referring to three other factors that could instead explain
the likely recurrence of injury. 347 These three factors include the impact of the large volume of
low-priced imports from third countries, the cost of raw ma terials, and the weak demand in the
domestic and export markets.348
7.122. Korea responds that a consideration of "other factors" is not legally required
under Article 11.3 of the Anti -Dumping Agreement, but in any case, " it is plainly clear from the
published reports that other factors, including third -country imports, were considered and, in fact,
found not to undermine a finding that there was a likelihood of recurrence of injury if the duties
expired".349
7.123. We need not address Japan 's claim insofar as it relates t o the impact of the third-country
imports. We have already accepted Japan 's position that the large presence of low -priced
third-country imports represented a substantial source of price pressure in the Korean market, and
the KIA failed to account for the possibility that these imports might therefore prevent an increase
in Japanese imports upon the expiry of the anti-dumping duties. This contributed to our finding that
the KIA acted inconsistently with Article 11.3 in its assessment of the consequences of the drop in
Japanese prices upon the expiry of the anti-dumping duties.350 It is unnecessary for the prompt and
effective resolution of the dispute to reach an additional finding concerning the KIA's treatment of
the impact of the third-country imports.
7.124. With respect to the other two factors, we do not consider that Japan has established a prima
facie case of inconsistency with Article 11.3 of the Anti-Dumping Agreement. Japan's case is limited
to pointing out that these were recognized by the KIA as injury factors affecting the Korean domestic
industry during the POR, without attempting to explain how those specific injury factors would sever
or diminish the link between lifting the anti-dumping duties and the likelihood that this would lead

344 Appellate Body Reports, EC – Fasteners (China), para. 511; EC – Poultry, para. 135; and India –
Solar Cells, para. 5.15.
345 See paras. 7.71-7.72 and 7.92 and fns 185 and 233 above. We note that, in its first written
submission, Korea stated that "current market conditions are relevant as a factual basis to draw reasoned
conclusions regarding likely future market conditions", and one of the factors considered by the KIA in this
regard was "the outlook on the volume of imports and price levels of the dumped imports if duties were
removed". (Korea's first written submission, paras. 239-240 (emphasis original)).
346 Panel Report, China – GOES, para. 7.542 and fn 522; Appellate Body Report, Japan – DRAMs
(Korea), para. 135.
347 Japan's response to Panel question No. 73, para. 358; first written submission, para. 177; and
second written submission, para. 305.
348 Japan's first written submission, para. 177.
349 Korea's second written submission, para. 250. (emphasis original)
350 See paras. 7.105 and 7.117 above.

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to a recurrence of injury as part of the forward -looking analysis of a sunset review. 351 We also
consider it noteworthy that, as Japan concedes, neither of these factors was raised or substantiated
by the Japanese exporters during the sunset review as matters that could sever or diminish the link
between lifting the anti -dumping duties and the likelihood -of-injury.352 Indeed, in the absence of
any explanation or evidence to the contrary, one might expect the cost of raw materials and weak
demand to affect the Japanese imports and domestic like products in similar ways in the Korean
market. It is thus not obvious to us why the KIA should have treated these factors as potenti ally
severing or diminishing the link between lifting the anti-dumping duties and the likelihood-of-injury,
and Japan has not demonstrated otherwise.353 Specifically, Japan has not attempted to explain how
those factors would sever or diminish that link.
7.125. We therefore find that Japan has failed to demonstrate that the KIA acted inconsistently with
Article 11.3 of the Anti -Dumping Agreement regarding the cost of raw materials and the weak
demand in the domestic and export markets. Having reached this finding, we need not address the
parties' arguments and rebuttals on the precise circumstances and manner in which an authority
may be required to examine other known injury factors under Article 11.3, including whether there
is a difference between recurrence and continuation determinations in that regard.
7.5.5 Japan's claims concerning capacity utilization
7.5.5.1 Japan's claim under Article 11.3 of the Anti -Dumping Agreement concerning
capacity utilization
7.126. The KIA found that "the utilization rate in 2015 was [[***]]% for Japan … which shows that
they have sufficient additional production capacity and room for exports ".354 Japan claims that this
finding is inconsistent with Article 11.3 of the Anti-Dumping Agreement because the direct evidence
submitted by the Japanese exporters on their production capacity was disregarded , without
justification, in favour of the production capacity data of the ISSF.355
7.127. Korea responds that there was no basis to prefer the Japanese exporters' production capacity
figures over the ISSF data. 356 According to Korea, the Japanese exporters' figures were flawed
because the calculation methodologies varied between the exporters and changed during the review,
and because the exporters refused to provide any underlying data that would have enabled
verification.357 By contrast, Korea explains that the ISSF is a reputable and reliable international
institution, and its data was collected from its members (including the Japanese exporters), national
steel associations, overseas market research agencies, publicly -available information, and from
"basic knowledge of the industry".358
7.128. We begin by evaluating Japan's contention that the ISSF data was flawed due to its product
scope.359 We then turn to Japan 's contention that the Japanese exporters complied with the

351 Japan's first written submission, paras. 187-188; second written submission, paras. 307-308.
352 Japan's response to Panel question No. 74, para. 360.
353 We note that Korea contends that these factors "only confirmed that the domestic industry remained
in a vulnerable position, further supporting the finding of a likelihood of recurrence of injury if the duties
expired". (Korea's first written submission, para. 305). In view of our conclusion in this section, we need not
reach a finding on that contention. We would agree, however, with the panel in Ukraine – Ammonium Nitrate
that a likelihood-of-injury analysis can entail a consideration of the current state of the domestic industry.
(Panel Report, Ukraine – Ammonium Nitrate, paras. 7.181-7.182).
354 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 22. See also OTI's final report,
(Exhibit KOR-5.c (BCI)), p. 67.
355 Japan's first written submission, paras. 6 and 120; second written submission, paras. 6, 176,
and 401.
356 Korea's first written submission, paras. 197-198 and 217-227; second written submission,
paras. 190 and 194-195.
357 Korea's first written submission, paras. 215-217, 220, 226, and 349-352; second written submission,
para. 269; responses to Panel question No. 92, paras. 18, 39, and 52, No. 94, paras. 64-67, 74, and 79, and
No. 95, paras. 89-90 and 92.
358 Korea's first written submission, paras. 199-201; second written submission, paras. 133, 191-192,
195, and 259; and responses to Panel question No. 94, para. 69, and No. 96, paras. 116-117.
359 Japan's first written submission, paras. 122-123, 126, 145, and 256-257 (the latter in the context of
"facts available"); second written submission, paras. 402-403 (point (ii)) 415-417, and 424; responses to
Panel question No. 51, para. 306(ii), No. 92, para. 13, No. 97, paras. 40-42, and No. 98, paras. 47-48;

BCI deleted, as indicated [[***]]

KIA's initial request for production capacity data, but were deprived of an adequate opportunity to
respond to the KIA's subsequent concerns.360
7.129. It is common ground amongst the parties that the product scope of the ISSF data
encompassed not only the "product under investigation", but also "excluded products "361 and
stainless steel sections. 362 The ISSF data indicated that the three Japan ese exporters' production
capacity for stainless steel bars and sections was [[***]] tonnes, with a total of [[***]] for Japan
as a whole363, whereas the Japanese exporters' own figures indicated that their production capacity
for the "product under investigation" ( [[***]]) was [[***]] tonnes.364 According to Korea, th is
broader product scope of the ISSF data was one of the reasons for which it was preferred over the
Japanese exporters' figures.365 Whereas the Japanese exporters ' figures pertained to the "product
under investigation"366, Korea explains that the KIA preferred a broader product scope which would
additionally encompass "the overall capacity of the production facilit[ies] that can be readily
allocated to produce SSB products upon demand" 367, i.e. "secondary processing as a whole". 368
However, Japan contends that the KIA was wrong to use a data -set with a product scope that
extended beyond the "product under investigation".369 Japan seems to suggest that authorities must
always take the "product under investigation" as the starting point when determining the capacity
utilization rate for exporters in a likelihood -of-injury assessment under Article 11.3.370 This is
because production capacity data on the "product under investigation" will be more "r elevant"371,
whereas using "overbroad data" covering other products will be "distortive and unreliable".372

comments on Korea's response to Japan's question after the second meeting with the Panel No. 1, para. 218;
and response to Korea's question No. 10, para. 27 (point (ii)).
360 Japan's first written submission, paras. 121, 137, and 237 (the latter in the context of
"facts available") second written submission, paras. 416, 418, and 424; responses to Panel question No. 92,
paras. 5, 9-10, and 12, No. 95, paras. 28-29 and 35, and No. 99, paras. 51-53; comments on
Korea's response to Panel question No. 92, paras. 29 and 39; and responses to Korea's question No. 9,
paras. 23-25, No. 19, paras. 57-59, and No. 27, paras. 81 and 84.
361 These comprised SSBs that were removed from the scope of the original investigation and the
subsequent reviews, and hence were not subject to anti-dumping duties, because the KIA found that the
Korean domestic industry did not possess the manufacturing capability to produce those products. (OTI's final
report, (Exhibit KOR-5.c (BCI)), p. 3 and fn 5).
362 Korea's first written submission, paras. 189 and 193; Korea's responses to Panel question Nos. 44
and 57; Japan's response to Panel question No. 97, para. 41; Japan's comments on Korea's response to Panel
question No. 92, para. 31; and Japan's second written submission, para. 404 (albeit suggesting that Korea
changed its explanation in this regard during the Panel proceedings).
363 ISSF statistics, (Exhibit KOR-20.b (BCI)).
364 See paras. 7.136-7.137 below.
365 Korea's second written submission, paras. 221-222; responses to Panel question No. 52(b), No. 54,
366 [[***]]. (See paras. 7.136-7.137 below).
367 Korea's response to Panel question No. 44.
368 Korea's comments on Japan's response to Panel question No. 92, p. 13.
369 See, e.g. Japan's first written submission, paras. 122-123, 126, and 145; second written submission,
paras. 402-403 (point (ii)) and 415-417; responses to Panel question No. 51, para. 306(ii); and No. 97,
paras. 40-42; comments on Korea's response to Japan's question after the second meeting with the Panel
No. 1, para. 218; and response to Korea's question No. 10, para. 27 (point (ii)).
370 Japan's response to Korea's question No. 19, paras. 57-59: "[i]f the investigating authorities wish to
expand the scope of the products that are used as a basis for calculating production capacity, they must
explain their logic for doing so. … The authority must assess at least: (i) whether it is in fact technically feasible
to shift from production of the product under investigation to production of those other models or products,
and (ii) whether there is in fact any commercial incentive to make such a shift" (emphasis added). For Japan,
authorities may only expand the product scope beyond the "product under investigation" under Article 11.3
upon examining of technical feasibility and commercial incentives for switching production from other products
to the "product under investigation". See also Japan's response to Panel question No. 98, paras. 47-48; and
comments on Korea's responses to Panel question No. 92, para. 30, No. 98, para. 86, and No. 99,
paras. 96-97 and 101.
371 Japan's first written submission, para. 145; second written submission, para. 417; and response to
372 Japan's response to Panel question No. 97, paras. 40-41. See also Japan's first written submission,
paras. 128 and 145; second written submission, paras. 401-403; and comments on Korea's response to Panel
question No. 93, para. 51.

BCI deleted, as indicated [[***]]

7.130. We disagree with Japan. The text of Article 11.3 of the Anti-Dumping Agreement is silent on
the appropriate methodology for determining capacity utilization rates for exporters 373 in sunset
reviews. Instead, we agree with Korea that " in a sunset review, a relevant consideration for the
likelihood-of-injury determination is to identif y the total production capacity that could be used to
produce the product under investigation if the anti -dumping measure is removed, and not just the
production capacity of that particular product in the POR ".374 Depending on the circumstances of a
given s unset review, including the nature of the product at issue , it seems reasonable that an
authority may examine "what total capacity is available in the subject countries that could be used
for exporting the product under investigation should the anti -dumping measure expire", as Korea
explains.375 Such an examination would accord with the counterfactual and forward-looking analysis
of a sunset review.376
7.131. We accept Japan's point that an authority's capacity utilization determination, including the
parameters used for its product scope, must have a factual basis. 377 However, this does not mean
that authorities are legally required under Article 11.3 to examine the technical feasibility and
commercial incentives for exporters to switch production to other product lines before permissibly
relying on a product scope broader than the "product under investigation" when determining those
exporters' production capacity. 378 Such an analysis might assist an authority in generating a
sufficient factual basis and providing a reasoned and adequate explanation for its capacity utilization
determination, but it is not prescribed as a matter of law by Article 11.3.
7.132. Thus, to the extent that Japan seeks to fault the KIA under Article 11.3 simply because the
KIA relied on a broader product scope than the "product under investigation" when determining
Japan's capacity utilization rate, we reject it. 379 However, we agree with Japan that it would be
improper for an authority to determine a capacity utilization rate based on a broader product scope
without informing the interested parties of the parameters of that scope and without affording them
an opportunity to comment or submit data based on those parameters .380 This is particularly so if
the interested parties were requested earlier in the review to provide capacity utilization data based
on a different product coverage, e.g. limited to the "product under investigation". There is nothing
improper per se with an authority adjusting its preferred parameters for the capacity utilization
assessment during a review, but as we have said, we would expect the authority to inform the
interested parties and afford an adequate opportunity to comment or submit revised data. A failure
to do so could fall short of the "appropriate degree of diligence" required of investigating authorities
in conducting a "review" under Article 11.3 of the Anti-Dumping Agreement.381 Indeed, we cannot
see how an authority's evaluation of the facts can be "unbiased and objective" if the authority rejects
the data submitted by the interested parties for failing to comport with certain new parameters of
which they were not informed.382

373 For the avoidance of doubt, we do not express a view on whether an exporter-specific methodology
or an aggregate country-wide methodology is preferable under Article 11.3. Nor do we seek to suggest that a
determination of capacity utilization rates is a necessary facet of sunset reviews under Article 11.3.
374 Korea's response to Panel question No. 98, para. 133. (emphasis original)
375 Korea's response to Panel question No. 98, para. 150. (emphasis original)
376 Korea's second written submission, para. 221; response to Panel question No. 92, para. 19.
377 Japan's response to Korea's question No. 19, paras. 58-59; response to Panel question No. 98,
paras. 45-48; and comments on Korea's response to Panel question No. 98, para. 86.
378 To the extent that this is Japan's argument (Japan's response to Korea's question No. 19,
paras. 57-59), we reject it.
379 We note that Japan also contests whether the KIA conducted an "objective examination" in the
particular circumstances of the present sunset for relying upon a broader product scope (see,
e.g. Japan's second written submission, para. 419; response to Panel question No. 92, paras. 14-18;
comments on Korea's response to Panel question No. 92, para. 34). In view of our ultimate conclusion in this
section, we do not consider it necessary for the prompt and effective resolution of the dispute to address those
contentions.
380 See, e.g. Japan's responses to Panel question No. 99, paras. 51-52, and No. 105, para. 84; and
second written submission, para. 424.
381 Both parties agree with the Appellate Body's proposition (Appellate Body Report, US –
Corrosion-Resistant Steel Sunset Review, para. 111), that authorities are required to act with an "appropriate
degree of diligence" in arriving at a "reasoned and adequate explanation" for the likelihood-of-injury
determination. (Korea's second written submission, para. 87; Japan's second written submission, para. 73).
382 We believe this to accord with Korea's statement that, when confronted with "inconsistent and
unsubstantiated replies", the "only obligation [on authorities] is to make sure that the respondents are aware
of the concerns and can address them if they want". (Korea's response to Panel question No. 102, para. 183).

BCI deleted, as indicated [[***]]

7.133. With those considerations in mind, we turn now to Japan 's contention that the Japanese
exporters complied with the KIA's initial request for production capacity data, but were deprived of
an adequate opportunity to respond to the KIA's subsequent concerns, particularly in view of a lack
of clarity over the data-scope that was allegedly sought.383 The parties disagree upon the substance
and timing of what was conveyed by the KIA to the Japanese exporters regarding the KIA's preferred
parameters for the capacity utilization determination. There are four contested interactions between
the Japanese exporters and the KIA in this regard. We address each in turn.
7.134. First, Japan contends that the initial questionnaire sent to th e Japanese exporters dated
3 June 2016 specified that the production capacity data should pertain to the product under
investigation, which was defined explicitly by the KIA in a way that omitted the "excluded products"
and other stainless steel products e.g. sections.384 Korea contends that this initial questionnaire was
a "dumping questionnaire" sent by the "Dumping Investigation Division" as distinct from the injury
proceeding in the sunset review.385 According to Korea, this questionnaire was "not the [KIA's] initial
information request for the production capacity for its injury proceeding".386 For Korea, it is therefore
not the proper "starting point" of the "dialogue" between the Japanese exporters and the KIA on this
matter, which instead commenced on 1 September 2016 as reflected in the " Official Log of
Investigation on Injury ".387 Korea states that " the Panel must not conflate the two separate
proceedings in arriving at its findings"388, and "warns the Panel against placing undue weight on the
initial dumping questionnaire issued by the Dumping Investigation Division".389
7.135. We cannot reconcile Korea's contention with the plain text of the KIA's determination. In the
likelihood-of-injury section, the KIA 's determination relies explicitly on the Japa nese
exporters' responses to the 3 June 2016 questionnaire when referencing their submitted production
capacity and capacity utilization data .390 The notion that the Japanese exporters ' responses to the
3 June 2016 questionnaire have "no direct bearing" upo n the KIA 's likelihood-of-injury
determination is therefore plainly contradicted by the determination itself.391 Japan also makes the
point that the KIA never conveyed to the Japanese exporters that their response to the request for
production capacity and capacity utilization data in the 3 June 2016 questionnaire would not be used
for the KIA 's likelihood-of-injury assessment. 392 Rather, the Japanese exporters understood the
subsequent 21 September 2016 inquiries – the first received from the KIA 's Injury Investigation
Division393 – to be " supplementary questionnaires".394 The Official Log of the KIA 's Injury
Investigation Division similarly describes the 21 September 2016 inquiries as requests for "additional
supplementation".395 This additional context indica tes that the 3 June 2016 questionnaire was

383 Japan's first written submission, paras. 121, 137, and 237 (the latter in the context of "facts
available"); second written submission, paras. 416, 418, and 424; responses to Panel question No. 92,
paras. 5, 9-10, and 12, No. 95, paras. 28-29 and 35, and No. 99, paras. 51-53; comments on
Korea's response to Panel question No. 92, paras. 29 and 39; and responses to Korea's question No. 9,
paras. 23-25, No. 19, paras. 57-59, and No. 27, paras. 81 and 84.
384 Japan's response to Panel question No. 92, para. 2 (referring to Guideline on the scope of the
product under investigation, (Exhibit JPN-41.b), pp. 1-2).
385 Korea's response to Panel question No. 92, paras. 22-27 (referring to Sanyo questionnaire response,
(Exhibit JPN-7.b (BCI)), p. 1).
386 Korea's response to Panel question No. 92, para. 26. (emphasis omitted)
387 Korea's response to Panel question No. 92, paras. 29-33 (referring to Official log of investigation,
(Exhibit KOR-27.b (BCI)), p. 2 (emphasis omitted)). See also ibid. No. 95, paras. 100-103 and 107.
388 Korea's response to Panel question No. 95, para. 102.
389 Korea's comments on Japan's response to Panel question No. 92, p. 9. (emphasis omitted)
390 OTI's final report, (Exhibit KOR-5.c (BCI)), pp. 58 and 87 and fn 80.
391 Korea's response to Panel question No. 95, para. 100.
392 Japan's comments on Korea's response to Panel question No. 92, para. 19.
393 Korea's responses to Panel question No. 92, paras. 28-31, and No. 95, paras. 100-103 and 107-110.
394 Japanese exporters' submission of opinion dated 7 November 2016, (Exhibit KOR-25.b (BCI)), p. 1.
(emphasis added)
395 Official log of investigation, (Exhibit KOR-27.b (BCI)), p. 1 (emphasis added). The KIA's meeting
minutes also described these as "[a]dditional inquiries". (Minutes of meeting dated 21 September 2016,
(Exhibit KOR-26.b (BCI)), p. 1). The KIA later described the 21 September 2016 inquiry as an "additional"
inquiry that sought to verify data that had already been provided by the Japanese producers, which likewise
contradicts the notion that the 21 September 2016 inquiry represented the KIA's first data request for the
injury assessment. (KTC's submission of review to MOSF, (Exhibit KOR-48.b (BCI)), p. 8). We note that Japan
objects to our consideration of exhibit KOR-48.b because, inter alia, it was not disclosed to the interested
parties and the final determination was not amended by this document. (Japan's response to Panel question
No. 95, paras. 33-35). We reject Japan's objection in this regard. This document clearly describes part of the

BCI deleted, as indicated [[***]]

treated as an initial information request of relevance to the injury proceeding. We therefore reject
Korea's contention and proceed on the basis that the 3 June 2016 questionnaire represents the
KIA's initial request for information from the Japanese exporters for production capacity and capacity
utilization data, including for the purposes of its likelihood-of-injury assessment.
7.136. The three Japanese exporters submitted individual responses to the 3 June 2016
questionnaire. The questionnaire was clear in setting the "[p]roduct under [i]nvestigation" as the
product scope for the requested data concerning capacity utilization. 396 As we understand it, this
product scope was not intended to cover the "excluded products" or other stainless steel products.397
Two of the Japanese exporters submitted figures that were, according to their explanation, limited
to the "product under investigation". 398 One of the Japanese exporters, Aichi Steel Corporation
(Aichi), submitted separate figures for stainless steel flat bar and stainless steel round bar 399, and
stated in the section of the questionnaire concerning the product code that [[***]].400 Thus,
Aichi's data comprised both the "prod uct under investigation" and [[***]], which corresponded to
two different figures in its questionnaire response.401
7.137. Following these individual questionnaire responses in July 2016, the Japanese exporters
made a joint submission to the KIA on 1 September 2016. They aggregated the figures from their
individual responses to provide joint figures for their combined annual production capacity and
annual production volume in this submission, together with an aggregated capacity utilization rate.
The joint production capacity figure was [[***]] and the yearly aggregated capacity utilization rates
for 2012-2015 were [[***]], [[***]], [[***]], and [[***]].402 The Japanese exporters explained
that "[o]nly the product under investigation is counted " in these figures, and clarified that "[t] he
products excluded from the anti -dumping measures are excluded ".403 This explanation was,
however, inaccurate with respect to Aichi's data, which covered both the "product under
investigation" and [[***]] as per its earlier individual questionnaire response. Japan explains that
this was an "inadvertent mistake" that the Japanese exporters subsequently corrected in thei r
submission of 20 January 2017404, in which they stated that their aggregated figure included the
Aichi's production capacity for [[***]].405
7.138. We turn now to the second contested interaction. It concerns the inquiries made by the KIA
to the Japanese exporters at a meeting on 21 September 2016.406 These were oral inquiries and the
evidence before us on their substance is contained in a summary in the KIA's minutes of the meeting
and an entry in the KIA Injury Investigation Division's Official Log, together with a follow -up email
on 21 September 2016 from the counsel of the Japanese exporters to the Japanese exporters in
which the counsel (and consequently, the Japanese exporters) memorialized their understanding of

KIA's analysis as it moved towards deciding whether to continue imposing anti-dumping measures. We are
thus not precluded from considering this document, though we note its probative value in these proceedings
may vary between differing contexts.
396 See, e.g. Sanyo questionnaire response, (Exhibit JPN-7.b (BCI)), pp. 6-7. The questionnaire did not
appear to prescribe explicitly what Korea describes as the "source" of the requested data (Korea's comments
on Japan's responses to Panel question No. 93, pp. 18-19, and No. 106, pp. 48 and 50), e.g. peeling facilities
or others, but the questionnaire did request the exporters to "[p]lease explain your method to calculate the
production capacity and the Capacity Utilization Rate" (e.g. Sanyo questionnaire response,
(Exhibit JPN-7.b (BCI)), pp. 6-7). The concepts of "source" (or allocation method) and "scope" were not clearly
delineated by the parties during these proceedings and we understand them to be interrelated, insofar as
parameters on the "scope" of production capacity data can inform the "source" chosen, and parameters on the
"source" for the production capacity data can inform the "scope" being considered. Nonetheless, our evaluation
in this section is cognisant of Korea's distinction in this regard. We address Korea's specific contentions about
the alleged inconsistencies in the "source" of the Japanese exporters' production capacity figures at
paras. 7.159 and 7.164 below.
397 Japan's response to Panel question No. 92, para. 2 (referring to Guideline on the Scope of the
product under investigation, (Exhibit JPN-41.b), pp. 1-2).
398 Sanyo questionnaire response, (Exhibit JPN-7.b (BCI)), p. 7; Daido questionnaire response,
(Exhibit JPN-9.b (BCI)), annex D-3.
399 Aichi questionnaire response, (Exhibit JPN-8.b (BCI)), annex D-3.1.
400 Aichi questionnaire response, (Exhibit JPN-8.b (BCI)), annex C-2.1.
401 Japan's response to Panel question No. 106, para. 86.
402 Japanese exporters' opinion regarding injuries, (Exhibit JPN-10.b (BCI)), p. 15.
403 Japanese exporters' opinion regarding injuries, (Exhibit JPN-10.b (BCI)), p. 15.
404 Japan's comments on Korea's response to Panel question No. 92, paras. 25-26; response to Panel
question No. 106, para. 89.
405 Japanese exporters' response to KTC's additional inquiries, (Exhibit JPN-17.b (BCI)), p. 1.
406 Korea's response to Panel question No. 92, para. 31.

BCI deleted, as indicated [[***]]

what had been requested. 407 This follow -up email also indicates the Japanese
exporters' understanding that "[a]lthough there were multiple questions, [the KIA] said that these
will be sent later by official letter".408 There is no evidence on the record to indicate that the inquiries
were subsequently sent in writing by the KIA . While this email was for internal use and not sent to
the KIA, it appears to have been sent shortly after the meeting on the same date, and the
understanding of the KIA's inquiries reflected therein accords with the understanding reflected in the
Japanese exporters' subsequent joint submission of 7 November 2016.409 There is no record
evidence before us to indicate that the Japanese exporters' understanding of the KIA's inquiries as
reflected in that joint submission was subsequently corrected or clarified by the KIA.410
7.139. According to Korea, the aforementioned evidence of the KIA 's oral inquir ies of
21 September 2016 demonstrates that:
[T]he Korean authorities specifically requested, inter alia, (i) the specific materials that
supports the Japanese respondents ' unsubstantiated allegation that their capacity
utilization is [[***]]% or higher; (ii ) the production capacity of each facility (the
aggregated amount of which constituting the overall production capacity);
(iii) proportion of each steel product that are being produced by the production facilities
against their overall production, etc.411
7.140. Korea argues that " it is n oteworthy that the Japanese respondents confirmed the request
from the Korean authorities by rephrasing these admittedly 'supplementary' questions in their
written response dated 7 November 2016".412 Korea states that, in "defiance" of these inquiries, the
Japanese exporters " did not provide at all data on the overall capacity of their peeling machines,
production and proportion of each SSB product and non-SSB product, or any supporting material to
allow the Korean authorities to verify ".413 Korea describes t he KIA's intention as having been to
"obtain the overall production capacity of the Japanese respondents ' production facilities, and the
proportion of each steel product (including covered, excluded, and non -SSB products) produced by
the facilities against the facilities' overall production".414 Korea also explains that the KIA's inquiries
of 21 September 2016 were intended to obtain "raw data" to verify the overall peeling capacity of
the Japanese exporters and the accuracy and reasonableness of their allocation method with respect
to their submitted production capacity and capacity utilization figures.415
7.141. Japan disputes this characteri zation of the substance of the KIA 's inquiries of
21 September 2016. According to Japan, the KIA " did not make clear the alleged premise that the
production capacity of other products can be converted to that of product under investigation when
making the relevant inquiries", and never clearly indicated that the production capacity data should
cover a product scope beyond the "product under investigation", contrary to the KIA's 3 June 2016
questionnaire.416 According to Japan, the KIA 's 21 September 2016 inquiries sought "only the
'[v]olume of production' (rather than production capacity) of the excluded products and other steel
products", and the Japanese exporters "did not recognize that the [KIA] were inquiring about data
regarding excluded products" for production capacity.417 Japan also disputes Korea's contention that

407 Minutes of meeting dated 21 September 2016, (Exhibit KOR-26.b (BCI)), p. 1 (entitled "Summary of
Opinions of Respondent (Counsel)"); Official log of investigation, (Exhibit KOR-27.b (BCI)), p. 2; and Email
reporting the meeting dated 21 September 2016, (Exhibit JPN-30.b (BCI)), pp. 1-2. See also Korea's response
to Panel question No. 92, paras. 37-38.
408 Email reporting the meeting dated 21 September 2016, (Exhibit JPN-30.b (BCI)), pp. 1-2.
409 Japanese exporters' submission of opinion dated 7 November 2016, (Exhibit KOR-25.b (BCI)), p. 1.
410 Japan's response to Panel question No. 50, para. 275; Korea's response to Panel question No. 92,
paras. 12 and 32.
411 Korea's comments on Japan's response to Panel question No. 92, p. 10 (emphasis original). Korea
also refers to a document prepared by the KIA seven months after this interaction as "confirm[ing]" its
understanding of the substance of the KIA's inquires of 21 September 2016. (KTC's submission of review to
MOSF, (Exhibit KOR-48.b (BCI)), p. 8). Given the timing and nature of this document, we do not understand it
to constitute direct evidence of the substance of the KIA's inquiries, and consider its probative value to be
limited in that regard.
412 Korea's response to Panel question No. 92, para. 38. (fn omitted)
413 Korea's response to Panel question No. 92, para. 39.
414 Korea's comments on Japan's response to Panel question No. 92, p. 9.
415 Korea's response to Panel question No. 95, paras. 87-90, 92-93, 95, 97, 99, and 103.
416 Japan's comments on Korea's response to Panel question No. 92, paras. 39-42; response to Panel
question No. 92, paras. 6-7.
417 Japan's response to Panel question No. 92, paras. 7 and 10.

BCI deleted, as indicated [[***]]

the KIA's inquiries included a request for "raw data" that " would have allowed the [KIA] to verify
any reported figure by the Japanese respondents concerning their total capacity allegedly allocated
to the covered products"418, and emphasizes that the KIA did not convey to the Japanese exporters
that it had concerns about the reliability or product scope of the submitted figures.419
7.142. We have reviewed the evidence on the substance of the KIA 's inquiries of
21 September 2016, and we agree with Japan. The KIA's meeting minutes describes the in quiries
as follows:
Specific data must be presented with respect to the "capacity utilization is equal to or
higher than [[***]]%."
Status of the (new) installation of the facilities for peeling processes, and the production
capacity of each facility should be provided
Volume of production and proportion of each steel grade (STS, carbon steel,
etc.) constituting the total capacity utilization
Volume of production and proportion of each item of STS grade (dumped imports,
excluded goods)
Status of annual production and volume of exports of the excluded goods[.]420
7.143. The KIA's Official Log entry regarding these inquiries states:
Requested additional supplementation: Cases of WTO decisions, specific details of the
capacity utilization of more than [[***]]%, difference in the volume of exports and
imports[.]421
7.144. The 7 November 2016 joint submission containing the Japanese exporters' understanding of
the substance of these inquiries states:
With respect to the capacity utilization in Table 3 on page 20 of the opinion on injury to
industry, please explain whether other products other than stainless steel are produced
through the facilities, which are the basis of calculating capacity utilization, and further
explain the respective proportions of stainless steel and other products that are
produced through the facilities and also respective proportions of special steel and
general-purpose steel out of stainless steel.422
7.145. None of these pieces of evidence demonstrate that the KIA conveyed to the Japanese
exporters that it had redefined its preferred product scope for the capacity utilization rate as
extending beyond the "product under investigation", nor that the Japanese exporters' understanding
in that regard was incorrect . The KIA appears to have requested the production capacity of each
peeling facility, but it is not apparent that the KIA was now interested in a different product scope
to that previously conveyed in the 3 June 2016 questionnaire, nor is it discernible that raw data was
sought to verify the overall peeling capacity of the Japanese exporters and the accuracy of their
allocation method with respect to production capacity. This is simply not apparent from the plain
text of these pieces of evidence, nor can such a request be reasonably inferred from their plain text.
We further note that the Japanese exporters ' understanding of the inquiry as reflected in the ir
7 November 2016 joint submission makes no mention of the "overall" or "total" capacity of peeling
facilities, nor of requests for " raw data" to verify their "total capacity allegedly allocated to the

418 Japan's comments on Korea's responses to Panel question No. 92, paras. 41-44, and No. 95,
para. 70; response to Panel question No. 95, paras. 27-31.
419 Japan's response to Panel question No. 95, paras. 29-30; comments on Korea's response to Panel
question No. 92, paras. 29 and 38-44.
420 Minutes of meeting dated 21 September 2016, (Exhibit KOR-26.b (BCI)), p. 1.
421 Official log of investigation, (Exhibit KOR-27.b (BCI)), p. 1.
422 Japanese exporters' submission of opinion dated 7 November 2016, (Exhibit KOR-25.b (BCI)), p. 1.
As mentioned earlier, this is substantively equivalent to their understanding as reflected in: Email reporting the
meeting dated 21 September 2016, (Exhibit JPN-30.b (BCI)), p. 1.

BCI deleted, as indicated [[***]]

covered products … and how (and if) such capacity was allocated to SSBs".423 Rather, the first two
inquiries (as extracted immediately above) concern "products other than stainless steel" and thus
cannot be said to convey that the intended product scope encompassed the "excluded products" and
stainless steel sections in addition to the "product under investigation" . The third inquiry concerns
the somewhat distinct issue of the "respective proportions of special steel and general-purpose steel
out of stainless steel" and again cannot be said to convey a different product scope to that requested
by the KIA in the 3 June 2016 dumping questionnaire. The Japanese exporters' response to these
inquiries indicates that they continued to operate on the understanding that the "dumped imports"
(i.e. the "product under investigation") formed the basis for determining production capacity, as had
been conveyed by the KIA in the 3 June 2016 dumping questionnaire, and as indicated in table 3 of
the written opinion to which this inquiry refers .424 There is no record evidence before us indicating
that the KIA subsequently clarified that it s inquiries of 21 September 2016 had instead been
intended to cover a broader product scope and to obtain data on "the overall capacity of their peeling
machines, production and proportion of each SSB product and non -SSB product, [and] any
supporting material to allow the Korean authorities to verify".425
7.146. We turn now to the third contested interaction, which pertains to the substance of the
KIA's inquiries of 24 and 30 November 2016. Korea contends that on 24 November 2016 "there was
the public hearing, in which the Japanese respondents were specifically asked to provide outstanding
data concerning, among others, production capacity and utilization", and that on 30 November 2016
the KIA "clarified" this information request in a telephone call, namely that the exporters should
"provide the outstanding information, as indicated during the public hearing, namely the data on
production capacity and utilization of all facilities 'capable ' of producing SSBs" .426 Korea indicates
that this information request was "for the complete peeli ng capacity of the Japanese respondents,
which was the relevant capacity data that could be used to produce the covered SSB products" ,
although we also note Korea's subsequent clarification that the KIA was seeking "the capacity of the
secondary processing as a whole, as opposed to the capacity of the peeling process only".427
7.147. According to Japan, the evidence on the substance of the KIA 's inquiries of 24 and
30 November 2016 makes "no specific reference to excluded products and other steel products"428,
and the plain text of the Official Log entry suggests that the inquir ies were susceptible to varying
understandings.429
7.148. We have reviewed the evidence on the substance of the KIA 's inquiries of 24 and
30 November 2016. While the KIA did make a request for "data on production capacity and capacity
utilization" at the public hearing430, the inquiry is formulated in imprecise terms and the KIA seems
to have requested that the capacity utilization data on the "dumped imports" be "differentiated"
from the "products not covered" i.e. the excluded products. 431 According to an entry in the
KIA's Official Log, i n a subsequent telephone call on 30 November 2016 the KIA instructed the
Japanese producers "to submit the materials requested by the commissioners at the public hearing"
and "[e]xplained that the materials requested by the standing commissioners in particular relate to
the production capacity and capacity utilization including the production capacity of production
facilities capable of manufacturing STS bars". 432 Again, this evidence on the substance of the
inquiries suggests that they were somewhat imprecise. Korea focuses on the term "capable" in the
KIA's Official Log entry for this telephone call , and also suggests that the KIA was requesting data
for "all" fa cilities433, which Korea characterizes as a request for the "Japanese respondents' total

423 Korea's response to Panel question No. 95, paras. 87-88.
424 Japanese exporters' submission of opinion dated 7 November 2016, (Exhibit KOR-25.b (BCI)), p. 1
("Status of Respondents Production of Dumped Imports"). We note that the Japanese exporters provided
figures concerning both the "product under investigation" and "excluded products" where they understood this
to have been requested by the KIA. (Ibid, p. 5).
425 Korea's response to Panel question No. 92, para. 39.
426 Korea's response to Panel question No. 92, para. 42.
427 Korea's response to Panel question No. 92, para. 48; comments on Japan's response to Panel
question No. 92, pp. 12-13.
428 Japan's response to Panel question No. 92, para. 11.
429 Japan's comments on Korea's response to Panel question No. 92, para. 47; response to
Korea's question No. 27(iii), para. 82.
430 Minutes of public hearing (24 November 2016), (Exhibit KOR-19.b (BCI)), pp. 35-36.
431 Minutes of public hearing (24 November 2016), (Exhibit KOR-19.b (BCI)), p. 30.
432 Official log of investigation, (Exhibit KOR-27.b (BCI)), p. 5.
433 Korea's responses to Panel question No. 92 para. 42, and No. 95, para. 104; second written
submission, para. 211.

BCI deleted, as indicated [[***]]

peeling capacity and underlying raw data ".434 Given its lack of precision, we are unwilling to read
additional words and meaning into this evidence that are not apparent on its face.
7.149. Moreover, as mentioned, the KIA appears to have requested that the relevant data
concerning the "dumped imports" be "differentiated" from the "excluded products" 435, which would
appear to accord with the KIA's approach in its 3 June 2016 questionnaire that set the "[p]roduct
under [i]nvestigation" as the basis for the requested data concerning capacity utilization.436 We also
consider it noteworthy that there is an absence in this evidence of any express mention that the KIA
had redefined its preferred parameters for the capacity utilization rate as extending beyond the
"product under investigation". Further, it is noteworthy that this evidence does not indicate that the
KIA conveyed to the Japanese exporters that their submis sion of production capacity figures, for
which "[o]nly the product under investigation is counted "437, were based on incorrect parameters
and did not constitute data.
7.150. Korea contended that the parameters for production capacity in the information requests
conveyed through the "dialogue" between the KIA and the Japanese exporters beginning in
September 2016 were "exactly the same" as those conveyed to the applicants in their written injury
questionnaire.438 We have reviewed the injury questionnaire issued to th e applicants in writing . It
provides a counterpoint to the lack of precision in the documentary evidence before us concerning
what was conveyed to the Japanese exporters in the so-called dialogue of oral exchanges. In
particular, the injury questionnaire i ssued to the applicants in writing shows the tables that they
were requested to complete, including yearly breakdowns for production capacity, production
volume, self-consumption, change rates, and capacity utilization, as well as facility breakdowns of
capacity utilization covering flux, average diameter, hours per day, production days per year, daily
production volume, steel bar production, and SUS production.439 The questionnaire sent by the KIA
to the applicants provided the explicit guidance that "if th e production facility for domestic like
products can be used to produce products other than the dumped imports, provide specific grounds
for calculation of each production capacity".440 It further requested the applicants to (a) "provide the
methods to esti mate the potential production days or months in light of non -operating days or
maintenance periods"; (b) "describe the planned periods and production capacities of the facilities
to be added or reduced" if "your company is planning to build up or downsize facilities for domestic
like products"; and (c) "[d]escribe whether your company's capacity utilization is optimum compared
to average capacity utilization in the same industry". 441 Thus, the level of precision with which the
KIA expressed its requests for the applicants' capacity utilization information stands in contrast with
the documentary evidence surveyed above on the substance of the KIA's oral requests for the
Japanese exporters' capacity utilization information. For instance, Korea focuses on the KI A's
apparent use of terms like "capable" and "specific data" in this documentary evidence of the oral
dialogue with the Japanese exporters, but these terms are far less precise than the detailed written
request issued to the applicants. Our comparison between the KIA's written information request to
the applicants and the evidence on the KIA's oral information requests to the Japanese export ers
confirms our decision not to read additional words and meaning into the documentary evidence of
the oral dialogue that are not apparent on its face.
7.151. We turn now to the fourth contested interaction, which pertains to the substance of the
KIA's inquiries of 11 January 2017. These were oral inquiries made at a meeting. The only evidence
before us on their substance is the KIA's Official Log entry for this meeting, which states:
Requested the submission of supplemental materials (by 20 January) [.]
Status of peeling machines and production capacity of each peeling machine; detailed
grounds for the calculation of production capacity; annual and daily volume of

434 Korea's response to Panel question No. 95, para. 110.
435 Minutes of public hearing (24 November 2016), (Exhibit KOR-19.b (BCI)), p. 30.
436 See, e.g. Sanyo questionnaire response, (Exhibit JPN-7.b (BCI)), pp. 6-7. See also Korea's response
to Panel question No. 9(a)(i)-(ii) concerning how the term "dumped imports" should be understood in the
underlying review.
437 Japanese exporters' opinion regarding injuries, (Exhibit JPN-10.b (BCI)), p. 15. As we have
mentioned earlier, the Japanese exporters' explanation was incorrect on this point regarding Aichi's data.
438 Korea's comments on Japan's comments on the Interim Report, p. 22; comments on the
Interim Report, para. 91; and response to Panel question No. 95, paras. 91-95.
439 Injury questionnaire response, (Exhibit KOR-72.b (BCI)), p. 12.
440 Injury questionnaire response, (Exhibit KOR-72.b (BCI)), p. 12.
441 Injury questionnaire response, (Exhibit KOR-72.b (BCI)), p. 13.

BCI deleted, as indicated [[***]]

production and end -term inventory of the dumped imports; status of classification of
special steel types[.]442
7.152. Korea characterizes this as a request " for the Japanese respondents' total peeling capacity
and underlying raw data ", but explains that "the Japanese respondents again provided the same
capacity number on the covered and excluded SSBs with no underlying data".443 With respect to the
reference to the "production capacity of each peeling machine", Korea states that this meant "all"
peeling machines 444, and this request was " obviously to obtain, again, the Japanese
respondents' overall production capa city, as each peeling machine 's production capacity should
collectively add up to the overall production or peeling capacity of the Japanese respondents ".445
Korea notes that the Japanese exporters " themselves argued and provided the reasons as to why
'peeling capacities' must be used as the production capacity "446, and therefore "in order to confirm
whether and how the respondents had allocated their peeling capacity to the covered SSBs, the
Korean authorities requested information on their total peeling capacity".447
7.153. Japan contends that "there was no specific reference to excluded products and other steel
products" in these inquiries. 448 On the contrary, the reference to the "dumped imports" in this
evidence "again indicates that the focus was on the product under investigation", and "[n]othing in
the phrase 'dumped imports ' would give the Japanese Respondents any reason to believe the
authorities were asking about anything other than the product under investigation".449 With respect
to the reference to the "production capacity of each peeling machine", Japan states that the Japanese
exporters " understood that the product scope for the data concerning peeling machines is the
product under investigation" and had not been instructed otherwise by the KIA.450
7.154. We have reviewed the evidence on the substance of the KIA's inquiries of 11 January 2017.
In its prior submission dated 8 December 2016, the Japanese exporters had contended that " the
production capacity of the peeling process is the production capacity of the product under
investigation in this case".451 Korea indicates that the KIA's inquiries of 11 January 2017 regarding
the " production capacity of each peeling machine " followed on from the Japanese
exporters' contention on this point.452 We recall that, pursuant to Korea's understanding, "[t]he only
obligation [on authorities] is to make sure that the respondents are aware of the concerns and can
address them if they want ".453 Nothing in the Official Log entry for the 11 January 2017 meeting
suggests to us that the KIA made sure that the Japanese exporters were aware of the concern that
"what mattered for the [KIA] … was such reasonably convertible capacity upon removal of the duties
and not the capacity currently and specifically allocated to the covered SSB products in the POR".454
Specifically, t here is no indication in the available evidence that the KIA sought to correct the
Japanese exporters ' reliance on the peeling process production capacity for the "product under
investigation" in particular. If anything, the KIA 's request on 11 January 2017 for the "annual and
daily volume of production … of the dumped imports" could warrant the opposite inference, insofar

442 Official log of investigation, (Exhibit KOR-27.b (BCI)), p. 6.
443 Korea's response to Panel question No. 95, paras. 105-106 and 110. See also ibid. No. 92,
paras. 47-48.
444 Korea's response to Panel question No. 92, para. 47.
445 Korea's response to Panel question No. 95, para. 224.
446 Korea's response to Panel question No. 95, para. 223.
447 Korea's comments on Japan's response to Panel question No. 105, pp. 44-45.
448 Japan's response to Panel question No. 92, para. 11.
449 Japan's response to Panel question No. 92, para. 11.
450 Japan's response to Panel question No. 105, paras. 83-84; comments on Korea's response to Panel
question No. 105, paras. 180-181.
451 Japanese exporters' post-hearing opinion, (Exhibit JPN-16.b (BCI)), pp. 1-2 (emphasis added).
We observe that the Japanese exporters made certain confusing remarks regarding the coverage of the
"excluded products" in their production capacity data in the 8 December 2016 submission. What is clear,
however, is that they were operating on the basis that the production capacity of the "product under
investigation" was the preferred parameter, as reflected in their description of the question being asked and
the subsequent responses. (Ibid. pp. 1-3). It is also clear that they were not operating on the understanding
that the production capacity of other stainless steel products should be covered, nor that the preferred
parameter comprised "the overall capacity of the production facilit[ies] that can be readily allocated to produce
SSB products upon demand". (Korea's response to Panel question No. 44).
452 Korea's comments on Japan's response to Panel question No. 105, pp. 44-45; response to Panel
question No. 105, paras. 221-223.
453 Korea's response to Panel question No. 102, para. 183.
454 Korea's response to Panel question No. 105, para. 225. (emphasis added)

BCI deleted, as indicated [[***]]

as the exporters might expect the production volume data and the production capacity data to have
corresponding product scopes.455
7.155. Subsequent to the 11 January 2017 inquiries, the KIA released the OTI's revised interim
report. Korea seems to suggest that, upon seeing that the KIA had opted for the ISSF production
capacity data with a broader product scope, the Japanese exporters could have submitted "an
updated number for the updated scope (i.e., allocated to both the covered an d excluded
products)".456 Japan rejects Korea's suggestion that the Japanese exporters could have submitted
updated data at that point because they were never made aware of the broader product scope and
persisted in their understanding "that the product scope of the required production capacity was the
product under investigation".457
7.156. We have reviewed the version of the OTI 's revised interim report that was made available
to the Japanese exporters. 458 The KIA explicitly cited the Japanese exporters ' individual responses
to production capacity portion of the 3 June 2016 questionnaire but refrained from mentioning that
their figures had been rejected due to an incorrect product scope and a failure to provide raw data.459
We recognize that there are some elements from which it could be divined that the KIA had opted
for a different product scope for the production capacity data vis-à-vis what the KIA had specified in
the 3 June 2016 questionnaire. 460 However, we see nothing in Article 11.3, nor in the
Anti-Dumping Agreement more generally, that suggests that interested parties are expected to
engage in back -calculations and inferential reasoning, or piece together a puzzle, to derive the
parameters of the data and verifying material that an authority is seeking. Indeed, in general terms,
Korea itself makes the point that: "[c]learly, all likelihood-of-injury analysis by the KTC or OTI was
conducted on the basis of the covered products" and "[p]roducts other than the covered products –
excluded products – were never a part of the review, so it is safe to suppose that any analysis or
finding made by the KTC in the context of its determination was exclusively focused on the covered
product or covered product market". 461 In light of this general approach and unders tanding in the
KIA's likelihood-of-injury determination, we would expect the KIA to instruct the interested parties
directly and clearly where it intended to deviate from that approach, including at an appropriate
stage in the review such that the interest ed parties could respond accordingly. With these
considerations in mind, w e accept Japan 's point that the OTI 's revised interim report did not
adequately convey to the Japanese exporters the data and materials which Korea now explains were
sought by the KIA such that the Japanese exporters were made "aware of the concerns and [could]
address them if they want".462
7.157. Korea argues that, regardless of any issues concerning the Japanese exporters' submissions,
the only question before us is whether "it was unreasonable to rely on the ISSF data"463, which Korea
contends " was objectively more appropriate for Korea 's determination as it contained Japanese
macro data".464 Japan responds that, as evidence of country-wide production capacity, the Japanese
exporters' data was the most probative465, and the ISSF data was not the most reliable since it was
"not tailor -made for the sunset review at issue ".466 We find Korea 's distinction between the
company-specific figures of the Japanese exporters and the country-wide ("macro") figures of the

455 That is, in the absence of any indication otherwise from the authorities. See also Korea's response to
Panel question No. 9(a)(i)-(ii) concerning how the term "dumped imports" should be understood in the
underlying review. In view of our ultimate conclusion in this section, we need not express a view in the
abstract on the parties' arguments and rebuttals concerning the requisite degree of alignment under
Article 11.3 between the product scope of the numerator and the product scope of the denominator when an
authority decides to generate a capacity utilization rate for likelihood-of-injury assessments in sunset reviews.
456 Korea's response to Panel question No. 94, para. 83. See also Korea's response to Panel question
No. 97, para. 127; and second written submission, paras. 211-212 (in which the revised interim report is listed
amongst the "continuous and detailed requests made by the [KIA] for the complete and accurate data").
457 Japan's comments on Korea's response to Panel question No. 97, para. 80.
458 OTI's revised interim report, (Exhibit JPN-1.b).
459 OTI's revised interim report, (Exhibit JPN-1.b), p. 39 and fn 54.
460 OTI's revised interim report, (Exhibit JPN-1.b), fns 48 and 49.
461 Korea's response to Panel question No. 9(a)(i).
462 Korea's response to Panel question No. 102, para. 183.
463 Korea's second written submission, para. 137. See also Korea's comments on Japan's response to
Panel question No. 96, p. 26.
464 Korea's first written submission, paras. 203, 205, and 224.
465 Japan's responses to Korea's question No. 6, para. 17, and No. 22, para. 65.
466 Japan's comments on Korea's response to Panel question No. 93, para. 51; response to
Korea's question No. 10, paras. 27-28.

BCI deleted, as indicated [[***]]

ISSF unconvincing in the circumstances of the present case . The three Japanese exporters that
submitted figures on their production capacity represented [[***]] of the ISSF 's country-wide
production capacity data, and the ISSF structured its data in a company-specific way.467 Moreover,
Korea's description of the ISSF data as being the "starting point" does not accord with the KIA's own
description of its approach, in which it examined the Japanese exporters' data, found it to be lacking,
and then "[u]nder such circumstances, the investigating authorities reviewed the data from the ISSF
and used it".468
7.158. At this juncture, it is useful to summari ze our evaluation thus far. We consider that the
3 June 2016 questionnaire represents the KIA 's initial request for information from the Japanese
exporters for production capacity and capacity utilization data, including for the purposes of its
likelihood-of-injury assessment. This questionnaire was clear in setting the "[p]roduct under
[i]nvestigation" as the preferred product scope for the requested data concerning capacity utilization.
Ultimately, the KIA preferred a broader product scope encompassing the "excluded products" and
certain other products with a view to identifying "the overall capacity of the production facilit[ies]
that can be readily allocated to produce SSB products upon demand"469, i.e. "secondary processing
as a whole".470 Korea also explains that "[f]or SSB production capacities, given the high-adaptability
of the SSB production facilities, the data must be specific and detailed enough to allow verification
of the accuracy, veracity, reliability, and reasonableness of the submitter 's allocation method".471
Thus, according to Korea, the KIA also required "supporting materials that would have allowed the
[KIA] to verify any reported figure by the Japanese respondents concerning their total capacity
allegedly allocated to the covered products … and how (and if) such capacity was allocated to SSBs"
in order to "corroborate[] the accuracy and reasonableness of the reported production capacity
figure".472 Korea's position is that "[d] uring the review, the [KIA] posed several supplemental
questions to the Japanese respondents for their da ta on production capacity covering not only the
product under investigation, but also their total secondary processing capacity"473, together with the
raw data that would have allowed verification. 474 We reject this position because the evidence on
the substance of the KIA 's inquiries of 21 September 2016, 24 and 30 November 2016, and
11 January 2017, as well as the OTI 's revised interim report, do not sustain the proposition that
such requests were made. Rather, based on the availab le evidence, we agree with Japan 475 that,
after responding to the 3 June questionnaire (which specified that the production capacity data
should pertain to the "product under investigation"), the Japanese exporters were not made aware
that, in Korea 's words, "what mattered for the [KIA] … was such reasonably convertible capacity
upon removal of the duties and not the capacity currently and specifically allocated to the covered
7.159. Contrary to Korea 's argument477, therefore, we cannot fault the Japanese exporters for
failing to submit data and materials of which they were not made aware based on the available
evidence before us. However, with respect to the figures that the Japanese exporters did in fact
provide, Korea additionally argues that they contained inconsistencies, inaccuracies, and mistakes

467 ISSF statistics, (Exhibit KOR-20.b (BCI)).
468 KTC's submission of review to MOSF, (Exhibit KOR-48.b (BCI)), p. 9. (emphasis added)
469 Korea's response to Panel question No. 44. See also responses to Panel question No. 54 and No. 92,
para. 19; and comments on Japan's response to Panel question No. 92, p. 9.
470 Korea's comments on Japan's response to Panel question No. 92, p. 13. See also Korea's second
written submission, paras. 221-222; and response to Panel question No. 54.
471 Korea's response to Panel question No. 95, para. 90; comments on Japan's response to Panel
question No. 92, p. 12.
472 Korea's response to Panel question No. 95, paras. 87 and 89.
473 Korea's response to Panel question No. 95, para. 89 (emphasis added). See also Korea's responses
to Panel question Nos. 50(a) and 50(b)(iii); No. 92, paras. 48-49; and second written submission,
paras. 210-212.
474 Korea's response to Panel question No. 95, paras. 110-111; second written submission,
paras. 211-212.
475 Japan's second written submission, paras. 416, 418, and 424, and fn 502; responses to Panel
question No. 92, paras. 5, 9-10, and 12, No. 95, paras. 28-29 and 35, and No. 99, paras. 51-53; comments on
Korea's response to Panel question No. 92, paras. 29 and 39; and responses to Korea's question No. 9,
paras. 23-24, and No. 27, paras. 81 and 84.
476 Korea's response to Panel question No. 105, para. 225. (emphasis added)
477 Korea's responses to Panel question No. 50(b)(i), No. 53, No. 92, para. 39, and No. 95, para. 95;
comments on Japan's response to Panel question No. 106, p. 50; second written submission, paras. 194
and 211-212; and comments on Japan's response to Korea's question No. 19, p. 41.

BCI deleted, as indicated [[***]]

which called into question the credibility and reliability of the Japanese exporters ' submissions.478
The discrepancies identified by Korea include differing calculation methodologies amongst the
Japanese exporters, shifting calculation methodologies during the review, and changing explanations
of the product scope of the submitted production capacity figure of [[***]] tonnes.479 Korea states
that the KIA " properly assessed the submissions of the Japanese respondents, identified
inconsistencies, and reached adequate and reasoned conclusions about the lack of reliability of the
information provided given these inconsistencies".480 For Korea, "if respondents provide inconsistent
and unsubstantiated replies, the authorities are entitled to draw certain conclusions about the
reliability of the information provided without having to seek to resolve these inconsistencies in order
to make the case of the respondent s".481 In that regard, Korea asserts that the existence of these
inconsistencies demonstrates that the KIA was not legally required to engage further with the
"unsubstantiated numerical allegations" in the Japanese exporters' data482, and accordingly, Japan
has failed to meet its burden of proof that the KIA acted inconsistently with Article 11.3 by rejecting
the Japanese exporters' data.483
7.160. We address, in turn, each of the three general types of errors identified by Korea. 484 Our
examination involves considering th e parties' arguments and the underlying exhibits to ascertain
whether an "unbiased and objective" investigating authority could have reached the conclusion that
these errors undermined the reliability and credibility of the Japanese exporters ' submissions, such
that the authority would have no need to engage further with those submissions in conducting its
review under Article 11.3.
7.161. First, Korea points out that the Japanese exporters' description of the product scope of their
production capacity data varied despite continuously submitting the same figure. 485 According to
Japan, the discrepancy was an inadvertent error that arose from how the three Japanese exporters
aggregated the figures from their individual questionnaire responses, and corrected the error in their
20 January 2017 submission.486 Japan also notes that the KIA never raised questions or concerns
about this matter during the review. 487 We have set out relevant background above at
paragraphs 7.136-7.137. It is clear that the discrepancy emerged upon the Japanese

478 Korea's first written submission, paras. 214-219 and 227; second written submission, paras. 194,
212, and 214; responses to Panel question Nos. 52(a) and 52(b)(ii), No. 92, para. 44, No. 94, paras. 76-81
and 84, No. 97, paras. 123 and 126, and No. 102, paras. 179 and 182-183; comments on Japan's responses to
Korea's question No. 6, pp. 16-17, No. 22, p. 46, No. 29, p. 61, and No. 30, p. 66; and comments on
Japan's responses to Panel question "General Observations", p. 4, question No. 94, pp. 20-21, and No. 98,
pp. 30-32. Korea contended that, even if the KIA did fail to provide the underlying rationale of its inquiries to
the Japanese exporters, this did not justify their constant failure to provide the information specifically
requested by the KIA. (Korea's comments on Japan's response to Korea's question No. 19, p. 41).
479 See, e.g. Korea's first written submission, paras. 324-332; second written submission, para. 194;
and responses to Panel question No. 94, paras. 76-81, and No. 95, paras. 96-97.
480 Korea's comments on Japan's response to Panel question No. 102, p. 39.
481 Korea's response to Panel question No. 102, para. 183.
482 Korea stated that (a) "the relevant law and accepted practice provide that only substantiated
arguments may require an examination and response by investigating authorities" (Korea's comments on
Japan's response to Korea's question No. 10, p. 23); (b) there does not exist a "legal requirement going
beyond reaching a reasonable conclusion of the accuracy and reliability of the information provided as part of
its totality of the evidence before it" (Korea's response to Panel question No. 102, para. 180); and (c) the
"authorities properly assessed that these inconsistencies existed and reached reasonable conclusions about the
lack of reliability of the information provided given these inconsistencies". (Ibid. para. 179 (emphasis
original)). See also Korea's responses to Panel question No. 92, paras. 44 and 46, No. 94, para. 78, No. 97,
paras. 121-123, No. 100, paras. 170-172, and No. 102, paras. 179-180 and 182-184; comments on
Japan's responses to Korea's question No. 10, p. 23, No. 11, p. 24, No. 19, p. 41, No. 27(iii), pp. 55-56,
and No. 29, pp. 61-62; and comments on Japan's responses to Panel question "General Observations", pp. 4-5,
question No. 93, pp. 17-18, No. 94, p. 22, and No. 97, p. 28. See generally Korea's response to Panel
question No. 3(a).
483 Korea's comments on Japan's responses to Panel question "General Observations", p. 5,
question No. 95, pp. 24-25, No. 97, p. 28, and No. 106, pp. 46-47; comments on Japan's response to
Korea's question No. 10, p. 23.
484 See e.g. Korea's response to Panel question No. 94, paras. 76-81.
485 Korea's responses to Panel question No. 92, paras. 44-46, and No. 94, paras. 67 and 78; comments
on Japan's responses to Panel question No. 92, p. 16, No. 93, p. 18, No. 95, p. 24, and No. 106, pp. 46-50;
and comments on Japan's response to Korea's question No. 27(iii), pp. 55-56.
486 Japan's response to Panel question No. 106, paras. 86-87; comments on Korea's response to Panel
question No. 92, paras. 25-26.
487 Japan's response to Panel question No. 106, para. 90; comments on Korea's response to Panel
question No. 92, para. 27.

BCI deleted, as indicated [[***]]

exporters' aggregation of their figures, and they ultimately provided an accurate description of their
intended product scope in the 20 January 2017 submission. Accordingly, we do not accept that an
"unbiased and objective" investigating authority could conclude that this discrepancy undermined
the overall credibility and reliability of the production capacity figures submitted by the Japanese
exporters, such that the authority could decline to engage with them.
7.162. Second, Korea points out that the Japanese exporters' description of their methodologies for
calculating their capacity utilization was inconsistent during the review, whilst continuously
submitting the same figure. 488 Japan responds that the matters cited by Korea pertain to an
"inadvertent mistake" or a "slight clarif[ication] [of an] explanation" and have no meaningful
implications489, and moreover, the KIA never expressed concern over these "minor discrepancies".490
From our review of the parties ' arguments and the underlying exhibits, we cannot see how an
"unbiased and objective" investigating authority could find that the matters raised by Korea
undermined the overall credibility and reliability of the Japanese exporters ' production capacity
figures such that the authority could decline to engage with them. With respect to Daido Steel
Corporation (Daido)'s alleged shift from relying on [[***]] to "peeling" as the basis for its production
capacity calculation491, it is apparent that the Japanese exporters considered peeling to be the final
stage in the secondary processing for the product under investigation.492 Thus, we agree with Japan
that there is no inherent tens ion between these descriptions. 493 With respect to Aichi 's shift from
referencing the [[***]] process to the [[***]] process, Korea is correct to point out the discrepancy
and Japan concedes that this change represented an "inadvertent mistake" . This mistake went
uncorrected by the Japanese exporters, but equally, nothing before us suggests that the KIA inquired
into this discrepancy. We cannot see how an "unbiased and objective" investigating authority could
conclude that the mere existence of t his kind of shortcoming in an interested party 's submission
would warrant its immediate rejection as unreliable.494 We accept Korea 's point that Aichi was
including a [[***]]495, but the Japanese exporters explained in their submission of 20 January 2017
that Aichi's data included [[***]].496
7.163. Third, Korea points out that the Japanese exporters' description of their methodologies for
calculating their capacity utilization were different from one another, despite peeling being a "defined
stage of manufacturing" .497 Japan does not dispute that the process of manufacturing SSB s is
standardized, but contends that the " the specific details of the secondary processing method may
vary from company to company ", which in turn explains the differences between the Japanese
exporters' submissions.498 It is apparent that, whilst the KIA requested the Japanese exporters to
specify their calculation methodology in their individual responses to the 3 June 2016 questionnaire,
it did no t specify or request a uniform methodology at that juncture or subsequently during the

488 Korea's first written submission, paras. 217 and 330-332; opening statement at the first meeting of
the Panel, para. 44; responses to Panel question No. 50(b)(ii) and No. 94, paras. 76-77, 80, and 84-85; and
comments on Japan's responses to Panel question No. 95, p. 24, and No. 106, pp. 48-50.
489 Japan's second written submission, paras. 428-429; response to Panel question No. 50, para. 292;
and comments on Korea's response to Panel question No. 94, paras. 59-61 and 63-65.
490 Japan's response to Panel question No. 50, para. 292; comments on Korea's response to Panel
question No. 94, para. 65.
491 Korea's first written submission, paras. 217 and 330; opening statement at the first meeting of the
Panel, para. 44; and responses to Panel question No. 50(b)(ii), and No. 94, para. 77.
492 Japanese exporters' post-hearing opinion, (Exhibit JPN-16.b (BCI)), pp. 1-2.
493 Japan's second written submission, para. 428; comments on Korea's response to Panel question
No. 94, para. 60.
494 It is well established that investigating authorities have a duty to seek out relevant information and
to evaluate it in an objective manner. (Appellate Body Report, US – Anti-Dumping and Countervailing Duties
(China), para. 344 (referring to Appellate Body Report, US – Corrosion Resistant Steel Sunset Review,
para. 199; and US – Wheat Gluten, para. 53)). The present shortcoming is more akin to a typographical or
clerical error than an analytical mistake. We also distinguish the present shortcoming from instances where
interested parties' arguments are unsubstantiated or irrelevant, such that only limited or indeed no substantive
consideration may be warranted. To dismiss the whole of an interested party's submissions on the basis of
such an "inadvertent mistake" would be to fail to meet the duty to seek relevant information and assess it in
an objective manner.
495 Korea's response to Panel question No. 94, para. 77.
496 Japanese exporters' response to KTC's additional inquiries, (Exhibit JPN-17.b (BCI)), p. 1.
497 Korea's first written submission, paras. 216 and 220; second written submission, paras. 146-148;
and response to Panel question No. 94, paras. 65-66, 74, 76, and 79-81.
498 Japan's first written submission, para. 129; second written submission, paras. 425 and 478-482.

BCI deleted, as indicated [[***]]

review.499 Korea explains that this was unnecessary because the standardized nature of the peeling
process meant that there can be no differences. 500 That may be the case, but there is no evidence
before us indicating that, prior to the revised interim report, the KIA communicated this
understanding to the Japanese exporters or conveyed its concerns regarding the use of differing
calculation methodologies.501 Thus, the KIA did not inquire as to whether the apparent differences
were meaningful and reflected actual discrepancies amongst the Japanese exporters ' respective
approaches, or whether they were based on the same standardized approach but expressed in
different terminology or tailored to the particular circumstances of each exporter. Subsequent to the
revised interim report , it is not apparent to us whether or how the KIA took account 502 of the
Japanese exporters' explanation503 that the differences were a function of company-specific factors.
Thus, there is no evidence to suggest that t he KIA investigated whether these differences were
meaningful. Moreover, the KIA neither specified a uniform methodology , nor conveyed concerns
about these differences prior to the revised interim report . In these circumstances, we cannot see
how an "unbiased and objective" investigating authority could conclude that these differing
calculation methodologies would necessarily call into question the reliability and credibility of the
Japanese exporters' submissions.
7.164. In summary, we do not consider that the mistakes, inconsistencies, and inaccuracies
identified by Korea in the Japanese exporters ' submissions – individually or taken together – could
have led an "unbiased and objective" investigating authority to find that the overall reliability of the
Japanese exporters' submissions was undermined such that no further consideration or engagement
would be warranted. Rather, after having specified in the the 3 June 2016 questionnaire that the
"[p]roduct under [i]nvestigation" was the preferred product scope for the requested data concerning
capacity utilization, we consider that the KIA had a duty to make the Japanese exporters aware of
the perceived shortcomings in their responses, such as conveying that the KIA's chosen parameters
had changed, that the Japanese exporters' figures were based on an incorrect set of parameters, or
that "raw data" was required to verify their allocation method.
7.165. Finally, Korea submits that the "Japanese respondents committed mistakes in virtually every
submission made to the Korean authorities", which "suggests that the mistakes were not
inadvertent".504 According to Korea, this indicate s that the Japanese exporters' participation in the
sunset review had not been in good faith .505 Korea requests the Panel to avoid an outcome that
would reward the unfaithful participation of interested parties in investigations and reviews,
particularly in view of the adverse systemic implications of such an outcome.506

499 Korea's response to Panel question No. 94, paras. 64 and 66; comments on Japan's response to
Panel question No. 94, p. 21: "there was simply no need for the Korean authorities to define a reporting
methodology other than to request the respondents' peeling data".
500 Korea's response to Panel question No. 94, para. 66; comments on Japan's response to Panel
question No. 94, p. 21.
501 Specifically, we are unable to ascertain any reference to a concern over the apparent differences in
calculation methodologies in the KIA's inquiries of 21 September 2016, 24 and 30 November 2016, and
17 January 2017. (See paras. 7.137-7.155 above; see also Japan's comments on Korea's response to Panel
question No. 94, para. 66).
502 None of the KIA's subsequent analyses address the matter of whether there might be
company-specific reasons for variations in calculation methodologies. Rather, they simply state that "the
stainless steel bar manufacturing process cannot be different from one another", without examining whether
variations amongst the standardized process are possible and applicable in the present review. (OTI's final
report, (Exhibit KOR-5.c (BCI)), pp. 57-58 and 87; KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 19; and
KTC's submission of review to MOSF, (Exhibit KOR-48.b (BCI)), p. 8).
503 For the description of their company-specific approaches, see Japanese exporters' response to
KTC's additional inquiries, (Exhibit JPN-17.b (BCI)), pp. 1-2. For their explanation that the differences are a
function of company-specific factors, see Japanese exporters' opinion regarding OTI's revised interim report,
(Exhibit JPN-18.b), p. 1.
504 Korea's comments on Japan's response to Panel question No. 106, p. 49. (emphasis original)
505 Korea referred to the Japanese exporters' "blatantly unfaithful participation in the underlying review"
(Korea's comments on Japan's response to Panel question No. 106, p. 49). See also Korea's comments on
Japan's response to Panel question "General Observations", p. 4; comments on Japan's response to Panel
question No. 92, p. 16; and comments on Japan's response to Panel question No. 106, p. 49.
506 Korea "warn[ed] the Panel against the destructive implication that would be triggered by rewarding
the Japanese respondents for their blatantly unfaithful participation in the underlying review due to some room
for improvement that the Panel has apparently identified from the Korean authorities' conduct of review"
(Korea's comments on Japan's response to Panel question No. 106, p. 51 (emphasis original)).

BCI deleted, as indicated [[***]]

7.166. As a matter of principle, we consider that, when confronted with evidence that an interested
party is acting in ba d faith through e.g. manipulating or falsifying data, wilfully mischaracteri zing
data, or abusively drawing out an investigation, an authority is not precluded from drawing adverse
inferences from those procedural circumstances. Such inferences may be drawn in the context of an
authority's recourse to the "facts available".507 Such inferences may also be drawn in other contexts
when an authority is considering the reliability of certain evidence. 508 We therefore accept
Korea's premise that an authority's engagement with, and consideration of, the submissions of an
interested party can be attenuated by adverse inferences drawn from evidence of that
party's "blatantly unfaithful participation" and bad faith conduct in an investigation.509
7.167. However, it is not for panels in WTO dispute settlement to draw adverse inferences from
such procedural circumstances as part of a process of weighing the reliability and probative value of
the evidence presented in underlying investigations. As Korea explained to the Panel regarding
certain evidence, "[t]he Panel is not the trier of fact in this dispute and is not to determine whether
it would have given the same weight or have adopted the same reading as the authorities based on
these facts ".510 Instead, pursuant to Article 17.6(i) of the Anti -Dumping Agreement, the
authorities' determination is the lens through which panels examine factual matters. Korea has not
drawn our attention to anything in the KIA 's determination, nor any contemporaneous record
material, indicating that the KIA found there to be bad faith conduct on the part of the Japanese
exporters which, in turn, informed its evaluation of the facts .511 We note that the KIA referred to a
lack of cooperation by the Japanese exporters in the dumping phase, as well as the submission of
"edited data on production capacity" and a failure to pro vide "objective and reliable material"
supporting their submissions on production capacity.512 However, these references do not indicate a
finding of bad faith or anything analogous. Given the seriousness of such an allegation, we would
expect to see clear and unambiguous evidence of a finding of bad faith in the determination or other
contemporaneous documents.
7.168. Korea also argues that Japan was acting in bad faith in the present WTO proceedings.513 This
is a serious allegation. According to Korea, Japan made certain misleading arguments and
misrepresentations of facts before the Panel. 514 Korea suggested that Japan's misrepresentations
did not appear to be inadvertent515, and characterized certain aspects of Japan's case as a "hoax".516
Korea requests the Panel to avoid an outcome that would result in Japan's misrepresentations being
rewarded in the dispute.517
7.169. We have carefully reviewed Korea's allegations on this matter. The only evidence that Korea
offers for Japan's alleged bad faith participation in the present proceedings concerns Japan's reliance

507 See, e.g. Appellate Body Report, US – Carbon Steel (India), paras. 4.468-4.469.
508 There may be circumstances where the conditions for having recourse to Article 6.8 are not satisfied,
but where the procedural circumstances of an interested party's conduct clearly calls into question that
party's reliability. As the Appellate Body has recognized, the principle of good faith in international law informs
the provisions of the Anti-Dumping Agreement. (Appellate Body Report, US – Hot Rolled Steel, para. 101).
509 Korea's comments on Japan's responses to Panel question "General Observations", p. 4,
question No. 106, pp. 50-51.
510 Korea's response to Panel question No. 66(i).
511 See, e.g. Korea's response to Panel question No. 11(iii)-(v); comments on Japan's response to Panel
question No. 106, pp. 50-51.
512 KTC's submission of review to MOSF, (Exhibit KOR-48.b (BCI)), p. 8 (emphasis added); KTC's final
resolution, (Exhibit KOR-4.b (BCI)), p. 19.
513 See, e.g. Korea's comments on Japan's responses to Panel question "General Observations", pp. 4-5;
question No. 92, pp. 13-14, No. 106, p. 51; and comments on Japan's response to Korea's question No. 29,
p. 61. For Korea, "Japan's desperate attempts at minimizing the significance of such flaws by admitting the
serious inconsistencies totally fails and even calls into question the good faith participation of Japan in this
dispute". (Korea's comments on Japan's response to Panel question No. 92, p. 16). For a detailed discussion of
Korea's arguments on this point, see Annex A-3 (Interim Review), paras. 2.141-2.168.
514 Korea stated that it was a "frequent approach by Japan in this dispute" to "intentionally mislead the
Panel". (Korea's comments on Japan's response to Korea's question No. 29, p. 61). With respect to its
production capacity claim in particular, Japan had "resort[ed] to a misrepresentation of facts"
(Korea's comments on Japan's response to Panel question No. 106, p. 50), submitted "incredibly misleading"
arguments (Korea's comments on Japan's response to Panel question No. 92, p. 12), and adopted a "crafty
repackaging" of certain events (Korea's comments on Japan's response to Panel question No. 106, p. 49).
515 Korea's comments on Japan's response to Panel question No. 92, p. 13.
516 Korea's response to Panel question No. 11. Korea also referred to aspects of Japan's case as a
"disingenuous cover-up". (Korea's comments on Japan's response to Korea's question No. 29, p. 61).
517 Korea's comments on Japan's response to Korea's question No. 29, p. 64.

BCI deleted, as indicated [[***]]

on aspects of the submissions by the Japanese exporters in the underlying proceedings that
contained inaccuracies, inconsistencies, and mistakes.518 Japan has provided explanations for these
apparent discrepancies in ligh t of the attendant procedural and evidentiary background of the
review.519 We have examined those explanations.520 We see nothing in them to suggest that Japan
is engaging in these proceedin gs in bad faith. 521 We note that, with respect to the allegation of a
"hoax", Korea clarified that it has a "responsibility as a Member of the WTO to exert its best advocacy
effort in this adversarial process to prevent the Panel from accepting a premise that is so
unrealistic".522 In our view, advancing allegations of bad faith as part of an adversarial "advocacy
effort" or litigation technique in WTO dispute settlement would not accord with Article 3.10 of
the DSU523, nor would it assist in facilitating the fair, prompt, and effective resolution of the actual
matter in dispute.524
7.170. We make a further observation of relevance to whether Japan 's initiation of the present
proceedings is in bad faith due to the "blatantly unfaithful participation" of the Japanese exporters
in the underlying review, as evidenced by inconsistencies, mistakes, and inaccuracies in aspects of
their submissions. In particular, we recall that Korea relied on the USITC 's sunset review of SSBs
from Japan and other countries, which post-dates the KIA 's sunset review but had a
partially-overlapping POR , in support of aspect s of its case .525 Korea also relied on the
USITC's sunset review in support of its assertion that the Japanese exporters had engaged in bad
faith.526 As we explained earlier, this exhibit post -dates the KIA 's determination and did not form

518 Korea's comments on Japan's responses to Panel question "General Observations", pp. 4-5;
question No. 92, p. 16, and No. 106, pp. 46-47 and 49-51; comments on Japan's response to
Korea's question No. 29, p. 61.
519 See, e.g. Japan's first written submission, para. 129; second written submission, paras. 222,
228-234, 425, 428-429, and 478-482; responses to Panel question No. 16, paras. 88-93,
No. 21(a) paras. 122-125, No. 50, para. 292, No. 101, paras. 59-63, and No. 106, paras. 86-87 and 90;
response to Korea's question No. 29, paras. 88-95; and comments on Korea's responses to Panel
question No. 92, paras. 25-26, No. 94, paras. 59-61 and 63-65, and No. 103, paras. 149-151 and 158-165.
520 With respect to a number of the production capacity-related matters, see paras. 7.159-7.164 above.
For other matters, such as alleged discrepancies relating to export volumes of differing grades of steel, we
reviewed those matters for present purposes solely through the prism of whether the nature and substance of
Japan's explanations support the Korea's allegation of bad faith, and not through the prism of whether those
explanations have probative value in terms of an inconsistency with Article 11.3 or whether they have been
discharged through Korea's rebuttals. For that reason, we do not consider it necessary to engage in an
expansive discussion of those matters in this Report for present purposes.
521 Our review took account of the premise that "Members act in good faith in the context of dispute
settlement proceedings", and we were "unwilling to assume possible malfeasance in the absence of evidence to
that effect". (Panel Report, EC – Bed Linen, para. 6.216). In view of their nature, the threshold for proving
such allegations is high, and the mere existence of an inconsistency would be ordinarily insufficient to
demonstrate this. (Ibid. paras. 6.215-6.216).
522 Korea's response to Panel question No. 11(i).
523 Article 3.10 of the DSU provides, in relevant part: "[i]t is understood that requests for conciliation
and the use of the dispute settlement procedures should not be intended or considered as contentious acts and
that, if a dispute arises, all Members will engage in these procedures in good faith in an effort to resolve the
dispute."
524 Appellate Body Report, US – FSC, para. 166. See also A. D. Mitchell, Legal Principles in
WTO Disputes (Cambridge University Press, 2008), pp. 120-125.
525 See para. 7.104 above.
526 Korea alleged that "the Japanese respondents' arguments and numerical allegations submitted to the
Korean authorities are squarely contradicted by their own later submitted facts and assertions before
the USITC that Korea remains their top three (3) export market despite the longstanding anti-dumping
measure, and that the Japanese respondents focus on Asian market including the Korean market (but not the
U.S. market)". (Korea's comments on Japan's responses to Panel question No. 92, pp. 15-16 (emphasis
added), and No. 120, pp. 70-71; response to Panel question No. 103, paras. 215-216; and comments on
Japan's responses to Korea's question No. 16, p. 35, No. 17, pp. 38-39, and No. 21, p. 44). However, the
passage of the USITC's determination cited by Korea does not indicate that the Japanese exporters
"assert[ed]" that they would focus on the Korean SSB market despite Korea's anti-dumping duties. It simply
states, without attribution to the Japanese exporters' actual submissions, that Japan's exports of SSBs had a
"regional focus" and "Korea was one of the Japanese industry's top three export markets during the POR
despite the existence of long-standing antidumping duties on exports of some Japanese stainless steel bar to
Korea". (USITC's fourth review into stainless steel bar, (Exhibit JPN-28.a), p. 42 and fn 256). To put that in
perspective, in the present sunset review the Japanese exporters also submitted data showing that Korea
was a top three export destination in 2015 (Japanese exporters' opinion regarding injuries,
(Exhibit JPN-10.b (BCI)), p. 16), but submitted that Thailand was a much greater focus for Japanese exporters
than the Korean market based on export volumes (Japanese exporters' opinion regarding injuries,

BCI deleted, as indicated [[***]]

part of the KIA 's establishment an d evaluation of the facts pursuant to Article 17.5(ii) of the
Anti-Dumping Agreement. It would thus be improper for us to consider the USITC 's determination
in relation to the consistency of the KIA's determination with Article 11.3.
7.171. However, Article 17.5(ii) does not apply to Korea's allegation that Japan is acting in bad faith
in these proceedings. Since Korea has referred to the USITC determination in relation to the
Japanese exporters' alleged bad faith527, and given the Japanese exporters' alleged bad faith forms
the basis of Korea 's allegation of bad faith against Japan in the present proceedings, we examine
the USITC determination for the sole purpose of assessing Korea's allegation against Japan.
7.172. The Japanese exporters presented similar cases to the USITC's sunset review and to the
KIA's third sunset review on a number of points of relevance to these Panel proceedings. Far from
corroborating Korea's assertion that the Japanese exporters were engaging in bad faith, the USITC
accepted significant aspects of the position advanced by the Japanese exporters that had been
rejected or ignored by the KI A. These include, for instance, that: (a) the "Japanese industry has
limited ability to increase its produ ction of stainless steel bar as its capacity utilization rate
exceeded 92 percent" 528; (b ) "[average unit values] for Japan 's shipments to all markets were
notably higher than the [average unit values] for shipments by other subject countries, which
supports the Japanese producers' contentions that their industry generally focuses on higher -value
stainless steel bar products" 529; and (c ) "the Japanese industry has no incentive to ship large
volumes of aggressively priced subject product into the U.S. market". 530 Similarly, the Japanese
exporters submitted to the KIA that their overarching focus was on "satisfying domestic demand
within Japan"531, and the USITC likewise accepted that "[t]he Japanese stainless steel bar industry
has a clear and increasing focus on serving its domestic market". 532 Of course, such differences
between the respective authorities' findings on these points do not themselves call into question the
KIA's determination in the present proceedings. However, if Japan was truly acting in bad fai th by
initiating the present proceedings in the manner alleged by Korea, one might expect to see another
investigating authority – and one whose determinations are cited and tracked by the KIA 533 –
harbouring similar concerns about the credibility of the sa me Japanese exporters' case. We would
certainly not expect to see another authority affirming key aspects of those exporters ' case in its
own partially-overlapping sunset review of a similar product.
7.173. Korea has not demonstrated that the KIA found that the Japanese exporters acted in bad
faith in the underlying review, nor that Japan is acting in bad faith in pursuing its case in the present
proceedings.
7.174. We conclude that the KIA 's evaluation of the fact s leading to its intermediate finding that
"the utilization rate in 2015 was [[***]]% for Japan … which shows that they have sufficient
additional production capacity and room for exports "534 was not "unbiased and objective". This is

(Exhibit JPN-10.b (BCI)), p. 16; Japanese exporters' post-hearing opinion, (Exhibit JPN-16.b (BCI)), pp. 3-4;
Minutes of public hearing (24 November 2016), (Exhibit KOR-19.b (BCI)), p. 29). Korea acknowledged, without
disputing, that Thailand was indeed the Japanese exporters' main export focus during the POR.
(Korea's second written submission, para. 80).
527 Korea's comments on Japan's responses to Panel question No. 92, pp. 15-16, and No. 120,
pp. 70-71; response to Panel question No. 103, paras. 215-216; comments on Japan's responses to
Korea's question No. 16, p. 35, No. 17, pp. 38-39, and No. 21, p. 44.
528 USITC's fourth review into stainless steel bar, (Exhibit JPN-28.a), p. 43. By contrast, the KIA rejected
the Japanese exporters' submitted capacity utilization rate of over [[***]] in 2015 in favour of a [[***]] rate
calculated on the basis of ISSF and Japan's Stainless Steel Association (JSSA) data. (OTI's final report, (Exhibit
KOR-5.c (BCI)), pp. 57-58).
529 USITC's fourth review into stainless steel bar, (Exhibit JPN-28.a), pp. 43-44. By contrast, Korea
explains that the KIA did not find the proposition that the Japanese exporters were focused on high
value-added SSB products to be relevant or substantiated. (Korea's responses to Panel question No. 16, and
No. 22(c)).
530 USITC's fourth review into stainless steel bar, (Exhibit JPN-28.a), p. 45. By contrast, Korea explained
that the KIA found the Japanese exporters' contention about the alleged lack of incentives to compete with
low-priced competitors to be unsubstantiated. (See, e.g. Korea's response to Panel question No. 16;
second written submission, para. 231).
531 Japanese exporters' post-hearing opinion, (Exhibit JPN-16.b (BCI)), p. 6.
532 USITC's fourth review into stainless steel bar, (Exhibit JPN-28.a), p. 42.
533 Korea's first written submission, paras. 67 and 369; response to Japan's question after the
second meeting with the Panel No. 1, para. 13.
534 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 22. See also OTI's final report,
(Exhibit KOR-5.c (BCI)), p. 67.

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because the KIA rejected the figures submitted by the Japanese exporters for failing to comply with
certain parameters of which they were not properly informed. In this regard, we recall that
authorities are required under Article 11.3 to act with the "appropriate degree of dili gence" in
conducting their "review", and must discharge their "duty to seek out relevant information and to
evaluate it in an objective manner" through "an active rather than a passive decision-making role".535
For the avoidance of doubt, we do not take the view that "just because the Japanese respondents
provided some numerical allegation, these numbers must be accepted as genuine, and the burden
automatically shifts to the investigating authority to disprove the veracity of these numbers in order
to reject these numbers".536 Rather, our conclusion turns on three factors that are particular to the
circumstances of this case: (a) the Japanese exporters were initially told by the KIA that the "product
under investigation" was the preferred product scope for the requested data concerning capacity
utilization, and they submitted figures in response; (b) the KIA's determination opted for a broader
product scope to determine Japan 's capacity utilization rate; and (c ) the evidence before us does
not demonstrate that the KIA conveyed to the Japanese exporters that the preferred parameters
had changed, that their submitted capacity utilization figures were based on incorrect parameters ,
or that requisite "raw data" was la cking, which in turn deprived the Japanese exporters of the
opportunity to resubmit their figures (and "raw data") or comment on the preferred parameters.
7.175. It remains for us to determine whether the KIA's error in this regard rises to the level of a
violation of Article 11.3 of the Anti-Dumping Agreement. Korea contends that the KIA's production
capacity finding of [[***]] tonnes for the Japanese SSB industry was "only one of many intermediate
findings supporting the ultimate likelihood -of-injury determination", and indeed, was not the only
finding supporting the conclusion that the Japanese exporters had "sufficient room for exports".537
For instance, the KIA referred to the Japanese exporters ' continued investments in their facilities
and that they had the possibility of increasing production via outsourcing. 538 Korea also contends
that " even assuming for the sake of argument " that the Japanese exporters ' [[***]]% capacity
utilization rate were "legitimate", the KIA found that such a figure would represen t "spare capacity
to produce up to [[***]] tons of the covered product in 2015, which amounted to [[***]]% of the
total domestic sales of the like domestic product".539 Against that background, Korea contends that
any flaw in the KIA 's use of a production c apacity figure of [[***]] tonnes does not invalidate the
finding that the Japanese exporters had sufficient room to expand exports, nor does it invalidate the
overall likelihood-of-injury determination, which was also based on a series of other factors.540
7.176. According to Japan, the KIA 's decision to use the ISSF 's production capacity data and its
resulting finding on the capacity utilization rate of the Japanese exporters was a "cornerstone" of
the overall determination.541 It led to the finding that the Japanese exporters have sufficient "unused
production capacity and unused export capacity ", which in turn led to the finding that "the import
volume … [of] the product under investigation [is] highly likely to expand", which in turn led to the
KIA's conclusion that "it is highly likely that once the anti-dumping measures are terminated, a drop
in the price of the product under investigation and an increase in imports will again cause material
injury to the domestic industry".542 Regarding Korea's argument that, even based on the Japanese
exporters' own figures, there would be "more than enough spare capacity" because they would still
have [[***]] tonnes of additional production capacity in 2015 amounting to around [[***]] of the
total domestic Korean sales, Japan contends that these alleged facts were not raised or assessed in
the review and hence the Panel would engage in a de novo review by reaching a finding on that
basis.543 Japan also contends that the KIA failed to examine and ascertain whether there was an
incentive for the Japanese exporters to use this [[***]] tonnes of capacity to produce the "product

535 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, paras. 111 and 199.
(emphasis added)
536 Korea's comments on Japan's response to Panel question "General Observations", p. 5.
(emphasis omitted)
537 Korea's comments on Japan's response to Korea's question No. 4, pp. 13-14. See also first written
submission, paras. 194-195 and 211; and second written submission, paras. 197 and 209.
538 Korea's comments on Japan's response to Korea's question No. 4, pp. 13-14.
539 Korea's response to Panel question No. 98, para. 141.
540 Korea's response to Panel question No. 98, paras. 141-143 and 149; comments on Japan's responses
to Korea's question No. 4, pp. 13-14, and No. 22, p. 46; and comments on Japan's responses to Panel question
No. 98, p. 31, and No. 99, p. 34.
541 Japan's first written submission, para. 120.
542 Japan's first written submission, para. 119 (quoting KTC's final resolution, (Exhibit JPN-2.b), p. 19;
see also ibid, p. 17).
543 Japan's comments on Korea's response to Panel question No. 98, para. 94.

BCI deleted, as indicated [[***]]

under investigation" (as opposed to other products) and ship it to Korea (as opposed to other sources
of domestic or international demand).544
7.177. In light of the parties ' arguments, we are called upon to ascertain the significance of the
intermediate finding at issue to the KIA's overall likelihood-of-injury determination, and in particular,
whether it is so central that it invalidates the overall determination. 545 We note Korea's point that
precision is not required in quantifying matters like capacity utilization rates in sunset reviews, but
as Korea itself recognizes, the key point of contention concerns a capacity utilization rate of [[***]]
versus a rate of [[***]] – this kind of difference falls outside the bounds of objections about degrees
of precision. In t he section of the OTI 's final report entitled " Comprehensive Review regarding
Likelihood of Continuance or Recurrence of Injuries to the Domestic Industry ", the KIA finds in
relevant part:
• Considering that stainless steel bars from Japan, India and Spain have sufficient
room and inducements to expand their exports to Korea on the following
grounds, it is highly likely that injuries to the domestic industry will recur once
the anti-dumping measures are terminated:
- According to ISSF, the production capacity of the countries subject to
investigation was [[***]] tons … for Japan … and the capacity utilization in 2015
was [[***]]% … for Japan … which proves that they have sufficient room for
exports.546
7.178. Based on the plain text of this intermediate finding, it is clear that the ISSF 's production
capacity figure of [[***]] tonnes and the capacity utilization rate of [[***]] were the central facts
that "prove[d] that they have sufficient room for exports". There is no reference in this section to
other elements of "proof" for this finding. The KIA's analysis in an earlier passage does reveal that,
based on the Japanese exporters ' figures, there would be [[***]] tonnes of additional production
capacity547, which accounts for [[***]] of the domestic Korean sales.548 However, the KIA proceeded
to reject the Japanese exporters' figures from which the [[***]] tonnes figure was derived, and did
not reach a finding of " sufficient additional production capacity and room for exports " on the basis
of those figures.549 Thus, we agree with Japan that to r ely on those figures in order to justify the
KIA's determination would be tantamount to conducting a de novo review.
7.179. We accept that, in the intermediate section entitled "Production and Export Capacity of the
Countries Supplying Dumped Imports ", the KIA augmented its reliance on the ISSF production
capacity data and the capacity utilization of [[***]] with a reference to the Japanese SSB industry
having "continued to make investments in facilities " upon concluding that there were " sufficient
room for exports".550 However, nothing in the KIA 's determination suggests that it considered the
continued investments alone to be sufficient to support the intermediate finding of "sufficient room
for exports".551 Rather, as extracted above, the subsequent " Comprehensive Review" omits any
mention of that factor. Likewise, the ability to "outsource" is mentioned in reference 6 in the
confidential annex to the OTI 's final report, but there is no indication that the KIA considered that
this alone, or together with the continued investments, would substantiate the intermediate finding
at issue.552
7.180. Thus, the KIA 's error in its evaluation of the facts leading to its intermediate finding that
"the utilization rate in 2015 was [[***]]% for Japan … which shows that they have sufficient

544 Japan's response to Korea's question No. 21, paras. 61 and 63.
545 See para. 7.114 above.
546 OTI's final report, (Exhibit KOR-5.c (BCI)), p. 67. See also KTC's final resolution,
(Exhibit KOR-4.b (BCI)), p. 22.
547 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 19; OTI's final report,
(Exhibit KOR-5.c (BCI)), pp. 58, tables 34 and 35.
548 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 19.
549 KTC's final resolution, (Exhibit KOR-4.b (BCI)), pp. 19-20; OTI's final report,
(Exhibit KOR-5.c (BCI)), pp. 58 and 87.
550 OTI's final report, (Exhibit KOR-5.c (BCI)), pp. 59.
551 Panel Report, China – GOES, para. 7.542 and fn 522; Appellate Body Report, Japan – DRAMs
(Korea), para. 135.
552 OTI's final report, (Exhibit KOR-5.c (BCI)), p. 87. See also Korea's second written submission,
paras. 149 and 197.

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additional production capacity and room for exports"553 is not rendered immaterial by reason of the
other considerations identified by Korea.
7.181. We turn now to whether this error is so central that it invalidates the KIA's final conclusion
encapsulating its overall likelihood-of-injury determination. This final conclusion provides:
Taking the circumstances into consideration as a whole, the Commission finds that it is
highly likely that once the anti -dumping measures are terminated, a drop in the price
of the dumped imports and an increase in volume of the dumped imports will again
cause recurrence of material injury to the domestic industry, such as a downturn in
sales and deterioration in operating profitability.554
7.182. As we understand it, the ability for Japanese exports to "increase in volume", as reflected in
this conclusion, is premised on the intermediate finding that there was "sufficient room for exports"
due to Japan 's additional production capacity and capacity utilization r ate.555 The intermediate
finding is thus central to the KIA's final conclusion; together with a "drop in the price", an "increase
in the volume" is one of the two interrelated pillars of the final conclusion. Given that we concluded
that the intermediate finding of "sufficient room for exports" was deficient, and given its centrality
to the final conclusion, we consider that this deficiency necessarily invalidates the KIA 's overall
likelihood-of-injury determination.
7.183. Accordingly, we consider that the KIA 's failure to undertake an "unbiased and objective"
evaluation of the facts leading to its intermediate finding that "the utilization rate in 2015 was
[[***]]% for Japan … which shows that they have sufficient additional production capacity and room
for exports" invalidates the KIA's overall likelihood-of-injury determination and gives rise to a
violation of Article 11.3 of the Anti-Dumping Agreement. In light of this finding, it is unnecessary for
the prompt and effective resolution of the dispute to address Japan 's various other arguments in
support of its claim under Article 11.3 of the Anti -Dumping Agreement pertaining to production
capacity and capacity utilization, no r Korea's rebuttals on those points. We recall that a panel has
"the discretion to address only those arguments it deems necessary to resolve a particular claim".556
7.5.5.2 Japan's claim under Article 6.8 of the Anti -Dumping Agreement concerning
capacity utilization
7.184. Japan claims that the KIA acted inconsistently with Articles 6.8 and 11.4 and paragraphs 3
and 7 of Annex II to the Anti-Dumping Agreement by erroneously having recourse to the "facts
available" to determine the production and export capacity of the Japanese exporters.557 Article 11.4
of the Anti -Dumping Agreement provides that the provisions of Article 6 regarding evidence and
procedure shall apply to sunset reviews. In this connection, both parties accept that Article 6.8 and
Annex II apply to sunset reviews under Article 11.3 by virtue of Article 11.4, and we therefore
understand Japan's claim under Article 11.4 to operate in tandem with Article 6.8 and Annex II as
the legal basis for Japan's "facts available" -related claims.558 We primarily examine Japan's claim
through the prism of Article 6.8 and Annex II since these aspects contain the substantive disciplines
at issue, but in view of the structure and relationship between Articles 11.3, 11.4, and 6.8 and
Annex II, we consider that any violation of Article 6.8 and Annex II in respect of a sunset review

553 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 22. See also OTI's final report,
(Exhibit KOR-5.c (BCI)), p. 67.
554 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 23. See also OTI's final report,
(Exhibit KOR-5.c (BCI)), p. 67.
555 OTI's final report, (Exhibit KOR-5.c (BCI)), p. 67. We also note Korea's explanations on this
point: "[t]he KTC's 'Overall Evaluation' finds that the low capacity utilization of the subject countries will highly
likely to lead to increase in volume of the dumped imports to displace the market share of the domestic
products upon removal of the anti-dumping measure, and the resulting decrease in price of the dumped
imports will weaken the price competitiveness of the like domestic products". (Korea's response to Panel
question No. 6(c)(iv) (emphasis original)). See also Korea's first written submission, paras. 188 and 198;
second written submission, para. 149; comments on Japan's response to Panel question No. 100, p. 36; and
responses to Panel question No. 6(a), and No. 100, paras. 174-177.
556 Appellate Body Reports, EC – Fasteners (China), para. 511; EC – Poultry, para. 135; and India –
Solar Cells, para. 5.15.
557 Japan's first written submission, paras. 195 and 271-272.
558 Japan's first written submission, paras. 213 and 274; Korea's first written submission, paras. 5, 53,
and 312.

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would likewise give rise to a violation of Article 11.4 because it provides the legal basis for which
Article 6.8 and Annex II apply to sunset reviews. As an initial matter, Korea contends that the KIA
did not have recourse to the "facts available" with respect to production and export capacity of the
Japanese exporters , which would remove the premise of Japan 's claim.559 In particular, Korea
contends that the Japanese exporters ' production capacity data did not qualify as
"'necessary' information" under Article 6.8.560 Rather, according to Korea, the KIA sought
country-wide (not exporter -specific) data, and moreover, nothing in Article 11.3 suggests that
production capacity data is "necessary" in a sunset review. 561 Thus, the KIA did not exercise
discretion to invoke the "facts available" on this matter, in contrast to other aspects of the sunset
review in which it did have explicit recourse to the "facts available".562
7.185. We begin by con sidering the initial matter of whether the KIA had recourse to the "facts
available" on this point, before turning to the substance of the parties ' arguments and rebuttals
under Articles 6.8 and 11.4 and paragraphs 3 and 7 of Annex II if necessary. From ou r
understanding, it is uncontested between the parties that Article 6.8 pertains only to information
that satisfies certain criteria. 563 In particular, it pertains only to "necessary information". We
understand "necessary information" to mean information that is missing from the record and is
possessed by an interested party, and that has been therefore requested by the authorities.564 This
is because Article 6.8 applies (inter alia) "[i]n cases in which any interested party refuses access to,
or otherwise does not provide, necessary information ". Moreover, we understand that "necessary
information" relates to information that the authorities require in order to make such
determinations.565 This is because, when the applicable conditions are satisfied, the authorities are
permitted under Article 6.8 to make "determinations, affirmative or negative … on the basis of the
facts available".
7.186. Beyond those contextual elements of Article 6.8, there is no explicit guidance in the
Anti-Dumping Agreement as to what comprises "necessary information". Rather, what is "necessary"
will depend upon the nature of the assessment being undertaken by the authoritie s and the
circumstances of a given investigation. In that regard, we accept Korea's point that Article 11.3 of
the Anti-Dumping Agreement does not specify that information on capacity utilization is "necessary"
for sunset reviews 566, and we accept that authorities have latitude under Article 11.3 to develop
approaches and methodologies for determining whether the expiry of anti-dumping duties would be
likely to lead to a recurrence of material injury. 567 However, in the sunset review at issue in these
proceedings, we consider that information on capacity utilization was clearly "necessary" in light of
the approach adopted by the KIA for undertaking its likelihood-of-injury assessment.568
7.187. The parties argue over the nature and source of what can comprise "necessary information"
for determining capacity utilization rates in sunset reviews. For instance, they dispute whether the
"necessary information" should be country -wide or exporter -specific, and whether it need be
"primary" information or can encompass "secondary" materials. 569 As we understand it, the
KIA's preferred methodology for determining a capacity utilization rate was initially premised , with
respect to the denominator, on the prod uction capacity data concerning the "product under
investigation". The questionnaires issued by the KIA to the Japanese exporters early in the review
requested production capacity data for the purposes of deriving a capacity utilization rate, and

559 Korea's responses to Panel question Nos. 78(b) and 78(c). See also Korea's first written submission,
paras. 341-344.
560 Korea's first written submission, para. 340.
561 Korea's first written submission, paras. 338 and 340.
562 Korea's responses to Panel question Nos. 78(b) and 78(c). See also Korea's first written submission,
paras. 341-344.
563 Japan's response to Korea's question No. 7, para. 19; Korea's comments on Japan's response to
Korea's question No. 7, p. 18.
564 Panel Reports, EC – Salmon (Norway), para. 7.343; Korea – Certain Paper, paras. 7.43-7.44.
565 Panel Reports, EC – Salmon (Norway), para. 7.343; Korea – Certain Paper, paras. 7.43-7.44;
Appellate Body Report, US – Carbon Steel (India), para. 4.416.
566 Korea's comments on Japan's response to Korea's question No. 6, p. 17.
567 Korea's second written submission, para. 214.
568 See paras. 7.177-7.182 above.
569 Japan's second written submission, paras. 453-457 and 460-461; responses to Korea's question
No. 5, paras. 15-16, No. 6, paras. 17-18, and No. 7, paras. 19-20; Korea's first written submission, para. 340;
second written submission, paras. 214 and 256; and comments on Japan's responses to Panel question No. 5,
p. 15, No. 6, pp. 16-17, and No. 7, p. 18.

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specified that this data pertain to the "product under investigation".570 The covering letter indicated
that "questionnaire responses constitute a critical part of antidumping reviews, particularly with
regard to dumping margin computation", and therefore the "non-filing or late filing of questionnaire
responses, inadequate or incomplete responses, and a lack of verification will inevitably lead to the
use of facts available and may result in a less favourable dumping margin tha n if the respondents
fully cooperate".571 Thus, the KIA conveyed to the Japanese exporters that a failure to provide the
information requested in the questionnaire, which included production capacity data for the "product
under investigation", would inevitably lead to the use of the facts availa ble. Although the KIA
emphasized the importance of information on dumping margins, the plain text of this covering letter
indicates that its comment in this regard related to the information requested in the questionnaire
generally, and not only to dumping margin determinations. Moreover, we recall our finding earlier
that this questionnaire was not limited to dumping, but also comprised the KIA 's initial information
request for production capacity data for the purposes of its injury investigation.572
7.188. Initially, therefore, what was missing from the record – and what was requested from the
Japanese exporters – pertained to production capacity data for the "product under investigation".
As set out in section 7.5.5.1, we understand the KIA to have subsequently changed its preferred
parameters for the production capacity data as the denominator for determining Japan 's capacity
utilization rate. Thus, what was missing f rom the record and what the KIA required in order to
ascertain a capacity utilization rate evolved during the review. We see nothing in the
Anti-Dumping Agreement to prevent an authority from adjusting its parameters or methodology for
"necessary information" during a review . However, an interested party could only be treated as
failing to provide information under Article 6.8 if it is afforded the opportunity to respond to the new
parameters or methodology, and to provide updated data where appropriate. If an interested party
is not told of the new parameters or methodology, then it cannot plausibly be said to have "refuse[d]
access to, or otherwise … not provide[d], the necessary information" under Article 6.8. This is
particularly so with respect to something as basic and fundamental as the product scope of the data
being sought, which forms the foundation of subsequent analyses undertaken, or inferences drawn,
on the basis of that data.
7.189. Korea contends that information on Japan 's production capacity was no t missing from the
record and therefore did not comprise "necessary information" under Article 6.8 because the KIA
already possessed the ISSF's Japan-wide production capacity data.573 We disagree. At the point in
time at which the KIA sent the initial questionnaires to the Japanese exporters, it is clear from those
questionnaires that the KIA 's preferred methodology – and what the KIA warned would result in
recourse to the facts available if not provided – concerned production capacity data on the "product
under investigation".574 The ISSF's production capacity data does not pertain to the "product under
investigation", but rather to a broader product scope encompassing excluded products and other
stainless steel products. Thus, the presence of the ISSF data on the record at the time the initial
questionnaires were sent to the Japanese exporters would not demonstrate that the relevant
information was already on the record, and hence not "missing" or "necessary information" in the
sense of Article 6.8. It would only be later in the review, once the KIA had opted for a broader
product scope, that the ISSF data would accord with the KIA 's preferred parameters for the
"necessary information".
7.190. As already noted, a contested parameter for what was "necessary" relates to whether the
information at issue needed to be country -wide before qualifying as "necessary", or whether
exporter-specific data could be considered to be "necessary" despite being alone insufficient to
generate a Japan-wide capacity utilization rate. Korea, in particular, contends that producer-specific
data could not be "necessary" information in the context of a likelihood -of-injury determination in
which the authorities seek to examine, as one of many factors, the availability of excess production
and export capacity in a country of export as a whole. 575 In our view, i n the circumstances of the
present case, such a distinction between cou ntry-wide and exporter -specific data is essentially
irrelevant for the following reasons. The ISSF data relied upon by the KIA is an aggregation of
company-specific figures, and the Japanese exporters comprised [[***]] of Japan 's production

570 See paras. 7.134-7.137 above.
571 Guideline on the scope of the product under investigation, (Exhibit JPN-41.b), internal p. 3.
572 See para. 7.136 above.
573 Korea's first written submission, paras. 338-345; comments on Japan's response to
Korea's question No. 7, p. 18.
574 Guideline on the scope of the product under investigation, (Exhibit JPN-41.b).
575 Korea's first written submission, para. 339.

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capacity in the ISSF data. 576 The figures submitted by both the Japanese exporters and the
applicants during the review were premised on the assumption that the three Japanese exporters
participating in the review comprised the overwhelming majority 577 – if not the total 578 – of the
production capacity in question. Further, one of the KTC 's Commissioners described "data on
production capacity and capacity utilization" from the three participating Japanese exporters as
"necessary" during the public hearing for the sunset review, and there fore asked them to provide
that data.579 Against this background, it is clear to us that the KIA could not generate a Japan-wide
capacity utilization rate without the production capacity of the three participating Japanese
exporters. We consequently disagre e with Korea. We consider that, i n the circumstances of the
present sunset review , production capacity data from those exporters (regardless of the
KIA's chosen methodology or preferred parameters for deriving that data ) comprised "necessary
information" u nder Article 6.8 of the Anti -Dumping Agreement for the purposes of determining
Japan's capacity utilization rate.
7.191. Japan further argues that there was no indication that countrywide evidence was the
"necessary" information sought by the KIA from the Japanese exporters.580 We agree with Japan
that it is relevant that the KIA sent each of the Japanese exporters a questionnaire early in the
review requesting their respective company -specific production capacity data . The KIA further
warned the Japanese exporters that a failure to respond to the questionnaire would result in recourse
to the facts available581, and then continually engaged with the Japanese exporters during the review
on the matter of their production capacity after their initial response. This procedural context
suggests that the Japanese exporters' production capacity data was viewed by the KIA as essential
to arriving at a Japan -wide capacity utilization rate. It also suggests that the Japanese exporters
were under the impression that their production capacity data comprised "necessary information" in
the sense of Article 6.8. As Japan argues, in these circumstances it would have been reasonable for
the Japanese exporters to assume that the KIA intended to aggregate the data f rom the individual
responses received.582 Moreover, the KIA's description of its own analytical process indicates that it
examined the Japanese exporters ' data, found it to be lacking, and then " [u]nder such
circumstances, the investigating authorities reviewed the data from the ISSF and used it". 583 None
of this context supports Korea 's assertion that the ISSF data was always the starting point for the
KIA, and that the Japanese exporters' data did not comprise "necessary information" in the eyes of
the KIA. Again, if the ISSF data with its broader product scope were the "starting point", then it
would be nonsensical to send a questionnaire to the Japanese exporters at the outset of the review
requesting data with a narrower product scope.
7.192. We therefore find that the production capacity of the three participating Japanese exporters
comprised "necessary information" under Article 6.8 of the Anti -Dumping Agreement for the
purposes of determining Japan's capacity utilization rate. We recognize t hat the KIA 's preferred
parameters or methodology for obtaining that information evolved during the review, such that it
ultimately preferred data on "their total production capacity that can reasonably be converted for
producing the covered products upon removal of the duties" and "not the capacity currently and
specifically allocated to the covered SSB products in the POR".584 As we have stated, we see nothing
in the Anti-Dumping Agreement to prevent an authority from adjusting its approach with respect to

576 ISSF statistics, (Exhibit KOR-20.b (BCI)). See also Japan's second written submission, para. 420.
577 Rebuttal opinion of the applicants, (Exhibit JPN-11.b), p. 3: the Korean domestic industry only
provided capacity utilization data for the three participating Japanese producers, because they were the "main
Japanese steel companies" in question.
578 Japanese exporters' post-hearing opinion, (Exhibit JPN-16.b (BCI)), pp. 2-3.
579 Minutes of public hearing (24 November 2016), (Exhibit KOR-19.b (BCI)), p. 36. Similarly, in its
first written submission, Korea described an information request by the KIA from the three participating
Japanese exporters for (inter alia) the "status of the (new) installation of the facilities for peeling
processes, and the production capacity of each facility" as comprising "necessary information".
(Korea's first written submission, para. 328 (referring to Minutes of meeting dated 21 September 2016,
(Exhibit KOR-26.b (BCI)), p. 1)).
580 Japan's second written submission, para. 455.
581 As we have found above, the questionnaire was not limited to matters of dumping (see para. 7.135
above), nor is the plain text of the covering letter and its warning about the consequences of non-cooperation
limited to matters of dumping (see para. 7.187 above).
582 Japan's second written submission, para. 455.
583 KTC's submission of review to MOSF, (Exhibit KOR-48.b (BCI)), p. 9. (emphasis added)
584 Korea's response to Panel question No. 105, para. 225.

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"necessary information" during a review, but an interested party cannot be said to have refused
access to such "necessary information" if the new parameters are not properly communicated.
7.193. We turn now to whether the KIA had recourse to the "facts available " under Article 6.8 in
respect of this "necessary information". Korea argues that the KIA never in fact exercised discretion
to have recourse to the "facts available".585 For other matters (e.g. dumping margins) Korea notes
that the KIA explicitly invoked the "facts available" under Article 6.8 of the Anti-Dumping Agreement
and under its domestic legislation. 586 In Japan's view, the KIA was obligated to comply with the
requirements of Article 6.8 upon deciding not to rely on information from a primary source, i.e. the
Japanese exporters' figures on their own production capacity.587 According to Japan, the KIA "cannot
circumvent the rules governing use of facts available by simply not explicitly declaring that they
actually relied on facts available".588
7.194. We consider that the KIA did, in fact, have recourse to the "facts available" under Article 6.8.
The evidence before us shows that the KIA rejected the Japanese exporters ' figures because those
exporters had "failed to cooperate with the investigation, by repeatedly ignoring the repeated
requests of the KTC to submit materials and providing only edited data" , including with respect to
production capacity.589 This rationale reflects one of the conditions under which an investigating
authority may have recourse to the "facts available" under Article 6.8. Given that we consider that
the information in question comprises "necessary information" under Article 6.8, we find that the
KIA did, in fact, have recourse to the "facts available" when rejecting the Japanese
exporters' production capacity figures due to a failure to cooperate.
7.195. We turn now to whether Japan has demonstrated that the KIA acted inconsistently with
Article 6.8 by having recourse to the "facts available" in respect of the Japanese
exporters' production capacity. Japan contends that "[u]nder the first sentence of Article 6.8 of the
Anti-Dumping Agreement, an investigating authority is allowed to use facts available only when 'any
interested party refuses access to, or otherwise does not provide, nece ssary information within a
reasonable period or significantly impedes the investigation '".590 According to Japan, the KIA acted
inconsistently with the first sentence of Article 6.8 because it had recourse to the "facts available"
despite the Japanese exporters' having cooperated and complied with the KIA's information requests
regarding their production capacity .591 According to Korea, " every single condition for resorting to
facts available under Article 6.8 of the Anti -Dumping Agreement has been met", as demonstrated
by the Japanese exporters refusing "access to the necessary information by, for example, failing to
respond to the dumping aspect of the review" and "wit[holding] various requested data by ignoring
the clear instructions and requests".592
7.196. We have already found that the 3 June 2016 questionnaire represents the KIA 's initial
request for information from the Japanese exporters for production capacity and capacity utilization
data, including for the purposes of its likelihood-of-injury assessment. We have also found that, after
responding to the 3 June 2016 questionnaire (which specified that the production capacity data
should pertain to the "product under investigation"), the Japanese exporters were not made aware
that, in Korea 's words, "what mattered for the [KIA] … was such reasonably convertible capacity
upon removal of the duties and not the capacity currently and specifically allocated to the covered
SSB products in the POR".593 We consider that, if an authority has legitimate concerns regarding the
information provided, it must take reasonable steps to investigate and clarify before it may
permissibly have recourse to the "facts available".594 We therefore agree with Japan that, although

585 Korea's responses to Panel question Nos. 78(b) and 78(c). See also Korea's first written submission,
paras. 341-344; and comments on Japan's response to Korea's question No. 8, pp. 19-20.
586 Korea's responses to Panel question Nos. 78(b) and 78(c).
587 Japan's response to Panel question No. 78(a), para. 368.
588 Japan's response to Panel question No. 78(b), para. 370.
589 KTC's submission of review to MOSF, (Exhibit KOR-48.b (BCI)), p. 8. See also KTC's final resolution,
(Exhibit KOR-4.b (BCI)), p. 19: "there was no submission of other objective and reliable material to support
the Respondents' argument" on production capacity.
590 Japan's first written submission, para. 272.
591 Japan's first written submission, paras. 273-274.
592 Korea's first written submission, para. 346.
593 Korea's response to Panel question No. 105, para. 225. (emphasis added)
594 Panel Report, Morocco – Hot-Rolled Steel (Turkey), para. 7.92 and fn 135 (referring to
Appellate Body Report, EU – PET (Pakistan), para. 5.130, in turn referring to Appellate Body Report, US –

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"[a]n investigating authority has discretion to decide what information is needed to complete its
investigation", "[i]t is not fair, or acting in good faith, to reject the Japanese Respondents ' data
based on an alleged failure to submit certain information when the [KIA] did not clarify what data
should have been submitted ".595 In other words, since the KIA failed to adequately inform the
Japanese exporters of its updated parameters for the "necessary information", the Japanese
exporters cannot be said to have "not provide[d], or otherwise refuse[d] acce ss to, necessary
information" under Article 6.8. We therefore conclude that the KIA acted inconsistently with
Article 6.8 by having recourse to the "facts available" in respect of Japan's production capacity. We
recall that Japan made its claim under Articl e 6.8 in tandem with a claim under Article 11.4 of the
Anti-Dumping Agreement, since Article 11.4 provides the legal basis for which Article 6.8 applied to
sunset review at issue. In view of our findings in relation to Article 6.8, we likewise find that the KIA
acted inconsistently with Article 11.4. In view of these findings, we consider it unnecessary for the
prompt and effective resolution of the dispute to make findings on Japan's additional claims under
paragraphs 3 and 7 of Annex II to the Anti-Dumping Agreement.
7.6 Confidentiality: Japan's claims under Article 6.5 of the Anti-Dumping Agreement
7.6.1 Introduction and legal standard
7.197. Japan claims that the KIA acted inconsistently with Articles 6.5 and 11.4 in respect of 102
specific instances in the documents where the KIA treated information as confidential without a
showing of "good cause" having been made.596 Japan identifies each of these instances in the annex
attached to its first written submission.597
7.198. We begin our evaluation of Japan 's claim with an overview of the legal standard for that
provision. Article 11.4 of the Anti -Dumping Agreement provides that the provisions of Article 6
regarding evidence and procedure shall apply to sunset reviews. In this connection, both parties
accept that Article 6.5 applies to sunset reviews under Article 11.3 by virtue of Article 11.4, and we
therefore understand Articles 6.5 and 11.4 to operate in tandem as the legal basis for
Japan's confidentiality-related claims.598 We primarily examine Japan's claim through the prism of
Article 6.5 since it contains the applicable substantive discipline, but in view of the structure and
relationship between Articles 11.3, 11.4, and 6.5, we consider that any v iolation of Article 6.5 in
respect of a sunset review would likewise give rise to a violation of Article 11.4 as the legal basis for
which Article 6.5 applies to sunset review. Article 6.5 of the Anti-Dumping Agreement provides:
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

Washing Machines, para. 5.268, in turn quoting Appellate Body Report, US – Wheat Gluten, paras. 53 and 55,
which refers to Appellate Body Reports, US ‒ Corrosion-Resistant Steel Sunset Review, para. 199; US –
Anti-Dumping and Countervailing Duties (China), para. 344; and Panel Report, China – Broiler Products,
para. 7.261); Appellate Body Report, US – Hot-Rolled Steel, paras. 101-104.
595 Japan's second written submission, para. 473.
596 Japan's first written submission, paras. 328 and 337-339, and annex; second written submission,
para. 546.
597 Japan originally submitted the annex attached to its first written submission. (Japan's first written
submission, pp. 145-165). Korea then prepared an exhibit containing an additional column containing its
rebuttals to Japan's arguments in the annex. (Korea's response to Japan's Article 6.5.1 allegations,
(Exhibit KOR-35)). Japan then prepared an exhibit containing a further column responding to Korea's rebuttals.
(Japan's rebuttals to Exhibit KOR-35, (Exhibit JPN-39)). Korea then again prepared an exhibit responding to
Japan's responses to its rebuttals. (Korea's response to Exhibit JPN-39, (Exhibit KOR-82 (BCI))). Japan then
finally prepared an exhibit correcting certain errors made in the reproduction of Japan's arguments by Korea in
Exhibit KOR-82 (BCI). (Japan's correction to Exhibit KOR-82, (Exhibit JPN-44)). Where arguments contained in
the various iterations of the annex are made, we will refer to the exhibit where that argument was first made.
Where an argument made initially in exhibit JPN-39 that was later incorrectly reproduced in
exhibit KOR-82 (BCI), we will not refer to the clarifications of exhibit JPN-44 but take note of the errors
made in exhibit KOR-82 (BCI) with respect to Nos. 38, 40, 45, 47, 48, 49, 68, 79, and 98-99.
598 Korea's first written submission, paras. 5, 53, and 414; Japan's second written submission,
para. 583(4).

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as such by the authorities. Such information shall not be disclosed without specific
permission of the party submitting it.
7.199. According to this provision, confidential information 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. This provision distinguishes between two types of confidential
information (a) information that is "by nature" confidential, and (b ) information "provided on a
confidential basis". In practice, these two categories may overlap.599
7.200. Article 6.5 further provides that both information that is "by nature" confidential and
information that is "provided on a confidential basis" shall be treated as confidential "upon good
cause shown".600 Article 6.5 does not define "good cause" or prescribe the manner in which it is
"shown". Prior panels have found that the nature and the degree of the requirement to show good
cause depends on the information concerned. 601 For information that is claimed to be "by nature"
confidential, good cause may be shown by establishing that the information fits into the Article 6.5
(chapeau) description of such information.602
7.201. As noted above, Japan claims that Korea acted inconsistently with Article 6.5 in respect
of 102 instan ces where the KIA treated information in the documents as confidential without a
showing of "good cause" having been made. 603 In particular, Japan argues in relation to all
102 instances of confidential treatment identified in the annex that the KIA acted inconsistently with
Article 6.5 of the Anti-Dumping Agreement because:
a. the KIA granted confidential treatment to the information without a showing of good cause
having been made by the applicants604; and
b. the KIA failed to specify "on what basis" the confidential treatment was afforded.605
7.202. Japan further argues that:
a. in relation to Nos. 14, 46, and 65 of the annex, the KIA could not have assessed good
cause for confidential treatment as the source information was not disclosed606;
b. in relation to Nos. 10, 15, 16, 19, 40, 44, and 45 of the annex, the KIA had no basis to
treat this information confidentially as it was sourced from public databases607;
c. in relation to Nos. 78-79, 81, 83, and 95-97, Korea has conceded that the information was
already public, and therefore was inappropriate to be treated confidentially608; and
d. in relation to No. 61, Korea incorrectly relied upon an argument that there is no obligation
for an authority to disclose information that has not been requested in justifying the
KIA's confidential treatment of that information.609
7.203. Korea rejects Japan 's argument that the KIA acted inconsistently with Article 6.5 of the
Anti-Dumping Agreement.610 We address each of Japan's arguments, and Korea 's corresponding
rebuttals, in turn below.

599 Appellate Body Report, EC – Fasteners (China), para. 536.
600 Appellate Body Reports, EC – Fasteners (China) (Article 21.5 – China), para. 5.37; EC – Fasteners
(China), para. 537; and Panel Reports, Korea – Certain Paper, para. 7.335; Mexico – Steel Pipes and Tubes,
para. 7.378.
601 Panel Reports, Mexico – Steel Pipes and Tubes, para. 7.378; Korea – Certain Paper, para. 7.335.
602 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.378.
603 Japan's first written submission, paras. 328 and 337-339.
604 Japan's first written submission, paras. 337 and 339.
605 Japan's first written submission, para. 339.
606 Japan's first written submission, para. 339 and fn 414.
607 Japan's first written submission, para. 339 and fn 415.
608 Japan's second written submission, para. 562 and fn 767.
609 Japan's second written submission, para. 563 and fn 773.
610 Korea's first written submission, paras. 420-427.

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7.6.2 Whether the KIA erred under Article 6.5 by granting confidential treatment without
a showing of good cause having been made by the applicants
7.204. As noted above, Japan argues that, in all 102 specific instances identified in the annex, the
KIA acted inconsistently with Article 6.5 by granting confidential treatment to the information
without a showing of good cause having been made by the applicants.611 Japan contends that this
failure by the applicants to show good cause is established by the fact that "there is no explicit
mention in any of [the documents] of a 'good cause' that would justify confidential treatment of the
redacted information" .612 Korea does not dispute Japan 's assertion that the documents d o not
contain any explicit reference to good cause. Korea responds, however, that the applicants were not
required to provide explicit reasons to establish good cause. 613 Rather, Korea contends that good
cause was shown through an established practice in Korean anti-dumping proceedings in which the
submission of a document containing redacted information "implicitly asserts" that the redacted
information falls into certain categories of confidential information set out in Korean law.614 In view
of Japan's argument and Korea 's rebuttal, we understand the resolution to Japan 's claim on this
point to turn on whether the submitting party must show good cause under Article 6.5 through the
provision of explicit reasons justifying confidential treatment.
7.205. As described by Korea, it is the established practice in Korean anti -dumping proceedings
that good cause is shown through the submission of a redacted document that "implicitly asserts"
that the redacted material falls under certain categories of confidential information established by
Korea's Enforcement Rule of the Customs Act ("Enforcement Rule").615 Article 15 of the Enforcement
Rule sets out four relevant categories of information "subject to confident ial treatment".616 These
confidential categories are (i) cost of production; (ii) accounting materials that have not been made
public; (iii) name, address, and trade volume of the trade partners; and (iv) matters concerning the
provider of confidential information.617 The redacted documents submitted to the KIA are understood
by the KIA to "implicitly assert[] that deleted information falls within" categories (i) -(iv) of the
Enforcement Rule.618 The documents are then checked by the KIA's investigators to confirm that the
redacted information falls within categories (i)-(iv) of the Enforcement Rule.619 Korea further asserts
that the KIA specifically instructs interested parties to follow this practice.620 Japan has not disputed
Korea's characterization of these laws and practice or Korea's description of the KIA's system for
protecting confidential information in anti -dumping proceedings . Nor has Japan challenged
Korea's claim that this system and practice was understood by both the applicants and exporters in
the proceedings at issue.621 For the purpose of this analysis , then, we consider Korea's description
to accurately represent the ordinary operation of the Enforcement Rule in Korean anti -dumping
proceedings.
7.206. In this context, J apan argues that the KIA erred in granting confidential treatment to the
information because "there is no explicit mention in any of [the] submissions of a 'good cause' that
would justify confidential treatment of the redacted information" .622 Japan's argument is based on
the premise that under Article 6.5 the party seeking confidential treatment is " required to furnish
reasons justifying such treatment" .623 Japan's argument, however, is not supported by the text of

611 Japan's first written submission, paras. 337 and 339.
612 Japan's first written submission, para. 339.
613 Korea's first written submission, paras. 421-422.
614 Korea's first written submission, para. 422; second written submission, paras. 288-289.
615 Korea's first written submission, para. 421.
616 Article 15 of the Enforcement Rule of the Customs Act, (Exhibit KOR-34.b).
617 Article 15 of the Enforcement Rule of the Customs Act, (Exhibit KOR-34.b). The Enforcement Rule
also provides for a fifth category, being "other materials adequately deemed as confidential". (Article 15 of the
Enforcement Rule of the Customs Act, (Exhibit KOR-34.b)). Korea acknowledges that a separate showing of
good cause by the party submitting information would be required for confidential treatment on the basis of
this category. (Korea's first written submission, para. 423).
619 Korea's first written submission, para. 423.
620 Korea's response to Panel question No. 114, para. 236.
621 Korea's first written submission, paras. 421-422; second written submission, para. 288.
622 Japan's first written submission, para. 339.
623 Japan's first written submission, para. 332 (referring to Appellate Body Report, EC – Fasteners
(China), para. 539, in turn quoted in Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST
(EU), para. 5.95 and Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China), para. 5.39, in turn
referring to Appellate Body Report, EC – Fasteners (China), para. 539).

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Article 6.5.624 Article 6.5 of the Anti -Dumping Agreement simply provides that "confidential
information shall, upon good cause shown, be treated as such by the authorities". Article 6.5 does
not specify the manner in which "good cause" is to be established. This lack of specificity necessarily
means that the exact manner in which "good cause" should be established is not prescribed. 625
Accordingly, we do not consider that an "implicit assertion" of good cause through the submission
of a redacted document in t he context of the Enforcement Rule necessarily gives rise to an
inconsistency with Article 6.5.626 Rather, we agree with prior panels that the nature and the degree
of the requirement to show good cause depends on the information concerned.627 For some types of
information, it may be self -evident that the information falls within one of the categories in the
Enforcement Rule and that its disclosure would cause commercial harm.628 For such information, an
"implicit assertion" could well suffice.
7.207. In that regard, we recall that Japan has not challenged the Enforcement Rule on an "as such"
basis. Instead, Japan accepts that "Article 15 of the Enforcement Rules of the Customs Act of Korea
could potentially be applied in a manner that is consistent with Article 6.5".629 Japan's concern is
that the categories in the Enforcement Rule are "so general" that "merely indicating one of those
categories may not be enough to show good cause under Article 6.5"630, and therefore the lack of
an explicit showing by the submitting party as to which category was being invoked and the lack of
"a supplemental basis for good cause as to why such information should be regarded as confidential"
amounts to an inconsistency with Article 6.5.631

624 Japan's first written submission, para. 332 (referring to Appellate Body Report, EC – Fasteners
(China), para. 539, in turn quoted in Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST
(EU), para. 5.95).
625 As the panel in EU – Footwear (China) stated, "there is nothing in Article 6.5 which would require any
particular form or means for showing good cause, or any particular type or degree of supporting evidence
which must be provided" and "the nature of the showing that will be sufficient to satisfy the 'good
cause' requirement will vary, depending on the nature of the information for which confidential treatment is
sought". (Panel Report, EU – Footwear (China), para. 7.728).
626 The Appellate Body in Korea – Pneumatic Valves (Japan), in response to a similar argument by
Korea, stated that "[w]e doubt that an 'implicit' indication by way of redacting certain information from a
submission would suffice for establishing such a showing of good cause". (Appellate Body Report, Korea –
Pneumatic Valves (Japan), para. 5.411). The Appellate Body added that, in its view, "the mere redaction of
information does not establish, in and of itself, that such information falls within certain legal categories for
confidential information, let alone that there is good cause for treating certain information as confidential".
(Appellate Body Report, Korea – Pneumatic Valves (Japan), para. 5.411). We do not disagree with the
Appellate Body. Rather, we likewise "doubt" that, in certain circumstances, the mere act of redacting certain
information will be sufficient to convey the category for which confidential treatment is being sought and
whether protection is warranted. As we understand it, the Appellate Body's "doubt" signalled that panels
should be particularly circumspect when confronted with allegations of "good cause" being "shown" through
"implicit assertions". However, the Appellate Body was not confronted with an "as such" challenge to the
KIA's system, and it is not apparent from our reading of the Appellate Body's findings that "implicit assertions"
in the context of this system will always give rise to an inconsistency with Article 6.5. For some types of
information, it will be self-evident that the information falls within one of the enumerated categories and would
cause commercial harm if disclosed. Thus, whether such "implicit assertions" suffice depends on the
information at issue in a given case.
627 Panel Reports, Mexico – Steel Pipes and Tubes, para. 7.378; Korea – Certain Paper, para. 7.335; and
EU – Footwear (China), para. 7.728.
628 See, by analogy, Appellate Body Report, EC – Fasteners (China), para. 536.
629 Japan's response to Panel question No. 110, para. 103. Japan also observes that the panel in Korea –
Pneumatic Valves (Japan) found the Enforcement Rule to have "shortcomings". (Japan's second written
submission, para. 554 (referring to Panel Report, Korea – Pneumatic Valves (Japan), para. 7.438)). However,
Japan has not demonstrated how any such shortcomings manifested on a case-by-case basis with respect to
the challenged pieces of information, and in the absence of an "as such" challenge, these alleged shortcomings
do not alone provide a basis for a finding of inconsistency with Article 6.5.
630 Japan's response to Panel question No. 110, para. 101; second written submission, paras. 548
and 554.
631 Japan's response to Panel question No. 110, para. 102. To the extent Japan makes arguments
regarding the role of the KIA in this regard, we address these in section 7.6.3. We note that Japan also
considered that, even if the submitting party had explicitly invoked one of the categories, this would have been
insufficient to show good cause because these categories "do not explain at all why certain information falls
within 'confidential' information". (Japan's response to Panel question No. 109, paras. 98-99). However,
Japan's argument fails to account for the chapeau of Article 15, which indicates that the categories cover
materials that "infringe the interests of the provider" (Article 15 of the Enforcement Rules of the Customs Act,
(Exhibit KOR-34.b)), and Japan has not explained why, for example, an interested party's "costs of

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7.208. It may well be the case that, for a given piece o f information, a submitting party need s to
do more than "implicitly assert" through a redaction that it falls within a given category under the
Enforcement Rule and warrants protection as confidential. However, in the absence of an "as such"
challenge to t he categories under the Enforcement Rule and the KIA 's system for protecting
confidential information, whether an "implicit assertion" falls short of the requirements of Article 6.5
can only be determined on the basis of a case -by-case evaluation of the pi ece of information
concerned. But Japan's claim is not premised on a case -by-case demonstration that each piece of
challenged information falls short of the requirements of Article 6.5 in the context of the Enforcement
Rule and the KIA 's system.632 It is instead based on the cross -cutting premise that the submitting
party must furnish explicit reasons at the time of submission for the confidential treatment of a given
piece of information, and that the failure to do so gives rise to a violation of Article 6.5.633 This
premise is incorrect. As we have explained, the text of Article 6.5 is not so prescriptive that it
excludes the possibility of a showing of "good cause" through an "implicit assertion" by the
submission of a redacted document in the context of the Enforcement Rule and the KIA's system,
depending of course on the particular information at issue.
7.209. Japan contends that it did not present a case -by-case demonstration of inconsistency with
Article 6.5 for each piece of challenged information because it was unaware that Korea would rely
upon a defence that the redactions reflected "implicit assertions" for good cause shown under the
Enforcement Rule.634 However, Japan's case has consistently rested on the incorrect legal premise
that Article 6.5 requires the submitting party to furnish explicit reasons at the time of submission
justifying the confidential treatment of a given piece of information. 635 As we understand it, a
corollary of this legal premise is that "implicit assertions" of good caus e shown by the submitting
party can never suffice under Article 6.5.636 Accordingly, we do not consider that Japan 's failure to
present a case-by-case demonstration of inconsistency in its first written submission can be cured
by an inability to anticipate Korea's rebuttal that good cause was shown through "implicit
assertions", or by the lack of publicly -available documentation as to the basis for which the
submitting parties sought to show good cause.637
7.210. In summary, Japan has not sought to demonstrate, for each piece of challenged information,
that the "implicit assertion" made by the applicants in the underlying review was insufficient to show
"good cause" in the context of the Enforcement Rule and the KIA's system for protecting confidential
information. Japan's case was instead premised on the incorrect understanding that Article 6.5
requires the submitting party to furnish explicit reasons at the time of submission justifying the
confidential treatment of a given piece of information . Consequently, we con sider that Japan has
failed to establish a prima facie case that the absence of explicit reasons justifying confidential
treatment accompanying the applicants ' redacted documents gives rise to an inconsistency with
Article 6.5.

production", could "never" be "by nature" confidential. In any case, we recall that Japan has not challenged the
Enforcement Rule and the KIA's system "as such", and accepts that "Article 15 of the Enforcement Rules of the
Customs Act of Korea could potentially be applied in a manner that is consistent with Article 6.5".
(Japan's response to Panel question No. 110, para. 103). Japan has not demonstrated how the potential for the
Enforcement Rule and the KIA's system to be applied in a WTO-inconsistent manner alone establishes that the
KIA's treatment of each piece of challenged information is inconsistent with Article 6.5.
632 Japan's response to Panel question No. 109, paras. 94-95 and 99.
633 Japan's first written submission, paras. 337-339; second written submission, para. 551; responses to
Panel question No. 82, paras. 386-387 and 389, No. 83, paras. 390-391, No. 108, para. 93, No. 109, para. 97,
No. 110, para. 102, No. 112, paras. 105-108, and No. 114, paras. 113-114; and comments on
Korea's response to Panel question No. 107, para. 190.
634 Japan's response to Panel question No. 109, paras. 95 and 99.
635 See fn 633 above.
636 Japan's second written submission, para. 550; responses to Panel question No. 109, para. 97,
No. 112, paras. 107-108, and No. 114, paras. 113-114. With respect to the Appellate Body's observations in
Korea – Pneumatic Valves, see fn 626 above.
637 To the extent that Japan subsequently sought to submit item-specific reasons for which "good cause"
was not shown (e.g. Japan's rebuttals to Exhibit KOR-35, (Exhibit JPN-39); and Japan's correction to
Exhibit KOR-82, (Exhibit JPN-44), which appear primarily directed at Article 6.5.1 but potentially contain
arguments relevant to Article 6.5), we observe that these were made in response to Korea's rebuttal, as
opposed to forming the basis of Japan's original claim as set out in its first written submission. (Working
Procedures, clause 3(1); see also Appellate Body Report, Argentina – Textiles and Apparel, para. 79; and Panel
Reports, US – Washing Machines, paras. 7.82-7.85; US – Carbon Steel (India) (Article 21.5 – India),
para. 7.101).

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7.6.3 Whether the KIA failed to specify "on what basis" the confidential treatment was
afforded
7.211. As noted above, Japan also argues that the KIA acted inconsistently with Article 6.5 because
the KIA failed to specify "on what basis" the confidential treatment was afforded.638 Japan contends
that this is evidenced by the absence of any "specific indication, in the relevant documents on record"
indicating "on what basis the [KIA] granted confidential treatment to such information" .639 Korea
responds that Article 6.5 only requires tha t an authority "satisfy itself" as to whether good cause
was shown.640 In our understanding, the consequence of Korea's argument is that Korean officials
should be assumed to have checked whether the redacted information in the documents fell into the
categories of the Enforcement Rule, and to have thus discharged the requirement for good cause in
Article 6.5.641 In view of Japan 's argument and Korea 's rebuttal, we understand the resolution to
Japan's claim on this point to turn on whether, in light of the KIA's system and the circumstances of
the present case, the KIA was required under Article 6.5 to provide a report or other written evidence
indicating on what basis good cause was granted.
7.212. We begin by addressing a number of interpretive questions arising fr om Japan's argument
and Korea 's rebuttal. Japan argues that KIA 's failure to provide a report or some other written
document evidencing "on what basis " confidential treatment was granted was inconsistent with
Article 6.5.642 In Japan's view, Article 6.5 provides that an authority must "objectively assess[] [the]
facts introduced by the party seeking confidential treatment, must decide whether the confidential
treatment should be granted, and must indicate such assessment in its published repor t or related
supporting documents".643 In our view, a s noted at paragraph 7.206 above, Article 6.5 does not
require the submitter of information to necessarily submit explicit reasons justifying the confidential
treatment sought. Similarly, we see nothing in the text of Article 6.5 to support the proposition that
it requires an authority, in all cases, to provide a report or other written evidence indicating the
authority's assessment of good cause. Rather, Article 6.5 relevantly requires that informatio n that
is "by nature" confidential or "provided on a confidential basis" not be disclosed "upon good cause
shown". We agree with the panel's observations in Mexico – Steel Pipes and Tubes that:
[W]e do not consider that the obligations contained in Article 6.5 set forth exactly how
an investigating authority should or must eva luate a request for confidential
treatment[]. Nor do we consider that this provision sets forth how an investigating
authority should or must indicate (explicitly or otherwise in the record of the
investigation) how, and the extent to which, it assessed an applicant's assertion to
conclude that "good cause" existed for the information to be treated as confidential
within the meaning of Article 6.5[.]644
7.213. As with the panel in Mexico – Steel Pipes and Tubes, we do not consider that Article 6.5
contains any strict requirement that an authority provide a written report evidencing its assessment.
Rather, we consider that whether good cause has been shown in a given case must be determined
by the facts of that particular case. The absence of any indication by the KI A evidencing its
assessment of good cause is thus simply a fact that must be taken into account in determining
whether Japan has established that the KIA failed to ensure "good cause shown", and whether Korea
has effectively rebutted that case.

638 Japan's first written submission, para. 339. We note that Japan also argued that the KIA failed to
objectively assess whether good cause had been shown by the applicants. As discussed at
paragraph 7.206 above, that argument is based on the incorrect view that Article 6.5 assigns distinct roles to
the submitter and the authority. We thus consider that this limb of Japan's argument fails.
639 Japan's first written submission, para. 339.
640 Korea's first written submission, paras. 426-427; second written submission, paras. 290 and 295.
641 Korea's first written submission, para. 426.
642 Japan's first written submission, para. 339; opening statement at the first meeting of the Panel,
para. 81.
643 Japan's response to Panel question No. 82, para. 389.
644 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.393. The Panel in Mexico – Steel Pipes and
Tubes upheld the confidential treatment of information under Article 6.5 despite the absence of any "explicit
indication, on the part of [the authority], as to why it considered that the assertions of 'good cause' for
confidential treatment of the information concerned were merited". (Ibid. para. 7.394).

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7.214. However, we disagree with Korea's argument that an investigating authority need only
"satisfy itself" that good cause is shown before treating information as confidential.645 If an authority
were only required to "satisfy itself" that good cause had been shown, there would be no basis for a
panel to objectively assess compliance with Article 6.5.646 In the absence of any textual or contextual
support, we cannot endorse Korea's interpretation of Article 6.5 on this point.
7.215. We turn now to whether Japan has established that the KIA failed to specify "on what basis"
good cause was shown for the pieces of information at issue. Korea argues that the Panel should
presume the KIA investigators acted in compliance with domestic laws , and thus that good cause
was properly shown in accordance with Article 6.5.647 Japan responds that such compliance cannot
be presumed as there was no specific indication in the documents on the record evidencing that the
KIA complied with domestic laws or which of the Enforcement Rule 's categories each item of
information was found to fall under.648
7.216. It is undisputed that the KIA did not provide any indication as to "on what basis" good cause
was shown for the items of information at issue. As we will explain, Japan has identified a range of
instances that indicate that the KIA failed to adequately check the redacted information and ensure
"good cause shown", in contrast to Korea 's description of the way in which the KIA 's system and
practice would ordinarily operate.
7.217. First, Japan has identified a number of instances of information that is already publicly
available and thus could not be "by nature" confidential. 649 Korea responded that these instances
pertained to information that was not publicly available but is rather "commercially supplied by the
KITA" and is thus consequently "by nature" confidential as its "disclosure of which would inevitably
have a significantly adverse effect upon KITA". 650 While we accept that information that was
commercially available only to a restricted group could be "by nature" confidential, Korea has not
pointed to any evidence showing that the exporters or other members of the public were unable to
reasonably access the same information through, e.g. purchasing it from the Korea International
Trade Association (KITA). Additionally, we note that Korea appears to concede that the KITA data
used for another exhibit was based entirely on data made public by the Korea Customs Service.651
7.218. Second, Japan has identified information (Nos. 14, 46, and 65) where the source material is
not disclosed, and contends that, without the source material, the KIA would have been unable to
verify that this information was not publicly available and hence confirm that "good cause" was
"shown".652 Korea responds that the KIA's confidential treatment of this information was consistent
with its obligation not to disclose information upon good cause shown , and that there is no
requirement under Article 6.5 to disclose the "source" of the information, nor was the information
at issue "particularly relevant to the final determination ".653 In light of our review of the nature of
the specific information at issue in Nos. 14, 46, and 65 – which was supplied by the applicants, but

645 Korea's first written submission, para. 426; second written submission, paras. 290 and 295.
646 Article 6.5 requires that an authority shall, "upon good cause shown", not disclose confidential
information. The absence of any indication that Article 6.5 only requires an authority to "satisfy itself" indicates
that this was not intended. The interpretation of Article 6.5 is further informed by the basic right of Members to
request that a panel be composed to review other Members' compliance with the Anti-Dumping Agreement;
this is part of the context in which we interpret Article 6.5. Such scrutiny requires that there be some basis to
enable a panel to assess an authority's conformity or non-conformity with Article 6.5.
647 Korea's first written submission, para. 426.
648 Japan's first written submission, para. 339.
649 Japan's first written submission, para. 339 and fn 415 (referring to Nos. 10, 15, 16, 19, 40, 44,
and 45 of the annex). In relation to Nos. 10, 15, 16, 19, 40, 44, and 45 of the annex, Japan argues the
information appears to be sourced from public databases and thus the KIA had no basis to presume it should
be treated confidentially. (Japan's first written submission, para. 339 and fn 415).
650 Korea's response to Japan's Article 6.5.1 allegations, (Exhibit KOR-35), Nos. 10, 15, 16, 19, 40, 44,
and 45.
651 Korea's response to Panel question No. 71 (discussing Import Clearance Matrix,
(Exhibit KOR-43.b (BCI))). While there is no evidence before this Panel that would allow the Panel to infer
that the source information for Nos. 10, 15, 16, 19, 40, 44, and 45 is non-proprietary public information from
the Korea Customs Service, Korea has failed to clarify what information from KITA does originate from the
Korea Customs Service.
652 Japan's first written submission, para. 339 and fn 414 (referring to Nos. 14, 46, and 65). See also
Japan's response to Panel question No. 113, paras. 109-111. We note that Japan added further items to its
contention in this regard (see ibid. para. 112), but did so at a very late stage in these proceedings.
653 Korea's comments on Japan's response to Panel question No. 113, p. 60.

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does no t pertain to the applicants ' own operations – we cannot see how the KIA could have
performed the alleged checks and confirmed, in the manner claimed by Korea, that there was indeed
"good cause" for protecting those items as confidential without any understanding of their source or
origins.
7.219. Third, Japan observes that Korea itself conceded that further materials had already been
made public.654 Having tacitly conceded that these items had "already been made public" 655 and
that, for some of these items, that Japan "already has full access to the information"656, Korea later
asserted that it had described the information as "public" only in "the sense that [it] could be
obtained by the relevant public such as members of the [Japan's Stainless Steel Association ] or
following payment". 657 We consider that Korea clearly acknowledged that Nos. 78-79, 81, 83,
and 95-97 are public information. Korea's later attempts to clarify the meaning of "publicly available"
were incomplete and unsupported by evidence.658
7.220. We also no te that, in respect of one of the pieces of protected information, Korea
suggested arguendo that the KIA would not have needed to disclose it because no request for
disclosure was made by the exporters. 659 It is not clear to us whether the KIA itself relied on the
premise that information for which confidential treatment was requested need only be disclosed if a
request or challenge were made by another interested party. However, to the extent that this does
indeed reflect an approach pursued the KIA in the review at issue , it would suggest that some
information may have been presumptively protected as confidential unless an interested party
explicitly challenged that designation or requested its disclosure. As Japan observed, such an
approach would have no basis in Article 6.5660, and would run c ounter to Korea 's own arguments
about the process of checks that the KIA would ordinarily undertake.
7.221. Our starting point in evaluating Japan 's claim is to presume that the KIA abided by and
implemented, in good faith, Korean laws, regulations, and policies regarding the treatment of
confidential information. The existence of a series of items for which there are manifest inadequacies,
however, means that in the review at issue we are unable to rely on a presumption that the KIA
properly followed its system of checking implicit assertions against predetermined categories to
ensure that there was "good cause shown". These inadequacies were present not just for a handful
of items, but for a significant number of the redactions at issue. Therefore, the fact of the existence
of the aforementioned system of checking does not, in and of itself, provide a sufficient rebuttal to
Japan's claims regarding this particular sunset review. The absence of any reference to the
KIA's basis for protecting information as confide ntial in the record means that we have no
other grounds to ascertain whether the KIA ensured that "good cause" was properly shown for each
of the challenged pieces of information. We therefore find that the KIA acted inconsistently with

654 Japan's second written submission, para. 562 and fn 767 (referring to Nos. 78-79, 81, 83,
and 95-97). In relation to Nos. 78-79, 81, 83, and 95-97, Japan argues that that Korea has conceded that the
information is already public, and therefore inappropriate to be treated confidentially. (Japan's second written
submission, para. 562). Korea first stated in Exhibit KOR-35 accompanying the first written submissions that
these items had "already been made public". (Korea's response to Japan's Article 6.5.1 allegations,
(Exhibit KOR-35), Nos. 78-79, 81, 83, and 95-97). In respect of Nos. 79, 83, and 95-97, Korea additionally
observed that Japan "already has full access to the information". (Korea's response to Japan's Article 6.5.1
allegations, (Exhibit KOR-35), Nos. 79, 83, and 95-97). Korea later asserted that it had described the
information as "public" only in "the sense that [it] could be obtained by the relevant public such as members of
the JSSA or following payment". (Korea's response to Panel question No. 108, para. 231; see also
Korea's response to Exhibit JPN-39, (Exhibit KOR-82), Nos. 78-79, 81, 83, and 95-97). We consider that Korea
clearly conceded that Nos. 78-79, 81, 83, and 95-97 are public information. Korea's later attempts to clarify
the meaning of "publicly available" were incomplete and unsupported by evidence.
655 Korea's response to Japan's Article 6.5.1 allegations, (Exhibit KOR-35), Nos. 78-79, 81, 83,
and 95-97.
656 Korea's response to Japan's Article 6.5.1 allegations, (Exhibit KOR-35), Nos. 79, 83, and 95-97.
657 Korea's response to the Panel question No. 108, para. 231. See also Korea's response to
Exhibit JPN-39, (Exhibit KOR-82), Nos. 78-79, 81, 83, and 95-97.
658 While Korea contends that this information is "sold to subscribers subject to the condition that the
information is not disclosed to the general public", we have no evidence before us to suggest that the "general
public" could not reasonably become "subscribers" based on e.g. cost or other restrictions. (Korea's comments
on Japan's response to Panel question No. 108, p. 52).
659 Korea also indicated this information was "by nature" confidential. (Korea's response to
Japan's Article 6.5.1 allegations, (Exhibit KOR-35), No. 61; Korea's response to Panel question No. 107,
para. 228).
660 See, e.g. Japan's second written submission, para. 563 (referring to Korea's response to
Japan's Article 6.5.1 allegations, (Exhibit KOR-35), No. 61).

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Article 6.5 by granting of confidential treatment to the 102 items identified in the annex. We
recall that Japan made its claim under Article 6.5 in tandem with a claim under A rticle 11.4 of the
Anti-Dumping Agreement, since Article 11.4 provides the legal basis for which Article 6.5 applied to
the sunset review at issue. In view of our findings in relation to Article 6.5, we likewise find that the
KIA acted inconsistently with Article 11.4.
7.222. We emphasize that our finding is confined to the particular redactions challenged by Japan
in the review at issue in these proceedings. We reiterate that, in our view, Japan has not
demonstrated that the KIA 's system for protecting informatio n as confidential is incapable of
operating in a manner consistently with Article 6.5. Rather, we see merit in the general approach
adopted by the KIA to protecting confidential information.
7.223. Given the above finding, we do not consider it necessary to consi der Japan 's other
arguments with respect to Article 6.5. As we have already found that the KIA's confidential treatment
of all 102 items of information at issue to be inconsistent with Article 6.5, it adds nothing further to
consider Japan's arguments in relation to certain specific items.
7.7 Judicial economy
7.224. Japan makes a number of claims in addition to those considered above, namely that the KIA
acted inconsistently with:
a. Article 11.3 of the Anti -Dumping Agreement by conducting a cumulative assessment of
Indian and Japanese imports661;
b. Article VI:6(a) of the GATT 1994 by its decision to continue levying anti -dumping
duties662;
c. Articles 6.9 and 11.4 of the Anti-Dumping Agreement by failing to properly disclose certain
alleged "essential facts"663;
d. Articles 12.2, 12.2.2, and 12.3 of the Anti -Dumping Agreement by failing to provide the
Japanese exporters with a public notice stating the findings and all relevant information
regarding matters of fact and law in sufficient detail664; and
e. Articles 6.5.1 and 11.4 of the Anti‑Dumping Agreement in respect of 80 instances in the
documents as identified in the annex.665
7.225. For the reasons set out below we consider it appropriate to exercise judicial economy with
respect to these claims. We will first consider the principle of judicial economy, and then apply that
principle to each of the claims listed above.666
7.226. It is well established that a panel need only address those claims that must be addressed in
order to resolve the matter in issue in a dispute.667 This principle of judicial economy "allows a panel
to refrain from making multiple findings that the same measure is inconsistent with various
provisions when a single, or a certain number of findings of inconsistency, would suffice to resolve
the dispute".668 Thus, a "panel has to address those claims on which a finding is necessary in order
to enable the DSB to make sufficiently precise recommendations and rulings so as to allow for prompt

661 Japan's first written submission, para. 91.
662 Japan's first written submission, para. 193; second written submission, paras. 438-448.
663 Japan's first written submission, para. 12.
664 Japan's first written submission, para. 348.
665 Japan's first written submission, paras. 328 and 340, and annex, pp. 145-165.
666 We give a brief overview of each of Japan's claims and Korea's corresponding response. This is solely
for the purpose of identifying the claim over which we are exercising judicial economy, and is not intended to
be provide a comprehensive or fulsome account of the parties' respective arguments and rebuttals on each
point.
667 Appellate Body Report, US – Wool Shirts and Blouses, DSR 1997:I, p. 340.
668 Appellate Body Reports, Argentina – Import Measures, para. 5.190 (quoting Appellate Body Report,
Canada – Wheat Exports and Grain Imports, para. 133). (emphasis on Canada – Wheat Exports and Grain
Imports)

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compliance by a Member with those recommendations and rulings". 669 However, for other claims –
i.e. claims on which a finding is not necessary so as to allow for prompt compliance by the Member
concerned – panels may exercise judicial economy.
7.227. In instances where a panel exercises judicial economy, it is required to explain its decision
to decline to examine those claims. 670 While we explain below our exercise of judicial economy for
each of Japan's claims listed in paragraph 7.224, we make the overarching point that findings on
these claims would add nothing to the way in which Korea chooses to comply with the inconsistencies
that we have already found in section s 7.5 and 7.6. The significance of this lies in our "objective
assessment" under Article 11 of the DSU encompassing not only a duty to ensure a positive and
effective resolution to the dispute, but also a prompt resolution in light of the magnitude and
complexity of the matter to be resolved. 671 The DSU envisages that a balance is struck between
providing " high-quality panel reports, while not unduly delaying the panel process ".672 Prudent
expeditiousness is a core facet of our "objective assessment". With that in mind, we explain our
exercise of judicial economy for each applicable claim.
7.228. First, Japan contends that the KIA acted inconsistently with Article 11.3 of the
Anti-Dumping Agreement by conducting a cumulative assessment of Indian and Japanese imports
for the purposes of its likelihood-of-injury assessment.673 Japan argues there is limited competition
between Japanese and Indian imports because of the differences in the mix of grades a nd price
levels.674 Japan contends, therefore, that the KIA could not have assumed that Japanese and Indian
products could be cumulated, and failed to conduct an adequate analysis of the competitive
relationship between them. 675 Korea rejects Japan 's argument and responds that the competitive
relationship was adequately addressed in the KIA's determination, and moreover, the difference in
product mixes was rendered irrelevant by the "high adaptability" of SSB production facilities and the
made-to-order nature of the market, together with the fact that all relevant producers could and did
compete over the same demand.676
7.229. We consider it appropriate to exercise judicial economy over Japan 's claim that the
KIA's cumulation analysis was inconsistent with Article 11.3. It emerged during these proceedings
that the KIA's likelihood-of-injury assessment was not conducted exclusively on a cumulative basis.
On the contrary, with respect to the KIA 's examination of prices during the POR and the
consequences of the drop in prices arising from lifting the anti-dumping duties, the KIA engaged in
both cumulative and decumulative analyses, including with respect to Japan individually.677 Each of
the intermediate findings on the consequences of the drop in prices arising from lifti ng the
anti-dumping duties, which in turn led to the ultimate conclusion, incorporated findings specific to
Japan.678 The intermediate finding of the "large recovery of price competitiveness in the domestic
market" was based on a Japan-specific analysis of the effects of its prices falling by KRW [[***]].679
The subsequent intermediate finding of a "growth in exports to Korea and weaken[ing] [of] the price
competitiveness of the like products" was likewise based on a Japan -specific analysis of a p rice
decline by "[[***]]% for Japanese products".680 Accordingly, the ultimate conclusion that "a drop in
the price of the dumped imports and an increase in the volume of dumped imports will lead to

669 Appellate Body Report, Australia – Salmon, para. 223.
670 Appellate Body Report, Canada – Autos, para. 117.
671 See, e.g. Articles 3.3, 3.7, 11, 12.2, 12.8, and 21.1 of the DSU.
672 Article 12.2 of the DSU.
673 Japan's first written submission, paras. 90-105.
674 Japan's first written submission, paras. 106-115; second written submission paras. 10 and 151-153.
675 Japan's first written submission, paras. 116-118; second written submission paras. 151-155.
676 Korea's first written submission, paras. 133-182; second written submission, paras. 50, 52, 59,
and 71.
677 Korea's first written submission, para. 247; responses to Panel question No. 19(a)(ii), and
Nos. 64(a) and 64(d); and second written submission, paras. 90, 105, and 185.
678 Korea's first written submission, para. 247; response to Panel question No. 64(a); and
second written submission, paras. 105, 185, and 240-241.
679 OTI's final report, (Exhibit KOR-5.c (BCI)), p. 63; see also Korea's response to Panel
question No. 64(a).
680 OTI's final report, (Exhibit KOR-5.c (BCI)), p. 67; see also Korea's first written submission,

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recurrence of material injuries to the domestic industry" was, with respect to the consequences of
the drop in Japanese prices, premised on certain Japan-specific findings.681
7.230. Thus, with respect to Japan, the ultimate conclusion on the consequences of the drop in
prices did not turn on a cumulative assessment. We therefore agree with Korea that "[t]he relevance
of the cumulation decision is thus very limited as the authorities complemented and supplemented
the cumulative analysis consistently with a country -specific analysis".682 As Korea explains, "[t] he
decision to cumulate therefore did not mean that no separate, complementary analysis of prices just
for Japan took place".683 Moreover, with respect to production capacity and capacity utilization, we
see nothing in the KIA 's determination to indicate that Japan 's capacity utilization rate was
cumulated with India's capacity utilization rate for the purposes of the KIA's ultimate conclusion.684
With that in mind, given that we have found that the KIA acted inconsistently with Article 11.3 on
the basis of findings by the KIA that rested upon Japan -specific analyses, we do not see why a
finding on the KIA 's decision to cumulate the effects of Indian and Japanese dumped imports for
certain aspects of its analysis would assist in resolving the present dispute. Specifically, we cannot
see how such a finding would affect, or add to, the manner in which Korea chooses to comply with
the inconsistencies that we have already found under Article 11.3 in section 7.5.685
7.231. We note that some of the parties' arguments relating to the competitive market relationship
amongst SSBs from the respective countries had relevance beyond Japan 's cumulation claim. We
have addressed these, to the extent necessary, in section 7.5. In terms of Korea's description of the
KIA's findings of the competitive market relationship, our evaluatio n proceeded on the basis of
Korea's explanation686, and in view of our findings in that section , we did not consider it necessary
to address Japan 's objections against aspects of that explanation as ex post, except where
specifically required to resolve an aspect of the claim in question.
7.232. Second, Japan claims that Korea 's decision to continue levying anti -dumping duties is
inconsistent with Article VI:6(a) of the GATT 1994.687 Japan argues this is because the KIA has not
established that the effect of the alleged dumping is such as to cause or threaten material injury to
an established domestic industry. 688 Korea reject's Japan's claim, and further responds that Japan
has failed to specify which obligations under Article VI:6(a) of the GATT 1994 were allegedly violated
and consequently that the argument is outside the Panel's terms of reference.689
7.233. We consider it appropriate to exercise judicial economy with regard to this claim.
Japan's claim under Article VI:6(a) of the GATT 1994 is entirely consequential on Japan's arguments
made under Article 11.3 of the Anti -Dumping Agreement.690 We have already determined that the
KIA's likelihood-of-injury determination is inconsistent with Article 11.3 of the
Anti-Dumping Agreement. It would thus add nothing to the resolution of the dispute to reach a
finding on Japan's claim under Article VI:6(a) of the GATT 1994, and we therefore decline to address

681 OTI's final report, (Exhibit KOR-5.c (BCI)), p. 67. As we understand it, the KIA "noted current price
trends over the POR of the dumped imports, both on a cumulated and de-cumulated basis" and found that
"without duties, the underselling would be very significant for the dumped imports, and that prices of Japanese
dumped imports would drop significantly by at least [[***]]%", and in turn "[t]his intermediate finding
supported the overall reasonable conclusion that there was a likelihood of future injury if the duties expired".
(Korea's second written submission, para. 185 (emphasis added); see also first written submission,
paras. 247-248). We reject Japan's argument to the contrary. (Japan's response to Panel question No. 40,
paras. 225-226).
682 Korea's second written submission, para. 90.
683 Korea's second written submission, para. 105.
684 Rather, the KIA's determination consistently referenced respective country-specific figures for India
and Japan on production capacity. (OTI's final report, (Exhibit KOR-5.c (BCI)), pp. 57-61 and 67; KTC's final
resolution, (Exhibit KOR-4.b (BCI)), pp. 19-22).
685 See further Annex A-3 (Interim Review), para. 2.211.
686 See, e.g. paras. 7.70-7.74 above.
687 Japan's first written submission, para. 193; second written submission, paras. 438-448.
688 Japan's first written submission, para. 193; second written submission, paras. 438-448.
689 Korea's first written submission, paras. 458-464; second written submission, paras. 313-318.
690 Japan's first written submission, para. 193; second written submission, paras. 438-448.

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it. It is likewise unnecessary to consider whether or not Japan 's claim under Article VI:6(a) of the
GATT 1994 would be outside our terms of reference.691
7.234. Third, Japan claims that certain alleged "essential facts" pertaining to six of the KIA's findings
were not sufficiently disclosed under Articles 6.9 and 11.4 of the Anti-Dumping Agreement.692 Japan
argues that neither the information disclosed nor the method of disclosure was sufficient to enable
the interested part ies to understand the basis of the KIA's decision and to comment on the
completeness or correctness of conclusions reached by the investigating authority. 693 Korea
responds that the KIA disclosed all essential facts under consideration in a manner consistent with
Article 6.9.694
7.235. We consider it appropriate to exercise judicial economy over these claims. Japan's claims
under Articles 6.9 and 11.4 pertain to alleged "essential facts" concerning the
KIA's likelihood-of-injury determination. 695 We have already found the KIA 's likelihood-of-injury
determination to be inconsistent with Article 11.3 due to a failure by the KIA to engage in an
"unbiased and objective" evaluation of certain factual matters. Any fresh evaluation of the likelihood
of injury by the KIA as a consequence of the findings in section 7.5 of this Report would necessarily
require a renewed factual assessment of those matters.696 A fresh factual evaluation would warrant
a fresh disclosure of the "essential facts" under consideration for the purposes of Article 6.9.697 A
determination in the present Panel proceedings as to whether the KIA complied with the
requirements of Article 6.9 in the review at issue would relate only to the particular factual
assessment in the review at issue, and not to a fresh factual evaluation undertaken to comply with
DSB rulings arising from this Report. Thus, findings in the present Panel proceedin gs would be
relevant to a fresh factual evaluation by analogy only, if at all; any such fresh factual evaluation
would again be subject to the procedural requirements of Article 6.9, and therefore the
authority's compliance with Article 6.9 in respect of that fresh evaluation would turn on the particular
circumstances of that case. Thus, our exercise of judicial economy over the present claims would
not affect the obligation under Article 6.9 to "inform all interested parties of the essential facts under
consideration which form the basis for the decision", including "in sufficient time for the parties to
defend their interests", as part of any reinvestigation to comply with DSB rulings arising from this
Report. We consider it relevant, in this regard, that Japan clarified explicitly that it "does not intend
to challenge Korea 's system … 'as such ' in the current case". 698 Questions concerning systemic or
regular practices of the KIA which may arise in a later review or fresh factual evaluation have thus
not been raised as a matter for this Panel 's consideration. Accordingly, a finding on Japan 's claims
under Articles 6.9 and 11.4 of the Anti -Dumping Agreement would add nothing to the manner in
which Korea chooses to comply with the inconsistencies that we have already found under
Article 11.3 of the Anti-Dumping Agreement.699

691 While questions of jurisdiction are fundamental, we consider it appropriate and expeditious to apply
judicial economy to Japan's claim on an arguendo basis to "enhance the simplicity and efficiency" of the
proceedings. (Appellate Body Report, China – Publications and Audiovisual Products, para. 213; Panel Report,
US – Large Civil Aircraft (2nd complaint), fn 2933). Treating Japan's claim on an arguendo basis in this context
allows this Panel to directly exercise judicial economy to remove the claim from consideration. Additionally
considering Korea's rebuttal argument that Japan's claim is outside our terms of reference would add
complexity to this analysis without affecting the outcome.
692 Japan's first written submission, paras. 295-327; second written submission, paras. 529-542.
693 Japan's first written submission, paras. 295-327; second written submission, paras. 529-542.
694 Korea's first written submission, paras. 395-411.
695 See para. 7.15 above.
696 We note that under Article 21.3 of the DSU, the implementation of DSB recommendations and
rulings is left, in the first instance, to the discretion of the implementing Member, and we do not seek to
presuppose what method of implementation Korea might adopt in the present dispute. (Panel Reports, US –
697 Panel Report, US – Carbon Steel (India) (Article 21.5 – India), paras. 7.236-7.237.
698 Japan's first written submission, para. 283.
699 By contrast, we do not consider that our findings in section 7.5 of this Report would require the
resubmission of the documents at issue in Japan's claims under Articles 6.5 of the Anti-Dumping Agreement,
nor a re-evaluation by the KIA of "good cause shown" regarding the information in those documents for which
confidential treatment was requested. Therefore, unlike our consideration of Japan's claims concerning
"essential facts" and "public notice", we cannot exercise judicial economy over Japan's claims under
Articles 6.5 on the basis that the KIA would need to re-observe those aspects of Articles 6.5 with respect to the
documents at issue as a corollary of our findings in section 7.5.

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7.236. Fourth, Japan claims that the exporters were not provided with a public notice stating the
findings and all relevant information regarding matters of fact and law in sufficient detail as required
by Articles 12.2, 12.2.2, and 12.3 of the Anti-Dumping Agreement.700 Japan contends that it is not
clear whether the KTC's final resolution, the OTI 's final report, or the Ministry of Stra tegy and
Finance's final report constituted public notice to the interested parties.701 Regardless, Japan argues
that none of these documents provide sufficient detail in relation to a range of the KIA's findings.702
Korea responds that the Ministry of Strategy and Finance's final report constituted public notice and
contained the KTC's final determination and the OTI's final report.703 Korea continues that this public
notice fully complied with the disclosure obligations of Articles 12.2, 12.2.2, and 12.3 of the
Anti-Dumping Agreement.704
7.237. We consider it appropriate to exercise judicial economy over these claims for the same
reasons as with respect to Japan 's "essential facts" claims under Article 6.9. In particular, as w e
have already found the KIA's likelihood-of-injury determination to be inconsistent with Article 11.3,
any fresh evaluation of the facts by the KIA as a consequence of this Report would necessitate
compliance with the disciplines contained in Articles 12.2, 12.2.2 , and 12.3 of the
Anti-Dumping Agreement. Accordingly, a finding on Japan 's claims under Articles 12.2, 12.2.2 ,
and 12.3 of the Anti-Dumping Agreement would add nothing to the manner in which Korea chooses
to comply with the inconsistencies that we have already found under Article 11.3 of the
Anti-Dumping Agreement.
7.238. Fifth, Japan claims that Korea acted inconsistently with Articles 6.5.1 and 11.4 of the
Anti‑Dumping Agreement in respect of 80 instances in the documents as identified in the annex. 705
Japan argues that the KIA acted inconsistently with Articles 6.5.1 and 11.4 of the
Anti‑Dumping Agreement because the KIA failed to ensure the provision of non ‑confidential
summaries without reference to exceptional circumstances justifying such failure. 706 Japan further
argues that, to the extent non ‑confidential summaries were provided, such summaries were not
sufficiently detailed. 707 Korea rejects Japan 's argument that the KIA acted inconsistently with
Articles 6.5.1 and 11.4 of the Anti‑Dumping Agreement.708
7.239. We consider it appropriate to exercise judicial economy over Japan's claims with respect to
Articles 6.5.1 and 11.4 . We have already determined that the KIA acted inconsistently with
Article 6.5 with respect to its confidential treatment of this same information.709 This finding makes
it unnecessary to consider whether the KIA complied with Articles 6.5.1 and 11.4 on the provision
of non-confidential summaries for that information. We thus exercise judicial economy in respect of
these claims in the interest of the efficient resolution of this dispute.
8 CONCLUSIONS AND RECOMMENDATION
8.1. For the reasons set forth in this Report, the Panel concludes as follows:
a. With respect to Korea's request for a preliminary ruling under Articles 4.4 and 6.2 of the
DSU and Articles 17.3 and 17.4 of the Anti -Dumping Agreement, Korea has not
demonstrated that any of Japan's claims are not properly before this Panel.
b. With respect to Japan's claims under Article 11.3 of the Anti-Dumping Agreement:
i. The KIA acted inconsistently with Article 11.3 of the Anti -Dumping Agreement in its
examination of the price and volume effects of the Japanese imports, by failing to

700 Japan's first written submission, para. 348.
701 Japan's first written submission, para. 348 (referring to KTC's notification of final determination,
(Exhibit JPN-21.b) and Ordinance No. 624 and Public Notice No. 2017-86, (Exhibit JPN-24.b)).
702 Japan's first written submission, paras. 348-388.
703 Korea's first written submission, paras. 445-457.
704 Korea's first written submission, paras. 445-457.
705 Japan's first written submission, paras. 328 and 340, and annex, pp. 145-165.
706 Japan's first written submission, paras. 328 and 340, and annex, pp. 145-165.
707 Japan's first written submission, paras. 342 and 346.
708 Korea's first written submission, para. 344; second written submission, paras. 560-561.
709 See section 7.6.3 above.

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undertake an unbiased and objective evaluation of the facts on the consequences of
the drop in Japanese prices.
ii. The KIA acted inconsistently with Article 11.3 of the Anti -Dumping Agreement in its
findings on the exporters' production capacity and capacity utilization by rejecting data
submitted by the Japanese exporters on the basis of their failure to comply with certain
parameters of which they were not properly informed, and thereby failing to undertake
an unbiased and objective evaluation of the facts on Japan 's production capacity and
capacity utilization.
iii. Japan has not demonstrated that the KIA acted inconsistently with Article 11.3 of the
Anti-Dumping Agreement by failing to consider, as other potential injury factors, the
cost of raw materials, and the weak demand in the domestic and export markets.
iv. Given our findings at paragraph 8.1.b.i, we exercise judicial economy with respect to
Japan's claim under Article 11.3 of the Anti -Dumping Agreement in relation to the
assessment of KIA 's alleged failure to examine third -country imports as an other
potential injury factor.
v. Given our findings at paragraph s 8.1.b.i and ii , we exercise judicial economy with
respect to Japan's claim under Article 11.3 of the Anti-Dumping Agreement in relation
to the KIA's cumulation of Japanese imports with Indian i mports for the purposes of
its likelihood-of-injury assessment.
c. With respect to Japan 's claims under Articles 6.8 and 11.4 and paragraphs 3 and 7 of
Annex II to the Anti-Dumping Agreement:
i. The KIA acted inconsistently with Articles 6.8 and 11.4 by having recourse to the "facts
available" in respect of Japan's production capacity.
ii. Given our finding at paragraph 8.1. c.i, we exercise judicial economy with regard to
Japan's claims under paragraphs 3 and 7 of Annex II to the Anti-Dumping Agreement.
d. With respect to Japan 's claims under Articles 6.5, 6.5.1, and 11.4 of the
Anti-Dumping Agreement:
i. The KIA acted inconsistently with Articles 6.5 and 11.4 of the
Anti-Dumping Agreement regarding its treatment of information provided by the
applicants as confidential information.
ii. Given our finding at paragraph 8.1. d.i, we exercise judicial economy with respect to
Japan's claims under Articles 6.5.1 and 11.4 of the Anti-Dumping Agreement.
e. Given our findings at paragraphs 8.1.b.i and ii, we exercise judicial economy with respect
to Japan 's claim under Article VI:6(a) of the GATT 1994 and Korea 's corresponding
objection under Article 6.2 of the DSU that Japan 's claim in this regard was not properly
before us.
f. Given our findings at paragraphs 8.1.b.i and ii, we exercise judicial economy with respect
to Japan's claim under Articles 11.4 and 6.9 of the Anti-Dumping Agreement in relation to
the KIA's disclosure of "essential facts".
g. Given our findings at paragraphs 8.1.b.i and ii, we exercise judicial economy with respect
to Japan's claim that the KIA acted inconsistently with Articles 12.2, 12.2.2, and 12.3 of
the Anti-Dumping Agreement in relation to the provisions of the findings and conclusions
reached on all issues of fact and law.
8.2. Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations
assumed under a covered Agreement, the action is considered prima facie to constitute a case of
nullification or impairment. We conclude that, to the extent that the measures at issue are

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inconsistent with certain provisions of the Anti-Dumping Agreement, they have nullified or impaired
benefits accruing to Japan under that Agreement.
8.3. Pursuant to Article 19.1 of the DSU, we recommend that Korea bring its measure into
conformity with its obligations under the Anti-Dumping Agreement.