Document: WT/DS331/R Page C-1 ANNEX C EXECUTIVE SUMMARIES OF THE REBUTTAL SUBMISSIONS OF THE PARTIES Table of contents Page Annex C-1 Rebuttal Submission of Guatemala – 13 October 2006 C-2 Annex C-2 Rebuttal Submission of Mexico – 2 November 2006 C-11
Date: 13 October 2006
Document codes: WT/DS331/R
Complainant: Guatemala
Respondent: Mexico
Third parties: China, EU, Honduras, Japan, U.S.
Dispute stage: Panel
Agreements cited: Art. 5.2, 5.3, 5.8, 2.1, 2.4, 2.6, 3.1, 3.2, 3.4, 3.5, 3.6, 4.1, 5.4, 6.4, 6.9, 9.1, 9.3, 18.1, 6.6, 6.8, 6.13, 6.7, 6.7, 2.2, 6.2, 12.2, 6.5  Anti-dumpingArt. VI  GATT 1994Art. 1, 18.1  Anti-dumping

I. CONSIDERATIONS CONCERNING THE STANDARD OF REVIEW AND THE
BURDEN OF PROOF UNDER THE DEFENCE RAISED BY MEXICO
A. CONSIDERATIONS RELATING TO THE STANDARD OF REVIEW IN THE LIGHT OF MEXICO 'S
ARGUMENTS
1. Article 11 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes (DSU) and Article 17.6 of the Anti-Dump ing Agreement govern the examination by this
Panel. In the light of the jurisprudence, this ex amination of the conclusions and determinations of
Economía must be "critical and searching", and be b ased on "the information contained in the record
and the explanations given by [Economía] in its published report[s]" as opposed to possible post hoc
explanations which do not flow from those determinations or from the record.

2. Mexico has attempted to justify the way in which Economía established various essential
facts and its evaluation thereof based solely on post hoc justifications that are not contained in its
resolutions. These post hoc justifications should be disregarded by the Panel.

3. Guatemala also considers that the criterion of lack of opposition by the interested parties, as
applied by Mexico, likewise cannot constitute the basis for establishment of the facts, just as it cannot
modify as such the nature of a fact whose characteristics exist objectively.

4. Furthermore, Mexico contends that, as long as a matter is not governed by the Anti-Dumping
Agreement, the treatment thereof fa lls under the discretion of the investigating authority. It deploys
these arguments with particular reference to the definition of the product under investigation as well
as the definition of the investigation period.

5. Guatemala considers that in both cases, Mexico's interpretations seek to ignore the provisions
of Article 17.6 (ii) of the Anti-Dumping Agreement. They are inadmissible in the light of this
standard of review since, although the Agreement contains no provision expressly regulating various
topics, any discretion enjoyed by an investigating authority is limited by Article 17.6 (i) of the Anti-
Dumping Agreement.

6. Another way in which Mexico seeks to evade the legal standard of review is by invoking its
domestic right to release itself from international obligations. This is the case with the claim relating
to the confidentiality of certain information provi ded by the Applicant, concerning which Economía
invokes the possibility of access to the confidential record on the part of the Exporter. However,
Guatemala considers that the gr anting of access to the confidentia l record under Mexican law is
irrelevant to an interpretation of Mexico's obligations under Article 6.5 of the Anti-Dumping
Agreement and to compliance with those obligations in the light of the provisions of customary law.

B. B
URDEN OF PROOF
7. If a party provides sufficient evidence to justif y the presumption that its claim is legitimate,
the burden of proof shifts to the other party, which must provide sufficient evidence to rebut the
presumption. Mexico seeks to invoke this rule as a substitute for its obligations under Article 17.6 of
the Anti-Dumping Agreement, disregarding the fact that the evidence on which Guatemala's claims
are based is constituted by the de terminations and factual elements contained in the investigation
record. Nevertheless, Guatemala considers that it has succeeded in establishing a prima facie case
concerning the legitimacy of the claims made, and Mexico has not succeeded in refuting those claims.

II. REBUTTAL
A. C
LAIMS RELATING TO THE INITIATION OF THE INVESTIGATION
1. Mexico's interpretation of Articles 5.2, 5.3 and 5.8 of the Agreement is erroneous
8. Mexico considers that the purpose of initiating an investigation is to determine the existence
of alleged dumping, and that consequently the qua lity and quantity of evidence of dumping may serve
merely as an indication of the existence of dumping. Guatemala takes the view that the "alleged"
existence of dumping carries no implication as to the nature of the evidence to be submitted in support
of the claim, evidence which must be sufficient.

9. Mexico points out that the ev identiary standard laid down by Article 5.2 of the Anti-Dumping
Agreement concerns evidence "reasonably available to the applicant". Guatemala considers that this
provision describes the required content of the application for initiation of the investigation and serves
as a parameter for the investigating authority to conduct an evaluation and determination under
Article 5.3 of the Anti-Dumping Agreement.

10. Mexico, for its part, disregards the fact that the standard for assessing evidence is one of
"adequacy", a requirement that must be analysed on a case-by-case basis and which, in the present
case, did not justify characterizing the evidence submitted by the Applicant as adequate.

11. Moreover, Mexico states that, in evaluating the consistency and coherence of the arguments
and evidence presented, the investigating authority must necessarily consider whether the parties are
acting in good faith, and this must be based, overall, on standards of certainty. On this view, as the
investigating authority must rely on the good faith of the applicant, the term "shall examine" is
rendered meaningless in this provision and is transfor med into an appraisal of the good intentions of
the parties. However, this is not what is requi red by Article 5.3 of the Anti-Dumping Agreement.
What is required by that provision is an objective examination of the evidence presented with the
application.

12. Mexico also states that, if the applicants do not respond to all the questions or provide
inadequate responses, at least in the stages subse quent to initiation, the in vestigating authority is
entitled to obtain supplementary info rmation in order to "complete the investigation". Mexico thus
challenges the applicability of Article 5.3, which requires an examination of the adequacy of the
evidence, and of the consequences whereby, under Ar ticle 5.8, any application that does not contain
sufficient evidence is to be rejected.

2. Economía's evidence and procedures, as refle cted in its determinations, invalidate the
factual basis of Mexico's arguments
13. It is clear that the only two documents relie d on by Economía to justify the normal value are
neither adequate, nor accurate, nor relevant, in view of the fact that: (i) they were issued by two
trading companies which are neither producers nor exporters, and which are not connected with the
only exporter identified and investigated; (ii) it was not ascertained whether the products concerned
were actually produced in Guatemala or whether they were imported; (iii) they relate to a transaction
conducted in one day and a potential transaction (which was not shown to have been carried out, and
if so under what conditions) in order to compare transactions over the entire period investigated;
(iv) they contain information on an insignificant nu mber of products which are not representative of
the product as a whole (three and six dimensions of a product from a range which ostensibly covers at
least 132 dimensions and other characteristics); th e information from this limited sample relates to
pipes and tubes that were not produced to Standard ASTM A53, the manufacturing standard
originally used to define the product under investigation, and not all adjustments were made to normal
value in order to guarantee a fair comparison with the export price. This evidence could not therefore

be considered to be accurate, re levant and adequate under the term s of Articles 5.2 and 5.3 of the
Agreement.

14. Moreover, Mexico confines itself to explaining that to require an applicant enterprise to
provide accurate information
 on the volume of the allegedly dum ped imports would be to impose a
standard that is practically unattainable by the app licant, and this, in Guatemala's view, is an explicit
acknowledgement that it possessed no "accurate" information in this regard.

B. C
LAIMS RELATING TO THE PRODUCT UNDER CONSIDERATION/LIKE PRODUCT
15. Mexico relies on the concept of "likeness" in orde r to justify its change in the definition of the
product. Guatemala wishes to reiterate that it is not alleging that Economía's comparison of the
product under consideration with the like product was inadequate. Rather, Guatemala questions the
way in which Economía made various changes in the definition of th e product under consideration so
as to include, at a late stage of the investigation, additional products whic h were initially excluded,
without positive evidence regarding those products a nd without having made any effort to satisfy
itself that they were properly investigated.

16. It is not disputed that the product under inv estigation was originally defined as standard pipes
and tubes produced under Standard ASTM A53, of one half to four inches in diameter. Nor does
Mexico dispute the fact that both structural pipes a nd tubes and standard pipes and tubes of more than
four and up to six inches in diameter were excluded at the time of initiation of investigation. Finally,
it is not disputed that the initial definition was altered on two occasions.

17. Mexico considers that the fact of including in the Preliminary Resolution pipes and tubes of
more than four and up to six inches in diameter does not substantially alter the description in the
Initiating Resolution. However, Mexico has not dem onstrated, nor is it stated in any part of the
administrative record, that the investigating aut hority requested additional information on prices,
import volumes, injury and causal link, among other aspects, in respect of the range of products
included at the preliminary stage. Similarly, neither the administrative record nor Economía's
determinations set out the reasons used to justif y increasing the range of diameters of the pipes and
tubes under investigation, particularly as regards why the only exporter investigated produced only
pipes and tubes in the range of one half to two inches in diameter.

18. Mexico argues that the second change in its definition of the product under investigation was
due to the fact that structural pipes and tubes and standard pipes and tubes are interchangeable
products. Mexico alleges that standard pipes and t ubes can have "structural" uses and infers from this
reasoning that, conversely, structural pipes and tubes could be used for conduction. On the basis of
this erroneous idea, Mexico considers that the investigating authority was entitled to include structural
pipes and tubes within the scope of the definitive anti-dumping measure, and it further describes them,
in relation to standard pipes and tubes, as "one and the same" product.

19. On this point in particular, it is important to make it clear that the facts in the record establish
indisputably that standard pipes and tubes and st ructural pipes and tubes are not one and the same
product, as is erroneously asserted by Mexico in its replies to the questions asked by the Panel.
Furthermore, it can easily be seen from the same ev idence contained in the record that both Economía
and the Applicant itself treated structural pip es and tubes and standard pipes and tubes as two
distinguishably separate products and not as part of the product under investigation. In fact, Mexico
recognized that the product under investigation was standard pipes and tubes, and once the
investigating authority realized that structural pi pes and tubes had the characteristics referred to, it
deemed it convenient to include them in its de finition of the product under investigation. This
inclusion, as is shown by the relevant evidence, took place at the end of the investigation.

20. It is clear that the authority did not disclo se this essential fact. Moreover, Mexico now argues
that the disclosure regarding the inclusion of structural pipes and tubes in the definitive measure is not
an essential fact within the meaning of Article 6.9 of the Anti-Dumping Agreement. Guatemala
considers it illogical that the disclosure of a fact as important as the pipes and tubes to which anti-
dumping duties are to be applied is not seen as " essential" within the meaning of Article 6.9.
Consequently, Guatemala has no doubt that Mexico acted inconsistently with Articles 1, 2.1, 2.4, 2.6,
3.1, 3.2, 3.4, 3.5, 4.1, 5.4, 6.4, 6.9 and 18.1 of the Anti-Dumping Agreement.

C. C
LAIMS RELATING TO DUMPING
21. Guatemala notes that, in general terms, Mexi co does not dispute Guatemala's interpretation of
the legal rules applicable to the use of the facts av ailable. In particular, Guatemala notes that Mexico
raises no defence against Guatemala's argument that, for the purposes of the final dumping
determination, Economía failed to evaluate the invoice and the price quotation with special
circumspection, as required by paragraph 7 of Anne x II to the Agreement. Such an evaluation was
absolutely necessary, since neither the invoice nor the quotation emanated from the only exporter
under investigation, nor did they relate to the inv estigated product as a whole or to the entire period
proposed for the review of dumping.

22. Far from rebutting one by one the arguments put forward by Guatemala regarding Economía's
use of the facts available, Mexico simply affirm s that a mere reading of the Guatemala exporter's
replies to the official questionnaire, together with the results of the verification visit, shows that the
exporter did not provide all the in formation required, and that the information it did provide in the
course of the investigation was not complete, accurate and precise. As has been explained by
Guatemala, each of the reasons set out in the points of the Final Resolution cited by Mexico as alleged
justification for the use of the facts available does no t coincide with the content of the record of the
verification visit. Consequently, Guatemala consid ers that Economía's action was not justified under
Article 6.8 and Annex II of the Anti-Dumping Agreement.

23. Mexico also fails to put forward arguments rebutting Guatemala's cl aims under Articles 6.2,
6.4, 6.6, 6.7, 6.8 and 6.9 of the Anti-Dumping Agreement, as elaborated in its first written submission.
Moreover, Mexico only acknowledges that the investigating authority presumed ( presumió) that,
given the existence of various discr epancies, the exporter would consider (consideraría) that its
information could (podía) be disregarded. In this connection, Guatemala reiterates that Mexico, by
using the facts available, acted in a manner inconsiste nt with Articles 6.2, 6.4, 6.7, 6.8, 6.9, 6.13 and
Annex II of the Anti-Dumping Agreement.

D. C
LAIMS RELATING TO INJURY
1. Mexico failed to refute Guatemala's claim that the period chosen for an analysis of the
alleged injury to the domestic industry was outdated
24. Mexico and Guatemala agree that the period of investigation should end on a date as close as
practicable to the initiation of the investigation, in accordance with the relevant provisions of Article 3
of the Anti-Dumping Agreement.

25. However, Mexico justifies post hoc the fact that the investigation period was not challenged
by the interested parties. Mexico also puts forw ard the argument that, in order to determine whether
the evidence is objective, verifiable and credible, it is necessary to analyse the actual data on which
the investigating authority relied in order to issue its injury determination, and it is not possible to
conclude that a piece of evidence does not meet those requirements simply because no additional
information was available. Guatemala reiterat es its position that the degree of adequacy and
relevance of the evidence of injury is determined not only by the nature of the data provided but also
by their remoteness.

26. Guatemala observes that in this case the same conditions obtain as in Mexico – Anti-Dumping
Measures on Rice, despite the fact that Mexico seeks unjustifiabl y to depict them in a different light.
In particular, in accordance with the jurisprudence established in that case, Economía: (a) ostensibly
accepted the investigation period proposed by th e Applicant, without taking into account the
discrepancy between that period and the date of in itiation of the investigation and without examining
whether the outdated information could still serve as a basis for an objective examination of the
current state of the domestic industry; (b) failed to determine whether practical problems justified the
use of that period of investigation or whether it would not be possible to update the information
beyond that period; (c) in the course of the inv estigation, did not seek to update the information
obtained from the interested parties; (d) failed to e xplain, in its Final Resolution, the reasons for not
collecting more recent information. Thus, Mexi co failed to demonstrate that the choice of the
investigation period is consistent with Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement.

2. Mexico failed to refute Guatemala's claim that the use of six-monthly information does
not reflect the injury to the domestic industry as a whole
27. Mexico considers that the "positive eviden ce" requirement involves evaluating evidence of
injury as such. If the ev idence is positive in that context, th ere is no reason to dismiss it "simply
because no additional information was available".

28. Guatemala considers that the temporal integrity of the evidence, that is to say the totality of
the data corresponding to the years analysed, is a key element in determining whether evidence is
"positive".

29. Mexico argues that the Anti-Dumping Agreemen t contains no obligation as to how the injury
analysis is to be conducted in re lation to the periods used, and that the use of six-month periods in
each year does not therefore involve any violation of the Agreement. It also points out that a
six-month year-on-year comparison makes it possible to analyse periods that are "structurally" the
same in each year. Mexico goes on to explain th at these periods were compared without considering
whether or not the situation was better or wor se during each six-month period than during the six
months from January to June. Guatemala sees this as clear evidence of a lack of objectivity. As is
affirmed by Guatemala and the United States, an objective evaluation cannot be based on an
incomplete series of data unless the investigating au thority provides a justified explanation in this
regard. Exporters should not have the burden of investigating what happened during the months not
proposed by the Applicant, for the purpose of "persu ading" the investigating authority that it should
also request information on the periods not proposed by the Applicant.

30. For the above reasons, Guatemala observes that there is no evidence in the record to suggest
that this selective use of second half-year periods could be justified. The post hoc explanation now
offered by Mexico, to the effect that "structural symmetry" was taken into account, is not reflected in
any of Mexico's determinations. Moreover, Guatemala considers that there are not even any objective
reasons for having opted for the use of the six-month periods July to December rather than January to
June of each year. On the contrary, as was indi cated in the Initiating Resolution, Economía was
aware of the fact that the consumption of pipes a nd tubes in the domestic market remained constant
throughout the year, apart from fluctuations in cer tain months owing to taxes, when consumption
increases (as in December) or decreases (as in April). In view of the foregoing, Guatemala is of the
opinion that Mexico failed to determine a period in keeping with the need to conduct an objective
evaluation of positive evidence to substantiate injury to the domestic industry.

3. Mexico has failed to refute Guatemala's claim that the use of information on segments of
the domestic industry does not reflect injury to the domestic industry as a whole
31. Guatemala does not disagree with Mexico a bout the possibility of evaluating the domestic
industry by examining all or a major proportion of pr oducers. What Guatemala contends is that, once

the domestic industry is defined by including all or a major proportion of producers, the investigating
authority must adhere to that definition.

32. However, Mexico takes the view that, if a pr oducer is authorized to submit an application and
the investigating authority nevertheless determin es that the domestic industry comprises other
producers in addition to the Applicant, information on that producer can legitimately be used for the
analysis of certain factors of injury, while information on total domestic production is used for others.

33. The standard under Article 5.4 is differ ent from the one under Article 4.1 of the Anti-
Dumping Agreement. In fact, Mexico disregards th e thesis reflected in jurisprudential interpretation
to the effect that a "sectoral" injury analysis ma y be relevant insofar as the investigating authorities
provide a satisfactory explanation as to why it is not necessary to examine directly or specifically the
other parts of the domestic industry. In the present case, Mexico has not provided a satisfactory
explanation as to why it was not necessary to examin e directly or specifically the other parts of the
domestic industry. Consequently, Guatemala is of the opinion that Economía acted in a manner
inconsistent with Articles 3.1, 3.2, 3.4, 3.5 and 4.1 of the Anti-Dumping Agreement.

4. Mexico has failed to refute Guatemala's claim that no objective examination was
conducted on the basis of positive evidence relating to import volumes
34. Mexico acknowledges that, in applying the methodology of minimum and maximum prices to
imports from countries not investigated in order to determine the corresponding volumes, it is
reasonable to assume that a product not under investig ation could have been included or that pipes
and tubes under investigation could have been ex cluded. Mexico's statement confirms what was
indicated by Guatemala regarding the unfou nded hypothesis on which Economía based the
determination of volumes for countries not investig ated. In its Final Resolution, Economía did not
even provide justification of the grounds for using the range of prices for imports from non-
investigated countries.

35. Mexico further affirms that Economía does not always receive a favourable response from
institutions requested to provide information (incl uding Customs and the Ministry of Finance), nor is
it empowered to require customs brokers or importers to provide information, and that in any case
Economía cannot issue orders that exceed its sphere of competence. Contrary to what is asserted by
Mexico, Article 55 of Mexico's Foreign Trade Act reveals the extensive powers enjoyed by Economía
under the law for the purpose of requesting informatio n from third parties. Moreover, nowhere in the
record is there any indication that Economía made ev en the slightest effort at least to request such
information.

E. C
LAIMS RELATING TO CAUSATION
36. Mexico considers that, as exports account for 7 per cent or 5 per cent of domestic production,
a decline in exports is not a determining factor for the injury analysis. What Mexico ignores and what
is most relevant in this connection is that the d ecline in exports was equal to or greater than the
decline in domestic sales. The d ecline in exports was so great that it was bound to cause injury to the
domestic industry, and its effects should have been distinguished from the effects caused by allegedly
dumped imports. Economía failed to make this dis tinction. Even assuming that exports were not so
determinative of injury, as Mexico states, Economía should nevertheless have made the attribution of
injury to that less determinative factor. However, it failed to do so.

37. Regarding the drop in profits, Mexico also fails to point out that it was due mainly to lower
sales figures and not to increased sales costs. Econo mía should therefore have made a distinction and
should not have attributed injury caused by the Ap plicant's increased costs and expenses. Guatemala
also notes that, although Economía attributes the decrease in profits primarily to the decrease in sales,
it makes no distinction between the fall in sales a ttributable to the fall in exports, which represented

2 per cent of domestic production, and the fall in domestic sales, which was only 2 per cent, a
seemingly smaller proportion than the fall in exports. On this additional aspect, Economía also failed
to make the appropriate non-attribution finding.

F. C
LAIMS RELATING TO PROCEDURAL ASPECTS
1. Mexico has not refuted Guatemala's claim th at Economía failed to inform the exporter
of the essential facts and of the rejection of the information it had supplied
38. To sum up, what Mexico claims is that, insofar as a fact is reflected in the record (which is the
case with all the facts), the interested parties are in formed of that fact and may "foresee" the treatment
to be given to it in the final determination. In Mexico's opinion, this satisfies the obligation to
"inform" under Article 6.9 of the Anti-Dumping Agre ement. As not all the facts in the record are
"essential", what Mexico proposes is that the parti es "guess" which of them will be essential facts,
thus rendering pointless the obligation to "inform" . The failure to iden tify and disclose to the
interested parties the facts deemed essential w ithin the universe of essential and non-essential facts
contained in the record constitutes a violation of the obligation to inform under Article 6.9 of the
Agreement.

39. With regard to disclosure of the essential fact concerning the inclusion of structural pipes and
tubes at the end of the investigation, Mexico firs t affirmed in its first written submission that it was
illogical to think that, if there were requests for information on the product under investigation, that
information should not be considered as an essentia l fact. Mexico went on to state that disclosure
regarding the inclusion of structural pipes and tubes in the definitive measure was not an essential fact
within the meaning of Article 6.9 of the Anti-Dumping Agreement.

40. As regards the disclosure of the essential f act concerning the use of the facts available,
Mexico acknowledged that the investigating authority presumed (presumió) that, given the existence
of various discrepancies in the informati on supplied, the exporter would consider ( consideraría) that
the information could (podía) be dismissed.

41. In both cases, such explanations are not onl y unjustified but are also inconsistent with
Article 6.9 and paragraph 6 of Annex II of the Anti-Dumping Agreement.

2. Mexico failed to refute Guatemala's claim that the disclosure of the findings and
conclusions in the preliminary resolution is inadequate
42. Article 12.2 of the Anti-Dumping Agreement is designed to prevent any attempt to justify
actions or determinations of the investigating au thority post hoc. Mexico, however, in connection
with the definition of the product under investigation, instead of identifying those parts of its
preliminary and final resolutions which allegedly c ontain its factual findings and conclusions, merely
asserts that its resolutions contain "a description of the product which is sufficient for customs
purposes", which is not the object of Guatemala's claim.

3. Mexico failed to refute Guatemala's claim th at confidential treatment was afforded
without a good cause analysis and without requiring the presentation of adequate non-
confidential summaries
43. Guatemala regards as totally irrelevant the provisions of Mexican law concerning access to
confidential information. Guatemala does not consider that domestic law mechanisms release Mexico
from its obligation under Article 6.5.1 to grant conf idential treatment to information only if good
cause is shown and sufficiently detailed non-confidential summaries are provided. In accordance with
international custom under the law of treaties, "a pa rty may not invoke the provisions of its internal
law as justification for its failure to perform a treaty".

44. In Guatemala's opinion, it was to be hoped that Mexico would demonstrate that it had made a
good cause evaluation before affording confidential tr eatment to the information provided by the
Applicant, and that it had evaluated the "suffici ent detail" justifying acceptance of the summaries
furnished (where they had been furnished) or, a lternatively, that it had suggested that certain
information be made public or had requested aut horization for its disclosure in generalized or
summary form. However, no justification along th ese lines is to be found in Mexico's submissions,
and instead Mexico confines itself to explaining that the legal representatives of the interested parties
had (or could have had) access to the confidential reco rd and that, in its opini on, this guaranteed the
defence rights of the interested parties.

45. Guatemala recognizes that, under Mexican law, th e legal representatives of interested parties
are allowed access to the confidential record under cer tain restricted conditions. While it is true,
however, that such access may contribute to the right of defence of interested parties, it could in no
sense be considered as a substitute for the obligations laid down in Article 6.5 of the Anti-Dumping
Agreement. Accordingly, it is clear to Guatemala that Economiá acted in a manner inconsistent with
Article 6.5 of the Anti-Dumping Agreement.

LIST OF ABBREVIATIONS IN ALPHABETICAL ORDER

Abbreviation Full name/title
AB Appellate Body
ADA Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
EC European Communities
IA Investigating authority
LCE Ley de Comercio Exterior de México (Mexican Foreign Trade Law)
SE Secretaría de Economía (Ministry of the Economy)
SICMEX Sistema de Information Comercial de México (Mexican Trade Information System)
TIGI Tarifa de la Ley del Impuesto General de Importación de México (Tariff
established under Mexico's General Import Duty Law)
TIGIE Tarifa de la Ley de los Impuestos Ge nerales de Importación y Exportación de
México (Tariff established under Mexico's General Import and Export Duty Law)
Tubac Tubac, S.A. (Guatemalan exporter)
US United States of America
WTO World Trade Organization

I. MEXICO INITIATED THE INVESTIGATION WITH SUFFICIENT EVIDENCE OF
DUMPING AND INJURY, CONSISTENT WITH ARTICLE 5.2, 5.3 AND 5.8 OF THE
ANTI-DUMPING AGREEMENT
1. Mexico notes that Guatemala clai ms the following in its responses: (a) The invoice and the
price quotation supplied by the applicant do not c onstitute sufficient evidence (Article 5.2 of the
ADA); (b) the analysis of the accuracy and adequacy of the evidence must be based exclusively on
evidence provided in the application; (c) if the in voice and the price quotation were not sufficient and
the application did not contain data on import volumes, the application should have been rejected.
2. Guatemala also argues that its claims under Ar ticle 5.8 of the ADA derive from those made
under Article 5.2 and 5.3 of the ADA, cons idered both individually and as a whole
. In Guatemala's
view, Article 5.2 lays down obliga tions relating to the content of an application while Article 5.3
refers to the examination of evidence. It therefore submits that if an the application fails to meet the
requirements of Article 5.2 and the IA initiates an investigation, the latter will constitute action
contrary to Article 5.2 and 5.3 of the ADA and consequently Article 5.8 as well.
3. Mexico therefore holds that Guatemala's claim regarding these Articles taken as a whole
would be groundless if it were demonstrated that not a single of the Articles had been violated. Thus,
we respectfully request that, should Mexico demons trate the foregoing, the Panel deem this part of
Guatemala's claim to be without foundation, on the basis of an analysis of Mexico's arguments.
4. Mexico considers that a breach of Article 5.2 of the ADA cannot be imputed to an IA.
Article 5.2 is an exception within the ADA, since it establishes obligations for the applicant for an
investigation – not for an IA. Mexico therefore fails to understand how Guatemala can claim that it
has violated Article 5.2 of the ADA. The interpretation and application of a legal system requires that
a distinction be made as to whom the provision in question applies. In this case, the burden does not
in any way lie with the IA, so it cannot be argued that a non-existent obligation has been breached.
5. Furthermore, it is important to take account of the fact that the applicant's obligation, as set
out in Article 5.2 of the ADA, is to provide such information "as is reasonably available". Guatemala
has not in any way demonstrated that the informa tion provided in the application was not that which
was reasonably available to the applicant. We fail to see how such a claim can be upheld, without,
moreover, the slightest evidence.
6. We disagree with Guatemala's interpretation of Article 5.3 of the ADA. In our view, an IA
may indeed gather additional information to that pr ovided in the application in order to establish the
factual basis on which to make its determinations. In fact, the only way in which an IA can verify the
accuracy, adequacy and sufficiency of the information provided in the application is precisely by
gathering additional data.
7. The applicant is not under any obligation to pr ovide more information than that which is
reasonably available. In fact, it is not obligated to submit all the information that is reasonably
available (see report of the Panel in US – Softwood Lumber ). Even though there are no specific
guidelines as to when the application should be deem ed to contain such information as is reasonably
available to the applicant, we repeat that that such evidence clearly does not necessarily have to be of
the quality necessary to support a preliminary or final determination. It is also clear that such
evidence need not be any more than data or information
, that is, indications on which the allegations
of dumping, injury and causal link are based, and a review of which, conducted pursuant to Article 5.3
of the ADA, reveals that they are sufficient for th e IA objectively to determine that there is a well-
founded likelihood that the applicant's allegations of unfair practice, injury and causal link are correct.
It is for Guatemala to prove that a violation of Article 5.2 of the ADA has been committed, which it
has failed to do.

8. Article 5.1 of the ADA clearly states that the pur pose of an investigation is to determine the
existence, degree and effect of alleged dumping
. Thus, the information contained in the application
need not be any more than a mere indication of "alleged dumping". If it were necessary for applicants
to produce evidence of dumping – and not alle ged dumping – initiation would be practically
impossible. Moreover, even if an investigati on could be initiated, it would be pointless because
evidence of dumping, injury, and causal link would already be there, and therefore all that would need
to be done is to issue the final determination. In the case at issue, such was the line taken by Mexico's
IA.
9. As regards import volumes, Mexico considers that it is indeed appropriate for the IA to seek
to obtain additional data. Very frequently the only way to verify the accuracy, adequacy and
sufficiency of information provided in an applicati on is for the IA to gather further data. If the
applicant presents indicia of alleged dumping and th e effects thereof and is unable to obtain certain
data, this does not preclude the IA from considering the information available as a factual basis for a
decision.
10. In its responses, Guatemala also states that Me xico should have used Tubac's information for
the determination of normal value, because it is e xporters that engage in dumping, not countries;
because it is exporters that provide the informat ion for calculating their individual margins of
dumping; and because it makes no sense to base an allegation of dumping on information from firms
that do not manufacture the product under investigation.
11. Our view is that Mexico is under no obligation to act as Guatemala claims that it should, and
the latter's contention appears to us to be unfounded. When an application concerns a single exporter,
there is no reason why the evidence pertaining to no rmal value (i.e. the domestic price of the product
at issue) should necessarily be submitted by the expor ter in question, since, by definition, the normal
value of goods should not necessarily be connected to a specific exporter but to the domestic market.
Likewise, we do not see the relevance of referring to Article 6.10 of the ADA (individual margin of
dumping for each exporter), when this is a question th at arises at the pre-investigation stage. Such
margins are calculated individually, but this b ears no relation to the documents regarding normal
value that are examined prior to the initiation of the investigation. In fact, having documents from
each exporter in order to initiate an investigati on would preclude the possibility of obtaining normal
value data in cases where the exporters do not prod uce the goods at issue or sell them in their home
market. Moreover, this would be tantamount to requiring the qualitative and quantitative data
necessary to issue a determination, which is at variance with WTO jurisprudence.
12. Contrary to Guatemala's statement, moreover, Hylsa never provided evidence of the existence
of 132 (66 standard and 66 galvanized) models of pipe and tube. It subm itted data pertaining to
66 product codes only, concerning solely standard pipes and tubes. We do not know on what basis
Guatemala assumes that the number of product codes for black pipes and tubes is identical, since this
cannot be directly inferred. A company's product codes may vary depending on colour, packaging,
and so forth. Hence it is impossible to deduce th at Hylsa actually has the same number of models of
black and of standard pipes and tubes. Moreove r, nothing in the ADA requires product codes to be
identical.
13. The above notwithstanding, and regardless of the models used by Hylsa, this bears no relation
to the approach taken by the IA in relying on the documents relating to normal value that were
provided in the application. An IA is only required to consider whether the product under
investigation is identical or highly similar to the like product, regardless of the classifications used by
each enterprise. A requirement such as that alleged by Guatemala would lead to the extreme situation
of an applicant having to submit as many normal va lue references as the number of its product codes,
which is untenable, and if this were the case, a review of the applicant's and the exporter's product
codes would almost certainly reveal discrepancies between the different classification systems.
Attempting to reconcile these discrepancies would be an impossible task.

14. We strongly emphasize that, according to the determination in US – Softwood Lumber , it is
not necessary, for the purpose of initiating an inv estigation, to produce specific evidence for each
category of the product at issue. Acceptance of Guatemala's argument would also imply a major
contradiction with the adequacy of information cr iteria adopted in WTO jurisprudence and referred to
in Mexico's first written submission. For the reaso ns put forward in this rebuttal, the precedent in
question does not apply as Guatemala claims, a nd Mexico therefore requests that such an
interpretation be dismissed.
15. Guatemala further holds that there are two ways of initiating an investigation (at a party's
request or ex officio) and that if the option used is application by the domestic industry, the IA may
not gather more information than that provided in th e application in order to determine whether or not
it is appropriate to initiate an investigation. In this connection, we repeat the arguments made earlier
as to the possibility for an IA to gather additional data in order to establish the relevant factual basis.
II. ARGUMENT CONCERNING THE CLAIMS RELATING TO THE PRODUCT
UNDER INVESTIGATION AND THE LIKE PRODUCT
16. Mexico regards the fact that Tubac did not object to the inclusion of pi pes and tubes of up to
six inches in diameter as an important point. If an interested party gave e xpress consent to or tacitly
accepted an assertion, circumstance or determination, the IA should deem such acceptance to be valid.
With tacit endorsement of the definition of the pr oduct at issue, the IA had no reason to disregard
pipes and tubes of up to six inches in diameter. In any case, consent from the interested parties lends
greater objectivity and relevance to the definition.
17. Concerning the above, it is important to emphasize that, in paragraph 100 of its responses,
Guatemala indicates that "Article 2.1 of the Agreement does not prohibit minor changes to the product
at issue during the course of the investigation", wh ich shows that Mexico's interpretation in this
respect was correct.
18. Mexico respectfully requests that the Panel fi nd that Guatemala is pursuing its attempt to
sustain a number of arguments on non-existent grounds. Since the ADA provides no specific
guidance on certain points, it should be taken that th ere may be several valid interpretations of such
points. We therefore consider that the IA acted in conformity with the ADA.
19. Mexico now proposes to put forward a number of considerations on the adjustments to the
definition of the product at issue during the course of the investigation.
A. FIRST ADJUSTMENT TO THE DEFINITION OF THE PRODUCT UNDER INVESTIGATION
20. With regard to the first adjustment, Guatemal a contends that the preliminary resolution
improperly included diameters of pi pe and tube additional to those considered at the outset of the
investigation and failed to show good cause or any ev identiary basis for the IA's determinations of
dumping, injury, and causal link. It is important to recall that it is customary to describe a product
under investigation on a case-by-case basis, consider ing the particular characteristics of the product
from the outset of the procedure, and to regard an anti-dumping investigation as a process in which
the elements supporting the determination whethe r or not to impose a definitive measure are
assembled gradually.
21. We emphasize that the IA – not being an expert on the products at issue – is not familiar with
their physical and technical characteristics and hence should in principle rely on the applicant's
information. Thus, the description of the product under investigation in th e initiating resolution is
based primarily on information supplied by the applicant.

22. The preliminary resolution's express reference to pipes and tubes of up to six inches in
diameter while the other characteristics considered at the outset of the investigation remain unchanged
does not constitute an alteration inconsistent with the ADA. As explained before, the ranges indicated
in the initiating resolution were commercially interc hangeable with the rang es referred to in the
preliminary resolution, and Mexico therefore consider s that the change made by the SE is consistent
with the ADA.
B. S
ECOND ADJUSTMENT TO THE DEFINITION OF THE PRODUCT UNDER INVESTIGATION
23. As regards the second adjustment, we repeat th at in the final resolution the SE described the
product under investigation on the basis of the fact s available, in accordance with the ADA, since the
clarificatory adjustments regarding the product descr iption were made on the basis of the arguments
and evidence in the administrativ e record, including the technical and commercial interchangeability
of standard and structural pipes and tubes.
24. Turning to paragraph 103 of Guatemala's res ponses, we maintain our arguments relating to
Article 2.1 and 2.4 of the ADA, as stated in all our submissions to the Panel, and given that a fair
comparison was made and sufficient, appropriate elements were used for the purposes of the
comparison, Guatemala's arguments relating to Article 2.1 and 2.4 of the ADA are without
foundation, and we therefore request that they be dismissed.
25. According to the data and evidence presented by the parties, the main use of the pipes and
tubes under investigation is the conduction of fluids, a use linked to the diameter and thickness of the
pipes and tubes, and, regardless of the type of sheet used for their manufacture and the manufacturing
standard, pipes and tubes in general of certa in diameters and thicknesses could be used for
conduction. The pipes and tubes described in the fi nal resolution could be used for conduction; these
are therefore not a new product but the same product, and it is therefore proper that both should be
included in the definition of the product under investigation.
Mexico stresses that there is evidence of pip es and tubes being purchased in Mexico without
hydrostatic testing that are either used for the con duction of fluids or under go ex-post testing and are
marketed as pipes and tubes for conduction (as several enterprises do). 1 The above evidence was
supplied in Exhibit MEX-3. There is further eviden ce in the administrative record that both types of
pipe and tube are manufactured on the same production line, because the manufacturing process is
identical. Therefore, the adjustment to the definitio n was not specific to "structural" tubes and pipes
but was generic to the pipes and tubes covered, in technical and commercial terms, by the definition
provided in the final resolution. These are not different products, they are the one and the same from
the commercial standpoint.

26. Thus, considering that for the purposes of the anti-dumping investigation the IA determined
that the product was the same, there was no obligation yet again to state the essential facts given in the
preliminary resolution and at the public hearing, as indicated in Mexico's responses 96, 97 and 98.
27. Mexico also emphasizes once again that Tub ac had the opportunity to supply additional
information in its replies to the requests for in formation made by the IA, which Mexico took into
account in its preliminary and final resolutions and in the on-the-spot investigation, the public hearing
and the pleading stage.
28. Consequently, given that structural and standard pipes and tubes are technically and
commercially interchangeable; that the exporter re mained silent when it had the opportunity to
express its views; that the ADA provides no guidance for defining a product under investigation; and
that an analysis was made of the specifications and technical characteristics of the product in order to

1 See Mexico's response to question 89(b) of the Panel.

define it properly, we consider that the SE acted in conformity with the ADA in defining the product
at issue. Mexico therefore requests that Guatemala's arguments in this respect be dismissed.
29. As regards Guatemala's Article 1 and 18.1 cl aims, Mexico considers that there was no
violation of the provisions in question. On th e other hand, assuming arguendo – and without in any
way acknowledging – that action was taken at varian ce with these Articles, this would not necessarily
imply that the measure would have to be revoked. We consider that the Panel should leave it up to the
respondent Member to choose the way in which its measure will be brought into conformity with the
WTO Agreements. According to Article 17.6(ii) of the ADA, the provisions of the Agreement may
be interpreted in various permissible ways, so that if one of these valid interpretations is followed, the
ADA will not have been violated in any way. Th us, assuming that Mexico was required to bring its
measure into conformity, the Panel could assess, at th e appropriate procedural stage, whether Mexico
had done so according to one of the permissible interpretations of the ADA.
III. MEXICO APPLIED THE FACTS AVAILABLE IN CONFORMITY WITH THE
ANTI-DUMPING AGREEMENT
30. Guatemala basically contends that Mexico's IA improperly applied the facts available,
arguing that there was no reason for the SE to reject information which posed no problems in the on-
the-spot verification and that, moreover, the exporte r was not informed that the final determination
would be based on those facts. In this connection, Article 6.8 of the ADA provides that an IA may
make use of the facts available in cases where: (a) an interested party refuses access to necessary
information; (b) fails to provide such information within a reasonable period; or (c) significantly
impedes the investigation.
31. The Guatemalan exporter did not provide the necessary information within a reasonable
period. Moreover, the data submitted by the expo rter in the investigation cannot be considered
reliable, complete, accurate and precise, because inconsistencies were found, in the on-the-spot
investigation, with the data supplied by Tubac which made it practically impossible to use that
information.
32. Regarding Guatemala's response 103, in which Guatemala's contends that "on that assumption
Economía would be acting in a manner inconsistent with Article 6.7 of the Agreement", Mexico
agrees that Article 6.7 requires only the factual resu lts of the on-the-spot investigation to be made
available to the parties, or the parties to be info rmed thereof, but does not require disclosure to the
parties of the IA's findings regarding the process of th at investigation. The detailed record refers only
to what occurred during the on-the-spot investigation but not to the IA's evaluation and analysis of all
the information verified, and does not in any way constitute the outcome of a thorough and exhaustive
analysis of that information. Consequently, Guat emala is wrong in taking the record to be "thorough
and complete".
33. In line with the above, if Tubac, knowing that there were discrepancies between the data it
had submitted to the IA and those obtained in the on-t he-spot investigation, did nothing to clarify the
information in question, it was logical for the IA to proceed on the basis of the facts available, as
indicated in the detailed record of the on-the-spot investigation.
34. There are consequently no grounds for contending that the SE did not act in conformity with
Article 6.7 of the ADA, since there are no inc onsistencies between the final resolution and the
outcome of the on-the-spot investigation as Tubac w as duly advised of the discrepancies in its data
and was warned that it would be possible to use the facts available.
35. It is not clear how Guatemala's Article 6.7 claims can be subsidiary to its Article 6.8 claims.
Article 6.7 of the ADA sets out the procedure to be followed in on-the-spot in vestigations and refers
to Annex I to the ADA. We do not see the basis for Guatemala's contention that the IA violated that

provision, since it obtained the consent of the in terested enterprises, notified the Guatemalan
Government, followed the procedure in Annex I to th e Agreement, made the results available to the
enterprises, and provided all the factual information stemming from the on-the-spot investigation. We
therefore fail to see how a breach of the ADA can be deduced therefrom.
36. As regards Guatemala's response 104, no applica tion from Tubac to consult the confidential
information was found by Mexico in the administrative record, but there is a reason for this. Indeed,
the administrative practice followed by Mexico's IA in recent years – contrary to what Guatemala
contends – was to incorporate such documents eith er in the administrative record or in parallel
records, the latter being under the independent contro l of the director of whatever department might
be in charge of the investigation. This was because it was not considered necessary for these
documents to be in the administrative record. It is unfortunately extremely difficult to trace such
documents because as a result of restructuring, staf f moves and changes in administrative practice,
many of these parallel records are impossible to locate. Mexico therefore did not present these
documents as evidence. Nevertheless, the Archiv es department, which ope rates independently, has
always maintained the same administrative practice and has therefore always used documents such as
the one that was submitted in order to control access to the records. He nce, considering that there is a
registration for access by Tubac's legal representative, the excuse of an "inv oluntary error" is not
valid.
37. Furthermore, Guatemala has submitted no eviden ce that Tubac's representative was denied
access to the confidential record and even asserts th at access was never requested. As stated earlier,
since access as such is argued to be irrelevant, it can be inferred that Guatemala withdraws its claim
that the SE undermined the exporter's ability to de fend itself against the allegations of dumping, and
we therefore respectfully request that the Panel deem this to be so.
38. Assuming – without acknowledging – that Tubac never did request access to the confidential
version of the record, it could not then claim that its right to defence was being undermined, since the
result would have been that Tubac did not exercise a right to which it was entitled. In fact, Tubac
always did have the right to access the confidential record, and we cannot assume that the IA denied
access if the exporter never requested it.
39. Reverting to Guatemala's argument that the expor ter was not notified that its information had
been rejected, we believe it important to refer to Mexico's explanation regarding the content of the
record of the verification visit, because that is wh ere the exporter was advised of the use of the facts
available.
40. As regards Guatemala's response 105, the probl ems referred to were conveyed to Tubac's
representatives, as emerges from the re cord of the verification visit, and the exporters failed to take
any remedial measures to bring their data into c onformity so that the IA could make use of the
information.
41. We emphasize that since Annex II to and Article 6.9 of the ADA contain separate obligations,
it cannot be taken that there was a cumulative breac h of both provisions. We would add that Tubac
did not provide access to the necessary information, and even less did it provide information within a
reasonable period, which significantly impeded the investigation.
42. Given that Article 6.8 of the ADA specifies that the IA may rely on the facts available to
calculate the margins of dumping applicable to exporters that failed to provide the necessary
information within a reasonable period and significa ntly impeded the investigation, and since Tubac
fulfilled the negative criteria in the second and third pr ovisions of the Article, the IA had to make use
of the facts available, in keeping with the final report of the Panel in Egypt – Steel Rebar, pursuant to
the ADA, and in accordance with the WTO criteria.

IV. CLAIMS RELATING TO THE DETERMINATION OF INJURY
A. CHOICE OF THE PERIOD OF INVESTIGATION
43. We strongly emphasize that the rice case was b ased on entirely different considerations from
those of the present case, and hence Guatemala' s assertion is without foundation. Since the
assumptions are entirely different and Guatemala has not provided any additional arguments, it has
failed to make a prima facie case of violation by Mexico in the terms indicated.
44. The reasons why Guatemala does not establish the same prima facie case as that made by the
US in the long-grain white rice dispute are as follo ws: (a) In the rice case, the remoteness of the
period of investigation was 15 months compared to 8 months in the present case, so that it cannot be
said that the data relating to the investigation peri od are no longer relevant; (b) in the rice case, the
SE did not conduct as comprehensive an analysis of the information presented with the initiating
application as that carried out in the Guatemalan pi pes and tubes case; (c) in the rice case there was
no request for information, a matter which takes time and therefore adds to the remoteness of the
investigation period; (d) in the rice case, the AB fo und that Mexico had acted inconsistently with the
ADA in that it had accepted the period of investigati on proposed by the applicants, presumably in the
knowledge that the period in question was suggested because it reflected the period of highest export
penetration. The circumstances of the rice case are therefore different from those of the present case,
and consequently Guatemala has not made the same prima facie case as the US did.
45. Likewise, Guatemala once again asserts without evidence that the period of investigation was
not was not as close as practicable. We request that the Panel dismiss this allegation, since Guatemala
has not established a prima facie case of violation and a panel cannot rule in favour of a complainant
that fails to substantiate its claim.
46. Solely for the purpose of making matters clearer fo r the Panel in regard to its question why it
should consider that Tubac did not object to the c hoice of the period of investigation, it should be
noted that, contrary to what occurred in the Mexico – Rice case, Tubac had no objection to the choice
made and requested only that the IA clarify that the investigation period did span the period 1 July to
31 December 2000. Such a request should be regarded as consent on the part of the exporter.
47. The fact that Tubac never did object to the period of investigation should also be underscored.
In our view, it would be appropriate for the Panel to take this into account, because an IA is required
to evaluate all the elements arising during the course of an anti-dumping investigation and to issue its
determination on that basis. Thus, if an interested party tacitly or expressly accepts a fact or gives its
consent thereto, Mexico considers that the most a ppropriate course is to consider such acceptance or
consent as a relevant element.
48. Various Articles of the ADA give preference to first-hand information, which is precisely that
provided by the parties (see paragraphs 7.238 of th e final report of the Panel and 288 and 289 of the
AB report in Mexico - Rice). The fact that acceptance by an interested party is an element that cannot
be challenged must therefore be taken into account. According to the general principles of law, this
no reason to disregard a party's consent. Since there was tacit agreement to the choice of the
investigation period, the IA did not see any reason to change it.
49. Paragraph 164 of Mexico's firs t written submission clearly shows that Guatemala's allegation
regarding the possibility of establishing a more recent period of investigation is without foundation,
and details the chronology of events as follows: (a) The application for initiation was filed on
22 May 2001 with a proposed investigation period spanning 1 July to 31 December 2000; (b) on
11 June 2001, the applicant was requested to provide the technical information necessary for
determining whether or not to initiate the investigation; (c) on 9 July 2001, the applicant responded to
that request; (d) on 9 July 2001, the IA began its an alysis of the new information, which took a long

time; and (e) on 24 August 2001, th e initiating resolution was published. Such circumstances were
genuine impediments to the use of a more recent peri od of investigation. If we look at the sequence
of events, the delay was perfectly reasonable. The investigation period was indeed as close as
practicable to the initiation date. Furthermore, the time-span between that period and the initiation
does not constitute a delay such as to cast doubt on th e relevance of the investigation period. If the
remoteness of data poses a problem of potential ir relevance of the information, it is necessary to
demonstrate on a case-by-case basis that such data cannot be used . Guatemala has not provided the
slightest evidence in this respect and has therefore not established a prima facie case of violation, nor
has it substantiated its allegation that the applicant could have presented more recent information.
50. The ADA does not require coincidence in time be tween the investigation and the data on
which it is based. The period of investigation need not necessarily immediately precede initiation.
On the contrary, it is necessary, on the basis of a p ast period as close as practicable to the initiation, to
substantiate that dumping continues to cause injury. This of necessity implies a case-by-case analysis
in order to determine whether the investigation pe riod is relevant, regardi ng which Guatemala never
provided the slightest argument.
With all due respect, we would consider it most unfor tunate for the dispute settlement system if this
Panel were to find a prima facie case of violation in the absence of the slightest supporting evidence.

51. Concerning Guatemala's response 23, stating th at the applicant could have submitted more
up-to-date injury data, Guatemala fails to mention th e limited nature of the information provided by
Hylsa and the context in which it was submitted. It is wrong to contend that the applicant supplied the
data "without a request from Economía". The inform ation was submitted in response to a request for
information from the IA concerning the a pplicant's allegation of threat of injury
, and hence the data
did not pertain to material injury, which is the subject -matter of the investigation. In other words, the
authority did make a request but the data provided by the applicant did not constitute proof that it
could have presented more up-to-date injury information, since the data related to threat of injury.
52. In response to that request for information, Hylsa supplied, for the period January-June 2001,
only limited information in terms of the SE's request. For example, it did not provide any forecasts of
the potential impact of the imports under investigation on the indicators given for the period
comparable to the one under investigation (six -month period July-December 2001), and confined
itself to supplying a few indicators, without the corresponding estimates.
53. However, Hylsa explained that it provided da ta for first six months of 2001 in order to
substantiate and support its argu ment concerning the potential threat of injury, inasmuch as the
information confirmed the damaging effects of the imports under investigation on indicators such as
output and domestic sales and prices, which, accord ing to Hylsa, had dropped by 19 per cent, 11 per
cent and 15 per cent, respectively. These elements, in addition to confirming that the IA had not been
"selective" in defining the period of investiga tion, show why this information, limited as it was
without any estimates for a comparable period subsequent to the investigation period, did not
constitute sufficient grounds for changing the period of injury analysis, the more so since no domestic
industry data or information concerning the imports under investigation were provided.
54. Guatemala denies that the period of investigation was as close as practicable and does not
specify the grounds for its allegation. Therefore, once US – Rice has been demonstrated to be
fundamentally different from the present case, it cannot validly be argued that Guatemala has
established a prima facie case of violation.
55. In its response 28, Guatemala states that if an investigation period is not as close as
practicable, the evidence is no longer positive. We consider that in the case referred to above, the AB
found that "positive" evidence is that which is releva nt and important to the matter to be decided.
More recent data are therefore likely to provide better indications, but remoteness of the period of

investigation is not per se a violation of Article 3.1 of the ADA. Guatemala merely makes an
assertion without any evidence in support of its argument. It is difficult to see how this could
constitute a prima facie case of violation of the ADA.
B. C
HOICE OF HALF-YEAR PERIODS FOR THE PURPOSES OF INJURY ANALYSIS
56. We consider that the use of comparable periods for the purposes of injury analysis eliminated
any potential distortions, and the SE was thus able to correctly compare the information relating to the
investigation period with that pertaining to previo us comparable periods. A reading of the final
resolution shows that consumption of the prod uct under investigation basically depends on
performance in the construction and manufacturing sect ors (which very probably depends to a large
extent on growth in expenditure and investment in the domestic economy). It is therefore difficult to
foresee a pre-defined pattern (for example in agricultural products, including rice) for the second half-
year period of each year. In order to avoid seasonal or cyclical tendencies or fluctuations in economic
indicators (such as price index or GDP), it is cust omary to compare identical periods which are,
moreover, consistent with the period of investigation.
57. Thus, if the SE had found that the indicators for July-December 1998, 1999 and 2000 showed
a negative trend in the domestic industry but had be en identical (with no variations), a determination
of injury would not have been made, even if the period from July to December had been less
favourable for the domestic industry than January to June.
58. Regarding the level of import pe netration for each of the six-month periods of each year, it is
not right in Mexico's view to say that the July-D ecember period of each year is that of maximum
penetration. We repeat that it is necessary to take a thorough look at the resolutions of the
investigation, which show that dum ped imports were definitely on the rise, including after a purging
of data in favour of more accura te information. Hence there was no bias in the "selection" of half-
year periods for the purposes of injury analysis. In Mexico's opinion, Guatemala has no objective
grounds for suggesting that the periods were "selec ted". This would be tantamount to assuming that
the SE knew beforehand that, once it had obtained the import declarations ( pedimentos) and invoices
for Guatemala's imports for the six-month periods of the three years under analysis, the results of the
analysis would reveal a significant growth in imports, or that the outcome of all the inquiries
conducted throughout the course of the investigation would confirm injury to the domestic industry,
which is practically impossible.
59. Confirmation of Guatemala's lack of evidence can be found in response 40, in which
Guatemala acknowledges that it has no data for perfo rmance of the industry or imports in the first
six months of each year used for the purposes of in jury analysis. In othe r words, it does not know
whether there actually was higher or lower import pe netration and hence whether or not the analysis
was objective in this respect. Therefore, it has no elements to substantiate its claim and has not
established a prima facie case of violation by Mexico.
C.
DOMESTIC INDUSTRY
60. According to Article 4.1 of the ADA, there are two ways of complying with the obligation to
examine the domestic industry: by examining the producers as a whole, or by examining a significant
portion of the producers.
61. Article 5.4 of the ADA provides guidance for determining whether the domestic producers as
a whole that apply for initiation of an investigation can be considered sufficient for the application to
be regarded as having been made "b y or on behalf of the domestic industry". Thus, if an application
is filed by a domestic producer accounting for more than 50 per cent of total production expressing
either support for or opposition to th e application, the investigation shall be considered to have been

requested by the domestic industry, and the examin ation for the purposes of injury determination can
therefore focus exclusively on that producer without this being regarded as a lack of objectivity.
62. Guatemala appears to contend that under Article 4.1 of the ADA, once it has been determined
whether the producers as a whole or a significant porti on thereof are to be regarded as the domestic
industry, the IA should strictly confine itself to the data concerning the producers as a whole or, as the
case may be, the significant portion of the producers. In fact, there is nothing in the ADA to support
Guatemala's interpretation. Such a rigid approach would actually imply that if the domestic industry
were made up of a significant portion of the pro ducers, and data were subsequently obtained
concerning the domestic industry as a whole, the additi onal data would have to be disregarded, which
is unacceptable.
D.
VOLUME AND PRICE EFFECT OF THE IMPORTS UNDER INVESTIGATION
63. Guatemala starts from the premise that, as far as it understands, the SE had two sources for
obtaining positive evidence on the volume of imports, na mely the importers and customs, and that by
opting not to use the second source, Mexico acted in a manner inconsistent with the ADA, as the
importers did not send all the information requested by the IA. We emphasize that it is wrong to say
that the importers alone were asked by the SE to pr ovide data on the volume of imports, because the
SE also requested documents from customs agents. It is not true that the IA used only one source of
information and disregarded the other available source.
64. In an investigation, the IA has to find the mo st appropriate way of collecting information.
One of the key factors in this process is sound judgement on the part of the IA, which has to
determine whether certain decisions are appropriate in the light of their lik ely consequences, relying
for this on its practical experience.
65. In this case, the IA decided not to request information from the customs authorities, because it
knew from long-standing experience that it would take too long to receive a reply, which would have
affected the timeframe of the investigation and entail ed a potential risk of violation of Article 5.10 of
the ADA. As an example, documents relating to the case involving brushes from China were
submitted as Annex MEX-4. 2 Another example is the case involving valves from the US. The IA
therefore considered it appropriate to consult both importers and customs agents.
66. It should also be noted that the IA did not u se a range of prices to estimate the volume of
Guatemalan pipes and tubes under investigation, bu t based its estimates on the percentages of such
pipes and tubes in Guatemala's total imports unde r the relevant tariff headings. This was done
because the documentation available (import declarations ( pedimentos) with their corresponding
invoices) covered volumes representative of the country's total imports.
67. In order to estimate the volume of pipes and tubes under investigation, the IA applied the
minimum and maximum price method for imports of pipes and tubes from countries other than
Guatemala. Based on the documents at its disposal, the IA considered that approach to be the most
reasonable.
68. Regarding response 79 by Guatemala, Mexico i ndicated in its own response 79 that the way
in which the average prices of subject imports fro m Guatemala were calculated was different from the
way in which the price of those imports was comp ared with the average domestic sales price of like
domestic pipes and tubes. First, the average pr ice of Guatemalan imports was calculated in the
manner explained in Mexico's responses 74 and 79, which clearly show that the total volume and

2 The customs authorities were asked to provide im port declarations with the corresponding invoices,
but it took about three months (sometimes even longer depending on the relevant department's workload) for the
Mexican authority to receive 30 pedimentos along with the invoices.

value of the Guatemalan pipes and tubes under in vestigation were considered, not 17 per cent as
erroneously claimed by Guatemala; and secondly, th e SE added all the costs to the average price of
Guatemalan imports in order to place that price at a level at which it could be properly compared with
the domestic price . For that purpose, the point of entry price for subject imports from Guatemala
under tariff headings 7306.30.01 and 7306.30.99 was augmented by the corresponding tariff and
customs duty, and the cost of transporting the imported product to the importer's warehouse during the
investigation period.
69. However, the cost of transporting the imported goods was calculated on the basis of
information provided by the importe rs reported by SICMEX, which responded to the IA's request for
information. The importers that supplied informa tion on the cost of transporting the pipes and tubes
under investigation from the port of entry into the domestic market to their warehouses accounted for
17 per cent of the subject imports from Guatemala. Consequently, Mexico repeats that Guatemala's
assertion on this point is unfounded.
70. Regarding response 80 by Guatemala, it is important to make it clear that, strictly speaking, it
is practically impossible for many enterprises to send the IA information at the level of disaggregation
specified by Guatemala, as they would have to have information enabling close scrutiny of the
behaviour and impact of the sales price of a single product on the overall profits of a multi-product
enterprise.
71. Mexico requires domestic producers to provide specific financial information (profits, costs
and expenditure) in respect of the like product, with a breakdown of the profits, costs and expenditure
associated with other products manufactured by the enterprise. This is done by means of an annex
entitled "Estado de Costos, Ventas y Utilidades de la Mercancía Nacional" (Statement of Costs, Sales
and Profits for the Domestic Product). As the Panel noted at the first substantive meeting, this level
of disaggregation requires an enormous effort on the part of the applicant enterprises, in order to make
the necessary adjustments for sales costs and operating expenditure incurred exclusively in respect of
the like product.
72. Concerning Guatemala's argument that the SE failed to analyse the effect of costs and export
sales on the applicant enterprise's profits, we repeat that the main factors in the downward trend of
operating profits were the reduction in total sales income and the increase in total operating
expenditure, and that is why our first written subm ission makes no reference to the increase in costs
and consequent adverse impact on ope rating profits, as is indicated by Guatemala. In other words,
during the period July-December 2000, the sales costs of Hylsa DAT declined by 13.2 per cent, and
this led the SE to consider that the behaviour of sal es costs was not a factor influencing the decline in
profits over the period in question.
V. ARGUMENTS WITH RESPECT TO CLAIMS RELATING TO PROCEDURAL
ASPECTS
73. As regards Mexico's alleged violations of Article 6.5, 6.5.1 and 6.5.2 of the ADA,
Guatemala's responses state the following: (a) under the ADA, the mechanism for providing access to
confidential information is the submission of non-confidential summaries; (b) Tubac's legal
representative was unable to satisfy the conditions laid down by Mexican legislation for accessing
confidential information; and (c) notwithstanding the above, the question of whether or not Tubac
accessed the confidential informati on is irrelevant for the purposes of its claims under Article 6.5 of
the ADA.
74. In this connection, we note a contradiction in Guatemala's statements concerning Article 6.5
of the ADA. Indeed, on the one hand, by virtue of its rights under the ADA, it claims that public
summaries are the mechanism that can be used fo r accessing confidential information, while on the

other hand, it states that the issue of access to confidential information is irrelevant for the purposes of
its claims under Article 6.5 because that Article does not govern access to information.
75. It is strange that Guatemala should claim that it was not granted access to the content of the
confidential information and go on to state that the issue of access to confidential information is
irrelevant since, irrespective of the question of access, Mexico failed to comply with its obligations
under Article 6.5 of the ADA.
76. We have already stated in our rebuttal that, in line with the criterion applied by the Panel in
Argentina – Ceramic Tiles
3, the purpose of Articles 6.5 and 6.5.1 of the ADA is to provide a
mechanism to facilitate ascertainment of the content of confidential information by the parties, while
at the same time safeguarding the interests of the parties that supply such confidential data.
77. Thus, given that the primary objective is that the parties should be able to see information
supplied on a confidential basis, Mexico considers that the most appropriate approach is to focus on
determining whether the rules laid down in Me xican legislation concerning access to confidential
information constitute an adequate mechanism to enable the exporter to see that information.
78. In that connection, and assuming, for the sake of argument, that the record of the investigation
on standard pipes and tubes contained no public summa ries of any data submitted by the applicant (a
situation which, as such, did not occur, as is pointed out below), the obligation under Article 6.5 of the
ADA would in any event be satisfied since, as e xplained in our written submissions, the Mexican
legal system gives interested parties access to all confidential information.
79. Furthermore, the shift in Guatemala's line of argument, whereby it now claims that access as
such is irrelevant, carries with it an implicit ac knowledgement that it was in fact possible for the
Guatemalan exporter to consult all the confidential info rmation, at any point in the investigation, if it
saw fit. Thus, Guatemala accepts that Tubac's defence rights were not undermined, so that any
argument to that effect is without foundation.
80. Concerning the question whether Mexican legisla tion on access to confidential information is
sufficient to make known the content of such informa tion to the parties, it is illogical that Guatemala
should claim that the Mexican system is not suffi cient for that purpose, when it acknowledges in its
own responses and in the statement by Ms Mejía th at no such access was even requested. It appears
to be claiming that the Mexican system does not adequately comply with the ADA because Tubac had
no access to confidential information, even though it acknowledges that access was never requested.
Furthermore, it maintains that this is a violation of the ADA, attributable to the IA.
81. If an interested party is entitled to exercise a right and fails to do so, the blame for any
potential prejudice lies solely with that interested party. Thus, the consequence of not requesting
access is solely and exclusively attributable to Tu bac. Moreover, Guatemala itself forfeited that
argument when it stated that access to confidential in formation is irrelevant as such for the purposes
of its claims. For these reasons, we consider that Guatemala's claims are unfounded.
82. It is also untrue that the SE did not request public summaries from the applicant, since, as was
shown in paragraph 209 of our rebu ttal, all the submissions of the parties, including those of Hylsa,
were accompanied by their public versions, wh ich facilitated a reasonabl e understanding of the
confidential data. Thus, Tubac did have the elem ents it needed to ascertain the content of the
confidential information and the possibility of requ esting access in case it needed any of the data or
information contained therein. The IA did not de ny Tubac the possibility of seeing the information it
needed for its defence since – we repeat – public summaries existed of all confidential information
and it was possible to access the confidential records themselves.

3 Paragraph 6.38.

83. Likewise, concerning confidential treatment for Hylsa's submission of 17 September 2002
and the alleged lack of a public summary, contrary to what is asserted by Guatemala, a public
summary of that submission did exist. In fact, as is mentioned in our rebuttal, Hylsa sent that
summary to the legal representative of Tubac. We therefore request the Panel to dismiss this
argument by Guatemala.
84. Thus, given the discrepancies and erroneous assertions in Guatemala's claims, we request the
Panel to dismiss those claims in the light of the re buttals contained herein to each of them, inasmuch
as they constitute neither objective evidence nor a prima facie case of violation by the SE.