KOREA – SUNSET REVIEW OF ANTI-DUMPING DUTIES ON STAINLESS STEEL BARS REPORT OF THE PANEL
Document: Addendum BCI deleted, as indicated [[***]]
Date: 30 November 2020
Document codes: WT/DS553/R/Add.1; WT/DS553/R.
Complainant: Japan
Respondent: South Korea
Third parties: China, EU, India, Kazakhstan, Russia, Taiwan, U.S.
Dispute stage: Panel
Agreements cited: Art. 11.3, 11.4, 6.8, Annex II, 6.5, 6.5.1, 6.9, 12.3, 12.2, 12.2.2  Anti-dumping

KOREA – SUNSET REVIEW OF ANTI-DUMPING DUTIES
ON STAINLESS STEEL BARS
REPORT OF THE PANEL
Addendum
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This addendum contains Annexes A to C to the Report of the Panel to be found in document

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

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ANNEX A
PANEL DOCUMENTS
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures on Business Confidential Information 11
Annex A-3 Interim Review 13

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ANNEX A-1
WORKING PROCEDURES OF THE PANEL
Adopted on 23 April 2019

General

1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding
on Rules an d Procedures Governing the Settlement of Disputes ( "DSU"). In addition, the
following Working Procedures apply.
(2) The Panel reserves the right to modify these procedures as necessary, after consultation
with the parties.
Confidentiality
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept
confidential. Members shall treat as confidential information that is submitted to the Panel
which the submitting Member has designated as confidential.
(2) Nothing in the DSU or in these Working Procedures shall preclude a party or third party
from disclosing statements of its own positions to the public.
(3) If a party submits a confidential version of its written submissions to the Panel, it shall
also, upon request of a Mem ber, provide a non -confidential summary of the information
contained in its submissions that could be disclosed to the public.
(4) Parties and third parties shall treat business confidential information in accordance with
the procedures set forth in the Additional Working Procedures of the Panel Concerning
Business Confidential Information.
Submissions

3. (1) Before the first substantive meeting of the Panel with the parties, each party shall
submit a written submission in which it presents the facts of the case and its arguments, in
accordance with the timetable adopted by the Panel.
(2) Each party shall also submit to the Panel, before the second substantive meeting of the
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.
(3) Each third party that chooses to make a written submission before the first substantive
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by
the Panel.
(4) The Panel may invite the parties or third parties to make additional submissions during
the proceeding, including with respect to requests for preliminary rulings in accordance with
paragraph 4 below.
Preliminary rulings
4. (1) If Korea considers that the Panel should make a ruling before the issuance of the Report
that certain measures or claims in the panel request or the complainant 's first written
submission are not properly before the Panel, the following procedure applies. Exceptions to
this procedure shall be granted upon a showing of good cause.
a. Korea shall submit any such request for a preliminary ruling at the earliest possible
opportunity and in any event no later than in its first written submission to the Panel.

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Japan shall submit its response to the request before the first substantive meeting of the
Panel, at a time to be determined by the Panel in light of the request.
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling
request before, during or after the first substantive meeting, or the Panel m ay defer a
ruling on the issues raised by a preliminary ruling request until it issues its Report to the
parties.
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its
Report, the Panel may provide reasons for the r uling at the time that the ruling is made,
or subsequently in its Report.
d. Any request for such a preliminary ruling by the respondent before the first meeting, and
any subsequent submissions of the parties in relation thereto before the first meeting,
shall be served on all third parties. The Panel may provide all third parties with an
opportunity to provide comments on any such request, either in their submissions as
provided for in the timetable or separately. Any preliminary ruling issued by the Pane l
before the first substantive meeting on whether certain measures or claims are properly
before the Panel shall be shared with all third parties.
(2) This procedure is without prejudice to the parties ' right to request other types of
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel
may follow with respect to such requests.
Evidence
5. (1) Each party shall submit all evidence to the Panel no later than during the first
substantive meeting, except evidence necessary for purposes of rebuttal, or evidence
necessary for answers to questions or comments on answers provided by the other party.
Additional exceptions may be granted upon a showing of good cause.
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall
accord the other party an appropriate period of time to comment on the new evidence
submitted.
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language,
the submitting party or third party shall simultaneously submit a translation of the exhibit or
relevant portion or parts thereof into the WTO working language of the submission. The Panel
may grant reasonable extensions of time for the translation of exhibits upon a showing o f
good cause.
(2) Any objection as to the accuracy of a translation should be raised promptly in writing,
preferably no later than the next submission or meeting (whichever occurs earlier) following
the submission which contains the translation in question. Any objection shall be accompanied
by an explanation of the grounds for the objection and an alternative translation.
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the dispute, indicating the submitting Member and the number of each exhibit on its
cover page. Exhibits submitted by Japan should be numbered JPN -1, JPN-2, etc. Exhibits
submitted by Korea should be numbered KOR-1, KOR-2, etc. If the last exhibit in connection
with the first submission was numbered JPN -5, the first exhibit in connection with the next
submission thus would be numbered JPN-6.
(2) Each party shall provide an updated list of exhi bits (in Word or Excel format) together
with each of its submissions, oral statements, and responses to questions.
(3) If a party submits a document that has already been submitted as an exhibit by the
other party, it should explain why it is submitting that document again.

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(4) If a party includes a hyperlink to the content of a website in a submission, and intends
that the cited content form part of the official record, the cited content of the website shall be
provided in the form of an exhibit.
Editorial Guide
8. In order to facilitate the work of the Panel, each party and third party is invited to make its
submissions in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy
provided).
Questions

9. The Panel may pose questions to the parties and third parties at any time, including:
a. Before any meeting, the Panel may send written questions, or a list of topics it intends
to pursue in questioning orally during a meeting. The Panel may ask different or additional
questions at the meeting.
b. The Panel may put questions to the parties and third parties orally during a meeting,
and in writing following the meeting, as provided for in paragraphs 15 and 21 below.
Substantive meetings

10. The Panel shall meet in closed session.
11. The parties shall be present at the meetings only when invited by the Panel to appear before
it.
12. (1) Each party has the right to determine the composition of its own delegation when
meeting with the Panel.
(2) Each party shall have the responsibili ty for all members of its delegation and shall
ensure that each member of its delegation acts in accordance with the DSU and these Working
Procedures, particularly with regard to the confidentiality of the proceeding and the
submissions of the parties and third parties.
13. Each party shall provide to the Panel the list of members of its delegation no later than
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.
14. A request for interpretation by any party should be made to the P anel as early as possible,
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall invite Ja pan to make an opening statement to present its case first.
Subsequently, the Panel shall invite Korea to present its point of view. Before each party takes
the floor, it shall provide the Panel and other participants at the meeting with a provisional
written version of its statement. If interpretation is needed, each party shall provide additional
copies for the interpreters before taking the floor.
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each
party is invited to limit the duration of its opening statement to not more than 75 minutes. If
either party considers that it requires more time for its opening statement, it should inform
the Panel and the other party at least 10 days before the meeting, together with an estimate
of the expected duration of its statement. The Panel will accord equal time to the other party.
c. After the conclusion of the opening statements, the Panel shall give each party the
opportunity to make comments or ask the other party questions.
d. The Panel may subsequently pose questions to the parties.

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e. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with Japan presenting its statement first. Before each party
takes the floor, it shall provide the Pa nel and other participants at the meeting with a
provisional written version of its closing statement, if available.
f. Following the meeting:
i. Each party shall submit a final written version of its opening statement no later than
5.00 p.m. (Geneva time) on the first working day following the meeting. At the same
time, each party should also submit a final written version of any prepared closing
statement that it delivered at the meeting.
ii. Each party shall send in writing, within the timeframe established by the Panel before
the end of the meeting, any questions to the other party to which it wishes to receive
a response in writing.
iii. The Panel shall send in writing, within the timeframe established by the Panel before
the end of the meeting, any q uestions to the parties to which it wishes to receive a
response in writing.
iv. Each party shall respond in writing to the questions from the Panel, and to any
questions posed by the other party, within the time -frame established by the Panel
before the end of the meeting.
16. The second substantive meeting of the Panel with the parties shall be conducted in the same
manner as the first substantive meeting with the Panel, except that Korea shall be given the
opportunity to present its oral statement first . If Korea chooses not to avail itself of that right, it
shall inform the Panel and the other party no later than 5.00 p.m. (Geneva time) three working days
before the meeting. In that case, Japan shall present its opening statement first, followed by Korea.
The party that presented its opening statement first shall present its closing statement first.
Third party session

17. Each third party may present its views orally during a session of the first substantive meeting
with the parties set aside for that purpose.
18. Each third party shall indicate to the Panel whether it intends to make an oral statement during
the third-party session, along with the list of members of its delegation, in advance of this session
and no later than 5.00 p.m. (Geneva time) three working days before the third-party session of the
meeting with the Panel.
19. (1) Each third party has the right to determine the composition of its own delegation when
meeting with the Panel.
(2) Each third party shall have the responsibility for all members of its delegation and shall
ensure that each member of its delegation acts in accordance with the DSU and these Working
Procedures, particularly with regard to the confidentiality of the proceeding and the
submissions of the parties and third parties.
20. A request for interpretation by any third party should be made to the Panel as early as
possible, preferably upon receiving the working procedures and timetable for the proceeding, to
allow sufficient time to ensure availability of interpreters.
21. The third-party session shall be conducted as follows:
a. All parties and third parties may be present during the entirety of this session.
b. The Panel shall first hear the oral statements of the third parties. Each third party making
an oral statement at the third-party session shall provide the Panel and other participants
with a provisional written version of its statement before it takes the floor. If interpretation

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of a third party's oral statement is needed, that third party shall provide additional copies
for the interpreters before taking the floor.
c. Each third party should limit the duration of its statement to 15 minutes, and avoid
repetition of the arguments already in its submission. If a third party considers that it
requires more time for its opening statement, it should inform the Panel and the parties
at least 10 days before the meeting, together with an estimate of the expected duration
of its statement. The Panel will accord equal time to all third parties for their statements.
d. After the third parties have made their statements, the parties shall be given the
opportunity to pose questions to any third party for clarification on any matter raised in
that third party's submission or statement.
e. The Panel may subsequently pose questions to any third party.
f. Following the third-party session:
i. Each third party shall submit the final written version of its oral statement, no later
than 5.00 p.m. (Geneva time) on the first working day following the meeting.
ii. Each party may send in writing, within the timeframe to be established by the Panel
before the end of the meeting, any questions to a third party or parties to which it
wishes to receive a response in writing.
iii. The Panel may send in writing, within the timeframe to be established by the Panel
before the end of the meeting, any question s to a third party or parties to which it
wishes to receive a response in writing.
iv. Each third party choosing to do so shall respond in writing to written questions from
the Panel or a party, within a timeframe established by the Panel before the end of the
meeting.
Descriptive part and executive summaries

22. The description of the arguments of the parties and third parties in the descriptive part of the
Panel report shall consist of executive summaries provided by the parties and third parties, which
shall be annexed as addenda to the report. These executive summaries shall not in any way serve
as a substitute for the submissions of the parties and third parties in the Panel's examination of the
case.
23. Each party shall submit two integrated execut ive summaries. The first integrated executive
summary shall summarize the facts and arguments as presented to the Panel in the
party's first written submission, its first oral statement, and if possible, its responses to questions
following the first substantive meeting. The second integrated executive summary shall summarize
its second written submission, its second oral statement, and if possible, its responses to the second
set of questions and comments thereon following the second substantive meeting. The timing of the
submission of these two integrated executive summaries shall be indicated in the timetable adopted
by the Panel.
24. Each integrated executive summary shall be limited to no more than 15 pages.
25. The Panel may request the parties and t hird parties to provide executive summaries of facts
and arguments presented in any other submissions to the Panel for which a deadline may not be
specified in the timetable.
26. Each third party shall submit an integrated executive summary of its arguments as presented
in its written submission and statement in accordance with the timetable adopted by the Panel. This
integrated executive summary may also include a summary of responses to questions, if relevant.
The executive summary to be provided by each third party shall not exceed six pages. If the
document(s) comprising a third-party submission and/or oral statement does not exceed six pages
in total, this will serve as the executive summary of that third party 's arguments unless the

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third party submits a separate integrated executive summary or otherwise indicates that it does not
wish those document(s) to serve as its executive summary.
Interim review

27. Following issuance of the interim report, each party may submit a written request to review
precise aspects of the interim report and request a further meeting with the Panel, in accordance
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no
later than at the time the written request for review is submitted.
28. If no further meeting with the Panel is requested, each party may submit written comments
on the other party 's written request for review, in accordance with the timetable adopted by the
Panel. Such comments shall be limited to commenting on the o ther party 's written request for
review.
Interim and Final Report
29. The interim report, as well as the final report before its official circulation, shall be kept strictly
confidential and shall not be disclosed.
Service of documents

30. The following procedures regarding service of documents apply to all documents submitted by
parties and third parties during the proceeding:
a. Each party and third party shall submit all documents to the Panel by submitting them
with the DS Registry (office No. 2047).
b. Each party and third party shall submit 1 paper copy of its submissions and 1 paper copy
of its Exhibits to the Panel by 5.00 p.m. (Geneva time) on the due dates established by
the Panel. The DS Registrar shall stamp the documents with the d ate and time of
submission. The paper version submitted to the DS Registry shall constitute the official
version for the purposes of submission deadlines and the record of the dispute. If any
documents are in a format that is impractical to submit as a pap er copy, then the party
may submit such documents to the DS Registrar by email or on a CD -ROM, DVD or
USB key only.
c. Each party and third party shall also send an email to the DS Registry, at the same time
that it submits the paper versions, attaching an electronic copy of all documents that it
submits to the Panel, preferably in both Microsoft Word and PDF format. All such emails to
the Panel shall be addressed to DSRegistry@wto.org, and copied to other WTO Secretariat
staff whose email addresses have be en provided to the parties during the proceeding. If
it is not possible to attach all the Exhibits to one email, the submitting party or third party
shall provide the DS Registry with 1 copies of the Exhibits on USB keys, CD-ROMs or DVDs.
d. In addition, e ach party and third party is invited to submit all documents through the
Digital Dispute Settlement Registry (DDSR) within 24 hours following the deadline for the
submission of the paper versions. If the parties or third parties have any questions or
technical difficulties relating to the DDSR, they are invited to consult the DDSR User Guide
(electronic copy provided) or contact the DS Registry at DSRegistry@wto.org.
e. Each party shall serve any document submitted to the Panel directly on the other party.
Each party shall, in addition, serve any submissions in advance of the first substantive
meeting with the Panel directly on the third parties. Each third party shall serve any
document submitted to the Panel directly on the parties and on all other third p arties. A
party or third party may serve its documents on another party or third party by email or
other electronic format acceptable to the recipient without having to serve a paper copy,
unless the recipient party or third party has previously requested a paper copy in writing.
Each party and third party shall confirm, in writing, that copies have been served on the
parties and third parties, as appropriate, at the time it provides each document to the
Panel.

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f. Each party and third party shall submit its documents with the DS Registry and serve
copies on the other party (and third parties if appropriate) by 5.00 p.m. (Geneva time) on
the due dates established by the Panel.
g. As a general rule, all communications from the Panel to the parties and third p arties will
be via email. In addition to transmitting them to the parties by email, the Panel shall
provide the parties with a paper copy of the Interim Report and the Final Report.
Correction of clerical errors in submissions
31. The Panel may grant leav e to a party or third party to correct clerical errors in any of its
submissions (including paragraph numbering and typographical mistakes). Any such request should
identify the nature of the errors to be corrected, and should be made promptly.

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ANNEX A-2
ADDITIONAL WORKING PROCEDURES ON BUSINESS CONFIDENTIAL INFORMATION
Adopted on 23 April 2019
The following procedures apply to any business confidential information (BCI) submitted in the
course of the Panel proceedings in DS553.
1. For the purposes of these Panel proceedings, BCI includes:
a. any information designated as such by the party submitting it that was previously treated
as confidential by the investigating authority in the anti-dumping investigation at issue in
this dispute unless the Panel decides it should not be treated as BCI for purposes of these
Panel proceedings based on an objection by a party pursuant to paragraph 3 below.
b. any other information designated as such by the party submitting it, unless the Panel
decides it should not be treated as BCI for purposes of these Panel proceedings based on
an objection by a party pursuant to paragraph 3 below.
2. Any information that is available in the public domain may not be designated as BCI.
In addition, information previously treated as confidential by the investigating authority in the
anti-dumping investigation at issue in this dispute may not be designated as BCI if the person
who provided the information in the course of that investigation agrees in writing to make the
information publicly available.
3. If a party or third party considers that information submitted by the other party or a third party
should have been designated as BCI and objects to its submission without such designation, it shall
forthwith bring this objection to the attention of the Panel, the other party, and, where relevant, the
third parties, together with the reasons for the objection. Similarly, if a party or third party considers
that the other party or a third part y designated information as BCI which should not be so
designated, it shall forthwith bring this objection to the attention of the Panel, the other party, and,
where relevant, the third parties, together with the reasons for the objection. The Panel, in deciding
whether information subject to an objection should be treated as BCI for purposes of these Panel
proceedings, will consider whether disclosure of the information in question could cause serious
harm to the interests of the originator(s) of the information.
4. No person may have access to BCI except a member of the Secretariat assisting the Panel or
the Panel, an employee of a party or third party, or an outside advisor to a party or third party for
the purposes of this dispute.
5. A party or third party having access to BCI in these Panel proceedings shall not disclose that
information other than to persons authorized to have access to it pursuant to these procedures. Any
information designated as BCI under these procedures shall only be used for th e purposes of this
dispute. Each party and third party is responsible for ensuring that its employees and/or outside
advisors comply with these procedures to protect BCI.
6. An outside advisor of a party or third party is not permitted access to BCI if that advisor is an
officer or employee of an enterprise engaged in the production, sale, export, or import of the
product(s) that was/were the subject of the investigation at issue in this dispute, or an officer or
employee of an association of such enterprises. All third party access to BCI shall be subject to the
terms of these working procedures.
7. The party submitting BCI shall mark the cover and/or first page of the document containing
BCI, and each page of the document, to indicate the presence of such information. The specific
information in question shall be placed between double brackets, as follows: [[xx , xxx.xx]]. The
first page or cover of the document shall state "Contains Business Confidential Information", and

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each page of the document shall contain the notice "Contains Business Confidential Information" at
the top of the page.
8. Any BCI that is submitted in binary-encoded form shall be clearly marked with the statement
"Business Confidential Information" on a label of the storage medium, and cl early marked with the
statement "Business Confidential Information" in the binary-encoded files.
9. In the case of an oral statement containing BCI, the party or third party making such a
statement shall inform the Panel before making it that the statement will contain BCI, and the Panel
will ensure that only persons authorized to have access to BCI pursuant to these procedures are in
the room to hear that statement. The written versions of such oral statements submitted to the
Panel shall be marked as provided for in paragraph 7.
10. Any person authorized to have access to BCI under the terms of these procedures shall store
all documents containing BCI in such a manner as to prevent unauthorized access to such
information.
11. The Panel will not disclose BC I, in its report or in any other way, to persons not authorized
under these procedures to have access to BCI. The Panel may, however, make statements of
conclusion drawn from such information. Before the Panel circulates its final report to the Members,
the Panel will give each party an opportunity to review the report to ensure that it does not contain
any information that the party has designated as BCI.
12. Submissions containing BCI will be included in the record forwarded to the Appellate Body in
the event of an appeal of the Panel's Report.

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ANNEX A-3
INTERIM REVIEW
1 INTRODUCTION
1.1. Articles 15.2 and 15.3 of the DSU provide:
2. Following the expiration of the set period of time for receipt of comments from the
parties to the dispute, the panel shall issue an interim report to the parties, including
both the descriptive sections and the panel's findings and conclusions. Within a period
of time set by the panel, a party may submit a written request for the panel t o review
precise aspects of the interim report prior to circulation of the final report to the
Members. At the request of a party, the panel shall hold a further meeting with the
parties on the issues identified in the written comments. If no comments are received
from any party within the comment period, the interim report shall be considered the
final panel report and circulated promptly to the Members.
3. The findings of the final panel report shall include a discussion of the arguments made
at the inter im review stage. The interim review stage shall be conducted within the
time-period set out in paragraph 8 of Article 12.
1.2. We set out below a "discussion of the arguments made at the interim review stage" as required
by Article 15.3 of the DSU, including an overview of each party's specific review requests, the other
party's position on those requests, and our evaluation. We have revised certain aspects of the
Interim Report in the light of these requests. In addition, we have made certain changes to improve
the clarity and accuracy of the Final Report and to correct typographical and non-substantive errors,
including those suggested by the parties. Some of the paragraph and footnote numbers in the
Final Report have changed due to these revisions. The n umbering of paragraphs and footnotes
referred to below pertain to those of the Interim Report and differences vis-à-vis the Final Report
are indicated in parentheses where appropriate. In instances where a party made the same
substantive review request across multiple aspects of the Interim Report, we have addressed that
request only with respect to the first paragraph or passage (i.e. "precise aspect") for which it arose.
1.3. We do not include a discussion of the comments made by Korea as part of the int erim review
process regarding its "promising appeal" if its desired changes were not made to the Interim Report.1
We declined to take account of these comments because they did not pertain to a "precise aspect"
of the Interim Report, and because revising the Interim Report in anticipation of one party's litigation
strategy would not accord with our duty to make an objective assessment of the law and facts before
us, as required by Article 11 of the DSU. We are cognisant of the broader systemic context in which
Korea makes reference to its "promising appeal". But this broader context does not mean that we
can or should revise our assessment of the law or facts due to an indication by one party that it may
pursue an appeal if such revisions are not made.2
2 SPECIFIC REQUESTS FOR REVIEW SUBMITTED BY THE PARTIES
2.1 Paragraph 7.41
2.1. Japan requests the Panel to revise paragraph 7.41 of the Interim Report to remove the
suggestion that, according to Japan, a panel can never take into account "implicit" findings, analyses,

1 Korea's comments on Japan's comments on the Interim Report, pp. 2, 10-11. See also
Korea's comments on the Interim Report, para. 6.
2 See, by analogy, Panel Reports, China – Broiler Products (Article 21.5 – US) para. 7.354; Brazil –
Retreaded Tyres, para. 7.276.

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or considerations that are not expressed in the text of an authority's determination.3 Korea objects
to Japan's request, arguing that the current drafting accurately reflects Japan's position.4
2.2. We have decided not to grant Japan's request. In its interim review request, Japan contends
that "explanations or examinations [that] were not explicitly stated in such published reports" are
not relevant to a panel's analysis because either (a) "they were not actually made by the
authorities"; or (b) "the fact that they were not explicitly referenced in the published reports
indicates that the authorities considered them not to be substantially relevant" and thus are not
germane to a panel's assessment in WTO proceedings.5 Japan is therefore essentially reasserting its
proposition that panels can never take into acco unt "implicit" findings, analyses, or considerations
that are not expressed in the text of an authority's determination, as already reflected in the relevant
sentence of paragraph 7.41 of the Interim Report and the cited aspects of Japan's arguments in
footnote 98.
2.2 Paragraph 7.63
2.3. Korea requests the Panel to reflect, in paragraph 7.63 of the Interim Report, two additional
aspects of its case relating to the remedial effects of the anti -dumping duties and to price
undercutting by the dumped imports.6 Korea also seeks an acknowledgement that its arguments, as
Korea cited in paragraph 7.63, pertained to the cumulative assessment undertaken by the KIA.
Japan objects to Korea's request, arguing that the KIA's determination encompassed a decumulative
assessment and that the two additional arguments whose inclusion Korea requests relate to
Japan-specific considerations rather than the KIA's cumulative assessment.7
2.4. We have decided not to grant Korea's request. Korea's cumulation-related argum ents
(including price undercutting during the POR as distinct from upon the removal of the anti-dumping
duties) are not relevant to paragraph 7.63 because section 7.5.3.1 pertains to the drop in Japanese
prices upon the removal of the duties and because th e Panel exercises judicial economy over
Japan's cumulation claim and Korea's cumulation-related rebuttals at paragraphs 7.229-7.230 of the
Interim Report. Additionally, it is unnecessary to reflect Korea's argument on remedial effects in
paragraph 7.63, since this is already addressed in footnote 244 (footnote 243 of the Final Report)
and, subsequently, in paragraphs 7.91 and 7.93 of the Interim Report.
2.3 Paragraphs 7.65-7.67
2.5. Korea requests the Panel to delete or reconsider paragraphs 7.65 -7.67 of the Interim Report
because they reflect a de novo analysis by the Panel concerning the role of price in the Korean SSB
market.8 Japan objects to Korea's request, arguing that the evaluation in these paragraphs is not de
novo and that Korea is relitigating arguments that have already been rejected.9
2.6. We have decided not to grant Korea's request. Korea's request is based on an incorrect
premise. Paragraphs 7.65 -7.67 do not contain an "analysis" 10 by the Panel, but are instead
descriptive in nature. Paragraph 7.64 indicates clearly that paragraphs 7.65 -7.67 provide an
overview of the "relevant background, record evidence, and findings by the KIA". To the extent that
Korea takes issue with any analysis of the role of price that may be reflected in the Interim Report,
we note that Korea made additional interim review requests with respect to paragraphs 7.73
and 7.76 of the Interim Report, and we address those requests below.
2.4 Paragraph 7.68
2.7. Korea requests the Panel to delete or reconsider paragraph 7.68 of the Interim Report because,
contrary to the characterization of its argument in that paragraph, Korea did not intend to make a

3 Japan's comments on the Interim Report, para. 7.41.
4 Korea's comments on Japan's comments on the Interim Report, pp. 3-4.
5 Japan's comments on the Interim Report, para. 5.
6 Korea's comments on the Interim Report, paras. 8-9.
7 Japan's comments on Korea's comments on the Interim Report, paras. 14-15.
8 Korea's comments on the Interim Report, paras. 10-13.
9 Japan's comments on Korea's comments on the Interim Report, paras. 16-18.
10 Korea's comments on the Interim Report, para. 11.

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

general statement about price-sensitivity.11 Japan objects to Korea's request, arguing that the Panel
correctly cited Korea's own argument.12
2.8. We have decided to grant Korea's request. The evidence considered at paragraphs 7.65 -7.67
of the Interim Report demonstrate that Korea was wrong to argue that " the only evidence on the
record was that sales in particular basic grades, such as grade 304, were price sensitive".13 Indeed,
as discussed further below, Korea itself introduced evidence in the present proceedings concerning
the findings of earlier reviews and the original investigation, which indicated that there was
price-sensitivity across the Korean SSB market generally. We accept Korea's request because Korea
now tells us that it did not intend to make a general statement about price -sensitivity through its
quoted remark, and because its quoted remark was plainly incorrect.
2.5 Paragraph 7.73 – "price is the most important factor in purchasing decisions"
2.9. Korea requests the Panel to revise the sentence in paragraph 7.73 that "Korea explains that
the KIA's findings in the third sunset review rest on its conclusion in earlier reviews and the original
investigation that price is the most important factor in purchasing decisions".14 According to Korea,
the statement referred to by the Panel pertained to Ko rea's description of the KIA's finding in the
second sunset review, and the KIA " never made such a finding in the third sunset review ".15
Moreover, Korea contends that this statement related to the "likeness" finding in the second sunset
review, and Korea 's reference to this statement was aimed at rebutting the alleged distinction
between general-purpose and special steel by drawing on the "essentially standardized process for
producing SSBs which are like products".16 Korea also asserts that this statement did not have the
"categorical meaning now given to it by the Panel", insofar as other non-price factors also played a
role in consumers' purchasing decisions.17 Japan requests the Panel to reject Korea's request, and
points to various instances where K orea relied on the KIA's findings in past reviews to support the
KIA's determination in the third sunset review, including its finding in the second sunset review that
price was the most important factor in purchasing decisions.18
2.10. We have decided not to grant Korea's request. Given the significance of the issues raised by
Korea to our resolution of Japan's claim on price and volume effects, we explain our decision to
reject Korea's request in detail. First, we address whether Korea did, in fact, "ex plain" to the Panel
during the proceedings that "the KIA's findings in the third sunset review rest on its conclusion in
earlier reviews and the original investigation that price is the most important factor in purchasing
decisions". Second, we elaborate upon why we accepted Korea's explanation in that regard.
2.11. In its first written submission, Korea stated that, whilst "the findings and analyses
underpinning the original investigation and the previous reviews are not subject to challenge in this
dispute", Korea "finds it important to recount briefly some of the relevant facts and findings reached
by the Korean authorities in the original investigation and the previous reviews", "in order to put
this dispute in a proper context".19 In particular, as part of its "recounting" of the "relevant facts and
findings" from the second sunset review, Korea explained as follows:
As for the price of the imports from Japan, the OTI confirmed that the average resale
price in Korea was KRW [[***]] per ton (after the anti-dumping duty), which was higher
than the average price of the like domestic products at KRW [[***]] per ton. This price
change, prompted by the continued imposition of anti-dumping duty, may be the most
important reason for the Japanese imp orts' loss of market share in Korea during the
relevant POR, especially in light of the fact that the "price was the most important factor
for the consumers in making a decision to purchase".

11 Korea's comments on the Interim Report, para. 15.
12 Japan's comments on Korea's comments on the Interim Report, para. 19.
13 Korea's second written submission, para. 128.
15 Korea's comments on the Interim Report, paras. 18-19.
16 Korea's comments on the Interim Report, para. 20.
17 Korea's comments on the Interim Report, paras. 20-21.
18 Japan's comments on Korea's comments on the Interim Report, paras. 21-22.
19 Korea's first written submission, para. 60.

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As for the competitive relationship among the dumped imports and with the like
domestic products, the OTI again relied on numerous sources and investigative analyses
as indicated in the various parts of its report. For example, the OTI confirmed that
"[t]he dumped imports along with the domestic products have passed the broadly
recognized specification standards in the global market [e.g. Korean Industrial
Standards, Japanese Industrial Standards, American Society for Testing and Materials,
etc.] and in terms of quality, Japan and Korea have received outstanding reviews". The
OTI noted that the Japanese and Korean SSBs possess relatively higher quality, but
confirmed that there was "no difference in function and component" between the
dumped imports and the like domestic products, and that "they are interchangeably
used". In fact, it was confirmed that price was the most important factor for
purchasers' buying decisions.20
2.12. As extracted below at paragraph 2.21, the finding in the second sunset review that "price was
the most important factor for the consumers in making a decision to purchase" was one of three
points listed in a section of the KIA's likeness analysis entitled "Quality and
Consumers' Evaluation".21 On the relationship between the thir d sunset review and the earlier
reviews and original investigation vis-à-vis the "consumer evaluation" assessment, Korea stated in
its first written submission that:
Following its acknowledgement that the KTC in the first and second sunset reviews
maintained the cumulative assessment of the original investigation, the OTI confirmed
that the "physical characteristics, manufacturing process, distribution market, purpose
of use, consumer evaluation, etc., of the dumped imports and like product products are
same or similar to that of the original investigation". The OTI thus found, as alleged by
the applicants, that the competitive relationship among the dumped imports and with
the like domestic products remained unchanged in the third sunset review as compared
to the original investigation and the first and second reviews . Nothing on the record
contradicted this general and reasoned conclusion.22
2.13. Korea also explained in its first written submission that:
Japan argues that Korea blindly relied on the fa ct that cumulation was made in the
previous investigation and reviews of SSBs, and did not sufficiently consider and address
the facts from the POR of the third sunset review. This is wholly inaccurate. The KTC
found that the same reasons justifying the cu mulative assessment of imports in the
prior investigation and reviews applied to the third sunset review as well. Indeed, it was
confirmed that the physical characteristics, manufacturing process, distribution channel,
purpose of use, consumers' evaluation, etc., of the imports and the like domestic
product remained the same or similar to that of the original investigation as well as the
first and second sunset reviews . In addition, the OTI confirmed that the products at
issue had obtained certification of compliance with international standards, which
confirmed their physical similarities. Thus, the KTC did not fail to examine the relevant
information for the POR of the third sunset review, but rather its examination of the
record facts confirmed the simila rity to earlier investigation and reviews , in which
cumulation was applied, and thus was one intermediate factual finding in support of the
decision to cumulate. Japan has not challenged the original investigation or the
subsequent sunset reviews, which are thus deemed to be WTO consistent.
…
For purposes of this decision, an important intermediary factual finding by the KTC in
the third sunset review was that the imports and the domestic SSBs constituted "like"
products. This finding had been consistently made since the original investigation
through the previous sunset reviews. The finding of "likeness", based among others on
customer statements and evaluations , grade/specification designation under
globally-recognized certification standards, manufactur ing processes, distribution
channels, price, functions and purported uses, etc., confirmed that the products as sold

20 Korea's first written submission, paras. 84-85. (fns omitted; italics and underlining added)
21 OTI's final report (second sunset review), (Exhibit KOR-11 (BCI)), p.9.
22 Korea's first written submission, para. 92. (fn omitted; emphasis added)

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in the Korean market shared sufficient similarities to be competing. Thus, the
competitive overlap among the dumped imports and with the l ike domestic products
was very significant.23
2.14. In summary, Korea explained in its first written submission that the finding in the
second sunset review that "price was the most important factor for the consumers in making a
decision to purchase" com prised part of the "relevant facts and findings" to understanding the
KIA's determination in the third sunset review. Korea also explained that, as part of the
KIA's determination in the third sunset review, the KIA "confirmed" the "similarity" between the
second and third sunset reviews regarding ( inter alia) "consumers' evaluation", which was the
portion of the second sunset review in which the aforementioned finding was made. Korea also
explained that the KIA's "likeness" assessment in the third sunset r eview was consistent with the
second sunset review, including its aspects on "customer statements and evaluations" and "price".
In that regard, we reiterate that the finding in the second sunset review that "price was the most
important factor for the consumers in making a decision to purchase" was contained in a section of
the KIA's likeness analysis entitled "Quality and Consumers' Evaluation". Finally, Korea explained
that the KIA's likeness finding comprised an "important intermediary factual finding" in determining
the competitive relationship amongst the relevant products.24
2.15. Following its first written submission, the Panel posed a number of questions to Korea that
pertained to these aspects of its case. In response to one question from the Panel, Korea extracted
certain "excerpts" from the KIA's determination in the third sunset review which, according to Korea,
"sufficiently demonstrate that the KTC/OTI certainly and undoubtedly placed on the record of the
third sunset review and considered th e relevant facts and determinations from the previous
proceedings in the context of its third sunset reviews".25 One such "excerpt" extracted by Korea was
the KIA's likeness finding on page 9 and footnote 17 of the OTI's final report in the third sunset
review, which clearly incorporated the "Quality and Consumers' Evaluation" assessment of the
second sunset review into the third sunset review as shown by Korea's "excerpt":
(P. 9) In the original investigation, the first sunset review and the second sunset review,
domestic products and the dumped imports were determined to constitute like
products.[17]
[17] Resolution of the Korea Trade Commission No. 2013 -18 (dated 24 July 2013): "Domestic
products have remained the same as in the original decision and the first sunset review and are
identical with the dumped imports in product name, definition, purpose of use, physical
characteristics, manufacturing process, etc. According to the review report, the dumped imports
along with the domestic products have passed the broadly recognized specification standards in
the global market (Korean Industrial Standards (KS), Japanese Industrial Standards (JIS),
American Society for Testing and Materials (ASTM)) and have the same product name, definition,
physical characteristics, quality and consumer evaluations , purpose of use, etc. and are
interchangeably used and therefore, are deemed to constitute like products."26
2.16. The footnote extracted in this "excerpt" provided by Korea, which is part of the KIA's likeness
determination in the third sunset review, is a quotation from the KIA's determination in the
second sunset review that expressly references the "Quality and Consumers' Evaluation" portion of
the likeness assessment in second sunset review. To emphasize, Korea submitted this "excerpt" to
the Panel to illustrate instances where the KIA " considered the relevant facts and determinations
from the previous proceedings in the context of its third sunset review".
2.17. In response to another question from the Panel, Korea stated that "[i] n the third sunset
review, therefore, the KTC confirmed based on the record evidence pertaining to the third POR that
the relevant situations have not substantially changed from the PORs of the previous proceedings",
again citing page 9 of the OTI's final report containing the likeness finding as an example in this
regard.27 As Korea explained it, the KIA's likeness finding in the third sunset review was tantamount

23 Korea's first written submission, paras. 148 and 150. (fns omitted; italics original; underlining added)
24 Korea's first written submission, paras. 150-151 and 159-160.
25 Korea's response to Panel question No. 4.
26 Korea's response to Panel question No. 4 (quoting OTI's final report (Exhibit KOR-5.c), p. 9
(emphasis added)).
27 Korea's response to Panel question No. 5, fn 20.

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to a "confirmation" that the same or similar considerations continued to be valid vis-à-vis the second
sunset review (as well as the first sunset review and the original investigation).
2.18. In response to a further question from the Panel, Korea stated as follows:
In addition, the record demonstrates that the Korean authorities went beyond merely
relying on such an established industrial norm and practice. Indeed, the KTC made
various other analyses based on, inter alia, the consumers' evaluation, market overlap,
distribution channel/market overlap, purpose of use, similarity of physical
characteristics and manufacturing process, interchangeability, etc., to further confirm
the competitive relationship among the dumped imports and between the dumped and
domestic products throughout the course of the proceeding.
As for the pinpoint references about such "repeated confirmations" , Korea draws the
Panel's attention to the following record excerpts, among many others:
…
OTI's Final Report (Second Sunset Review), Exhibit KOR-11 (BCI):
(P. 9) The dumped imports along with the domestic products have passed the broadly
recognized specification standards in the global market) and in terms of quality, Japan
and Korea have received outstanding reviews. Products from Japan and Korea have a
high tensile strength and hardness; however, the dumped imports and domestic
products can be interchangeably used. It has been investigated that price was the most
important factor for the consumers in making a decision to purchase . The dum ped
imports and domestic products have mass-production systems in place [] and they are
interchangeably used as there is no difference in function and component.28
2.19. Thus, in response to this question, Korea again posited the KIA's finding in the second sunset
review that "price was the most important factor for the consumers in making a decision to purchase"
as having been "confirmed" by the KIA in the third sunset review as part of its assessment of likeness
and the competitive relationship amongst the relevant products.
2.20. In its second written submission, Korea persisted with this explanation. Korea noted that the
KIA's third sunset review determination " referred to its findings on the condition of competition in
the original investigation, an d first and second sunset reviews" , provided an overview of the
interconnected relationship between the respective findings, and concluded that the KIA found "the
competitive relationship among the dumped imports and with the like domestic products remained
unchanged in the third sunset review as compared to the original investigation and the first and
second reviews ", including explicitly with respect to the "consumer evaluation" aspect o f the
second sunset review vis-à-vis the third sunset review.29
2.21. To recall, the sentence in paragraph 7.73 about which Korea complains states that "Korea
explains that the KIA's findings in the third sunset review rest on its conclusion in earlier reviews
and the original investigation that price is the most important factor in purchasing decisions" . We
are not persuaded by Korea's suggestion that, according to its position during the proceedings, the
referenced conclusion was limited to the second sunset review and the KIA never relied on it for the
third sunset review, and that this sentence "put unduly words in the mouth of the KIA [and] Korea".30
As the foregoing overview illustrates, the sentence at issue in paragraph 7.73 neither
"misrepresents" Korea's statements during the proceedings nor takes them "out of context". 31
Indeed, elsewhere in its interim review requests, Korea "requests the Panel to also reflect the
KIA's explicit finding pursuant to the applicable laws that the dumped imports as well as the dumped
and domestic products are in [a] competitive relationship with each other as there has been no
essential change in the competitive environment between the Japanese and Korean products".32 This
accords with Korea's statement in its se cond written submission that the KIA found that "the

28 Korea's response to Panel question No. 6(a). (emphasis added; fns omitted)
29 Korea's second written submission, paras. 115-118.
30 Korea's comments on the Interim Report, para. 21.
31 Korea's comments on the Interim report, paras. 19 and 21.
32 Korea's comments on the Interim Report, para. 49.

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competitive relationship among the dumped imports and with the like domestic products remained
unchanged in the third sunset review as compared to the original investigation and the first and
second reviews".33 By contrast, in the context of the present review request, Korea contends that
the "Panel uses a statement in Korea's first written submission in which it was summarizing some of
the findings of the second sunset review on the question of the competitive relationship between the
various like products and takes it out of context to suggest that this was the finding made by the
KIA in the third sunset review ".34 As we see it, either there was "no essential change" in the
"competitive relationship" a s between the second and third sunset reviews, or there was such a
change in the "competitive relationship", but both propositions cannot simultaneously be true as
Korea seems to contend.
2.22. We turn now to explain the basis of our acceptance of the explanation offered by Korea during
the proceedings that is referred to in the sentence at issue in paragraph 7.73. First, we note that
Japan accepted Korea's explanation in this regard. 35 Second, our review of the text of the
KIA's determination in the thir d sunset review indicated that, consistent with Korea's explanation,
the determination incorporated the KIA's finding from the second sunset review regarding price as
the most important factor in purchasing decisions. In particular, the KIA based its "like ness"
determination in the third sunset review on the finding that "[i]n the original investigation, the
first sunset review and the second sunset review, domestic products and the dumped imports were
determined to constitute like products".36 In support of that statement, the KIA extracted and quoted
the passage set out above (paragraph 2.15) from its determination in the second sunset review.
This passage, as quoted in the third sunset review, was taken from the KTC's final resolution in the
second sunset review, and is based on the OTI's final report in the second sunset review
("[a]ccording to the review report…"), including the section of that report pertaining to "Quality and
Consumers' Evaluation". Indeed, the "Quality and Consumers' Evaluation" section is explicitly
referenced in the passage from the second sunset review that is quoted by the KIA in the third sunset
review. In turn, the section of OTI's final report in the second sunset review entitled "Quality and
Consumers' Evaluation" stated:
B. Quality and Consumers' Evaluation
○ The dumped imports along with the domestic products have passed the broadly
recognized specification standards in the global market) and in terms of quality, Japan
and Korea have received outstanding reviews.
- Products from Japan and Korea have a high tensile strength and hardness;
however, the dumped imports and domestic products can be interchangeably
used.
- It has been investigated that price was the most important factor for the
consumers in making a decision to purchase.37
2.23. In short, (a) the KIA concluded, in the likeness section of the OTI's final report in the
second sunset review entitled "Quality and Consumers' Evaluation" that "price was the most
important factor for the consumers in making a decision to purchase"; (b) the KIA then relied upon
this "Quality and Consumers' Evaluation" assessment in the KTC's final resolution in the
second sunset review as part of its likeness finding; and (c) as the basis for its likeness finding in
the third s unset review, the KIA explicitly cited this aspect of the KTC's final resolution in the
second sunset review, including the KTC's reference to "Quality and Consumers' Evaluation" in that
review.

33 Korea's second written submission, para. 118.
34 Korea's comments on the Interim Report, para. 19. (italics original; underlining added)
35 See, e.g. Japan's response to Panel question No. 19(c), para. 113.
36 OTI's final report, (Exhibit KOR-5.c (BCI)), p. 9. See also KTC's final resolution, (Exhibit KOR-4.b
(BCI)), p. 6, in which the KIA cited these aspects of the OTI's final report in stating that "[a]ccording to the
Final Report, domestic products have remained the same as in the original investigation, the first sunset
review, and the second sunset review". (fn omitted)
37 OTI's final report (second sunset review), (Exhibit KOR-11.b (BCI)), p. 9. (fn omitted;
emphasis added)

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2.24. In our view, by explicitly quoting and relying upon the second sunset review's "Quality and
Consumers' Evaluation" assessment in the third sunset review, the KIA incorporated the finding from
that assessment that "price was the most important factor for the consumers in making a decision
to purchase". We thus accepted Korea's explanation on that point.
2.25. Korea also suggests that the sentence at issue in paragraph 7.73 misconstrues its position by
affording a "categorical meaning" to the "price as the most important factor" finding that was never
intended by Korea, nor by the KIA. 38 Rather, Korea contends that the KIA found that price was
"among" the most important factors alongside other non-price factors such as perceptions of quality,
as opposed to price alone being the most important factor. For Korea, differing pricing levels do not
imply a lack of competition between products.39
2.26. Korea's understanding in this regard reflects a misreading of the Interim Report. Neither the
sentence at issue in paragraph 7.73, nor the Interim Report gener ally, affords a "categorical
meaning" to the KIA's reliance on the consideration that price was the most important factor in
purchasing decisions. On the contrary, the footnote appended to the sentence at issue states:
We note that Korea sought to context ualize this finding by explaining ( inter alia) that
"[t]he statement that price was the most important factor does not mean that it is the
only factor or that the lowest price always prevails". (Korea's response to Panel question
No. 20(e)(v)). We address the relevance of that matter below at paras. 7.74, 7.78,
and 7.80.
2.27. The subsequent sentence in paragraph 7.73 is also caveated with a footnote that states:
As mentioned in para. 7.74, Korea also stated that the KIA found that there could be
price differences based on factors such as quality and reputation.
2.28. In turn, paragraph 7.74 of the Interim Report (i.e. immediately following paragraph 7.73)
opens with the sentence: "[h]owever, Korea also explains that perceptions of quality, credibility, and
technical superiority were found by the KIA to lead to price differences". Subsequently, in
paragraph 7.80, we expressly "accept Korea's contention that the KIA did not find price to be the
only factor affecting purchasing decisions", and we further "ac cept Korea's point that 'that cheaper
priced products will [not] always win the buyer'". At paragraph 7.109 of the Interim Report, we
summarize our understanding in the following terms:
We recall that the KIA considered the SSB market to be a price -sensitive market in
which price was the most important factor in consumers' purchasing decisions and in
which consumers preferred low -priced products, albeit modulated by price premiums
for Japanese and Korean products and price discounts for Indian and Chinese products.
2.29. We would draw Korea's attention to the aforementioned aspects of the Interim Report, which
demonstrate unambiguously that no "categorical meaning" was ascribed to the sentence in
paragraph 7.73 that "Korea explains that the KIA's findings in the third sunset review rest on its
conclusion in earlier reviews and the original investigation that price is the most important factor in
purchasing decisions."
2.30. For the foregoing reasons, we see no reason to make revisions to the sentence at is sue in
paragraph 7.73. We likewise reject requests made by Korea with respect to paragraphs 7.77, 7.78,
7.85, 7.99, 7.102, and 7.109 that are substantially the same as the present request.40
2.6 Paragraph 7.73 – "within a given grade"
2.31. Korea requests the Panel to replace the sentence "[a]ccording to Korea, the importance of
price in purchasing decisions arises from the interchangeability of certified products within a given
grade" with "competition among SSBs generally takes place based on grades, b ut that there is

38 Korea's comments on the Interim Report, para. 20.
39 Korea's comments on the Interim Report, paras. 12, 20-21, and 40.
40 Korea's comments on the Interim Report, paras. 40, 42, 57, 61, 69, and 78.

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inter-grade competition as each SSB grade has possible alternative grades". 41 According to Korea,
its position during the proceedings was that there was "interchangeability" between "all 'covered
SSB products'", and therefore Korea made a ny price related comments "in the context of whether
the products were in the market and competing with one another". 42 Japan objects to
Korea's request on the basis that the language used by the Panel already reflects the possibility that
there can be in ter-grade competition, whilst also reasonably characterizing Korea's position that
competition "generally" and "mostly" occurs on a grade-by-grade basis.43
2.32. We have decided not to grant Korea's request. The sentence at issue accurately depicts
Korea's position during the proceedings. Even in its requests for interim review, Korea continues to
argue that "Japanese products competed with Korean like products and third country products on a
grade by grade basis and nothing in the record suggested otherw ise".44 Korea's statement in this
regard is consistent with the position that it repeatedly articulated during the proceedings. As a
sample of Korea's statements on this point during the proceedings:
As Japan so much stressed, SSBs products generally compete with each other on the
basis of their grades or specifications.45
SSB orders are placed based on designated grades or specifications, and as long as the
ordered products are properly certified for that certain grade or specification , the
products are generally deemed substitutable with products with the same or comparable
designation.46
SSBs are internationally traded commodities, which share physical similarities and
fungibility in use (thus the market competition), and the interchangeability is presumed
among comparable product specifications as long as they are certified by globally
recognized standards.47
[T]he KTC's finding about "competitive relationship" is based mainly on the
well-established industrial norm and practice that SSB products certified for
corresponding grade/specification are in competitive relationship with each other.48
Korea confirms that all dumped imports and like domestic products are in competitive
relationship as long as they are certified for corresponding grade/specification under
internationally-recognized standard. Yes, competition takes place based on grades, but
it cannot be denied that products falling within same grade category are in competitive
relationship with each other to the extent they are likewise certified.49
Korea confirms that no adjustments were made to the Japanese product prices.
Because competition takes place always between SSB products with corresponding
grade certification, there can be no difference between the Japanese and Korean SSB
products on steel quality, product type, grade, or product mixes.50
[T]he OTI confirmed that the competition within SSB products takes place based on
their steel grade, because SSBs with different steel grade has different uses in general.
Note that it has been repeatedly stressed that there is one more hurdle to clear in order
to enter truly into this competitive relationship – the products must be certified for that
particular grade under the internationally recognized certificate standard.51

41 Korea's comments on the Interim Report, para. 23.
42 Korea's comments on the Interim Report, para. 22.
43 Japan's comments on Korea's comments on the Interim Report, paras. 24-25.
44 Korea's comments on the Interim Report, para. 8.
45 Korea's first written submission, para. 56. (emphasis added)
46 Korea's first written submission, para. 57. (emphasis added)
47 Korea's first written submission, para. 153. (emphasis added)
48 Korea's response to Panel question No. 6(a). (italics original; underlining added)
49 Korea's response to Panel question No. 6(b)(ii). (italics original; underlining added)
50 Korea's response to Panel question No. 19(a). (italics original; underlining added)
51 Korea's response to Panel question No. 20(f)(vii). (emphasis added)

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It is also undisputable that SSB customers place orders based on
internationally-certified grades. It would be absurd to argue that price comparability is
not ensured between two SSB products with the same certified grade specification .
Therefore, when a demand arises for a certain grade of SSB, competition ensues almost
immediately, and the producers compete with each other on the basis of their
production capacity which can be readily converted specifically into the ordered SSB
products.52
But, as the Korean authorities found, and as Korea has repeatedly confirmed,
competition generally takes place among the SSB products within the same grade (to
the extent that the products are certified for the grade under the
internationally-recognized standards). Indeed, even Japan acknowledges that SSBs
generally compete with each other based on grades or specifications. … Purchasers rely
on certificates under suc h internationally recognized standards when placing orders,
and it is well established that SSBs produced in accordance with such standards are
fungible and thus in competitive relationship with one another. This finding of
interchangeability and substitutability were thus between the same specification/grade
of the covered SSB products.53
Given that competition among SSB products takes place based on grade, such certificate
standards effectively serves to certify the competitive relationship among the S SB
products. As an example, if two producers each manufacture SSB product with the
same steel grade "100", and both products are properly certified for that certain
grade/specification under same or corresponding standards, then the two products are
certifiably in a competitive relationship in the market.54
For SSBs, competition generally takes place between the same or comparable grades.55
Even Japan acknowledges that SSBs generally compete with each other based on grades
or specifications[.]56
2.33. At the oral hearings, Korea told us directly that "SSBs generally compete with each other
based on grades or specifications" 57 and that "SSBs are ordered, produced, and sold 'on -demand',
based on [internationally -recognized standards for] grade specificat ions".58 We are therefore not
persuaded by Korea now asserting that the interchangeability of SSBs is unrelated to their grade or
specification. Of course, Korea did at times offer certain qualifications to its general statement that
competition in the SSB market takes place on a grade-by-grade basis, for instance:
Korea believes that the OTI's statement quoted in the Panel's question, by itself,
basically answers the question: "within the same steel grade", products compete against
each other. That is, because "[s]tainless steel bars have different uses depending on
the steel grade", they generally compete with each other based on grades or
specifications. However, that does not mean that SSBs of different grades do not
compete.59
It is also undisputed that SSBs compete with each other mostly based on grades as
certified under the relevant industrial standards, although competition can sometimes
also take place among different SSB grades (as certified) as well.60
While competition among SSBs generally takes place based on grades , as certified by
widely recognized industrial standards, it does not mean that differently graded SSBs

52 Korea's second written submission, para. 100. (fn omitted; emphasis added)
53 Korea's response to Panel question No. 36(a). (fns omitted; emphasis added)
54 Korea's response to Panel question No. 37. (emphasis added)
55 Korea's response to Panel question No. 64(e). (emphasis added)
56 Korea's second written submission, paras. 76 and 170. (emphasis added)
57 Korea's opening statement at the first meeting of the Panel, para. 32.
58 Korea's opening statement at the second meeting of the Panel, para. 44.
59 Korea's response to Panel question No. 28. (fn omitted; emphasis added)
60 Korea's second written submission, para. 21. (fn omitted; emphasis added)

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

do not compete with each other. As demonstrated above, each SSB grade has possible
alternative grades; as a matter of fact, inter-grade competitions do take place.61
2.34. In recognition of these qualifications, we appended footnote 192 (now footnote 191 in the
Final Report) to paragraph 7.73, in which " [w]e note that Korea also contende d that, for some
grades, there can be inter -grade competition". This was an appropriate acknowledgement that,
whilst Korea contended that competition "generally" and "mostly" occurred on a grade -by-grade
basis, Korea also considered that it is "possible" f or competition to occur between grades in some
instances.
2.35. Of particular relevance to the present interim review request is that Korea linked its position
that competition occurred on a grade -by-grade basis to its explanation of the dynamics of price
competition in the SSB market. For instance, Korea explained that "[i]t is well-established that SSB
products with same grade (as certified) are fungible and, therefore, competition takes place mainly
on price".62 As another example, the following passag e illustrates how Korea explained that the
KIA's findings on price premiums and price discounts were predicated on the conditions of
competition "within the same steel grade":
First, the OTI confirmed that the competition within SSB products takes place based on
their steel grade, because SSBs with different steel grade has different uses in general.
Note that it has been repeatedly stressed that there is one more hurdle to clear in order
to enter truly into this competitive relationship – the products must be certified for that
particular grade under the internationally recognized certificate standard.
Next, the OTI explained the nature of the SSB competition: " within the same steel
grade", there are products that have relatively high credibility and qu ality and there
also are products that have high price competitiveness. Because they are within the
same grade, their competitive relationship is confirmed.
So, this finding articulately captures the common sense that Korea so keenly and
repeatedly stressed above: products with relatively lesser market perception and quality
would compete against products with relatively higher market perception and quality
based on their price competitiveness (e.g. price discounts).63
2.36. Indeed, when read in the context of Korea's reliance on price as the most important factor in
purchasing decisions and consumers' preference for low-priced products, albeit modulated by price
discounts and price premiums for certain products, it stands to reason that the preponderance of
grade-by-grade competition/interchangeability leads to price dynamics being observed on a
grade-by-grade basis, as Korea suggested during the proceedings.
2.37. In light of the foregoing discussion, we see no reason to revise the sentence in paragraph 7.73
that "[a]ccording to Korea, the importance of price in purchasing decisions arises from the
interchangeability of certified products within a given grade". Korea was both consistent and clear
in articulating this position during the proceedings, and we see no basis for Korea to now suggest
otherwise.
2.7 Paragraph 7.73 and footnote 192 – inter-grade competition
2.38. Korea requests the Panel to revise the sentence in footnote 192 to paragraph 7.73 (now
footnote 191 in the Final Report) that "Korea also contended that, for some grades, there can be
inter-grade competition", and to reference paragraph 229 of its second written submission in this
passage. Korea contends that the placement and framing of this sentence in footnote 192 suggests
that this "was a mere side argument of Korea when, in fact, it was one of Korea's main

61 Korea's second written submission, para. 98. (fn omitted; emphasis added)
62 Korea's response to Panel question No. 64(c)(ii). (emphasis added)
63 Korea's response to Panel question No. 20(f). (fns omitted)

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contentions".64 Korea points to its statement during the proceedings that "[m]ost, if not all, grades
have possible alternative grades".65 Japan objects to Korea's request.66
2.39. We have decided not to grant Korea's request. We have set out our understanding of
Korea's case in this regard above at paragraphs 2.32 -2.36. Moreover, Korea has not identified any
passage in the text of the KIA's determination in which the KI A found explicitly that there was
inter-grade competition for all SSBs. This is significant, because the text of the KIA's determination
reveals quite a different understanding, namely that "[s]tainless steel bars have different uses
depending on the steel grade, and within the same steel grade, Korean and Japanese products have
high credibility in quality and Indian and Chinese products have high price competitiveness". 67
Accordingly, paragraph 7.73 and footnote 192 of the Interim Report accurately reflec t
Korea's position during the proceedings as supported by the text of the KIA's determination, and we
see no reason to revise this aspect of the Interim Report.
2.8 Paragraph 7.74
2.40. Korea requests the Panel to delete the phrase "within a given grade " from the following
sentence in paragraph 7.74: "[h]owever, Korea also explains that perceptions of quality, credibility,
and technical superiority were found by the KIA to lead to price differences within a given grade".
According to Korea, "nowhere is t here a statement about grade -specific price differences" in
footnote 197 appended to this sentence. 68 For Korea, the KIA's finding about price premiums and
price discounts applied "across all SSB products (across all grades, for that matter) and not with
respect to specific grades".69 Japan makes no comment on Korea's request.
2.41. We have decided to grant Korea's request. Korea is correct insofar as none of the citations in
footnote 197 (now footnote 196 in the Final Report) explicitly reference Korea' s position about
grade-specific price differences, and Japan does not oppose Korea's request. Whilst granting the
request, we reiterate that we do not accept the premise underlying Korea's request. As described at
paragraphs 2.32 -2.37 above, Korea clearly took the position during the proceedings that the
KIA's finding on price premiums and price discounts concerned price dynamics for SSBs within a
given grade. Indeed, in one of Korea's descriptions of the KIA's finding in this regard, Korea stated
that "[t]he authorities started with the description of the industry as a 'massive process industry' and
noted that there existed different steel grades and that within the same steel grades, Korean and
Japanese products have high credibility in quality and Indian products have high price
competitiveness".70 Korea's assertion that it never drew a link between competition taking place on
a grade-by-grade basis in the SSB market and the presence of price premiums/price discounts is
contradicted by the plain connectio ns made in this quotation as well as in those extracted at
paragraphs 2.32-2.37 above.
2.9 Paragraph 7.75 – "Japanese" prices
2.42. Korea requests the Panel to delete the term "Japanese" from the following sentence in
paragraph 7.75: "Japan contends that the KIA erred by considering that the removal of the
anti-dumping duties from Japanese prices would weaken the price competitiveness of domestic like
products". According to Korea, Japan's case was based on a cumulative analysis by the KIA, and not
on a Japanese -specific analysis of price developments. 71 Japan objects to Korea's request on the
basis that the sentence at issue correctly recognized that Japan's arguments included the
KIA's Japan-specific analysis.72
2.43. We have decided not to grant Korea's request. Japan's case concerning price and volume
effects clearly encompassed the KIA's Japan-specific analysis and alleged failures by the KIA to
properly account for the particular circumstances of the Japanese exporters. This is reflected in the

64 Korea's comments on the Interim Report, para. 25.
65 Korea's comments on the Interim Report, para. 25 (referring to second written submission, fn 17).
66 Japan's comments on Korea's comments on the Interim Report, paras. 24-25.
67 OTI's final report, (Exhibit KOR-5.c (BCI)), p. 55. (emphasis added)
68 Korea's comments on the Interim Report, para. 27.
69 Korea's comments on the Interim Report, para. 27. (emphasis original)
70 Korea's response to Panel question No. 11. (emphasis added)
71 Korea's comments on the Interim Report, para. 28-29.
72 Japan's comments on Korea's comments on the Interim Report, paras. 27-29.

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citations in footnote 200 to paragraph 7.75 of the Interim Report (now footnote 199 of the
Final Report).
2.10 Paragraphs 7.75-7.76 – "average" prices
2.44. Korea requests the Panel to insert the term "average" as an adjective for the term "price" in
paragraphs 7.75 and 7.76.73 Japan opposes Korea's request.74
2.45. We have decided not to grant Korea's request. Korea offers no compelling reason to make the
requested revision. The term "price" in these paragraphs is being used in relation to descriptions of
Japan's argument. In terms of the Panel's analysis, the Interim Report already addresses the
nature of these prices as averages at paragraphs 7.70 -7.72, 7.77, 7.78, and 7.81, and
footnotes 208, 215, 233, and 236 (now footnotes 207, 214, 232 and 235 in the Final Report).
2.11 Paragraph 7.76 – "consumers prefer low-priced products"
2.46. In a similar vein to its request to revise the first sentence of paragraph 7.73 ("price is the
most important factor in purchasing decisions"), Korea requests the Panel to revise the last sentence
in paragraph 7.76. This sentence states, in relevant part, that "according to Korea, the
KIA's determination on the competitive relationship amongst SSB products encompassed its finding
from the original inv estigation that 'consumers prefer low -priced products'". Korea acknowledges
that it referred to this finding from the original investigation in its submissions to the Panel, but
contends that the Panel "uses a very general reference" by Korea that the "ori ginal finding was
repeatedly and consistently confirmed in the first, second, and third sunset reviews" to suggest that
Korea and the KIA made categorical findings about low -priced products always being preferred. 75
According to Korea, it did not make such an argument during the proceedings, nor did the KIA reach
such a finding in the third sunset review. Rather, in the third sunset review, the KIA found that the
competitive relationship was characterized by the Japanese and Korean products' "quality" and the
Indian and Chinese products' "price competitiveness". Indeed, Korea refers to its argument during
the proceedings that "[t]he fact that price is an important consideration does not mean that the
lowest-priced product always gets the sale of course, otherwise Indian products would have a 100%
market share".76 Japan opposes Korea's request because the statement at issue is merely a citation
from Korea's own submissions, and the Panel cannot be faulted for accepting and using Korea's own
characterization of the KIA's finding on this point.77
2.47. We have decided not to grant Korea's request. Given the significance of the issues raised by
Korea to our resolution of Japan's claim on price and volume effects, we explain our decision to
reject Korea's request in detail. First, we address whether Korea did, in fact, explain to the Panel
during the proceedings that "the KIA's determination on the competitive relationship amongst SSB
products encompassed its finding from the original investigation that 'consume rs prefer low-priced
products'". Second, we elaborate upon why we accepted Korea's explanation in that regard.
2.48. In response to a question from the Panel, Korea stated as follows:
In addition, the record demonstrates that the Korean authorities went beyond merely
relying on such an established industrial norm and practice. Indeed, the KTC made
various other analyses based on, inter alia, the consumers' evaluation, market overlap,
distribution channel/market overlap, purpose of use, similarity of phys ical
characteristics and manufacturing process, interchangeability, etc., to further confirm
the competitive relationship among the dumped imports and between the dumped and
domestic products throughout the course of the proceeding.
As for the pinpoint references about such "repeated confirmations" , Korea draws the
Panel's attention to the following record excerpts, among many others:

73 Korea's comments on the Interim Report, para. 30.
74 Japan's comments on Korea's comment on the Interim Report, para. 30.
75 Korea's comments on the Interim Report, para. 31.
76 Korea's comments on the Interim Report, para. 32 (quoting Korea's response to Panel question
No. 64(c)).
77 Japan's comments on Korea's comments on the Interim Report, para. 31.

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OTI's Final Report (Original Investigation), Exhibit KOR-9 (BCI):
(P. 48) The Applicants submitted documents stating that the dumped imports and
domestic products have obtained certification of the broadly recognized standards in
the global market and the products with the same specifications have identical physical
characteristics [] According to the results of response analysis and on-site verification,
both the dumped imports and domestic products have obtained certification of the
broadly recognized standards in the global market; they are similar to each other in
terms of quality and consumers' evaluation; and the importers and consumers prefer
low-priced products [] According to the result of response analysis and on -site
verification, both the dumped imports and domestic products have obtained certification
of the broadly recognized standards in the global market; both products with the same
specifications have identical or similar function and component; and they are in a
mutually competitive relationship in the domestic market.78
2.49. Thus, in response to the Panel's question, Korea posited the KIA's finding in the original
investigation that "consumers prefer low-priced products" as having been "confirmed" by the KIA in
the third sunset review as part of its assessment of the competitive relationship amongst the relevant
products. If Korea did not intend to charact erize the third sunset review determination as
encompassing this finding, we would not expect Korea to extract and quote it upon describing those
aspects that were "confirmed" by the KIA in the third sunset review.
2.50. In its first written submission an d subsequently, Korea also explained that the KIA's finding
in the original investigation concerning the competitive relationship amongst SSBs " was repeatedly
and consistently confirmed in the first, second, and third sunset reviews".79 Korea now asserts that
this only meant that "these products are standardized like products, and are in competition with
each other", and nothing further should be read into its assertions in that regard. 80 But, in
articulating this contention during the proceedings, Korea explicitly referenced the
"consumers' evaluation" aspect of this finding in the original investigation, which Korea argued
remained "the same or similar" in the third sunset review. 81 The significance of Korea's reliance on
the continuing applicability of the "consumers' evaluation" aspect of the original determination lies
in the fact that the section entitled "Quality and Consumers' Evaluation" in that determination
contains the assessment that "consumers prefer low-priced products":
○ Quality and Consumers' Evaluation
- According to the results of response analysis and on-site verification, both the dumped
imports and domestic products have obtained certification of the broadly reco gnized
standards in the global market; they are similar to each other in terms of quality and
consumers' evaluation; and the importers and consumers prefer low-priced products.82
2.51. Thus, not only did Korea extract and quote this portion of the section in the original
determination as having been "confirmed" by the KIA in the third sunset review, but it also stated
on numerous occasions during the proceedings that the findings of this section remained
"unchanged" and "the same or similar" vis-à-vis the third sunset review. It is untenable for Korea
to now assert that it never conveyed to the Panel that "the KIA's determination on the competitive
relationship amongst SSB products encompassed its finding from the original investigation that
'consumers prefer low-priced products'".
2.52. We accepted Korea's explanation that the KIA's determination in the third sunset review
encompassed this finding because its explanation aligns with the text of the KIA's determination. In
particular, the KIA's third sunset review determination states that the "[p]hysical characteristics,
manufacturing process, distribution market, purpose of use, consumers' evaluation, etc. of the
dumped imports an d domestic like products are the same or similar to those of the original

78 Korea's response to Panel question No. 6(a). (emphasis added; fns omitted)
79 See, e.g. Korea's first written submission, para. 121; response to Panel question No. 6(a); and
second written submission, paras. 115-119.
80 Korea's comments on the Interim Report, para. 31.
81 Korea's first written submission, paras. 58, 92, and 117-119; second written submission,
paras. 115-118, and 169.
82 OTI's final report (original investigation), (Exhibit KOR-9.b (BCI)), p. 48.

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investigation".83 To recall, the finding that "consumers prefer low -priced products" is contained in
the "Quality and Consumers' Evaluation" section of the original determination, w hich Korea
explained was "confirmed" in the third sunset review. Korea now suggests that the KIA cannot have
incorporated the finding that "consumers prefer low -priced products" into the third sunset review
because that finding was "based on consumer surveys obtained in the original investigation in 2004
and was relevant to the likeness of the products." 84 We disagree. The plain text of the
KIA's determination suggests that the KIA engaged in a comparative assessment of the evidence on
"consumers' evaluation" obtained during the third sunset review vis-à-vis the original investigation,
and found that it remained "the same or similar". 85 The record evidence before us on
consumers' evaluation of price -sensitivity during the third sunset review, including as set out in
paragraphs 7.65-7.68 of the Interim Report, accords with that understanding.86 Korea has not drawn
our attention to any evidence on consumers' evaluation that suggests the contrary.
2.53. Finally, Korea is wrong to suggest that, by accepting Korea's explanation that the third sunset
review determination encompassed the finding that "consumers prefer low -priced products", we
somehow rejected its contention that "lowest-priced product [does not] always get the sale" due to
price premiums and price discounts for certain products. 87 On the contrary, in paragraph 7.80, we
expressly "accept Korea's contention that the KIA did not find price to be the only factor affecting
purchasing decisions", and we further "accept Korea's point that 'that cheaper priced products will
[not] always win the buyer'". At paragraph 7.109, we summarize our understanding in the following
terms:
We recall that the KIA considered the SSB market to be a price -sensitive market in
which price was the most important factor in c onsumers' purchasing decisions and in
which consumers preferred low -priced products, albeit modulated by price premiums
for Japanese and Korean products and price discounts for Indian and Chinese products.
2.54. We would draw Korea's attention to the aforementioned aspects of the Interim Report, which
demonstrate – contrary to Korea's assertion – that the Interim Report takes due account of its
argument that the lowest price does not always win the buyer, in addition to its explanation that the
KIA's determination encompassed the finding that "consumers prefer low-priced products".
2.12 Paragraphs 7.77, 7.78, 7.82, and 7.83
2.55. Korea requests the Panel to reconsider the findings made in paragraphs 7.77, 7.78, 7.82,
and 7.83 regarding "price pressure" a nd the weakening of domestic price competitiveness. 88
According to Korea, the "undeniable competitive relationship among the covered products from
Korea and Japan" means that "there will certainly be increased price pressure upon removal of the
anti-dumping duties due to the narrowing margin of the on -average price differential between the
Japanese and Korean products".89 Korea also contends that the KIA's "actual" finding in this regard
was not that "Japanese prices would weaken the price competitiveness of domestic like products",
but was instead the "obvious" and "factual" statement that the drop in Japanese prices would lead
to a corresponding recovery in the price competitiveness of Japanese products. 90 Further, Korea
contends that "the Panel's finding effectively introduces a legal requirement in Article 11.3 under
which any POR -bound price differential that exceeds [the] currently applicable anti -dumping duty
margin necessarily calls for a separate analysis on the 'price' competition between the dumped and
domestic products following the removal of the anti -dumping duty". 91 Japan objects to
Korea's request, noting that the KIA itself made an analysis of price effects central to its

83 OTI's final report, (Exhibit KOR-5.c (BCI)), pp. 9 and 33 (emphasis added). See also KTC's final
resolution, (Exhibit KOR-4.b (BCI)), p. 11; and KTC's submission of review to MOSF, (Exhibit KOR-48.b (BCI)),
p. 4.
84 Korea's comments on the Interim Report, para. 31.
85 See, e.g. KTC's submission of review to MOSF, (Exhibit KOR-48.b (BCI)), p. 4. Indeed, Korea
advanced this same understanding during the proceedings. (Korea's first written submission, para. 148).
86 See also Application, (Exhibit JPN-4.b), p. 46; and Minutes of public hearing (24 November 2016),
(Exhibit KOR-19.b (BCI)), pp. 20 and 31.
87 Korea's comments on the Interim Report, paras. 31-32.
88 Korea's comments on the Interim Report, para. 39.
89 Korea's comments on the Interim Report, para. 34.
90 Korea's comments on the Interim Report, paras. 35-36.
91 Korea's comments on the Interim Report, para. 37. (emphasis original)

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determination and that the KIA explicitly found that Japanese prices would weaken the price
competitiveness of Korean SSBs if the anti-dumping duties were lifted.92
2.56. We have decided not to grant Korea's request. It is useful to recall the KIA's description of its
chosen methodology for its likelihood-of-injury determination:
In order to decide whether any material injuries to the domestic industry will continue
or recur upon termination of anti-dumping duties, the Commission reviewed, based on
the Final Report, production capacity in the supplying country of the dum ped imports,
the outlook on the volume of dumped imports and the price level thereof upon
termination of anti-dumping measures.93
2.57. It is apparent that a key aspect of the KIA's methodology was to examine "the price level [of
dumped imports] upon ter mination of anti -dumping measures". This aspect of the
KIA's methodology led to the KIA's findings that:
[O]nce the anti-dumping measures are terminated, this would bring a drastic fall in the
price of the dumped imports from Japan at KRW [[ ***]] per ton in 2015, which would
also result in a [sic] increase in price competitiveness in the domestic market.
…
Where the anti-dumping measures are terminated, it is predicted that a steep fall in the
price of the dumped imports (Japanese △ [[***]]%) will lead to an increase in exports
to Korea and weaken the price competitiveness of Like Products.94
2.58. These findings formed part of the KIA's final conclusion that:
[I]t is highly likely that once the anti-dumping measures are terminated, a drop in the
price of the dumped imports and an increase in volume of the dumped imports will again
cause recurrence of material injury to the domestic industry, such as a downturn in
sales and deterioration in operating profitability.95
2.59. For Korea to now sugge st that the Panel is "reading [in] a requirement to conduct a
post-expiry 'price effects' analysis into Article 11.3"96 ignores the fact that such an analysis was part
of the methodology chosen by the KIA. It is only because the KIA's intermediate and final conclusions
rested upon this aspect of its chosen methodology, and because Japan challenges those intermediate
and final conclusions, that we are called upon to examine them. Korea now tells us that an authority
need not undertake a post-expiry "price effects" analysis "unless it has been first substantiated by
the interested parties that such price differential would undermine the established competitive
relationship between the dumped and domestic products". 97 But once an authority itself chooses a
methodology that involves a post -expiry "price effects" analysis and proceeds to base its
likelihood-of-injury determination on the conclusions derived from that methodology, the
hypothetical circumstances under which such an analysis might be legally "requi red" under
Article 11.3 become irrelevant. Rather, in such circumstances, what matters for the purposes of a
panel's resolution of a claim is that the authority's determination is based on such a methodology
and that the outcome has been challenged by a co mplainant. Additionally, we recall that the
Interim Report does not find that the application and outcome of this aspect of the
KIA's methodology in isolation gives to a violation of Article 11.3. Rather, section 7.5.3.4 examines
whether the KIA's intermediate finding in this regard is so central to the KIA's final conclusion that
it invalidates that final conclusion.

92 Japan's comments on Korea's comments on the Interim Report, paras. 34-37.
93 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 18. (emphasis added)
94 KTC's final resolution, (Exhibit KOR-4.b (BCI)), pp. 21-22; OTI's final report, (Exhibit KOR-5.c (BCI)),
pp. 63 and 67.
95 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 23; OTI's final report, (Exhibit KOR-5.c (BCI)),
p. 67.
96 Korea's comments on the Interim Report, para. 37.
97 Korea's comments on the Interim Report, para. 38.

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2.60. In essence, Korea is asking us to ignore (a) the KIA's unambiguous explanation that its chosen
methodology would encompass examining "the price level [of dumped imports] upon termination of
anti-dumping measures"; and (b) the outcome of that aspect of its methodology, namely that the
Japanese pricing level upon the termination of the duties "will lead to an increase in exports to Korea
and weaken the price competitiveness". 98 But panels in anti -dumping disputes must base their
assessment on whether or not an authority's determination is inconsistent with the
Anti-Dumping Agreement.99 We cannot now pretend that the KIA never chose to inc lude a
post-expiry "price effects" analysis in its methodology, nor that its likelihood-of-injury determination
never encompassed the conclusions arising from that aspect of its chosen methodology. If we were
to do as Korea requests, we would be impermissi bly second-guessing the rationale upon which the
KIA's determination was reached.100
2.61. In short, the post-expiry "price effects" of Japanese SSBs in the Korean market is addressed
in the Interim Report not because the KIA was under a legal requirement to do so under Article 11.3,
but because the KIA's determination rested on a methodology encompassing this kind of analysis,
and because Japan challenged the part of the KIA's determination arising from that facet of its
methodology. This is reflected clearly in paragraph 7.78 and footnote 192 of the Interim Report (now
footnote 191 of the Final Report). Korea now asserts that "the Panel considered that the KIA should
have at least considered the price differential after the deduction of the anti -dumping duties in its
likelihood-of-injury analysis"101, but the foregoing discussion illustrates how Korea's assertion in this
regard misreads the Interim Report and the KIA's determination. It was the KIA that chose to
examine the Japanese pricing level after the deduction of the anti-dumping duties and whether that
pricing level would lead to the weakening of Korean price competitiveness and to an increase in
Japanese exports to Korea. By examining the impact of the post -expiry Japanese pricing level on
Korean price competitiveness, the KIA opted to compare Japanese and Korean prices, including
whether the expiry of the duties would leave Japanese prices at a level that would be adverse to
Korean price competitiveness. Accordingly, it is incorrect to state that "the Panel considered that the
KIA should have at least considered the price differential…". 102 Instead, it was the KIA that
considered that the comparison between Korean and post -expiry Japanese prices should form part
of its methodology.
2.62. Korea also contends that "the Panel's interim finding operates to effectively introduce a legal
test imposing such an a priori obligation on the part of the investigating authority to proactively
undertake a forward -looking price effect analysis whenever there exi sts a post -expiry overselling
based on the POR -bound price differential".103 Korea seems to derive this understanding from the
assessment in the Interim Report that further analysis would be required by the KIA to substantiate
how an average Japanese pric e that is [[***]] higher than Korean prices would "weaken the price
competitiveness" of the Korean domestic industry. Korea asks:
Unless the Panel is inclined to render a legal finding that any anti -dumping margin
non-negligibly exceeding the POR -bound pr ice differential necessarily calls for a
proactive price effect analysis in a forward-looking analysis, on what basis is the Panel
going to draw a line? Here, nothing on the record offers a viable standard for
determining the margin of post -expiry oversell ing that would constitute a plausible
trigger-point for such an a priori requirement, nor supports a notion that a close
to [[***]]% of post -expiry overselling would otherwise constitute such a
trigger-point.104
2.63. Again, in terms of "on what basis is the Panel going to draw a line", we emphasize that our
reference point was the KIA's determination. In particular, as Korea explained105, the KIA found that
price was the most important factor in consumers' decision-making and consumers preferred

98 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 22.
99 Article 17.6 of the Anti-Dumping Agreement.
100 Panel Report, China – GOES, para. 7.542 and fn 522; Appellate Body Report, Japan – DRAMs
(Korea), para. 135.
101 Korea's comments on Japan's comments on the Interim Report, pp. 6-7. (emphasis added)
102 Korea's comments on Japan's comments on the Interim Report, pp. 6-7. (emphasis added)
103 Korea's comments on Japan's comments on the Interim Report, p. 14. (italics original;
underlining added)
104 Korea's comments on Japan's comments on the Interim Report, pp. 14-15.
105 See above in relation to Korea's interim review requests concerning paragraphs 7.73 and 7.76 of the
Interim Report.

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low-priced products, albeit modulated by price premiums for Japanese and Korean SSBs and price
discounts for Indian and Chinese SSBs. These findings by the KIA led to our conclusion that, as part
of an "unbiased and objective" evaluation of the facts, we would expect the KIA to address how
Korean price competitiveness would be weakened by average Japanese prices that would remain
almost [[***]] higher than average Korean prices even if the anti -dumping duties were lifted. This
was particularly so since the KIA found both Japanese and Korean SSBs to command a price premium
in the market. Accordingly, the presence of price premiums and price discounts could not explain
(based on the KIA's reasoning) how Japanese SSBs would weaken Korean price competitiveness
whilst remaining [[***]] higher (see further paragraph 7.81 of the Interim Report).
2.64. It is noteworthy that Korean now asserts – as extracted above – that "nothing on the record
offers a viable standard for determining the margin of post-expiry overselling that would constitute
a plausible trigger-point for such an a priori requirement". If there was no "viable standard" on the
record that could explain whether or not a [[ ***]] higher Japanese price would adversely affect
Korean price competitiveness, then one may reasonably ask the question as to how the KIA
determined that such a pricing level "will lead to an increase in exports to Korea and weaken the
price competitiveness of Like Products". 106 This question precisely encapsulates the shortcoming
identified by Japan in the KIA's determination on this point. On one hand, the KIA found that price
was the most important factor in purchasing decisions with consumers preferring low -priced
products, but on the other hand it found that [[***]] higher Japanese prices would weaken Korean
price competitiveness. The KIA's determination offers no analysis or explanation as to how the latter
was plausible in light of the former. This is the basic reason for which we conclude that the KIA failed
to engage in an "u nbiased and objective" evaluation of the facts in section 7.5.3.1 as reflected in
paragraphs 7.76-7.78 and 7.84-7.85.
2.65. But it is also pertinent to point out that, whilst Korea now argues that "nothing on the record
offers a viable standard for determ ining" the price at which Japanese imports may be harmful or
inconsequential to Korean price competitiveness, Korea took a differing position during the
proceedings, for example:
It is also absurd to posit that Japanese "general -purpose" products were meeting
"demand for products that do not exist" in the Korean market simply because they sell
more of these products in Thailand. There clearly were substantial volumes of imports
of "general-purpose" SSBs from Japan over the POR, which alone increased by 60.5%
between 2014 and 2015. If anything, the relatively more limited sales of such
"general-purpose" SSBs from Japan to Korea compared with Thailand can be explained
by the 15% anti-dumping duty imposed by Korea on these price-sensitive products. The
removal of this duty would make these products more attractive again, just as they
were prior to the imposition of the duties.107
2.66. As Korea explains it, the "price sensitivity" of the products at issue explains why a
15% anti-dumping duty applied by Kor ea would lead to fewer sales in Korea and more sales in
Thailand. Korea made a similar point in its first written submission as part of its "recount[ing]" of
the "relevant facts and findings reached by the Korean authorities in the original investigation a nd
the previous reviews":
As for the price of the imports from Japan, the OTI confirmed that the average resale
price in Korea was KRW [[***]] per ton (after the anti-dumping duty), which was higher
than the average price of the like domestic products at KRW [[***]] per ton. This price
change, prompted by the continued imposition of anti-dumping duty, may be the most
important reason for the Japanese imports' loss of market share in Korea during the
relevant POR, especially in light of the fact that the "price was the most important factor
for the consumers in making a decision to purchase".108
2.67. In this instance, Korea tells us that a [[ ***]] higher average Japanese price was "the most
important reason" for the decrease in Japanese imports due to the price-sensitivity of the market.
And yet, Korea now suggests that a [[ ***]] higher average Japanese pricing level "will lead to an
increase in exports to Korea and weaken the price competitiveness of Like Products", despite

106 KTC's final resolution, (Exhibit KOR-4.b (BCI)), p. 22.
107 Korea's second written submission, para. 80. (fn omitted; underlining added)
108 Korea's first written submission, para. 84. (fn omitted)

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

simultaneously contending that "nothing on the record offers a viable standard" for ascertaining the
point at which Japanese prices are harmful or inconsequential to Korean price competitiveness.
2.68. In summary, the Interim Report does not introduce a post -expiry "price effects" analysis as
a legal requirement under Article 11.3 in paragraph 7.77. Rather, the Interim Report examines the
KIA's post-expiry "price effects" analysis because this analysis comprised part of the KIA's chosen
methodology and because Japan challenges aspects o f the KIA's determination based on the
application of that aspect of its methodology. We fault the KIA in section 7.5.3.1 of the
Interim Report because the KIA found that the average Japanese pricing level upon the removal of
the anti -dumping duties "will lead to an increase in exports to Korea and weaken the price
competitiveness of Like Products" despite remaining [[ ***]] higher than average Korean prices in
the context of a market in which price is the most important factor in purchasing decisions and in
which consumers prefer low-priced products. Specifically, we agreed with Japan that the KIA failed
to provide any explanation or analysis that would bridge the logical gap between the KIA's respective
findings on these points. Korea has offered no compelling reason to revise our assessment. Korea is
effectively requesting us to ignore the KIA's chosen methodology and to disregard the importance
placed by the KIA on the post-expiry "price effects" of the Japanese imports, but we have no basis
for doing so.
2.13 Paragraph 7.78
2.69. Korea makes two requests with respect to paragraph 7.78 of the Interim Report. First, Korea
requests the Panel to correct the sentence "Korea appears to accept that the KIA never undertook
such an analysis" in light of paragrap h 7.79 in which the Panel recounts that "Korea suggests a
number of ways in which the KIA did indeed address this apparent contradiction".109 Second, Korea
requests that footnote 217 reflect the applicants' argument that there was a "very high risk" that
the Japanese exporters would target the Korean market if the anti -dumping duties were lifted. 110
Japan objects to Korea's requests.111
2.70. We have decided not to grant Korea's requests. The "analysis" referred to in paragraph 7.78
concerns whether "price overselling could weaken the price competitiveness of domestic like
products" with "higher on -average import prices [exerting] detrimental price pressure on lower
on-average domestic prices". As reflected in footnote 213 (now footnote 212 in the Final Report),
Korea stated explicitly that the KIA did not undertake any "specific price undercutting, suppression
and/or depression analyses" in the third sunset review. Despite the absence of any such analysis in
the KIA's determination, Korea prov ided a number of explanations for how domestic price
competitiveness would be weakened by Japanese prices that would remain almost [[ ***]] higher
even if the anti-dumping duties were lifted. These explanations provided by Korea are introduced in
paragraph 7.79. Accordingly, there is no contradiction between the aspects of paragraphs 7.78
and 7.79 identified by Korea, and we see no reason to revise them.
2.71. With respect to footnote 217 (now footnote 216 of the Final Report), Korea suggests it is
"misleading" to omit the applicants' argument concerning the "very high risk" that the Japanese
exporters would target the Korean market if the duties expired. 112 Currently, footnote 217 states
that "the applicants excluded Japanese exporters from their descripti on of contemporaneous
competitors in their application to initiate the third sunset review". We decline Korea's request
because the applicants' "very high risk" argument related to an assumption of what the Japanese
pricing level would be upon the lifting of the anti-dumping duties, and as set out at paragraph 7.66
of the Interim Report, this assumption was factually incorrect. While declining Korea's request, we
will add paragraph 7.66 to the cross-references already listed in footnote 217.
2.14 Paragraph 7.79
2.72. Korea makes two requests to revise paragraph 7.79 of the Interim Report. First, Korea
requests the Panel to delete the suggestion that "the KIA reached its findings on price
competitiveness on a grade -by-grade basis", and instead to reflect K orea's description of the

109 Korea's comments on the Interim Report, para. 41.
110 Korea's comments on the Interim Report, para. 45.
111 Japan's comments on Korea's comments on the Interim Report, paras. 39-40.
112 Korea's comments on the Interim Report, para. 45.

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KIA's finding as set out in paragraphs 263 -265 of its second written submission. 113 According to
Korea, the KIA did not actually make a grade -by-grade finding because "no grade -based evidence
was ever presented to the KIA by the Japanese respondents and therefore no such analysis could
ever have taken place".114 Japan makes no comment in relation to this request.
2.73. Second, Korea requests the Panel to address an "essential argument" by Korea that is missing,
namely that there were drastic changes in the price differential between the first and third sunset
reviews.115 Japan objects to this request because the KIA's determination in the third sunset review
did not rely on the underselling finding from earlier reviews, and mor eover, an assessment of past
pricing that from over 12 years ago is not consistent with the forward -looking nature of sunset
reviews.116
2.74. We have decided not to grant Korea's requests to revise paragraph 7.79. As to the first
request, Korea complains that the Panel is wrong to describe its argument as being that "the KIA
reached its findings on price competitiveness on a grade -by-grade basis". However, the direct
quotation from Korea's submission is: "[t]he Korean authorities obviously considered th at
termination of the anti-dumping duties would lead to improved price competitiveness of the dumped
imports on [a] grade-by-grade basis".117 Moreover, to the extent that Korea made
internally-contradictory arguments on this point, paragraph 7.81 of the I nterim Report already
captures this.
2.75. As to the second request, we reviewed the citations provided by Korea. Korea contends that
these citations show that it had argued during the proceedings, based on the "history of Japanese
products underselling d omestic products", that "even if there was overselling based on the data
collected in the third sunset review, there was no certainty that these prices would continue after
the termination of the duties".118 However, the citations provided by Korea indicate that it made a
different argument during the proceedings. In particular, in these citations, Korea argued that the
pricing history showed that the KIA could not have placed strong emphasis on past pricing data,
since that pricing data had varied as between reviews. Korea was not arguing, as it is now, that this
pricing history showed that the KIA considered that there was volatility in the Japanese
exporters' prices, which in turn suggested that overselling would not necessarily continue after the
expiry of the duties. Moreover, Korea has not drawn our attention to any aspect of the
KIA's determination in which the KIA expressly relied upon this past pricing history to find that
Japanese prices may fall by a margin lower than the quantum of the anti -dumping duty upon its
termination. Accordingly, we see no compelling reason to make the revisions requested by Korea
regarding paragraph 7.79.
2.15 Paragraphs 7.80 and 7.97 – price premiums
2.76. Japan requests the Panel to add passages to paragraphs 7.80 and 7.97 to reflect that there
may be variations in different industries regarding the role, if any, of price premiums and price
discounts.119 Korea objects to Japan's request because the Panel's assessment is focused on the
SSB market in particular.120
2.77. We have decided not to grant Japan's request. In effect, Japan wishes the Panel to reach a
finding that the price premium commanded by Japanese products was not capable of explaining why
Japanese products would recapture market share despite remaining higher -priced. To do so would
be to engage in an impermissible de novo review.
2.16 Paragraph 7.80 – reflection of Korean arguments
2.78. Korea requests the inclusion of its arguments that (a) the Japanese exporters never adduced
grade-by-grade pricing evidence to show that price differences per grade meant a lack of competition

113 Korea's comments on the Interim Report, para. 46.
114 Korea's comments on the Interim Report, para. 46.
115 Korea's comments on the Interim Report, para. 47.
116 Japan's comments on Korea's comments on the Interim Report, para. 41.
117 Korea's response to Panel question No. 64(c)(iv). (emphasis added)
118 Korea's comments on the Interim Report, para. 47.
119 Japan's comments on the Interim Report, paras. 8-10.
120 Korea's comments on Japan's comments on the Interim Report, p. 5.

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

thus negating cumulation; and (b) the KIA found the products of all relevant countries to be in a
competitive relationship and "the re has been no essential change in the competitive environment
between the Japanese and Korean products".121 Japan makes no comment on this request.
2.79. We have decided not to grant Korea's request. Korea offers no rationale for the inclusion of
these arguments in paragraph 7.80 of the Interim Report. Paragraph 7.73 of the Interim Report
already recognizes Korea's argument that the KIA's findings in the third sunset review rest upon its
conclusions in earlier reviews, including the second sunset review in which price was found to be the
most important factor in purchasing decisions. Paragraph 7.76 and footnote 203 (now footnote 202
in the Final Report) also recognize Korea's argument that the KIA's "likeness" finding in the third
sunset review was based on earlier reviews, including the original investigation, and incorporated
the finding that consumers prefer low -priced products. Thus, these aspects of the Interim Report
already recognize, as Korea now contends, that "there has been no essential change i n the
competitive environment between the Japanese and Korean products" in these ways. 122 Similarly,
Korea's "grade-by-grade evidence" argument is already addressed to the extent necessary in
paragraph 7.108 (now paragraph 7.107) and section 7.5.3.3 of the Interim Report, and Korea offers
no reason why it needs to be reflected in paragraph 7.80.
2.17 Paragraph 7.81
2.80. Korea requests the Panel to revise the sentence that " Korea tells us that '[t]he
Korean authorities obviously considered that termination of the anti -dumping duties would lead to
improved price competitiveness of the dumped imports on [a] grade -by-grade basis'" .123 The
underlined portion of this sentence is a direct quotation from Korea's submissions during the
proceedings. We reject this request.
2.18 Paragraph 7.82
2.81. Japan requests the Panel to revise the general proposition in paragraph 7.82 of the
Interim Report that a price gap may become irrelevant when the focus is on what producers could
produce.124 According to Japan, such a finding would in practice vary from case-to-case, and further,
the supply side does not operate in isolation from demand. Korea objects to Japan's request, noting
that the language used by the Panel does not imply the kind of categorical finding that Japan is
suggesting the Panel made.125
2.82. We have decided not to grant Japan's request. The passage in question is already sufficiently
caveated to accommodate Japan's concerns, namely by reference to " if production can shift in
response to demand".126
2.19 Paragraph 7.91
2.83. Korea requests the Panel to more comprehensively summarize Korea's arguments in
paragraph 7.91 of the Interim Report about the "other factors" on which the KIA relied to find that
Japanese exports would increase , particularly those set out in paragraphs 226 -227 of its
second written submission.127 Japan makes no comment on this request.
2.84. We have decided not to grant Korea's request. Paragraphs 7.101, 7.112, and 7.119 of the
Interim Report already expand up on these "other factors" in more detail. Korea has not
demonstrated any need to additionally refer to its arguments on these points in paragraph 7.91,
which is intended to provide a brief overview of the main thrust of the parties' respective cases.

121 Korea's comments on the Interim Report, paras. 48-49.
122 Korea's comments on the Interim Report, para. 49.
123 Korea's comments on the Interim Report, para. 50 (quoting Interim Report, para. 7.81, in turn
quoting Korea's response to Panel question No. 64(c)(iv)). (emphasis omitted; underlining added)
124 Japan's comments on the Interim Report, paras. 11-12.
125 Korea's comments on Japan's comments on the Interim Report, p. 9.
127 Korea's comments on the Interim Report, paras. 51-52.

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

2.20 Paragraph 7.92
2.85. Japan requests the Panel to include language in paragraph 7.92 of the Interim Report to
qualify the general proposition that, if anti -dumping duties are exerting a remedial effect, the
removal of the duties could lead to the situatio n prevailing prior to their application. 128
Japan's concerns are that (a) higher prices and lower volumes are not necessarily indicative of
anti-dumping duties exerting a remedial effect; and (b) even if the duties are exerting a remedial
effect, changes in the market situation may nonetheless preclude a return to the situation prevailing
prior to their application. 129 Korea objects to Japan's request, emphasizing that the language
proposed by Japan would lead to an overly prescriptive new test.130
2.86. We have decided not to grant Japan's request. The relevant passage of paragraph 7.92 simply
states that if the duties are exerting a remedial effect, then it may be reasonable to consider that
their removal will lead to a return of the prior situati on – but that any such assessment must have
a factual basis. We see no reason to add further qualifying language.
2.21 Paragraph 7.94
2.87. Korea asserts that "[t]he sentence that 'Korea seems to suggest that the 'price gap' between
Japanese imports and third-country imports upon the lifting of the anti -dumping duties was
irrelevant to whether they were in competition with one another …' is an inaccurate and misplaced
presentation of Korea's position".131 Korea continues that its argument in paragraph 23 7 of its
second written submission, which is cited in relation to this sentence in paragraph 7.94, addressed
a different argument by Japan, namely the "replacement"/"displacement" argument. 132 Moreover,
Korea contends that the main question at issue was whether Japanese products were in competition
with Korean products. In this regard, Korea requests the Panel to reflect its argument that the price
differential was not such as to suggest that these products were not in competition.133
2.88. Japan objects to Korea's request, noting that Korea's own cited answer to Panel question
No. 20(f) proves the Panel's point in this aspect of the Interim Report.134
2.89. We have decided not to grant Korea's request. We have reviewed paragraphs 233 -237 of
Korea's second written submission, as well as Korea's response to Panel question Nos. 19 and 20(f).
Based on our review of those aspects of Korea's submissions during the proceedings, we are satisfied
that paragraph 7.94 of the Interim Report accurately depicts Korea's argument on this point.
2.22 Paragraph 7.95
2.90. Korea requests the Panel to "reconsider its findings about the central nature of the Japanese
prices" in paragraph 7.95 of the Interim Report, and to correct the inaccurate statement that "the
relevant finding of the KIA is that the drop in Japanese prices would lead to an increase in imports".135
Japan objects to Korea's request, contending that the price drop for Japanese products was indeed
the central point in the KIA's analysis.136
2.91. We have decided not to grant Korea's request. It is based on an incorrect reading of what is
being described as "central" in paragraph 7.95 of the Interim Report. Paragraph 7.95 describes the
role of the Japanese pricing level in the intermediate finding, which is made clear through
footnote 281 to paragraph 7.95 (now footnote 280 in the Final Report). This paragraph does not
describe the role of the Japanese pricing level with respect to the overall likelihood -of-injury
determination, which is addressed at paragraphs 7.116-7.119 of the Interim Report.

128 Japan's comments on the Interim Report, paras. 13-14.
129 Japan's comments on the Interim Report, paras. 14-15.
130 Korea's comments on Japan's comments on the Interim Report, pp. 12-13.
131 Korea's comments on the Interim Report, para. 53. (emphasis original)
132 Korea's comments on the Interim Report, para. 54.
133 Korea's comments on the Interim Report, paras. 54-55.
134 Japan's comments on Korea's comments on the Interim Report, paras. 45-47.
135 Korea's comments on the Interim Report, paras. 57-60.
136 Japan's comments on Korea's comments on the Interim Report, para. 52.

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

2.23 Paragraph 7.100
2.92. Korea requests the Panel to delete or reconsider its analysis based on pages 58 -59 of the
OTI's final report, contending that the following sentence in paragraph 7.100 of the Interim Rep ort
reflects a misunderstanding of Korea's position: "[t]o the extent that the 'lack of
incentives' proposition was addressed in the KIA's determination, Korea stated that it was
'definitively' addressed at pp. 58-59 of the OTI's final report."137 Japan objects to Korea's request,
arguing that Korea's view of the "lack of incentive" issue is unduly limited to general-versus-special
steel.138
2.93. We have decided to revise paragraph 7.100 in light of Korea's comments by deleting the
following sentence: "[t]o the extent that the 'lack of incentives' proposition was addressed in the
KIA's determination, Korea stated that it was 'definitively' addressed at pp. 58-59 of the OTI's final
report". Korea now clarifies that it did not intend to argue that the broader "lack of incentives" issue
was "definitively" addressed in this regard, and Korea's clarification reflects a plausible reading of
its response to Panel question No. 16. Korea now tells us that the KIA did not address the "lack of
incentives" issue from the perspective of per grade price differences, but instead addressed it solely
from the perspective of general-versus-special steel since this was the proposition of the Japanese
exporters to which the KIA was responding. 139 Korea's clarification in this regard confirms the
accuracy of the conclusion in paragraph 7.100 that the KIA's determination contains no evaluation
of how the volume of Japanese exporters would increase upon the lifting of the anti-dumping duties
in view of the presence of a large volume of lower -priced imports from third countries that was
already exerting price pressure in the price-sensitive Korean SSB market.
2.94. Korea also requests the Panel to reconsider "how it approached this issue related to the
alleged 'lack of incentive' for Japanese producers to export to Korea" because "it would be entirely
de novo" to conduct an analysis based on a proposition that is different to the one advanced by the
Japanese exporters during the review.140 Japan objects to Korea's request.141
2.95. We have decided not to grant Korea's request. Panels in anti-dumping disputes are not limited
in their analysis to the arguments actually made by interested parties during the underlying
investigation at issue.142 There is no such rule in the Anti-Dumping Agreement or the DSU. Such a
rule would frustrate the ability of complainants to challenge aspects of an authority's evaluation that
were not disclosed until its final determination or that were never disclosed to the interested parties,
contrary to e.g. the obligation on authorities in Article 6.9 of the Anti-Dumping Agreement. Whether
an interested party raised a given matter or objection during the underlying review can be relevant
to a panel's examination of whether the authority's evaluation is "unbiased and objective", but it is
not dispositive. 143 Indeed, we recall that Korea advocated such a position during the present
proceedings:
To be clear, the position of Korea is not that simply because an interested party has not
raised an objection to particular conclusion of the authorities during the investigation
that a Member would be prevented from raising it in the context of a WTO dispute. That
is clearly not the case and that is not the argument made by Korea. Indeed, if a
challenge against the authority's finding is properly before a panel, the panel should be
allowed to review the challenge even if no interested parties have raised the same
challenge in the underlying investigation or review.144
2.96. In any case, we do not accept Korea's argument that the Japanese exporters only advanced
a "lack of incentives" argument in relation to exports of general-purpose steel and not in relation to
the differing price levels of Japanese and other products. Korea's argument is fa ctually incorrect.

137 Korea's comments on the Interim Report, paras. 62-67.
138 Japan's comments on Korea's comments on the Interim Report, paras. 56-63.
139 Korea's comments on the Interim Report, para. 66.
140 Korea's comments on the Interim Report, para. 68.
141 Japan's comments on Korea's comments on the Interim Report, para. 64.
142 See, e.g. Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 7.66 and fn 136;
China – Autos (US), paras. 7.30, 7.249, and 7.292.
143 See, e.g. Panel Reports, EC – Countervailing Measures on DRAM Chips, para. 7.229; EU – Fatty
Alcohols (Indonesia), para. 7.196; US – Carbon Steel (India) (Article 21.5 – India), paras. 7.211 and 7.221;
and Egypt – Steel Rebar, paras. 7.382 and 7.386.
144 Korea's response to Panel question No. 3(b).

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

The Japanese exporters clearly made arguments in relation to their products being priced
significantly higher than those of other countries that were not contingent on the general -purpose
steel argument.145 Korea's characterization of the assessment of the "lack of incentives" issue in the
Interim Report as being de novo is without foundation and we see no reason to make any revisions
to the Interim Report in that regard.
2.24 Paragraph 7.102
2.97. Japan requests certain revisions to paragraph 7.102 of the Interim Report concerning how
price might affect the quantity of imports demanded. 146 Japan is concerned to ensure that there is
no scope for an "overbroad reading" of paragraph 7.102 whereby lower prices or greater duty
absorption could alone justify an assumption of an increase in imports without positive evidence.147
Korea objects to Japans request, arguing that the revisions would change the essence of the
Panel's finding in paragraph 7.102.148
2.98. We have decided not to grant Japan's request. Paragraph 7.102 does not endorse, implicitly
or explicitly, the proposition about which Japan expresses a concern. Accordingly, there is no reason
to introduce caveats in relation to such a proposition.
2.25 Paragraph 7.104
2.99. Korea requests the Panel to reconsider its findings and revise paragraph 7.104 of the
Interim Report in light of a number of concerns, including (a) the absence of a basis for concluding
that competition was not already taking place; (b) the undertaking of a de novo review by examining
price differentials in isolation; (c) the reliance on Exhibit KOR-41.b despite this information not being
before the KIA; and (d) the selective reliance on aspects of the applicants' petition.149 Japan
disagrees with Korea – emphasizing that the KIA failed to account for price being the most important
factor in purchasing decisions150 – and proposes its own revisions to paragraph 7.104 to clarify both
why the record material contradicts Korea's assertion, as well as how the Panel relies on
exhibit KOR-41.b.151
2.100. We have decided to delete paragraph 7.104 from the Interim Report. This paragraph
responds to an argument made by Korea, but as Korea now emphasizes, it rejects the distinction
between general -purpose and special steel. 152 Accordingly, the Korean argument that
paragraph 7.104 seeks to address was made on an arguendo basis.153 Since the Panel does not
make a finding on the alleged distinction between general -purpose and special steel,
Korea's arguendo argument is not enlivened, and we therefore have no need to address it. Given
that we have decided to delete paragraph 7.1 04, we see no need to make the revisions to this
paragraph proposed by Japan.
2.101. We also note that Korea's arguments concerning Exhibit KOR -41.b are unfounded for the
reasons set out in footnote 318 of the Interim Report (now substantively reflected i n footnote 322
of the Final Report), and we decline Korea's request to remove any references to this exhibit
elsewhere in the Report.
2.26 Paragraphs 7.116-7.119
2.102. Korea requests the Panel to include the KIA's finding regarding capacity utilization in
paragraphs 7.116-7.119 of the Interim Report (now paragraphs 7.115 -7.118 of the Final Report)
because the Japanese exporters' low capacity utilization rate provided an independent, standalone

145 See, e.g. Japanese exporters' opinion regarding injuries, (Exhibit JPN-10.b (BCI)), pp. 9-10 and 19;
Japanese exporters' opinion regarding applicants' rebuttal, (Exhibit JPN-13.b (BCI)), pp. 7-8.
146 Japan's comments on the Interim Report, para. 16.
147 Japan's comments on the Interim Report, para. 17.
148 Korea's comments on Japan's comments on the Interim Report, pp. 16-17.
149 Korea's comments on the Interim Report, paras. 70-76.
150 Japan's comments on Korea's comments on the Interim Report, paras. 67-68.
151 Japan's comments on the Interim Report, paras. 18-19; comments on Korea's comments on the
Interim Report, para. 69.
152 Korea's comments on the Interim Report, para. 74.
153 See also Korea's response to Panel question No. 16(v).

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basis for a "huge incentive to increase the export of the co vered product … upon removal of the
current anti-dumping duties".154 Japan makes no comment on Korea's request.
2.103. We have decided not to grant Korea's request. The role of the KIA's capacity utilization
finding is already part of the holistic examin ation of the KIA's likelihood-of-injury determination in
section 7.5.3.4.
2.27 Paragraph 7.128
2.104. Korea requests the Panel to add certain arguments that it made during the proceedings to
paragraph 7.128 of the Interim Report (now paragraph 7.127 of the Final Report) because these are
currently absent. 155 Japan objects to the request, arguing that Korea's proposed insertions add
nothing of substance.156
2.105. We have decided not to grant Korea's request. Paragraph 7.128 contains a brief s ummary
of arguments and Korea has offered no rationale for why the requested arguments need to be
referenced in this paragraph.
2.28 Paragraphs 7.132-7.133
2.106. Japan requests the Panel to revise paragraphs 7.132 -7.133 (now paragraphs 7.131 -7.132
of the Final Report) to clarify that there needs to be "some linkage" between the production capacity
for other products and the product under investigation before such other production capacity can be
"legitimately useable" in examining the production capacit y for the product under investigation. 157
Japan is concerned that the current findings may be read to allow authorities to skip examining this
kind of linkage, even when the evidence suggests a lack of technical feasibility or commercial
incentives for switching production from other products to the product under investigation.158 Korea
objects to Japan's request, arguing that Japan's revisions are effectively seeking to introduce a new
legal obligation in Article 11.3 and that the revisions are not relevant to the resolution of the present
dispute.159
2.107. We have decided not to grant Japan's request. Paragraphs 7.132 -7.133 indicate that an
authority must have a "factual basis" for determining the parameters used for the product scope in
its capacity utilization calculation. Accordingly, Japan's concern that authorities could determine a
given product scope without a "factual basis" or without regard to contrary evidence does not
warrant a revision to paragraphs 7.132-7.133.
2.29 Paragraph 7.136
2.108. Korea makes a series of interim review requests in relation to paragraph 7.136 of the
Interim Report (now paragraph 7.135 of the Final Report). We address each in turn.
2.109. Korea's first request is to reconsider "all interim findings that are based on [the Panel's]
incorrect intermediate factual finding that the KIA had changed its initial parameter for assessing
the SSB production capacity".160 According to Korea, the Panel's finding of a "change" is based on
the incorrect premise that the KIA's initial parameter was contained in the June 2016 dumping
questionnaire.161 Korea contends that, in order to ascertain the KIA's initially-preferred parameter
for calculating production capacity, the Panel should rely on the injury questionnaire sent to the
Korean domestic industry instead of relying on the dumping questionnaire sent to the Japanese
exporters.162 Korea further contends that the initial parameter as conveyed in the injury
questionnaire sent to the Korean domestic industry was the same parameter that had been used by
the KIA in all of the previous SSB proceedings, and that the Japanese exporters had also used this

154 Korea's comments on the Interim Report, paras. 80-83.
155 Korea's comments on the Interim Report, para. 84.
156 Japan's comments on Korea's comments on the Interim Report, paras. 73-74.
157 Japan's comments on the Interim Report, para. 21.
158 Japan's comments on the Interim Report, paras. 22-23.
159 Korea's comments on Japan's comments on the Interim Report, p. 20.
160 Korea's comments on the Interim Report, para. 105. (emphasis omitted)
161 Korea's comments on the Interim Report, paras. 86-89.
162 Korea's comments on the Interim Report, paras. 90-93.

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

same parameter in their s ubmission to the USITC's SSB proceeding.163 Korea also argues that it
used the ISSF data reflecting a broader parameter in the second sunset review and that it used the
ISSF data for India's production capacity despite the cooperation of Viraj, an Indian exporter, in the
third sunset review.164
2.110. Japan objects to Korea's request, arguing that the June 2016 dumping questionnaire clearly
set the "product under investigation" as the preferred parameter, and the KIA's final determination
itself relied on the Japanese exporters' responses to that questionnaire in its injury assessment. 165
Japan also points out that what was asked of the Korean domestic industry does not prove what was
asked of the Japanese exporters.166
2.111. We have decided not to g rant Korea's request. We agree with Japan that "what matters is
the written content of the questions actually directed to the Japanese [exporters]" in the KIA's third
sunset review, as well as the content of any oral questions "actually directed" to those exporters.167
The materials now relied upon by Korea relate to questions posed to other interested parties, or
posed in the proceedings of other investigating authorities, or posed in previous SSB proceedings
by the KIA. Such materials cannot displace the clear request by the KIA to the Japanese exporters
in the 3 June 2016 dumping questionnaire to provide production capacity data with the "[p]roduct
under investigation" as the preferred product scope for that data. Nor can such materials displace
the clea r references in the KIA's likelihood-of-injury determination to the Japanese
exporters' responses to the 3 June 2016 dumping questionnaire. This is direct evidence that the KIA
relied on the 3 June 2016 dumping questionnaire for the purposes of its likelih ood-of-injury
assessment and its probative value far outweighs the circumstantial materials now relied upon by
Korea to contend otherwise.
2.112. Korea's second request is to refrain from relying on the references to the Japanese
exporters' responses to the 3 June 2016 dumping questionnaire in the KIA's likelihood-of-injury
determination to find that the dumping questionnaire comprised the "starting point" of the
KIA's injury investigation.168 Japan objects to Korea's request.169
2.113. We have decided not to grant Korea's request. Korea's main contention is that, when the
KIA stated in its likelihood -of-injury determination "[a]ccording to Appendix D -3 attached to
'Response to Anti -Dumping Questionnaire' submitted by the Japanese Respondents" and
"[a]ccording to the data submitted by the Japanese Respondents (Appendix D-3 Production Record
and Production Capacity attached to 'Response to Questionnaire about Anti -dumping')", the KIA
actually meant to reference the Japanese exporters' joint submission of 1 September 2016, in which
the Japanese exporters had extracted data from their responses to the 3 June 2016 dumping
questionnaire.170 But Korea offers no direct evidence in support of its assertion. Indeed, elsewhere
in the KIA's determination, the KIA refers to the Japanese exporters' "written opinion" where their
joint submissions are intended to be referenced as the source of the rel evant data.171 Korea offers
no explanation for why the KIA failed to adopt this same approach with respect to the instances
cited in paragraph 7.136 of the Interim Report.
2.114. Korea's third request is to "re -consider [the] findings captured in paragra ph 7.136 in their
entirety" due to a "serious and fundamental inconsistency in the Panel's factual analysis" as between
paragraphs 7.135 and 7.136. 172 According to Korea, the Panel finds in paragraph 7.135 that "the
official dialogue with respect to produ ction capacity… commenced on 1 September 2016", whereas

163 Korea's comments on the Interim Report, paras. 93-96.
164 Korea's comments on the Interim Report, paras. 97-100.
165 Japan's comments on Korea's comments on the Interim Report, paras. 75-78.
166 Japan's comments on Korea's comments on the Interim Report, para. 80.
167 Japan's comments on Korea's comments on the Interim Report, para. 81
168 Korea's comments on the Interim Report, paras. 107-109.
169 Japan's comments on Korea's comments on the Interim Report, para. 75.
170 OTI's final report, (Exhibit KOR-5.c (BCI)), pp. 58 and 87, and fn 80. (emphasis added)
171 See, e.g. OTI's final report, (Exhibit KOR-5.c (BCI)), p. 58 ("[d]ata: The Three Japanese
Respondents' written opinion submitted after the public hearing (Table 1, Table 2)"), p. 8 ("[s]ource: The
Three Japanese Respondents' written opinion submitted after the public hearing (Tables 3, 4, and 5)"), and
p. 85: ("[s]ource: The Three Japanese Respondents' written opinion submitted after the public hearing
(Tables 1 and 2)").
172 Korea's comments on the Interim Report, paras. 111-112.

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"[i]n paragraph 7.136, the Panel suddenly takes 21 September as the commencement date of the
said dialogue".173 Japan objects to Korea's request.174
2.115. We have decided not to grant Korea's request. Korea's request is based on an incorrect
premise. Neither paragraph 7.135 nor paragraph 7.136 purport to arrive at any finding as to when
the alleged "dialogue" commenced. Rather, paragraph 7.136 refers to 21 September 2016 because
this is when the KIA's Injury Investigation Division first made an inquiry of the Japanese exporters
(not to be confused with the 3 June 2016 dumping questionnaire, which was the first inquiry by the
KIA seeking production capacity data from the Japanese exporters). The 1 September 2016 date
referred to in paragraph 7.135 pertains to when the Japanese exporters' 31 August written opinion
was received by the KIA's Injury Investigation Division.
2.116. Korea also now argues that the 21 September 2016 inquiry by the KIA was a follow-up to
the 31 August written opinion, and not to the 3 June questionnaire response, contrary to the
understanding reflected in paragraph 7.136. Specifically, Korea contends "[b]ut, of course, the KIA
on 21 September 2016 was looking for information t hat is 'supplementary' to the KIA's inquiries
raised with respect to the Japanese respondents' Written Opinion submitted on
1 September 2016."175 According to the KIA's own log, however, the 21 September 2016 inquiry by
the KIA was the first made by the Injury Investigation Division. Before 21 September, there do not
exist any "KIA inquiries raised with respect to the Japanese respondents' Written Opinion submitted
on 1 September 2016" to which the 21 September inquiry was "supplemental"/"additional" – that
is, other than the KIA's 3 June dumping questionnaire, which is precisely the point of this aspect of
paragraph 7.136.
2.117. Based on the foregoing, we see no compelling reason to make any of the requested revisions
to paragraph 7.136. Given that Korea's request regarding paragraph 7.138 is consequential upon
the Panel granting its requests regarding paragraph 7.136, we likewise decline to make the
requested revision to paragraph 7.138.176
2.30 Paragraph 7.139
2.118. Japan requests the Panel to revise paragraph 7.139 of the Interim Report (now
paragraph 7.138 of the Final Report) because it incorrectly describes the email at issue as having
been sent to the KIA, when in reality the email was an internal correspondence between the Japanese
exporters and their legal representatives. 177 Korea agrees with Japan's request, except for the
second part of the revision, and asks the Panel to reconsider all of its findings based on the erroneous
understanding that the email was sent to the KIA.178
2.119. We agree to revise paragraph 7.139 in light of the proper understanding of the email as an
internal email. Our revisions complement Korea's review request regarding paragraph 7.143 of the
Interim Report for the following reasons. The text of the email states in relevant part:
Regarding the utilization rate on page 20, Table 3 of the Opinion Regarding Injuries to
the Industry, isn't it true that produ cts other than stainless steel are also produced in
the facility whose standard utilization rate was the basis of the calculations? What is the
ratio between stainless steel and other products produced in this facility? Please identify
the ratio of special steel and general-purpose products out of stainless steel.179
2.120. The text of the question to which the Japanese exporters responded in their
7 November 2016 submission is:
With respect to the capacity utilization in Table 3 on page 20 of the opinion on injury to
industry, please explain whether other products other than stainless steel are produced
through the facilities, which are the basis of calculating capacity utilization, and further

173 Korea's comments on the Interim Report, para. 111. (emphasis omitted)
174 Japan's comments on Korea's comments on the Interim Report, para. 75.
175 Korea's comments on the Interim Report, para. 111. (italics omitted; underlining added)
176 Korea's comments on the Interim Report, para. 113.
177 Japan's comments on the Interim Report, para. 7.139.
178 Korea's comments on Japan's comments on the Interim Report, pp. 23-24.
179 Email reporting the meeting dated 21 September 2016, (Exhibit JPN-30.b (BCI)), p. 1.

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explain the respective proportions of stainless steel and ot her products that are
produced through the facilities and also respective proportions of special steel and
general-purpose steel out of stainless steel.180
2.121. As these extracts show, the Japanese exporters' understanding of the KIA's information
request as reflected in the internal email is substantively equivalent to their understanding of this
information request as reflected in their subsequent submission to the KIA. Accordingly, the
considerations regarding what was asked by the KIA, what was unde rstood by the Japanese
exporters, and whether/how the KIA took steps to inform the Japanese exporters that they had
misunderstood the information request, are substantively the same and therefore inform our
revisions to paragraphs 7.139, 7.141, and 7.145 -7.146 of the Interim Report (now
paragraphs 7.138, 7.140, and 7.144-7.145 of the Final Report).
2.31 Paragraph 7.143
2.122. Korea requests the Panel to revise paragraph 7.143 of the Interim Report to reflect and
examine Korea's argument in relation to th e Japanese exporters' confirmation of the
KIA's information request through the question to which they responded in their 7 November 2016
submission.181 Japan makes no comment on this request.
2.123. As we have explained in relation to Japan's request to review paragraph 7.139 of the
Interim Report, we consider it appropriate to make the revisions requested by Korea, and have done
so in a way that complements the revisions made regarding paragraph 7.139. Our revisions in this
regard encompass the descriptive aspects of paragraphs 7.141 and 7.145, as well as the evaluative
aspect of paragraph 7.146.
2.32 Paragraphs 7.147-7.150
2.124. Korea requests the Panel to revise paragraphs 7.147 -7.150 (now paragraphs 7.146 -7.149
of the Final Repor t) to reflect certain record facts that it contends are currently missing from the
Interim Report, and to reconsider all of the Panel's findings accordingly.182 Korea's comments in this
regard are unstructured and do not clearly itemize the record facts t hat are allegedly missing, nor
do they clearly delineate the "precise aspects" for which Korea seeks certain revisions to the text of
paragraphs 7.147-7.150 of the Interim Report. The Panel thus sought to distil these comments into
discrete requests for revisions, which could then be evaluated within the framework of Article 15.2
of the DSU, as follows.
2.125. First, Korea appears to request the Panel to examine its argument that the Japanese
exporters' 8 December 2016 submission demonstrated that they un derstood that production
capacity should be based on "secondary peeling processing", which is not limited to the "product
under investigation". 183 Second, Korea requests additional analysis by the Panel beyond simply
stating that the KIA's information request in mid/late November was "somewhat imprecise".184 Third,
Korea requests the Panel to find that the Japanese exporters failed to provide any data (as opposed
to providing data based on incorrect parameters). 185 Fourth, Korea requests the Panel to ana lyse
the wording of the question contained in the Japanese exporters' submission of 7 November 2016,
which shows the "degree of specificity" with which the KIA conveyed the correct parameters.186 Fifth,
Korea requests the Panel to assess the Japanese exporters' continued submission of the same figure
despite repeated requests for further information by the KIA and despite the exporters' changing
their position on the product scope of that same fig ure, and to assess the Japanese
exporters' decision to deliberately submit incorrect figures. 187 Sixth, Korea requests the Panel to

180 Japanese exporters' submission of opinion dated 7 November 2016, (Exhibit KOR-25.b (BCI)), p. 1.
181 Korea's comments on the Interim Report, para. 114.
182 Korea's comments on the Interim Report, para. 130.
183 Korea's comments on the Interim Report, para. 116.
184 Korea's comments on the Interim Report, para. 117.
185 Korea's comments on the Interim Report, paras. 118-119.
186 Korea's comments on the Interim Report, paras. 120-122 and 125-126.
187 Korea's comments on the Interim Report, paras. 124 and 126-127.

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include a discussion of the KIA's written opinion to the MOSF on its attempts to obtain and verify
data from the Japanese exporters.188
2.126. Japan understands Korea's interim review request to involve the reconsideration of
two pieces of evidence, namely exhibit JPN -16.b and exhibit KOR -48.b, and Japan objects to
Korea's request.189 Japan's main points are that (a) the In terim Report already addresses
Korea's concerns about exhibit JPN-16.b in paragraph 7.154 and footnote 453 of the Interim Report;
(b) the Panel properly focused on the documentary evidence of what the KIA communicated, not on
what Korea now tells the Panel that the KIA intended to communicate or thought it was
communicating regarding its preferred production capacity parameters; (c) exhibit KOR -25.b does
not reveal the KIA's alleged premise that production capacity should be based not only on the
product under investigation, but also on other products not subject to the investigation; (d) the
Interim Report already addresses exhibit KOR -48.b and reasonably finds its probative value to be
limited; and (e) if the figures submitted by the Japanese exporters had been so inconsistent and
unreasonable in the eyes of the KIA, as argued by Korea, then the KIA should have sought
clarifications – but there is no record evidence of such clarifications being sought clearly and
directly.190
2.127. We have decided not to grant Korea's requests regarding paragraphs 7.147 -7.150 as we
understand them. The first, fifth, and sixth requests (as numbered according to our understanding
above) pertain to matters that are already addressed adequately in the Interim Report. Specifically,
Korea's first request regarding the relationship between the Japanese exporters' reference to
"secondary peeling processing" in their 8 December 2016 submission and the understanding of the
product scope as the "product under investigation" is addres sed already in paragraph 7.154 and
footnote 453 of the Interim Report (now footnote 451 in the Final Report), and Korea has offered no
compelling reason why those aspects are inadequate. Korea's fifth request implies that the Japanese
exporters deliberatel y misled the KIA, with Korea arguing that they "failed to respond to the
KIA's information requests not because they did not understand the questions due to their
'imprecise' nature, but because they opted to provide an incorrect answer that they were later forced
to change". 191 Matters relating to the reliability of the Japanese exporters figures are already
addressed in paragraphs 7.160 -7.163 of the Interim Report, and matters relating to the alleged
"unfaithful participation" of the Japanese exporters a re already addressed in paragraphs
7.165-7.173 of the Interim Report, and we therefore see no reason to revise paragraphs
7.147-7.150 in light of Korea's fifth request. Korea's sixth request is already addressed in footnote
419 of the Interim Report (now f ootnote 411 in the Final Report), and again, Korea offers no
compelling reason as to why that aspect of the Interim Report is inadequate.
2.128. We turn now to Korea's second, third, and fourth requests regarding
paragraphs 7.147-7.150 as we understand th em. Regarding Korea's second request,
paragraphs 7.147-7.150 adequately show that the documentary evidence did not indicate that the
term "capable" meant what Korea now contends, and moreover, other contextual documentary
evidence suggested the contrary. Korea has not substantiated the need for a revision in this regard.
However, in light of Korea's request in relation to paragraph 7.136 that the Interim Report reflect
the KIA's information request to the Korean domestic industry (see above paragraph 2.109) , we
have decided to juxtapose the specificity of what was requested in writing of the Korean domestic
industry vis-à-vis the imprecision of what was requested orally of the Japanese exporters in relation
to their respective capacity utilization figures (r eflected in paragraph 7.150 of the Final Report).
Regarding Korea's third request, we understand this to concern what is largely a semantic issue of
"data" versus "numbers", and we note that Korea initially described the Japanese exporters' figures
as "data" in its first written submission192, whilst subsequently changing its case to argue that these
figures did not constitute "data". The KIA also referred to the Japanese exporters' submitted figures
as "data", albeit incomplete and edited.193 We have adjusted paragraph 7.150 of the Interim Report
to clarify that, based on the evidence before us, the KIA never told the Japanese exporters that their
submitted figures did not qualify as "data" in the eyes of the KIA. But we cannot accept the premise
that the Japanese exporters submitted nothing, because evidently they did make submissions

188 Korea's comments on the Interim Report, paras. 128-129.
189 Japan's comments on Korea's comments on the Interim Report, para. 91.
190 Japan's comments on Korea's comments on the Interim Report, paras. 92-98.
191 Korea's comments on the Interim Report, para. 126. (emphasis added)
192 Korea's first written submission, para. 323.
193 KTC's submission of review to MOSF, (Exhibit KOR-48.b (BCI)), p. 8; OTI's final report,
(Exhibit KOR-5.c (BCI)), p. 87 ("[a]ccording to the data submitted by the Japanese Respondents …").

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concerning their capacity utilization rate. Regarding Korea's fourth request, this is addressed above
through the revisions made in response to Korea's request regarding par agraph 7.143 of the
Interim Report.
2.33 Paragraph 7.155 and footnote 457
2.129. Korea requests the deletion of the reference in footnote 457 (now footnote 455 in the
Final Report) to how Korea explained the proper understanding of the term "dumped impo rts",
arguing that this is irrelevant to the substance of paragraph 7.155 of the Interim Report. 194 Japan
opposes Korea request, contending that Korea's explanation of the term "dumped imports" is
relevant and should be retained, particularly since Korea stated that this explanation underlay every
single finding and analysis in the text of the KIA's determination.195
2.130. We have decided not to grant Korea's request. The sentence of paragraph 7.155 of the
Interim Report to which footnote 457 is appende d states: "[i]f anything, the KIA's request on
11 January 2017 for the 'annual and daily volume of production … of the dumped imports' could
warrant the opposite inference, insofar as the exporters might expect the production volume data
and the production capacity data to have corresponding product scopes". 196 In turn, footnote 457
states:
That is, in the absence of any indication otherwise from the authorities. See also
Korea's response to Panel question No. 9(a)(i) -(ii) concerning how the term "dumped
imports" should be understood in the underlying review.
2.131. In turn, Korea's response to Panel question No. 9(a)(i)-(ii) states, in relevant part, that:
To come straight to the point, this is the rationale underlying every single finding and
analysis in the text of the Korean authority's determination. Clearly, all
likelihood-of-injury analysis by the KTC or OTI was conducted on the basis of the
covered products. Products other than the covered products – excluded products –
were never a part of the review, so it is safe to suppose that any analysis or finding
made by the KTC in the context of its determination was exclusively focused on the
covered product or covered product market.
…
By definition, therefore, the 'dumped imports' or '재심사대상물품' can only refers [sic] to
the covered product (i.e. does not include products that are excluded from the scope of
the review).
To conclude, the said rationale appears almost everywhere in the OTI's Final Report or
the KTC's Final Resolution to the ex tent that the Korean authorities' findings concern
probable influx of the covered products from Japan upon termination of the
anti-dumping measure.
2.132. The relevant aspects of paragraph 7.155 and footnote 457 concern what may, or may not,
have been plausibly understood by the Japanese exporters upon receiving an information request
from the KIA regarding the "dumped imports". Korea has not adequately explained how the cited
part of footnote 457 "has nothing to do with the issue at hand".197
2.34 Paragraph 7.159
2.133. Korea requests "that the Panel at least examine whether the Japanese respondents had ever
submitted any requested information, and make the appropriate findings, which would include
re-considering its finding in paragraph 7.159".198 Korea's main argument is that, whilst the Japanese

194 Korea's comments on the Interim Report, para. 132.
195 Japan's comments on Korea's comments on the Interim Report, para. 100.
196 Emphasis added.
197 Korea's comments on the Interim Report, para. 132.
198 Korea's comments on the Interim Report, para. 135.

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exporters submitted a "naked number" or "numerical allegation" on production capacity, they never
submitted "specific data" in response to the KIA's requests.199 Japan makes no comment on
Korea's request.
2.134. We have decided not to grant Korea's request. We have earlier considered, in relation to
Korea's requests to review paragraphs 7.147-7.150, that Korea's concern in this regard is largely a
semantic issue of "data" versus "numbers", and Korea itself i nitially described the Japanese
exporters' figures as "data" in its first written submission 200, whilst subsequently changing its case
to argue that these figures did not constitute "data". We note that the KIA itself stated during the
third sunset review that the Japanese exporters had submitted "some data", but that it was
"incomplete" or "edited". 201 Clearly, therefore, the KIA itself considered that "some data" was
submitted by the Japanese exporters concerning production capacity. This removes the pr emise of
Korea's request to revise paragraph 7.159, namely that no "data" (or no "information") was
submitted.
2.35 Paragraph 7.161
2.135. Korea requests the Panel to revise its acceptance of the Japanese exporters' discrepancy
referred to in paragraph 7.161 of the Interim Report as "inadvertent". Japan objects to
Korea's request.202
2.136. We have decided not to grant Korea's request. It is premised on a misreading of
paragraph 7.161 of the Interim Report. This paragraph does not refer to an "acceptan ce" of the
discrepancy as "inadvertent". Rather, this paragraph recounts that, subsequent to the discrepancy,
the Japanese exporters provided an accurate description of their intended product scope, and thus
the discrepancy cannot be said to have undermine d the overall credibility and reliability of the
production capacity figures submitted by the Japanese exporters.
2.36 Paragraph 7.162
2.137. Korea requests the Panel to consider, in paragraph 7.162 of the Interim Report, the "inherent
tension" between "peeling" and "inspection" before concluding that there is no "inherent tension"
between "peeling" and "secondary processing".203 Specifically, Korea contends that:
Although "peeling" is a subset of "secondary processing", "peeling" is not a subset of
"inspection". In fact, both "peeling" and "inspection" are the defined stages of SSB
manufacturing, distinctive from each other.
Therefore, Korea respectfully submits that the Panel must either recognize this inherent
tension or find further justification with respect to the relationship between
"peeling" and "inspection".204
2.138. Japan objects to Korea's request, arguing that Korea seeks to create the appearance of a
tension when in fact the two documents in question are consistent with one another.205
2.139. We have decided not to grant Korea's request. Korea relies on Aichi's questionnaire response
to substantiate the proposition that [[***]] is a distinct stage of SSB manufacturing. However, the
matter at issue in paragraph 7.162 of the Interim Report concerns Daido's submissions and whether
Daido submitted contradictory material. In its questionnaire response, Aichi distinguished between
[[***]], but there is no suggestion that this implied any meaningful difference for the generation of
its production capacity figure, and moreover, Aichi [[ ***]], thus differentiating its process from

199 Korea's comments on the Interim Report, paras. 133-134.
200 Korea's first written submission, para. 323.
201 KTC's submission of review to MOSF, (Exhibit KOR-48.b (BCI)), p. 8. (emphasis added)
202 Japan's comments on Korea's comments on the Interim Report, para. 102.
203 Korea's comments on the Interim Report, paras. 139-141.
204 Korea's comments on the Interim Report, paras. 139-141.
205 Japan's comments on Korea's comments on the Interim Report, para. 103.

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Daido. In its individual response to the KIA's 3 June 2016 dumpin g questionnaire, Daido stated
[[***]].206 Daido thus described [[***]], and not as separate stages or processes.
2.140. According to paragraph 7.162 of the Interim Report, there is no "inherent tension" between
the subsequent joint submission of the Japa nese exporters – which referenced secondary
processing207 – and this earlier questionnaire response by Daido. The subsequent joint submission
did not explicitly reference [[ ***]], but as just mentioned, it is apparent from Daido's earlier
questionnaire re sponse that Daido considered [[ ***]]. Korea has not demonstrated that
Daido's reference to [[***]] in its earlier questionnaire response has any meaningful implication for
its calculation of production capacity nor, relatedly, the subsequent description in the joint
submission that secondary processing – and thus the peeling process – was the reference point for
calculating production capacity. Accordingly, Korea has provided no compelling reason for the Panel
to revise paragraph 7.162.
2.37 Paragraphs 7.165-7.173
2.141. Korea requests the Panel to delete paragraphs 7.165 -7.173 from the Interim Report. 208
Korea's main contention is that it never argued that Japan acted in "bad faith" in initiating or
engaging in the present proceedings, nor did the KIA make a finding of "bad faith" or draw adverse
inferences from the Japanese exporters' conduct in the underlying review.209 Korea advances various
related and additional arguments in support of its request, which we will address as appropriate in
our evaluation below. Japan objects to Korea's request because "[t]he argument of bad faith was
clearly made, and took substantial time and resources of the other Party and the Panel".210
2.142. We begin by examining whether, as a factual matter, Korea did indeed argue during the
proceedings that Japan was acting in bad faith in the present proceedings with respect to its
production capacity claims and whether Korea asked the Panel to avoid an outcome that would result
in Japan's misrepresentations being rewarded.
2.143. In the "General Observations" section of its comments on Japan's responses to the
Panel's questions, Korea stated:
[A]s Korea will demonstrate below, Japan's desperate attempts at rescuing the
Japanese respondents' unsubstantiated numerical allegat ion from the fundamental
errors that taint the very foundation of the allegation's veracity only reveals the
unfaithful participation by the Japanese respondents' in the underlying review, and quite
possibly, by Japan in this dispute (although Korea hates to say this).211
2.144. Korea indicated that this "demonstrat[ion]" would be made in its comments on
Japan's response to Panel question Nos. 101 and 106. We note that question 106, in particular,
concerns production capacity. We al so note that, in its comments on Japan's response to Panel
question No. 92 in respect of production capacity, Korea made a remark similar to that just quoted
from its "General Observations", namely:
More importantly, as demonstrated below, Japan's desperate attempts at minimizing
the significance of such flaws by admitting the serious inconsistencies totally fails and
even calls into question the good faith participation of Japan in this dispute.212
2.145. The plain text of these remarks in Korea's "General Observations" and comments on
Japan's response to Panel question No. 92 shows that Korea did indeed "call into question the good
faith participation of Japan in this dispute", which Korea intended to "demonstrate" in its subsequent
comments on Japan's responses to Panel questions. Korea specified question 106 in that regard,

206 Daido questionnaire response, (Exhibit JPN-9.b (BCI)), annex D-3. (emphasis added)
207 Japanese exporters' post-hearing opinion, (Exhibit JPN-16.b (BCI)), pp 1-2.
208 Korea's comments on the Interim Report, para. 144.
209 Korea's comments on the Interim Report, paras. 152-154.
210 Japan's comments on Korea's comments on the Interim Report, para. 106.
211 Korea's comments on Japan's response to Panel question "General Observations", p. 4.
(emphasis added)
212 Korea's comments on Japan's response to Panel question No. 92, p. 16. (emphasis added)

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which concerns production capacity. In turn, in its comments on question No. 106, Korea made the
following remarks:
(Japan's Response is Disingenuous) Japan's response to this critic al question
demonstrates either the fundamentally disingenuous nature of Japan's participation in
this dispute or Japan's fundamental misunderstanding of the subject matter at hand.
…
Indeed, if the Panel breaks down Japan's argument in paragraphs 87 and 89
chronologically, it will note that the Japanese respondents committed mistakes in
virtually every submission made to the Korean authorities. This suggests that the
mistakes were not inadvertent, and the Panel should not be misled by Japan's crafty
repackaging of the chronology of the events.
But more importantly , Japan's post hoc justification is both completely false and
evidently disingenuous.
…
In contrast, Japan's position constantly changes as the case develops, often providing
self-contradictory arguments, and almost always run counter to the prevailing reality
and the well -known industrial knowledge. By simple and straightforward analogy,
therefore, it should be clear that Korea's arguments are in line with the objective
findings of the Korean authorities based on the evidences and analyses that are genuine
and contemporaneous, while Japan's arguments are opportunistic, often relying on an
unfounded premise that the Panel would give them something if they raise enough
number of issues, with or with out a proper basis. As Korea repeatedly stressed, such
an opportunistic approach does not represent a proper decorum befitting such an
internationally-prestigious proceeding that is the WTO's dispute settlement procedure.
That much is clear.
…
Korea truly believes that its authorities' attitude in the underlying review is to be
commanded [sic] if anything but not to be faulted in any case. Conversely, Korea
respectfully warns the Panel against the destructive implication that would be triggered
by rewarding the Japanese respondents for their blatantly unfaithful participation in the
underlying review due to some room for improvement that the Panel has apparently
identified from the Korean authorities' conduct of review.
As an aside but relatedly, Korea notes that Japan has made clear the premise on which
it has launched this lawsuit: (i) explicitly, respondents to an anti-dumping investigation
and review can cherry-pick the specific request from the authority that they will respond
to, and (ii) implicitly, the respondents can choose the manner in which they will respond
to the specific request by the authority. Otherwise, this is a dispute that could have not
been conceivably brought to this Panel.213
2.146. To recall, Korea had indicated earlier in its filing that it would "demonstrate", in its comments
regarding question No. 106 214, the "unfaithful participation" by Japan in this dispute and how
"Japan's desperate attempts at minimizing the significance of such flaws by admitting the serious
inconsistencies totally fails and even calls into question the good faith participation of Japan in this
dispute". In turn, the above aspects of Korea's comments on Japan's response to Panel question
No. 106 reveal the following points. Korea argued that Japan's submissions concerning the Japanese
exporters' production capacity figures were intentionally "disingenuous", and that Japan had
engaged in a "crafty repackaging of the chronology of the events", including with respect to
"mistakes" by the Japanese exporters that were "not inadvertent", i.e. deliberately misleading. Korea

213 Korea's comments on Japan's response to Panel question No. 106, pp. 46-51. (emphasis original)
214 Korea also mentioned question No. 101, which relates to export volumes and the issue of
"general-versus-special" steel.

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also argued that Japan had adopted an "opportunistic approach" that was inconsistent with the
"proper decorum" of the present proceeding, including by making submissions on the "premise that
the Panel would give them something if they raise enough number of issues". Korea "warn[ed]" the
Panel against rewarding the Japanese exporters "for their blatantly unfaithful participation in the
underlying review", presumably by accepting Japan's arguments regarding the Japanese
exporters' production capacity figures. Finally, Korea identified two questionable factors that formed
the "premise" on which Japan "launched this lawsuit", contending that "[o]therwise, this is a dispute
that could have not been conceivably brought to this Panel".215
2.147. In summary, in its comments on Japan's responses to the Panel's questions, Korea framed
an overall argument that "call[ed] into question the good faith participation of Japan in this dispute"
and desc ribed Japan's "participation" in the dispute as quite possibly "unfaithful", including with
respect to its production capacity claims. Within the rubric of that overall argument, Korea relied
upon (a) the wilful misrepresentation by Japan during the procee dings of the evidence relating to
the Japanese exporters' production capacity figures; (b) the approach allegedly adopted by Japan
of making a large volume of arguments so that the Panel might accept one of them; and (c) the
questionable premise on which Japan allegedly initiated the present proceedings.
2.148. In the same filing, Korea also asserted – again in relation to production capacity – that
"Japan submits several misleading and disingenuous arguments", that "Korea is genuinely troubled
by Japan's disingenuous arguments before this Panel", that a certain argument by Japan was
"incredibly misleading", and that "Korea must express its concern because
Japan's misrepresentation of the facts does not seem to have been inadvertent".216 The only way to
read these assertions by Korea is that they were meant to convey that Japan was deliberately
misleading the Panel in relation to its production capacity claims. Given the similarities in the subject
matter and the language used, it is apparent to the Panel t hat these remarks also fell within the
rubric of Korea's overall argument in which doubt was cast over Japan's good faith participation in
the present proceedings vis-à-vis production capacity.
2.149. In a separate filing, namely Korea's comments on Japan's responses to Korea's questions,
Korea made a number of remarks about Japan's conduct in the proceedings vis-à-vis the Japanese
exporters' "various numerical allegations" (including the subject matter of Panel question No. 106
concerning production capacity) as follows:
As a matter of primary importance, Korea underscores Japan's disingenuous response
in paragraphs 92 -93. It is one thing to describe a discrepancy as an "inadvertent
mistake", but it is another to intentionally mislead the Panel, which unf ortunately has
been a frequent approach by Japan in this dispute.
…
It was considered that most, if not all, of the Japanese respondents' various numerical
allegations were either unsubstantiated or inconsistent, or both. Japan provides various
unsubstantiated, self -serving allegations to justify the apparent inconsistencies, but
despite the numerous speculations and convoluted misrepresentation of the facts, Japan
always fails to properly explain the problems. In contrast, one simple answer that is
apparent from the record evidence is that the Japanese respondents' numerical
allegations were unfounded. This basic and straightforward answer must not be
overlooked, as Japan's blatant misrepresentation of the facts should not be rewarded in
this dispute.
Having said that, Korea's Question 29 focuses on one iteration (export volume data) of
a fundamental problem in the review concerning the lack of participation and quality
submissions by the Japanese respondents. Indeed, there was a general theme in the
review of the Japanese respondents only selectively participating and providing the
requested data. In those instances where information was provided, there were several
issues with the data, which also Japan confirms in its responses to Panel Questions 101

215 Korea's comments on Japan's response to Panel question No. 106, pp. 46-51.
216 Korea's comments on Japan's response to Panel question No. 92, pp. 12-13.

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and 106. Japan's suggestion that it concerned merely a few "miswritten figures" is not
credible.217
2.150. Accordingly, Korea alleged that it was a "frequent approach by Japan in this dispute" to
"intentionally mislead the Panel", which correlates to Korea's overall argument calling into question
Japan's good faith participation in the dispute as described above. Moreover, Korea contended that
"Japan's blatant misrepresentation of the facts should not be rewarded in this dispute", which we
understand to be a request to the Panel to refrain from "rewarding" Japan in this way.
2.151. We also note that, in its second written submission, Korea made a generalized iteration of
its argument (described above) concerning the approach allegedly adopted by Japan of makin g a
large volume of production capacity arguments so that the Panel might accept one of them, as
follows:
Korea finds it particularly troublesome that such an approach is apparently prevalent
across many other claims and arguments that Japan is advancing to the Panel in this
dispute. Korea does not consider that this "kitchen sink" approach of trying any
argument that comes along is what the drafters had in mind when they provided that
all Members are to engage in these procedures in good faith in an effort to resolve the
dispute.218
2.152. As this extract demonstrates, Korea explicitly linked Japan's alleged "kitchen sink" approach
to the question of "engag[ing] in these procedures in good faith".
2.153. In short, the foregoing demonstrates that Korea called into question whether Japan was
participating in good faith in the present dispute in relation to its production capacity claims.
Specifically, Korea cast doubt over the premise on which Japan initiated the proceedings and
suggested that Japan had made deliberate misrepresentations and misleading statements to the
Panel during the proceedings. Korea linked Japan's engagement in the dispute to the Japanese
exporters' alleged "blatantly unfaithful participation" in the underlying review. Korea asked the Panel
to avoid rewarding such behaviour. Accordingly, the Panel understood Korea to argue that Japan
was acting in bad faith in the present WTO proceedings in relation to its production capacity claims.
This understanding, as reflected in paragraph s 7.168-7.169 of the Interim Report, is derived from
the plain text of Korea's submissions during the proceedings. Korea asserts that this understanding
is incorrect for a numbers of reasons, to which we now turn.
2.154. First, Korea contends that the fac t that it allegedly raised these issues "at the very end of
the proceeding" shows that "this alleged argument was not an essential aspect of Korea's case that
would have warranted such a lengthy discussion" in the Interim Report.219 We agree that the timing
of the submission of arguments and evidence can impact their admissibility under the Working
Procedures and in light of principles of due process. However, neither party has raised any question
as to the admissibility of Korea's arguments in this regard.220 Moreover, it is inherent in the nature
of these arguments – i.e. assertions as to the other party's conduct during the proceedings – that
they may emerge only as the proceedings unfold. Thus, the fact that Korea advanced these
arguments at a late sta ge in the proceedings does not provide a basis for the Panel to decline to
address them in the Report.
2.155. Second, Korea contends that it never used the term "bad faith" in relation to Japan.221 Korea
notes that it did use the term "bad faith" on one occasion in relation to the Japanese exporters, but
in the unrelated context of general -versus-special steel.222 In our view, the term "bad faith" is the
inverse of "good faith", and Korea expressly "call[ed] into question the good faith participation of
Japan in this dispute". 223 Korea also used the term "unfaithful participation" in relation to Japan,

217 Korea's comments on Japan's response to Korea's question No. 29, pp. 61 and 64. (emphasis added)
218 Korea's second written submission, para. 69. (emphasis added)
219 Korea's comments on the Interim Report, para. 145.
220 Indeed, Japan requests that we address these arguments. (Japan's comments on Korea's comments
221 Korea's comments on the Interim Report, para. 146.
222 Korea's comments on the Interim Report, paras. 146-149.
223 Korea's comments on Japan's response to Panel question No. 92, p. 16.

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referring specifically to "the unfaithful participation … quite possibly, by Japan in this dispute".224 We
note that the Interim Report uses the term "bad faith" to describe Korea's allegations against Japan,
but it does not use quotation marks or otherwise imply that Korea used this exact term. We consider
"unfaithful participation" to be synonymous with "acting in bad faith". We therefore see no reason
to revise paragraphs 7.165-7.173 of the Interim Report on this basis.
2.156. Third, Korea contends that the Interim Report is incorrect to assert that Korea argued that
Japan acted in bad faith in "initiating" or "engaging" in the proceedings.225 Korea states that it "never
made such an allegation and the Panel is unable to point to any such statement".226 Contrary to this
assertion by Korea on "initiating", part of Korea's "demonstrat[ion]" of doubt over "the good faith
participation of Japan in this dispute" concerned allegations regarding "premise" on which Japan
"launched this lawsuit". 227 Clearly, Korea's allegations in this regard concerned Japan's "initiation"
of the proceedings. Additionally, contrary to Korea's assertion on "engaging", Korea expressly linked
its allegation of Japan's "kitchen sink" approach to doubts over whether such an approach accorded
with the requirement "to engage in these procedures in good faith in an effort to reso lve the
dispute".228 Korea also described Japan's arguments during the proceedings as "misleading",
"disingenuous", "blatant misrepresentations", and stated that that it was a "frequent approach by
Japan in this dispute" to "intentionally mislead the Panel". Clearly, Korea's allegations in this regard
concerned Japan's engagement in the proceedings.
2.157. Fourth, Korea contends that the remarks by Korea cited in the Interim Report were "focused
on highlighting the uncooperative behaviour of the Japanese exporters in general … their
demonstrated submission of incorrect information on the key point of selling 'general purpose' steel,
and their confusing and changing version of the facts when it came to production capacity". 229
According to Korea, Japan had sought to "minimize" the nature of the mistakes and inaccuracies in
the information provided by the Japanese exporters, and Korea was simply responding to Japan by
pointing out that "it was unlikely that these inaccuracies were 'inadvertent'". 230 Korea proceeds to
assert that "[i]t was not Korea that argued that these inaccuracies were deliberate; rather, Korea
was responding to Japan's assertions about the alleged 'inadvertent' nature of the mistakes".231
2.158. We are unconvinced by Korea's attempt to distinguish between the concepts of "not
inadvertent" and "deliberate". Moreover, we recall that Korea made the following remarks in relation
to Japan's production capacity claims (a) "Japan submits several misleading and disingenuous
arguments"; (b) "Korea is genuinely troubled by Japan's disingenuous arguments before this Panel";
and (c) "what Japan tries to argue based on such a non -issue is incredibly misleading". 232 Korea
followed these remarks with the broader suggestion that "[a]t this juncture, Korea must express its
concern because Japan's misrepresentation of the facts does not seem to have been inadvertent".233
In our view, according to a plain reading of the text of these remarks by Korea, if Japan's alleged
misrepresentation of the facts wa s not inadvertent, then it was intentional. Our understanding of
Korea's argument in this regard was informed by Korea's allegation that it was a "frequent approach
by Japan in this dispute" to "intentionally mislead the Panel".234 In any event, contrary to what Korea
now asserts, Korea explicitly contended that Japan was complicit in presenting the Japanese
exporters' so-called "not inadvertent" errors as "mistakes", contending that these "mistakes were
not inadvertent, and the Panel should not be misled by Japan's crafty repackaging of the chronology

224 Korea's comments on Japan's response to Panel question "General Observations", p. 4.
225 Korea's comments on the Interim Report, paras. 150-151.
226 Korea's comments on the Interim Report, para. 150.
227 See paras. 2.143-2.148 above.
228 Emphasis added. See also paras. 2.151-2.152 above.
229 Korea's comments on the Interim Report, para. 157.
230 Korea's comments on the Interim Report, para. 157.
231 Korea's comments on the Interim Report, para. 157.
232 Korea's comments on Japan's response to Panel question No. 92, pp. 12-13.
233 Korea's comments on Japan's response to Panel question No. 92, p. 13. We also note that the same
response by Korea concludes by linking these remarks to its "good faith" argument, stating "[m]ore
importantly, as demonstrated below, Japan's desperate attempts at minimizing the significance of such flaws
by admitting the serious inconsistencies totally fails and even calls into question the good faith participation of
Japan in this dispute". (Ibid. p. 16).
234 Korea's comments on Japan's response to Korea's question No. 29, pp. 61 and 64.

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of the events".235 Korea made this remark as part of its "demonstrat[ion]" of why the "the good faith
participation of Japan" was being "call[ed] into question" in this dispute.236
2.159. Korea now sugges ts that, rather than making a separate allegation of bad faith against
Japan, it was (a) seeking to express "its frustration over this distortion of the facts and the willful
[sic] shifting of the burden and re-characterization of the errors"237; (b) articulating the "frustration
on Korea's side" about the "litigation technique of Japan" by which Japan sought to "blame the
authorities for the errors committed by the Japanese exporters" 238; (c) pointing "to a number of
considerations that would have requir ed a bit more restraint on the side of Japan" because "Japan
may have been sailing a bit too close [to the wind]" 239; and (d) expressing its "frustration about
Japan's attempt at creating a critical confusion" and Japan's "seriously misleading" and
"disingenuous" presentation of certain facts. 240 While Korea argued that Japan had engaged in a
"disingenuous cover-up" during the proceedings, Korea now suggests that this is because "Japan
attempted to rescue some serious discrepancies in the Japanese respond ents' responses by
'packaging' – or 'covering them up' as 'inadvertent and minor mistake'". 241 Rather than making a
separate allegation of bad faith against Japan through these kinds of remarks, Korea now argues
that it was instead "plac[ing] a question mark around Japan's strategy".242 Korea tells us that "[t]his
question mark is not an argument or claim that Japan violated Article 3.10 of the DSU", but "is
simply that, a question mark".243
2.160. In our view, if a party in WTO dispute settlement rais es a question before a panel over the
good faith participation of the other party to the proceeding, it should expect to receive an answer.
Korea should not now be surprised that, having called into question Japan's "unfaithful participation"
in the procee dings244, the Panel proceeded to review this allegation in its Interim Report. In any
event, we reject Korea's suggestion that it was merely "placing a question" as opposed to making
an argument or claim for the Panel's consideration. As we have recounted above, Korea's remarks
went significantly further than "placing a question". We therefore see no reason to revise
paragraphs 7.165-7.173 on the basis that Korea was merely "placing a question" as opposed to
making a claim or argument about Japan's participation in the present proceedings.
2.161. Korea also objects to the suggestion in paragraph 7.168 that Korea "characterized certain
aspects of Japan's case as a 'hoax'", and in paragraph 7.169 that Korea "is acti ng in a manner
inconsistent with Article 3.10 of the DSU by allegedly advancing allegations of bad faith as part of
an adversarial effort or litigation technique".245
2.162. On the first point, Korea contends that it never argued that Japan's case was a hoax nor that
it was alleging bad faith on the part of Japan, but was instead referring to the Japanese
exporters' argument on general-versus-special steel as a hoax and suggesting that perhaps Japan
"was being misled by the cunning lawyers for the respon dents".246 We have reviewed
Korea's argument and consider the statement in paragraph 7.168 that Korea "characterized certain
aspects of Japan's case as a 'hoax'" to be consistent with Korea's explanation during the
proceedings. In particular, Korea explai ned that it "made the qualification of the argument as a
'hoax' and 'opportunistic', and it is Korea's right to respond to the arguments of Japan by pointing
to …".247 We therefore see no reason to revise that aspect of the Interim Report. Moreover, we ar e
not convinced by Korea's argument that this matter pertained to something "that Korea said verbally
in the heat of the debate" and that it arose from the "oral exchange" and therefore did not warrant
being addressed in the Interim Report. 248 The allegation that the Japanese exporters had engaged

235 Korea's comments on Japan's response to Panel question No. 106, p. 51.
236 In particular, it was part of Korea's comments on Japan's response to Panel question No. 106, which
Korea described as part of its demonstration in this regard. (Korea's comments on Japan's response to Panel
question "General Observations", p. 4, and No. 92, p. 16).
237 Korea's comments on the Interim Report, para. 161.
238 Korea's comments on the Interim Report, paras. 162 and 163.
239 Korea's comments on the Interim Report, para. 163.
240 Korea's comments on the Interim Report, paras. 164-166.
241 Korea's comments on the Interim Report, paras. 168-169.
242 Korea's comments on the Interim Report, para. 170.
243 Korea's comments on the Interim Report, para. 170.
244 Korea's comments on Japan's response to Panel question "General Observations", p. 4.
245 Korea's comments on the Interim Report, para. 173.
246 Korea's comments on the Interim Report, paras. 174-175 and 180.
247 Korea's response to Panel question No. 11. (emphasis added)
248 Korea's comments on the Interim Report, para. 174.

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in a "hoax" being advanced by Japan (knowingly or otherwise) was significant and potentially
far-reaching. A "hoax" connotes a deception or fraud. Korea now contends that this remark was
made "in the heat of the debate". However, by asking question No. 11, the Panel afforded Korea the
opportunity to clarify in writing what it had intended by the "hoax" allegation and how this allegation
related to the KIA's determination. For instance, in response to that question , Korea could have
unambiguously withdrawn the remarks made by its legal counsel during the oral hearing that the
Japanese exporters had engaged in a "hoax" that now formed part of Japan's arguments. Korea did
not avail itself of that opportunity. On the c ontrary, Korea stated that " Korea remains of the view
that this argument on special versus general -purpose steel is a smokescreen and that there is no
basis for considering the authorities' rejection of this distinction for purposes of its likelihood analysis
to be unreasonable" and "[t]hat is why Korea qualified the argument as a 'hoax'".249
2.163. On the second point 250, the passage in paragraph 7.169 about which Korea complains is
simply a reflection of Korea's explanation in its response to question No. 11 that:
The Panel is called upon by Japan (in Japan's defense, as led by the crafty lawyering of
the Japanese respondents) to stand at the verge of accepting such a mistaken premise
that has no basis whatsoever under any applicable industrial norm or practice.
Thus, Korea made the qualification of the argument as a "hoax" and "opportunistic",
and it is Korea's right to respond to the arguments of Japan by pointing to
inconsistencies in the position of the Japanese respondents and a lack of evidence to
support the conclusion that there was anything unreasonable or biased in the
authorities' rejection of similar arguments during the review. On the flap side [sic] of
coin, it is also Korea's responsibility as a Member of the WTO to exert its best advocacy
effort in this adversarial process to prevent the Panel from accepting a premise that is
so unrealistic.251
2.164. Korea explained its "hoax" argument as being, at least in part, a reflection of its
"responsibility as a Member of the WTO to exert its best advocacy effort in this adversarial process".
Paragraph 7.169 accurately quotes the relevant passages of Korea's explanation in this regard, and
expresses the view – in the abstract and in the conditional tense – that advancing allegations of bad
faith as part of an adversarial "advocacy effort" or litigation technique would not accord with
Article 3.10 of the DSU, nor would it assist in facilitating the fair, prompt, and effective resolution of
the actual matter in dispute. Whilst Korea pointed to its "advocacy effort in this adversarial process"
in the quotation extracted above, we note that Article 3.10 of the DSU recognises that "the use of
the dispute settlement procedures should not be intended or considered as contentious acts".252 We
see no reason to revise the aspect of paragraph 7.169 about which Korea now complains.
2.165. Korea also contends that paragraphs 7.165-7.173 "mix artificially issues raised in an entirely
different context, such as in respect of the discussion on 'special' versus 'general-purpose' steels
with this issue on capacity utilization so as to build an alleged claim of bad faith". 253 We note,
however, that Korea explicitly mixed the "production capacity" issues with the
"general-versus-special steel" issues in relation to the "unfaithful participation" of the Japanese
exporters and of Japan, as follows (note that question 101 related to general -versus-special steel,
and question 106 related to production capacity):
Moreover, in its answers to the Panel's questions, even Japan admits that there were
inconsistencies in the reported production capacity and volume data by the Japanese
respondents. In response to Questions 101 and 106, Japan acknowledges there were
several errors in the Japanese respondents' submissions. Japan c onfirms that the
reported production capacity and volume data were not "correct", "accurate", or part of
a "mistake". But as Korea will demonstrate below, Japan's desperate attempts at
rescuing the Japanese respondents' unsubstantiated numerical allegation from the
fundamental errors that taint the very foundation of the allegation's veracity only
reveals the unfaithful participation by the Japanese respondents' in the underlying

249 Korea's response to Panel question No. 11.
250 Korea's comments on the Interim Report, paras. 181-182.
251 Korea's response to Panel question No. 11. (emphasis added)
252 Emphasis added.
253 Korea's comments on the Interim Report, para. 184.

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review, and quite possibly, by Japan in this dispute (although Korea hates to say this).
In addition, as Korea explained at the second substantive meeting, there were simply
too many inconsistencies in the Japanese respondents' unsubstantiated numerical
allegations that it made no practical sense to pursue every single one of them (although,
as explained in Korea's response to the Panel's question, the Korean authorities
nonetheless attempted to clarify them to the extent possible). This refutes, among
others, Japan's argument that the Korean authorities could, and should, have used the
respondents' data to extrapolate the countrywide production capacity number for Japan,
as there were serious questions about that data's affirmative, objective, verifiable, and
credible nature.
Indeed, most of the numerical allegations advanced by the Japanese respondents' in
the underlying review were unsubstantiated. In other words, whether it is the allegation
that they exported [[ ***]] tons of "general -purpose" steel in 2015 or that their
production capacity (for either the "covered product only" or "both the covered and
excluded products", as they see fit) in 2015 was [[ ***]] tons, for example, neither of
these numbers were based on evidence, and both of these numbers were inconsistent
with relevant numbers otherwise submitted by the Japanese respondents.
Korea recalls that even Japan does not dispute that the Japanese respondents refused
to participate in the dumping proceeding. Indeed, the Japanese respondents failed to
provide information about the domestic sales and cost of product ion, rendering it
impossible to calculate any sort of normal value. Tellingly, Japan's only defense is that
their respondents are entitled to cherry-pick the specific aspects of the proceeding that
they intend to cooperate with. Be that as it may, but they must then also accept that
this approach may have consequences in terms of the information that is available to
the authorities. By comparison, what is the difference between the Japanese
respondents' fatal refusal to provide data for their domestic sales and cost of production
in the dumping proceeding, on the one hand, and their unilateral allegation that they
had exported [[***]] tons of "general -purpose" steel in 2015 or that their production
capacity in 2015 was [[***]] tons in the injury proceeding?254
2.166. As another example, Korea argued in its comments on one of Japan's responses:
Japan unavailingly tries to rescue the Japanese respondents' chronological responses
from the various discrepancies prevalent therein. But, despite how it packages t he
discrepancies, Japan is essentially forced to admit the discrepancies. Japan attempts to
package the discrepancies as a mere "inadvertent mistake". Even assuming arguendo
that they are, that does not change the fact that discrepancies were prevalent acr oss
the responses by the Japanese respondents. Korea reiterates that similar
inconsistencies were prevalent across almost all of the Japanese respondents' responses
in the review. Simply put, the Japanese respondents' responses on a variety of topics
were fatally inconsistent and unreliable, such that it was impractical, if not impossible,
for the Korean authorities to chase after every single discrepancy . However, the
authorities still tried their best to obtain clarifications on such discrepancies, all to no
avail from the unwilling respondents.
As a matter of primary importance, Korea underscores Japan's disingenuous response
in paragraphs 92 -93. It is one thing to describe a discrepancy as an "inadvertent
mistake", but it is another to intentionally misl ead the Panel, which unfortunately has
been a frequent approach by Japan in this dispute.
…
Korea is prepared to do this exercise all day long, until Japan is completely cornered
and forced to give up every effort to post hoc justify any of the prevalent discrepancies
included in the Japanese respondents' numerical allegations. Korea is more than
confident that its authorities thoroughly examined and understood the inherent
inconsistencies prevalent across the Japanese respondents' numerical allegations. I t

254 Korea's comments on Japan's response to Panel question "General Observations", pp. 4-5.
(italics original; underlining added; fns omitted)

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was considered that most, if not all, of the Japanese respondents' various numerical
allegations were either unsubstantiated or inconsistent, or both. Japan provides various
unsubstantiated, self -serving allegations to justify the apparent inconsistencie s, but
despite the numerous speculations and convoluted misrepresentation of the facts, Japan
always fails to properly explain the problems. In contrast, one simple answer that is
apparent from the record evidence is that the Japanese respondents' numerical
allegations were unfounded. This basic and straightforward answer must not be
overlooked, as Japan's blatant misrepresentation of the facts should not be rewarded in
this dispute.
Having said that, Korea's Question 29 focuses on one iteration (export volume data) of
a fundamental problem in the review concerning the lack of participation and quality
submissions by the Japanese respondents. Indeed, there was a general theme in the
review of the Japanese respondents only selectively participating and providing the
requested data. In those instances where information was provided, there were several
issues with the data, which also Japan confirms in its responses to Panel Questions 101
and 106. Japan's suggestion that it concerned merely a few "miswritten figures" is not
credible.255
2.167. Similarly, Korea submitted to the Panel that:
With frustration, Korea would like to remind the Panel that there can be no question
whatsoever that the Japanese respondents' participation in the underlying review, in
general, was selective, far from being complete, result -oriented, and mostly
unsubstantiated (in line with their tradition in all of the previous SSB anti -dumping
investigation and revie ws). The inconsistent nature of the Japanese
respondents' argument was perhaps the second most prevalent feature in the Japanese
respondents' responses, topped only by the unsubstantiated nature of the Japanese
respondents' arguments. Simply put, most of the Japanese respondents' arguments
were either unsubstantiated or internally inconsistent – it was not the other way around
as the Panel seems to wrongly postulate. Korea had hoped that the Panel would have
started to appreciate this general approach of the Japanese respondents from the
discussion we had on the artificial distinction between the "special" and
"general-purpose" steels for example. The Japanese respondents' evasive responses to
the Korean authorities' continued instructions on the product ion capacity data was
another example of this tactic.256
2.168. As the foregoing extracts demonstrate, Korea's "unfaithful participation" argument was
based on the assertion that the Japanese exporters submitted voluminous unsubstantiated and
inconsistent numerical allegations, including those related to production capacity and
"general-versus-special" steel, and Japan was now endorsing and advocating these numerical
allegations as part of its own case. Korea's argument in this regard certainly applied with respect to
production capacity specifically. 257 But it was also broader, cutting across and drawing upon a
number of facets of the dispute. This included the "general -versus-special" steel issue. We see no
reason to revise paragraphs 7.165-7.173 on the basis that they artificially mix issues that arose in
a different context, such as the "general -versus-special" steel context, nor on the basis that
Korea's comments regarding "bad faith" were limited to the "general-versus-special" steel context.
2.169. We turn now to the specific arguments made by Korea in respect of the Japanese exporters
– as distinct from those in respect of Japan itself – in its request to revise paragraphs 7.165-7.173.
Korea argues that it is " both erroneous and inutile" for the Pa nel to make the finding at
paragraph 7.167 that "Korea has not demonstrated that the KIA found that the Japanese exporters
acted in bad faith in the underlying review". 258 Korea contends that it "did not argue that the KIA
made a finding of bad faith or d rew adverse inferences from any failure to cooperate or provide
accurate information".259 However, regardless of what the KIA found, Korea explicitly asked the
Panel to avoid an outcome in the present dispute that would "reward" the Japanese

255 Korea's comments on Japan's response to Korea's question No. 29, pp. 61 and 64. (emphasis added)
256 Korea's response to Panel question No. 102, para. 182. (emphasis added)
257 Korea's comments on Japan's response to Panel question No. 92, p. 16.
258 Korea's comments on the Interim Report, para. 154.
259 Korea's comments on the Interim Report, para. 154.

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exporters' "blatantly unfaithful participation" in the underlying review. 260 Thus, Korea asked us to
take account of this alleged "unfaithful participation" when making a finding on whether the
KIA's production capacity determination was inconsistent with Article 11.3 of the Anti -Dumping
Agreement. Korea now explains to us that "Korea was not saying that the KIA drew adverse
inferences from alleged bad faith, but rather Korea was providing context for the findings of the KIA
which identified inaccuracies in the information provided".261 As Korea now explains it, the function
of this "context" of "unfaithful participation" is that it "reveals that the authorities were right not to
just rely on this inaccurate information".262 However, we cannot now uphold the KIA's determination
on the basis of a rationale that is different to that adopted by the KIA. To so do would be to engage
in impermissible ex post reasoning. This is the essence of paragraph 7.167 of the Interim Report,
and we see no compelling reason to revise it. Rather, Korea's arguments in its interim review request
confirm that the Interim Report reached the correct conclusion in (a) the unders tanding that Korea
was requesting us to take account of the Japanese exporters' alleged "unfaithful participation" to
reject Japan's claim and uphold the KIA's determination on production capacity; and (b) in
concluding that the KIA did not, however, base its determination on any findings related to the
"unfaithful participation" of the Japanese exporters.
2.170. Further, Korea contends that, contrary to the approach of paragraph 7.172 of the
Interim Report, the USITC report "directly confirms the very disingenuous nature of the Japanese
respondents' participation in the third sunset review, which should at least bear some relevance in
the Panel's factual findings about the KIA's scrutiny in respect of its examination of the Japanese
respondents' production capacity calculation".263 However, Korea relitigates matters that are already
addressed in paragraphs 7.170 -7.172 and offers no compelling reason to make a revision. 264
Moreover, Korea again asks us to take into account the "very disingenuous nature" of the Japanese
exporters' behaviour in the third sunset review in order to reject Japan's claims and uphold the
KIA's determination, but we again reiterate that we cannot substitute the KIA's rationale for a new
and different rationale, particularly as Korea explicitly accepts that the KIA never made any findings
on, or drew any inferences from, the alleged "unfaithful participation" of the Japanese exporters.
2.171. In conclusion, Korea offers no compelling reason to make any revisions to
paragraphs 7.165-7.173 of the Interim Report, and we therefore decline Korea's request.
2.38 Paragraph 7.174
2.172. Korea requests the Panel to reconsider paragraph 7.174 of the Interim Report in light of
two factors: (a) Viraj was a fully -cooperating Indian respondent and the KIA nonetheless used
ISSF data for India's production capacity, which shows that the ISSF data was always the starting
point for the KIA; and (b) the pre-hearing November 2016 interim report of the KIA explicitly stated
that the KIA would use the ISSF data, and also conveyed the product scope of that data, which
shows that the Japanese exporters were duly informed of the fact that the KIA was using a parameter
encompassing not just the covered products but also the excluded products and more. 265 Japan
objects to Korea's request, contending that Korea's argument on the pre -hearing interim report
mischaracterizes what that document actually conveyed to the Japanese exporters.266
2.173. We have decided not to grant Korea's request. The argument rela ting to the pre -hearing
interim report is a new argument by Korea. 267 We are unable test the evidence on the pre -hearing
interim report with the parties, which is salient given that the Japanese exporters contested the
pre-hearing interim report as defective for failing to account for their submissions.268 It is unclear to
us what this document represents and whether it was, in fact, defective. In any event,
Korea's argument that this document conveyed the KIA's preferred parameters of the product scope

260 Korea's comments on Japan's response to Panel question No. 106, pp. 50-51.
261 Korea's comments on the Interim Report, para. 158.
262 Korea's comments on the Interim Report, para. 161.
263 Korea's comments on the Interim Report, para. 187. (emphasis original)
264 Korea's comments on the Interim Report, paras. 185-187.
265 Korea's comments on the Interim Report, paras. 190-196.
266 Japan's comments on Korea's comments on the Interim Report, paras. 112-114.
267 This is the first instance, as far as the Panel is aware, in which Korea was relied upon the
KIA's pre-hearing interim report as a vehicle for conveying the relevant production capacity parameters to the
Japanese exporters. Specifically, it is omitted from Korea's arguments and chronology in the following:
Korea's responses to Panel question Nos. 50(a) and 92; and second written submission, para. 211.
268 Japanese exporters' post-hearing opinion, (Exhibit JPN-16.b (BCI)), pp. 10-11.

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

for production capacity is deficient for the same reasons as outlined in paragraph 7.156 of the
Interim Report. Korea has offered no compelling reason to revise the Interim Report on this basis.
2.174. Additionally, Korea has not demonstrated why the posit ion of Viraj – which was an Indian
exporter – is relevant to the present dispute. Korea has not drawn the Panel's attention to any record
evidence concerning what the KIA conveyed to Viraj, nor how Viraj responded. Moreover, according
to the ISSF statistic s submitted by Korea, Viraj represented only a fraction of India's overall
production capacity for stainless steel bars and sections, which stands in contrast to the Japanese
exporters' [[***]] share of Japan's production capacity in the ISSF data. Korea h as offered no
compelling reason to revise the Interim Report on the basis of the position of Viraj.
2.39 Paragraph 7.189
2.175. Korea requests the Panel to reflect, in paragraph 7.189 of the Interim Report, the fact that
the ISSF data was used in the second sunset review without any objection by the interested parties,
and thus constituted the starting point for the third sunset review.269 Japan opposes Korea's request,
contending that the key issue is what information was requested in the third sunset review.270
2.176. We have decided not to grant Korea's request. The fact that the ISSF data was used in the
second sunset review does not obviate the fact that, in the third sunset review, the KIA requested
the Japanese exporters to provide production capacity data for "the product under investigation" in
its initial questionnaire (the 3 June 2016 dumping questionnaire).
2.40 Paragraph 7.190
2.177. Korea requests the Panel to reconsider placing relevance, in paragraph 7.190 of the
Interim Report, on the fact that the Japanese exporters comprised [[***]] of the ISSF's Japan-wide
production capacity data. 271 Korea also requests the Panel to reconsider its reference to a KIA
Commissioner describing the Japanese exporters' production capacity data as "necessary" and to
Korea's remark in its first written submission that this data was "necessary". 272 Japan objects to
Korea's requests, arguing that Korea is inappropriately seeking to change the starting point of the
discussion, and that the reference to the KIA Commissioner's comment indicates that the requested
information was important and necessary to ascertaining Japan's production capacity.273
2.178. We have decided not to grant Korea's requests. First, the fact that the Japanese exporters
comprised [[ ***]] of the ISSF production capacity data shows that the distinction between
countrywide and exporter -specific data is largely irrelevant in the present case. Additionally,
paragraphs 7.187-7.191 of the Interim Report sufficiently examine whether the ISSF data was the
true starting point for the KIA's investigation. Second, the materials about which Korea now
complains, in which the Japanese exporters' production capacity data is described as "necessary",
further indicate the indispensable character of the Japanese exporters' data in the eyes of the KIA.
Korea advances no compelling reason to make any revisions in that regard.
2.41 Paragraph 7.192
2.179. Korea requests the Panel to quote a slightly different aspect of its case when describing its
argument in paragraph 7.192 of the Interim Report.274 Japan makes no comment on Korea's request.
We have decided to grant Korea's request, particularly since it has no impact on the resolution of
the dispute.

269 Korea's comments on the Interim Report, para. 201.
270 Japan's comments on Korea's comments on the Interim Report, para. 116.
271 Korea's comments on the Interim Report, paras. 203-206.
272 Korea's comments on the Interim Report, paras. 207-208.
273 Japan's comments on Korea's comments on the Interim Report, paras. 117-120.
274 Korea's comments on the Interim Report, para. 212.

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

2.42 Paragraph 7.195
2.180. Korea requests th e Panel to include a lengthy recitation of its arguments in
paragraph 7.195.275 We have decided not to grant Korea's request because, in the absence of any
other consideration, Korea's arguments will already be captured in its executive summary.
2.43 Paragraph 7.203
2.181. Korea requests the Panel provide a full summary of Korea's position in paragraph 7.203 in
similar detail to the description of Japan's position in paragraphs 7.201-7.202.276 Korea argues that
the Panel fails to give due regard to Kore a's position presently by collapsing Korea's rebuttal
arguments into the statement that "Korea rejects Japan's argument".277 Japan objects to
Korea's request, arguing that the Panel's summarization of Korea's argument is accurate and
sufficient.278
2.182. We have decided to not to grant Korea's request. Korea requests the Panel to set out in
detail its rebuttal arguments in the introduction to section 7.6. The present section 7.6.1, entitled
"[i]ntroduction and legal standard", is intended to provide a brief review of the applicable provisions
of the Anti-Dumping Agreement, along with a roadmap for the Panel's analysis in the subsequent
sections pertaining to each of the main points of contention. As Japan is the complainant in this
dispute, the nature and substance of its claims necessarily informs the manner in which the Panel
considers it appropriate to structure its analysis, as set out in the introduction. Korea's rebuttal
arguments are examined in detail in the subsequent analysis and Korea has offe red no compelling
reason to additionally include a lengthy recital of its rebuttal arguments in the introduction. In any
event, Korea's rebuttal arguments will already be captured in its executive summary.
2.44 Paragraph 7.204
2.183. Korea requests that the Panel delete or revise the third and fourth sentences of
paragraph 7.204. Korea argues that these sentences do not properly reflect its argument because
"Korea did not agree with Japan on anything and … did not just say that producers are not required
to provide explicit reasons to establish good cause". 279 Japan objects to Korea's request, arguing
that the Panel's summarization of Korea's argument is accurate and sufficient. 280 Japan notes,
moreover, that Korea's own summary will be included in its executive summary.281
2.184. We have decided not to grant Korea's request. Korea states that its first written submission
does not specifically "agree with Japan" nor specifically argue that "explicit reasons" are not required.
We nonetheless consider the summary of Korea's position in the Interim Report to be accurate. First,
Korea has not called into question Japan's assertion that the documents at issue do not contain any
explicit reference to good cause. Accordingly, Korea did not dispute t his point during the
proceedings. Second, Korea responds to Japan's argument that there was no express showing of
good cause by arguing that the submission of redacted documents "implicitly asserts" good cause,
and that this was sufficient for the purpose of Article 6.5.282 Accordingly, paragraph 7.204 correctly
characterizes Korea's argument as being "that the applicants were not required to provide explicit
reasons to establish good cause".283 Additionally, Korea's rebuttal arguments will be captured in its
executive summary.

275 Korea's comments on the Interim Report, para. 213.
276 Korea's comments on the Interim Report, para. 218 (referring to Korea's second written submission,
paras. 288-290).
277 Korea's comments on the Interim Report, para. 218 (referring to Korea's second written submission,
paras. 288-290).
278 Japan's comments on Korea's comments on the Interim Report, para. 125.
279 Korea's comments on the Interim Report, para. 219 (referring to Korea's first written submission,
paras. 421-422).
280 Japan's comments on Korea's comments on the Interim Report, para. 126.
281 Japan's comments on Korea's comments on the Interim Report, para. 126.
282 Korea's first written submission, para. 422.
283 Interim Report, para. 7.204.

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

2.45 Paragraph 7.206
2.185. Japan requests the Panel to delete the second and third sentences of paragraph 7.206 284,
because "[a]s found by the Appellate Body in the EC – Fasteners (China) case, for the investigating
authority to objectively assess whether there had been 'good cause shown' under Article 6.5 … it is
logically required to scrutinize the showing of good cause by the party seeking confidential treatment
of information". 285 Japan additionally requests that footnote 628 (now footnote 626 in the
Final Report) be condensed and incorporated into the body of the text at the end of paragraph 7.206
for consistency between the understanding of the Panel and that of the Appellate Body.286
2.186. Korea objects to Japan's request, arguing that there is no basis for the proposed deletion of
the second sentence of paragraph 7.206, which contains a direct quote from Japan's argument.287
Korea further argues that there is no basis for the de letion of the second sentence of
paragraph 7.206.288 Korea additionally argues that footnote 628 clarifies the relationship between
the Panel's analysis and the Appellate Body Report in Korea – Pneumatic Valves (Japan).289
2.187. We have decided not to grant Japan's request to delete the second and third sentences of
paragraph 7.206. Japan proposes to delete a sentence directly quoting its own argument, as well as
the following sentence stating the Panel's disagreement with Japan's argument. The quotatio n of
Japan's argument, however, is verbatim and thus clearly accurate, as is our description of our
approach to that argument.290 We have also decided not to grant Japan's request to integrate part
of footnote 628 into the text of paragraph 7.206. Japan h as not provided any compelling reason to
make such a revision. Moreover, the present footnote more effectively clarifies the relationship
between the Appellate Body's findings in Korea – Pneumatic Valves (Japan) and the findings in the
present case.
2.46 Paragraph 7.211
2.188. Korea requests the Panel to revise the following sentence in paragraph 7.211 of the
Interim Report: "Korea argues that Korean officials should be assumed to have checked whether the
redacted information in the documents fell into the categories of the Enforcement Rule, and to have
thus discharged the requirement for good cause in Article 6.5."291 Korea requests this be revised as
follows: "Korea argues that Korean officials are bound to follow the law and that they complied with
the law by 'checking' whether certain information fall within any enumerated category specified by
Article 15 of the Enforcement Rules." 292 Korea submits that this revision should be made because
the present summary of its argument in paragraph 7.211 is not accurate as Korea did not state that
"Korean officials should be assumed to have checked".293
2.189. Japan objects to Korea's request, arguing that the Panel's summarization of
Korea's argument is accurate and sufficient. 294 Japan continues that panels do not need to follow
the specific language used by the parties.295 Japan notes, moreover, that Korea's own summary will
be included as an annex.296
2.190. We have decided not to grant Korea's request. The fourth sentence of paragraph 7.211
provides an accurate summary of Korea's argument. Korea argues that the KIA should be assumed
to have checked for good cause. In turn, the reason underlying Korea' s argument in this regard –
i.e. because the KIA officers "are bound to follow the law" – is identified in the second sentence of

284 Japan's comments on the Interim Report, para. 28.
285 Japan's comments on the Interim Report, para. 28 (referring to Appellate Body Report, Korea –
Pneumatic Valves (Japan), para. 5.411).
286 Japan's comments on the Interim Report, para. 31.
287 Korea's comments on Japan's comments on the Interim Report, p. 25.
288 Korea's comments on Japan's comments on the Interim Report, p. 25.
289 Korea's comments on Japan's comments on the Interim Report, p. 25.
291 Korea's comments on the Interim Report, para. 220.
292 Korea's comments on the Interim Report, para. 220.
293 Korea's comments on the Interim Report, para. 220 (referring to Korea's first written submission,
para. 426).
294 Japan's comments on Korea's comments on the Interim Report, para. 127.
295 Japan's comments on Korea's comments on the Interim Report, para. 127.
296 Japan's comments on Korea's comments on the Interim Report, para. 128.

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

paragraph 7.215 of the Interim Report ("Korea argues that the Panel should presume the KIA
investigators acted in compliance with domestic laws, and thus that good cause was properly shown
in accordance with Article 6.5"). Korea has not objected to the characterization of its case in
paragraph 7.215. We see no reason to expand upon the summary of Korea's argument in
paragraph 7.211, but we have made a revision to clarify that the Panel is not directly quoting
Korea's submissions in paragraph 7.211.
2.47 Paragraph 7.217
2.191. Korea requests the Panel to include a reference to Korea's argument that "merely because
certain information is publicly available does not necessarily mean that there is no good cause for
non-disclosure of such information", especially in relation to third party intellectual property
rights.297 Japan objects to Korea's request, arguing that Korea's reference to third party intellectual
property rights is being presented at the interim report stage for the first time, and thus should not
be taken into account by the Panel.298
2.192. We have decided to decline Korea's request. This request concerns Korea's argument that,
while certain information was "public", "good cause" was nonetheless shown for treating it as
confidential because it was subject to a third party's intellectual property rights. 299
Korea's arguments on this point are already addressed in paragraph 7.217 of the Interim Report. In
particular, we have already found in paragraph 7.217 that Korea failed to support these arguments
with sufficient evidence. Korea does not provide any p ersuasive reason to make the requested
revision.
2.48 Paragraph 7.219 and footnote 656
2.193. Korea requests the Panel to remove the finding in footnote 656 (now footnote 654 in the
Final Report) that: "[w]e consider that Korea clearly conceded that Nos. 78-79, 81, 83, and 95-97
are public information."300 Korea argues that its position did not amount to a concession that certain
information was public.301 Korea further requests the Panel remove the finding in relation to items
Nos. 78-79, 81, 83, and 95-97 of Exhibit KOR-35 that Korea: "tacitly conceded that these items had
'already been made public'".302
2.194. Japan objects to Korea's request, arguing that the Panel's summarization of
Korea's argument is accurate and sufficient. 303 Japan continues that panels do not need to follow
the specific language used by the parties.304
2.195. We have decided to decline Korea's requests. In footnote 656, the Panel analysed
Korea's statements in relation to whether items Nos. 78 -79, 81, 83, and 95 -97 were pub lic and
concluded that "Korea clearly conceded that Nos. 78-79, 81, 83, and 95-97 are public information".
By quoting Korea's statement that these items had "already been made public", and that Japan
"already has full access to the information", footnote 6 56 of the Interim Report shows that Korea
clearly did make a concession that the relevant information was public. 305 Footnote 656 also
addresses Korea's subsequent attempts to provide an alternative explanation, and concludes that
"Korea's later attempts to clarify the meaning of 'publicly available' were incomplete and
unsupported by evidence".306 While Korea disagrees with the Panel's finding, it offers no compelling
reason to revise footnote 656. For the same reasons we do not consider Korea to have of fered any
compelling reason to revise paragraph 7.219.

297 Korea's comments on the Interim Report, para. 221.
298 Japan's comments on Korea's comments on the Interim Report, para. 130.
299 Korea's response to Japan's Article 6.5.1 allegations, (Exhibit KOR-35), Nos. 10, 15-16, 19, 40,
and 44-45.
300 Korea's comments on the Interim Report, para. 221.
301 Korea's comments on the Interim Report, paras. 221-222.
302 Korea's comments on the Interim Report, paras. 221-222.
303 Japan's comments on Korea's comments on the Interim Report, para. 131.
304 Japan's comments on Korea's comments on the Interim Report, para. 131.
305 Interim Report, fn 656 (referring to Korea's response to Japan's Article 6.5.1 allegations,
(Exhibit KOR-35), Nos. 78, 83, and 95-97).
306 Interim Report, fn 656 (referring to Korea's response to Panel question No. 108, para. 231).

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

2.49 Paragraph 7.221
2.196. Korea requests the Panel to provide specific findings in relation to four different groupings
identified by Korea of the 102 items of information challenged by Japan. 307 Korea also argues that
the Panel's finding that "the fact of the existence of the aforementioned system of checking does
not, in and of itself, provide a sufficient rebuttal to Japan's claims" puts the burden of proof onto
Korea.308 Additionally, Korea considers that there is no basis for a finding that there were "manifest
inadequacies" in certain individual items as the individual items challenged by Japan "are left largely
unaddressed in the Panel's interim report".309 Finally, Korea argues that it did not simply rely on the
KIA's system to defend the confidential treatment, but also "for each of such instance, how under
such system the KIA has complied with Article 6.5 of the Anti -Dumping Agreement by confirming
the 'good cause shown' by the submitter of the information".310
2.197. Japan objects to Korea's request, arguing that Korea's claim that the Panel shifts the burden
of proof mischaracterizes the Panel's finding.311
2.198. We have decided to decline Korea's request. First, the Panel's finding does not unduly shift
the burden of proof onto Korea. The analysis rather concludes that Korea's explanation of the
KIA's system in this particular case is an ineffective rebuttal to Japan's claims because of the
"manifest inadequacies" identified in the KIA's treatment of the confidential information. 312 Japan
still bore the onus of proving its case. In particular, paragraphs 7.215 and 7.216 of the
Interim Report already describe how Japan set out to prove its case, and paragraph 7.221 concludes
that Japan did indeed establish its case in this regard. 313 We therefore see no reason to revise
paragraph 7.221 of the Interim Report on the basis of an undue shifting of the burden of proof onto
Korea.
2.199. Second, the basis for the finding of "manifest inadequacies" is clearly found in the preceding
four paragraphs, which analyse in detail a substantial number of cases that indicate that the KIA
failed to adequately check the redacted information (paragraph 7.217 addressing items
nos. 10, 15-16, 19, 40, and 44-45; paragraph 7.218 addressing items nos. 14, 46, and 65; and
paragraph 7.219 addressing nos. 78 -79, 81, 83, and 95 -97). Korea has not demonstrated that a
revision to paragraph 7.221 is warranted on this basis.
2.200. Third, Korea did rely on the KIA's system to defend the KIA's treatment of the challenged
items of information as confidential, and Korea's item-specific "grounds for redaction" did not
comprise a separate rebuttal in this regard. As there is no record information concerning the
KIA's actual reasoning for according confidential treatment to each individual item challenged by
Japan, the item -specific "grounds for redaction" provided by Korea during the proceedings are
necessarily imputed to be the grounds that the KIA would have ide ntified through its system of
checking. Accordingly, and contrary to the argument that Korea now seems to make, there is no
basis for treating the item-specific "grounds for redaction" provided by Korea as a separate rebuttal
vis-à-vis the existence and operation of the KIA's system of checking. To find the contrary – that is,
to treat Korea's item-specific "grounds for redaction" as a separate rebuttal – would lead to the
acceptance of impermissible ex post reasoning. This is because of the absence of reco rd evidence
that the item -specific "grounds for redaction" now provided by Korea in these proceedings were
indeed the grounds that the KIA actually relied upon in the underlying review (that is, separate from
its system of checking whether there is "good c ause" vis-à-vis the categories in the
Enforcement Rule). Accordingly, we see no reason to revise paragraph 7.221 on the basis that
Korea's item-specific "grounds for redaction" comprised a separate rebuttal to its reliance on the
KIA's system of checking.

307 Korea's comments on the Interim Report, paras. 223-225.
308 Korea's comments on the Interim Report, para. 223.
309 Korea's comments on the Interim Report, para. 224.
310 Korea's comments on the Interim Report, para. 223.
311 Japan's comments on Korea's comments on the Interim Report, para. 132.
312 Interim Report, para. 7.221.
313 Interim Report, para. 7.221.

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

2.50 Paragraph 7.222
2.201. Japan requests the Panel to delete the last sentence of paragraph 7.222 of the
Interim Report, which states: "[r]ather, we see merit in the general approach adopted by the KIA
to protecting confidential information". Japan arg ues that the last sentence should be deleted
because the Panel, having clarified that its findings were limited, does not need to "go further and
make such a broad comment about Korea's 'general approach'".314
2.202. Japan requests alternatively that we replace the last sentence of paragraph 7.222 with the
following language: "[r]ather, we see merit in Korea's allegation that an 'implicit assertion' of good
cause may be allowed for certain information depending on the circumstances of the case as
described above". Japan proposes alternative language "to avoid the overly broad implications" of
the present language if the Panel is unwilling to simply delete the last sentence.315
2.203. Korea objects to Japan's request, arguing that the "Panel is entitled t o find merit in the
general approach adopted by the KIA to protecting confidential information based on an
'Enforcement Rule'".316 Korea further argues that the proposed alternative language should also be
rejected on the basis that it distorts the Panel' s findings, which was not confined to "certain
information and instances".317
2.204. We have decided to decline Japan's request to delete the last sentence of paragraph 7.222.
In view of the nature of Japan's claims and Korea's rebuttal, we consider it important to clarify that
our findings under Article 6.5 of the Anti -Dumping Agreement should not be understood as casting
doubt over whether the general approach adopted by the KIA to protecting confidential information
is capable of operating in a manner consistently with Article 6.5.
2.205. We further decline to replace the last sentence of paragraph 7.222 with Japan's proposed
alternative language because this alternative language is inaccurate. Neither Korea nor the Panel
gave consideration to whether an "implicit assertion" of good cause would be limited to "certain
information".
2.51 Paragraphs 7.229 and 7.230
2.206. Japan requests extensive additions to paragraphs 7.229 -7.230 to convey that the
cumulation-based assessment was not alone capable of s upporting the KIA's overall
likelihood-of-injury determination. While Japan does not disagree with the Panel's finding, it argues
that its proposed revisions are necessary to provide sufficient factual findings for the Appellate Body
to complete the legal analysis if the Panel's decision to exercise judicial economy over the issue of
cumulative assessment is overturned on appeal. 318 Japan specifically raises a concern that Korea
may argue in later proceedings or on appeal that the KIA's ultimate conclusion was not exclusively
based on the Japan -specific analysis, and that the KIA's cumulative assessment provides a
standalone basis for upholding the KIA's ultimate conclusion.319
2.207. Japan also suggests that the Panel complete the analysis because "the P anel already found
in essence that Japanese imports cannot be assumed to interact or compete with the domestic like
products in the Korean market" and thus that "the Panel can easily find that the use of cumulative
assessment lacks a sufficient factual basis and that there is no unbiased and objective determination
under Article 11.3".320
2.208. Korea objects to Japan's request, arguing that Japan tries to rewrite the Panel's findings and
seeks to have the Panel make findings on various issues that it never made.321

314 Japan's comments on the Interim Report, para. 33.
315 Japan's comments on the Interim Report, para. 34.
316 Korea's comments of Japan's comments on the Interim Report, p. 26.
317 Korea's comments of Japan's comments on the Interim Report, p. 26.
318 Japan's comments on the Interim Report, para. 36.
319 Japan's comments on the Interim Report, para. 37.
320 Japan's comments on the Interim Report, para. 39.
321 Korea's comments on Japan's comments on the Interim Report, p. 29.

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

2.209. We have decided to decline Japan's requests to revise paragraphs 7.229 -7.230 of the
Interim Report. As we understand it, Japan's requests concern two discrete matters. Japan first
indicates that it wishes the Panel to further explain t he exercise of judicial economy over
Japan's claim concerning cumulation. Japan continues, however, to argue that the Panel should
simply find in Japan's favour on this issue.
2.210. We see no reason to reverse our decision to exercise judicial economy ov er Japan's claim
concerning cumulation and to instead examine the merits and find in favour of Japan. Contrary to
Japan's contention, such a finding has not already been made "in essence", and an examination on
the merits would require substantial additional analysis, contrary to our decision to exercise judicial
economy over this claim. We note that Japan's proposed clarifications in paragraphs 7.229 -7.230
are actually substantive arguments not reflecting findings by the Panel elsewhere in the
Interim Report.
2.211. We also do not consider it necessary to provide additional explanation for the exercise of
judicial economy over this claim. As the analysis makes clear, the KIA's ultimate likelihood-of-injury
determination did not turn on the KIA's cumulative assessment.322 We therefore consider it
sufficiently clear in paragraphs 7.229-7.230 that, based on our findings on the structure and content
of the KIA's ultimate likelihood-of-injury determination, the KIA's cumulative assessment did not
alone sustain the KIA's ultimate likelihood -of-injury determination, nor can it now provide a
standalone basis to justify that ultimate determination. Rather, as explained in
paragraphs 7.229-7.230, as well as in paragraphs 7.116-7.119 regarding the drop in Japanese prices
and 7.177-7.183 regarding Japan's capacity utilization rate, the KIA's Japan-specific findings were
integral to its ultimate likelihood -of-injury determination and thus to its renewal of anti -dumping
duties on the Japanese products.323 Our findings in this regard on the content and structure of the
KIA's ultimate likelihood -of-injury determination concern how, as a factual matter, this ultimate
determination should be construed. Japan has not provided any compelling grounds for its concern
that this fa ctual finding on the content and structure of the KIA's ultimate determination may be
overturned on appeal. A panel would be unable to ever exercise judicial economy if it was required
to complete the analysis on each issue in view of the mere possibility that a finding – not least, a
factual finding – could be reversed on appeal, as Japan seems to suggest. In view of the foregoing,
we see no reason to make any revisions to paragraphs 7.229-7.230 of the Interim Report.
2.52 Paragraphs 7.234 and 7.235
2.212. Japan requests the Panel to complete the analysis of Japan's claim that Korea failed to
disclose certain essential facts in paragraphs 7.234 -7.235 of the Interim Report. 324 Japan argues
that the Panel should not exercise judicial economy because (a) the "rationale explained by the Panel
for the use of judicial economy over these claims has the effect of rendering practically useless any
'as applied' claim under Article 6.9 in conjunction with substantive claims"; and, (b) "[a]ccepting a
substantive clai m should not prevent the Panel from also addressing 'as applied' claims under
Article 6.9, and thus providing guidance to the parties for future stages in the proceeding".325
2.213. Korea objects to Japan's request, arguing that the Panel is entitled to exercise judicial
economy if it is of the view that there is no need to address the claim under Article 6.9 in light of
the findings under the substantive provisions at issue.326
2.214. We have decided not to grant Japan's request. We consider that a panel need only address
those claims that must be addressed in order to resolve the matter in issue in a dispute. As explained
in paragraphs 7.234 -7.235, the question of whether all essential facts were disclosed on a given
matter is irrelevant if, due to a substantive finding of inconsistency, a subsequent reinvestigation to
comply with that inconsistency would necessarily require a renewed factual assessment of the given
matter. Japan does not identify any issues that the Panel failed to consider in deciding to exercise
judicial economy over its claims under Article 6.9. The Panel's exercise of judicial economy is specific
to the facts of the case and does not render procedural claims "useless". More so, a specific finding

322 Interim Report, paras. 7.116-7.119, 7.177-7.183, and 7.229-7.230.
323 Interim Report, paras. 7.116-7.119, 7.177-7.183, and 7.229-7.230.
324 Japan's comments on the Interim Report, paras. 41-43.
325 Japan's comments on the Interim Report, para. 41.
326 Korea's comments on Japan's comments on the Interim Report, p. 34.

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by the Panel is not nece ssary to guide the parties as they are already directed by Article 6.9 as to
the requirement to disclose essential facts.
2.53 Paragraph 8.1
2.215. Korea requests the Panel to reflect its findings from paragraphs 7.109, 7.110, 7.126,
and 7.222 of the Interim Report in the "Conclusions and Recommendations" section.327 Japan objects
to Korea's request, arguing that there is no need to summarize all secondary findings in the
"Conclusions and Recommendations" section.328
2.216. We have decided not to grant Korea's request. First, paragraphs 7.109 -7.110 pertain to
outcomes on arguments and not findings on claims. This understanding is consistent with the
Panel's explanation at paragraph 7.60 of the Interim Report. The conclusion on the relevant claim
covering paragraphs 7.109-7.110 is contained in paragraph 8.1(b)(i). Second, paragraph 7.126 is
clearly referenced in paragraph 8.1(b)(iii). Third, paragraph 7.222 does not contain a finding on a
claim. The finding on the relevant ("as applied") claim is already referenced in paragraph 8.1(d)(i).
2.217. We are nonetheless content to recognize that the following paragraphs contain aspects that
were favourable to Korea's case:
a. Paragraph 7.109: Based on the material before us, Japan has not established the existence
of a reliable relationship between pricing levels and the categorization of a product as
general-purpose steel (grades 304 and 316) or special steel (all others). On the contrary,
the uncontested record evidence indicates that Japanese general -purpose steel was in a
different price bracket to general-purpose steel from other sources and was, according to
the applicants, "only general in name, but ha[s] particular specification or size and are
mostly products that are not competitive". Moreover, accord ing to the pricing data
submitted by Korea, it was not the case that special steel was necessarily higher -priced
and general-purpose steel was necessarily lower priced during the POR.329
b. Paragraph 7.110: Therefore, Japan has not established a prima facie case that the KIA
erred by failing to undertake an analysis that differentiated between general-purpose and
special steel when examining the consequences of the drop in Japanese prices upon
removing the anti -dumping duties. We consequently find that Jap an has failed to
demonstrate that the KIA acted inconsistently with Article 11.3 of the
Anti-Dumping Agreement on this point. For the avoidance of doubt, our conclusion in this
regard should not imply a broader finding on the existence or utility of the al leged
distinction between general -purpose steel and special steel, nor on the degree of
competitive overlap in the product mixes of the relevant countries.
c. Paragraph 7.126: We therefore find that Japan has failed to demonstrate that the KIA
acted inconsistently with Article 11.3 of the Anti -Dumping Agreement regarding the cost
of raw materials and the weak demand in the domestic and export markets. Having
reached this finding, we need not address the parties' arguments and rebuttals on the
precise circumstances and manner in which an authority may be required to examine other
known injury factors under Article 11.3, including whether there is a difference between
recurrence and continuation determinations in that regard.
d. Paragraph 7.222: We emphasize t hat our finding is confined to the particular redactions
challenged by Japan in the review at issue in these proceedings. We reiterate that, in our
view, Japan has not demonstrated that the KIA's system for protecting information as
confidential is incapable of operating in a manner consistently with Article 6.5. Rather, we
see merit in the general approach adopted by the KIA to protecting confidential
information.

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ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 First integrated executive summary of the arguments of Japan 63
Annex B-2 First integrated executive summary of the arguments of Korea 74
Annex B-3 Second integrated executive summary of the arguments of Japan 84
Annex B-4 Second integrated executive summary of the arguments of Korea 94

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ANNEX B-1
FIRST INTEGRATED EXECUTIVE SUMMARY OF
THE ARGUMENTS OF JAPAN
I. Introduction

1. Through its first written submission, opening and closing statements at the first panel meeting
as well as its responses to the Panel 's questions, Japan has established that Korea 's continued
imposition of anti -dumping duties upon Japanese stainless steel bars does no t comply with its
obligations under the General Agreement on Tariffs and Trade 1994 ("GATT 1994") and the
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
("Anti-Dumping Agreement").

II. Korea's Anti-Dumping Measures on Stainless Steel Bars from Japan Are Inconsistent
with Article 11.3 of the Anti-Dumping Agreement

A. Legal Standards under Article 11.3 for the Imposition and Maintenance of an
Anti-Dumping Duty

2. Although Article 11.3 of the Anti -Dumping Agreement does not require the investigating
authority to establish a causal link between the past dumping and injury anew in a sunset review, it
does require that the investigating authority establish a causal "nexus" between the "expiry of the
duty" and "continuation or recurrence of dumping and injury" that allows the authority to reasonably
"determine" the existence of a causal link between dumping and injury.

3. Article VI:1 of the GATT 1994 states that dumping "is to be condemned if it causes or threatens
material injury to an established industry in the territory of a [Member] or materially retards the
establishment of a domestic industry", and Article VI :2 of the GATT 1994 provides that a Member
may levy an anti -dumping duty "[i]n order to offset or prevent dumping". Article VI :6(a) of the
GATT 1994 further provides that no anti-dumping duty shall be levied unless the importing Member
"determines that the effect of the dumping … is such as to cause or threaten material injury to an
established domestic industry, or is such as to retard materially the establishment of a domestic
industry". Thus, as the Appellate Body found in US – Anti-Dumping Measures on Oil Country Tubular
Goods, Article VI of the GATT 1994 "establishes the fundamental princ iple that there must be a
causal link between dumping and injury to a domestic industry, if an anti -dumping duty is to be
levied on a dumped product" and "further establishes that the purpose of an anti -dumping duty is
to counteract dumping that causes injury". In other words, anti-dumping duties can be imposed on
imports from a certain Member only if dumping of such imports from that country causes material
injury to the domestic industry. Considering also that anti -dumping duties are, according to
Article VI:2 of the GATT 1994, imposed "[i]n order to offset or prevent dumping" and are not
imposed as penalties for past dumping actions, this principle necessarily also means that, if dumped
imports cease to exist or if dumped imports cease to cause injury to the domestic industry and,
therefore, there is accordingly no longer a need to "offset or prevent dumping", no anti -dumping
duty can be imposed.

4. Article 11.1 of the Anti-Dumping Agreement also confirms that this is an overarching principle
for the review procedure, providing that "[a]n anti-dumping duty shall remain in force only as long
as and to the extent necessary to counteract dumping which is causing injury". In this regard, the
Appellate Body in US – Anti-Dumping Measures on Oil Country Tubular Goods also found that this
principle, provided in Article 11.1 of the Anti-Dumping Agreement, "applies during the entire life of
an anti-dumping duty. If, at any point in time, it is demonstrated that no injury is being caused to
the domestic industry by the dumped imports, the rationale for the continuation of the duty would
cease".

5. In essence, as the Appellate Body appropriately described in US – Anti-Dumping Measures on
Oil Country Tubular Goods, a causal link between dumping and injury to the domestic industry is
necessary for both the imposition and the maintenance of an anti -dumping duty under the
Anti-Dumping Agreement.

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6. This means that it is a fundamental principle in anti -dumping procedures under Article VI of
the GATT 1994 and the Anti -Dumping Agreement that anti -dumping duties can be imposed on
imports from a Member only if dumping from that Member causes material injury to the domestic
industry.

7. Accordingly, a determination of likelihood of injury should not be based on a mere assumption
made from the past affirmative injury determinations, including the most recent one. Rather, a
likelihood-of-injury determination should be based upon positive evidence and a sufficient factual
basis that allows the authority to draw a reasoned and adequate conclusion pertaining to the relevant
period of investigation ("POI"). The Appellate Body in US – Oil Country Tubular Goods Sunset
Reviews found that these requirements set forth in Article 3.1 of the Anti-Dumping Agreement are
"equally relevant" to the likelihood -of-injury determination in a sunset review which is undertaken
by the investigating authorities under Article 11.3 of the Anti -Dumping Agreement. Also, it should
be recalled that, in light of the forward-looking nature of sunset reviews, every determination therein
must stand on its own and supersede the prior determinations. When an investigating authority uses
information and findings from past proceedings, it must be ensured that those i nformation and
findings are actually applicable to the POI of the sunset review.

8. Otherwise, an anti -dumping duty could be maintained even if the sunset determination left
open a possibility that the likely dumped imports from a certain Member would not in fact cause
material injury to the domestic industry.

B. Critical Deficiencies of the Likelihood -of-Injury Determination by the
Korean Investigating Authorities

9. The likelihood-of-injury determination by the Korea Trade Commission ("KTC") and the Office
of Trade Investigation ("OTI") ("Korean Investigating Authorities") does not meet the requirements
of Article 11.3 of the Anti -Dumping Agreement. The Korean Investigating Authorities based their
determination on an insufficient assessment of the interactions through the market competition
among the likely dumped imports from each country and the domestic like products, and they failed
to consider other factors that may have effects on the injury to the domestic industry, in particular
third country imports, in the analysis of the effects of likely dumped imports.

10. These failures contravene the fundamental principle that anti-dumping duties can be imposed
on imports from a Member only if dumping from that Member causes material injury to the domestic
industry. Therefore, these failures mean that the Korean Investigating
Authorities' likelihood-of-injury determination at issue is not based upon "positive evidence" and an
"objective examination" and lacks a "sufficient factual basis" that allows the investigating authority
to draw a "reasoned and adequate conclusion", and thus is inconsistent with Article 11.3 of the
Anti-Dumping Agreement.

1. The Korean Investigating Authorities ' Findings Regarding the Propriety
of Using Cumulative Assessment

a. Introduction

11. It should be noted that Article VI of the GATT 1994 clearly indicates that the causal link
between dumped imports and injury to the domestic industry must be examined and found to exist
on a country-by-country basis, and accordingly, that the use of cumulative assessment should not
be permitted to cause a false attribution of injury to the domestic industry to dumped imports from
a country whose imports do not actually cause such injury. The first sentence of Article VI :1 of the
GATT 1994 defines dumping as "products of one country … introduced into the commerce of another
country at less than the normal value of the products". (emphasis added) The same sentence also
provides that dumping "is to be condemned if it causes … material injury" to the domestic industry.
(emphasis added) Article VI :6(a) of the GATT 1994 further states that "[n]o [Member] shall levy
any anti-dumping … duty on the importation of any product of the territory of another [Member]
unless it determines that the effect of the dumping … is such as to cause or threaten material injury
to an established domestic industry, or is such as to retard materially the establishment of a domestic
industry". (emphasis added) Thus, the determination of a causal link between "dumping", as defined
on a country-by-country basis, and injury to the domestic industry, is required for the imposition or
continued imposition of anti-dumping duties. For sunset reviews, this means that a nexus between
the expiry of the anti-dumping duties and the continuation or recurrence of injury must be found on

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a country-by-country basis, namely, that the dumped imports from a particular country that would
be likely to continue or recur are the cause of the injury. If such a nexus cannot be found regarding
the imports of a particular country, specifically, then a causal link between dumping and injury to
the domestic industry also cannot be reasonably assumed, and thus, anti -dumping duties against
such dumped imports cannot be maintained. In oth er words, regardless of whether the proceeding
at issue is an original investigation or a sunset review, Article VI of the GATT 1994 does not allow
attribution of injury to the domestic industry to dumped imports from a specific Member if those
dumped imports do not in fact cause material injury.

12. In deciding that they may cumulatively assess the imports from Japan, India, and Spain, the
Korean Investigating Authorities relied upon factual findings and conclusions made in prior
investigations. As already discussed, a mere assumption based on the existence of an affirmative
determination or findings in previous proceedings cannot be sufficient, since the relevant
circumstances, including market situation, may have changed meaningfully since the time of the last
determination.

13. If there has been meaningful change from a previous proceeding, the investigating authority
cannot rely on the finding from such previous proceeding as such, regardless of whether the finding
was accurate at the time it was made. In such cases, the extent to which the investigating authority
can rely on a previous finding may depend on the degree of the changes since the previous
proceeding. This is because such changes impact whether or not the prior findings are still applicable
in the current investigation, regardless of whether the finding was accurate at the time it was made.

14. Accordingly, the Korean Investigating Authorities should have assessed whether or not such
meaningful changes had taken place between the time the findings they sought to use were rendered
and the current POI. However, the Korean Investigating Authorities did not sufficiently examine
whether or not such changes took place.

15. The Korean Investigating Authorities stated that they found cumulative a ssessment to be
appropriate for the following three reasons: (a) the Korean Investigating Authorities had used
cumulative assessment in the original investigation and in the first and second sunset reviews;
(b) the physical characteristics, manufacturing p rocess, distribution market, uses, and consumer
evaluation, etc. of the product under investigation and the domestic like products were the same as
or similar to those at the time of the original investigation; and (c) allegedly, the competitive market
environment had not changed since the second sunset review. Notably, in reaching their finding on
point (c), the Korean Investigating Authorities found only two facts: (i) the import proportion of
general-purpose products from Japan, the import proportion of Indian special steels, and the
production proportion of special steel produced by the domestic industry maintained a similar level
during the POI, and (ii) the proportion of the import volume of the product under investigation to
the total import volume in 2013 and 2015 were similar.

16. However, the Korean Investigating Authorities did not explain what these statements meant
in any more detail, nor did they provide information on the data that they used to make such
findings. As a result, it is not possib le to discern whether or not the Korean Investigating
Authorities' statements regarding the lack of change since the prior investigations are properly
founded, or even what ranges of products from which countries the Korean Investigating Authorities
were comparing to draw these conclusions. In fact, the record in the sunset review at hand shows
that there have been significant changes in both the competitive environment and the products at
issue.

b. Lack of justification for reliance upon findings in the previous investigations

17. In this case, there have been drastic changes which have accumulated over the long period
from the original investigation through the following three reviews, which has lasted for over
15 years, some of which d irectly contradict the unsupported conclusions stated by the
Korean Investigating Authorities. It would be necessary to examine the changes that have taken
place since the original investigation in order to properly rely upon the findings in the original
investigation.

18. In particular, the market interaction among the relevant products (i.e. the product under
investigation imported from the several subject countries and the domestic like products) has
changed significantly due to the change in their product mixes, such tha t there is the lack of

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substantial overlap in the competitive relationships among the Japanese imports, the Indian imports
and the domestic like products. As a result, cumulative assessment is now (if it ever was) no longer
appropriate, because the product under investigation from the several subject countries does not
have a "cumulative" effect on the Korean industry, if they do have an effect. There have also been
significant changes in the levels of imports from third countries, which has altered the mar ket
situation in Korea.

19. These changes in the underlying situation regarding the market and the products were obvious
from the record before the Korean Investigating Authorities, but the Korean Investigating Authorities
simply relied upon the prior inv estigations' findings without examining such changes appropriately
nor providing any reasons why they still could rely on the previous findings despite such changes.

20. Furthermore, aside from such changes in the underlying situation regarding the market and
the products, the evidence on record shows substantial differences in price among the allegedly
dumped imports from Japan, those from India, and the domestic like products, and differences in
the respective proportions of special steel and general-purpose steel within them, which indicate the
lack of substantial overlap of competitive relationships among different segments of the product
under investigation from different countries. In such circumstances, the Korean Investigating
Authorities could not have relied on findings in prior proceedings to rely upon a cumulative
assessment without properly examining the aforementioned facts that seemed to conflict with such
prior findings and that indicated the lack of substantial overlap of competitive relatio nships due to
the differences of product mix and of price levels.

21. In addition, the prior investigations did not provide sufficient support for the use of a
cumulative assessment because the prior investigations did not sufficiently examine the factors
relevant to the propriety of the use of a cumulative assessment that were raised in the sunset review
at issue by the Japanese producers that responded to the review ("Japanese Respondents"). In the
face of reasonable objections by the interested parties, the factors relevant to the use of a cumulative
assessment needed to be assessed, regardless of the fact that they had not been properly addressed
in the previous proceedings.

22. Additionally, due to the enlargement of the scope of products excluded from the product under
investigation over the past sunset reviews, the prior investigations used a differently defined product
under investigation. Therefore, there is inherently a difference in the scope of the products which
were examined in prior investigations compared to those being at issue in the current investigation.
Accordingly, the Korean Investigating Authorities should have examined, in light of the re -defined
product scope of the third sunset review, whether the different grades - in particular the categories
of general-purpose steel and special steel - interacted in the market or not. This issue was also
unaddressed by the Korean Investigating Authorities, although the necessity for an examination of
the prior findings and their evide ntiary bases is particularly true in this case, where the evidence
and findings in the current review conflict with the findings made in the previous proceeding.

c. Insufficiency of the Korean Investigating Authorities' Analysis of
Competitive Relationships in the Current Period of Investigation

23. Finally, apart from the failure to address the changes between the prior investigations and the
sunset review at issue, the Korean Investigating Authorities' findings related to the current POI are
likewise in sufficient to support the decision to use a cumulative assessment. The
Korean Investigating Authorities made only a very few findings regarding the POI. Namely, the
Korean Investigating Authorities found that the product under investigation and the domesti c like
products in the sunset review at issue were similar to those in the original investigation in terms of
their physical characteristics and other attributes and that the conditions of competition had not
changed since the second sunset review. However , both of these findings rely upon a comparison
with the prior investigations ' findings which the Korean Investigating Authorities could not rely on
for the reasons discussed above, to derive meaning. Accordingly, the Korean Investigating
Authorities did not make any meaningful findings regarding the facts of the current POI which could
stand alone.

24. In addition, the Korean Investigating Authorities ' evaluation of the propriety of cumulative
analysis of the Japanese, Indian, and Spanish product under investigation was inappropriate because
the authorities did not engage in a sufficient analysis of the competitive relationships among the

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product under i nvestigation from the several subject countries and between the product under
investigation and the domestic like products.

25. If the likely dumped imports from each exporting country in an investigation do not have any
substantial overlap in their comp etitive relationships with each other, or with the domestic like
products, the investigating authority may not be able to provide a reasonable explanation to justify
the use of cumulative assessment to conclude that all of the likely dumped imports from the several
different countries will likely cause material injury to the domestic industry. Such an affirmative
finding through cumulative assessment leaves open a possibility that the likely dumped imports from
one country were the sole cause of the materia l injury to the domestic industry, and thus the
authority cannot reasonably attribute the material injury to the products from the other countries.

26. In the sunset review at issue, there were significant differences in terms of grades, product
mixes and price levels among the product under investigation from the several subject countries
and between the product under investigation and the domestic like products which indicated the lack
of substantial overlap of competitive relationships among them.

27. Specifically, the published reports demonstrate that there were clear price differences among
the relevant products from the several subject countries and the domestic like products. This fact
indicated that there is a possibility that (i) even within the same grade, Japanese stainless steel bars
are higher priced because of the difference of quality and consequently the lack of substitutability
with other lower -priced products and/or (ii) Japanese stainless steel bars contain a higher
percentage or proportion of high-priced grades.

28. The substantial price differences between products from different sources, in particular for
products that are material input used by cost-sensitive industrial users, should be viewed as strongly
indicative that these pro ducts are serving different market needs. The Appellate Body
Report's findings support this conclusion. In China – HP-SSST (Japan) / China – HP-SSST (EU), the
Appellate Body found that when the evidence on the record indicates the existence of different types
of products, with different prices, the investigating authority cannot disregard such evidence;
otherwise, it cannot conduct an objective examination.

29. In this regard, Korea argues that its finding of "likeness" for the purpose of defining the
domestic like products proves that the products at issue were in competition with one another such
that there was no need to separately assess the competitive relationships between them. However,
the "likeness" analysis does not actually provide such proof. In fact, previous panels, such as the
panel in China – Autos (US) and the panel in China – X-Ray Equipment, have repeatedly rejected
arguments that an investigating authority could use a finding of "likeness" as a substitute for the
more careful required analysis of assessing the actual competitive impact of the imported products.
When considering "likeness", the investigating authority is not required to examine the conditions
of competition between the allegedly dumped imports and the domestic like products, or to examine,
in particular, competition which may exist between each of the sources of dumped imports and the
domestic like products.

30. Nor does Korea's examination of the trends in the product mixes suffice as an examination of
the competitive relationships between the relevant products. The product mixes are merely
snapshots of the relative proportions at a given point in time and are essentially irrelevant to whether
general-purpose steel and special steel have market interaction and are in a competitive relationship
or not. The proportion of import volumes of general -purpose steel and special steel could change
because of shifting demand, which has nothing to do with the degree of competitive relationship
among the different product segments.

31. One of the most relevant factors in analysing a competitive relationship is whether the
products are substitutable for purchasers. The Korean Investigating Authorities focused on
examining the Japanese producers' production capacities and the alleged adaptability of production
facilities between stainless steel bars and other steel products, and did not analyse the
substitutability of the products from the purchasers ' perspective. In other words, the
Korean Investigating Authorities focused on analysing production side information and did not
address demand side information or the competitive relationship in the market between and among
the product under investigation and the domestic like products. However, the ability to produce a
certain quantity of products is a fundamentally different concept from whether and how those
products actually compete with each other in the market, and whether the products are commercially

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interchangeable with each other for purchasers. In fact, the price diffe rences between the product
under investigation from the several subject countries suggests that the products were not
substitutable, and most notably, the record shows that a Korean purchaser stated at the public
hearing that price was the most important f actor in making purchase decisions for stainless steel
bars. This in turn suggests that the higher priced Japanese products are not substitutable with the
lower priced products from other sources, as they would not be competitive in Korea.

2. The Korean Investigating Authorities' Findings Regarding the Production
and Export Capacities of the Japanese Respondents

32. The Korean Investigating Authorities' determination of likelihood of injury is not supported by
"positive evidence" or an "objective examinat ion" also because it is based on improperly made
findings regarding the production capacities and export capacities of the Japanese Respondents.

33. The Korean Investigating Authorities based their findings regarding the production capacities
and export capacities of the Japanese Respondents upon data from the International Stainless Steel
Forum ("ISSF"), which showed a much larger production capacity for the Japanese Respondents,
rather than the data that the Korean Investigating Authorities requested from and were provided by
the Japanese Respondents. Those data provided by the Japanese Respondents was direct and to the
point in assessing the production capacities and export capacities of the Japanese Respondents.
However, the Korean Investigating Authori ties did not provide sufficient reasons for their rejection
of the Japanese Respondents' data, nor did they provide sufficient reasons why the ISSF's data was
reliable, despite there being obvious aspects of it which put its suitability in doubt.

34. As reasons for rejecting the Japanese Respondents' data, the Korean Investigating Authorities
merely stated that the Japanese Respondents' data was significantly different from that of the ISSF,
that the calculation methodologies used for their production cap acity data varied between the
Japanese Respondents, that two of the Japanese Respondents were members of the ISSF, that the
ISSF's data addressed the production capacity of stainless steel bar mills, that the Japanese
Respondents allegedly prevented the Ko rean Investigating Authorities from performing on -site
verification by not responding to the dumping investigation, and that the investigating authority of
another Member, namely, the United States, also used the ISSF 's data in making its findings.
However, none of these facts provided a sufficient factual basis for the Korean Investigating
Authorities to reject the data from the Japanese Respondents.

35. The Japanese Respondents provided the Korean Investigating Authorities with explanations
regarding all of their expressed concerns. Namely, the Japanese Respondents explained that the
ISSF's data was different (and larger) in part because it included products which were not part of
the product under investigation. The ISSF 's data was also base d on rough estimates, as the ISSF
did not have direct data on the production capacities of the Japanese Respondents, and the
ISSF's data did not take into account bottlenecks in processing capacities due to the Japanese
Respondents' capacity limits for sec ondary processing. The calculation methods used by the
Japanese Respondents were also fully explained by them in their submissions to the Korean
Investigating Authorities, and the differences reflected slight differences in the flow of their
manufacturing processes. The Korean Investigating Authorities did not dispute these explanations
during the sunset review.

36. In terms of the suitability of the ISSF 's data, the fact that two of the Japanese Respondents
were members of the ISSF means nothing as to the reliability of the ISSF's data, because they did
not provide the ISSF with data regarding their production capacities. Nor did the
Japanese Respondents prevent the Korean Investigating Authorities from verifying their data, as the
Korean Investigating Aut horities could have undertaken an on -site verification during the injury
investigation or verified the data in some other way.

37. The fact that the United States ' investigating authority also used the ISSF 's data is also
meaningless because the United States' authority referred to the ISSF's data in examining the global
trends of demand or production, rather than as evidence regarding the actual situation of the country
subject to the review or as evidence regarding the details of activities of the compa nies in such
country. Additionally, in a recent sunset review conducted by the United States regarding the
anti-dumping duties on stainless steel bars from Brazil, India, Japan, and Spain, all of the Japanese
Respondents calculated their production capacit y in the same manner as they did in the sunset

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review at issue and submitted the resulting data to the United States' investigating authority, which
indeed relied on such data.

38. Accordingly, the Korean Investigating Authorities ' determination, relying upon the
ISSF's more favorable data, is not based on "positive evidence" or an "objective examination".

3. The Korean Investigating Authorities Did Not Make Proper Findings
Regarding Import Volume and Price Effects

39. The Korean Investigating Authorities also did not appropriately assess the import volume and
price effects from the several subject countries, and accordingly, their determinations based on such
assessments are not based on "positive evidence" or an "objective examination".

40. Specifically, the Korean Investigating Authorities found that the import volume of the product
under investigation would increase and that such increase would be likely to cause injury to the
domestic industry, should the anti-dumping duty be terminated. However, the Korean Investigating
Authorities made that finding regarding an increase in import volume by selectively analysing only
a part of the data from the relevant time period. Namely, the Korean Investigating Authorities
referred only to the increase in the import volume since 2014, whereas the import volume of the
product under investigation during the whole POI (2012 to 2015) overall decreased.

41. Furthermore, as discussed above in relation to the use of cumulative assessment, the
Korean Investigating Authorities did not examine the actual competitive relationship between the
domestic like products and the product under investigation taking into account that the difference
in grades, product mixes and price levels. They appear to have simp ly presumed that all products
contained within the scope of the product under investigation and all products contained within the
domestic like products compete with each other, despite evidence from multiple sources to the
contrary. Accordingly, the Korean Investigating Authorities' analysis does not establish what, if any,
the actual price effects which the product under investigation from the several subject countries
imposes upon the domestic market are.

42. Likewise, the Korean Investigating Authorit ies' analysis of the impact of the product under
investigation on the domestic industry did not take into account other factors, such as third country
imports, on the predicted import volumes of the product under investigation from the several subject
countries or upon the actual price effects that the product under investigation may have.

4. The Korean Investigating Authorities Did Not Consider the Impact of
Other Factors on the Existence of a Nexus Between the Product Under
Investigation and the Recurrence of Injury to the Domestic Industry

43. Finally, the Korean Investigating Authorities did not consider whether the likely injury to the
domestic industry would be caused by factors other than the product under investigation, such as
third country import s, material costs, and weakening domestic demand. Although the
Korean Investigating Authorities explicitly recognized that such factors currently have or may have
an effect on the domestic industry in their published reports, they did not address those fac tors in
making their likelihood-of-injury determination.

44. The omission of such factors from the Korean Investigating Authorities ' analysis of the
likelihood of injury, despite the fact that such other factors are currently having an adverse impact
on the domestic industry, casts doubt upon the existence of a causal nexus between the expiry of
the anti -dumping duty on the product under investigation and the recurrence of injury to the
domestic industry. Without analysing the likely impact of other factor s upon the domestic industry
in case of expiry of the anti-dumping duties, the Korean Investigating Authorities cannot ensure that
the injuries which would in fact be caused by those unexamined other factors would not be attributed
to the subject imports of product under investigation.

III. Korea's Continuation of the Imposition of Anti-Dumping Measures on Stainless Steel
Bars from Japan Is Inconsistent with Article VI:6(A) of the GATT 1994

45. Article VI:6(a) of the GATT 1994 establishes that a Member cannot impose an anti -dumping
duty on any product from another Member unless it determines that the effect of the dumping is
such as to cause or threaten material injury to the domestic industry.

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46. For the reasons discussed above, the Korean Inve stigating Authorities did not properly
determine that the effect of the alleged dumping of the product under investigation is such as to
cause or threaten material injury to the domestic industry.

IV. Korea's Use of Facts Available in the Likelihood -of-Injury Determination Was
Inconsistent with Articles 11.4 and 6.8 of the Anti-Dumping Agreement

47. Article 6.8 of the Anti -Dumping Agreement permits an investigating authority to use facts
available to make its determinations, under the conditions provided in Annex II. Article 11.4 of the
Anti-Dumping Agreement provides that Article 6 (including, of course, Article 6.8) applies to sunset
reviews, as well as original investigations. Under Paragraph 3 of Annex II of the
Anti-Dumping Agreement, as the Appellate Body clarified in US – Hot-Rolled Steel, an investigating
authority is not entitled to reject the information submitted to it which meets all of the requirements
set forth within that Paragraph (i.e. verifiability of the data, a ppropriateness of the manner of
submission, timeliness of submission, and, where applicable, the use of a medium or computer
language requested by the authority).

48. In this case, the Japanese Respondents submitted information regarding their production
capacities, which the Korean Investigating Authorities ultimately rejected in favor of the ISSF's data,
as discussed above. However, the Korean Investigating Authorities did not address the factors listed
in Paragraph 3 of Annex II to explain their rejection of the data, and in fact, the information provided
by the Japanese Respondents and its method and timing of provision all comply with the
requirements of Paragraph 3 of Annex II. This rejection is therefore not compliant with Article 6.8.

49. Furthermore, Paragraph 7 of Annex II states that an investigating authority should base their
findings upon information from secondary sources with "special circumspection", which the panel in
Korea – Certain Paper explained to mean that the investigating authorit ies should confirm the
reliability of the information . Korea – Certain Paper (Article 21.5 – Indonesia)'s panel also stated
that the investigating authority must adequately explain how it compared secondary source
information with that provided by the interested parties. The panel and Appellate Body in Mexico –
Anti-Dumping Measures on Rice found that the secondary source information should be found to be
the "best" information available. However, the Korean Investigating Authorities did not explain
whether or how they analysed these factors.

50. Korea argues in this proceeding that it did not resort to the use of facts available at all, because
the necessary information was country-wide unused capacity and utilization rather than those of the
Japanese Respondents. However, there is no basis in Article 6.8 and Annex II to find that the
requirements for use of "facts available" need not be met for certain types of information, e.g. when
an authority seeks to examine a country 's production capacity rather than individual capacities of
producers within that country.

51. Moreover, while the general issue with regard to the capacity utilization or capacity of a certain
subject country in the sunset review is that of the relevant industry as a whole in the particular
country, the particular evidence which should be used to adduce such is a sepa rate question. In
determining what evidence should be used, an investigating authority should consider whether the
source of the evidence at issue is a primary source, whether the data includes only the product
under investigation or whether it includes ot her products, and whether there are producers of the
product under investigation which did not provide their production capacity information. The
Korean Investigating Authorities did not make any such evaluation in choosing the ISSF's data over
the data submitted by the Japanese Respondents as evidence.

52. In this case, not only was the capacity data submitted by the Japanese Respondents
information derived from a primary source, the evidence also indicated that the Japanese
Respondents had a significant share of the exports to Korea of the product under investigation from
the producers in Japan. Moreover, while the Japanese Respondents' data was specifically focused on
the product under investigation, the ISSF 's data included products other than the produ ct under
investigation. Thus, the Korean Investigating Authorities ' use of secondary source information
(i.e. the ISSF's data) over primary source information (i.e. the Japanese Respondents' data) in this
case does not satisfy the foregoing requirements un der Article 6.8 and Paragraphs 3 and 7 of
Annex II of the Anti-Dumping Agreement.

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V. The Korean Investigating Authorities Failed to Disclose the Essential Facts as
Required by Articles 11.4 and 6.9 of the Anti-Dumping Agreement

53. Article 6.9 of the Anti-Dumping Agreement provides that an investigating authority must
inform all interested parties of the essential facts which form the basis for the decision whether to
apply definitive measures before a final determination is made on the application of such definitive
measures.

54. The Korean Investigating Authorities, however, did not disclose the essential facts before the
final determination was made, depriving the Japanese Respondents of the ability to defend
themselves in an effective manner. The K orean Investigating Authorities indicated to the Japanese
Respondents on 3 April 2017 that the essential facts were disclosed by OTI 's Final Report and
KTC's Resolution of Final Determination, as well as OTI 's Interim Report (Revised). However, the
KTC's Resolution of Final Determination, which is the "final determination" under Article 6.9 of the
Anti-Dumping Agreement, was already rendered by that time.

55. Furthermore, even if those documents had disclosed the essential facts in a timely fashion,
the scope of the disclosure is limited and therefore does not satisfy the required standard under
Article 6.9 of the Anti-Dumping Agreement.

56. The disclosure of the essential facts underling an investigating authority's determination must
be disclosed in such a way as to permit an interested party to understand the basis for the decision
to continue imposing anti-dumping duties, including the factual basis for their intermediate findings
and conclusions reached by them.

57. However, the documents indicated by the Korean Investigating Authorities are so heavily
redacted that it is not possible to confirm the facts which were essential to the Korean Investigating
Authorities' determination.

58. Concerning the likelihood of dumping, the Korean Investigating Aut horities found, inter alia,
(a) the dumping margin calculated for each exporter, (b) unused production capacity in each
exporting country, and (c) a decrease in import volume and domestic market share of the product
under investigation after the imposition of anti-dumping duty.

59. Concerning the likelihood of injury, the Korean Investigating Authorities found, inter alia,
(d) sufficient unused production capacity and export capacity of the exporting country, (e) a possible
increase in the import volume and domestic market share of the product under investigation in case
of the expiry of the anti -dumping duty, (f) a large decrease in the price of the product under
investigation, which would cause the increase in its imports and weaken the domestic like
products' price competitiveness, in case of the expiry of the anti -dumping duty, and (g) the import
controls by the United States and the European Union, which would cause the exporting countries
to have a limited market for exports.

60. The reports indicated by the Korean Investigating Authorities did not disclose much of the
numerical data that they used to conclude that the above factors supported their determination.
Some of the data was removed entirely from the disclosed versions of the reports to the effect that
the interested parties were unable to discern that the relevant material even existed. Much of the
rest of the data was redacted such that the interested parties could know of its existence but could
not discern its content.

61. Additionally, the Korean Investigating Authorities made a finding that it was appropriate to
make a cumulative assessment of the effects of imports of the product under investigation from
Japan, India, and Spain. However, as discussed above, the Korean Investigating Authorities did not
provide the essential facts regarding why cumulative assessment was appropriate, and therefore
their determination based upon such cumulative assessment does not comply with Article 6.9 of the
Anti-Dumping Agreement.

62. Although Article 6.5.1 of the Anti-Dumping Agreement provides that an investigating authority
may provide summaries of data which needed to be redacted to protect confidential information, the
Korean Investigating Authorities' reports also did not provide sufficient summaries of the data which
was redacted such as could allow the interested parties to understand the substance of the
information withheld.

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VI. The Korean Investigating Authorities ' Treatment of Certain Information as
Confidential and Failure to Provide Sufficiently Detailed Non -Confidential
Summaries Were Inconsistent with Articles 11.4, 6.5 and 6.5.1 of the
Anti-Dumping Agreement

63. Article 6.5 of the Anti -Dumping Agreement provides that information may be treated as
confidential only when a s howing of good cause has been made for such treatment. The
Korean Investigating Authorities did not adhere to the requirements under Article 6.5 because they
treated the information submitted by the Applicants as confidential without any showing of good
cause having been made. There is also no indication, in any of OTI's Final Report, KTC's Resolution
of Final Determination, or OTI 's Interim Report (Revised), of an assessment by the
Korean Investigating Authorities as to whether good cause actually existed for the information to be
treated as confidential.

64. The panel in Korea – Pneumatic Valves (Japan) correctly found that " the existence in the
legislation of defined categories of information that will normally be treated as confidential does not
relieve the investigating authorities of their obligation to determine that good cause has been shown
to justify the confidential treatment ". This finding is in line with the Appellate Body 's previous
findings in EC – Fasteners (China) and China – HP-SSST (Japan) / China – HP-SSST (EU) that the
investigating authority is required to objectively assess the "good cause" alleged for confidential
treatment and scrutinize whether the request for confidential treatment has been sufficiently
substantiated by the showing of alleged "good cause".

65. It should also be noted that the Appellate Body also clarified in China – HP-SSST (Japan) /
China – HP-SSST (EU) that a panel must examine whether the investigating authority undertook the
necessary analysis to confirm that the submitted information indeed warranted confidential
treatment "on the basis of the investigating authority 's published report and its supporting
documents".

66. Article 6.5.1 of the Anti -Dumping Agreement also requires that sufficiently detailed
non-confidential summaries of the information which was granted confidential treatment be
provided. However, the K orean Investigating Authorities also failed to satisfy this requirement, as
they have not provided sufficiently detailed non -confidential summaries of the information gran ted
confidential treatment such as to allow the interested parties to understand the substance of the
confidential information and to defend their interests. In fact, most redactions of confidential
information were accompanied by no explanation of either the justification for the redaction or the
data which was redacted.

VII. Korea's Anti-Dumping Measures on Stainless Steel Bars from Japan Are Inconsistent
with Articles 12.3, 12.2 and 12.2.2 of the Anti-Dumping Agreement

67. Lastly, Article 12.2 requires that public notice be given of, among other things, any preliminary
or final determination. Article 12.2.2 further requires that for the conclusion of an investigation in
the case of an affirmative determination providing for the imposition of a definitive duty, the public
notice shall make available all relevant information on the matters of fact and law and reasons which
have led to the imposition of final measures.

68. However, the Korean Investigating Authorities did not describe in sufficient detail their findings
and all relevant information regarding, among other things, (a) their decision to use cumulative
assessment, (b) their findings regarding the production capacity of the Japanese Respondents,
(c) their findings regarding the propriety of use of facts available constituting secondary source
information, (d) their findings regarding expected import volumes and their effects on the domestic
industry should the anti -dumping duties terminate, (e) their findings regarding the
Japanese Respondents' incentives to increase exports to Korea, (f) their findings regarding the
existence of a nexus between the expiry of the anti -dumping duties and the recurrence of injury,
and (g) their findings regarding the effects of other factors on the nexus bet ween the expiry of the
anti-dumping duties and the recurrence of injury.

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VIII. Korea's Ex Post Arguments Within This Dispute Settlement Proceeding Should Be
Rejected

69. Japan also notes that Korea has made various ex post arguments for the first time within this
dispute settlement proceeding, seeking to justify the Korean Investigating Authorities' determination
and the findings underlying them with new arguments which were not raised or addressed during
the sunset review at issue.

70. These ex post arguments that cannot be discerned from the record evidence or the published
reports include, among other things, (a) an allegation that the Korean Investigating Authorities
found that all types of stainless steel bars were commodities that can be tai lor-made to
purchasers' orders and thus compete against each other, (b) an allegation that the authorities
conducted an analysis of the prices of the dumped imports and the domestic like products, (c) an
allegation that the Korean Investigating Authorities examined factors other than the product under
investigation to make the determination of likelihood of injury, and (d) new proposed reasons
allegedly for which the Korean Investigating Authorities rejected the Japanese Respondents ' data
regarding their production capacity.

71. However, these new ex post arguments by Korea should not be taken into account when
analysing the Korean Investigating Authorities ' determination and findings. The Appellate Body
found in US – Countervailing Measures (China) (Article 21.5 – China) that the parties to a
WTO dispute settlement proceeding are precluded from offering new rationales or explanations
ex post to justify the determination of an investigating authority. The Appellate Body likewise found
in US – Countervailing Duty Investigation on DRAMS that a panel examining the determinations of
an investigating authority should consider whether the investigating authority provided, during the
sunset review, a reasoned and adequate explanation as to: (i ) how the evidence on the record
supported its factual findings; and (ii) how those factual findings supported the overall
determination, and that such explanations should be discernible from the published determination
itself. Accordingly, ex post explanations cannot cure a deficiency in the published determination.

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ANNEX B-2
FIRST INTEGRATED EXECUTIVE SUMMARY OF
THE ARGUMENTS OF KOREA
INTRODUCTION

1. This dispute concerns Korea's third sunset review of the definitive anti -dumping measures on
imports of stainless steel bars ( "SSBs" or "dumped imports") from Japan, India, and Spain. The
original anti-dumping measures were taken by the Ministry of Finance and Economy (a predecessor
of the Ministry of Strategy and Finance) on 3 0 July 2004. The imposition of the anti-dumping duties
were extended by the Ministry of Strategy and Finance ("MOSF") firstly in February 2010 and secondly
in October 2013, through the first and second sunset reviews, respectively. On 2 June 2017, in the
third sunset review, the MOSF decided to extend the imposition of the anti -dumping duties for a
period of 3 years ("Final Determination"). The Final Determination was based on the Final Resolution
of the Korea Trade Commission ("KTC") and the Final Rep ort of the Office of Trade
Investigation ("OTI"), a subsidiary organ of the KTC.

2. Korea's decision to extend the application of the anti-dumping duties on SSB imports in the
third sunset review wa s based on a sufficient factual record and was the result of an objective
examination based on positive evidence of the facts on the record. The decision to extend the duties
was supported by reasoned and adequate conclusions. Specifically, the KTC evaluated and applied
the required elements of the Anti -Dumping Agreement for sunset reviews, and conducted a critical
and searching examination of the record evidence in conformity with the basic principles of good faith
and fundamental fairness. The examination of the evidence was made in an unbiased manner, without
favoring any interested party or group of interested parties, and involved positive evidence. Then, in
a reasoned and reasonable manner, the KTC made a number of intermediate factual findings that
supported its ultimate conclusion on a likely continuation or recurrence of dumping and injury to the
domestic industry in Korea if the SSB duties were to expire.

3. Following the recommendation of the KTC, MOSF subsequently allowed all interested parties,
including the Japanese respondents and the KTC, to presen t further arguments in support of their
respective positions. After careful review of the parties ' submissions, the MOSF decided to endorse
the KTC 's findings and thus extended the anti -dumping duties pursuant to Article 11.3 of the
Anti-Dumping Agreement.

PRELIMINARY RULING REQUEST PURSUANT TO ARTICLE 6.2 OF THE DSU

4. Korea submits that Japan 's request for the establishment of a panel ("Panel Request") is
inconsistent with the requirements of Article 6.2 of the DSU since it fails to identify the specific
"measures" challenged and includes claims that were not covered by its request for consultations.

5. In the Panel Request, Japan refers to "the measures" by Korea, but never clearly identifies the
relevant measures in accordance with Article 17.4 of the Anti-Dumping Agreement. However, a panel
request concerning a dispute under the Anti -Dumping Agreement must comply with the relevant
provisions of the DSU and the Anti -Dumping Agreement. The request must identify, as the specific
measure at issue, one of three types of anti -dumping measures, namely either a definitive
anti-dumping duty, the acceptance of a price undertaking, or a provisional measure. A panel request
that challenges a decision to initiate an investigation under Article 5 or a sunset review determination
under Article 11 fails to meet this obligation.

6. Accordingly, Korea submits that Japan's Panel Request fails to identify the relevant measures
in accordance with Article 6.2 of the DSU and 17.4 of the Anti -Dumping Agreement and, on that
basis, all of Japan's claims are outside the Panel's terms of reference.

7. In the alternativ e, Korea submits that Japan 's Panel Request unduly expanded on matters
identified in its request for consultation, and thus includes claims for which no proper consultations
were held in violation of Articles 4.4 and 6.2 of the DSU and Article 17.3 of the
Anti-Dumping Agreement.

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LEGAL STANDARD UNDER ARTICLES 11.3 AND 11.4 OF THE ANTI-DUMPING AGREEMENT CONCERNING
SUNSET REVIEWS

8. The applicable disciplines in sunset reviews are set forth in Articles 11.3 and 11.4 of the
Anti-Dumping Agreement. Article 11.3 requires termination of an anti-dumping duty after five years
unless its expiry would "likely" lead to continuation or recurrence of dumping and injury. In contrast
to original investigations, Article 11.3 does not impose detailed disciplines for fi ndings of dumping,
injury, and causation. This suggests a certain degree of latitude when reaching a "likelihood" of
dumping or injury finding upon expiration of duties as long as there is a sufficient factual basis for
the conclusions. In essence, any challenge of a sunset review is a factual matter. In respect of such
factual determinations, the relevant standard of review under Article 17.6 of the Anti -Dumping
Agreement and Article 11 of the DSU is that, as long as a reasoned and adequate explanation has
been provided by the authorities, the conclusions must be upheld even if another conclusion could
have been reached.

9. Article 17.6 of the Anti -Dumping Agreement is one of the special and additional rules of
procedure which highlights that the panel is not the trier of fact in anti-dumping disputes but is only
to review whether the determination of the investigating authority was objective and unbiased. It
importantly specifies that if the evaluation was unbiased and objective, the evaluation sh all not be
overturned, even though the panel might have reached a different conclusion. This important
deferential standard of review must be borne in mind in a dispute that is essentially of a factual
nature given the total lack of specific legal discipli nes or guidance in Article 11.3 of the
Anti-Dumping Agreement.

10. The Appellate Body has underscored that original investigations and sunset reviews are distinct
processes with different purposes. Indeed, Article 11.3 does not prescribe a specific methodology for
making a "likelihood" determination, and it does not identify particular factors that must be taken
into account in such a determination. All that is required is that investigating authorities must act
with an appropriate degree of diligence in order to arrive at a reasoned conclusion, and undertake a
forward-looking analysis and seek to resolve the issue of what likely would occur if the duty expired.
Such a determination is forward-looking and based on a certain degree of speculation about future
events. While the nature and extent of the requisite evidence will vary with the attendant
circumstances of each review, the Appellate Body has noted that current market conditions are
relevant as a basis to draw reasoned conclusions regarding likely future market conditions.

11. Similarly, in terms of likely future injury, Article 11.3 does not specify a methodology that must
be followed. Rather, investigating authorities enjoy a certain degree of discretion, as no injury
examination in the sense of A rticle 3 of the AD Agreement is required in sunset reviews. All that is
required is that a likelihood of injury finding must be made pursuant to an objective examination
based on positive evidence, and rest on a sufficient factual basis that is supported b y reasoned and
adequate explanations that future injury is likely if the duty expires.

12. Moreover, there is no requirement to establish a "causal link" between likely dumping and
injury in a sunset review. Whereas causation between dumping and injury is a fundamental
requirement in original investigations, the nexus to be demonstrated in a sunset review is rather
between "the expiry of the duty" and the likely continuation or recurrence of dumping and injury.

13. Japan consistently refers to the need to establish a "causal nexus" in the context of a sunset
review. Although formally speaking it states that this nexus should be demonstrated to exist between
the expiry of the duty and the likely continuation or recurrence of dumping and injury, it is clear that
it actually uses this concept to impose new obligations not present in Article 11.3. It deliberately
borrows this "causal nexus" terminology from the causation requirement between dumping and injury
in Article 3.5 of the Anti -Dumping Agreement that ap plies only in original investigations. Indeed,
through the concept of "causal nexus", Japan seeks to introduce the Article 3.5 causation requirement
into Article 11.3 through the backdoor.

14. The inquiry in sunset reviews is between the expiry of the an ti-dumping measure and the
likelihood of dumping and injury. Importantly, the Appellate Body has made clear that a causal link
between dumping and injury need not be established anew in a review conducted under Article 11.3.
Rather, to the extent that dumping and injury are likely to continue or recur if a measure e xpires,
the Appellate Body has noted that "it is reasonable to assume that … the causal link between dumping
and injury, established in the original investigation, would exist". In other words, the question is not

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whether dumped imports from a particular country are causing injury, but whether the expiry of the
duty would likely lead to a continuation or a recurrence of dumping and injury.

15. By force of logic, therefore, it only follows that the "building blocks" for the causal link,
e.g., price effect (or price comparability, for that matter), need not be established anew under
Article 11.3 either. Absent a new market development in the relevant POR clearly and substantially
vitiating the pre-determined correlation (including price comparability) between the dumped imports
and the state of the domestic industry, the correlation must be presumed to exist. It naturally also
means that the price developments during the relevant POR are not determinant for the projection
of the future price effect in the "fo rward-looking" analysis under Article 11.3, where fundamental
changes in pricing matrix is destined to occur upon termination of the anti -dumping duties. In this
context, situations pertaining to the periods prior to imposition of the measure may be highly
relevant. Nothing on the record even remotely indicated that the correlation established in the original
investigation was severed or significantly altered during the POR for the third sunset review.

16. Also important in analyzing the likelihood of inju ry upon termination of the current
anti-dumping measure is the continued effect of the anti-dumping measure on the volume and price
of the dumped imports. If the anti-dumping measure is continuing to affect the volume and price of
the dumped imports, it is reasonable and adequate to assume that the volume and the price of the
dumped imports will increase and decrease, respectively, upon removal of the measure. The record
clearly shows that imposition of the anti -dumping measure immediately and continuously exerted
remedial effect, as it suppressed the volume and inflated the price of the dumped imports from all
subject countries throughout the course of the measure 's imposition. In fact, it is on these bases,
among others, that the KTC considered it appropriate to cumulate the de minimis imports from Spain
with the dumped imports from other subject countries during the third sunset review. The
Japanese respondents, for their part, had never demonstrated that the dumped imports from Japan
showed any deviation from the dumped imports from other origin from this perspective.

17. A similar error of law that permeates Japan's arguments concerns the disciplines on cumulating
injury in sunset reviews. Again, Japan is effectively trying to have the same dis ciplines applying in
original investigations (under Article 3.3) to sunset reviews (under Article 11.3) as it seeks to
demonstrate that the Korean investigating authorities' decision to examine the effects of the measure
on dumped imports on a cumulative b asis was inconsistent with Article 11.3. It argues that the
authorities failed to properly determine that cumulation was appropriate in this sunset review given
the alleged lack of competition between Japanese imports of "special" SSBs with domestic and
Indian sales of "general purpose" SSBs and that the authorities should have followed the normal rule
of making a country-specific examination. However, Japan attempts to create new rules out of thin
air, and errs when re-stating the relevant jurisprudence.

18. The Appellate Body has recalled that cumulation is not the exception, contrary to what Japan
seems to suggest, but is rather what would "normally" happen in injury determinations. Since injury
might come from several sources simultaneously, the Appell ate Body has found cumulation to be a
useful tool. Japan 's attempt at reading more into the basic utility of cumulation in the context of
sunset reviews is unwarranted, and would lead the Panel to add to obligations of Members without
any textual basis in the Anti -Dumping Agreement. In addition, contrary to Japan 's repeated
assertions based on the distinction between "general purpose" and "special" SSBs, there is no
requirement in Article 11.3 to examine whether cumulation is appropriate in the light of the conditions
of competition between the imported products and between imported products and the like domestic
product. In its report on US – Oil Country Tubuluar Goods Sunset Reviews, the Appellate Body has
already clearly rejected this attempt at reading the requirements of Article 3.3 into Article 11.3 finding
that the conditions of Article 3.3 "do not apply in the context of sunset reviews". In addition to the
fact that Japan 's argument based on this distinction between these newly invented categories of
products has no basis in the facts on the record, as explained below, it is thus also legally irrelevant.
Japan's claim on cumulation under Article 11.3 is flawed in every way.

RELEVANT CONTEXT OF THE THIRD SUNSET REVIEW

19. Korea originally imposed anti-dumping measures on SSBs from, among others, Japan in 2004
and these duties were extended twice through the first and second sunset reviews. In these prior
proceedings, very similar issues were raised and they were largely addressed in the same manner as
in the third sunset review, without challenge by Japan. The third sunset review, therefore, was derived
from and part of a string of connected and sequential determinations that started with the original

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investigation and continued through the subsequent sunset reviews. In the third sunset review, the
Korean authorities did not simply rely on its findings from prior proceedings, but, to the extent
relevant, these prior findings may still play a part in subsequent reviews. For example, the
Korean authorities followed the pattern of reasoning and analysis that was used in previous
proceedings, when assessing the record evidence pertaining to the third sunset review. Factual and
analytical findings from prior proceedings also lend important contextual support to the KTC's findings
in the underlying third sunset review. Based on such record evidence, it was confirmed that the
relevant situation had not changed substantially from previous proceedings.

20. SSB products are a special steel grade among steel bars, and SSBs products generally compete
with each other on the basis of their grades or specifications. Because SSBs is an internationally
traded commodity, traders rely on internationally -recognized designation standards when placing
orders internationally. Thus, SSB orders are placed based on designated grades or specifications, and
as long as the ordered products are certified for that certain grade or specification, the fungibility
between the products are presumed and the products are deemed to be in a competitive relationship.

21. In addition, SSB production facilities have high adaptability for a wide-range of steel products,
without a need for further investment in or alternation of the facilities. It is well known that SSB
production facilities not only can produce all kinds of SSB products with different grades, but can also
produce other steel products that require surface treatment, (e.g., carbon steels, alloy steels, tool
steels, bearing steels, etc.), almost immediately upon order. The industrial practice for SSB is to
maintain only minimal amount of inventory, as vast majority of SSB sales are produced upon order.
The Japanese respondents explicitly confirmed that this was their case as well, i.e. that SSB products
were manufactured and supplied to Korean customers on an 'on -demand basis', and thus that they
do not keep inventory. A corollary of this undisputed fact is the high adaptability of SSBs production
facilities, where production can be tailored to customer deman d and specifications. In other words,
SSB producers can modify easily and quickly their facilities to produce any grade of SSB as long as
there is demand. This is the reason why the Korean authorities' likelihood-of-injury determination in
the third sunset review focused, among others, on the SSB capacity utilization of the subject
countries.

22. Moreover, an unsubstantiated assertion by the Japanese respondents that the dumped imports
from Japan were not in competition with the like domestic products were refuted, as it stood in tension
with record evidence. Indeed, no applicable standard categorizing SSBs into "general purpose" and
"special" steel products exists, contrary to what Japan suggests . Although each steel grade is
characterized by specific chemical composition, they all form one consolidated group of like products.
There was simply no justifiable ground to distinguish so-called "general purpose" SSB products from
so-called "special" SSB products for purposes of the investigation.

23. Nevertheless, for purposes of examining the Japanese respondents ' argument, the
Korean authorities assumed that such an artificial distinction between "general -purpose" and
"special" SSB products could be made. Thus, they examined whether the alleged difference in product
mix potentially implied that there was no competition between the dumped and domestic products.
It turned out, however, that the Japanese respondents ' assertion was not at all supported by the
facts on the record. Official customs data con firmed that there was a large overlap between the
dumped imports from Japan and the like domestic product, even accepting the artificial categorization
of "general purpose" and "special" SSB products. Indeed, no record evidence suggested that the
Japanese respondents had stopped producing so -called "general purpose" steel or that
Korean producers did not produce "special" steel, such that there would be no competitive overlap.
Exporters as well as domestic producers were found to sell both "categories" of products in significant
amounts and largely similar proportions. The fundamental factual premise of the
Japanese respondents' argument was not supported by the facts on the record. There was no reason
to consider that the basket of covered products of the Japanese respondents was not in competition
with the basket of products of other exporters and domestic producers. Imported and domestic like
products are in the market together and competing with one another and there was therefore no
reason to doubt that the situation would be any different if the duties were removed.

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LEGAL ARGUMENT

V.1. CLAIM 1: JAPAN'S CLAIM THAT KOREA FAILED TO DETERMINE PROPERLY THAT THE EXPIRY OF THE
SSB DUTIES WOULD LIKELY LEAD TO CONTINUATION OR RECURRENCE OF INJURY IS WITHOUT
MERIT

24. Japan claims that Korea failed to properly determine that the expiry of the SSB duties would
likely lead to a continuation or recurrence of injury in accordance with Article 11.3 of the
Anti-Dumping Agreement. However, all four of Japan 's specific allegations in support of its claim
under Article 11.3 are without merit and based on an erroneous understanding of the relevant
disciplines.

V.1.1. JAPAN'S CLAIM THAT KOREA'S CUMULATIVE LIKELIHOOD OF INJURY DETERMINATION WAS
NOT BASED ON AN OBJECTIVE EXAMINATION OF POSITIVE EVIDENCE IS BASELESS

25. Japan asserts that the likelihood of injury determination by Korea violated Article 11.3 because
there was not a sufficient factual basis for the finding to cumulate imports from Japan, India, and
Spain, as imports from Japan allegedly did not compete with imports from the other countries.
Especially, Japan considers there were critical differences in the product mixes, as imports from Japan
mostly consisted of "special" steel SSBs whereas imports from India and the like domestic product
were mainly composed of "general purpose" SSBs.

26. Korea considers that this claim under Article 11.3 is without merit. In the absence of any
specific legal requirement in respect of cumulation in sunset reviews, Japan fails to demonstrate that
there was an insufficient factual basis for Korea 's decision to cumulate imports, or that the decision
did not rest on positive evidence and an objective examination.

27. There was a sufficient factual basis for Korea's decision to cumulate imports from Japan, India,
and Spain. Indeed, relevant jurisprudence clearly confirms that cumulation of injury in sunset reviews
is permissible provided such a decision is supported by positive evidence and has a sufficient factual
basis that the imports are 'in the market together and competing against each other'. The KTC found
that all dumped imports, regardless of origin, are in competition with each other and with the like
domestic products. The covered SSB products were produced by all of the subject countries as well
as Korea, were fungible, were present in the Korean market during the review period, and used the
same distribution channels.

28. In fact, the factual underpinnings taken into account by the KTC when making its decisi on to
cumulate imports fulfilled all the requirements enumerated by the Appellate Body in US –
Anti-Dumping Measures on Oil Country Tubular Goods when upholding an USITC determination to
cumulate imports in a sunset review.

29. First, the KTC found that the same reasons justifying a cumulative assessment of injury in the
prior investigation and reviews applied to the third sunset review as well. The physical characteristics,
manufacturing process, distribution channel, purpose of use, consumers ' evaluation, etc., of the
imports and the like domestic product remained the same or similar to that of the original
investigation as well as the first and second sunset reviews. In addition, the OTI confirmed that the
products at issue had obtained relevant certificates under international standards, which ipso facto
confirmed their physical similarities and effectively confirmed their competitive relationship . The
KTC's examination of the record facts confirmed the similarity to earlier investigation and reviews,
and was thus an intermediate factual finding in support of the decision to cumulate.

30. Second, an important intermediary factual finding by the KTC in the third sunset review was
that the imports and the domestic SSBs constituted "like" products. This finding had been consistently
made since the original investigation through the previous sunset reviews. The finding of "likeness",
based among others on customer statements and evaluations, grade/specification designation under
globally-recognized cer tification standards, manufacturing processes, distribution channels, price,
functions and purported uses, etc., confirmed that the products sold in the Korean market shared
sufficient similarities to be competing. Thus, the competitive overlap among the dumped imports and
with the like domestic products was significant. Indeed, SSBs are internationally traded commodities,
which share physical similarities and fungibility in use (thus the market competition), and the
interchangeability is presumed among comparable product specifications as long as they are certified
by globally recognized standards.

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

31. Third, the KTC examined the artificial distinction between "general-purpose" and "special" SSBs
introduced by the Japanese respondents but considered that even accepting this distinction there was
no basis in the facts on the record to consider that there was no or insufficient competition between
imported and like domestic products. For example, the composition of trade had remained similar
over the current POR and the previous investigations, i.e. there had been a consistent proportion of
imports of so-called "general-purpose" and "special" SSBs from Japan and India, and in relation to
production and sales volumes in Korea. The official customs clearance da ta revealed that the
Japanese respondents ' assertion that imports of "general purpose" SSBs ceased as of 2015 was
incorrect.

32. Fourth, the price information that was considered by the KTC confirmed that the average resale
price of the like domestic product was within the range of the dumped imports' resale prices. In fact,
the average import and resale price of the dumped imports were considerably lower than the average
resale price of the like domestic product in 2015.

33. As a result, Korea's decision to examine imports cumulatively for the likelihood of injury had a
sufficient factual basis and Japan failed to demonstrate any bias in the authorities ' evaluation of the
facts. This evaluation cannot be overturned. Therefore, Japan's claim must fail.

V.1.2. JAPAN'S CLAIM THAT KOREA'S DETERMINATION THAT THE JAPANESE INDUSTRY HAD THE
CAPABILITY TO INCREASE PRODUCTION AND EXPORTS TO KOREA WAS NOT AN OBJECTIVE
EXAMINATION BASED ON POSITIVE EVIDENCE IS BASELESS

34. Japan argues that Korea violat ed Article 11.3 because the determination of a likelihood of
recurrence of injury relied, among others, on the allegedly erroneous finding that Japan's SSB sector
had sufficient additional production capacity for exports. Japan argues that this finding was not based
on an objective examination of positive evidence because the KTC rejected "direct evidence"
submitted by the Japanese producers and instead relied on secondary source information "without
justifiable reason".

35. Korea considers that this claim under Article 11.3 is without merit. The Korean authorities had
different sources of information at their disposal to examine the extent to which there was excess
production and export capacities in Japan. A reasonable and adequate explanation was provided why
the data from ISSF, the Japan Stainless Steel Association, and the Korea International Trade
Association were preferred in examining production and export capacities in Japan.

36. First, the data were eminently objective, reliable, and credible, as information was derived from
reputable international institutions and industry associations. The data on production capacity was
obtained through ISSF, and reflected data collected by its members, national steel associations,
overseas market research agencies, publicly available information, and industrial knowledge.

37. Second, the Korean authorities' examination was not meant to be company-specific, but was
necessarily order -wide and thus related to the country as a whole. The ISSF data covered the
production capacities of the Japanese industry as a whole, including the three Japanese respondents,
and collected statistics on the secondary processing step of SSB products. In the context of t he
likelihood-of-injury analysis, the ISSF data was preferred and was used to examine production
capacities in India and Spain as well, without objection. Tellingly, the Korean authorities relied on the
ISSF data in previous reviews as well, and this was n ever disputed by the Japanese respondents in
the past. In addition, ISSF data has been used by other WTO Members in anti-dumping proceedings
concerning SSBs and other stainless steel products.

38. Japan asserts that there was no reasonable justification for the Korean authorities to reject the
Japanese respondents' capacity data when calculating the production capacity of Japan's SSBs sector,
in favour of the ISSF data. However, the Korean authorities examined and provided elaborate
explanation for the decision not to use the Japanese respondents' data. In particular, it was difficult
to accept the respondents ' data because it significantly differed from ISSF data, the method of
calculating production capacity varied by each company, no underlying data was provided to allow
verification of the submitted information, and the respondents ' repeatedly changed their calculation
methodologies throughout the review . In addition, the record shows that the Korean authorities
attempted to verify the submitted data, but the respondents refused to cooperate by providing the

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requested raw data. The decision to rely on the ISSF data, which had been used in the second sunset
review, in respect of which Japan never raised any issue was thus reasonable.
39. As a resu lt, the countrywide ISSF data did not suffer from the problems that affected the
information provided by the Japanese respondents, and was information that had been used in the
second sunset review as well as in anti-dumping investigations by WTO Members. The data relied on
was reliable, credible, and objective and was obtained from a well -respected source, and thus
constituted "positive evidence" that provided a sufficient factual basis for the Korean investigating
authorities' determination that Japan's SSB industry had sufficient additional production capacity and
room for exports. Japan's claim is without merit.

V.1.3. JAPAN'S CLAIM THAT KOREA ERRED IN FINDING THAT IMPORTS FROM JAPAN WOULD
INCREASE IF DUTIES WERE REMOVED AND THAT DOMESTIC PRICES WOULD D ECREASE IS
WITHOUT MERIT

40. Japan argues that Korea violated Article 11.3 of the Anti -Dumping Agreement because the
determination of a likelihood of recurrence of injury was based on the erroneous finding that imports
from Japan would increase if duties expired and that domestic prices would significantly decrease.
Japan asserts that this is speculative and that the Japanese industry has shifted its focus away from
the price competitive "general purpose" SSBs that dominate the Korean market. Howeve r,
Japan's assertions are not supported by the facts on the record which reasonably supported the
Korean authorities' contrary findings.

41. First, the finding that dumped imports were likely to increase if duties expired was based on,
inter alia, a recent increase in their volume and market share (despite the imposition of duties), in
combination with the fact that such volumes were still well below pre-measure levels, suggesting
further increases were probable. In addition, the Korean authorities found that investigated producers
continued to make investments in new facilities, and that there was considerable spare production
capacity.

42. Second, the Korean authorities' examination of prices showed that the dumped imports
continued to undercut prices of the like domestic product throughout the POR, and that the average
import and resale prices of the dumped imports were considerably lower than the average res ale
price of the like domestic product at the end of the POR. Thus, even with the imposition of
anti-dumping duties, the average sales price of the dumped imports undercut the average price of
the like domestic product. The logical conclusion, therefore, was that expiry of the duties would exhort
additional price pressure on domestic prices. This finding was supported by analysis of the
above-referenced price data and related explanation. The authorities also pointed to the fact that the
removal of the duti es on imports from Japan would make these imports more price competitive
putting additional pressure on domestic prices.

43. Third, the Korean authorities also examined the likely impact of other factors, especially
third-country imports, material costs, and domestic demand. This analysis showed that there were
no reason why such other factors would refute a finding of likely increase in volume and decrease in
domestic prices if duties were removed. For example, the volume and market share of third-country
imports remained stable over the review period, and their market share had only increased slightly.

44. In sum, the Korean authorities ' determination of a likely increase in the volume of dumped
imports and a drop in domestic prices if duties were to expire was firmly grounded in the facts on the
record and was based on reasonable projections about future events.

V.1.4. JAPAN'S CLAIM THAT KOREA FAILED TO PROPERLY EXAMINE THE LIKELY IMPACT OF OTHER
FACTORS IS WITHOUT MERIT

45. Japan argues that Korea's determination of a likelihood of recurrence of injury is inconsistent
with Article 11.3 because the Korean authorities failed to examine properly the likely injury caused
by "known factors other than the dumped imports". However, first, as a legal matter, Article 11.3
does not require a causation and non-attribution analysis based on the effects of dumped imports on
injury as separated and distinguished from the effects of other known factors, as is the case in original
investigations under Article 3.5. In any case, second, as a factual matter, Korea 's determination
involved an objective examination of positive evidence, and rested on a sufficient factual basis, that
allowed Korea to make a reasoned and adequate conclusion on the likelihood of recurrence of injury
if the duties were removed even in the light of other factors.

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

46. As part of this analysis, although not legally required, the Korean authorities considered the
effects of factors other than the dumped imports, such as third-country imports, material costs, and
demand. The Korean authorities found that there was no basis to consider that these other factors
played an important role in determining the likelihood of recurrence of injury if the anti -dumping
duties were removed. For examp le, regarding the volume of third -country imports, the authorities
found that the volume and market share of these imports remained stable over the review period,
and trended similarly to the dumped imports and the like domestic product. In addition, mater ial
costs declined and demand increased in the review period. These two factors could not be a cause of
recurrence of injury if the duties were removed.

47. In sum, the Korean investigating authorities examined the likely impact of factors other than
the dumped imports, even though there is no such obligation under Article 11.3. This evaluation of
other factors was objective and reasonable. Japan has failed to demonstrate the contrary and its
claim must thus be rejected.

V.2. CLAIM 2: JAPAN'S CLAIM THAT THE ALLEGED USE OF FACTS AVAILABLE VIOLATED ARTICLES 11.4,
6.8 AND PARAGRAPHS 3 AND 7 OF ANNEX II OF THE ANTI-DUMPING AGREEMENT IS IN ERROR

48. Japan claims that Korea acted inconsistently with Articles 11.4, 6.8, and paragraphs 3 and 7
of Annex II of the Anti -Dumping Agreement because it rejected information submitted by the
Japanese respondents and allegedly resorted to facts available for calculating the SSB production
capacity in Japan based on ISSF data. However, Japan errs when it argues that Korea resorted to the
use of facts available, and in any case fails to demonstrate that Korea acted inconsistently with
Article 6.8 and paragraphs 3 and 7 of Annex II of the Anti -Dumping Agreement in the underlying
review investigation.

49. First, the Korean authorities did not resort to the use of facts available due to missing necessary
information in the third sunset review. They simply attached more weight to the reliable ISSF data.
The authorities had the necessary information that most reliably represent ed Japan's countrywide
capacity and production from reputable public sources, e.g. the ISSF data. Article 6.8 and Annex II
simply do not apply to a likelihood -of-injury determination where investigating authorities seek to
examine, as one of many factors, the availability of excess production and export capacity in a country
of export. While actual data about producers' prices and costs are "necessary" to be obtain ed from
the producers themselves in order to make a determination of dumping, the same is not the case for
a likelihood -of-injury determination. Such a determination includes an analysis of a
country's production capacity and capacity utilization with a vi ew to evaluating the likely future
increase in the volume of imports, as one of many factors that is examined. In this case, there was
no missing information, as there was reliable and objective data available from the ISSF. In addition,
the specific information from the cooperating exporters did not constitute "necessary" information,
as such data was only producer specific. There was thus no gap to fill that would have required the
authorities to resort to facts available under Article 6.8.

50. Second, in any case, and should the Panel find that Korea resorted to facts available
(quod non), every condition under Article 6.8 was satisfied and, thus, Korea was justified to use facts
available. Indeed, the Japanese respondents refused access to nece ssary information by, for
example, failing to respond to the dumping aspect of the review. The respondents also withheld
various requested data, ignoring the clear instructions and requests by the Korean authorities. Thus,
the respondents more than significantly impeded the third sunset review, failed to act to the best of
their abilities, and their submitted information was neither verifiable, nor appropriately or timely
submitted so that it could be used without undue difficulties by the Korean investigating authorities.

51. Third, there is no basis for Japan 's claim that the Korean authorities acted without special
circumspection when using the ISSF data. Korea notes that the ISSF data did not constitute
"secondary source" information. As there was no primary source of information for the finding on
capacity available in Japan as a whole, the ISSF data could not constitute secondary source
information. In any event, the Korean authorities assessed the relevance and reliability of the ISSF
and JSSA data fo r the question concerning production capacity and capacity utilization in Japan. It
found that the ISSF data represented useful and reliable data on this issue, as it was collected from
various producers and national associations involved in the SSB indust ry, and that the data was
frequently relied on in anti -dumping investigations of other WTO Members. Japan in the context of
this dispute has also confirmed that it is not challenging the reliability of the ISSF data.

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

52. In sum, the Korean investigating authorities did not resort to the use of facts available, as they
had relevant and appropriate information on production and exports of SSBs in Japan from reputable
public sources. Assuming, arguendo, that Article 6.8 and Annex II of the Anti -Dumping Agreement
even apply, all conditions for resorting to facts available were met. Japan's claim is to be rejected.

V.3. CLAIM 3: JAPAN'S CLAIM THAT KOREA FAILED TO DISCLOSE THE ESSENTIAL FACTS BEFORE THE
FINAL DETERMINATION IN VIOLATION OF ARTICLES 11.4 AND 6.9 OF THE ANTI-DUMPING
AGREEMENT IS BASELESS

53. Japan claims that Korea violated Articles 11.4 and 6.9 of the Anti-Dumping Agreement, as the
KTC allegedly failed to inform all interested parties of the essential facts under consideration that
formed the basis for the decision to extend the anti-dumping duties. However, this claim is baseless,
as the Korean authorities disclosed the essential facts that constituted the basis for its decision in
various documents and meetings, in particular in the KTC 's Final Resolution and the OTI 's reports.
Indeed, the Korean authorities not only provided the respondents with the interim report that
contained most of the OTI's findings on dumping and injury, but also provided the amended inter im
report which reflected the opinions of the interested parties, thereby disclosing most of the facts that
constituted the OTI's findings.

54. All of Japan's allegations under this claim are either groundless or concern facts that were not
significant i n the process of reaching a decision to extend the measure – they were thus not
"essential" facts that warranted disclosure. Where actual data was redacted for protection of
confidential information, the narrative in the published reports provided the rele vant information
through a non -confidential summary, allowing the interested parties to exercise their rights of
defense. Importantly, neither the Japanese respondents in the underlying investigation nor Japan
brings a claim under Articles 6.2 and 6.4 of t he Anti-Dumping Agreement, thus confirming that the
respondents' rights to defend their interests were fully respected in the underlying investigation.

55. In sum, the essential fact s for the decision to extend the application of the anti -dumping
measures on imports of SSB s were clearly disclosed to the interested parties in accordance with
Articles 11.4 and 6.9, enabling them to defend their interests with respect to the key facts supporting
the determination.

V.4. CLAIM 4: JAPAN'S CLAIM THAT KOREA FAILED TO TREAT PROPERLY CONFIDENTIAL INFORMATION IN
VIOLATION OF ARTICLES 11.4, 6.5, AND 6.5.1 OF THE ANTI-DUMPING AGREEMENT IS BASELESS

56. Japan claims that Korea violated Articles 11.4, 6.5, and 6.5.1 of the Anti-Dumping Agreement
because the Ko rean authorities afforded confidential protection of certain information without a
showing of "good cause", and because they failed to require sufficient non-confidential summaries of
the confidential information. Japan's claims of violation of these provisions are baseless.

57. In Korea, every interested party in anti -dumping investigations submits non -confidential
summaries by designating what information is to be treated confidential. It does this by deleting the
relevant information. By doing so, the provider of the information asserts that such deleted
information falls within the categories of "confidential information" specifically set forth in the relevant
laws in Korea (in particular, the Enforcement Decree and Enforcement Rule of the Customs Act of
Korea). It is understood that every participant in the underlying investigation, including the applicants
and the respondents, were aware of this established practice in Korea.

58. The KTC proceeded to assess objectively whether there was "good cau se", i.e. whether the
deleted information indeed fell within a category of confidential information enumerated in the
relevant Korean laws. In applying the relevant provisions of Korean law, the KTC also considered that
the requested confidential informati on was by nature "commercially -sensitive information (such as
profit or cost data or proprietary customer information) that is not typically disclosed in the normal
course of business and which would likely be regularly treated as confidential in anti -dumping
investigations". There was therefore an assessment of "good cause" in light of the standard applied
under Korean law, but the KTC did not require the applicants to link each piece of redacted information
to a category of confidential information, because the nature of the redacted information obviously
pointed to the relevant category of confidential information under the law. T here is no obligation
under Article 6.5 requiring investigating authorities to make express "statements" in their reports as
to whether good cause was shown for the confidential treatment of specific information. Rather, the

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obligation on investigating authorities is to treat any information as confidential "upon good cause
shown" by the provider of the information. Thus, an authority must only satisfy itself (i.e. "ensure")
that good cause is shown before treating the information in question as confidential.

59. Moreover, it is the established practice in Korea that all interested parties to anti -dumping
investigations provide th e "non-confidential summary" of their confidential information by way of
providing a public version of the document that contains the confidential information. Non-confidential
summaries are not required under Article 6.5.1 for every single figure and piec e of data included in
the parties ' submissions, regardless of the relevant context. Thus, investigating authorities are
entitled to a reasonable degree of deference in accepting or rejecting non-confidential summaries. In
the underlying investigation, the applicants provided non-confidential summaries for all confidential
information that they submitted. Such non-confidential summaries were in sufficient detail to permit
reasonable understanding of the substance of the confidential information.

60. In sum, Korea's treatment of confidential information in the third sunset review was consistent
with Articles 11.4, 6.5, and 6.5.1. Moreover, Japan did not include a claim under Articles 6.2 and 6.4
of the Anti-Dumping Agreement – thus confirming the respondents ' rights to defend their interests
were fully respected in the underlying investigation.

V.5. CLAIM 5: JAPAN'S CLAIM THAT KOREA FAILED TO PROVIDE SUFFICIENT DETAIL OF FINDINGS AND
CONCLUSIONS IN VIOLATION OF ARTICLES 12.3, 12.2, AND 12.2.2 OF THE ANTI-DUMPING
AGREEMENT IS WITHOUT MERIT

61. Japan claims that Korea acted inconsistently with Articles 12.3, 12.2, and 12.2.2 of the
Anti-Dumping Agreement because of a failure to provide in sufficient detail the findings and
conclusions reached on all issues of fact and law that the investigating authorities considered material.
However, Japan's arguments are without merit. The MOSF rendered its final determination by way of
endorsing the findings and recommendations made by the KTC and the OTI, without any modification.
When the MOSF issued the public announcement of the final determination, it also publicly disclosed
in adjoining annexes the Final Resolution and the Final Report.

62. Therefore, the MOSF complied with its obligations under Articles 12.3, 12.2, and 12.2.2 through
its disclosure of the Final Determination, which included the Final Resolution and the Final Report.

V.6. CLAIM 6: JAPAN'S CONSEQUENTIAL VIOLATION OF ARTICLE VI:6(A) OF THE GATT 1994 IS
UNFOUNDED

63. Japan claims that Korea acted inconsistently with Article VI:6(a) of the GATT 1994 because of
the alleged inconsistencies with Article 11.3 of the Anti-Dumping Agreement. Japan's claim is entirely
consequential of its Article 11.3 claims. Korea submits that this claim should be rejected, since Korea
has refuted Japan's claims under Article 11.3. Moreover, Japan's Panel Request fails to specify which
of the obligations under GATT Article VI :6(a) would be violated as a consequence of the alleged
inconsistencies with Article 11.3. T herefore, this claim is not within the terms of reference of the
Panel, as Japan has failed to present the problem clearly in accordance with Article 6.2 of the DSU.

CONCLUSION

64. For the reasons stated in this submission, Korea respectfully requests the Panel to reject all of
Japan's claims that Korea's determination to extend the anti -dumping measure on imports of SSB s
from Japan, India, and Spain is inconsistent with the Anti-Dumping Agreement.

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ANNEX B-3
SECOND INTEGRATED EXECUTIVE SUMMARY OF
THE ARGUMENTS OF JAPAN
I. Introduction

1. Through its second written submission, opening and closing statement s at the second
substantive meeting of the Panel, as well as its responses to the Panel's questions, Japan continues
to demonstrate that Korea's continued imposition of anti -dumping duties upon Japanese stainless
steel bars does not comply with its obligations under the General Agreement on Tariffs and
Trade 1994 ("GATT 1994") and the Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 ("Anti-Dumping Agreement").

II. Common Evidentiary Issues

A. Impermissibility of Ex Post Explanations

2. Korea has put forth and relied upon multiple new, ex post explanations for the findings and
conclusions in the reports of the Korea Trade Commission and Office of Trade Investigation
("Korean Investigating Authorities"). However, neither the evidence in th e record of the sunset
review at issue nor the Korean Investigating Authorities ' published reports indicate that these
explanations had been contemplated by the Korean Investigating Authorities during the sunset
review.

3. It is well established that a Me mber cannot supply new, ex post rationales in a World Trade
Organization (" WTO") dispute settlement proceeding to support the determinations of its
investigating authorities, when those rationales were not a contemporaneous part of the
investigation. It is clear that ex post explanations that cannot be discerned from the published
reports and record evidence cannot be considered by the panel as evidence of what the investigating
authority actually considered, analysed, or determined during its investigation.

4. Thus, in the present case, the ex post explanations presented to the Panel by Korea cannot
be taken into account in assessing whether the determination is consistent with the requirements of
the Anti-Dumping Agreement.

B. Standard of Review

5. An inquiry by the panel into whether there is an "alternative explanation of the facts [that] is
plausible" to assess whether the investigating authority 's explanation is reasoned and adequate in
light of that alternative explanation, found to be necessary by the Appellate Body in US –
Countervailing Measures (China) (Article 21.5 – China), is fully consistent with both Article 11 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes (" DSU") and
Article 17.6(i) of the Anti-Dumping Agreement, and was necessary in this case.

6. Japan's arguments do not seek a de novo review of the Korean Investigating
Authorities' findings in this case. Rather, Japan argues that the determination of likelihood of injury
in this case is clearly not reasoned and adequate based on the published reports and record evidence
from the investigation as the Korean Investigating Authorities' investigation has left open a risk of
the false attribution of injury to the alleged dumped imports from Japan , which means that the
conclusion that the expiry of the anti-dumping duty on imports (including Japanese imports) would
lead to the likely-recurring injury may be false.

III. Article 11.3 of the Anti-Dumping Agreement

7. The Korean Investigating Authorities ' determination of the likelihood of injury does not
comport with the requirements of Article 11.3 of the Anti -Dumping Agreement because it was not
based on positive evidence and an objective examination, and did not have a sufficient factual basis
to allow them to draw reasoned and adequate conclusions. Japan has provided explanations

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regarding both the legal standards and the specific analysis of the deficiencies of the
likelihood-of-injury determination at issue.

A. Legal Issues

1. Korea's Argument That the Causal Nexus Need Not Be Examined is Incorrect

8. Korea emphasizes that "there is no requirement to establish a causal link in a review under
Article 11.3", as Article 3.5 does not apply to sunset reviews, and states that Japan 's argument is
"essentially" concerned with such requirement that does not actually exist.

9. However, although a causal link between the dumping and injury may not need to be
established anew, a causal nexus between the expiry of dumping and the continuation or recurrence
of injury must still be established. This requ irement to establish the causal nexus derives from the
fundamental principles under Article VI of the GATT 1994 that (i) anti -dumping duties can be
imposed on imports from a certain Member only if dumping from that Member causes material injury
to the domestic industry, and (ii) if dumped imports cease to exist or cease to cause injury to the
domestic industry, no anti-dumping duty can continue to be imposed.

10. Article 11.3 of the Anti -Dumping Agreement confirms and embodies such principles under
Article VI of the GATT 1994, by requiring that the expiry of the anti-dumping duties would be likely
to "lead to" the continuation or recurrence of dumping and injury to the domestic industry. In this
regard, as the Appellate Body has recognized in US – Anti-Dumping Measures on Oil Country Tubular
Goods, examination of the causal nexus between the expiry of the anti -dumping duties and the
continuation or recurrence of injury to the domestic industry allows the existence of the causal link
between dumping and injury to be reasonably assumed, which is the reason that such causal link
may not be established anew in sunset reviews.

2. The Forward -Looking Nature of a Sunset Review Does Not Allow Bare
Speculation, and the Update of the Market Realities Is Necessary

11. Korea argues that because the analysis in a sunset review is "forward -looking", it inherently
includes a degree of speculation. However, as the Appellate Body found in US – Anti-Dumping
Measures on Oil Country Tubular Goods, the text of Article 11. 3 provides that "the termination of
the anti-dumping duty at the end of five years is the rule and its continuation beyond that period is
the 'exception'". According to the Appellate Body's finding in US – Corrosion-Resistant Steel Sunset
Review, the term "determine" in that provision also indicates that the investigating authority is not
allowed to "simply assum[e] that likelihood exists" without evaluating the facts of a particular case.
Rather, as the Appellate Body stated in US – Oil country Tubular Goods Sunset Reviews, the
requirement of Article 3.1 is "equally relevant" to sunset reviews, and thus such determination must
be based on "positive evidence" and an "objective examination". The Appellate Body further found,
in US – Corrosion-Resistant Steel Sunset Review, that "[a]n investigating authority must have a
sufficient factual basis to allow it to draw reasoned and adequate conclusions concerning the
likelihood of such continuation or recurrence".

12. This view that even forward looking analysis requires a proper factual basis is supported also
by Article 3.7 of the Anti -Dumping Agreement, which prohibits an affirmative finding of threat of
future material injury based "merely on allegation, conjecture or remote possibility". The analysis of
threat of material injury under Article 3.7 has a stronger forward-looking nature than the likelihood
of injury analysis under Article 11.3. In this regard, the Appellate Body in US – Oil Country Tubular
Goods Sunset Reviews has found that the "imminent" timeframe under Article 3.7 does not apply to
sunset reviews. However, the Appellate Body in US – Softwood Lumber VI (Article 21.5 – Canada)
also found that the Article 3.1 is an "'overarching provision[s]' that reinforce elements of Article 11
of the DSU by imposing certain 'fundamental' obligations' … that determinations of injury, including
threat of injury, be based on positive evidence and an objective examination of the specific factors
set out in these provisions" (emphasis added), and Articles 3.1 and 3.7 "enjoin a panel to scrutinize
carefully the inferences and explanations of the investigating authority in order to ensure that any
projections or assumptions made by it, as to likely future occurrences, are adequately explained and
supported by positive evidence on the record". Article 11.3 and 3.7 thus have a parallel relationship
to Article 3.1. Under both Article 11.3 and Article 3.7, speculation without positive evidence is not
allowed, as the authority must make a forward looking "determination", and all such determinations
must be based on "positive evidence" under Article 3.1. The phrase "not merely on allegation,

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conjecture or remote possibility" is helpful context for understanding how an authority should
approach a forward looking determination based on "positive evidence".

13. Therefore, the forward-looking nature does not excuse the likelihood-of-injury determination
from being based on the objective examination and positive evidence, and a sufficient factual basis
that allows the reasoned and adequate conclusion. Rather, in light of the forward -looking nature,
the likelihood-of-injury determination must be based upon proper inferences from the most recent
relevant past and supersede the prior determinations, and thus must ref lect the updated market
situation for the current POI. In this regard, the investigating authority cannot passively rely on the
findings of the previous proceeding without examining whether such previous findings actually apply
to the POI of the review at issue. In other words, the historical factual basis provided by the prior
proceedings must be updated to reflect the current market realities. Moreover, the investigating
authority must be open to a possibility that the fact finding in the prior proceedings was not accurate
when such possibility can be inferred from the market realities currently before the investigating
authority.

14. For this purpose, if the investigating authority properly finds that there has not been any
meaningful change in the fact ors and circumstances that supported the finding in a previous
proceeding and that there is no basis to consider that such prior finding was not accurate when
made, such finding could form the basis for an affirmative determination in a subsequent sunset
review. On the other hand, if an investigating authority finds a meaningful change from a previous
proceeding, the investigating authority cannot rely on the finding from such previous proceeding as
such, even if the finding may have been accurate at the time it was made. In such cases, the extent
to which the investigating authority can rely on a previous finding may depend on the degree of the
changes since the previous proceeding. If, for example, there have been substantial changes in
multiple factors that supported the previous finding, the investigating authority would only be able
to rely on the previous finding to a limited extent. It is even possible that the investigating authority
could not sufficiently assess the entire effect of such changes, thus eliminating the ability to rely on
any aspect of such previous finding. In such cases where an investigating authority cannot determine
the relevance of a previous finding to a current proceeding, the investigating authority must examine
the current status of the market and make new findings, rather than examining what has changed
from the previous proceedings.

3. Relevancy of Articles 3.2, 3.3 and 3.5 of the Anti-Dumping Agreement in Sunset
Reviews

15. Japan also considers that, as Article 3 and Articl e 11.3 are both based on the fundamental
principles established by Article VI of the GATT 1994, Articles 3.2, 3.3 and 3.5, while not being
directly applicable in sunset reviews, still constitute an important part of the context for
understanding the likelihood-of-injury determination under Article 11.3 in that they provide certain
guidance for what matters are required to be examined under Article 11.3. When properly viewed in
context, Article 11.3 only provides that the investigating authority has flexibility in the steps involved
and the evidence to be examined beyond those set forth in the various subparagraphs of Article 3.
And even though the investigating authority has somewhat more discretion as to its approach under
Article 11.3, that discretion does not allow it to ignore the important function of the analytical
framework under Article 3.

16. The Appellate Body 's findings confirm this understanding. The Appellate Body in US – Oil
Country Tubular Goods Sunset Reviews found that "[c]ertain of the analyses mandated by Article 3
and necessarily relevant in an original investigation may prove to be probative, or possibly even
required, in order for an investigating authority in a sunset review to arrive at a 'reasoned
conclusion'". The Appellate Body in t he same case states that "factors such as the volume, price
effects, and the impact on the domestic industry of dumped imports, taking into account the
conditions of competition, may be relevant to varying degrees in a given likelihood -of-injury
determination", and that "[a]n investigating authority may also, in its own judgement, consider
other factors contained in Article 3 when making a likelihood-of-injury determination".

B. Issues Related to the Analysis of the Korean Investigating Authorities

17. With regard to the substantive issues of the Korean Investigating Authorities' analysis, Korea
has been unable to explain the serious flaws in the Korean Investigating Authorities ' decision to
cumulatively assess the effects of imports from Japan, India, and Spain; their consideration (or lack

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thereof) of the effects of factors other than the product under investigation , their analysis of the
price and volume effects of the product under investigation, and their analysis of production capacity.

18. While the final likelihood -of-injury determination was based on four major findings, namely:
(a) a volume effects analysis, (b) a price effects analysis, (c) the unused export capacity, and (d) the
trade remedy measures in other cou ntries, because of the serious flaws in the aforementioned
issues, each of the four major bases for the determination has serious deficiencies. Structural defects
in even one of the four pillars would bring down Korean 's flimsy structure, and here all four of the
pillars are defective. Thus, the Korean Investigating Authorities ' affirmative likelihood -of-injury
determination, even in the totality of evidence, is not at all based on positive evidence and an
objective examination, nor reasoned or adequate.

1. The Korean Investigating Authorities' Decision to Use Cumulative Assessment
Does Not Comport with the Requirements of Article 11.3

19. Korea essentially argues that because Article 3.3 of the Anti -Dumping Agreement does not
apply per se to sunset revi ews, the Korean Investigating Authorities were not required to ensure
that their use of cumulative assessment was appropriate in light of the conditions of competition
between the domestic like products and the product under investigation and between the p roduct
under investigation from different subject countries, despite the fact that Korea has also admitted
that "whether imports are 'in the market together and competing against each other'" may need to
be examined when relying on cumulative assessment.

20. However, although Article 3.3 does not apply per se to sunset reviews, the requirements
contained within it may need to be satisfied in a sunset review regardless, depending on the factual
circumstances of the case, as an investigating authority must ensure that the injury to the domestic
industry is not being falsely attributed to the product under investigation from a particular country,
whether or not it chooses to cumulatively assess the effects of imports from multiple countries.
Otherwise, the in vestigating authority cannot determine, in accordance with the requirements of
Article 11.3, that the expiry of the anti -dumping duty on products from a certain country would be
likely to lead to the continuation or recurrence of injury to the domestic industry.

21. Specifically, if the products have no substantial overlap in their competitive relationships, that
is to say, if the products from a subject country do not substantially compete with the domestic like
products or the products from other subject countries, the impact of the products from that country
on the domestic industry as a whole may not reach the level of "material". Thus, if the evidence and
arguments before the investigating authority indicate the lack of substantial competition between
them, it needs to examine whether a sufficient competitive relationship can be found in spite of such
evidence and arguments, in order to remove the risk of false attribution.

22. It should also be noted that Korea admits that "whether imports are 'in the market together
and competing against each other'" may need to be examined when relying on cumulative
assessment. Moreover, the statement in the OTI 's Final Report that the "competitive market
environment at the time of the second sunset review has not ye t changed" at least shows that the
Korean Investigating Authorities also understood that they were required to find that subject imports
are "competing against each other" in order to use cumulative assessment.

23. Japan has demonstrated that the finding of and evidence before the Korean Investigating
Authorities in this case show that the products imported from Japan were constantly and
substantially higher priced than the domestic like products and the products imported from India,
and that the three countries' products had different product mixes in terms of the steel grades they
contained. Thus, it was highly likely that the imports from Japan overall do not substantially compete
with either of the domestic products overall or the imports from India overall. However, the Korean
Investigating Authorities made a baseless assumption that all of the Japanese, Korean, and Indian
products could be deemed homogeneous without addressing the findings and evidence that suggest
otherwise, which left open the possibility of falsely attributing the likelihood of injury to the domestic
industry to the imports from Japan.

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2. The Korean Investigating Authorities ' Analysis of Factors Other than the
Product Under Investigation Does Not Comport with the Requirements of
Article 11.3

24. Korea argues that the Korean Investigating Authorities were under no obligation to consider
factors other than the product under investigation because they were under no obligation to examine
causation and non-attribution in the sunset revie w, but that even if there was such an obligation,
the Korean Investigating Authorities did examine the other factors raised by Japan: third -country
imports; changes in the price of material costs; and demand in domestic and export markets.

25. However, the need to analyse other factors is directly derived from the fundamental principle
under Article VI of the GATT 1994 that anti-dumping duties can be imposed on imports from a certain
Member only if dumping from that Member causes material injury to the domestic industry, which
is confirmed and embodied in Article 11.3 of the Anti -Dumping Agreement. Indeed, the
Korean Investigating Authorities in this case made explicit findings that the current injury to the
domestic industry appeared to be cause d by the factors Korea mentioned above, which would be
likely to remain highly relevant upon the expiry of anti -dumping duties. Nevertheless, there is no
evidence on the record at all that they actually took into account these or any other factors, other
than the product under investigation, in making their likelihood -of-injury determination, which
means that all of Korea's arguments before the Panel are ex post arguments.

26. In addition, even the Korean Investigating Authorities ' alleged conclusions regarding such
factors lack a sufficient factual basis, because of their biased selection of data or other improper
analysis that allegedly supports the conclusions.

3. The Korean Investigating Authorities ' Analysis of Price Effects and Volume
Effects Does Not Comport with the Requirements of Article 11.3

27. Korea argues that the assessment of the volume and price effects of the dumped imports,
which are required under Article 3.2, are not required under Article 11.3, and that the
Korean Investigating Authorities "did not actually undertake a price effects analysis" in the sunset
review at issue. However, it is apparent that the Korean Investigating Authorities did in fact rely
upon such analysis in the sunset review at issue, as they stated t hat, "[w]here the anti -dumping
measures are terminated, a steep fall in the price of the dumped imports" would occur, which would
"lead to an increase in exports to Korea and weaken the price competitiveness of [domestic] [l]ike
products" in their final determination.

28. Japan understands that Article 3.2 does not directly apply to sunset reviews. However, an
analysis of the causal nexus between the expiry of the anti-dumping duties and the continuation or
recurrence of injury to the domestic industry wo uld logically require an assessment of the volume
and price effects of the dumped imports, as is required for the analysis of the causal link, so as to
comply with the requirement of Article 3.1 as well as the fundamental principles of Article VI of the
GATT 1994, which are confirmed and embodied in Article 11.3. Comparability of imported products
with the domestic products, which is required for analysing the volume and price effects of the
dumped imports under Articles 3.1 and 3.2, also constitutes an important part of factual context to
establish a proper causal nexus under Article 11.3, even if the specific method or manner in which
they must be examined may differ between original investigations and sunset reviews. In virtually
every case, comparability will be a key part of the positive evidence that should underlie the analysis
of the likelihood of injury by the investigating authority as framed by Article 3.1. This is because, if
the dumped imports are not comparable with the domestic like products, i.e., if the dumped imports
do not interact or compete in the market with the domestic like products, the expiry of the
anti-dumping duty against those dumped imports would not logically lead to the continuation or
recurrence of injury to the domestic industry from those dumped imports.

29. Korea also tries to justify the Korean Investigating Authorities' statement above, arguing that
"if the anti-dumping measure is continuing to affect the volume and price of the dumped imports, it
is reasonable and adequa te to assume that the volume and the price of the dumped imports will
increase and decrease, respectively, upon removal of the measure" and that the record showed that
the measure was continuously having an effect on the product under investigation.

30. However, this is a mere assumption without any factual basis and not consistent with the
record evidence. Since the imposition of the anti-dumping duties, the market situation has changed

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substantially in terms of several factors, including (i) changes in the product mix of the product
under investigation which is imported into Korea from Japan, (ii) changes in third country imports
into Korea which mean that other countries are now exporting higher volumes of products which
compete with the domestic like p roducts, and (iii) changes in the prices of materials.
Korea's argument is based on an incorrect presumption that the same market actors would act
exactly the same way upon the expiry of dumping as they did prior to the imposition of duties 15
years ago, despite the changes in market conditions.

31. Japan also notes that the Korean Investigating Authorities' assessment of the record evidence
that forms the basis for the findings of price and volume effects was non-objective and unreasonable,
and always directed to affirmative determination.

4. The Korean Investigating Authorities ' Findings and Analysis of Production
Capacity Do Not Comport with the Requirements of Article 11.3

a. Examination of the Production and Export Capacities Alone Does Not Suffice as
an Analysis of Conditions of Competition

32. To avoid the issues with the Korean Investigating Authorities ' price effect and volume effect
analysis, Korea argues that the KTC's alleged conditions of competition analysis instead focused on
the production capacity of the subject countries ' stainless steel bar industries. However, the
examination of production capacity and export capacity considers only the supply side of the market,
and thus, such examination alone cannot suffice as an analysis o f conditions of competition. The
Korean Investigating Authorities should have examined the demand side of the market as well, which
may include whether certain products are substitutable with other products in the market.

b. The ISSF's Data Was Neither Suitable Nor Reliable for the Sunset Review at Issue

33. In any event, the Korean Investigating Authorities ' production capacity analysis cannot be
considered reasonable and adequate because it was based on data which was not suitable for the
calculation of the production capacity and capacity utilization rate of the product under investigation.

34. The production capacity data from the International Stainless Steel Forum ("ISSF"), which the
Korean Investigating Authorities relied upon in maki ng their finding regarding the production
capacity of the Japanese producers that responded to the review ("Japanese Respondents") , is not
suitable to be used as the production capacity for the product under investigation because the scope
of products included within the data includes products other than stainless steel bars, and because
both the method of calculation and the source of the data are unknown, all of which do not apply for
the Japanese Respondents' data.

35. The ISSF's data was overbroad in that it captured products separate from the product under
investigation, namely stainless steel sections. Although Korea argues that the production capacity
for products other than the product under investigation should be counted in the production capacity
because the capacity is allegedly convertible to that of the product under investigation, such analysis
is not reflected in the Korean Investigating Authorities' records and is therefore an ex post argument.
Such premise for expanding the product coverage to calculate the production capacity was not
addressed to the Japanese Respondents in the review procedure either.

36. Furthermore, as mentioned in connection with the Korean Investigating Authorities ' analysis
of price effects and volume effects, the Ko rean Investigating Authorities did not examine whether
the Japanese Respondents had any incentive to produce additional quantities of the product under
investigation because they did not examine whether there was any additional demand that such
additional quantities could meet. Additionally, the Korean Investigating Authorities did not analyse
whether it was commercially feasible for the Japanese Respondents to convert their facilities which
are dedicated to other products.

37. The ISSF's data was further rendered unsuitable by the fact that the Korean Investigating
Authorities chose production volume data from another source, the Japan Stainless Steel
Association, the product scope of which did not match that of the ISSF's data. Thus, the calculation
of th e capacity utilization rate involved misalignment between the numerator (i.e. production
volume) and the denominator (i.e. production capacity). However, the Korean Investigating
Authorities did not consider this or attempt to compensate for it.

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38. At the same time, the Korean Investigating Authorities rejected the Japanese
Respondents' own data regarding their production capacities, which was specifically calculated to
show their capacity to produce the product under investigation. As the Japanese Respond ents
themselves are the primary source of information about their own production capacity, their
information should naturally have been used. However, the Korean Investigating Authorities rejected
the data on vague and insufficient bases (which were addressed in Japan's first written submission),
and none of the arguments Korea is presenting in the current proceeding in an attempt to explain
the rejection is reasonable, as discussed below in section V.B regarding Japan's claims under Articles
11.4 and 6.8 a nd Annex II. Also as explained in that section, the Korean Investigating
Authorities' allegation, that the ISSF's data was necessary because countrywide data was required,
is unfounded.

c. The Japanese Respondents Did Not Have Incentives to Utilize the Unused
Production Capacity to Increase Their Exports of the Product Under Investigation
to Korea

39. Furthermore, even assuming that the conclusion that the Korean Investigating Authorities
reached regarding the production capacity had been reasonable and adequately supported, the
Korean Investigating Authorities failed to consider whether or not any unused production capacity
may actually be used for products to be exported to Korea, because they did not assess whether or
not the Japanese Re spondents had any incentive to use that production capacity to produce
additional quantities of the product under investigation, or whether the Japanese Respondents had
any incentive to export additional quantities of the product under investigation to Korea.

40. The incentives of the Japanese Respondents must be examined, in order to connect the
production capacity to the likelihood of injury, because if the Japanese Respondents do not produce
or ship to Korea additional quantities of the product under investigation, then it could hardly be said
that the potential to produce additional quantities alone (with no actual additional production or
exporting ever taking place) could lead to the continuation or recurrence of injury to the domestic
industry.

41. In this respect, Japan cites as examples of factors which should have been considered,
considering the evidence that was before the Korean Investigating Authorities: the fact that the vast
majority of the product under investigation which is produced by th e Japanese Respondents is
consumed in Japan and Japanese demand for the product under investigation is growing; whether
there is any demand in Korea for additional quantities of the higher -priced product under
investigation that the Japanese Respondents pr oduce; and whether the Japanese
Respondents' product under investigation could compete with other products which could also meet
that additional demand, such as the imports from China and Chinese Taipei.

IV. Article VI:6(a) of the GATT 1994

42. In its first written submission, Korea takes issue with Japan 's claims under Article VI:6(a) of
the GATT 1994, arguing that Japan's panel request does not specify which of the obligations under
Article VI:6(a) would be violated and accordingly, that the claim is not within the terms of reference
of the Panel. Korea 's second written submission merely repeats the arguments of its first written
submission with no further elaboration.

43. Japan disagrees with Korea's position. Article 6.2 of the DSU provides only that a panel request
must "provide a brief summary of the legal basis of the complaint sufficient to present the problem
clearly" and that Japan 's panel request specifies the relevant paragraph of Article VI of the
GATT 1994 as "6(a)", and states that "Korea is levying the antidumping duties without establishing
that the effect of the dumping is such as to cause or threaten material injury to an established
domestic industry", such that the issue is clear and Japan's claim meets the standards.

V. Articles 11.4 and 6.8 and Annex II of the Anti-Dumping Agreement

44. Korea makes multiple arguments as to why the Korean Investigating
Authorities' determination did not present any problems under Article 11.4 and 6.8 and Annex II.
First, Korea puts forth several arguments as to why the provisions of Article 11.4 and 6.8 and Annex
II do not apply. Second, Korea argues that even if the Korean Investigating Authorities had resorted
to facts available, they did so properly. However, these arguments are not meritorious.

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A. The Provisions of Articles 11.4 and 6.8 and Annex II Apply

45. Korea argues that the provisions of Articles 11.4 and 6.8 and Annex II apply only when the
necessary information is specific to interested parties and that, in the present case , the necessary
information was the countrywide production capacity of Japan. However, first, there is no textual
basis in Article 6.8 or Annex II for any change in the applicable requirements for the use of facts
available depending on the type of informa tion at issue. Second, during the sunset review, the
Korean Investigating Authorities never indicated that they were seeking or examining information
on countrywide production capacity. Rather, the Korean Investigating Authorities ' questionnaire to
the Jap anese Respondents explicitly requested the individual exporter 's own production and
purchase volume of the product under investigation.

46. With regard to Korea's argument that the provisions of Article 6.8 are not mandatory, Japan
explained that Article 6.8 does not indicate that compliance with its provisions are optional, if the
investigating authorities have chosen to use facts available. The choice presented to investigating
authorities is to either use direct evidence provided to it or to use facts available and comply with
the provisions of Article 6.8 and Annex II.

47. Nor could the Korean Investigating Authorities escape from the requirements of Article 6.8
and Annex II by simply avoiding the term "facts available" in discussing the ir analysis. The inquiry
is not governed by the label that the investigating authorities attach to their actions. Here, where
the Korean Investigating Authorities have rejected the data of the Japanese Respondents regarding
their production capacity in ord er to use the production capacity data provided by another source,
the provisions of Article 6.8 and Annex II apply.

B. There Were No Faults with the Japanese Respondents ' Data Such as to Allow Its
Rejection in Favour of Facts Available

48. Korea argues that the information provided by the Japanese Respondents was not "verifiable",
was not "submitted so that it [could] be used without undue difficulties", and was not supplied in a
timely fashion, for various reasons, and that as a result, the use of the ISSF's data is consistent with
Articles 11.4 and 6.8, and Paragraph 3 of Annex II, of the Anti -Dumping Agreement. In its
second written submission, Japan explained why each of these reasons is not a justification for the
use of facts available, in addition to the fact that most of them were never mentioned by the
Korean Investigating Authorities during the sunset review proceeding or in their written reports and
are therefore impermissible ex post explanations.

49. First, Korea has not shown why the country wide production capacity was critical information
separate and distinct from the production capacity data it requested from the Japanese Respondents.
The Japanese Respondents represented the production of the overwhelming majority of the product
under investigation, with only a small fraction being produced by other producers. The figures for
countrywide production capacity and the Japanese Respondents ' aggregated capacity would not
have been particularly different. Thus, the limited remaining production capacity of other producers
can be either disregarded or extrapolated from other existing information.

50. Second, although Korea argues that "raw data" was not provided, the Japanese Respondents
answered each request for data made by the Korean Investigat ing Authorities, although the
Korean Investigating Authorities did not explain the precise content and nature of the allegedly
necessary "raw data". The record does not show that the Korean Investigating Authorities expressed
dissatisfaction with the data they received.

51. Third, the Japanese Respondents submitted their information within a "reasonable period",
giving the Korean Investigating Authorities sufficient time to examine the submitted data.

52. Fourth, the difference between the ISSF 's data and the Japanese Respondents' data is likely
to have derived from the difference in product coverage between the two datasets, and the
ISSF's data is less reliable. In addition, the alleged variations in the methodologies for the production
capacity calculation applied by each of the Japanese Respondents do not undermine the reliability
of their data. Stainless steel bar production involves a standard process which always includes
secondary processing, but the specific type of secondary processing may vary fro m company to
company. The Japanese Respondents ' data simply reflected this reality, and the Japanese

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Respondents thoroughly explained this to the Korean Investigating Authorities with the formulas
used in each company's calculation.

53. Lastly, the Japanese Respondents were fully cooperative with the Korean Investigating
Authorities' requests for information regarding their production capacity and acted to the best of
their abilities. Contrary to Korea 's argument, they never prevented or objected to on-site
verification.

C. The Korean Investigating Authorities Based Their Finding on Secondary Source
Information Without Special Circumspection

54. Korea argues (i) that the Japanese Respondents ' data is not "primary source" information in
terms of the countrywide production capacity of Japan and (ii) that the ISSF's data is not "secondary
source" information, and the information was relevant, reliable, and the best information. Korea
asserts that, accordingly, the Korean Investigating Authorities ' use of the ISSF's data is consistent
with Paragraph 7 of Annex II of the Anti-Dumping Agreement.

55. In this regard, Japan points out that information from the Japanese Respondents is the most
probative information. What is ultimately important is the sour ce's proximity to the original source
of the relevant information, and thus, the primary source of information about industry capacity is
data from the individual firms that make up that industry, rather than the ISSF. Korea 's assertion
that the ISSF is re liable as an institution does not substantiate the reliability of the production
capacity data compiled by the ISSF to be used in the sunset review at issue.

VI. Articles 11.4 and 6.9 of the Anti-Dumping Agreement

56. The main points of Korea's arguments are (i) that the legal standard under Article 6.9 allows
the disclosing party to meet the disclosure obligations by providing a narrative description of the
facts, and that such obligations are limited by the confidentiality obligations set out in Article 6.5,
(ii) that the Korean Investigating Authorities disclosed the essential facts sufficiently in
KTC's Resolution of Final Determination and OTI 's Final Report which were issued before the final
determination, and (iii) that the Japanese Respondents ' right to a defense has not been violated
because Japan has not brought a claim under Articles 6.2 or 6.4 of the Anti-Dumping Agreement.

57. However, where the Korean Investigating Authorities provided narrative descriptions of the
redacted information at iss ue, those descriptions were not sufficient to allow the Japanese
Respondents to understand the content of the redacted information sufficiently to defend their
interests. In addition, the Korean Investigating Authorities often did not provide any such narrative
description.

58. Furthermore, the confidentiality obligations under Article 6.5 do not limit the disclosure
obligations under Article 6.9. Rather, as the Appellate Body confirmed in Russia – Commercial
Vehicles, in an instance where confidential inf ormation constitutes essential facts, it need not be
directly disclosed, but the investigating authorities must instead disclose sufficient non -confidential
summaries of that information.

59. Additionally, the alleged disclosure of the essential facts through the reports of the
Korean Investigating Authorities was not sufficient because it was not made before the "final
determination", but rather the reports Korea refers to actually comprise the final determination.
Moreover, even if the final det ermination issued by the KTC could be considered a part of the
disclosure of the essential facts, OTI 's Final Report and KTC's Resolution of Final Determination do
not sufficiently disclose essential facts regarding: the alleged recurrence of dumping; unus ed
production capacity and export capacity; the Korean Investigating Authorities' use of facts available;
the Korean Investigating Authorities ' use of cumulative assessment; the effect of third -country
imports on the price of the domestic like products; th e effect of the product under investigation on
the price and volume of the domestic like product sales; the trends in the capacity utilization rates;
operating profit ratio of the domestic industry; and market share of third -country imports.
Accordingly, O TI's Final Report and KTC 's Resolution of Final Determination cannot remedy the
failure to disclose essential facts.

60. Finally, the absence of a claim under Article 6.2 or 6.4 of the Anti -Dumping Agreement does
not have any bearing on whether or not an investigating authority has met its disclosure obligations

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under Article 6.9. A country is not obligated to bring every claim that it has. Furthermore, past
findings of panels and the Appellate Body distinguish the obligations of the investigating authorities
under Articles 6.2 or 6.4 from those under Article 6.9.

VII. Articles 11.4, 6.5, and 6.5.1 of the Anti-Dumping Agreement

A. The Korean Investigating Authorities Treated Certain Information as Confidential
Even Though There Was No Good Cause Shown

61. Korea argues that the Korean Investigating Authorities did not fail to ensure that good cause
for confidential treatment of information was shown, because under the general practice of
anti-dumping investigations in Korea, the submission of redacted in formation is deemed to be an
implicit assertion by the submitter that the redacted information constitutes "confidential
information" which falls within one of the five categories of information that must be treated as
confidential specified in Article 15 of the Enforcement Rules of the Customs Act of Korea
("Enforcement Rules"), a domestic Korean law, and that such is a sufficient showing of good cause.

62. This does not suffice to satisfy the obligations under Article 6.5 regarding a showing of good
cause, for several reasons. First, it is for the party requesting confidential treatment of its information
to furnish reasons justifying such treatment to the investigating authority. Therefore, whether the
wording of the Enforcement Rules suggests any go od cause for confidential treatment is irrelevant
unless the party explicitly relies on such wording to justify confidential treatment of its information.
Second, some of the categories of information set forth in Article 15 of the Enforcement Rules are
too general to indicate good cause, and as a result, even if the Applicants ' mere act of redacting
data was intended to indicate a claim that it fell within one of the categories listed in Article 15 of
the Enforcement Rules, such an indication alone co uld not demonstrate good cause. Third, there is
nothing in the record of the present case demonstrating that the Korean Investigating Authorities
analysed the question of which one of the categories set forth in Article 15 of the Enforcement Rules
the redacted information would fall within.

B. The Korean Investigating Authorities Failed to Require the Submitters of Redacted
Information to Furnish Adequately Detailed Non-Confidential Summaries

63. In the Applicants' submissions in the sunset review at issue, the allegedly confidential figures
have been: (i) completely deleted without any ranges or percentage rates that sufficiently
summarize the redacted figures; (ii) replaced with a narrative which does not provide any meaningful
indication of the redacted information; or (iii) redacted with a yearly percentage change which does
not sufficiently summarize the substance of the redacted information. By not requiring the Applicants
to furnish non-confidential summaries of those allegedly confidential figures "in sufficient detail to
permit a reasonable understanding of the substance" thereof, the Korean Investigating Authorities
failed to satisfy their obligations under Articles 11.4 and 6.5.1.

VIII. Articles 12.3, 12.2, and 12.2.2 of the Anti-Dumping Agreement

64. Korea is mistaken in its understanding regarding Japan 's argument when Korea argues that
Japan demands a second disclosure of the same facts that had been disclosed pursuant to Article 6.9.
Japan is not arguing that all underlying data that was conside red by the KTC must be disclosed in
the public notice, but rather argues that all "relevant" information was not provided in "sufficient
detail".

65. Under Articles 12.2 and 12.2.2, when there is a matter that must necessarily be resolved by
the investigating authority to be able to reach a determination in the course of imposing a definitive
anti-dumping duty, such matter is "material" and has "led to the imposition of final measures", and
the investigating authority is required to include its findings and conclusions, as well as all relevant
information, regarding such matter in the public notice.

66. Japan has pointed out that although Korea states that the Korean Investigating
Authorities' published reports provided sufficient disclosure, Korea did not explain how the
documents did so. Korea has not provided any new arguments regarding these Articles in its
submissions after the first written submission.

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ANNEX B-4
SECOND INTEGRATED EXECUTIVE SUMMARY OF
THE ARGUMENTS OF KOREA
INTRODUCTION

1. This dispute concerns Korea 's third sunset review of the anti -dumping measures on imports
of stainless steel bars ("SSBs" or "dumped imports") from Japan, India, and Spain.

2. The original anti-dumping measures were taken by the Ministry of Finance and Economy (a
predecessor of the Ministry of Strategy and Finance) on 30 July 2004. The imposition of the
anti-dumping duties was extended by the Ministry of Strategy and Finance ("MOSF") firstly in
February 2010 and secondly in Octobe r 2013, through the first and second sunset reviews,
respectively. On 2 June 2017, in the third sunset review, the MOSF decided to extend the imposition
of the anti-dumping duties for a period of 3 years ("Final Determination").

3. The MOSF 's Final Deter mination was based on the Final Resolution of the Korea Trade
Commission ("KTC") and the Final Report of the Office of Trade Investigation ("OTI"), a subsidiary
organ of the KTC.

PRELIMINARY RULING REQUEST PURSUANT TO ARTICLE 6.2 OF THE DSU

4. Korea submits that Japan 's request for the establishment of a panel (" RFE") is inconsistent
with the requirements of Article 6.2 of the DSU since it fails to identify the "specific measures"
challenged and includes claims that were not covered by its request for consultations.

5. In the RFE, Japan refers to "the measures" by Korea, but never identifies the specific measures
in accordance with Article 17.4 of the Anti-Dumping Agreement. However, it is well-established that
a panel request must identify, as the specific measure at issue, one of three types of anti -dumping
measures, namely either a definitive anti -dumping duty, the acceptance of a price undertaking, or
a provisional measure. A panel request that only identifies a sunset review under Article 11 must
fail to meet this obligation.

6. In Korea, the sole authority to impose anti-dumping duties is vested with the MOSF, and it is
the MOSF's final determination that constitutes both the 'final determination' and 'decision to apply
definitive measure' under Article 6.9 of the Anti-Dumping Agreement. Proper weight must be given
to the DSU Article 6.2 requirement to identify "the specific measures at issue", which was
intentionally worded differently from the DSU Article 4.4 requirement to simply identif y "the
measures at issue". Accordingly, Korea submits that Japan 's Panel Request fails to identify the
specific measures at issue in accordance with Article 6.2 of the DSU and 17.4 of the Anti -Dumping
Agreement and, on that basis, all of Japan 's claims are outside the Panel 's terms of reference. In
the alternative, among others, Korea submits that the RFE unduly expanded on matters identified
in its request for consultation, and thus includes claims for which no proper consultations were held
in violation of Articles 4.4 and 6.2 of the DSU and Article 17.3 of the Anti-Dumping Agreement.

LEGAL STANDARDS

7. The applicable disciplines in sunset reviews are set forth in Articles 11.3 and 11.4 of the
Anti-Dumping Agreement. It is well-established that the 'nexus' (but not the 'causal' nexus as falsely
contended by Japan) that needs to be demonstrated under Article 11.3 by the authority is between
the removal of the anti -dumping measure, on the one hand, and the likelihood of injury and
dumping, on the other. Thus, while factors relating to a past period (e.g., POR) carry indicative
value, the authority's task in a sunset review is to examine whether there is a sufficient factual basis
to conclude there is a likelihood (or "probability") of future continuation or recurrence of injury upon
removal of the anti-dumping measure based on the totality of the relevant facts and substantiated
arguments. In addition, authorities are only required to examine and respond to arguments by the
interested parties that are properly substantiated, and not merely assertions or allegations.

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8. Where, as here, the anti -dumping measure has immediately and continuously exerted
remedial effect by suppressing the volume and inflating the price of the dumped imports throughout
the course of the measure's imposition, then it is only reasonable and adequate to assume that the
volume and the price of the dumped imports will increase and decrease, respectively, upon removal
of the current measure. Tellingly, neither the Japanese respondents nor Japan has addressed this
important element in the Korean authorities ' likelihood-of-injury determination. Japan 's only
argument is that the Korean authorities neglected to consider the market change since the original
measure, but this naked assertion is belied by the authorities ' express finding that the competitive
environment in the Korean market remained largely unchanged since the original investigation and
the second sunset review. In contrast, other than by relying on the de monstrably arbitrary and
groundless distinction between the "special" and "general -purpose" steels, Japan has totally failed
to refute this specific and important finding by the Korean authorities.

9. In contrast to Article 3 of the Anti-Dumping Agreement, under which various methodological
guidance is provided with respect to each step of injury-analysis, Article 11.3 does not prescribe any
specific methodology for making a "likelihood -of-injury" determination, and it does not identify
particular factors that must be taken into account in such a determination.

10. It is also worth noting that the causal link between the dumped imports and the domestic
industry that was established in the original investigation need not be established anew in the sunset
review. Indeed, the Appellate Body has underscored that original investigations and sunset reviews
are distinct processes with different purposes, and thus, "it is reasonable to assume that … the causal
link between dumping and injury, es tablished in the original investigation, would exist". It follows
that all of the "building blocks" for the causal link, i.e. the volume, price effect (including the price
comparability), and impact on domestic industry analyses, need not be established anew in a sunset
review. It naturally also means that the price developments during the past period cannot be
determinant for the projection of the future price effect in the "forward -looking" analysis, where
fundamental changes in pricing matrix is destined to occur upon termination of the current measure.

11. In addition, the Appellate Body has consistently found that cumulation is not the exception,
but is rather what would "normally" happen in injury proceedings. Further, the Appellate Body in
US – Oil Country Tubuluar Goods Sunset Reviews, while rejecting the notion that Article 3.3 applies
to Article 11.3, essentially held that cumulation is permitted in a sunset review as long as products
from different sources are in the same market together and competes with the like domestic product.
Japan's claim on cumulation is flawed in every way.

12. Next, Korea recalls an important WTO jurisprudence under which a breach of Article 11.3
cannot be found based on certain intermediate findings of the investigating authority, but may be
found only when it has been clearly established that the authority 's overall likelihood -of-injury
determination, when holistically reviewed based on the totality of circumstances, cannot be
sustained. Indeed, WTO jurisprudence confirms that, where determinations are based on multiple
considerations, any alleged errors must be sufficiently materi al to undermine the objectivity of the
entire assessment. This is all the more true in the context of Article 11.3, which does not require
any specific intermediary findings, but simply requires that there be a sufficient factual basis for the
likelihood determination.

13. It goes without saying that the burden to establish a prima facie case that an error is
sufficiently material to the overall determination rests entirely upon the complaining party.

14. Regarding the burden of proof, Korea must stress that such burden also attaches to the
complainant (especially) whenever they raise the flag of ex post rationalization. Whether such
argument is raised against a piece of evidence or certain reasoning submit ted by the responding
party, the complainant bears the burden of proof, which can only be met upon establishing a prima
facie case. The Panel, as an objective reviewer of the case, must not apply double standard of proof
by being lenient with the complainant's argument and strict with the responding party's argument.
If anything, the Panel must respect the responding party 's entitlement to the presumption of good
faith compliance.

15. Finally, Article 17.6 of the Anti -Dumping Agreement highlights that the panel is not the trier
of fact in anti-dumping disputes but is only to review whether the determination of the investigating
authority was objective and unbiased. It importantly specifies that if the evaluation was unbiased

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and objective, the evaluation shall not be overturned, even though the panel might have reached a
different conclusion.

16. Put differently, the Panel's task is not to determine whether it would have reached the same
result as the Korean authorities. Rather, the Panel 's task is to dete rmine whether a reasonable,
unbiased authority, looking at the same evidences presented before the Korean authorities, "could
have" – not "would have" – reached the same conclusion that the Korean authorities reached in the
underlying review. Thus, the Panel must not substitute the authorities' findings with that of its own,
or review the reasonableness of the authorities' findings through a prism of its own creation.

RELEVANT CONTEXT OF THE UNDERLYING THIRD SUNSET REVIEW

17. Korea originally imposed anti-dumping measures on SSBs from Japan in 2004 and these duties
were extended twice through the first and second sunset reviews. In these prior proceedings, similar
issues were raised and they were addressed in the same manner as in the underlying review, without
challenge by Japan. The third sunset review, therefore, was derived from and part of a string of
connected and sequential determinations. Therefore, factual and analytical findings from prior
proceedings lend important contextual support to the authorities' findings in the underlying review.

18. It must be noted that the Korean authorities are under a statutory obligation to confirm the
competitive relationship not only between the dumped and domestic products, but also among the
dumped imports before proceeding to assess the impact of the dumped imports cumulatively. Thus,
the authorities expressly stipulated in their previous investigative reports that the competition exists
between the dumped and domestic products, and among the dumped imports. In the underlying
review, the Korean authorities also complied with this statutory obligation and expressly found that
the competitive environment remained unchanged since the original investigation or second review.

19. In arriving at such finding, the Koran authorities properly conducted extensive analysis based
on various factors such as customer survey, customer evaluations, grade specification under
internationally-recognized certification standards, manufacturing processes, dist ribution channels,
price, functions and purported uses, etc. Japan attempts to unduly limit such extensive analysis as
the basis for the Korean authorities ' findings on the "likeness" exclusively, and argue that a
competitive relationship cannot be presumed based on the finding of "likeness" only.

20. As a preliminary matter, a finding of "likeness" necessarily establishes a presumption of
competitive relationship between the products that are alike. The Panel must not fall into the trap
of inadvertently conflating the Article 3.2 requirement to ensure the price comparability with the
presumption of competition, which are two distinct concepts. More importantly, the Korean
authorities did not base their "finding" on the "competitive relationship" on their "likeness finding"
as mischaracterized by Japan. Rather, as expressly and separately described by the investigative
reports from the original investigation, the first, second, and the underlying third sunset reviews,
the Korean authorities rendered an independent finding on the "competitive relationship" as
specifically required under its own applicable laws. Japan 's only argument in this regard is that the
authorities erred by finding the "competitive relationship" based only on their finding of "likeness",
which is clearly misplaced. The authorities did not presume, but explicitly found, the required
competitive relationship through extensive analysis based on various factors.

21. This is not to mention that denying such competitive relationship would contravene the
prevailing reality. Indeed, SSBs are internationally traded commodities, which share physical
similarities and fungibility in use (thus the market competition). SSB products are a special-purpose
steel grade among steel bars (not the arbitrary "special" steel distinction alleged by Japan), an d
SSBs products generally compete with each other on the basis of their grades or specifications.
Because SSBs is an internationally traded commodity, traders rely on internationally -recognized
designation standards when placing orders. Thus, SSB orders are placed based on designated grades
or specifications, and as long as the ordered products are certified for that certain grade or
specification, the fungibility between the products are presumed and the products are deemed to be
in a competitive relationship.

22. In addition, SSB production facilities have high adaptability for a wide-range of steel products,
without a need for further investment in or alternation of the facilities. It is well known that SSB
production facilities not only can produce all kinds of SSB products with different grades, but can
also produce other steel products that require similar surface treatment almost immediately upon

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order. The industrial practice for SSB is to maintain only minimal amount of inventory, as vast
majority of SSB sales are produced upon order. The Japanese respondents explicitly confirmed that
this was their case as well, i.e. that SSB products were manufactured and supplied to
Korean customers on an 'on -demand basis', and thus that they do not maintain inve ntory in
principle. A corollary of this undisputed fact is the high adaptability of SSBs production facilities,
where production can be tailored to customer demand and specifications. In other words,
SSB producers can modify easily and quickly their facilities to produce any grade of SSB as long as
there is demand. Japan 's refusal to accept (while not being able to deny) this prevailing reality is
revealing.

23. Moreover, the Japanese respondents ' participation in the underlying review was highly
selective. Even Japan is forced to admit that the Japanese respondents refused to participate in the
dumping proceeding. In the injury proceeding as well, the Japanese respondents submitted various
unsubstantiated allegations that were also self -contradictory. In f act, most, if not all, of the
allegations by the Japanese respondents that are being examined by the Panel in this dispute were
unsubstantiated and/or internally inconsistent. Korea has also demonstrated how every attempt by
Japan at explaining or post hoc justifying such fundamental inconsistency and errors fatally fails.
Such a general lack of veracity must not be exonerated or otherwise disregarded by the Panel.

24. Finally, Korea has demonstrated that the decision to extend the SSB measure in the
third sunset review was based on a sufficient factual record and involved an objective examination
of the record facts. Specifically, the Korean authorities ' determination of a likelihood -of-injury was
reasonable, in line with standard practice, and based on multiple considerations which together
formed the basis for the determination. However, Japan builds its entire claim under Article 11.3 on
a few elements of these multiple considerations in isolation, namely in particular (i) the distinction
between the so-called "general-purpose" and "special" steel, and (ii) the use of ISSF data over the
respondents' data.

25. These isolated allegations are neither legally relevant nor supported by the record facts. Nor
has Japan demonstrated that they are material to the validity of the overall likelihood -of-injury
determination. Clearly, Japan did not even attempt to show such materiality in this dispute.

LEGAL ARGUMENT

V.1. CLAIM 1: JAPAN'S CLAIM THAT KOREA ERRED IN ITS DETERMINATION THAT THE EXPIRY OF THE
SSB DUTIES WOULD LIKELY LEAD TO RECURRENCE OF INJURY IS WITHOUT MERIT

26. Japan advances four specific arguments in support of its claim under Article 11.3 that the
authorities' likelihood-of-injury determination is flawed. However, all four such arguments are
without merit.

V.1.1. WHETHER THE AUTHORITIES' CUMULATIVE ASSESSMENT WAS IMPROPER

27. Korea considers that this claim is without merit. In the absence of any specific legal
requirement in Article 11.3 in respect of cumulation in sunset reviews, Japan fails to demonstrate
that there was an insufficient factual basis for Korea 's decision to c umulate imports, or that the
decision did not rest on positive evidence and an objective examination. Rather, t here was a
sufficient factual basis for Korea's decision to cumulate imports from Japan, India, and Spain.

28. Indeed, the Appellate Body in US – Anti-Dumping Measures on Oil Country Tubular Goods
clearly found that cumulative assessments in sunset reviews is permissible provided such a decision
is supported by positive evidence and has a sufficient factual basis that the imports are essentially
'in the market together and competing against each other'. The authorities found that all dumpe d
imports, regardless of origin, are in competition with each other and with the like domestic products.
The covered products were produced by all of the subject countries as well as Korea, were fungible,
were present in the Korean market during the review period, and used the same distribution
channels.

29. During the underlying review, the Japanese respondents essentially argued that the dumped
imports from Japan must be assessed separately because they are not in competition with the
imports from India or the like domestic products, which in turn was based on their allegation that
the dumped imports from Japan was predominantly composed of higher priced "special" steel,

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whereas the Indian imports and the like domestic products are composed of lower priced
"general-purpose" steel.

30. First, a price differential between two products does not ipso facto deny the competitive
relationship. Accepting such a misguided premise would be tantamount to denying the prevailing
reality in any market, where corresponding products with different prices always compete with each
other over the same market share. Also, price differential is not even an element for the Article 3.3
"condition of competition", a requirement that does not even apply to sunset reviews under
Article 11.3. Simple price differential, without more, cannot refute the competitive relationship that
was explicitly found to exist. This is all the more so given that a likelihood -of-injury determination
in a sunset review must be based on a forward-looking analysis, under which authorities are required
to draw a reasonable speculation as to a future scenario when the prices would necessarily drop due
to the removal of the anti-dumping duties, probably followed by further price drop triggered by influx
of subject imports and heightened competition that follows. As such, current price differential is even
less meaningful in a sunset review than in an original investigation.

31. Second, the Korean authorities considered that the products are in competitive re lationship
based on various factors such as "physical characteristics, manufacturing process, distribution
channel, purpose of use, consumer's evaluation, etc." between the dumped and domestic products.
The authorities also confirmed that the ratio of "special" and "general-purpose" steels from Japan
and India, and those produced by the domestic industry, remained at similar proportion since the
second POR. The authorities thus reasonably considered that the "competitive market environment
at the time o f the second sunset review has not changed", and concluded that such differences in
proportion cannot be a basis to find lack of "competitive relationship" between the products.

32. Third, the Japanese respondents ' self-serving allegation that they have s hifted away from
producing "general-purpose" steel was unsubstantiated, and was refuted by the record fact. The
respondents argued without any evidence that they (and all Japanese SSB producers, for that
matter) no longer produce or sell "general -purpose" steels to Korea, alleging that they had
exported [[***]] tons of "general-purpose" steels to Korea in 2015. This unsubstantiated allegation
was proven to be false by the official customs clearance data of Korea, as their sale of
"general-purpose" steel act ually increased between 2014 and 2015, even after giving maximum
benefit of doubt to their allegation by treating all unclassifiable imports as "special" steel. Thus, the
respondents' another groundless assertion that they have shifted away from producing and selling
"general-purpose" steels to Korea also lost any merit. At the same time, even if the
respondents' allegations were true ( quod non), that in and of itself does not establish that they
cannot or will not resume selling the "general-purpose" steels to Korea even after the anti-dumping
measure is lifted and incentives are thus presented.

33. Fourth, the respondents ' distinction between the so -called "general-purpose" and "special"
steels was simply groundless; to make matters worse, the respondents unduly changed the definition
of "general-purpose" steel three times during the review, without any justification. Their alleged
export volume in 2015 also changed at least twice (again without any justification), and this was
not due to the change in de finition as they had alleged higher export volume of "general -purpose"
steel when they defined only grade 304 as "general -purpose" (i.e., [[***]] tons) than when they
defined both grade 304 and 316 as "general -purpose" (i.e., [[ ***]] tons). Their alleged e xport
volume was proven to be false, and when asked for justification, the respondents simply withdrew
the allegation about ceasing to export "general -purpose" in 2015, again without providing any
justification. The disingenuous nature of the respondents' responses in the underlying review is
further confirmed by their own subsequent statement to the USITC that the U.S. market is not their
target, as their SSB export is focused on the Asian markets with Korea being their top three
SSB export markets.

34. Fifth, it must be noted that Japan 's arguments before the Panel have been inconsistent and
ever-changing. Originally, Japan argued that the cumulation was flawed because the imports from
Japan was predominantly composed of higher -priced "special" steel, whereas the Indian and
domestic products were predominantly composed of lower -priced "general -purpose" steel. Upon
learning that the "special" steels are actually lower -priced than "general -purpose" steels, and
learning that the respondents' (eventually abandoned) allegation about the [[ ***]] export volume
in 2015 contradicts the official customs clearance data, Japan quickly changed the course. Japan is
now basically arguing that the imports from Japan are priced higher anyways so there ca n be no
competition, and that the authorities ' improperly treated the respondents ' allegation about the

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"general-purpose" steel. Certainly, such unsubstantiated and self -serving allegations must
necessarily be rejected.

35. Korea recalls that Japan 's latest arguments are developed opportunistically based on the
Panel's relevant questions. But Korea has already demonstrated that price differential alone cannot
disprove the competitive relationship, and the authorities have nonetheless found the competitive
relationship based on an extensive analysis of various factors, as required by the applicable
Korean laws. Also, the respondents ' allegations about the "general -purpose" steel were
unsubstantiated, inconsistent, and eventually abandoned by the respondents themselves. Most
importantly, Japan provides no substantiated argument whatsoever, let alone establishes a prima
facie case, against the authorities ' decision to cumulatively assess the imports from Japan, India,
and Spain for the underlying review.

36. To conclude, Japan 's arguments against the authorities ' decision to cumulate are entirely
meritless.

V.1.2. WHETHER THE AUTHORITIES' CAPACITY UTILIZATION FINDING INVALIDATES THE
OVERALL LIKELIHOOD-OF-INJURY DETERMINATION

37. Japan argues that authorities' likelihood-of-injury determination was flawed because it was
based on, among others, the allegedly erroneous finding that Japan 's SSB industry had sufficient
additional production capacity for exports. Japan argues that this finding was not based on an
objective examination of positive evidence because the authorities rejected "direct evidence"
submitted by the respondents and instead relied on the ISSF data. Japan's claim is without merit.

38. First, Japan fails to substanti ate, let alone establish, how such alleged flaw in the
authorities' finding on the capacity utilization necessarily results in violation of Article 11.3. Indeed,
the authorities' likelihood-of-injury determination rested on numerous other considerations, s uch
that even without the authorities ' finding on capacity utilization, the overall likelihood -of-injury
determination that largely followed the classic likelihood-of-injury analysis would properly stand.
Indeed, it is well -established that errors in intermediate findings do not render the overall
likelihood-of-injury determination inconsistent with Article 11.3, especially if the determination is
supported by other factors. That is because a violation of Article 11.3 can be established only upon
proving that the authorities ' overall likelihood -of-injury determination is flawed. Thus,
Japan's challenge against the Korean authorities' specific finding on the capacity utilization, even if
successful (quod non), cannot invalidate the overall likelihood-of-injury determination.

39. Second, at any rate, the Korean authorities ' more directly relevant intermediate finding that
the Japanese SSB industry has the capacity to increase production and export of the covered product
to Korea upon removal of the anti -dumping measure must remain valid. As explicitly confirmed
through the case of one of the Japanese producers, secondary processing can be simply outsourced
if desirable. Thus, the notion that the SSB producers are bound by their current production capacity
is factually incorrect; as long as incentive arises upon removal of the current measure, current
capacity utilization would not pose meaningful restriction on increasing the SSB export to Korea.
Next, the Korean authorities confirmed that the Japanese resp ondents were continually making
investments on the new facilities, indicating that their overall production capacity will increase.

40. Third, even if the respondents ' unsubstantiated, inconsistent and entirely self -serving
numerical allegation about the ir production capacity is accepted "as is", the authorities ' relevant
intermediate finding still remains valid. That is, the authorities considered that, even assuming
arguendo that the unsubstantiated capacity utilization as alleged by the respondents is legitimate,
the respondents alone had the spare capacity to produce a significant additional amount of the
covered products in 2015, which amounted to a major portion of the total domestic sales of the like
domestic product.

41. Therefore, the Korean authorities' finding that the Japanese SSB industry has the ability to
increase production and export of the covered products to Korea upon removal of the measure must
remain valid at any rate. In turn, the Korean authorities ' overall likelihood-of-injury determination
remains unaffected by any flaw in the authorities' numerical finding on the capacity calculation.

42. Fourth, the authorities' finding about the capacity utilization was reasonable. Korea submits
that the authorities ' selection of bot h the numerator (the JSSA data) and denominator (the

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ISSF data) for their calculation of the capacity utilization was reasonable, duly reflecting the
high-adaptability of the SSB production facilities. The ISSF data were eminently objective, reliable,
and credible, and the data's scope was reasonably limited so as to allow proper calculation of the
capacity utilization. Any perceived misalignment between the numerator and the denominator does
not undermine at all the overall reasonableness of selecting the ISSF data as the denominator. In
any case, the outcome of such alleged misalignment has only negligible impact on the capacity
utilization calculation.

43. Fifth, very importantly, the Japanese respondents ' alleged production capacity was both
unsubstantiated and unreliable because it lacked any sort of supporting materials and the
respondents failed to respond to the authorities' repeated requests for verifiable information. In fact,
the respondents refused to provide the requested overall production capacity data and the proportion
of SSB products that are being manufactured through the same production facilities, etc., while only
providing the same, unsubstantiated and self -contradictory numerical allegation over and over
again.

44. To make the matters worse, the respondents provided conflicting explanations as to the scope
and source of their numerical allegation. In light of the fact that the respondents never provided any
sensible justification for such blatant changes in course, and the fact that th eir alleged production
capacity differed so significantly from the ISSF data, the respondents ' unsubstantiated numerical
allegation simply could not have been accepted as their actual combined production capacity.

45. Finally, Japan has failed to establis h any flaw in the Korean authorities ' findings through its
unsubstantiated and constantly changing arguments.

46. Japan's original argument about the capacity utilization was that the Korean authorities used
capacity for 'primary processing', which was squarely refuted by the record evidence. Japan then
moved on to argue that capacities for "SSB" and "sections" are distinctive. Korea then demonstrated,
based on the Japanese respondents ' own catalogues and the structure of the ISSF data, that the
same capacity can be used to produce both "SSB" and "sections".

47. Japan now argues that sections are not subject to 'peeling processing'. But not only does that
new allegation runs counter to the respondents ' own catalogue, but it also disregards the fact that
the secondary processing capacity found by the authorities were not limited to 'peeling ' only, but
also 'grinding, peeling, and drawing'. In this regard, Japan ignores the fact that the covered products
included not only 'round bar', but also 'square bar', 'hexagonal bar', and 'flat bar'; secondary
processing capacities used for producing sections can readily be used for producing various types of
covered products, even accepting arguendo Japan's argument that 'peeling capacity' cannot be used
for prod ucing 'round bar'. At the same time, to the extent that Japan maintains that the
respondents' alleged production capacity was in fact limited to "peeling" process only, Japan 's own
argument profoundly tarnishes the legitimacy of the Japanese respondents' numerical allegation, as
the alleged number may then cover "round bars" only, but not other "shaped" covered products.

48. Korea has pointed out several of Japan 's disingenuous representations of basic facts in this
dispute, which should carry at least some weight in the Panel's assessment of the matter before it.

V.1.3. THE AUTHORITIES' FINDING THAT REMOVAL OF DUTIES WOULD LIKELY TRIGGER
INCREASE OF IMPORTS AND DECREASE OF PRICE FOR THE DUMPED IMPORTS

49. Japan argues that the Korean authorities violated Article 11.3 of the Anti-Dumping Agreement
because the determination of a likelihood of recurrence of injury was based on the erroneous finding
that imports from Japan would increase if duties expired and that domestic prices would significantly
decrease. Japan asserts that this is speculative and that the Japanese industry has shifted its focus
away from the price competitive "general purpose" SSBs that dominate the Korean market.
However, Japan 's assertions are not supported by the fa cts on the record which reasonably
supported the Korean authorities' contrary findings.

50. As an initial matter, Japan attempts to recycle its arguments against the
authorities' cumulative assessment of the imports from Japan, India, and Spain. But onc e the
cumulation is deemed valid, all subsequent review must be conducted on that cumulative basis.
Thus, Japan's claims in this regard are largely misplaced and must summarily be rejected.

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51. Next, the finding that dumped imports were likely to increase if duties expired was based on,
inter alia, a recent increase in their volume and market share (despite the imposition of duties), in
combination with the fact that such volumes were still well below pre-measure levels, suggesting
further increases upon removal of the measure were probable. In addition, the authorities found
that there was considerable spare production capacity in all subject countries to increase the
production and export of the covered products.

52. Furthermore, the authorities ' examination of prices showed that the dumped imports on
cumulative basis continued to undercut prices of the like domestic product throughout the POR, and
that the average import and resale prices of the dumped imports were considerably lower than the
average res ale price of the like domestic product at the end of the POR. Thus, even with the
imposition of anti -dumping duties, the average sales price of the dumped imports undercut the
average price of the like domestic product. The logical conclusion, therefore, was that expiry of the
duties would exhort additional price pressure on domestic prices. This finding was supported by
analysis of the above-referenced price data and related explanation. The authorities also expressly
pointed to the fact that the removal of the duties on imports from Japan would make these imports
more price competitive putting additional pressure on domestic prices.

53. Finally, the Korean authorities also examined the likely impact of other factors, especially
third-country imports, material costs, and domestic demand. This analysis showed that there were
no reasons why such other factors would refute a finding of likely in crease in volume and decrease
in domestic prices if duties were removed. For example, the volume and market share of
third-country imports remained stable over the review period, and their market share had only
increased slightly.

54. In sum, the Korean a uthorities' determination of a likely increase in the volume of dumped
imports and a drop in domestic prices if duties were to expire was firmly grounded in the facts on
the record and was based on reasonable projections about future events.

V.1.4. JAPAN'S CLAIM THAT KOREA FAILED TO PROPERLY EXAMINE THE LIKELY IMPACT OF OTHER
FACTORS IS WITHOUT MERIT

55. Japan argues that the Korean authorities' determination of a likelihood of recurrence of injury
is inconsistent with Article 11.3 because the authoritie s failed to examine properly the likely injury
caused by "known factors other than the dumped imports". However, first, as a legal matter,
Article 11.3 does not require a causation and non-attribution analysis based on the effects of dumped
imports on injury as separated and distinguished from the effects of other known factors, as is the
case in original investigations under Article 3.5. In any case, second, as a factual matter, the
authorities' determination involved an objective examination of positive e vidence, and rested on a
sufficient factual basis, that allowed the authorities to make a reasoned and adequate conclusion on
the likelihood of recurrence of injury if the duties were removed even in the light of other factors.

56. As part of this analysi s, although not legally required, the Korean authorities considered the
effects of factors other than the dumped imports, such as third-country imports, material costs, and
demand. The Korean authorities found that there was no basis to consider that these other factors
played an important role in determining the likelihood of recurrence of injury if the anti -dumping
duties were removed. For example, regarding the volume of third -country imports, the authorities
found that the volume and market share of the se imports remained stable over the review period,
and trended similarly to the dumped imports and the like domestic product. In addition, material
costs declined and demand increased in the review period. These two factors could not be a separate
cause of recurrence of injury if the duties were removed.

V.2. CLAIM 2: JAPAN'S ERRONEOUS CLAIM THAT THE ALLEGED USE OF FACTS AVAILABLE VIOLATED
ARTICLES 11.4, 6.8 AND PARAGRAPHS 3 AND 7 OF ANNEX II

57. Japan claims that the authorities acted inconsistently with Articles 11.4, 6.8, and paragraphs 3
and 7 of Annex II of the Anti-Dumping Agreement because they rejected information submitted by
the Japanese respondents and allegedly resorted to facts available for calculating the SSB production
capacity in Japan based on ISSF data. However, Japan errs when it argues that the authorities
resorted to the use of facts available, and in any case fails to demonstrate that the authorities acted
inconsistently with Article 6.8 and paragraphs 3 and 7 of Annex II in the underlying review.

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58. First, the Korean authorities did not resort to th e use of facts available due to missing
necessary information in the third sunset review. They simply attached more weight to the reliable
ISSF data. The authorities had the necessary information that most reliably represented
Japan's countrywide capacity and production from reputable public sources, e.g. the ISSF data.
Article 6.8 and Annex II simply do not apply to a likelihood -of-injury determination where
investigating authorities seek to examine, as one of many factors, the availability of excess
production and export capacity in a country of export. While actual data about producers' prices and
costs are "necessary" to be obtained from the producers themselves in order to make a
determination of dumping, the same is not the case for a likelihood-of-injury determination. Such a
determination includes an analysis of a country's production capacity and capacity utilization with a
view to evaluating the likely future increase in the volume of imports, as one of many factors that
is examined. In this case, there was no missing information, as there was reliable and objective data
available from the ISSF. In addition, the specific information from the cooperating exporters did not
constitute "necessary" information, as such data was only producer specific. There was thus no gap
to fill that would have required the authorities to resort to facts available under Article 6.8.

59. Second, in any case, and should the Panel find that the authorities resorted to facts available
(quod non), every condition under Article 6.8 was satisfied and, thus, the authorities were justified
to use facts available. Indeed, Korea has already explained how the respondents constantly refused
to comply with the authorities ' repeated requests for detailed information by submitting the same
self-contradictory number over and over again, without providing any supporting materials that
would have allowed verification. Importantly, the respondents provided conflicting explanations
about the scope and source of their numerical allegation of production capacity, rendering it even
more impossible to verify the allegation, at least without "undue difficulties", to say the least. Thus,
the respondents more than significantly impeded the underlying third sunset review, failed to act to
the best of their abilities, and their submitted information was neither verifiable, nor appropriately
or timely submitted so that it could be used without undue difficulties by the Korean authorities.

60. Third, there is no basis for Japan 's claim that the Korean a uthorities acted without special
circumspection when using the ISSF data. Korea notes that the ISSF data did not constitute
"secondary source" information. As there was no primary source of information for the finding on
capacity available in Japan as a wh ole, the ISSF data could not constitute secondary source
information. In any event, the Korean authorities assessed the relevance and reliability of the ISSF
and JSSA data for the question concerning production capacity and capacity utilization in Japan. It
found that the ISSF data represented useful and reliable data on this issue, as it was collected from
various producers and national associations involved in the SSB industry, and that the data was
frequently relied on in anti-dumping investigations of other WTO Members.

61. In contrast, Japan has never even attempted to argue that more reasonable replacement than
the ISSF data was available to the Korean authorities, but only argued that the respondents ' data
was more reliable. In fact, Japan repeatedly confirmed that it is not challenging the reliability of the
ISSF data. Simply put, Japan has failed to establish a prima facie case in relation to its paragraph 7
claim.

62. In sum, the Korean investigating authorities did not resort to the use of facts available, as
they had relevant and appropriate i nformation on production and exports of SSBs in Japan from
reputable public sources. Assuming, arguendo, that Article 6.8 and Annex II of the Anti -Dumping
Agreement even apply, all conditions for resorting to facts available were met. Japan 's claim is to
be rejected.

V.3. CLAIM 3: JAPAN'S BASELESS CLAIM THAT KOREA FAILED TO DISCLOSE THE ESSENTIAL FACTS BEFORE
THE FINAL DETERMINATION IN VIOLATION OF ARTICLES 11.4 AND 6.9

63. Japan claims that Korea violated Articles 11.4 and 6.9 of the Anti-Dumping Agreement, as the
KTC allegedly failed to inform all interested parties of the essential facts under consideration that
formed the basis for the decision to extend the anti -dumping duties. This claim is baseless, as the
authorities disclosed the essential facts that constituted the basis for the MOSF's Final Determination
in the non-confidential versions of the KTC's Final Resolution and the OTI's Final Report.

64. In Korea, the MOSF has the sole authority to decide the "substance" and "imposition" of
anti-dumping measures. Whenever the KTC makes recommendations by way of delivering its
resolution to the MOSF, the MOSF always conducts objective assessment of the

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KTC's recommendations, and reaches its own determinations. Given that the MOSF has reversed or
otherwise changed almost 20% of all final resolutions adopted by the KTC thus far, the
MOSF's review process is not formalistic at all, and only the MOSF 's final determination is both the
decision to impose anti-dumping duties and the final determination within the meaning of Article 6.9
of the Anti-Dumping Agreement in Korea.

65. Also, even prior to the KTC's adoption of its Final Resolution based on the OTI's Final Report,
various disclosures that sufficiently disclosed the essential facts were made. Indeed, long before the
KTC's Final Resolution, the OTI not only provided the respondents with the Interim Report that
contained most of the findings included in the Final Report, but also provided a Revised Interim
Report reflecting the arguments and opinions of the interested parties on the Interim Report.

66. In addition, all of Japan's allegations under this claim are either groundless or concern facts
that were not significant in the process of reaching a decision to extend the measur e – they were
thus not "essential" facts that warranted disclosure. Where actual data was redacted for protection
of confidential information, the narrative in the published reports provided the relevant information
through a non -confidential summary, allo wing the interested parties to exercise their rights of
defense. Importantly, neither the Japanese respondents in the underlying review nor Japan brings
a claim under Articles 6.2 and 6.4 of the Anti -Dumping Agreement, thus confirming that the
respondents' rights to defend their interests were fully respected in the underlying review.

67. In sum, the essential fact s for the decision to extend the application of the anti -dumping
measures on imports of SSB s were clearly disclosed to the interest ed parties in accordance with
Articles 11.4 and 6.9, enabling them to defend their interests with respect to the key facts supporting
the determination.

V.4. CLAIM 4: JAPAN'S BASELESS CLAIM THAT KOREA FAILED TO TREAT PROPERLY CONFIDENTIAL
INFORMATION IN VIOLATION OF ARTICLES 11.4, 6.5, AND 6.5.1

68. Japan claims that Korea violated Articles 11.4, 6.5, and 6.5.1 of the Anti-Dumping Agreement
because the Korean authorities afforded confidential protection of certain information without a
showing of "good cause", and because they failed to require sufficient non -confidential summaries
of the confidential information. Japan's claims of violation of these provisions are baseless.

69. In Korea, every interested party in anti -dumping investigations submi ts non -confidential
summaries by designating what information is to be treated confidential. It does this by deleting the
relevant information. By doing so, the provider of the information asserts that such deleted
information falls within the categories o f "confidential information" specifically set forth in the
relevant laws in Korea. Every interested party, including the respondents, was aware of this
established practice.

70. The authorities proceeded to assess objectively whether there was "good cause", i.e. whether
the deleted information indeed fell within a category of confidential information enumerated in the
relevant Korean laws. Moreover, all interested parties the underlying review provided the
"non-confidential summary" of their confidential information by way of providing a public version of
the document that contains the confidential information. Non-confidential summaries are not
required under Article 6.5.1 for every single figure and piece of data included in the
parties' submissions, rega rdless of the relevant context. Thus, authorities are entitled to a
reasonable degree of deference in accepting or rejecting summaries. I n the underlying review, the
applicants provided summaries for all confidential information that they submitted. Such summaries
were in sufficient detail to permit reasonable understanding of the substance of the confidential
information.

71. In sum, Korea 's treatment of confidential information in the underlying third sunset review
was consistent with Articles 11.4, 6.5, and 6.5.1. Moreover, Japan did not include a claim under
Articles 6.2 and 6.4 of the Anti -Dumping Agreement – thus confirming the respondents ' rights to
defend their interests were fully respected in the underlying review.

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V.5. CLAIM 5: JAPAN'S CLAIM THAT KOREA FAILED TO PROVIDE SUFFICIENT DETAIL OF FINDINGS AND
CONCLUSIONS IN VIOLATION OF ARTICLES 12.3, 12.2, AND 12.2.2

72. Japan claims that Korea acted inconsistently with Articles 12.3, 12.2, and 12.2.2 of the
Anti-Dumping Agreement because of a failure to provide in sufficient detail the findings and
conclusions reached on all issues of fact and law that the investigating authorities considered
material. However, when the MOSF published its final determination, it d isclosed the full public
version of the OTI 's Final Report and the KTC 's Final Resolution by attaching them as the final
determination's annexes. Given such full disclosure, Japan 's claims under Article 12 are entirely
without merit.

V.6. CLAIM 6: JAPAN'S CONSEQUENTIAL CLAIM IS UNFOUNDED

73. Japan claims that Korea acted inconsistently with Article VI:6(a) of the GATT 1994 because of
the alleged inconsistencies with Article 11.3 of the Anti -Dumping Agreement. Japan 's claim is
entirely consequential of its Article 11.3 claims. Moreover, Japan 's Panel Request fails to specify
which of the obligations under GATT Article VI:6(a) would be violated as a consequence of the alleged
inconsistencies with Article 11.3. Therefore, this claim should be rejected in its entirety.

CONCLUSION

74. For the reasons stated in this executive summary, Korea respectfully requests the Panel to
reject all of Japan 's claims that the Korean authorities ' determination to extend the
anti-dumping measure on imports of SSB s from Japan, India, and Spain is inconsistent with the
Anti-Dumping Agreement.

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ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of the European Union 106
Annex C-2 Integrated executive summary of the arguments of the United States 110

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ANNEX C-1
INTEGRATED EXECUTIVE SUMMARY OF THE
ARGUMENTS OF THE EUROPEAN UNION
I. INTERPRETATION OF ARTICLE 11.3 OF THE ANTI-DUMPING AGREEMENT
A. Legal obligations under Article 11.3 of the Anti-Dumping Agreement
1. Article 11.3 of ADA1 requires that definitive anti-dumping duties are to be terminated not later
than five years after their imposition (or the last review, when that review covered bot h dumping
and injury) unless a positive determination is made after a review procedure that the expiry of the
duty would likely lead to continuation or recurrence of dumping and injury. It is in this sense that
the termination of the anti -dumping duty after the time period provided for in Article 11.3 ADA is
the default, while the continuation is the exception.
2. The substantive question which the investigating authority must assess when making a
determination under Article 11.3 ADA is whether the terminat ion of a specific anti -dumping duty
previously imposed will likely "lead to" the continuation or recurrence of dumping and injury in the
future.
3. As the Appellate Body has found, the determination under Article 11.3 ADA has to be made
on a "sufficient factual basis that allows the investigating authority to draw reasoned and adequate
conclusions".
B. Cumulative Assessment under Article 11.3 of the Anti-Dumping Agreement
Permissibility of cumulative assessment under Article 11.3 ADA
4. Article 3.3 ADA specifically provides for the cumulative assessment of imports from several
countries under certain conditions. Article 11.3 ADA does not refer to Article 3 ADA and the
Appellate Body has stated that investigating authorities are in principle not mandated to follow the
provisions of Article 3 ADA when making a determination under Article 11.3 ADA.
5. The EU 2 submits however that the rationale underlying the use cumulative assessment
justifies using such assessment not only in the original investigations and determinations but also in
review determinations under Article 11.3 ADA: the substantive test of Article 11.3 ADA concerns a
(prospective) nexus, namely between the termination of the duty and the continuation or recurrence
of dumping and injury and a cumulative assessment may be appropriate in determining this nexus.
Conditions for applying a cumulative assessment in an Article 11.3 ADA review
6. The EU submits that the guiding principle for the appropriateness of a cumulative assessment
is to be found in the rationale for such assessment as described by the Appellate Body in EC – Tube
or Pipe Fittings and which the Appellate Body specifically found to be applicable both in original as
well as in review procedures.
7. It is clear from the Appellate Body's finding in EC – Tube or Pipe Fittings that the rationale for
cumulative assessment lies in the fact that a country-specific assessment may not be able to reflect
the effects on the domestic industry of the imports of dumped products from several countries. What
a cumulative assessment is therefore meant to overcome is the specific difficulty which an
investigating authority may face that the imports of dumped products from any one country are not
sufficient to injure the domestic industry (or not injure sufficiently) while it remains an economic
fact that a domestic industry is impacted by all imports in a cumulative fashion.

1 The Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
(the "ADA" or "the Anti-Dumping Agreement").
2 The European Union ("the EU").

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C. Country-wide or company-specific data on capacity
8. Country-wide data on spare capacity is in principle an appropriate and permissible benchmark
when assessing spare capacity in likelihood of dumping and injury determinations u nder
Article 11.3 ADA.
D. Definition of "injury"
9. With regard to the relationship between the meaning of "injury" as reflected in footnote 9 ADA
and the meaning of "injury" in Article 11.3 ADA, the definition of injury in footnote 9 is applicable to
the entire Anti-Dumping Agreement, including in the application of Article 11.3 ADA.
E. Injury partially due to dumped imports
10. It is sufficient for a determination under Article 11.3 ADA that the injury which is found to be
likely to be experienced by the domestic industry is only partially due to the expiry of the duty. The
fact that the domestic industry is likely to experience injury also from other sources at the same
time does not exclude making a finding under Article 11.3 ADA.
F. Recurrence and continuation of injury
11. The EU agrees with the position that stating that there is a "recurrence" of injury means that
the domestic industry is not currently (that is: while t he duties in question are being applied)
experiencing injury from dumping. However, the EU 's view is not that the case of "recurrence"
necessarily means that the domestic industry experiences no injury at all prior to the expiry of the
anti-dumping duty previously imposed.
12. Given the fact that Article 11.3 ADA requires a determination of likelihood of recurrence or
continuation of both dumping and injury, it is more appropriate to understand the notion of
"recurrence" as covering not only the situation where the domestic injury does not suffer any injury
at all prior to the expiry of the duty, but also the situation that the domestic industry experiences
injury from another cause than dumping.
13. Similarly, a determin ation of "continuation" of injury is not prevented by the consideration
that the domestic industry may be experiencing injury from other sources as well.
14. In the EU 's view, the determination under Article 11.3 ADA is essentially a forward -looking
one. The fact that the text of that article refers to both "recurrence" and "continuation" simply
reflects the desire to cover the whole range of possible situations of the domestic industry while the
anti-dumping duties are applied.
II. USE OF FACTS AVAILABLE (ARTICLE 6.8 ADA AND ANNEX II TO ADA)
A. Use of "facts available" mandatory or discretionary?
15. The use of "facts available" under Article 6.8 ADA is a matter of discretion of the investigating
authority, once the conditions of that article are fulfilled.

B. When does the authority have recourse to "facts available"?
16. Given the mandatory nature of Article 6.8 ADA and Annex II to ADA, the applicability of the
provisions of Annex II to ADA cannot depend on whether the investigating authority specifically
refers to the concept of "facts available". If that were the case, a n investigating authority could
evade the discipline of Article 6.8 ADA and of Annex II to the Anti -Dumping Agreement simply by
not calling what it does the use of "facts available".
17. In the EU's view, therefore, the key factor which triggers the appli cability of Article 6.8 ADA
and of Annex II to the Anti -Dumping Agreement is what the investigating authority does, rather
than how it calls its actions.

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18. In a situation where the investigating authorities reject the information supplied by the
respondents upon request because of the reliability and the usability of that information, the
investigating authorities are only allowed to do so under the conditions provided for in
Article 6.8 ADA and paragraphs 3 and 7 of Annex II to ADA.
C. The notion of "necessary" information
19. The EU considers that the substantive assessment of the rule which is being applied defines
the broad scope of the information needed in the investigation and that what is "necessary" is then
primarily defined by the investigating a uthority. Article 6.8 ADA and Annex II to the ADA reflect a
procedure in which this authority is under an obligation to define the information it seeks early and
in a clear manner.
D. Presenting a claim based on Article 6.8 ADA
20. A Member can argue that Article 6.8 ADA does not apply in a specific situation, and also
argue – in a subsidiary manner – that even if Article 6.8 ADA were to apply, its requirements would
not be fulfilled and it would therefore not be violated. Nothing in the DSU prevents a member from
presenting a full case or a full defence and that may well entail making primary as well as subsidiary
arguments – for instance by stating that a particular provision does not apply, but even if it were to
apply it would be infringed (or not).
III. CLAIM UNDER ARTICLES 6.5 AND 6.5.1. OF THE ANTI-DUMPING AGREEMENT
21. Article 6.5 ADA specifically provides that information shall be treated as confidential "upon
good cause shown". Article 11.4 ADA provides that the provisions regarding evidence and procedure
in Article 6 ADA shall be applicable in a review procedure pursuant to Article 11.3 ADA.
22. The EU does not consider that the use of pre-determined categories of information is as such
contrary to Article 6.5 ADA, provided that the categories are sufficiently precise and cover only
information which can in fact be considered as by its nature confidential. Under these conditions,
such categories can indeed be considered to be a tool by which an "implicit" claim and motivation
("good cause") for confidential treatment by the submitter is made.
23. It is more problematic that these categories are administered by the authority in such a way
that information falling into their scope is automatically treated as meriting c onfidential treatment.
Only the use of such categories which are sufficiently precise and circumscribed so as to clearly only
entail information where confidential treatment is justified would satisfy the requirements of
Article 6.5 ADA. The use of overly broad categories would fall foul of the requirement that the
authority objectively assess the claim made by the submitter.
IV. REQUIREMENT FOR AN INVESTIGATING AUTHORITY TO SPECIFICALLY ADDRESS A
MATTER RAISED BY A RESPONDENT
24. If an interested party raises a relevant matter with sufficient evidence and argumentation in
a sunset review under Article 11.3 ADA, the investigating authority is in principle required to address
it explicitly in its determination.
25. There is no single factor which determines whether an interested party has adduced enough
evidence and argumentation on a given matter to warrant an explicit consideration. Rather, a
case- by-case assessment is in order.
V. CHALLENGE OF A CERTAIN FACT BY THE RESPONDENT
26. The EU considers that t he fact that an interested party does not challenge a certain matter
does not, as such, influence the legality of the authority 's determination. However the fact that a
certain aspect has not been challenged or not challenged with sufficiently precise evid ence or
argumentation can influence whether the authority must address a particular argument explicitly.

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VI. FAILURE TO CHALLENGE "LIKE PRODUCT DEFINITION" AND ARGUMENTS ABOUT
THE CONDITIONS OF COMPETITION
27. Given the fact that a "like product definition" can lead to a range of relevant products, a failure
to challenge this definition cannot be a legal bar to validly advancing arguments concerning
"conditions of competition". The substantive argument which is being made (i.e. that certain types
of steel bars do not effectively compete with the domestic industry and cannot therefore have led to
injury to that industry) is independent of the "like product definition".

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ANNEX C-2
INTEGRATED EXECUTIVE SUMMARY OF THE
ARGUMENTS OF THE UNITED STATES
EXECUTIVE SUMMARY OF U.S. THIRD PARTY ORAL STATEMENT
I. CUMULATIVE ASSESSMENT IN SUNSET REVIEWS PURSUANT TO ARTICLE 11.3 OF
THE ANTI-DUMPING AGREEMENT
1. Japan suggests that an investigating authority may be required to consider certain differences
between imports and the domestic like product in evaluating their competitive relationship to justify
a cumulative assessment in a sunset review consistent with Article 11.3 of the
Anti-Dumping Agreement and Article VI of the GATT 1994.
2. Article 11 of the Anti-Dumping Agreement concerns the duration and review of anti-dumping
duties, or sunset reviews. In particular, Article 11.3 requires an order to be terminated five years
after its imposition, unless a Member conducts a review to determine whether revocation would be
likely to lead to continuation or recurrence of dumping and injury. If a Member in conducting a
sunset review concludes that revocation would be likely to lead to continuation or recurrence of
dumping and injury, then the Member may continue the order.
3. Unlike Article 3 of the Anti -Dumping Agreement (Determination of Injury), which explicitly
provides certain preconditions for making a cumulative assessment in the context of ori ginal
investigations, Article 11.3 does not prescribe the methodology by which a sunset review must be
conducted. Nor does Article VI of the GATT 1994 require any specific analysis for the assessment of
injury in sunset reviews.
4. Consistent with the app licable standard of review in Article 17.6 of the
Anti-Dumping Agreement and Article 11 of the DSU , the Panel need only consider whether the
Korean investigating authority's evaluation of the facts was unbiased and objective . Article 17.6
provides that a panel:
[S]hall determine whether the authorities ' establishment of the facts was proper and
whether their evaluation of those facts was unbiased and objective. If the establishment
of the facts was proper and the evaluation was unbiased and objective, even though
the panel might have reached a different conclusion, the evaluation shall not be
overturned …
5. What is adequate will depend on the facts and circumstances of the case, recognizing that an
investigating authority may have to consider conflicting arguments and evidence . The
Appellate Body recognized in US – Anti-Dumping Measures on Oil Country Tubular Goods that
because "Article 11.3 does not prescribe any particular methodology to be follow ed by an
investigating authority in conducting a sunset review", investigating authorities need only "arrive at
a reasoned and adequate conclusion " with respect to cumulation, which may "in certain cases "
require "an examination of whether imports are in the market together and competing against each
other".
6. Consequently, an investigating authority may make a cumulative assessment in a sunset
review so long as the decision to cumulate is based upon an unbiased and objective evaluation of
the facts.
II. EVALUATION OF PRODUCT DIFFERENCES IN SUNSET DETERMINATIONS
7. The United States will next address Japan's argument that the Korean investigating authority
acted inconsistently with Article 11.3 of the Anti -Dumping Agreement by not analyzing "the effects
of the product under investigation on the domestic like products ... on a type-by-type basis" including

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"a comparison of prices and other factors between the product under investigation and the domestic
like products for general-purpose steel and special steel in separate analyses".
8. The United States understands that the Korean investigating authority defined a single
domestic like product, as well as a single domestic industry corresponding to the domestic producers
"as a whole" of the like products.
9. Given its definition of a single domestic industry, the Korean investigating authority was only
required to make a single determination as to whether revocation of the orders was likely to result
in the continuation or recurrence of injury to the industry.
10. As explained by the panel in EU – Footwear (China) in the context of material injury,
"consideration of the performance of a particular type as opposed to other types within one like
product is not necessarily relevant" because "the industry is defined as producers of the like product,
and the determination to be made is whether the industry as a whole is materially injured by dumped
imports".
11. However, depending on the facts and circumstances, a n analysis of different types of
merchandise produced by a single domestic industry may be appropriate in the context of a sunset
determination. For example, if an investigating authority assesses the significance of likely price
undercutting by comparing the average unit values (AUVs) of subject imports to the AUVs of the
domestic like product, and the AUVs are based on baskets whose product mixes are not comparable,
an investigating au thority may control for differences in physical characteristic s affecting price
comparability.
12. Investigating authorities may also need to consider the degree of competitive overlap between
subject imports and the domestic like product where the "differentiation of goods ... affects the
competition between them in ways that have an impact on the assessment of" likely injury.
EXECUTIVE SUMMARY OF U.S. THIRD PARTY RESPONSES TO QUESTIONS
I. THE PROPER INTERPRETATION OF ARTICLE 11.3 OF THE
ANTI-DUMPING AGREEMENT
13. Japan suggests that the Korean investigating authority failed to address certain evidence
presented by the interested parties in the underlying investigation. Whether an investigating
authority must address an interested party's argument in its public notice of an affirmative sunset
review determination, cont inuing an anti -dumping duty order, will depend on whether the
party's argument is "relevant" and "considered material by the investigating authorit[y]" within the
meaning of Article 12 of the Anti -Dumping Agreement , which applies to reviews pursuant to
Article 11.
14. Article 12.2.2 requires investigating authorities to issue a public notice of final affirmative
determinations containing "the reasons for the acceptance or rejection of relevant arguments or
claims made by the expor ters or importers ". The chapeau of Article 12.2 requires investigating
authorities to "set forth" in such notices "in sufficient detail the findings and conclusions reached on
all issues of fact and law considered material by the investigating authorities". Therefore, Article 12
does not require investigating authorities to address in their public notices of final determinations
each and every argument raised by interested parties over the course of an investigation or review,
but only those arguments that are relevant and considered material by the investigating authority.
15. Accordingly, the panel i n EU – Footwear (China) rejected the view that whether information
and reasons for the acceptance or rejection of arguments must be provided should be judged from
the perspective of the interested p arties. The panel explained that arguments "of importance to
individual in terested parties " may not be "'material' within th e meaning of Article 12.2.2 ".
Similarly, in China – GOES, the Appellate Body reasoned that "[t]he obligation of disclosure under
Article [ ] 12.2.2 … is framed by the requirement of 'relevance' , which entails the disclosure of the
matrix of facts, law and reasons that logically fit together to render the decision to impose final
measures".

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16. In sum, an investigating authority need not address an argument made by an interested party
that the authority deems not relevant or material to its determination, irrespective of the importance
of the argument to the interested party or the amount of evidence and argumentation it has adduced
with respect to the argument.
17. With respect to the Korean investigating authority's decision to cumulate in the sunset review
at issue, Korea observes that Japan has not challenged the definition of the like product in this
dispute, and suggests that the Japanese interested parties should have raised objections to the like
product definition in the underlying investigation. The fact that a complaining party could have raised
an additional claim would not itself prevent a panel from making a findi ng of inconsistency with a
claim that has been raised. Further, interested parties need not necessarily object to or challenge a
matter in a sunset review proceeding to preserve a Member 's right to claim in dispute settlement
proceedings that an investigat ing authority acted inconsistency with respect to Article 11.3.
However, if interested parties have failed to raise particular issues during the underlying
investigation, the Panel could take such failure into an account in evaluating whether the
determination by the investigating authority contains a sufficient degree of detail in reaching
conclusions on the issues of law and fact. For example, if certain issues were not raised by interested
parties during the investigation, an explanation regarding certain aspects of the determination may
be less detailed than in a situation when interested parties have raised arguments regarding such
issues before the investigating authority.
18. With respect to an investigating authority 's examination under Article 11.3 , the definition of
"injury" in footnote 9 of the Anti -Dumping Agreement is applicable for the whole
Anti-Dumping Agreement (unless otherwise specified), including in the context of sunset reviews
pursuant to Article 11.3. Footnote 9 provides:
Under this A greement the term 'injury ' shall, unless otherwise specified, be taken to
mean material injury to a domestic industry, threat of material injury to a domestic
industry or material retardation of the establishment of such an industry and shall be
interpreted in accordance with the provisions of [Article 3].
19. While the definition of "injury" in footnote 9 provides that the term "shall be interpreted in
accordance with the provisions of [Article 3]", it does not follow that an investigating authority must
comply with the requirements for original investigations set out in Article 3, including the obligation
to consider "other known causes" of injury under Article 3.5.
20. The Anti -Dumping Agreement distinguishes between original determinatio ns of injury
pursuant to Article 3 and determinations of the likelihood of continuation or recurrence of injury
pursuant to Article 11.3. Thus, the applicability of the definition of "injury" in footnote 9 of the
Anti-Dumping Agreement to the term as used in Article 11.3 does not suggest an obligation for
investigating authorities to follow the requirements of Article 3, including the requirement in
Article 3.5 to consider "any known factors other than the dumped imports which at the same time
are injuring the domestic industry".
21. The Appellate Body in US – OCTG Sunset Reviews also rejected the view that the applicability
of the definition of "injury" in footnote 9 has the effect of extending all obligations applicable to
original investigations under Art icle 3 to sunset reviews under Article 11.3. As the Appellate Body
explained, "[g]iven the absence of textual cross -references, and given the different nature and
purpose of these two determinations, we are of the view that, for the "review" of a determination of
injury that has already been established in accordance with Article 3, Article 11.3 does not require
that injury again be determined in accordance with Article 3".
22. Further, Article 11.3 of the Anti-Dumping Agreement provides that an investigating authority
must determine that the "expiry of the duty would be likely to lead to continuation or recurrence of
dumping and injury". The text of that provision does not require investigating authorities to establish
that the entire likelihood-of-injury to the domestic industry is attributable to subject imports.
Therefore, it is possible for an investigating authority to render an affirmative determination under
Article 11.3 even where factors other than subject imports render a domestic industry vulnerable to
the continuation or recurrence of material injury after revocation such that subject imports would
not be the sole cause of an industry's distress.

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

II. THE INTERPRETATION AND APPLICATION OF ARTICLE 6.8 OF THE
ANTI-DUMPING AGREEMENT IN THE CONTEXT OF SUNSET REVIEWS
23. The use of the word "may" in Article 6.8 indicates that, while authorities have the ability to
use facts available under appropriate circumstances, they are not required to do so. Other provisions
of Article 6 of the Anti-Dumping Agreement that provide mandatory obligations on authorities, such
as Articles 6.3, 6.4, 6.5, 6.9, 6.10, 6.12, and 6.13, all use the word "shall". The permissive nature
of Article 6.8 is further confirmed by the guidance in Annex II, w hich provides in non-mandatory
terms that investigating authorities "will be free" to make determinations on the basis of the facts
available.
24. In resorting to "facts available " under Article 6.8, the missing info rmation must be
"necessary". The use of the term "necessary" as a qualifier carries significance because it ensures
that Article 6.8 is "not directed at mitigating the absence of 'any' or 'unnecessary' information, but
rather is concerned with overcoming the absence of information r equired to complete a
determination". If such "necessary" information is absent, "the process of identifying the 'facts
available' should be limited to identifying replacements for the 'necessary information ' that is
missing from the record".
25. When an investigating authority must rely on "facts available" under Article 6.8, "[t]here has
to be a connection between the 'necessary information ' that is missing and the particular 'facts
available'" on which a determination is based.
26. The application of "facts available" under the circumstances described by Article 6.8 is at the
discretion of the investigating authority. Where that authority has been exercised, the requirements
of Article 6.8 and Annex II will apply. An investigating authority may reject information because it
is not relevant or inaccurate. Article 6.8 further permits an investigating authority to reply on facts
available where the respondent party has been non -cooperative and wher e the information
requested is necessary and the information provided is either deficient or unreliable.
27. A claim under Article 11.3 must be assessed on its own merits and does not formally relate to
an evaluation under Article 6.8. In analyzing likely injury, an investigating authority may rely on any
source of data available to it, so long as the investigating authority 's analysis is based on positive
evidence and an objective examination. Therefore, the task of the Panel would be to determine
whether the investigating authority 's findings with respect to the likelihood of continuation or
recurrence of injury were supported by the record evidence such that a reasonable and unbiased
authority could have reached the same conclusion. This evaluation will depend on the particular facts
and circumstances of the case, including, for example, the findings made by the authority with
respect to the reliability and probative value of the evidence.