UNITED STATES – COUNTERVAILING MEASURES ON SUPERCALENDERED PAPER FROM CANADA AB-2018-8
Document: Report of the Appellate Body
Date: 6 February 2020
Document codes: WT/DS505/AB/R
Complainant: Canada
Respondent: U.S.
Third parties: Brazil, China, EU, India, Japan, South Korea, Mexico, Turkey
Dispute stage: Retaliation & Arbitration
Agreements cited: Art. 11.2, 11.3, 1.1(a)(iv)(1), 12.8, 1.1(b), 14(d), 10, 14, 19.1, 19.3, 19.4, 12.1, 11.1, 11.6, 1.1(a)(1), 2, 12.7, 12.2, 12.3, 12.8, 32.1  Subsidies and Countervailing Measures (SCM)Art. VI:3  GATT 1994

UNITED STATES – COUNTERVAILING MEASURES ON
SUPERCALENDERED PAPER FROM CANADA
AB-2018-8
Report of the Appellate Body

ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
AFA adverse facts available
BCI business confidential information
Canada's panel request Request for the Establishment of a Panel by Canada,
Catalyst Catalyst Paper Corporation
CVD countervailing duty
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
Fibrek Fibrek General Partnership
GATT 1994 General Agreement on Tariffs and Trade 1994
Irving Irving Paper Ltd.
NAFTA North American Free Trade Agreement
NSPI Nova Scotia Power Incorporated
OFA other forms of assistance
Panel Report Panel Report, United States – Countervailing Measures on Supercalendered Paper
from Canada
PHP Port Hawkesbury Paper LP
PPGTP Federal Pulp and Paper Green Transformation Programme
PWCC Pacific West Commercial Corporation
Resolute Resolute FP Canada Inc.
SCM Agreement Agreement on Subsidies and Countervailing Measures
USDOC United States Department of Commerce
Working Procedures Working Procedures for Appellate Review
WTO

PANEL EXHIBITS CITED IN THIS REPORT
Exhibit Number Short Title
(if applicable)
Description
Panel Exhibit CAN-37 Supercalendered
Paper from Canada
2015, I&D Memo
USDOC, Issues and Decision Memorandum for the Final
Determination in the Countervailing Duty Investigation of
Supercalendered Paper from Canada (13 October 2015)
Panel Exhibit CAN-47
(BCI)
Supercalendered
Paper from Canada
2015, Verification
Report (Resolute)
USDOC, Memorandum dated 27 August 2015 for the
Verification of the Questionnaire Responses of Resolute FP
Canada Inc. in the Countervailing Duty Investigation of
Supercalendered Paper from Canada
Panel Exhibit CAN-76 USDOC NAFTA Brief USDOC, Rule 57(2) Brief (NAFTA) in Supercalendered
Paper from Canada: Final Affirmative Countervailing Duty
Determination (5 July 2016)
Panel Exhibit CAN-116 USDOC, Issues and Decision Memorandum for the Final
Determination in the Countervailing Duty Investigation of
Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled into Modules, from the People's Republic of
China (9 October 2012)
Panel Exhibit CAN-118 Shrimp from China
2013, I&D Memo
USDOC, Issues and Decision Memorandum for the Final
Determination in the Countervailing Duty Investigation of
Certain Frozen Warmwater Shrimp from the People's
Republic of China (12 August 2013)
Panel Exhibit CAN-121 Solar Cells from
China 2014, I&D
Memo
USDOC, Issues and Decision Memorandum for the Final
Determination in the Countervailing Duty Investigation of
Certain Crystalline Silicon Photovoltaic Products from the
People's Republic of China (15 December 2014)
Panel Exhibit CAN-125 PET Resin from
China 2016, I&D
Memo
USDOC, Issues and Decision Memorandum for the Final
Determination in the Countervailing Duty Investigation of
Certain Polyethylene Terephthalate Resin from the
People's Republic of China (4 March 2016)
Panel Exhibit CAN-148 Stainless Pressure
Pipe from India
2016, Final
Calculation Memo
USDOC, Countervailing Duty Investigation of Welded
Stainless Pressure Pipe from India: Final Calculation
Memorandum for Steamline Industries Limited
(22 September 2016)
Panel Exhibit CAN-152 USDOC, Issues and Decision Memorandum for the Final
Affirmative Determination in the Countervailing Duty
Investigation of Welded Stainless Pressure Pipe from India
(22 September 2016)
Panel Exhibit CAN-163 Truck and Bus Tires
from China 2016,
I&D Memo
USDOC, Issues and Decision Memorandum for the Final
Determination in the Countervailing Duty Investigation of
Truck and Bus Tires from the People's Republic of China;
and Final Affirmative Determination of Critical
Circumstances, in Part (19 January 2016)
Panel Exhibit CAN-210 PET Resin from
China 2016,
Verification Report
(Dragon)
USDOC, Countervailing Duty Investigation of Polyethylene
Terephthalate Resin from the People's Republic of China:
Verification Report of Dragon Special Resin Co., Ltd.,
Xiang Lu Petrochemicals Co., Ltd., Xianglu Petrochemicals
Co., Ltd., and Xiamen Xianglu Chemical Fiber Company
Limited (19 January 2016)
Panel Exhibit CAN-215 USDOC, Verification of Zhanjiang Guolian Aquatic Products
Co., Ltd., Zhanjiang Guolian Feed Co., Ltd., Zhanjiang
Guolian Aquatic Fry Technology Co., Ltd., and Zhanjiang
Guotong Aquatic Co., Ltd. in Countervailing Duty
Investigation: Certain Warmwater Shrimp from the
People's Republic of China (1 July 2013)
Panel Exhibit USA-8 Solar Cells from
China 2015, I&D
Memo
USDOC, Issues and Decision Memorandum for the Final
Results of the Countervailing Duty Administrative Review:
Crystalline Silicon Photovoltaic Cells, Whether or Not
Assembled into Modules, from China (7 July 2015)

Exhibit Number Short Title
(if applicable)
Description
Panel Exhibit USA-19 USDOC, Issues and Decision Memorandum for the Final
Determination in the Countervailing Duty Investigation of
Large Residential Washers from the Republic of Korea
(18 December 2012)
USDOC CVD PROCEEDINGS CITED IN THIS REPORT
Short Title Relevant CVD Proceeding
Solar Cells from China 2012 Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into
Modules, from the People's Republic of China (C-570-980)
Shrimp from China 2013 Certain Frozen Warmwater Shrimp from the People's Republic of China
(C-570-989)
Solar Cells from China 2014 Crystalline Silicon Photovoltaic Products from the People's Republic of
China (C-570-011)
Solar Cells from China 2015 Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into
Modules, from the People's Republic of China (C-570-980)
Supercalendered Paper from
Canada 2015
Supercalendered Paper from Canada (C-122-854)
PET Resin from China 2016 Certain Polyethylene Terephthalate Resin from the People's Republic of
China (C-570-025)
Stainless Pressure Pipe from India
2016
Welded Stainless Pressure Pipe from India (C-533-868)
Truck and Bus Tires from China
2016
Truck and Bus Tires from the People's Republic of China (C-570-041)
Stainless Steel Sheet and Strip
from China 2017
Stainless Steel Sheet and Strip from the People's Republic of China
(C-570-043)

CASES CITED IN THIS REPORT
Short Title Full Case Title and Citation
Argentina – Import Measures Appellate Body Reports, Argentina – Measures Affecting the Importation of
Goods, WT/DS438/AB/R / WT/DS444/AB/R / WT/DS445/AB/R, adopted
26 January 2015, DSR 2015:II, p. 579
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
EC – Bed Linen (Article 21.5
– India)
Appellate Body Report, European Communities – Anti-Dumping Duties on
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the
DSU by India, WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III,
p. 965
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 – 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 – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on
Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/AB/R,
adopted 18 August 2003, DSR 2003:VI, p. 2613
EC and certain member
States – Large Civil Aircraft
Appellate Body Report, European Communities and Certain Member States –
Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted
1 June 2011, DSR 2011:I, p. 7
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
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
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 – Corn Syrup
(Article 21.5 – US)
Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose
Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 of the
DSU by the United States, WT/DS132/AB/RW, adopted 21 November 2001,
DSR 2001:XIII, p. 6675
US – Anti-Dumping
Methodologies (China)
Appellate Body Report, United States – Certain Methodologies and Their
Application to Anti-Dumping Proceedings Involving China, WT/DS471/AB/R
and Add.1, adopted 22 May 2017, DSR 2017:III, p. 1423
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain
Corrosion-Resistant Carbon Steel Flat Products from Germany,
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX,
p. 3779
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 – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application of
Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009,
DSR 2009:III, p. 1291
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
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

Short Title Full Case Title and Citation
US – Orange Juice (Brazil) Panel Report, United States – Anti-Dumping Administrative Reviews and Other
Measures Related to Imports of Certain Orange Juice from Brazil,
WT/DS382/R, adopted 17 June 2011, DSR 2011:VII, p. 3753
US – Shrimp (Article 21.5 –
Malaysia)
Appellate Body Report, United States – Import Prohibition of Certain Shrimp
and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia,
WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, p. 6481
US – Softwood Lumber IV
(Article 21.5 – Canada)
Appellate Body Report, United States – Final Countervailing Duty
Determination with Respect to Certain Softwood Lumber from Canada –
Recourse by Canada to Article 21.5 of the DSU, WT/DS257/AB/RW, adopted
20 December 2005, DSR 2005:XXIII, p. 11357
US – Supercalendered Paper Panel Report, United States – Countervailing Measures on Supercalendered
Paper from Canada, WT/DS505/R and Add.1, circulated to WTO Members
5 July 2018
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton,
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3
US – Wool Shirt 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
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology for
Calculating Dumping Margins ("Zeroing"), WT/DS294/AB/R, adopted
9 May 2006, and Corr.1, DSR 2006:II, p. 417
US - Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and
Sunset Reviews, WT/DS322/AB/R, adopted 23 January 2007, DSR 2007:I, p. 3

APPELLATE BODY

United States – Countervailing Measures
on Supercalendered Paper from Canada

United States, Appellant
Canada, Appellee

Brazil, Third Participant
China, Third Participant
European Union, Third Participant
India, Third Participant
Japan, Third Participant
Korea, Third Participant
Mexico, Third Participant
Turkey, Third Participant

AB-2018-8

Appellate Body Division:

Bhatia, Presiding Member
Graham, Member
Zhao, Member

1 INTRODUCTION
The United States appeals certain issues of law and legal interpretations developed in the
Panel Report, United States – Countervailing Measures on Supercalendered Paper from Canada 1
(Panel Report). The Panel was established on 21 July 20162 to consider a complaint by Canada3 with
respect to the consistency of certain United States measures with the Agreement on Subsidies and
Countervailing Measures (SCM Agreement).
In particular, Canada challenged certain countervailing duty (CVD) measures adopted by the
United States on supercalendered paper from Canada. Canada made multiple claims of inconsistency
in relation to the United States Department of Commerce's (USDOC) CVD determinations regarding
Canadian producers Port Hawkesbury Paper LP (PHP), Resolute FP Canada Inc. (Resolute), Irving
Paper Ltd (Irving), and Catalyst Paper Corporation (Catalyst). Canada also challenged an alleged
unwritten "ongoing conduct" measure attributable to the United States that consisted of the USDOC
applying adverse facts available (AFA) to find countervailable subsidies in relation to programmes
discovered during CVD investigation s that were not reported in response to the USDOC's "other
forms of assistance" (OFA) question (the OFA-AFA measure).4 Canada requested the Panel to find
that the United States acted inconsistently with Articles 1.1(a)(1), 1.1(b), 2, 10, 11.1 -11.3, 11.6,
12.1-12.3, 12.7-12.8, 14, 19.1, 19.3-19.4, and32.1 of the SCM Agreement and Article VI:3 of the
General Agreement on Tariffs and Trade 1994 (GATT 1994).5 The United States disagreed with
Canada's claims in their entirety.6 The factual aspects of this dispute are set out in greater detail in
the Panel Report.
In the Panel Report, circulated to Members of the World Trade Organization (WTO) on
5 July 2018, the Panel concluded as follows:
a. for the claims concerning the USDOC's CVD determination with respect to PHP:

1 WT/DS505/R, 5 July 2018.
2 Minutes of the Dispute Settlement Body meeting held on 21 July 2016, WT/DSB/M/383, para. 6.4.
3 Panel Report, para. 1.4; Request for the Establishment of a Panel by Canada, WT/DS505/2
(Canada's panel request).
4 The challenged OFA-AFA measure was referred to by the Panel as the "Other Forms of Assistance–
AFA measure". (Panel Report, paras. 2.2 and 7.1)
5 Panel Report, para. 3.1.
6 Annex C-1 of the Panel Report, para. 1.

i. the USDOC acted inconsistently with Article 1.1(a)(1)(iv) of the SCM Agreement,
by making a finding of entrustment or direction with respect to the provision of
electricity by Nova Scotia Power Incorporated (NSPI);
ii. the USDOC acted inconsistently with Articles 1.1(b) and 14(d) of the
SCM Agreement, when it determined that the provision of electricity by NSPI to
PHP, through the load retention rate, conferred a benefit;
iii. the USDOC acted inconsistently with Article 12.8 of the SCM Agreement, by
failing to disclose to interested parties an essential fact that, in the view of the
USDOC, Section 52 of the Public Utilities Act entrusted or directed NSPI to provide
electricity to all customers, including PHP;
iv. the USDOC acted inconsistently with Article 1.1(b) of the SCM Agreement, by
finding that the hot idle funding conferred a benefit on Pacific West Commercial
Corporation (PWCC)/PHP;
v. the USDOC acted inconsistently with Article 1.1(b) of the SCM Agreement, by
finding that the second Forestry Infrastructure Fund amount conferred a benefit
on PWCC/PHP; and
vi. the USDOC acted inconsistently with Article 11.3 of the SCM Agreement, by
failing in its obligation to evaluate the accuracy and adequacy of the evidence in
the application with respect to the existence of a benefit in the provision of
stumpage and biomass by the Government of Nova Scotia to PHP;
b. for the claims concerning the USDOC's CVD determination with respect to Resolute:
i. the USDOC acted inconsistently with Article 12.7 of the SCM Agreement, by
applying facts available to the discovered programmes;
ii. the Panel declined to rule on Canada's claims under Articles 11.2-11.3, 12.1-12.3,
and 12.8 of the SCM Agreement, regarding the discovered programmes;
iii. the USDOC acted inconsistently with Article 1.1(b) of the SCM Agreement, by
finding, on the basis of an alleged lack of relevant evidence, that the benefit
conferred on Fibrek General Partnership ( Fibrek) through the federal Pulp and
Paper Green Transformation Programme ( PPGTP) was not extinguished when
Fibrek was acquired by Resolute;
iv. the Panel declined to rule on Canada's claims under Articles 10, 14, 19.1 , and
19.3-19.4 of the SCM Agreement and Article VI:3 of the GATT 1994, regarding
the USDOC's finding that the benefit conferred on Fibrek through the PPGTP was
not extinguished when Fibrek was acquired by Resolute;
v. the Panel declined to rule on Canada's claims under Articles 1.1(b), 10, 14, 19.1,
and 19.3-19.4 of the SCM Agreement and Article VI:3 of the GATT 1994,
regarding the USDOC's finding that the benefit conferred on Fibrek was not
extinguished when Fibrek was acquired by Resolute, with respect to the alleged
assistance discovered during the verification of Fibrek;
vi. the USDOC acted inconsistently with Articles 10, 19.1, and 19.3-19.4 of the
SCM Agreement and Article VI:3 of the GATT 1994, by attributing to the
production of supercalendered paper subsidies provided to Resolute and Fibrek
under the PPGTP, Ontario Forest Sector Prosperity Fund, and Ontario Northern
Industrial Electricity Rate Programmes; and
vii. the Panel declined to rule on Canada's claims under Articles 10, 19.1, and 19.3-
19.4 of the SCM Agreement and Article VI:3 of the GATT 1994, regarding the
attribution to the production of supercalendered paper of the alleged assistance
discovered during the verification of Fibrek;

c. for the claims concerning the CVD determinations with respect to Irving and Catalyst:
i. the USDOC acted inconsistently with Articles 10, 19.1, 19.3-19.4, and 32.1 of the
SCM Agreement and Article VI:3 of the GATT 1994, by constructing the all-others
rate relying on Resolute's rate, which was mainly calculated using AFA;
ii. the Panel declined to rule on Canada's claim under Article 12.7 of the
SCM Agreement, regarding the constructio n of the all -others rate relying on
Resolute's rate;
iii. the Panel rejected Canada's claims under Articles 10, 19.1, 19.3-19.4, and 32.1
of the SCM Agreement and Article VI:3 of the GATT 1994, regarding the USDOC's
failure to adjust the all -others rate with respect to subsidies that were not
available to non-investigated exporters;
iv. the USDOC acted inconsistently with Article 19.3 of the SCM Agreement, by
including new subsidy allegations in the context of the expedited reviews
undertaken for Catalyst and Irving; and
v. the Panel declined to rule on Canada's claims under Articles 11.2 and 11.3 of the
SCM Agreement, regarding the USDOC's alleged initiation of an investigation into
new subsidy allegations during the expedited reviews of Catalyst and Irving; and
d. for the claims concerning the alleged OFA-AFA measure:
i. Canada had adduced sufficient evidence to establish that the challenged
OFA-AFA measure constitutes "ongoing conduct" and, therefore, the Panel did not
consider it necessary to address Canada's argument that the challenged measure
amounts to a "rule or norm of general and prospective application";
ii. the unwritten measure challenged by Canada is inconsistent with Article 12.7 of
the SCM Agreement; and
iii. the Panel declined to rule on Canada's claims under Articles 10, 11.1-11.3, 11.6,
12.1, and 12.8 of the SCM Agreement, with respect to the alleged
OFA-AFA measure.
Having found that the United States acted inconsistently with certain provisions of the
SCM Agreement and the GATT 1994, in accordance with Article 19.1 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU) , the Panel recommended that the
United States bring its measures into conformity with its obligations under those Agreements.7
On 27 August 2018, the United States notified the Dispute Settlement Body (DSB), pursuant
to Article 16 of the DSU, of its intention to appeal certain issues of law covered in th e Panel Report
and certain legal interpretations developed by the Panel, and filed a Notice of Appeal 8 and an
appellant's submission pursuant to Rule 20 and Rule 21, respectively, of the Working Procedures for
Appellate Review (Working Procedures). On 14 September 2018, Canada filed an appellee's
submission pursuant to Rule 22 of the Working Procedures. On 21 September 2018, Brazil, China,
the European Union, and Japan each filed a third participant's submission.9 On that same day, India
and Mexico notified the Appellate Body that they did not intend to submit a third participant's
submission, but would appear at the hearing. 10 Subsequently, Korea and Turkey notified the
Appellate Body of their intention to appear at the hearing as third participants.11

7 Panel Report, paras. 8.5-8.6.
8 WT/DS505/6.
9 Pursuant to Rule 24(1) of the Working Procedures.
10 Pursuant to Rule 24(2) of the Working Procedures.
11 On 31 October 2019 and 1 November 2019, respectively, Turkey and Korea each submitted their
delegation list for the hearing to the Appellate Body Secretariat. We have interpreted these actions as a
notification to attend the hearing pursuant to Rule 24(4) of the Working Procedures.

On 4 September 2018, the Chair of the Appellate Body received a communication from the
European Union requesting that the Division hearing this appeal modify the deadline for the filing of
third participants' submissions to allow third participants four full working days following the
submission of the appellee's submission. On 5 September 2018, on behalf of the Division hearing
this appeal, the Chair of the Appellate Body invited the participants and other third participants in
this appeal to comment in writing on the European Union's request. Brazil, Canada, China, India,
Japan, Korea, Mexico, and the United States indicated that they had no objections to the
European Union's request for an extension. On 13 September 2018, on behalf of the Division hearing
this appeal, the Chair of the Appellate Body issued a Procedural Ruling12 to extend the deadline for
filing third participant's submissions, notifications, and executive summaries as requested by the
European Union.
On 24 October 2018, the Chair of the Appellate Body notified the Chair of the DSB that the
Appellate Body would not be able to circulate its Report in this appeal within the 60 -day period
pursuant to Article 17.5 of the DSU, or within the 90 -day period pursuant to the same provision. 13
On 9 December 2019, the Chair of the Appellate Body informed the Chair of the DSB that the Report
in these proceedings would be circulated no later than 6 February 2020.14
On 14 March 2019, the Division received a communication from China, containing the executive
summary of China's third participant's submission in the present appeal. China originally filed its
third participant's submission on 21 September 2018. China indicated that the executive summary
was inadvertently omitted from its third participant's submission. On 19 March 2019, the Presiding
Member of the Division hearing this appeal invited, on behalf of the Division, the participants and
other third participants in this appeal to comment in writing on China's communication. Canada
indicated that it had no objections for China to submit the executive summary of its third participant's
submission at this stage of the appeal. Mexico noted that, as Ch ina's third participant's submission
was filed on time, the participants' and other third participants' due process rights were not affected.
On 28 March 2019, the Division hearing this appeal issued a Procedural Ruling 15 to accept the
executive summary of China's third participant's submission.
On 18 April 2019, the Division received a joint communication from Canada and the
United States requesting that the public be allowed to observe the participants and third participants
that agree to make public their statements and responses at the oral hearing. Canada and the
United States made the request on the understanding that any information that had been designated
as confidential in the documents filed by any participant in the Panel proceedings would be
adequately protected in the course of the Appellate Body's oral hearing. On 13 May 2019, the
Division invited third participants to comment on this request. Mexico indicated that, without
prejudice to its systemic position on the matter, it did not object to allowing public observation of
the oral hearing in these proceedings. No other comments from third participants were received.
On 2 July 2019, the Division issued a Procedural Ruling16 regarding the joint request by Canada and
the United States. The Division adopted additional procedures on the conduct of the oral hearing,
including procedures pertaining to public observation of the ope ning statements of the Members'
delegations that had agreed to have their statements made public.
The hearing in this appeal was held on 4-5 November 2019. The participants and four of the
third participants ( Brazil, China, the European Union, and Japan ) made oral statements and
responded to questions posed by the Members of the Appellate Body Division hearing the appeal. A
simultaneous closed-circuit television broadcast of the hearing was shown in a separate viewing

12 The Procedural Ruling of 13 September 2018 is contained in Annex D-1 of the Addendum to this
Report, WT/DS505/AB/R/Add.1.
13 The Chair of the Appellate Body explained that this was due to a number of factors, including the
complex issues appealed, the backlog of appeals pending before the Appellate Body, and the overlap in the
composition of all Divisions resulting in part from the reduced number of Appellate Body Members. Although this
appeal was initiated on 27 August 2018, appeal work could only begin in mid-September 2019. (WT/DS505/7)
14 WT/DS505/8.
15 The Procedural Ruling of 28 March 2019 is contained in Annex D-2 of the Addendum to this Report,

16 The Procedural Ruling of 2 July 2019 is contained in Annex D-3 of the Addendum to this Report,

room. Oral statements and responses to questions by a third participant that had indicated its wish
to maintain the confidentiality of its submissions were not subject to public observation.
On 3 December 2019, the Chair of the Appellate Body informed the Chair of the DSB that,
pursuant to Rule 15 of the Working Procedures, Appellate Body Members Mr Ujal Singh Bhatia and
Mr Thomas R. Graham would continue wor king after their terms expired on 11 December 2019 to
finish appeals for which oral hearings had been completed. At the DSB meeting on the same day,
the Chair of the DSB reported to WTO Members that this appeal would be concluded by the
Appellate Body Divi sion that held the oral hearing. On 9 December 2019, the participants and
third participants received a copy of the communication of the Chair of the Appellate Body to the
Chair of the DSB referred to above.17
2 ARGUMENTS OF THE PARTICIPANTS
The Notice of Appeal and the executive summaries of the participants' claims and arguments
are contained in Annexes A and B of the Addendum to this Report, WT/DS505/AB/R/Add.1.18
3 ARGUMENTS OF THE THIRD PARTICIPANTS
Brazil, China, the European Union, and Japan filed written submissions. The executive
summaries of these written submissions are contained in Annex C of the Addendum to this Report,

4 ISSUES RAISED IN THIS APPEAL
The following issues are raised in this appeal:
a. whether the Panel erred under Articles 3.3, 4.2, 7.1, and 19.1 of the DSU, by finding
that the alleged OFA-AFA measure amounted to a "measure" that could be challenged
under the DSU as "ongoing conduct"; and
b. in relation to the alleged OFA-AFA measure:
i. whether the P anel erred under Article 12.7 of the DSU by failing to provide a
"basic rationale" for its finding; and
ii. whether the Panel erred under Article 12.7 of the SCM Agreement in finding that
the alleged OFA-AFA measure is inconsistent with that provision.
5 ANALYSIS OF THE APPELLATE BODY
In this Report, we first address the United States' claim that the Panel erred under Articles 3.3,
4.2, 7.1, and 19.1 of the DSU, by finding that the alleged OFA -AFA measure amounted to a
"measure" that could be challenged under the DSU as "ongoing conduct". Thereafter, we address
the United States' claims that the Panel erred by finding that the alleged OFA -AFA measure is
inconsistent with Article 12.7 of the SCM Agreement.
We recall that the Panel issued its final Panel Report to the parties on 15 December 2017. On
5 July 2018, the Panel Report was circulated to WTO Members. On 5 July 2018, the USDOC revoked
the CVD order in Supercalendered Paper from Canada 2015, with retroactive effect to the beginning
of the CVD proceeding. Notwithstanding this revocation, the United States filed its appeal on
27 August 2018. This revocation is not addressed by either participant in its written submissions.
Moreover, at the oral he aring, both participants confirmed that there is a dispute between them
regarding the existence of "ongoing conduct" and the finding of inconsistency with Article 12.7 of
the SCM Agreement that remains to be resolved on appeal. Under these circumstances, we consider

17 WT/DSB/79.
18 Pursuant to WT/AB/23, 11 March 2015.
19 Pursuant to WT/AB/23, 11 March 2015.

the United States' claims of error on appeal in light of the Panel 's findings as they are in the
Panel Report.
5.1 Alleged OFA-AFA measure
5.1.1 Introduction
5.3. The United States appeals the Panel's finding that the alleged OFA-AFA measure is an "ongoing
conduct" measure susceptible to challenge under the DSU. According to the United States, the Panel
erred in both its understanding and application of the legal standard for "ongoing conduct" measures,
in particular with regard to the alleged measure's precise content, repeated application, and
likelihood of continued application.20 The United States requests that we reverse the Panel's findings
in this respect.21 Canada responds that the United States' appeal is outside the scope of appellate
review22, and that, in any event, the Panel was correct to find that the alleged OFA -AFA measure
was challengeable in WTO dispute settlement as "ongoing conduct" .23 For that reason, Canada
requests that we dismiss the United States' claim of error.24
5.4. In the section below, we first summarize the relevant Panel findings concerning the existence
of the alleged OFA-AFA measure. We then address Canada's assertion that the United States' claim
of error falls outside the scope of appellate review. Finally, we address the United States' claim that
the Panel erred in its understanding and application of the legal standard for "ongoing conduct"
measures.
5.1.2 The Panel's findings
5.5. The Panel identified the relevant issue before it as whether Canada had demonstrated the
existence of the alleged OFA -AFA measure "either as 'ongoing conduct' or as a 'rule or norm of
general and prospective application'".25
5.6. The Panel first a ddressed the legal standa rd for "measures" challengeable in WTO dispute
settlement.26 The Panel recalled that a complainant seeking to prove the existence of a measure,
whether written or unwritten, must demonstrate that it is attributable to a Member and its precise
content. In addition, depending on the specific measure challenged and how it is described by the
complainant, other elements may need to be proven. 27 Where dealing with an unwritten "ongoing
conduct" measure, the Panel considered that a complainant would need to prove t he alleged
measure's (i) attribution to a Member , (ii) precise content , (iii) repeated application , and
(iv) likelihood of continued application.28
5.7. Next, the Panel addressed whether Canada had demonstrated the precise content of the alleged
OFA-AFA measure.29 The Panel observed that the alleged measure challenged by Canada concerns

20 United States' Notice of Appeal, para. 2; appellant's submission, paras. 1, 3, and 6-32.
21 United States' appellant's submission, paras. 5, 15, 32, and 80.
22 Canada's appellee's submission, paras. 34-42.
23 Canada's appellee's submission, paras. 14-33 and 43-60.
24 Canada's appellee's submission, para. 128.
25 Panel Report, para. 7.301. According to the Panel, the alleged OFA-AFA measure challenged by
Canada consisted of the USDOC applying AFA to subsidy programmes discovered during verification in a
CVD proceeding that were not reported by respondent companies in response to the OFA question.
(Ibid., para. 7.295)
26 Panel Report, para. 7.302 (quoting Appellate Body Reports, US – Corrosion-Resistant Steel Sunset
Review, para. 81; EC and certain member States – Large Civil Aircraft, para. 794; US – Zeroing (EC),
paras. 196-198; referring to Appellate Body Reports, US – Softwood Lumber IV (Article 21.5 – Canada),
Argentina – Import Measures, paras. 5.106 and 5.109).
27 Panel Report, para. 7.303 (referring to Appellate Body Reports, Argentina – Import Measures,
para. 5.110).
28 Panel Report, para. 7.304 (referring to Appellate Body Reports, US – Continued Zeroing, paras. 181
and 191; Argentina – Import Measures, paras. 5.105 and 5.108).
29 Panel Report, paras. 7.307-7.317. The Panel noted that the United States did not contest attribution
of the alleged OFA-AFA measure to the United States. (Panel Report, para. 7.305 (referring to Canada's
first written submission to the Panel, para. 407; second written submission to the Panel, para. 160))

the USDOC's post -2012 conduct.30 With respect to the OFA question, the Panel produced table 1,
which quotes from certain USDOC CVD proceedings from 2012 onwards. 31 As to the remaini ng
content of the alleged OFA-AFA measure, the Panel produced table 2, which quotes from the same
USDOC CVD proceedings.32 The Panel concluded that Canada had provided sufficient evidence to
establish the precise content of the alleged OFA-AFA measure.33 The Panel considered that variations
in language in Canada's examples did not detract from the fact that the substance of both the
questions and the USDOC's subsequent reactions remained the same in each example .34 To the
Panel, the alleged OFA-AFA measure consists in the USDOC asking the OFA question and, where the
USDOC discovers information during verification that it deems should have been provided in
response to that question, applying AFA to determine that the discovered information amounts t o
countervailable subsidies.35
5.8. The Panel then addressed the repeated application and likelihood of continued application of
the alleged OFA-AFA measure.36 The Panel produced table 3 and table 4, which quote from certain
USDOC CVD proceedings relied on by Canada.37 The Panel found that, despite variations in language,
those examples showed that, since 2012, the USDOC acted in substantially the same manner in
treating information discovered at the verification stage of CVD proceedings that it considered should
have been provided in response to the OFA question. On that basis, the Panel considered that
Canada had established the repeated application of the alleged OFA-AFA measure.38 The Panel noted
that it was unable to identify any instance where the alleged OF A-AFA measure had not been
applied39, except as an inadvertent error.40

30 Panel Report, paras. 7.309 and 7.312.
31 Panel Report, para. 7.309 (referring to Solar Cells from China 2012, Shrimp from China 2013, Solar
Cells from China 2014, Solar Cells from China 2015, Supercalendered Paper from Canada 2015, PET Resin from
China 2016, and Stainless Pressure Pipe from India 2016).
32 Panel Report, paras. 7.312-7.313.
33 Panel Report, para. 7.316.
34 Panel Report, para. 7.316. Specifically, the Panel found that the variations in wording appeared
mainly to be due to the different circumstances of a given investigation (such as the interested parties and
dates), but the object of the OFA question remained the same. The Panel also found that the substance of the
USDOC's reactions remained the same: where the USDOC discovered information upon verification that it
deemed should have been reported in response to the OFA question, the USDOC applied AFA to find
countervailable subsidies. (Ibid.)
35 Panel Report, para. 7.316. The Panel noted that this description of the alleged OFA-AFA measure
appears to be in line with the USDOC's description of the alleged measure in a NAFTA Chapter 19 proceeding.
(Ibid., para. 7.317 (quoting USDOC, Rule 57(2) Brief (NAFTA) in Supercalendered Paper from Canada: Final
Affirmative Countervailing Duty Determination (5 July 2016) (USDOC NAFTA Brief) (Panel Exhibit CAN-76),
pp. 147-149)) See also Panel Report, para. 7.308.
36 Panel Report, paras. 7.318-7.332. As Canada's arguments relied to a great extent on the same
evidence for these requirements, the Panel addressed them together. (Ibid., para. 7.318)
37 Panel Report, paras. 7.320-7.321, tables 3 and 4. These tables refer to Shrimp from China 2013,
Solar Cells from China 2014, Solar Cells from China 2015, Supercalendered Paper from Canada 2015, PET
Resin from China 2016, Stainless Pressure Pipe from India 2016, Truck and Bus Tires from China 2016, and
Stainless Steel Sheet and Strip from China 2017.
38 Panel Report, para. 7.324.
39 The Panel noted that in Washers from Korea 2012, which had been issued within two months of Solar
Cells from China 2012, the USDOC did not countervail certain grants discovered at verification as they were
deemed to not be tied to the subject merchandise. Nonetheless, the Panel considered Canada's claim related to
the USDOC's post-2012 practice. The Panel observed that the United States had not provided evidence of any
instance subsequent to 2012 where "the USDOC did not apply AFA to a respondent on the basis of the
[OFA] question." (Panel Report, para. 7.326 (referring to USDOC, Issues and Decision Memorandum for the
Final Determination in the Countervailing Duty Investigation of Large Residential Washers from the Republic of
Korea (18 December 2012) (Panel Exhibit USA-19))) Furthermore, to the Panel, the USDOC's reference to
Washers from Korea 2012 in Supercalendered Paper from Canada 2015 pertained to past practice, and thus did
not undermine Canada's showing of repeated application of the alleged OFA-AFA measure. (Panel Report,
para. 7.326 (referring to USDOC, Issues and Decision Memorandum for the Final Determination in the
Countervailing Duty Investigation of Supercalendered Paper from Canada (13 October 2015) (Supercalendered
Paper from Canada 2015, I&D Memo) (Panel Exhibit CAN-37)))
40 Panel Report, para. 7.325 (referring to USDOC, Countervailing Duty Investigation of Welded Stainless
Pressure Pipe from India: Final Calculation Memorandum for Steamline Industries Limited
(22 September 2016) (Stainless Pressure Pipe from India 2016, Final Calculation Memo) (Panel Exhibit
CAN-148), fn 3).

5.9. The Panel also found that Canada had established that the alleged OFA-AFA measure was likely
to continue to be applied. 41 The Panel based its finding on: (i) the consistent manner in whic h the
USDOC referred to the alleged OFA-AFA measure or previous applications of the alleged measure42;
(ii) the USDOC's own reference to the alleged measure as its "practice" 43; and (iii) the USDOC's
characterization of a departure from the alleged measure as an "inadvertent error".44
5.10. Overall, the Panel concluded that Canada had adduced sufficient evidence to establish the
existence of the alleged OFA -AFA measure as ongoing conduct. The Panel did not consider it
necessary to address Canada's assertion that th e alleged OFA-AFA measure amounted to a rule or
norm of general and prospective application.45
5.1.3 Scope of appellate review under Article 17.6 of the DSU
5.11. We first address Canada's assertion that the United States' claim on appeal regarding the
existence of the alleged OFA -AFA measure falls outside the scope of appellate review under
Article 17.6 of the DSU. 46 According to Canada, the United States' appeal challenges the Panel's
factual finding that the alleged OFA-AFA measure exists, and implicates the Panel's appreciation of
the facts and evidence.47 This is because, according to Canada, the Appellate Body would be required
to delve into the record and reweigh the evidence to assess the United States' claim that the Panel
erred in finding the existence of the precise content, repeated application, and likelihood of continued
application of the alleged OFA-AFA measure.48 Canada notes that the United States has not made a
claim under Article 11 of the DSU, which, in Canada's view, would have been the appropriate basis
for the United States' claim of error.49 The United States responds that this appeal concerns legal
issues. To the United States, whether a measure exists as "ongoing conduct" that is challengeable
under the DSU is a legal question.50
5.12. Article 17.6 of the DSU provides that an appeal shall be limited to "issues of law covered in
the panel report and legal interpretations developed by the panel". The Appellate Body has stated
that findings of fact, as distinct from legal interpretations or legal conclusions by a panel, are in
principle not subject to review by the Appellate Body. Whether a certain event occurred in time and

41 Panel Report, para. 7.328. The Panel considered that Canada was not required to prove certainty of
future application; rather, to the Panel, Canada needed to prove likelihood of continued application.
(Panel Report, para. 7.329 (quoting Appellate Body Report, US – Anti-Dumping Methodologies (China),
para. 5.132))
42 Panel Report, para. 7.328.
43 Panel Report, para. 7.328 (quoting USDOC, Issues and Decision Memorandum for the Final
Determination in the Countervailing Duty Investigation of Certain Crystalline Silicon Photovoltaic Products from
the People's Republic of China (15 December 2014) (Solar Cells from China 2014, I&D Memo) (Panel Exhibit
CAN-121), p. 88; USDOC, Issues and Decision Memorandum for the Final Results of the Countervailing Duty
Administrative Review: Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from
China (7 July 2015) (Solar Cells from China 2015, I&D Memo) (Panel Exhibit USA-8), p. 58). The Panel also
stated that similar language was used in the "other determinations with either specific reference to the word
'practice' or to precedents" where the alleged OFA-AFA measure was applied. (Panel Report, para. 7.328) While
the Panel acknowledged the parties' disagreement as to whether the alleged OFA-AFA measure constituted a
"practice" under United States law, the Panel considered it was not determinative as to the likelihood of
continued application of the alleged OFA-AFA measure. Thus, the Panel did not express a view on the
characterization of the alleged measure under United States law. (Panel Report, para. 7.329 and fn 613
thereto)
44 Panel Report, para. 7.328 (quoting Stainless Pressure Pipe from India 2016, Final Calculation Memo
(Panel Exhibit CAN-148), fn 3). The Panel also found that Canada had not established that the Trade
Preferences Extension Act evidenced the likelihood of continued application of the alleged OFA-AFA measure.
(Panel Report, paras. 7.330-7.331)
45 Panel Report, para. 7.332.
46 Canada's appellee's submission, paras. 34-41.
47 Canada's appellee's submission, paras. 34 and 39.
48 Canada's appellee's submission, paras. 38-40. Canada relies on Appellate Body Report, US – Zeroing
(Japan) as confirming that the existence of a measure is a factual determination. (Ibid., para. 41 (referring to
Appellate Body Report, US – Zeroing (Japan), paras. 82 and 88)) Canada considers that the United States'
arguments do not concern legal interpretation, evidenced by the fact that the United States does not cite treaty
provisions in its arguments. (Ibid., para. 40)
49 Canada's appellee's submission, paras. 38-39.
50 United States' appellant's submission, paras. 6-32; opening statement at the oral hearing, para. 16;
response to questioning at the oral hearing.

space is typically a question of fact. 51 By contrast, the consistency or inconsistency of a fact or set
of facts with the requirements of a given treaty provision, or the application of rules to facts, is a
legal characterization, subject to appellate review.52
5.13. The Panel's analysis had three dimens ions: (i) identifying the legal standard for "ongoing
conduct" measures; (ii) examining relevant evidence and making factual findings; and (iii) applying
the legal standard to the facts before the Panel.
5.14. On appeal, the United States argues that the Panel erred in finding that a "measure" existed
as one that could be challenged in WTO dispute settlement under the DSU.53 We consider that the
correct understanding of the legal standard for establishing the existence of an "ongoing conduct"
measure and the application of that standard to the facts on the panel record are legal issues, and
thus fall within the scope of appellate review. We note that the United States neither contests the
evidence on the Panel record, nor the Panel's factual assessment of that evi dence. Specifically, the
United States does not identify any factual findings that it challenges on appeal. Rather, we
understand the United States' claim and arguments on appeal as directed to the legal standard for
an "ongoing conduct" measure, and the a pplication of that standard to the facts of this case. 54
Therefore, in our view, the United States' claim of error on appeal concerns issues of law covered in
the Panel Report and legal interpretations developed by the Panel . On that basis, we consider that
the United States' claim of error at issue falls within the scope of appellate review under Article 17.6
of the DSU.55
5.1.4 Whether the Panel erred by finding that the alleged OFA-AFA measure amounted to
a "measure" that could be challenged under the DSU as "ongoing conduct"
5.15. The United States appeals the Panel's finding that the alleged OFA-AFA measure is a measure
that could be challenged under the DSU as "ongoing conduct". 56 The United States does not
challenge the attribution of the alleged measure. Rather, the United States' arguments concern the
precise content, repeated application, and likelihood of continued application of that alleged
measure.57
5.16. Canada responds that the Panel correctly found that "ongoing conduct" measures are subject
to WTO dispute settlement, and applied the correct legal standard.58 Having framed its challenge as
one of ongoing conduct, Canada considers it was required to show attribution, precise content,
repeated application, and likelihood of continued application of the all eged measure.59 To Canada,
the Panel correctly found that Canada had established these elements.60

51 Appellate Body Report, EC – Hormones, para. 132. Whether a panel has made an objective
assessment of the facts before it, as required by Article 11 of the DSU, is a legal question which, if properly
raised on appeal, would fall within the scope of appellate review. (Ibid.)
52 Appellate Body Reports, EC – Hormones, para. 132.
53 United States' appellant's submission, paras. 6-15.
54 Specifically, the United States argues on appeal that the variations in the examples relied on by the
Panel as evidence precluded the Panel from identifying the precise content of the alleged OFA-AFA measure,
any instance of non-application is sufficient to preclude a finding of repeated application, the Panel erred in
characterizing certain examples as repeated applications, and likelihood of continued application requires an
adopted decision regarding future conduct. (United States' appellant's submission, paras. 20-31)
55 We note that the United States has not made any claim of error under Article 11 of the DSU. Our
analysis is limited to the Panel's understanding of the legal standard for "ongoing conduct" measures and the
application of that standard to the facts in this appeal as found by the Panel.
56 United States' appellant's submission, paras. 1, 3, and 6-32.
57 United States' appellant's submission, paras. 20-31.
58 Canada's appellee's submission, paras. 17-20 and 26 (referring to Panel Report, paras. 7.302-7.304;
Appellate Body Reports, Argentina – Import Measures, paras. 5.108 and 5.110; US – Continued Zeroing,
para. 191).
59 Canada's appellee's submission, para. 30. Canada states it was not limited to submitting the same
type of evidence as the European Communities in US – Continued Zeroing. (Ibid. (referring to Appellate Body
60 Canada's appellee's submission, paras. 33, 44-48, and 50-60.

5.17. We recall that Articles 3.3, 4.4, and 6.2 of the DSU refer to "measures" challengeable in
WTO dispute settlement.61 The Appellate Body has explained that, in principle, any act or omission
attributable to a WTO Member can be a measure of that Member for the purposes of dispute
settlement proceedings.62 Accordingly, a broad range of measures can be challenged in WTO dispute
settlement.63 For every measure, a compla inant must establish that the measure is attributable to
the respondent, as well as the precise content of the challenged measure. A complainant may be
required to demonstrate other elements 64, depending on the particular characteristics or nature of
the measure being challenged.65 In order to prove the existence of an "ongoing conduct" measure,
a complainant must clearly establish that the alleged measure is attributable to the responding
Member, its precise content, its repeated application, and that it is likely to continue to be applied
in the future.66 We examine below each element challenged on appeal by the United States.
5.1.4.1 Precise content of the alleged OFA-AFA measure
5.18. In relation to the precise content of the alleged OFA -AFA measure, the United States points
to variations in the language in each of the examples examined by the Panel. To the United States,
this reflects different fact patterns and dissimilar results.67 The United States also highlights that the
determinations concern different segments of CVD proceedings. 68 The United States argues that
including selective excerpts from differing proceedings does not identify with precision the actions
that the USDOC may take in future cases. Rather, according to the United States, it reveals only the
application of "facts available" based on the particular facts of certain cases.69
5.19. Canada responds that the Panel addressed the differences identified by the United States,
and correctly concluded that the substance of the questions and the USDOC's conduct was the same
in the different examples examined by the Panel. 70 Further, Canada recalls that the United States'

61 Article 3.3 of the DSU refers to benefits accruing to a Member that are being "impaired by measures
taken by another Member". Further, Article 6.2 of the DSU requires Members to "identify the specific measures
at issue" in a panel request. This is one of two requirements under Article 6.2, which together comprise the
"matter referred to the DSB". This matter then forms the basis for a panel's terms of reference under
Article 7.1 of the DSU. (Appellate Body Report, US – Carbon Steel, para. 125 (referring to Appellate Body
Report, Guatemala – Cement I, paras. 69-76))
62 Appellate Body Reports, US – Anti-Dumping Methodologies (China), para. 5.122;
US – Corrosion-Resistant Steel Sunset Review, para. 81; Argentina – Import Measures, para. 5.100.
63 See Appellate Body Reports, US – Anti-Dumping Methodologies (China), para. 5.122;
Guatemala – Cement I, fn 47 to para. 69; EC and certain member States – Large Civil Aircraft, para. 794;
Argentina – Import Measures, paras. 5.106 and 5.109.
64 We recall that the distinction between "as such" and "as applied" challenges neither governs the
definition of a measure for purposes of WTO dispute settlement, nor defines exhaustively the types of
measures susceptible to challenge. Rather, this distinction serves as an analytical tool to facilitate the
understanding of the nature of a measure at issue. Measures need not fit squarely within one of these
two categories in order to be susceptible to challenge in WTO dispute settlement. (Appellate Body Reports,
US – Anti-Dumping Methodologies (China), paras. 5.124-5.125; US – Continued Zeroing, para. 179;
Argentina – Import Measures, para. 5.102) See also European Union's third participant's submission, para. 16
(quoting Appellate Body Reports, Argentina – Import Measures, paras. 5.107-5.108; China's third participant's
submission, para. 8.
65 Appellate Body Reports, Argentina – Import Measures, paras. 5.104 and 5.108. The Appellate Body
has stated that the "specific measure at issue, whether it is written or unwritten, and how it is described,
characterized, and challenged by a complainant, will inform the kind of evidence a complainant is required to
submit and the elements that it must prove in order to establish the existence of the measure challenged".
(Appellate Body Report, US – Anti-Dumping Methodologies (China), para. 5.123 (referring to Appellate Body
Reports, Argentina – Import Measures, paras. 5.108-5.110)) See also European Union's third participant's
submission, para. 17 (referring to Appellate Body Report, US – Anti-Dumping Methodologies (China),
paras. 5.122-5.123); Japan's third participant's submission, para. 4 (referring to Appellate Body Reports,
Argentina – Import Measures, paras. 5.109-5.110).
66 Appellate Body Reports, Argentina – Import Measures, paras. 5.104-5.105 and 5.107-5.108.
67 United States' appellant's submission, paras. 21-22.
68 United States' appellant's submission, para. 22.
69 United States' appellant's submission, para. 22. The United States specifically refers to the
CVD proceedings listed in tables 1 and 2 of the Panel Report. (See Panel Report, paras. 7.309 and 7.313)
70 Canada's appellee's submission, para. 45 (referring to Panel Report, para. 7.316). See also Canada's
appellee's submission, paras. 32-33.

descriptions of its own practice were found by the Panel to be consistent with the precise content of
the alleged OFA-AFA measure.71
5.20. The Panel compiled tables 1 and 2, which quote from certain USDOC CVD proceedings from
2012 onwards that were submitted by Canada as evidence of the precise content of the alleged
OFA-AFA measure.72 The Panel concluded that Canada had provided sufficient evidence to establish
the precise content of the alleged measure. The Panel considered that variations in language in
Canada's examples did not detract from the fact that the substance of the questions and the USDOC's
subsequent reactions were the same in each example.73 To the Panel, the alleged OFA-AFA measure
consists in the USDOC asking the OFA question and, where the USDOC discovers information during
verification that it deems should have been pr ovided in response to that question, applying AFA to
determine that the discovered information amounts to countervailable subsidies.74
5.21. We note that table 1 of the Panel Report indicates variations in language with respect to
respondent countries, calendar d ates, and period of review or period of investigation. 75 We agree
with the Panel that these variations do not detract from the fact that the substance of the
OFA question remained the same.76 Each formulation of the OFA question asks whether a respondent
country provided the respondent company with "any other forms of assistance", "directly or
indirectly", and to "describe such assistance in detail, including the amounts, date of receipt, purpose
and terms". This supports the Panel's conclusion that, despite minor variations in wording, the object
and substance of the OFA question remained the same. In addition, we note that, as described in
the Panel Report, the USDOC itself refers to asking the OFA question as a matter of "standard
procedure".77
5.22. In table 2 of the Panel Report, the Panel compiled excerpts describing the USDOC's application
of "facts available" when information about unreported assistance was discovered during
verification.78 The Panel found that the substance of the USDOC's reactions remained the same, and
comprised applying AFA to find countervailable subsidies when the USDOC discovers information
during verification that it deems should have been reported in response to the OFA question.79 The
United States challenges the Panel's finding becau se the excerpts reviewed by the Panel concern

71 Canada's appellee's submission, para. 50 (referring to Panel Report, para. 7.317, in turn referring to
USDOC NAFTA Brief (Panel Exhibit CAN-76), p. 149).
73 Panel Report, para. 7.316.
74 Panel Report, para. 7.316. The Panel noted that this description of the alleged OFA-AFA measure
appears to be in line with the USDOC's statements in a NAFTA Chapter 19 proceeding. (Ibid., para. 7.317
(quoting USDOC NAFTA Brief (Panel Exhibit CAN-76), pp. 147-149))
75 In table 1 of the Panel Report, the Panel reproduced the OFA question from questionnaires in Solar
Cells from China 2012, Shrimp from China 2013, Solar Cells from China 2014, Solar Cells from China 2015,
Supercalendered Paper from Canada 2015, PET Resin from China 2016, and Stainless Pressure Pipe from
India 2016. (Panel Report, para. 7.309)
76 Panel Report, para. 7.316.
77 Panel Report, para. 7.311 (quoting Supercalendered Paper from Canada 2015, I&D Memo (Panel
Exhibit CAN-37), p. 12).
78 In particular, the Panel considered the following information. For Solar Cells from China 2012, the
USDOC discovered, during verification, an unreported entry labelled "bonus for employees from government"
and determined as AFA that it was a countervailable subsidy. For Solar Cells from China 2014, the USDOC
discovered, during verification, unreported grants and a tax deduction for "wages paid for placement of
disabled persons", and determined as AFA that they amounted to countervailable subsidies. The
USDOC explained that, while it would accept information on names, dates, and amounts for the unreported
grants, any additional information on the grants would be rejected as "new factual information". Similarly, for
Shrimp from China 2013, Solar Cells from China 2015, and Supercalendered Paper from Canada 2015, the
USDOC discovered certain unreported grants or information during verification, and determined as AFA that
they were countervailable subsidies. For PET Resin from China 2016, the Panel referred to certain previously
unreported grants presented by the respondent companies on the first day of verification as "minor
corrections". The USDOC rejected that some of these grants were minor corrections, because whether a
programme was used or not by a company is not "minor", and on that basis determined as AFA that those
grants were countervailable subsidies. For Stainless Pressure Pipe from India 2016, the USDOC discovered,
during verification, an unreported electricity duty rebate, and determined as AFA that it was a countervailable
subsidy. While the USDOC considered new information discovered at verification in assessing benefit, the
USDOC noted that this was an "inadvertent error", inconsistent with its practice of refusing to consider new
information at verification. (Panel Report, para. 7.313, table 2)
79 Panel Report, para. 7.316.

different fact patterns, dissimilar results, and different segments of CVD proceedings, and therefore
do not identify with precision the actions the USDOC may take in a future determination. Rather,
according t o the United States, these excerpts merely reveal that , in some determinations , the
USDOC applied "facts available" based on the particular facts of those cases.80
5.23. In our view, the United States has not identified differences in these determinations that
would undermine the Panel's analysis and conclusions in relation to the precise content of the alleged
OFA-AFA measure. Although the various determinations concern different facts, we agree with the
Panel that such differences, including the variations identified by the United States, do not detract
from the fact that the substance of the USDOC's conduct is the same in relation to the elements of
the alleged measure challenged by Canada.81 Specifically, we agree with the Panel that each element
of the alleged OFA-AFA measure i s replicated in the determinations. 82 Moreover, we agree with
Canada that the fact that these examples concern different segments of CVD proceedings is not
material, because the conduct at issue may arise at any segment where the USDOC conducts
verification. In this regard, we note that these determinations all concern the identification of
information at verification.83
5.24. Overall, we consider that the Panel was correct to focus on the substance of the USDOC's
conduct for each element of the alleged OFA -AFA measure, as evidenced by the
USDOC questionnaires and determinations before the Panel. Thus, we see no error in the Panel's
finding that Canada had established the precise content of the alleged OFA -AFA measure as the
USDOC asking the OFA question and, where the USDOC discovers information duri ng verification
that it deems should have been provided in response to the OFA question, applying AFA to determine
that such information amounts to countervailable subsidies.84
5.1.4.2 Repeated application of the alleged OFA-AFA measure
5.25. In relation to the repeated application of the alleged OFA -AFA measure, the United States
contends that there are multiple examples on the Panel record showing that the USDOC did not
repeatedly apply the alleged measure.85 In particular, the United States points to four instances in
the CVD proceedings examined by the Panel where the alleged OFA-AFA measure was not applied.86
The United States argues that "repeated application" is shown where a measure is applied in a string
of determinations made sequentially i n successive proceedings over an extended period of time. 87
To the United States, this was a key part of the Appellate Body's reasoning in US – Continued
Zeroing.88 The United States contends that the Panel never engaged with important differences
between this dispute and the situation in US – Continued Zeroing.89

80 United States' appellant's submission, paras. 21-22.
81 Panel Report, para. 7.316. The Panel noted that "variations in the wording of the questions appear to
mainly be due to the circumstances of any given investigation (interested parties, dates etc.)[,] while the
object of the question remains in essence the same", and that, similarly, "the substance of the USDOC's
reactions remains the same." (Ibid.)
82 Panel Report, para. 7.316. For specific examples, see supra fn 78.
83 Canada's appellee's submission, para. 48.
84 Panel Report, para. 7.316. The Panel also referred to the USDOC's description of the alleged
OFA-AFA measure in the USDOC NAFTA Brief referred to in footnote 35 above: "[The USDOC's] finding that the
complainants' failure to report these subsidies earlier in the proceeding warranted the use of adverse
inferences was reasonable … as was [the USDOC's] resulting adverse inference that each discovered subsidy
provided a financial contribution, conferred a benefit, and was specific – the elements of a countervailable
subsidy[.] … [The USDOC] determined, in 2012, that the proper course of action when an unreported potential
subsidy is discovered at verification is to rely on adverse inferences in making findings on that potential
subsidy." (Ibid., para. 7.317 (quoting USDOC NAFTA Brief (Panel Exhibit CAN-76), pp. 147-149)) The Panel
noted that this description appears to be in line with Canada's description of the precise content of the alleged
OFA-AFA measure. (Ibid.)
85 United States' appellant's submission, para. 25.
86 United States' appellant's submission, paras. 25-30 (referring to Shrimp from China 2013,
Supercalendered Paper from Canada 2015, PET Resin from China 2016, and Stainless Pressure Pipe from
India 2016).
87 United States' appellant's submission, para. 24.
88 United States' appellant's submission, para. 19 and 24 (referring to Appellate Body Report,
US – Continued Zeroing, paras. 181, 191, and 194).
89 United States' appellant's submission, paras. 19, 23-25, and 29-30.

5.26. Canada responds that imposing the requirement suggested by the United States would be to
misread the Appellate Body Report in US – Continued Zeroing, and conflate the specific measure
challenged in that dispute with the constituent elements that have to be shown to establish the
existence of an "ongoing conduct" measure.90
5.27. In addressing the repeated application of the alleged OFA-AFA measure, the Panel compiled
tables 3 and 4 of the Panel Report, which quote from the following USDOC CVD proceedings that
were submitted by Canada as evidence of the repeated application of the alleged OFA-AFA measure:
Shrimp from China 2013, Solar Cells from China 2014, Solar Cells from China 2015, Supercalendered
Paper from Canada 2015 , PET Resin from China 2016 , Stainless Pressure Pipe from India 2016 ,
Truck and Bus Tires from China 2016 , and Stainless Steel Sheet and Strip from China 2017 .91 The
Panel found that, despite variations in language, Canada's examples showed that, since 2012, the
USDOC acted substantially in the same manner in treating information discovered at verification that
it considered should have been provided in response t o the OFA question. To the Panel, this was
sufficient evidence of the repeated application of the alleged OFA-AFA measure.92
5.28. We recall that, in US – Continued Zeroing, the European Communities challenged the "use of
the zeroing methodology in a string of c onnected and sequential determinations" in 18 cases, by
which anti-dumping duties were being maintained. 93 The Appellate Body understood the "string of
connected and sequential determinations" to mean successive proceedings in the 18 anti-dumping
duty cases .94 Having reversed the relevant panel findings in US – Continued Zeroing , the
Appellate Body examined whether there were sufficient factual findings and undisputed facts on the
record for it to complete the legal analysis, as requested by the European Communities. In this
respect, the Appellate Body found that in only 4 of the 18 cases were there sufficient factual findings
indicating the repeated use of the zeroing methodology in a string of determinations, made
sequentially over an extended period of time.95
5.29. In our view, the Appellate Body's analysis concerning the strings of anti -dumping
determinations in US – Continued Zeroing did not qualify the legal standard of "repeated application"
generally. Rather, the Appellate Body's examination related to the European Communities'
characterization of the alleged "ongoing conduct" measure in that dispute. Indeed, the panel and
the Appellate Body in that dispute examined the evidence submitted by the European Communities
in light of the manner in which the European Communities had characterized the challenged
measure.96 Thus, we do not understand the Appellate Body to have suggested that a complainant
must always show repetition in a string of connected and sequential determinations in successive
proceedings pertaining to the same order to demonstrate successfully the "repeated application" of
an alleged "ongoing conduct" measure.
5.30. Unlike in US – Continued Zeroing, Canada does not characterize the alleged OFA-AFA measure
as occurring in "a string of connected and sequential determinations" or "successive proceedings".
Rather, before the Panel, Canada submitted that the alleged OFA -AFA measure consists in the

90 Canada's appellee's submission, paras. 28-30 and 56-57. See also Japan's third participant's
submission, paras. 5 and 8.
91 Panel Report, paras. 7.320-7.321 (tables 3 and 4).
92 Panel Report, para. 7.324. The Panel referred to nine determinations, which we understand to include
the eight examples in tables 3 and 4 (concerning repeated application), as well as Solar Cells from China 2012,
referenced in tables 1 and 2 (concerning precise content).
93 Appellate Body Report, US – Continued Zeroing, para. 181.
94 Appellate Body Report, US – Continued Zeroing, para. 183.
95 Appellate Body Report, US – Continued Zeroing, paras. 191-197.
96 Appellate Body Report, US – Continued Zeroing, para. 191. Similarly, in US – Orange Juice (Brazil),
the panel looked for evidence of zeroing in "successive proceedings". In that dispute, Brazil had claimed that
the USDOC's continued use of zeroing in "successive anti-dumping proceedings under the Orange Juice Order,
including the original investigation and any subsequent administrative reviews by which duties are applied and
maintained over a period of time" amounted to "ongoing conduct" that was inconsistent with certain provisions
of the Anti-Dumping Agreement. (Panel Report, US – Orange Juice (Brazil), paras. 7.163-7.164) That panel
understood Brazil to be challenging the continued use of the zeroing methodology under the orange juice
anti-dumping duty order, in the limited context of the orange juice proceedings. Having reviewed
Brazil's evidence, the panel concluded that the USDOC had used zeroing in the original investigation and
three administrative reviews under the orange juice anti-dumping order. In our view, the panel's approach was
based on the manner in which Brazil had characterized the challenged measure in that dispute. (Panel Report,
US – Orange Juice (Brazil), paras. 7.184 and 7.191)

USDOC asking the OFA question and, where the USDOC discovers information during verification
that it deems should have been provided in response to that question, applying AFA to determine
that the discovered information amounts to countervailable subsidies.97 As before the Panel, Canada
contends on appeal that this alleged measure has been repeatedly applied since 2012 whenever the
relevant circumstances arose.98
5.31. In our view, the Panel's analysis appropriately reflects Canada's characterization of the alleged
OFA-AFA measure, focusing at this stage on the repetition of the elements identified by Canada that
form part of the alleged OFA-AFA measure. Thus, we consider that the Panel did not err in examining
"repeated application" by reference to the elements of the alleged measure in this dispute, and not
against the particular elements of the measure in US – Continued Zeroing.
5.32. The United States also argues that the evidence in this dispute showed that there was no
repeated application of the alleged measure because there were frequent and numerous breaks. 99
The United States refers to four examples on the Panel record (Supercalendered Paper fr om
Canada 2015, Shrimp from China 2013, PET Resin from China 2016, and Stainless Pressure Pipe
from India 2016 ) where, according to the United States, the USDOC did not apply the alleged
OFA-AFA measure.100
5.33. Canada responds that the Panel correctly evaluated the evidence in finding that the alleged
OFA-AFA measure had been repeatedly applied and recalls the Panel's conclusion that it could not
identify a single instance where the USDOC had not applied the alleged OFA-AFA measure.101 Canada
disagrees with the Uni ted States' characterization of certain instances as "deviations" from the
alleged OFA-AFA measure. Rather, Canada submits that these determinations also demonstrate the
repeated application of the alleged OFA-AFA measure whenever the relevant circumstances arise.102
5.34. We note, as observed by Canada, that the Panel found it was unable to identify any instance
where the alleged OFA-AFA measure had not been applied by the USDOC, except as an "inadvertent
error".103 The Panel considered that the United States had not provided evidence of any instance
after 2012 where the USDOC did not apply the alleged measure.104
5.35. In relation to Supercalendered Paper from Canada 2015, the United States argues that the
USDOC did not use "facts available" for one of the accounts it had discovered during verification for
Resolute.105 We understand the United States to be referring to the unreported account that the

97 Panel Report, paras. 7.308 and 7.316.
98 Panel Report, para. 7.319; Canada's appellee's submission, para. 33; second written submission to
the Panel, para. 167.
99 United States' appellant's submission, para. 30.
100 United States' appellant's submission, paras. 26-28.
101 Canada's appellee's submission, paras. 52-53.
102 Canada's appellee's submission, paras. 33 and 53-55 (referring to USDOC, Memorandum dated
27 August 2015 for the Verification of the Questionnaire Responses of Resolute FP Canada Inc. in the
Countervailing Duty Investigation of Supercalendered Paper from Canada (Supercalendered Paper from Canada
2015, Verification Report (Resolute) (Panel Exhibit CAN-47 (BCI)), p. 8; USDOC, Issues and Decision
Memorandum for the Final Determination in the Countervailing Duty Investigation of Certain Frozen
Warmwater Shrimp from the People's Republic of China (12 August 2013) (Shrimp from China 2013,
I&D Memo) (Panel Exhibit CAN-118), pp. 15-16 and 76-78; USDOC, Issues and Decision Memorandum for the
Final Determination in the Countervailing Duty Investigation of Certain Polyethylene Terephthalate Resin from
the People's Republic of China (4 March 2016) (PET Resin from China 2016, I&D Memo) (Panel Exhibit
CAN-125), pp. 19 and 52-53; USDOC, Verification of Zhanjiang Guolian Aquatic Products Co., Ltd., Zhanjiang
Guolian Feed Co., Ltd., Zhanjiang Guolian Aquatic Fry Technology Co., Ltd., and Zhanjiang Guotong Aquatic
Co., Ltd. in Countervailing Duty Investigation: Certain Warmwater Shrimp from the People's Republic of China
(1 July 2013) (Panel Exhibit CAN-215), pp. 1-2; USDOC, Countervailing Duty Investigation of Polyethylene
Terephthalate Resin from the People's Republic of China: Verification Report of Dragon Special Resin Co., Ltd.,
Xiang Lu Petrochemicals Co., Ltd., Xianglu Petrochemicals Co., Ltd., and Xiamen Xianglu Chemical Fiber
Company Limited (19 January 2016) (PET Resin from China 2016, Verification Report (Dragon)) (Panel Exhibit
CAN-210), p. 2)).
103 Panel Report, para. 7.325 (referring to Stainless Pressure Pipe from India 2016, Final Calculation
Memo (Panel Exhibit CAN-148), fn 3); Canada's appellee's submission, paras. 52 and 55.
104 Panel Report, para. 7.326.
105 United States' appellant's submission, para. 26.

USDOC discovered during verification for Resolute, which was empty for the relevant periods.106 As
noted by Canada, an account that is empty during the relevant periods would be unlikely to reflect
"assistance" that would be reported in response to the OFA question.107 Thus, we do not consider
that this example undermines the Panel's conclusion that Supercalendered Paper from Canada 2015
is an instance of repeated application of the alleged OFA-AFA measure.108
5.36. With respect to Shrimp from China 2013 and PET Resin from China 2016, the United States
contends that the USDOC did not apply "facts available" to all previously unreported in formation
that it had discovered during verification. The United States considers the Panel's reasoning to
explain away the non-application of the alleged OFA-AFA measure by referring to the time at which
the respondent companies presented information to the USDOC, namely at the outset of verification.
To the United States, however, the alleged measure does not include this temporal distinction and
refers only to "verification".109
5.37. We note, however, that the Panel found that in both of these examples, "the USDOC went on
to discover information during the verification and applied AFA because the companies did not report
the programmes in response to the [OFA] question."110 We understand that the Panel distinguished
between situations where a respo ndent presents information at verification concerning previously
reported grants or programmes, and situations where a respondent presents information at
verification concerning previously unreported grants or programmes. Thus, we do not agree with
the Uni ted States that the distinction made by the Panel merely concerned timing, i.e. whether
information was presented at the outset of verification or not.111
5.38. Indeed, in Shrimp from China 2013, the respondent companies reported three grants at
verification that had not been referred to in their initial or supplemental questionnaire responses.112
The USDOC noted that these grants had not been previously reported, and on that basis applied AFA
to determine that they were countervailable subsidies. 113 Similarly, in PET Resin from China 2016,
the respondent companies presented certain grants as minor corrections at verification. 114 We
understand that the USDOC accepted, as minor corrections, information concerning grants that had
been previously reported to the USDOC. By c ontrast, the USDOC rejected, as minor corrections,
grants that had not been previous ly reported. This was because "whether a program was used or
not by a company is not 'minor' in the view of the [USDOC]". 115 In relation to the previously
unreported grants, the USDOC then applied AFA to determine that they were countervailable
subsidies.116 Thus, we consider that the Panel correctly concluded that both Shrimp from China 2013
and PET Resin from China 2016 concerned "situations where previously unreported informa tion is
discovered by the USDOC".117 As the United States has not demonstrated otherwise, we see no error
in the Panel's finding that these proceedings demonstrate repeated application of the alleged
OFA-AFA measure.
5.39. Turning to Stainless Pressure Pipe from India 2016 , the United States contends that the
USDOC did not apply the alleged measure. The United States notes that the Panel emphasized that
the USDOC characterized its conduct in that proceeding as an "inadvertent error". To the
United States, however, the reason why the USDOC did not apply the alleged measure is
"irrelevant".118

106 Supercalendered Paper from Canada 2015, Verification Report (Resolute) (Panel Exhibit CAN-47
(BCI)), p. 8.
107 Canada's appellee's submission, para. 53.
108 Panel Report, para. 7.320, table 3.
109 United States' appellant's submission, para. 27.
110 Panel Report, para. 7.327.
111 United States' appellant's submission, para. 27.
112 At the outset of verification, the respondent companies also presented five corrections that did not
concern the unreported grants. (Shrimp from China 2013, I&D Memo (Panel Exhibit CAN-118), p. 76)
113 Shrimp from China 2013, I&D Memo (Panel Exhibit CAN-118), pp. 76-77.
114 PET Resin from China 2016, I&D Memo (Panel Exhibit CAN-125), p. 19.
115 PET Resin from China 2016, I&D Memo (Panel Exhibit CAN-125), p. 19; PET Resin from China 2016,
Verification Report (Dragon) (Panel Exhibit CAN-210).
116 Panel Report, para. 7.320, table 3 (referring to PET Resin from China 2016, I&D Memo (Panel Exhibit
CAN-125), p. 53).
117 Panel Report, para. 7.327.
118 United States' appellant's submission, para. 28.

5.40. We note, however, that the Panel Report refers to excerpts indicating that the alleged
OFA-AFA measure was eventually applied in Stainless Pressure Pipe from India 2016 in relation to
information discovered at verification. 119 In addition, contrary to the United States' argument, we
consider that the reason for an apparent break in the application of the alleged OFA-AFA measure is
relevant to the analysis at issue. We agree with the Panel that the USDOC's characterization of the
non-application as an "inadvertent error" suggests that, had the USDOC not erred, it would have
applied the alleged OFA-AFA measure, as it ultimately did in this example.120 Thus, we consider that
the Panel was correct to conclude that Stainless Pressure Pipe from India 2016 does not represent
a break in the application of the alleged OFA -AFA measure; rather, it provides evidentiary support
for the repeated application of the alleged measure.
5.41. We therefore consider that the Panel was correct to find that the alleged OFA -AFA measure
was applied in each of the examples relied on by Canada, and that no instances of non -application
were identified by the United States. We agree with the Panel that these exam ples establish that
the alleged OFA-AFA measure has been repeatedly applied.
5.1.4.3 Likelihood of continued application of the alleged OFA-AFA measure
5.42. The United States also claims that the Panel erred in finding that Canada had established that
the alleged OFA-AFA measure was likely to continue to be applied in the future.121 The United States
contends that, unless the complainant establishes that "a Member has adopted a decision to follow
[particular] conduct in the future, vague statements of what a Member 'does' do not establish the
existence of a measure".122 The United States refers to its arguments on repeated application and
submits that there is "no discernible basis" in the Panel's findings to support the conclusion that the
alleged ongoing conduct is likely to continue.123 Finally, the United States considers that the Panel's
reference to "practice" does not demonstrate likelihood of continued application and that the Panel's
findings were not premised on any such conclusion.124
5.43. Canada responds that the legal standard for likelihood of continued application is not one of
"certainty".125 Canada recalls that the USDOC applied the alleged OFA-AFA measure whenever it was
confronted with relevant factual circumstances. Canada considers that the Panel correctly concluded
that the alleged OFA-AFA measure is likely to continue to be applied, given its repeated application,
the consistent manner in which the USDOC refers to the alle ged measure as a "practice", the
frequent reference to previous applications of the alleged measure in USDOC determinations, and
the USDOC's description of a departure from the alleged measure as an "error".126
5.44. We disagree wit h the United States' suggestion that a complainant is required to establish
that a Member has "adopted" a decision to follow particular conduct in the future. 127 While such an
adopted decision may suffice, in certain cases, to show that particular conduct is likely to continue
in the future, a complaining Member need not rely on a formal decision by the responding Member
to demonstrate the existence of "ongoing conduct". Rather, we consider that likelihood of continued
application may be demonstrated through a number of factors. In this res pect, we agree with the
Panel that Canada was not required to prove "certainty" of future application of the alleged
OFA-AFA measure.128

119 Panel Report, para. 7.313, table 2 (referring to USDOC, Issues and Decision Memorandum for the
Final Affirmative Determination in the Countervailing Duty Investigation of Welded Stainless Pressure Pipe from
India (22 September 2016) (Panel Exhibit CAN-152), pp. 6, 8, and 28-29 (fns omitted)).
120 Panel Report, para. 7.328.
121 United States' appellant's submission, paras. 31-32.
122 United States' appellant's submission, para. 10.
123 United States' appellant's submission, para. 31.
124 United States' appellant's submission, para. 31 (referring to Panel Report, para. 7.329).
125 Canada's appellee's submission, paras. 11 and 58 (referring to Panel Report, para. 7.329;
Appellate Body Report, US – Anti-Dumping Methodologies (China), para. 5.132; Panel Report, US – Orange
Juice (Brazil), para. 7.192).
126 Canada's appellee's submission, para. 60 (referring to Panel Report, para. 7.328).
127 United States' appellant's submission, para. 10.
128 Panel Report, para. 7.329. We note that the Appellate Body has taken a similar view in relation to
the prospective nature of rules or norms of general and prospective application. To the Appellate Body, a
complainant would not be able to show "certainty" of future application, because any measure may be modified

5.45. We recall that the Panel found that the alleged OFA -AFA measure amounted to conduct that
was likely to continue on the basis of the following factors present in the USDOC's post-2012
determinations: (i) the consistent manner in which the USDOC referred to the alleged
OFA-AFA measure or previous applications of the alleged measure 129; (ii) the USDOC's own
reference to the all eged measure as its "practice" 130; and (iii) the USDOC's characterization of a
departure from the alleged measure as an "inadvertent error".131
5.46. In examining these factors, the Panel relied on evidence summarized in tables 3 and 4 of the
Panel Report concerning the USDOC's post-2012 determinations. In relation to Shrimp from China
2013, the excerpt relied on by the Panel notes that, while the USDOC's practice concerning
programmes discovered at verification has varied in past cases, the facts of that case merit ed the
application of AFA.132 The excerpts relied on by the Panel in Solar Cells from China 2014, Solar Cells
from China 2015, and Supercalendered Paper from Canada 2015 repeat the same statement.133
Moreover, Solar Cells from China 2014, Supercalendered Paper from Canada 2015, and PET Resin
from China 2016 each refer to Shrimp from China 2013 when applying AFA to unreported information
discovered during verification.134 Further, the excerpts for Solar Cells from China 2014, Solar Cel ls
from China 2015, and Supercalendered Paper from Canada 2015 preface the application of AFA to
unreported information discovered at verification with the statement: "consistent with [the USDOC's]
practice".135 In relation to Stainless Pressure Pipe from India 2016, the Panel referred to the USDOC's
"practice of not collecting new information at verification" and the view that it was an "inadvertent
error" to do otherwise.136 In relation to Truck and Bus Tires from China 2016, the excerpt relied on
by the Pane l also prefaces the application of AFA to unreported information discovered during
verification with the statement: "consistent with prior determinations", referring to PET Resin from
China 2016 and Supercalendered Paper from Canada 2015.137 We also note that, in that proceeding,
the USDOC stated that, "[w]hile the [USDOC] acknowledges that its practice has evolved over time,
since 2012, it has determined that the proper course of action when an unreported potential subsidy
is discovered or 'presented' at ver ification is to rely on adverse inferences in making a finding on
that potential subsidy."138
5.47. Overall, the Panel found that Canada had shown that the USDOC applied the alleged
OFA-AFA measure in nine determinations since 2012, and that the United States had not provided
any evidence of non-application of the alleged measure subsequent to 2012. 139 We see no error in

or withdrawn in the future. The mere possibility that "a rule or norm may be modified or withdrawn, however,
does not remove the prospective nature of that measure". (Appellate Body Report, US – Anti-Dumping
Methodologies (China), para. 5.132) See also European Union's third participant's submission, para. 20;
Japan's third participant's submission, para. 6; China's third participant's submission, paras. 7 and 10.
129 Panel Report, para. 7.328.
130 The Panel also acknowledged the parties' disagreement as to whether the alleged OFA-AFA measure
constituted a "practice" under United States law, but considered it was not determinative as to the likelihood of
the continuation of the alleged OFA-AFA measure, and did not express a view. (Panel Report, para. 7.329 and
fn 613 thereto)
131 Panel Report, para. 7.328 (quoting Stainless Pressure Pipe from India 2016, Final Calculation Memo
(Panel Exhibit CAN-148), fn 3).
132 Panel Report, para. 7.320, table 3 (quoting Shrimp from China 2013, I&D Memo (Panel Exhibit
CAN-118), p. 78).
133 Panel Report, para. 7.320, table 3 (quoting Solar Cells from China 2014, I&D Memo (Panel Exhibit
CAN-121), p. 88; Solar Cells from China 2015, I&D Memo (Panel Exhibit USA-8), p. 58; Supercalendered Paper
from Canada 2015, I&D Memo (Panel Exhibit CAN-37), p. 155).
134 Panel Report, para. 7.320, table 3 (quoting Solar Cells from China 2014, I&D Memo (Panel Exhibit
CAN-121), p. 88; Supercalendered Paper from Canada 2015, I&D Memo (Panel Exhibit CAN-37), p. 155;
PET Resin from China 2016, I&D Memo (Panel Exhibit CAN-125), p. 53).
135 Panel Report, para. 7.320, table 3; Solar Cells from China 2014, I&D Memo (Panel Exhibit CAN-121),
p. 88; Supercalendered Paper from Canada 2015, I&D Memo (Panel Exhibit CAN-37), p. 155; Solar Cells from
China 2015, I&D Memo (Panel Exhibit USA-8), p. 59.
136 Panel Report, para. 7.320, table 3; Stainless Pressure Pipe from India 2016, Final Calculation Memo
(Panel Exhibit CAN-148).
137 Panel Report, para. 7.321, table 4; USDOC, Issues and Decision Memorandum for the Final
Determination in the Countervailing Duty Investigation of Truck and Bus Tires from the People's Republic of
China; and Final Affirmative Determination of Critical Circumstances, in Part (19 January 2016) (Truck and Bus
Tires from China 2016, I&D Memo) (Panel Exhibit CAN-163), pp. 15-16.
138 Truck and Bus Tires from China 2016, I&D Memo (Panel Exhibit CAN-163), p. 67 (referring to Solar
Cells from China 2012, Shrimp from China 2013).
139 Panel Report, paras. 7.324-7.326.

the Panel's conclusion that the evidence adduced by Canada sufficiently establishes that the
challenged conduct is likely to continue. In particular , we agree with the Panel that the consistent
manner in which the USDOC refers to the alleged OFA -AFA measure, the frequent reference to
previous applications of the alleged measure in USDOC determinations, the fact that the USDOC
refers to the alleged measure as its "practice"140, and the USDOC's characterization of a departure
from the alleged measure as an "inadvertent error" all support the conclusion that the alleged
measure is likely to continue to apply.141
5.1.5 Conclusion
5.48. For the reasons stated above, we dismiss Canada's assertion that the United States' claim on
appeal falls outside the scope of appellate review. Further, we find that the Panel did not err in
concluding that Canada had established the precise content, repeated application, and likelihood of
continued application of the alleged OFA-AFA measure.
5.49. Consequently, we uphold the Panel's finding, in paragraphs 7.332 and 8.4.a of the
Panel Report, that Canada established the existence of the OFA -AFA measure as "ongoing
conduct".142
5.2 Article 12.7 of the SCM Agreement
5.2.1 Introduction
5.50. The United States appeals the Panel's finding that the OFA-AFA measure is inconsistent with
Article 12.7 of the SCM Agreement. In particular, the United States claims that the Panel erred under
Article 12.7 of the DSU by failing to provide a "basic rationale" for its finding that the
OFA-AFA measure is inconsistent with Article 12.7 of the SCM Agreement.143 The United States also
claims that the Panel erred under Article 12.7 of the SCM Agreement b y finding that the
OFA-AFA measure is inconsistent with that provision.144 The United States requests that we reverse
the Panel's finding that the OFA -AFA measure is inconsistent with Article 12.7 of the
SCM Agreement.145 Canada responds that the Panel did not err in finding that the OFA-AFA measure
is inconsistent with Article 12.7 of the SCM Agreement.146 Canada requests that we dismiss the
United States' claims of error.147
5.51. We begin by summarizing the Panel's findings under Article 12.7 of the SCM Agreement. We
then address the United States' claims of error on appeal.
5.2.2 The Panel's findings
5.52. Before the Panel, Canada claimed that the United States acted inconsistently with Article 12.7
of the SCM Agreement by improperly applying AFA against the Canadian company Resolute in
relation to assistance discovered at verification that had not been disclosed in response to the
OFA question.148 Separately, Canada also claimed that the OFA -AFA measure, as an "ongoing
conduct" measure, is inconsistent with Article 12.7 of the SCM Agreement because it eliminates the

140 We understand the Panel's reference to "practice" to be a general reference to the usual or routine
procedure applied by the USDOC when certain circumstances arise. The Panel did not make any findings in
relation to a "practice" within the meaning of United States law. We agree with the Panel's statement that
whether the alleged OFA-AFA measure "constitutes a legally-binding practice or policy under [United States]
law is not determinative as to the likelihood of the continuation of the [alleged] measure" in examining
whether an "ongoing conduct" measure exists for purposes of WTO dispute settlement. (Panel Report,
para. 7.329)
141 Panel Report, para. 7.328.
142 We note that, in making this finding, the Panel did not find it necessary to address Canada's
assertion that the measure amounted to a rule or norm of general and prospective application. (Panel Report,
para. 7.332 (referring to Canada's opening statement at the first Panel meeting, para. 210))
143 United States' appellant's submission, paras. 4 and 39-48.
144 United States' appellant's submission, paras. 4 and 49-79.
145 United States' appellant's submission, para. 80.
146 Canada's appellee's submission, paras. 61-127.
147 Canada's appellee's submission, para. 128.
148 Panel Report, para. 7.155.

requirement for evidence and effectively replaces it with the assumptions of the USDOC during
verification.149
5.53. The Panel first examined the USDOC's use of "facts available" against Resolute in
section 7.4.1.4 of the Panel Report. The Panel began by noting that the purpose of Article 12.7 of
the SCM Agreement is to ensure that a lack of information does not hinder the ability of an
investigating authority to conduct its investigation. This provision allows authorities to fill in the gaps
by using "facts available" they deem relevant in order to make a determ ination.150 The Panel later
explained that this allowance is not boundless. An authority must use those "facts available" that
reasonably replace the information that an interested party failed to provide, with a view to arriving
at an accurate determination.151 The "facts available" must be facts that are in the possession of the
investigating authority and on its written record. To the Panel, an investigating authority cannot
resort to non-factual assumptions or speculations and must take into account all substantiated facts
on the record.152
5.54. The Panel considered that the disagreement between the parties concerned "refus[ing] access
to, or otherwise … not provid[ing], necessary information within a reasonable period", rather than
"significantly imped[ing] the investigation".153 To the Panel, the term "necessary" in Article 12.7 of
the SCM Agreement is "concerned with overcoming the absence of information required to complete
a determination".154 The Panel distinguished between "necessary" information and information that
is merely "requested" or "required".155 To the Panel, only a request for "necessary" information may
justify use of "facts available".156
5.55. In relation to Resolute, the Panel noted that Resolute and Canada had not indicated any other
assistance in response to the OFA question.157 The Panel also noted that, at the verification stage of
the underlying investigation, the USDOC had discovered certain forms of assistance that had not
been disclosed in response to the OFA question.158 The USDOC consequently determine d that the
use of "facts available" was warranted with respect to Resolute and concluded that the discovered
forms of assistance provided a financial contribution and were specific, and that a benefit had been
conferred.159
5.56. The Panel stated that it is logical to postulate that information pertaining to the existence of
as-of-yet unidentified subsidy programmes benefiting the product under investigation is necessary
information under Article 12.7 of the SCM Agreement.160 In order to justify recourse to "facts
available" on the grounds that such necessary information was refused access to or was otherwise
not provided, however, the USDOC first needed to establish that the information about the
discovered assistance was information necessary to complete a determina tion on subsidization of

149 Panel Report, paras. 7.294 and 7.296; Canada's first written submission to the Panel, para. 426.
150 Panel Report, para. 7.172.
151 Panel Report, para. 7.184 (referring to Appellate Body Reports, US – Carbon Steel (India),
para. 4.416; Mexico – Anti-Dumping Measures on Rice, para. 294; US – Countervailing Measures (China),
para. 4.178).
152 Panel Report, para. 7.184 (referring to Appellate Body Reports, US – Carbon Steel (India),
paras. 4.417 and 4.419; Mexico – Anti-Dumping Measures on Rice, para. 294; US – Countervailing Measures
153 Panel Report, para. 7.173.
154 Panel Report, para. 7.174 (quoting Appellate Body Report, US – Carbon Steel (India), para. 4.416
(emphasis added by the Panel omitted)). The Panel noted a dictionary definition of the term "necessary" as
something "[t]hat cannot be dispensed with or done without; requisite, essential, needful". (Panel Report,
para. 7.174) The Panel also stated that Article 12.7 "permits the use of facts on record solely for the purpose
of replacing information that may be missing, in order to arrive at an accurate subsidization or injury
determination". (Panel Report, fn 297 to para. 7.174 (quoting Appellate Body Report, Mexico – Anti-Dumping
Measures on Rice, para. 293))
155 Panel Report, para. 7.174 (referring to Panel Report, Egypt – Steel Rebar, para. 7.155).
156 Panel Report, para. 7.174.
157 Panel Report, paras. 7.157-7.160.
158 Panel Report, paras. 7.162-7.163. While the USDOC examined the accounts relating to the
discovered assistance, it refused to accept onto the record any of the information contained in the accounts
concerning the nature or value of the assistance. (Panel Report, para. 7.163)
159 Panel Report, para. 7.165.
160 Panel Report, para. 7.175. Given that "[t]he parties to these proceedings are in agreement that new
programmes may be added to an investigation when they are discovered during that investigation", the Panel
stated that this question is not addressed in the Panel Report. (Ibid.)

the product under consideration.161 The Panel considered that the USDOC failed to do so. Instead,
having found certain entries during verification, the USDOC inferred that these entries pertained to
countervailable subsidization of supercalendered paper, "without taking any further steps to confirm
that this was in fact the case and providing a reasoned and adequate explanation to that effect".162
5.57. The Panel acknowledged arguments by the United States in relation to the practical difficulties
arising from the timing of verifications and the closing of the record of the USDOC's investigation.
Nonetheless, the Panel held that it is the right of respondents that an investigating authority may
only resort to "facts available" after properly determining that information necessary to complete a
determination on additional subsidization of the product under investigation had been withheld. 163
The fact that it would have been inconvenient or impractical for the USDOC to take further steps to
confirm the basic nature of the discovered assistance cannot outweigh the due process rights
enshrined in the WTO Agreements.164 The Panel explained that this is all the more applicable where
an investigating authority elects to add subsidy programmes to an ongoing investigation.165
5.58. While recognizing that Canada does not contest the USDOC's right to ask the OFA question166,
the Panel noted that the OFA question is very broad. To the Panel, while the OFA question might
pertain to necessary information regarding additional subsidization of the product under
investigation, it may also pertain to a much broader range of "assistance". 167 The Panel considered
that, in these circumstances, the investigating authority may not infer that a respondent's failure to
respond fully to such a question resulted in a failure to provide information necessary to establish
the existence of additional subsidization of the product under investigation. To the Panel, more is
required of the investigating authority.168
5.59. The Panel then examined the USDOC's decision to disregard the actual amounts discovered
during verification when determining benefit. Instead of using the actual amounts from Resolute's
company ledger, the USDOC relied on the rates calculated in an unrelated investigation.169 The Panel
explained that reliance on such rates "over information found by the verification team in a
respondent's own company ledger, without analysing that information, was not justif ied".170 To the
Panel, this was especially the case since the USDOC had already relied on information in that ledger
to infer the existence of a countervailable subsidy. The Panel concluded that the USDOC's use of
facts other than actual amounts present in t he company ledger discovered at verification, without
reasoned and adequate explanation, was inconsistent with Article 12.7 of the SCM Agreement.171
5.60. The Panel next considered Canada's claim that the OFA -AFA measure, as an "ongoing
conduct" measure, is inconsistent with Article 12.7 of the SCM Agreement. Addressing this claim of
inconsistency in paragraph 7.333, the Panel noted that , while a broad question such as the
OFA question might pertain to necessary information regarding additional subsidization of th e
product under investigation, it may also pertain to a much broader range of "assistance". 172 As the
Panel stated, in these circumstances, an investigating authority may not simply infer that a
respondent's failure to respond fully to the OFA question resulted in a failure to provide information

161 Panel Report, para. 7.175.
162 Panel Report, para. 7.176 (referring to Supercalendered Paper from Canada 2015, I&D Memo (Panel
Exhibit CAN-37) p. 30 ("For the subsidies discovered at Resolute's verification, we have identified the
remaining two programs that we find, as AFA, to provide a financial contribution, to be specific, and to confer a
benefit[.]") and p. 153 ("[W]e find that Resolute failed to provide information regarding this assistance
discovered at verification, and thus, [S]ection 776(a)(2)(B) of the Act applies. We further find that … Resolute
failed to cooperate[.] … Thus, pursuant to Section 776(b) of the Act, we are determining, as AFA, that the
unreported assistance in question is countervailable.")).
163 Panel Report, para. 7.177.
164 Panel Report, para. 7.177.
165 Panel Report, para. 7.177.
166 The Panel noted that Canada itself conceded that "[t]he formulation of a question cannot, in and of
itself, violate the requirements of the SCM Agreement." (Panel Report, para. 7.181, quoting Canada's response
167 Panel Report, para. 7.181.
168 Panel Report, para. 7.181.
169 Panel Report, paras. 7.182 and 7.185.
170 Panel Report, para. 7.185.
171 Panel Report, para. 7.185.
172 Panel Report, para. 7.333.

necessary to establish the existence of additional subsidization of the product under investigation.173
The Panel noted that, in light of the due process rights enjoyed by interested parties throughout an
investigation, an investigating authority may only resort to "facts available " after properly
determining that information necessary to complete a determination on additional subsidization of
the product under investigation had been withheld. 174 To the Panel, this is all the more applicable
where an investigating authorit y elects to a dd subsidy programmes to an ongoing investigation,
rather than investigating only the subsidies identified in the notice of initiation. 175 The Panel
concluded that the challenged measure is inconsistent with Article 12.7 of the SCM Agreement. The
Panel noted that this conclusion was in line with its findings in section 7.4.1.4 of the Panel Report
relating to Resolute.176
5.2.3 Whether the Panel erred under Article 12.7 of the DSU by failing to provide a "basic
rationale"
5.61. The United States claims that the Panel erred under Article 12.7 of the DSU by failing to
provide a "basic rationale" for its finding that the OFA-AFA measure is inconsistent with Article 12.7
of the SCM Agreement.177 Canada responds that the Panel met the minimum standard of providing
a "basic rationale" in accordance with Article 12.7 of the DSU.178
5.62. Article 12.7 of the DSU provides, in relevant part, that the report of a panel shall set out the
findings of fact, the applicability of relevant provisions , and the basic rationale behind any findings
and recommendations that it makes. The requirement to set out a "basic rationale" establishes a
minimum standard for the reasoning that panels must provide in support of their findings and
recommendations.179 To m eet this minimum standard, panels must provide explanations and
reasons sufficient to disclose the essential, or fundamental, justification for those findings and
recommendations.180 Whether a panel has articulated a "basic rationale" for its findings is
determined on a case-by-case basis.181 In order to determine whether a "basic rationale" has been
provided, it is appropriate to read the Panel Report as a whole. In this respect, we recall that panels
are free to structure the order of their analysis as they see fit.182
5.63. The Unit ed States alleges that the Panel did not incorporate the reasoning from
section 7.4.1.4 of the Panel Report, which concerns Resolute, into the Panel's findings in relation to
the OFA -AFA measure in paragraph 7.333 of the Panel Report. To the United States, the only
indication that the Panel may have intended to incorporate section 7.4.1.4 is the phrase "in line with
the findings in Section 7.4.1.4 above" at the beginning of paragraph 7.333.183 In response, Canada
observes that th e similarity in wording betwee n paragraph 7.333 and section 7.4.1.4 supports a
view that the Panel intended to incorporate section 7.4.1.4 into the "basic rationale" of
paragraph 7.333.184

173 Panel Report, para. 7.333.
174 Panel Report, para. 7.333.
175 Panel Report, para. 7.333.
176 Panel Report, para. 7.333. The Panel noted that Canada had brought additional challenges to the
OFA-AFA measure under Articles 10, 11.1-11.3, 11.6, 12.1, and 12.8 of the SCM Agreement. To the Panel,
Canada's main concern in bringing these additional claims was to ensure that respondents enjoy certain
"procedural safeguards" with respect to subsidy programmes discovered during the course of an investigation.
The Panel considered that its finding under Article 12.7 of the SCM Agreement already reflected the type of
"procedural safeguards" envisaged by Canada. Thus, the Panel saw no need to separately consider Canada's
177 United States' appellant's submission, paras. 39-48.
178 Canada's appellee's submission, paras. 63-85.
179 Appellate Body Reports, US – Carbon Steel, para. 4.194; Mexico – Corn Syrup (Article 21.5 – US),
para. 106.
180 Appellate Body Reports, US – Carbon Steel, para. 4.194; Mexico – Corn Syrup (Article 21.5 – US),
para. 106.
181 Appellate Body Reports, US – Carbon Steel, para. 4.194; Mexico – Corn Syrup (Article 21.5 – US),
para. 108.
182 Appellate Body Reports, Canada – Wheat Exports and Grain Imports, para. 126; US – Shrimp
(Article 21.5 – Malaysia), paras. 99-106.
183 United States' appellant's submission, para. 43.
184 Canada's appellee's submission, paras. 68-80.

5.64. At the outset, we note that paragraph 7.333 of the Panel Report contains an explanation of
the Panel's findings in relation to the OFA-AFA measure that follows the extensive preceding analysis
of the nature of the OFA -AFA measure as an "ongoing conduct" measure .185 In addition, w e note
that the first sentence of paragraph 7.333 explicitly refers to the Panel's earlier analysis by beginning
with: "[i]n line with our findings in Section 7.4.1.4 above". In addition, a comparison of the second,
third, fourth, and final sentences of pa ragraph 7.333 with paragraphs 7.177 and 7.181 of
section 7.4.1.4 shows that the language in paragraph 7.333 is substantially identical to the language
of the earlier paragraphs. Moreover, the third sentence of paragraph 7.333 also directly refers to
the Panel's earlier analysis. The third sentence states "[a]s we have said" and then repeats language
substantially identical to the final sentence of paragraph 7.181 (from section 7.4.1.4).186
Furthermore, we note that the Appellate Body Report in EC – Tube or Pipe Fittings187 is quoted in
paragraph 7.177 and then cited for the same proposition in the fourth sentence of paragraph 7.333
of the Panel Report. On the basis of these textual connections, we consider that the Panel
incorporated section 7.4.1.4 into its analysis of the OFA-AFA measure in paragraph 7.333.188
5.65. The United States also asserts that section 7.4.1.4 cannot be incorporated into the "basic
rationale" of paragraph 7.333 because the Panel's earlier analysis in section 7.4.1.4 involved issues
unrelated to the OFA-AFA measure.189 Canada argues that this is unproblematic because a plain
reading shows that the Panel intended to incorporate only the relevant paragraphs.190
5.66. We agree with the United States that the OFA-AFA measure does not extend to the manner
in which the USDOC selected facts available to determine the amount of benefit attributable to the
discovered assistance evaluated by the Panel in paragraphs 7.182-7.183 and 7.185 (in the context
of Supercalendered Paper from Canada 2015). 191 This does not, however, prevent the Panel from
incorporating the relevant parts of section 7.4.1.4 into paragraph 7.333. These are
paragraphs 7.171-7.181 and 7.184, where the Panel interprets Article 12.7 of the SCM Agreement
and evaluates the USDOC's determination that the unreported assistance discovered during the
verification of Resolute amounts to a countervailable subsidy. There is no indication that the Panel
changed its understanding of Article 12.7 between section 7.4.1.4 and paragraph 7.333. That the
Panel sought to draw only on the relevant paragraphs is also confirmed by the fact that, as discussed
above, the language of paragraph 7.333 of the Panel Report mirrors specific parts of the Panel's
earlier analysis. In our view , the Panel made it clear that paragraph 7.333 must be read in the
context of the earlier analysis.
5.67. Finally, the United States argues that the reasoning in section 7.4.1.4 cannot be incorporated
into the Panel's reasoning regarding the OFA -AFA measure because it would be erroneous to
generalize from an "as applied" finding (concerning Resolute) to the OFA-AFA measure.192 We agree
with Canada that it was reasonable for the Panel to incorporate certain parts of its earlier analysis
because the Panel had already considered the interpretation of Article 12.7 with respect to a specific
application of the OFA -AFA measure.193 Indeed, the conduct of the USDOC under consideration
earlier by the Panel was a specific instance of the conduct described by th e OFA-AFA measure.194
The Panel considered the USDOC CVD proceeding Supercalendered Paper from C anada 2015 to be
an example of the "ongoing conduct" measure challenged by Canada. In this respect, we recall that
the Panel found that the relevant conduct of the USDOC remained the same in the examples
examined by the Panel.195
5.68. In summary, we consider the Panel to have appropriately incorporated into paragraph 7.333
the relevant portions of its earlier analysis in section 7.4.1.4. Through these paragraphs, the Panel

185 Panel Report, paras. 7.301-331.
186 Canada's appellee's submission, para. 74.
187 Panel Report, fn 623 to para. 7.333, referring to Appellate Body Report, EC – Tube or Pipe Fittings,
para. 138 (quoting Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 136).
188 European Union's third participant's submission, paras. 29-30.
189 United States' appellant's submission, para. 46.
190 Canada's appellee's submission, para. 83.
191 United States' appellant's submission, para. 46.
192 United States' appellant's submission, para. 45.
193 Canada's appellee's submission, para. 79.
194 We recall that Supercalendered Paper from Canada 2015 was one of nine determinations used as
evidence of the existence of the OFA-AFA measure.
195 Panel Report, para. 7.316.

provided an interpretation of Article 12.7 of the SCM Agreement, addressed pertinent factual aspects
of the OFA -AFA measure, and provided explanation sufficient to disclose the Panel's essential
justification for its finding. Thus, we consider that the Panel did not err under Article 12.7 of the DSU
by failing to provide a "basic rationale" for its finding that the OFA-AFA measure is inconsistent with
Article 12.7 of the SCM Agreement.
5.2.4 Whether the Panel erred under Article 12.7 of the SCM Agreement by finding that
the OFA-AFA measure is inconsistent with that provision
5.69. The United States claims that the Panel erred under Article 12.7 of the SCM Agreement by
finding that the OFA -AFA measure is inconsistent with that provision. This is because, in the
United States' view: (i) it was inappropriate for the Panel to have ignored the "significantly impedes"
ground for using "facts available" under Article 12.7 of the SCM Agreement;196 (ii) the Panel
identified conduct that is not contained in the OFA-AFA measure as WTO-inconsistent;197 and (iii) the
Panel incorrectly found that the OFA question can never be a req uest for "necessary information"
under Article 12.7 of the SCM Agreement.198 We examine each of the United States' arguments
below.199
5.70. First, the United States argues that it was in appropriate for the Panel to have ignored the
"significantly impedes" ground for using "facts available" under Article 12.7 of the
SCM Agreement.200 Canada responds that the "significantly impedes" ground is not relevant because
the OFA-AFA measure concerns only a situation where a party fails to provide information and the
USDOC either fails to assess whether such information is necessary or makes an unjustified
assessment that such information is necessary.201
5.71. We note that, under Article 12.7 of the SCM Agreement, use of "facts available" may be based
on three alternative grounds. These are when an interested party or interested Member: (i) "refuses
access to … necessary information within a reasonable period" ; (ii) "otherwise does not provide …
necessary information within a reasonable period"; or (iii) "significantly impedes the investigation".
We refer below to the first two grounds collectively as a situation where a party fails to provide
necessary information.202
5.72. The United States contends that, to find the OFA-AFA measure inconsistent with Article 12.7
of the SCM Agreement, the Panel would have had to conclude that none of the conditions triggering
the use of "facts available " could be present. 203 To the United States, a failure to answer the
OFA question could well amount to significant impedance of the investigation.204
5.73. We recall that the sequence of actions identified in the OFA-AFA measure is entirely concerned
with a failure by an interested pa rty to provide necessary information. Specifically, the conduct
described by the measure involves the USDOC discovering during verification assistance that the
USDOC deems should have been reported in response to the OFA question, and then using AFA to

196 United States' appellant's submission, paras. 4 and 49-55.
197 United States' appellant's submission, paras. 4 and 56-65.
198 United States' appellant's submission, paras. 4 and 66-79.
199 Canada does not contest the USDOC's right to ask the OFA question, either on appeal or before the
Panel. (Panel Report, para. 7.181; Canada's appellee's submission, fn 149 to para. 117; response to Panel
question No. 75, para. 164) Consequently, we neither examine this issue nor make any findings in relation to
it. As noted by the European Union, the right to ask questions and the conclusions that may be drawn from
answers are distinct issues. (European Union's third participant's submission, para. 34)
200 United States' appellant's submission, paras. 49-55.
201 Canada's appellee's submission, paras. 86-96.
202 We note that, regardless of the particular grounds that justify recourse to Article 12.7, "facts
available" may be used "solely for the purpose of replacing information that may be missing, in order to arrive
at an accurate subsidization or injury determination". (Appellate Body Report, Mexico – Anti-Dumping
Measures on Rice, para. 293) An investigating authority may use only those "facts available" that "'reasonably
replace the information that an interested party failed to provide', with a view to arriving at an accurate
determination". (Appellate Body Report, US – Carbon Steel (India), para. 4.416 (quoting Appellate Body
Report, Mexico – Anti-Dumping Measures on Rice, para. 294) (emphasis omitted)) See also Japan's third
participant's submission, para. 11 (referring to Appellate Body Report, US – Carbon Steel (India), paras. 4.419
and 4.422); Brazil's third participant's submission, para. 6.
203 United States' appellant's submission, para. 55.
204 United States' appellant's submission, para. 53.

determine that the discovered assistance is a countervailable subsidy. 205 The actions identified in
the OFA-AFA measure do not involve the USDOC concluding that conduct by a party "significantly
impede[d]" the investigation.206 This is consistent with Canada's characterization of the measure as
limited to the use of "facts available" by the USDOC on the basis of a fai lure by a party to provide
"necessary information". 207 Because Canada so characterized the measure, it was for the
United States to show that the USDOC had relied instead on the "significantly impedes" ground in
the determinations used as evidence of the OFA-AFA measure. The United States, however, failed
to contend this in relation to the OFA-AFA measure before the Panel and on appeal.208
5.74. Consequently, we consider that the OFA-AFA measure, as established by the Panel, is limited
to circumstances where the USDOC uses "facts available" on the basis of a party's failure to provide
"necessary information". As a result, the findings concerning the OFA-AFA measure are also limited
to these circumstances. These findings do not concern the USDOC's use of "facts available" where
an interested party significantly impedes the investigation.209 For these reasons, we do not consider
that the Panel erred by not addressing the "significantly impedes" ground for the use of "facts
available" under Article 12.7 of the SCM Agreement. This conclusion renders it unnecessary for us
to interpret the "significantly impedes" ground under Article 12.7.
5.75. The United States also claims that the Panel erred because the conduct it found to be
inconsistent with Article 12.7 of the SCM Agreement is not contained in the OFA-AFA measure.210 In
particular, in the United States' view, neither the OFA -AFA measure nor the underlying
determinations on the Panel record support a finding that the USDOC made an inference that
respondents failed to provide necessary information .211 Rather, the United States alleges that in
each determination the USDOC made a positive determination that the respondent failed to provide
the necessary information. Having made that determination, the USDOC used an inference to fill in
the gaps resulting from the missing necessary information.212

205 Panel Report, para. 7.316.
206 In analysing the specific instance of the OFA-AFA measure in Supercalendered Paper from
Canada 2015, the Panel considered that "the disagreement between the parties concerns 'refus[ing] access to,
or otherwise … not provid[ing], necessary information within a reasonable period', rather than 'significantly
imped[ing] the investigation'". (Panel Report, para. 7.173) In relation to the other determinations used to
evidence the OFA-AFA measure, see Panel Report, para. 7.313, table 2.
207 Canada articulated the precise content of the OFA-AFA measure in its first written submission to the
Panel as follows:
Since 2012, [the USDOC] has applied its Other Forms of Assistance–AFA measure to countervail dozens
of alleged subsidy programs in six different investigations or reviews. In these investigations and
reviews, [the USDOC] asked the "other forms of assistance" question, then "discovered" information at
verification that it deemed responsive to the "other forms of assistance" question, but that was
undisclosed, and then applied AFA without making any factual determination of whether the elements of
a countervailable subsidy had been met or assessing whether the information was "necessary
information" related to the allegations it was investigating.
(Canada's first written submission to the Panel, para. 409)
208 See the United States' first written submission to the Panel, paras. 176, 203-209, and 364; second
written submission to the Panel, para. 82. We note that, only in relation to Supercalendered Paper from
Canada 2015, the United States argued that "Canada's arguments do not address the fundamental fact that
Resolute impeded the investigation by failing to fully answer [the USDOC's] question concerning 'any other
forms of assistance.'" (United States' first written submission to the Panel, para. 203) As articulated by the
United States, however, the issue of Resolute impeding the investigation was evidence that the undisclosed
information was necessary, not that the use of "facts available" had been triggered by Resolute "significantly
impede[ing]" the investigation. As the United States concluded:
By not divulging the receipt of the unreported assistance prior to the commencement of verification,
Resolute precluded this unreported assistance from being "verifiable" and impeded the investigation by
refusing to provide complete and verifiable answers. As a result of Resolute's failure to respond to [the
USDOC's] question, necessary information was missing from the record of the investigation which
prevented [the USDOC] from analyzing the relevant facts concerning the element of benefit.
(United States' first written submission to the Panel, para. 209) (fn omitted; emphasis added)
209 On this basis, we do not consider it necessary to address the United States' argument that a failure
to answer the OFA question could constitute significant impedance of an investigation under Article 12.7 of the
SCM Agreement. (United States' appellant's submission, para. 53)
210 United States' appellant's submission, paras. 56-65.
211 United States' appellant's submission, paras. 60-65.
212 United States' appellant's submission, para. 65.

5.76. Canada responds that the OFA -AFA measure co rresponds to the conduct discussed in
paragraph 7.333 of the Panel Report. To Canada, the Panel correctly concluded that the
OFA-AFA measure is inconsistent with Article 12.7 of the SCM Agreement because, when discovering
information during verification, t he USDOC uses inferences to assume that the discovered
information constitutes a countervailable subsidy. 213 Canada also observes that the Panel's use of
the term "infer" derived from the USDOC's own descriptions of its practice.214
5.77. We turn to the conduct cons idered by the Panel to be inconsistent with Article 12.7 of the
SCM Agreement and examine whether it is part of the OFA-AFA measure. In this respect, the Panel's
explanation of the Article 12.7 inconsistency must be read in light of the relevant measure at issue
before the Panel. We recall that the OFA -AFA measure provides for the following steps: (i) the
USDOC asks the OFA question; (ii) the USDOC discovers, during verificat ion, information that it
deems should have been reported in response to the OFA question; and (iii) the USDOC applies AFA
to determine that the discovered information amounts to countervailable subsidies. 215 In the final
stage of the OFA -AFA measure, the USD OC refuses to accept additional information from the
respondents and instead relies on AFA to determine that each discovered assistance provided a
financial contribution, conferred a benefit, and was specific , all of which are necessary elements of
a countervailable subsidy.216 Against this background, the Panel found the following conduct to be
inconsistent with Article 12.7:
[A]n investigating authority may not simply infer that a respondent's failure to respond fully
to the [OFA] question resulted in a fai lure to provide information necessary to establish the
existence of additional subsidization of the product under investigation.217
5.78. We understand the Panel to have faulted the USDOC for mechanically concluding, without any
further steps, that necessary information had not been provided and that the discovered assistance
amounted to a countervailable subsidy , when the USDOC discovers unreported assistance during
verifications. The USDOC's conclusion extends beyond an assessment as to whether a respondent
"refuses access to, or otherwise does not provide, necessary information" under Article 12.7 of the
SCM Agreement.218 The inference219 that the information is necessary to "establish the existence of
additional subsidization" refers to the conclusion by the USDOC in the final stage of the
OFA-AFA measure that the discovered assistance amounts to a countervailable subsidy. 220 This is

213 Canada's appellee's submission, paras. 97-107. Canada submits that the USDOC considers that the
failure to report information "warrants the application of inferences, and through inferences [the USDOC]
determines that the unreported other assistance is countervailable". (Canada's appellee's submission,
para. 102 (emphasis omitted))
214 Canada's appellee's submission, para. 101. Canada refers to a number of examples where the
USDOC described its conduct as an "inference". (Canada's appellee's submission, paras. 101-104 (quoting
USDOC NAFTA Brief (Panel Exhibit CAN-76), pp. 147-149; referring to excerpts of Solar Cells from China 2015,
Solar Cells from China 2014, Stainless Pressure Pipe from India 2016, and Supercalendered Paper from Canada
2015 contained in para. 7.313, table 2 of the Panel Report))
215 Panel Report, para. 7.316.
216 Panel Report, paras. 7.314 and 7.316-7.317.
218 Although the Panel refers to "information necessary", we do not consider that this reference limits
the Panel's conclusion to the USDOC's determining that "necessary information" had been withheld. Were that
the intention of the Panel, the Panel would have simply stated that the USDOC may not infer that the failure to
respond fully to the OFA question was a failure to disclose "necessary information". Instead, the Panel stated
that the USDOC may not "simply infer" that the respondent failed to provide information necessary to
"establish the existence of additional subsidization of the product under investigation". (Panel Report,
para. 7.333)
219 The United States takes issue with the Panel's use of the verb "infer". As noted above, the
United States contends that the USDOC made positive determinations that the respondents failed to provide
necessary information and then used inferences to fill in the gaps resulting from the missing necessary
information. (United States' appellant's submission, paras. 57-60 and 65) Canada considers that the Panel
used the verb "infer" because that is the verb used by the USDOC to refer to its own conduct. (Canada's
appellee's submission, para. 101) In our view, it is not determinative in this case whether the decisions made
by the USDOC in the OFA-AFA measure are described as "inferences" or "determinations". The key aspect is
that the USDOC mechanically concludes that unreported assistance is a countervailable subsidy, after it
discovers during verification assistance that it deems should have been reported in response to the
OFA question.
220 In relation to the analysis of Resolute, the Panel was even clearer when it stated: "the USDOC
inferred that these entries pertained to countervailable subsidization of [supercalendered] paper, without

confirmed by the next sentence of paragraph 7.333, where the Panel refers to due process rights in
relation to information necessary "to complete a determination on additional subsidization of the
product under investigation". Furthermore, the Panel continued in the final sentence of
paragraph 7.333 that this is "all the more applicable where an investigating authority elects to add
subsidy programmes to an ongoing investigation". These two subsequent sentences in
paragraph 7.333 concern the USDOC's conclusion that the discovered assistance is a countervailable
subsidy to be included in the investigation.221
5.79. Thus, in paragraph 7.333, the Panel ties the discovery of the unreported assistance to the
USDOC's application of AFA to conclude that the discovered assistance amounts to a countervailable
subsidy. This is because the USDOC treats the failure to respond fully to the OFA question as a
sufficient basis to mechanically conclude that a party failed to provide "necessary information" and
that, as AFA, the discovered assistance is a countervailable subsidy. As this process re flects the
precise content of the OFA -AFA measure, we consider the conduct examined by the Panel in
paragraph 7.333 to be part of the OFA-AFA measure.
5.80. In addition, we do not consider that the Panel erred in finding that the OFA -AFA measure is
inconsistent with Article 12.7 of the SCM Agreement. We agree with the Panel that the USDOC's
mechanical response to the discovery of unreported assistance during verification is inconsistent
with Article 12.7 for two reasons.222
5.81. First, the USDOC uses "facts available", on the basis of a failure to provide "necessary
information", without taking any additional steps to clarify the nature of the unreported assistance
and whether the missing information is "necessary" under A rticle 12.7 of the SCM Agreement.223
The United States contends that the investigating authority is in the best position to assess what
information is "necessary" and that the OFA question relates to "necessary information" because it
serves to identify possible assistance for which the applic ation of countervailing duties may be
appropriate.224 The United States refers to the panel's view in EC – Countervailing Measures on
DRAM Chips that information is "necessary" if an investigating authority "reasonably consider[s]" it
so.225 We consider, howev er, that the use of "reasonably" by the panel itself indicates that an
investigating authority is not entirely unconstrained in its identification of "necessary information".
Indeed, in our view, the investigating authority must make a reasonable assessmen t based on
evidence and cannot simply infer, without further clarification 226, that the missing information is
"necessary" within the meaning of Article 12.7. We agree with the Panel that the fact that it would
have been inconvenient or impractical for the U SDOC to take fur ther steps to confirm the basic

taking any further steps to confirm that this was in fact the case and providing a reasoned and adequate
explanation to that effect." (Panel Report, para. 7.176 (fns omitted; italics original; underlining added))
221 According to the Panel, the "parties to these proceedings are in agreement that new programmes
may be added to an investigation when they are discovered during that investigation", "notwithstanding the
parties' disagreement on the procedural steps required to add such programmes to an investigation".
(Panel Report, para. 7.175 and fn 300 thereto) Similarly to the Panel, we do not address this question in our
Report. (Panel Report, para. 7.175)
222 Panel Report, para. 7.333.
223 The scope of the OFA question clearly extends to forms of assistance that may not be countervailable
subsidies. For example, the USDOC took no additional steps to clarify whether there was any indication that
the unreported tax deduction for "wages paid for placement of disabled persons" discovered at verification in
Solar Cells from China 2014 was specific to the respondent in that case. (Panel Report, para. 7.313, table 2
(quoting Solar Cells from China 2014, I&D Memo (Panel Exhibit CAN-121), pp. 16-17)) Similarly, the USDOC
took no additional steps to clarify whether the "bonus for employees from government" identified in the
respondent's accounts in Solar Cells from China 2012 was connected to the production of crystalline
photovoltaic cells subject to investigation. (Panel Report, para. 7.313, table 2 (quoting USDOC, Issues and
Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Crystalline
Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China
(9 October 2012) (Panel Exhibit CAN-116, pp. 9-10)))
224 United States' appellant's submission, paras. 69-72.
225 United States' appellant's submission, para. 69 (referring to Panel Report, EC – Countervailing
226 At the hearing, the United States explained that the USDOC reviews the investigation record to
confirm that the discovered information had not been previously reported by the respondent companies. We
understand, however, that this review merely confirms that information about the discovered assistance is not
present in the record and does not constitute a step towards ascertaining whether "necessary information" has
been withheld.

nature of the discovered information cannot outweigh the due process rights in the
WTO Agreements.227
5.82. Second, the USDOC concludes, as AFA, that the unreported assistance amounts to a
countervailable subsidy. As described by the USDOC itself, the USDOC simply asserts "as AFA" that
the discovered assistance provides a financial contribution, confers a benefit, and is specific. Such a
finding is made without regard to any facts on the record.228 We consider, however, that procedural
circumstances and any resulting inferences may not alone form the basis of a determination. This is
because, pursuant to Article 12.7 of the SCM Agreement, determinations must be made on the basis
of "facts" available229, and not "on the basis of non-factual assumptions or speculation".230 For these
reasons, we agree with the Panel that the USDOC cannot simply reach conclusions without further
analysis and reg ard to the facts available on the record and the due process rig hts of interested
parties.231 To be clear, in arriving at this conclusion, we make no finding about the manner in which
the USDOC should have selected facts available in the circumstances of thi s case. We simply note
that determinations must be made on the basis of "facts" available, and in the circumstances of the
OFA-AFA measure the USDOC instead relies on non-factual assumptions or speculation.
5.83. Finally, the United States claims that the Panel erred because it implied that the OFA question
used by the USDOC can never be a request for "necessary information" under Article 12.7 of the
SCM Agreement.232 We note, however, that the Panel explicitly observed that the OFA question
"might pertain to necessary information regarding additional subsidization of the produ ct under
investigation".233 For this reason, we are unable to agree with the United States that the Panel found
that the OFA question can never be a request for "necessary information". 234 Thus, we do not
consider that the Panel erred in this regard.
5.2.5 Conclusion
5.84. For the reasons stated above, we find that the Panel did not err under Article 12.7 of the DSU
by failing to provide a "basic rationale" for its finding that the OFA-AFA measure is inconsistent with
Article 12.7 of the SCM Agreement. Furthermore, we find that the United States has not
demonstrated that the Panel erred in making its finding under Article 12.7 of the SCM Agreement.
5.85. Consequently, we uphold the Panel's finding, in paragraph 7.333 of the Panel Report, that the
OFA-AFA measure is inconsistent with Article 12.7 of the SCM Agreement.235

227 Panel Report, paras. 7.177 and 7.333. See also Japan's third participant's submission, para. 13
(referring to Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 292).
228 As identified by the Panel, this view is also evidenced by the USDOC's description of this measure at
the NAFTA Chapter 19 proceeding, namely that "[the USDOC's] finding that the complainants' failure to report
these subsidies earlier in the proceeding warranted the use of adverse inferences was reasonable … as was
[the USDOC's] resulting adverse inference that each discovered subsidy provided a financial contribution,
conferred a benefit, and was specific – the elements of a countervailable subsidy." (Panel Report, para. 7.317
(quoting USDOC NAFTA Brief (Panel Exhibit CAN-76), pp. 147-148)) Moreover, this view is confirmed by the
underlying determinations examined by the Panel, where the USDOC simply determined, as AFA, that
unreported assistances are countervailable subsidies. See supra fn 78 for relevant excerpts.
229 The Appellate Body has stated that an investigating authority may only use those "facts available"
that "'reasonably replace the information that an interested party failed to provide', with a view to arriving at
an accurate determination". (Appellate Body Report, US – Carbon Steel (India), para. 4.416 (quoting
Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 294) (emphasis omitted)) See also
Appellate Body Reports, Mexico – Anti-Dumping Measures on Rice, para. 293; Japan's third participant's
submission, para. 11 (referring to Appellate Body Report, US – Carbon Steel (India), paras. 4.419 and 4.422);
Brazil's third participant's submission, para. 4.
230 Appellate Body Report, US – Carbon Steel (India), para. 4.417. See also ibid., para. 4.422.
231 Panel Report, paras. 7.176-7.177, 7.181, and 7.333.
232 United States' appellant's submission, paras. 4 and 66-79.
233 Panel Report, para. 7.333.
234 Brazil's third participant's submission, para. 4.
235 The United States requests that we reverse the Panel's recommendation under Article 19.1 of the
DSU as a consequence of the errors alleged by the United States on appeal. (United States' appellant's
submission, paras. 79 and 81) Having upheld the Panel's findings at issue, we are unable to accede to the
United States' request.

5.3 Separate opinion of one Appellate Body Division Member
5.3.1 Introduction
5.86. "Ongoing conduct" is not a treaty term found in WTO Agreements; it is a descriptive term
first used in the Appellate Body Report in US – Continued Zeroing with respect to the particular
circumstances, arguments, and evidence in that case. In this case, the Panel and the majority have
gone beyond US – Continued Zeroing to enhance and broaden the concept of "ongoing conduct" into
something akin to a "rule or norm of general and prospective application", only vaguer and less
disciplined in its requirements.
5.87. I also consider relevant the fact that Supercalendered Paper from Canada 2015, the
underlying CVD proceeding at issue in this case, has been revoked retroactively to its beginning. To
me, this means that no real dispute remains to be resolved regarding any "ongoing conduct" that
may or may not continue with respect to the proceeding at issue here. It follows that further
addressing this matter could be characterized as an advisory opinion based on, and pertaining mainly
to, cases involving other countries that are not complainants and in which key facts and
circumstances may differ from those present in this case. Consequently, I think the Division could
and should have mooted the relevant findings of the Panel. In lieu of that, I suggest that this decision
and its interpretations should be confined to the particulars of this case.
5.3.2 Ongoing conduct
5.88. The Panel started with the criteria that had been used previously for finding an "ongoing
conduct" measure: attribution to a WTO Member, precise content, repeated application, and
likelihood of continued application. The Panel found that these criteria were met in this case by the
USDOC asking the OFA question, discovering during verification information it deems should have
been provided in response to that questio n, and applying AFA to determine that the discovered
information amounts to countervailable subsidies.
5.89. The majority has upheld the Panel's finding. I disagree and believe the Panel committed legal
errors, both by characterizing the USDOC's alleged "ongoing " conduct in an unacceptably vague
manner, and, having done that, by employing inadequate and improper evidentiary standards for
identifying precise content, repeated application, and likelihood of continued application. In other
words, the Panel defined t he alleged conduct vaguely and used inapt evidence to fit its vague
definitions.
5.90. This is illustrated by the differences between this case and US – Continued Zeroing, the case
principally relied on by the Panel. That case involved a particular calculation m ethodology, used
automatically "in a string of connected and sequential determinations, in each of the 18 cases … by
which duties are maintained over a period of time". 236 By contrast, the "ongoing conduct" in this
case is not a particular calculation metho dology, but instead involves a series of administrative
decisions about such things as the nature of the discovered information, the timing a nd
circumstances of its discovery, the relevance of the discovered information, and the use that is made
of it.
5.91. In the present case, the Panel found the alleged ongoing conduct to exist as a result of several
USDOC CVD proceedings involving China and one CVD proceeding involving India, in addition to
Supercalendered Paper from Canada 2015. In some of those cited proceedings, the USDOC's conduct
differed from the challenged conduct in the current case. And for others, the Panel did not have, or
examine, important evidence regarding the comparability of those cited proceedings with the
challenged case – such as the circum stances of the information's non -provision and discovery
(e.g. hidden, resisted, or volunteered), the timing of the discovery in the case schedule, the use
made by the USDOC of all or parts of the relevant evidence, or the nature of the respondent entity
and its relationship with the government.
5.92. These known and unknown differences undermine the "precise content" element of the Panel's
alleged "ongoing conduct" measure, and illustrate how vague and imprecise that version of the
alleged measure is. They also bring into question the "repeated application" and "likelihood of

236 Appellate Body Report, US – Continued Zeroing, paras. 180-181.

continued application" of the alleged measure as formulated by the Panel, by begging the question:
repetition and likely continuation of what, exactly?
5.93. Finally, as noted above, the CVD order in Supercalendered Paper from Canada 2015 has been
revoked retroactively to its beginning. As a result, there is no real dispute remaining to be resolved
between Canada and the United States as to any "ongoing conduct" that may or may not continue
with respect to the proceeding at issue here. For this decision not to be at risk of being considered
obiter dicta, or, applied in the future so as to blur the lines between "ongoing conduct" and rules or
norms of general and prospective application, or both, it is hoped that its effects will be limited to
the particulars of this case.237
5.3.3 Conclusion
5.94. I do not address the Panel's and majority's findings regarding Article 12.7 of the
SCM Agreement because, in my view, those findings should have been rendered moot either by the
Division's considering the Panel's findings as a whole as mooted by the revocation of the underlying
CVD investigation, or by the findings regarding the alleged "ongoing conduct" that I suggest above.
5.95. I offer these views with the hope that any fut ure consideration of these issues will take this
separate opinion into account, as well as that of the majority.
6 FINDINGS AND CONCLUSIONS
6.1. For the reasons set out in this Report, the Appellate Body reaches the following findings and
conclusions:
6.1 OFA-AFA measure
6.2. The consistency or inconsistency of a fact or set of facts with the requirements of a given treaty
provision or the application of rules to facts is a legal characterization that is subject to
appellate review under Article 17.6 of the DSU. The United States' claim of error on appeal concerns
the Panel's understanding and application of the legal standard for "ongoing conduct" as a measure
that can be challenged in WTO dispute settlement under the DSU. In our view, the United States'
claim concerns issues of law covered in the Panel Report and legal interpretations developed by the
Panel, and thus falls within the scope of appellate review. For these reasons, we dismiss Canada's
assertion that the United States' claim on appeal falls outside the scope of appellate review.
6.3. In order to prove the existence of an "ongoing conduct" measure, a complainant must clearly
establish: (i) that the alleged measure is attributable to the responding Member ; (ii) its preci se
content; (iii) its repeated application; and (iv) its likelihood of continued application. We note that,
as before the Panel, the United States does not challenge the attribution of the alleged measure on
appeal. We consider that the Panel was correct to focus on the substance of the USDOC's conduct
for each element of the OFA -AFA measure, as evidenced by the examples before the Panel. We
agree with the Panel that the variations referred to by the United States in these examples do not
detract from the fact that the substance of the USDOC's conduct remained the same in relation to
the elements of the measure challenged by Canada.
a. For these reasons, we find that the Panel did not err in finding that Canada had
established the precise content of th e OFA -AFA measure as the USDOC asking the
OFA question and, where the USDOC discovers information during verification that it
deems should have been provided in response to the OFA question, applying AFA to
determine that such information amounts to countervailable subsidies.
6.4. Concerning repeated application, we consider that the Panel's analysis appropriately reflects
Canada's characterization of the OFA -AFA measure, focus ing on the repetition of the elements
identified by Canada that form part of the OFA -AFA measure. Thus, we consider that the Panel did

237 "Given the explicit aim of dispute settlement that permeates the DSU, we do not consider that
Article 3.2 of the DSU is meant to encourage either panels or the Appellate Body to 'make law' by clarifying
existing provisions of the WTO Agreement outside the context of resolving a particular dispute."
(Appellate Body Report, US – Upland Cotton, para. 509, quoting Appellate Body Report, US – Wool Shirts and
Blouses, p. 19, DSR 1997:I, p. 340)

not err in examining "repeated application" by reference to the elements of the measure in this
dispute. We are also not convinced by the United States' assertion that certain examples on the
Panel record show that the USDOC did not apply the OFA-AFA measure.
a. For these reasons, we find that the Panel did not err in finding that Canada had
established the repeated application of the OFA-AFA measure.
6.5. In relation to likelihood of continued application, a complaining Member need not rely on a
formal decision by the responding Member to demonstrate the existence of "ongoing conduct".
Rather, we consider that likelihood of continued application may be demonstrated through a number
of factors. We agree with the Panel that the consistent manner in which the USDOC refers to the
OFA-AFA measure, the frequent reference to previous applications of the measure in USDOC
determinations, the fact that the USDOC refers to the measure as its "practice", and the USDOC's
characterization of a departure from the measure as an "inadvertent error" all support the conclusion
that the measure is likely to continue to be applied.
a. For these reasons, we find that the Panel did not err in finding that Canada had
established that the OFA-AFA measure is likely to continue to be applied in the future.
b. Consequently, we uphold the Panel's finding, in paragraphs 7.332 and 8.4.a of the
Panel Report, that Canada established the existence of the OFA -AFA measure as
"ongoing conduct".
6.2 Article 12.7 of the SCM Agreement
6.6. Pursuant to the requirement to set out a "basic rationale" for findings and recommendations in
Article 12.7 of the DSU, panels must provide explanations and reasons sufficient to disclose the
essential justification for those findings and recommendations. In our view, the Panel appropriately
incorporated into its examination of the OFA-AFA measure (in paragraph 7.333 of the Panel Report)
the relevant portions of its earlier analysis concerning Article 12.7 of the SCM Agreement (in
section 7.4.1.4 of the Panel Report). Through these paragraphs, the Panel provided an interpretation
of Article 12.7 of the SCM Agreement, addressed pertinent factual aspects of the OFA-AFA measure,
and provided explanation sufficient to disclose the Panel's essential justification for its finding.
a. For these reasons, we find that the Panel did not err under Article 12.7 of the DSU by
failing to provide a "basic rationale" for its finding that the OFA -AFA measure is
inconsistent with Article 12.7 of the SCM Agreement.
6.7. In relation to the Panel's analysis of the OFA -AFA measure under Article 12.7 of the
SCM Agreement, we consider that the OFA-AFA measure, as established by the Panel, is limited to
circumstances where the USDOC uses "facts available" on the basis of a party's failure to provide
"necessary information".
6.8. In addition, we understand the Panel to have faulted the USDOC for mechanically concluding,
without any further steps, that necessary information had not been provided and that the discovered
assistance amounted to a countervailable subsidy, when the USDOC discovers unreported assistance
during verifications. As this process reflects the precise content of the OFA -AFA measure, we
consider that the conduct examined by the Panel in paragraph 7.333 is part of the
OFA-AFA measure. We also agree with the Panel that the USDOC cannot simply reach conclusions
without further analysis and regard to the facts available on the record and the due process rights
of interested parties.
6.9. Finally, we disagree with the United States' view that the Panel found that the OFA question
can neve r be a request for "necessary information" under Article 12.7 of the SCM Agreement.
Rather, the Panel explicitly observed that the OFA question might pertain to necessary information
regarding additional subsidization of the product under investigation.
a. For these reasons, we find that the United States has not demonstrated that the Panel
erred in making its finding under Article 12.7 of the SCM Agreement.