Document: WT/DS331/R Page D-1 ANNEX D ORAL STATEMENTS OF THE PARTIES FIRST AND SECOND PANEL MEETINGS Table of contents Page Annex D-1 Executive Summary of the Oral Statement of Guatemala – First Meeting – 20 September 2006 D-2 Annex D-2 Executive Summary of the Oral Statement of Mexico – First
Date: 20 September 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

ANNEX D-1

ORAL SUBMISSION BY GUATEMALA

(20 September 2006)

Initiation of the investigation
1. Mexico is wrong in stating that the info rmation submitted was such as was reasonably
available to the applicant, since this did not exempt it from meeting the adequacy, accuracy and
sufficiency requirements under Article 5.2 and 5.3 of the Anti-Dumping Agreement. 1 Thus, if the
investigating authority finds that the information is insufficient because it is not accurate or relevant,
the application should be rejected pursuant to Article 5.8 of the Anti-Dumping Agreement.

2. Mexico fails to take account of the fact that the reliability of the information in the
publication Random Lengths was not questioned by the parties to that dispute
2 and that, moreover, the
information was not sourced from a single transaction but gathered on the basis of a large number of
transactions. Furthermore, the information refers to "actual" sales and not, as here, to "potential
sales".

3. The invoice submitted at the outset was issued by Ferretería Ferrominera , a marketing
company that neither produces nor exports the product under investigation. As regards
representativeness of the company, Mexico refers to the response of the exporter for the purpose of
making these calculations, whereas it did not have that response at the time the investigation was
initiated. Neither the invoice nor the price quotation was issued by the single exporter under
investigation, both representing a small portion of the products under investigation, and moreover the
price quotation refers to a "potential" sale. In an y event, there is no record of the applicant having
submitted data for the purpose of adjustments that would allow a comparison between the export price
and normal value.

4. Nor does Mexico explain how it could ensure that the analysis of import volume under the
tariff lines in question (which included products other than that under investigation) was
representative of the subset of imports of the product under investigation.
3

5. Guatemala is not contending that Mexico fa iled to conduct some "procedure" for examining
the accuracy and adequacy of the evidence. It is challenging the substantive aspects of the
examination, which are purported to have impeded the initiation of the investigation.

Product under investigation
6. Neither Guatemala nor Mexico disputes that the definition of the product under investigation
was altered. Mexico asserts the "likeness" of the products included in each of the definitions,
disregarding the fact the scope of Guatemala's claims is outside of that context.
7. Guatemala challenges the arbitrary "way" ( forma) in which the alterations in question were
made
4, which led to the imposition of duties on products that initially were expressly excluded from

1 Report of the Panel, Guatemala – Cement II, paragraph 8.29.

2 Report of the Panel, US – Softwood Lumber V, WT/DS264/R, paragraph 7.104.

3 First Written Submission of Mexico, paragraph 69.

investigation and that were simply not investigat ed, i.e. products on which no information was either
requested or collected.

8. Mexico states that the Article 3.1 standard of the Anti-Dumping Agreement does not apply to
determinations of dumping, which is difficult to understand, because this would imply a double
standard: reliance on positive evidence and an objec tive analysis of the "dumped" imports, and at the
same time non-compliance with those requireme nts (reliance on positive evidence and an objective
analysis) in determining whether dumping occurred. Mexico's argument is in contradiction with the
case law and disregards the scope of Article 17.6(i) of the Agreement.

9. Whatever defence may have been put fo rward by the exporter, it does not prejudge
Guatemala's right to challenge acts that breach the rules of the Anti-Dumping Agreement.

Facts available
10. Mexico fails to respond to any of Guatem ala's factual questions in this connection (in
particular regarding paragraphs 80 and 81 of the Final Resolution)
5, and they should therefore be
taken as undisputed points. The outcome of the verification visit does not reflect the conditions
invoked by Mexico to justify resorting to the facts available
6 and, even assuming the rejected
hypothesis that Mexico had some factual justifi cation for doing so, this did not exempt it from
meeting various obligations deriving from Article 6.8 of, and Annex II to, the Agreement.

Most recent period under investigation
11. There is nothing in the Anti-Dumping Agreement to support Mexico's attempt to justify using
a more remote period of injury investigation on th e grounds of excessive administrative burdens. The
case law establishes that past information may be used only insofar as it is relevant to an analysis of
the current state of the domestic industry and is ju stified as such in the investigating authority's
determinations.

12. Regarding Appellate Body jurisprudence in EC – Tube or Pipe Fittings , cited by Mexico to
specify that a period of investigation that might be affected by exporters' or importers' actions may not
be used, Guatemala notes that the complaint in this dispute concerned the use of information relating
to events that occurred after the period of inves tigation for the purposes of determination of dumping
and not determination of the period of investigat ion. Moreover, the complaint referred solely to
dumping and not to injury.

13. Lastly, turning to the a lleged differences between the Rice case and this dispute:
(a) Guatemala considers that although the time-span between the end of the period of investigation
and the initiation of the investigation is shorter in the case at issue than in the Rice case, it is still long
enough to prevent an objective overall view of the cu rrent state of the domestic industry, and it was
for Economía to explain why it regarded as relevant a period such as the one that was proposed;
(b) the fact that an additional request for in formation was made to the applicant in no way
distinguishes the Rice case from this dispute; (c) the question of seasonality does not arise in this
dispute in relation to the end of the period under in vestigation but in relation to the use of six-month
periods, and it is therefore immaterial to this clai m of violation. In any case, Guatemala has already
mentioned that Economía was aware that consumpti on rose in the July-December period, resulting in
increased imports.

4 First Written Submission of Guatemala, paragraph 92.

5 First Submission of Mexico, paragraphs 135-152.

6 See, for example, First Written Submission of Guatemala, paragraphs 198, 201, 212 and 220.

Use of half-year data in the period under investigation
14. Consideration of limited in formation pertaining to a limited period of each of the years
selected, without proper justification, does not constitute the objective evaluation required by
Article 3.1 of the Agreement.
7 An investigating authority cannot simply assume that the six-month
period proposed by the applicant will provide an accurate picture of the state of the domestic
industry.8 An objective determination cannot be based on an incomplete series of data unless the
investigating authority provides a justified explanation for doing so. 9 Furthermore, this case involved
seasonal factors – such as higher consumption in December – which led to questioning of the
selection of specified six-month periods only.

Use of information by enterprise
15. Articles 4.1 and 5.4 of the Anti-Dumping Agreement refer to the "domestic industry" in
different terms. Article 5.4 addresses the "leg itimacy" of applying for the initiation of an
investigation process, whereas under Article 4.1 the i nvestigating authority is required to define the
domestic industry "[f]or the purposes of this Agreem ent". In other words, once the domestic industry
has been defined under Article 4.1, the authority is required to limit itself and confine its analysis to
that definition, and the use of partial informati on pertaining to a portion of the domestic industry is
not admissible.

Volume and import price issue
16. According to Mexico, the import declarations ( pedimentos) that it managed to identify
reflected significant volumes and constituted a sufficiently valid sample.
10 Guatemala rejects this
argument because it obtained an extremely limited sample averaging no more than 25 per cent (10 per
cent for 1998; 17 per cent for 1999; and 48 per cent for 2000). Furthermore, percentages were
extrapolated from those partial volumes in or der to estimate volumes of the products under
investigation for countries that were not investig ated. Nowhere does Mexico explain the technical
grounds for considering the sample as valid and representative.11 It is not clear to Guatemala from the
text of the Final Resolution that the reference to the 17 per cent figure covers only entry costs and that
prices were dealt with using a method providing far wider statistical coverage.

Causation: cost increase
17. Guatemala's position is simple: Economía ma de no distinction between the injury caused by
increased operating costs and the injury allegedly ca used by dumping, nor did it ascertain that the
injury caused by increased operating costs was not a ttributed to the dumped imports. To Guatemala's
mind, a reading of the relevant paragraphs clearly shows that sales costs and/or operating costs rose
while profits declined. Cost increases obviously le ad to decreasing profits. Therefore, profit loss
resulting from an increase in costs cannot be attributed to the alleged dumping.

7 Submission of Japan, paragraph 18.

8 Submission of the United States, paragraph 16.

9 Submission of the United States, paragraph 19.

10 First Written Submission of Mexico, paragraph 238.

11 First Written Submission of Mexico, paragraph 243.

Causation: decline in exports
18. In Mexico's view, Guatemala is wrong in asserting that there was no explanation of the
decline in exports as another determining factor of injury. According to Mexico, the Final Resolution
in fact indicates that export behaviour could not be a determining factor of injury to the domestic
industry, considering the share of exports in domestic production. 12 Mexico nevertheless provides a
justification which does not emerge from its Final Resolution and in any case fails to explain why a
2 per cent decrease in sales in production terms (from 7 to 3 per cent for 1999 and from 7 to 5 per cent
for 2000) should be considered negligible, whereas similar decreases in dom estic sales do have to be
taken into account.13

Essential facts
19. At no stage in the administrative procedure di d Economía identify the facts it regarded as
essential for its final determination, in particular the problems with information from the exporter for
the determination of dumping and the possibility of altering the definition of the product under
investigation to include structural pipes and tubes. Because it had failed to identify the information
prior to the final determination, Economía did not provide the e xporter with any opportunity to
comment thereon.

Confidentiality
20. The confidentiality requirement in Article 6.5 of the Anti-Dumping Agreement is not
conditional upon the possibility of acceding to confid ential information. The fact that there are
domestic legal mechanisms for acceding to confiden tial information does not exempt a Member from
complying with this provision of the Anti-Dumping Agreement. To quote the words of the European
Communities, "it is unacceptable that a WTO Member should consider, as Mexico suggests, that its
domestic legislation on access to confidential inform ation in the hands of the administration can
replace the obligations set forth in Article 6.5 of the AD Agreement".
14

12 First Written Submission of Mexico, paragraphs 271-275, 280.

13 First Written Submission of Guatemala, paragraphs 312-313.

14 Submission of the European Communities, paragraph 28.

ANNEX D–2

ORAL SUBMISSION BY MEXICO

(12 and 13 November 2006)

MEXICO HAD SUFFICIENT EVIDENCE OF DUMPING AND INJURY WHEN IT
INITIATED THE INVESTIGATION

1. Regarding the alleged insufficiency of evid ence in the application for initiation of the
investigation, we note that Article 5.2 of the An ti-Dumping Agreement provides that an application
for initiation shall include su ch evidence as is reasonably available to the applicant
. As other panels
have indicated 1, such evidence does not necessarily have to be of the quality required to support a
preliminary or final determination. It need not be any more than data or information , a review of
which supports the conclusion of a well-founded likelihood of unfair practice.

2. The fact that the invoice and the price quotati on submitted by the applicant were not issued by
Tubac is not a valid reason for claiming that the app lication lacked information, since investigations
are initiated by a country, not by an exporter. Th at would be tantamount to requiring the applicant to
present the quantity and quality of evidence requi red to support a determination, which is
inadmissible. Moreover, as was recognized by the Appellate Body
2, if a WTO Agreement remains
silent on a particular subject, there is a reason for su ch silence. Thus, it is not tenable that the Anti-
Dumping Agreement provides for obligations not mentioned in the text. Accordingly, even if the
invoice and quotation were not issued by Tubac, they are sufficient for initiating an investigation.

3. Moreover, according to Article 5.1 of the Anti-Dumping Agreement, the subject of the
investigation is alleged dumping
. If it were necessary for the a pplicant to produce evidence of
dumping – and not of alleged dumping – initiation w ould be impossible. A price quotation is an
indication of "alleged dumping". This is s upported by the final report of the Panel in US – Softwood
Lumber.

4. Guatemala relies on the final report of the Panel in Argentina – Poultry Anti-Dumping Duties
to argue that the invoice and quotation concern isol ated transactions and that this is not enough for
initiation. That case is not applicable to this disp ute, since it involved a determination that the Anti-
Dumping Agreement had been violated through an incorrect calculation of the margins of dumping,
whereas Guatemala claims that there was not enough information to initiate the investigation.

5. Furthermore, the invoice contains data on sales prices for a volume of the investigated
product almost five times greater than the average for transactions conducted in Guatemala during the
investigation period. The volume recorded in the in voice is sufficient for it to be considered a solid
indication of a well-founded likelihood of dumping.

6. Guatemala claims that the application contai ned no evidence of dumping for the investigated
product as a whole. In this connection, we reiter ate that the evidence produ ced was the information
reasonably available to the applicant, comprising elements from which it was possible to infer the

1 Mexico – Corn Syrup (paragraphs 7.74 and 7.79), Guatemala – Cement II (paragraph 8.35) and
Argentina – Poultry (paragraph 7.81).

2 Paragraphs 61, 65 and 69 of the Appellate Body in US – Carbon Steel.

likelihood of dumping, in accordance with th e Anti-Dumping Agreement and the applicable
jurisprudence3, whereby it was determined that the evid ence submitted with the application did not
need to be of the same quality and quantity that would be necessary to support a resolution.
Moreover, according to the final Panel report in US – Softwood Lumber, it is not necessary to produce
evidence for every category of the product investigated for purposes of initiation. That would be
contrary to the "reasonableness" mentioned in Ar ticle 5.2 of the Anti-Dumping Agreement and the
above-mentioned criteria relating to the sufficiency of information.

7. Concerning the trend in the volume of imports , it is understandable that the description of the
product classified under a tariff line should not tally w ith the technical description of the product.
Consequently, to require the a pplicant to provide accurate data
 on the volume of imports would be to
impose an unattainable standard and would be at va riance with the WTO jurisp rudence referred to in
paragraph 2 of this submission.

8. Mexico properly examined the accuracy and ad equacy of the evidence of dumping and injury.
And in fact, as a consequence of that examination, the investigating authority requested additional
information from the applicant. Moreover, if the evidence produced in the application for initiation is
sufficient to initiate the investigation and the investig ation has been initiated, it must be inferred that
the investigating authority conducted the accuracy and adequacy examination.
4

ARGUMENT CONCERNING THE CLAIMS RELATING TO THE PRODUCT UNDER
INVESTIGATION AND THE LIKE PRODUCT

9. Guatemala argues that the two clarificator y adjustments made by Mexico, during the
investigation, to the definition of the product unde r investigation were inconsistent with the Anti-
Dumping Agreement. In this connection, the Anti-Dumping Agreement contains no guidelines in
support of that argument which, therefore, as was pointed out by the Appellate Body
5, is without
foundation. Moreover, even if the Anti-Dumping Agreement did provide guidance for determining
the product under investigation, it would be unreas onable to prevent possible adjustment to the
definition of the product on the b asis of evidence submitted by the in terested parties or obtained by
the investigating authority.

10. Regarding the first clarificatory adjustment, si nce the investigating authority is not an expert
on the product under investigation, its product descrip tion in the initiating resolution is based on data
supplied for the most part by the applicant. The reference in the preliminary resolution to pipes and
tubes of up to six inches in diameter does not alte r the description in the in itiating resolution and is
consistent with the Anti-Dumping Agreement for the following reasons: (A) the description
contained in the initiating resolution is not defi nitive and the Anti-Dumping Agreement contains no
guidelines in this respect; (B) an anti-dumping inv estigation is a process in which the elements
necessary to support the determination are assemb led gradually; (C) the initiating resolution
established that the diameter of the pi pes and tubes investigated was basically
 one half to four inches.
It did not state that those diameters were the onl y ones that could enter the domestic market; (D) a
clarificatory adjustment solely in respect of the diameter does not imply "changing" the product
description. For certain uses, four inch pipes an d tubes could feasibly be substituted with larger
diameter pipes and tubes; (E) Tubac failed to make any comment on that adjustment, although it
could have done so, thereby tacitly accepting that it was appropriate.

3 Guatemala – Cement II, Mexico – Corn Syrup and Argentina – Poultry.

4 See final report of the Panel in EC – Bed Linen.

5 Paragraphs 61, 65 and 69 of the Appellate Body report in US – Carbon Steel.

11. Thus, in the absence of specific guidelines for defining the product under investigation and
given that the ranges indicated in the preliminary resolution were commercially interchangeable with
the ranges referred to in the initiating resolution; that the exporter tacitly accepted that change; and
that an analysis was made of the specifications and technical characteristics of the product in order to
define it properly, Mexico requests that Guatemala's arguments be dismissed.

12. Regarding the second clarificatory adjustment, we reiterate that an anti-dumping investigation
is a process in which the elements supporting the determination are assembled at gradually. Since
there is nothing in the Anti-Dumping Agreement to prevent it from doing so, the final resolution
described the product under investigation on the basi s of the facts available, including the technical
and commercial interchangeability of standard and structural pipes and tubes.

13. The applicant provided information specifying that 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 established that regardless of the type of sheet used for their manufacture and the
manufacturing standard, pipes and tubes of certa in diameters and thickness could be used for
conduction. Galvanized and black structural pipes a nd tubes of one half to six inches in diameter and
of certain wall thicknesses can be used for conduction, as established in the final resolution.

14. According to data assembled by the Ministry of the Economy (SE) pipes and tubes can be
used for conduction or structural uses, even without being subjected to a "hydrostatic test". Indeed,
structural pipes and tubes have a number of charact eristics identical to standard pipes and tubes and
are therefore also used for conduction. If standard pipes and tubes are acquired and whether or not
they subsequently undergo the aforementioned t est, they are marketed as pipes and tubes for
conduction. Thus, the analysis of the arguments and evidence submitted in the investigation enabled
the SE to describe the pipes and tubes under investiga tion by their main use and main characteristics,
and to conduct an objective examination based on po sitive evidence in its inju ry analysis. The scope
of the product under investigation was not generi cally expanded, but was only expanded to cover
structural pipes and tubes with the technical and commercial characteristics described in the final
resolution, so that they are not different products but the same or a like product.

15. The interested parties had the opportunity to submit evidence, arguments and data. They
were requested to provide information, which was taken into account in the determinations of the
investigating authority. The on-the-spot investig ation confirmed that the information from Tubac
could not be considered. During the public hearing and at the pleading stage, Tubac could have
expressed its views on the subject. Mexico therefore conducted an unbiased procedure.

16. There is no methodology under the Anti-Dumping Agreement for comparing prices and
evaluating price effects, so that WTO Members are free to do so in the manner they deem appropriate,
provided that they rely on positive evidence and make an objective examination.

17. Since structural and conduction pipes are included because they are mutually substitutable
from a technical and commercial point of view, the SE considered that the va riables analysed were
applicable to both categories. Thus, the basic pr emise of the Guatemalan argument (that there was no
reason to include structural pipes and tubes in the i nvestigation) is without foundation. Moreover, the
exporter could have put forward arguments on the information submitted afte r the hearing but failed
to do so. We also note that Guatemala failed to indicate the differences between standard pipes and
tubes and structural pipes and tubes in order to substantiate its argument.

18. The explicit reference to certain structural pi pes and tubes was not an essential fact when it
came to imposing the definitive measure, since for the purposes of the investig ation, it was the same
product. Thus, there was no obligation to discl ose once again the essential facts set out in the

preliminary resolution and at the hearing. For a ll these reasons, Mexico contends that it acted in
conformity with the Anti-Dumping Agreement.

MEXICO APPLIED THE FACTS AVAILABLE IN CONFORMITY WITH THE ANTI-
DUMPING AGREEMENT
19. Article 6.8 of the Anti-Dumping Agreement pr ovides that the investigating authority may use
the facts available: (a) when a party refuses access to information; (b) when the party concerned does
not provide such information within a reasonable peri od; or (c) when it impedes the investigation.
The Guatemalan exporter did not provide all
 necessary information. As is accepted by Guatemala, the
information submitted in the investigation cannot be considered reliable, complete and precise since,
in the on-the-spot investigation, the investiga ting authority found inconsistencies with the data
provided by Tubac (apart from the fact that those data were not drawn from the company's accounting
records), and it was not possible to use that informa tion. Thus, given the failure to provide reliable
information and to provide it within a reasonable time, thereby significantly impeding the
investigation, in accordance with the reports of various panels
6, and in keeping with accepted WTO
criteria, the SE made use of the facts available.

CLAIMS RELATING TO THE DETERMINATION OF INJURY
20. The SE acted in conformity with the Anti- Dumping Agreement by using the period from
1 July to 31 December 2000 as the investigation period. Guatemala has not established a prima facie
case that the investigation was not as close as practicab le, and in that context it is not possible for a
panel to rule in favour of a party that has not made such a case. We consider that it is not enough that
the same prime facie case is involved as was made by the United States in Mexico – Rice (the time
span between the investigation period and the initia tion was different; in the rice case the parties
questioned the investigation period; in this cas e the investigating authority sent a request for
information to the applicant; and in the rice case, there were considerations concerning the level of
export penetration). Guatemala's assertion is therefore unfounded.

21. The fact that an investigation period is not immediately prior to the initiation does not mean
that the Anti-Dumping Agreement is violated. Th is is not an obligation under the Anti-Dumping
Agreement and it also takes time fo r the applicant to gather information. Thus, in this case, the
investigation period was as close as practicable
 to the initiation. Moreover, the delay was not such as
to cast doubt on the relevance of that period. It is also incorrect to say that the SE simply accepted the
period proposed by the applicant. The investiga ting authority deemed it a ppropriate to initiate the
investigation only after analysing the applicant's res ponse to the request for information. It is thus
necessary to examine on a case-by-case basis whet her the investigation period is as close as
practicable to the initiation.

Mexico conducted an objective examination based on positive evidence in using information from the
investigation period, given that Article 3.1 of the Anti-Dumping Agreement provides guidance on the
applicability of the data used, and not on the remoteness of the investigation period per se, as this is
only one factor to be analysed. In its first wr itten submission, Guatemala accepts that it cannot be
determined a priori that the remotene ss of the investigation period is per se a cause of inconsistency
with the Anti-Dumping Agreement, but it also fa iled to provide any evidence to prove that the
information in question was not relevant. Mexico therefore requests that this claim be dismissed.

22. The SE also acted in conformity with the Anti-Dumping Agreement by using six-month
periods in its injury examination. Guatemala affi rms that the fact that the SE acted in this way
constitutes prima facie evidence of a Mexican viol ation and seeks to rely on the Appellate Body
report in the Mexico – Rice case, wrongly so because the circum stances of that case are totally

6 Argentina – Ceramic Tiles and Egypt – Steel Rebar.

different from those of the present dispute. We repeat that, if a WTO Agreement remains silent on a
particular subject, there is a reason for such silen ce. Since there is no indication in the Anti-Dumping
Agreement concerning the periods used for the injury analysis, the use of six-month periods in each
year does not violate the Agreement. At the same time, comparing the same periods for each year
means that the structure is the same, and seasonal or cyclical tendencies in the economic indicators are
avoided, besides which the six-month periods are cons istent with the investigation period, which also
covers six months.

23. Mexico acted correctly in considering some of the financial indicators on an annual basis.
Those indicators were obtained from financial statem ents reported on by an auditor (which are more
reliable). In accordance with Mexican accounting pr actice, such audited financial statements are
submitted for the same dates as the information subm itted to the tax authorities, which is on an annual
basis. They are therefore to be analysed on an annual, not a six-m onthly basis. It is clear that
affirmative, objective, verifiable and credible evidence was used, and that it was examined
objectively. Similarly, because it rests on a permissible interpretation of the provisions of the Anti-
Dumping Agreement, pursuant to Article 17.6 (ii) of that Agreement, the measure is consistent with
Article 3 of the Anti-Dumping Agreement.

24. In its analysis of the factors of injury to th e domestic industry, Mexico acted consistently with
Articles 4.1 and 5.4 of the Anti-Dumping Agreemen t, since if an application is submitted by a
domestic producer that represents more than 50 per cent of the totality of domestic producers,
expressing either support for or opposition to the applica tion, the investigation shall be considered to
have been requested by the domestic industry, a nd the examination can therefore objectively focus on
injury to that producer. The applicant accounted fo r 53 per cent of total domestic production, so that
the investigating authority correctly applied to its analysis financial variables contained in information
from the applicant. The analysis conducted was not, therefore, a sectoral one.

25. Similarly, the analysis of the volume of imports from sources other than Guatemala is
consistent with the Anti-Dumping Agreement. Th e investigating authorities use information from the
interested parties and other entities (such as customs brokers). However, it is not always possible to
obtain all the information requested from the parties concerned. Even Tubac omitted certain estimates
of imports from Guatemala, and pointed out that the SE could estimate that volume on the basis of
data from customs brokers and importers.

26. However, in the case of imports from Guat emala, Mexico obtained copies of actual import
declarations (pedimentos) and invoices relating to total imports from Guatemala, through the applicant
and through requests for information to customs broke rs and importers, because unlike in the case of
imports from other sources, the number of transactions or import declarations from Guatemala was
not high. Contrary to what Guatemala claims, th e SE did not obtain the actual import declarations
from the Mexican Trade Information System (SICMEX) , since this is a system which shows only an
electronic list of import transactions (statistical in formation) and does not contain the declarations
themselves.

27. The number of import transactions from s ources other than Guatemala under tariff
headings 7306.30.01 and 7306.30.99 was 1,720 in 1998, 1,752 in 1999 and 2,456 in 2000. Given that
the Anti-Dumping Agreement provides no guidance in this respect, a sample of import declarations
was collected, reflecting significant portions of the total volume imported and the main importing
enterprises. Thus, a total of 673 import declarations were seen.

28. In view of the volumes covered by those declarations, and given that Tubac stated that it did
not have the relevant data, the SE considered that the available declarations with the relevant invoices
and the volumes covered by them represented a vali d sample for estimating the range within which
the price of imports of the subject product from other sources fluctuated. The criterion used to

estimate the subject product from other sources was the maximum and minimum prices for the
imports identified as the product under investiga tion from other countries. Contrary to what
Guatemala claims, Mexico did not
 assume that the prices of imports from Guatemala and from the
countries not investigated were in all instances at the same level.

29. Moreover, in evaluating the impact of the prices of Guatemalan imports on domestic prices,
the investigating authority did not rely on a sample of 17 per cent of total imports from Guatemala
during the period from July to December 2000. The 17 per cent to which Guatemala refers is a
sample of imports from that country, which was used to calculate the cost of transporting the product
from the port of entry into Mexico to the importe r's warehouse during the investigation period. It
does not refer to the average prices of imports from Guatemala . Those average prices were calculated
on the basis of value and volume figures for total imports recorded in SICMEX and duly adjusted.

30. It should be pointed out that paragr aph 7.115 of the Panel's final report in Mexico – Rice is not
applicable to the case of Guatemalan pipes and tub es for the reasons previously set out in detail in
Mexico's oral submission.

GUATEMALA ERRONEOUSLY CLAIMS THAT THE MINISTRY OF THE ECONOMY
(SE) FAILED TO ANALYSE OR VERIFY THE NON-ATTRIBUTION OF INJURY CAUSED
BY OTHER KNOWN FACTORS

31. Concerning Guatemala's contention that the inv estigating authority acted inconsistently with
Article 3 of the Anti-Dumping Agreement, it should be pointed out that it is for Guatemala to make a
prima facie case for its claims, which cannot validly be done by mere assertions. Guatemala quite
plainly asserts, without the slightest proof, that the decrease in the applicant's profits was primarily the
result of increased costs. We therefore ask this Panel to dismiss Guatemala's claim, given that it is not
possible for a panel to rule in favour of a compla ining party that fails to substantiate such a
hypothesis.

32. Furthermore, it should be pointed out that the final resolution made no reference to an
increase in operating costs. Nor does it state that th e injury to the domestic industry was exclusively
the result of a decrease in sales revenue. What it est ablishes is the structure of the analysis conducted
in conformity with Article 3 of the Anti-Dumping Ag reement. In that connection, the final resolution
states that the behaviour of revenue and operatin g expenses were the factors that influenced the
downward trend in operating profits.

33. As if that were not enough, the SE conti nued to analyse those aspects which according to
Guatemala, were disregarded. It was precisely owi ng to the behaviour of costs that the decline in
profits was less substantial. Moreover, the final r esolution clearly states that the decrease in profits
was a direct consequence of the decrease in sales revenue and not of any identifiable adverse upward
trend in sales costs. This is why there is no sugg estion that the injury in relation to "profits" was
attributable to the behaviour of costs.

34. At the same time, it is not clear whether Gu atemala is arguing that Mexico failed to provide
an explanation to the effect that the declin e in the domestic producer's exports was another
determining factor of injury, or that the said declin e was another factor of injury and that the SE did
not make that finding in its resolution. In this connection: (i) we would like to repeat the points made
regarding the obligation to establish a prima facie case of violation attributable to Mexico, and (ii) at
the same time, there is, in the fina l resolution, an explanation as to why the decline in exports was not
a determining factor of injury, since despite thei r decline, exports accounted for only 7 per cent of
domestic production in 1998, 3 per cent in 1999, and 5 per cent during the investigation period.

35. Nor did Mexico favour one factor of injury ove r another. Guatemala assumes that the decline
in domestic sales has the same specific weight or impact as the decline in exports, and that it was

therefore wrong to consider one factor and disr egard another. However, Guatemala makes no
reference to the key aspect, namely domestic sales volumes, which declined by 5 per cent during the
investigation period and which had an impact on profits, as was explained in paragraphs 221 to 224 of
the resolution.

ARGUMENTS WITH RESPECT TO CLAIMS RELATING TO PROCEDURAL ASPECTS

36. Guatemala apparently considers that an alle ged violation of Article 6.9 of the Anti-Dumping
Agreement automatically implies a violation of paragraph 6 of Annex II to the Anti-Dumping
Agreement. Mexico's view of the matter is that the paragraph in question is not applicable to the
disclosure of the essential facts.

37. Moreover, according to the precedent in Argentina – Ceramic Tiles , in the absence of any
specific indication in the Anti-Dumping Agreement as to how the essential facts are to be disclosed,
the investigating authority may do so, inter alia , by means of a special document, a verification
report, a preliminary determination, etc. In this case, the SE disclosed the facts both in the
preliminary resolution and at the public hearing. Consequently, it is wrong to assert that there is no
indication in any document that the essential facts were disclosed.

38. Similarly, Tubac is responsible for the fact that the information verified during the on-the-
spot investigation was inconsistent with the info rmation it submitted to the investigating authority,
with the result that it was decided to use the facts available. Tubac was aware that its information was
flawed, so that it was predictable that it would be dismissed.

39. As regards the disclosure of the essential facts through the contents of the record, we submit
that Tubac's rights were not affected: contrary to what Guatemala asserts, its defence did have access
to the information relating to the case. In Mexico, confidential info rmation may be consulted by the
legal representative of any of the interested parties. In fact, there is a record of the fact that Tubac's
legal representative accessed the confidential information in question, which proves that it suffered no
prejudice.

40. However, as far as Article 12.2 of the Anti-Du mping Agreement is concerned, the resolutions
set forth in sufficient detail the findings and conclu sions reached by the investigating authority on
questions of fact and law, as well as the methodol ogies used in the calculations of margins and
considerations relevant to in jury. As is evident from the considerando and resultando sections, the
final resolution contains all relevant informati on on matters of fact and law which led to the
imposition of the final measures. Similarly, regardi ng the change in the product investigated, if the
applicant suggests such a change and the exporter expresses no objection thereto, it is normal that the
investigating authority should have no objection to making that change, the assumption being that the
interests of the parties are not affected and that the parties in fact agree. At the same time, regarding
the adjustments to the product investigated, as th ere was no objection whatsoever by Tubac, it was
considered that its interests were not affected.

41. The exporter was allowed access to the confiden tial information at any time, since in Mexico
such data may be consulted by the legal representati ves of the parties. Moreover, the investigating
authority conducted an analysis of whether confiden tial treatment should be afforded to every item of
information submitted by the parties, as defined in the administrative arrangement relating to each
application. At the same time, the record contai ns non-confidential summaries of all the documents
that were afforded confidential treatment, and there are no such summaries where summarization was
impossible, for instance in the case of figures. Even if those summaries had not been provided,
Tubac's rights would not have been affected, given th e fact that, in Mexico, full access is granted to
confidential information.

ANNEX D-3

ORAL STATEMENT OF GUATEMALA
SECOND MEETING

(7 November 2006)

Introduction

1. Mr Chairman, members of the Panel and member s of the Secretariat, good morning. It is a
pleasure to see you all once again to restart our talks in this dispute. Given the number and level of
detail of the Panel's questions to the parties in the wake of the first substantive meeting, and the scope
and thoroughness of the responses by both parties, it is obvious that the vast majority of the relevant
aspects of the dispute have been covered.

2. It would be pointless to repeat arguments th at the Panel has already read in our respective
submissions. The Panel will no doubt have many ot her questions to put to the parties today.
Accordingly, Guatemala will confine itself to a br ief introduction on certain themes which come up
repeatedly in Mexico's arguments in this case.

3. One of the main and recurrent arguments Mexico uses in its defence is that if something is not
expressly stated in the Anti-Dumping Agreement, it is because the negotiators so intended and the
investigating authority therefore has virtually unlim ited discretion. Such an argument is used, for
example, to defend the changes made to the definition of the product under investigation
1 and the
establishment of the period of investigation. 2 In both cases, what Mexico suggests is that the absence
of an explicit rule on such situations allowed Ec onomía to shirk other obligations contained in the
Anti-Dumping Agreement, such as the requirement to apply anti-dumping duties solely to products
under investigation and for which there have been af firmative determinations of dumping, injury and
causal link or an unbiased and objective injury anal ysis based on positive evidence. Pursuant to
Articles 1 and 18.1 of the Anti-Dumping Agreement, an anti-dumping measure may only be imposed
only if every single provision of the Agreement has been fulfilled. Me xico uses the idea that
Economía enjoys virtually unlimited discretion in order to disregard its obligations under
Articles 17.6(i) and 3.1 of the Agreement. These pr ovisions regulate the activ ity of the investigating
authority in all aspects of an anti-dumping investigation.

4. Secondly, in its written submissions and oral statements, Guatemala has made very specific
claims with regard to Economía's determinations on dumping, injury, causal link and the procedural
aspects of the case. Guatemala is surprised that Mexico has not responded to all these specific claims,
but instead has based its defence on general arguments regarding claims not even made by Guatemala.
For example, in response to Guatemala's claims th at the application lacked sufficient information on
dumping, injury and a causal link within the mean ing of Article 5.2 and that Economía failed to
examine properly the accuracy and adequacy of the evidence as Article 5.3 requires, Mexico

1 First Written Submission of Mexico, paragraph 85.

2 First Written Submission of Mexico, paragraph 193.

maintains that an application need not contain all the information reasonably available to the
applicant.
3

5. In Guatemala's opinion this is quite simply irrelevant. Mexico has not even explained
whether or how Economía took into consideration el ements such as (i) the l ack of any evidence of
dumping in respect of the only exporter mentioned in the application; (ii) the fact that it had evidence
of dumping only for firms which were apparently neither producers nor exporters of the product under
investigation; (iii) the lack of information on th e accuracy and adequacy of the price quote for a sale
not confirmed to have taken place; (iv) the fact that the evidence corresponded to barely a single day
of the investigation period for galvanized pipes and tubes and black pipes and tubes and to only a
limited number of products covered by the definiti on of the product under investigation; and (v) the
fact that the applicant omitted from its applicati on accurate and adequate in formation on the volumes
of the imports to be investigated.

6. As for the change to the definition of th e product under investigation, Mexico seems to
consider that standard pipes and tubes and structur al pipes and tubes are interchangeable in terms of
use.
4 As Guatemala has repeatedly explained, th is is not the matter at issue in the dispute. 5 The point
of the claim is whether Economía was entitled to impose anti-dumping duties on products which were
not covered by its investigation and for which ther e were, therefore, no determinations of dumping,
injury or causality. Guatemala notes that Mexico did not refute Guatemala's assertion that its
determinations of dumping, injury and causality covered neither structural pipes and tubes nor
standard pipes and tubes of four to six inches in diameter.

7. As far as use of the facts available is concerned, Mexico merely asserts that since some of the
information supplied by the Guatemalan exporter was not entirely accurate, Economía was entitled to
apply this concept to all the information.
6 Mexico has not to date refuted Guatemala's arguments
concerning the various reasons adduced to justif y the use of the facts available, nor has it
explained: (i) how Economía reached the conc lusion that the exporter had failed to provide
information or how it had significantly impeded the i nvestigation within the meaning of Article 6.8;
(ii) whether Economía endeavoured to use all info rmation which is verifiable in the context of
paragraph 3 of Annex II; (iii) wh ether Economía took into consideration that the information should
not be disregarded given that the exporter had acted to the best of its ability within the meaning of
paragraph 5 of Annex II; (iv) wh ether Economía informed the exporter and granted it an opportunity
to provide further explanations within a reasona ble period within the meaning of paragraph 6 of
Annex II; and (v) whether Economía exercised special circumspection within the meaning of
paragraph 7 of Annex II.7
8. As to Guatemala's claims regarding the d esignation of information as confidential and the
submission of non-confidential summaries, Mexico merely states that it granted (or could have
granted under its legislation) access to the conf idential record, subject to certain conditions. 8 Such
limited access is, however, completely irrelevant in the light of Mexico's obligations under Article 6.5

3 First Written Submission of Mexico, paragraphs 26 and 30.

4 First Written Submission of Mexico, paragraphs 99, 102 and 106.

5 First Written Submission of Guatemala, paragraph 92; Oral Submission by Guatemala, paragraph 8.

6 First Written Submission of Mexico, paragraph 145.

7 First Written Submission of Guatemala, paragraphs 192 to 230.
8 First Written Submission of Mexico, paragraph 305.

of the Anti-Dumping Agreement. Mexico fails to demonstrate why it granted confidential treatment
to information without good cause being shown or how it fulfilled its ob ligation to require
non-confidential summaries of information classified as confidential. It is worth mentioning here the
matter of the invoice and the price quote, raised by Guatemala in previous submissions.

9. In view of the foregoing Guatemala trusts th at the Panel's settlement of these issues will focus
on Guatemala's specific claims and arguments and the actual text of the Anti-Dumping Agreement
rather than heeding the lines of defence adopted by Mexico which rely on Mexican legislation and are
immaterial to this dispute.

10. A third kind of defence strategy used on a number of occasions by Mexico is to support
Economía in the considerable deference it accords to statements by the applicant at each stage of the
investigation. For example, Mexico argues that since the applicant need not provide all reasonably
available information, whatever information it does submit is bound to be acceptable.
9 Moreover,
Mexico states that if the information is incomple te or inaccurate, it may be supplemented during the
course of the investigation. Mexico also considers that an examination of the accuracy and adequacy
of the information furnished must be cond itional on the "good faith" of the applicant. 10 Economía
simply preferred not to question the investigation pe riod proposed by the applicant since to do so and
to request more up-to-date information would have made the investigation more onerous and obliged
the applicant to provide information additio nal to that contained in the application. 11 Furthermore,
Economía made changes to the definition of the prod uct under investigation, simply because it is not
an expert in the matter 12 and accepted the arguments put forward by the applicant, with the result that
anti-dumping duties were applied to products that were not under investigation.

11. However, contrary to Mexico's apparent understanding of it, the Anti-Dumping Agreement
imposes strict obligations which an investigating au thority must fulfil and may not disregard merely
to avoid inconveniencing the applicant.
13 Determinations by an investigating authority must be
appropriate, unbiased and objective. An investigating authority must also fully comply with the letter
of the substantive provisions and procedural oblig ations of the Anti-Dumping Agreement, regardless
of their possible impact on the domestic industry.

12. A fourth kind of defence tactic adopted by Mexi co is to conclude that if no interested party
objects to some administrative act of the investiga ting authority, it should be understood that the act
will stand and so no subsequent claim of a breach of the Anti-Dumping Agreement may be made on
that basis.
14 This is to overlook the fact that the Anti-Dumping Agreement imposes specific
obligations on investigating authorities whatever arguments exporters or their governments may
adduce. Guatemala trusts that the Panel will not entertain an argument which seeks to scale down
Mexico's obligations under the Anti-Dumping Agreement.

13. In addition to highlighting these recurrent th emes, Guatemala wishes to take this opportunity
to respond briefly to a number of erroneous assertions by Mexico in its Second Written Submission of
13 October 2006.

9 Rebuttal Submission of Mexico, paragraph 17.

10 Reply by Mexico to Panel question 9(a).

11 First Written Submission of Mexico, paragraph 165.

12 Reply by Mexico to Panel question 99.

13 Reply by Guatemala to Panel questions 26 and 86.

14 Reply by Mexico to Panel question 26.

14. Mexico states that Hylsa "never provided evidence of the existence of 132 (66 standard and
66 galvanized) different m odels of pipe and tube".
15 To address Mexico's assertion, we refer to
Hylsa's response of 9 July 2001 to Official Communication UPCI.310.01.1179 of Economía's
International Trade Practices Unit
16, in which the applicant clearly specified the size ranges of the
subject pipes and tubes for "standard pipes and tube s". As has been shown time and again in the
investigation process, standard pipes and tubes can ta ke the form of either "standard black pipes and
tubes" or "standard galvanized pipes and tubes". A simple calculation based on Hylsa's data on the
dimensions of standard pipes and tubes - 66 differe nt sizes overall, a fact conceded by Mexico - and
taking into account that such products exist in both bl ack and galvanized finishes, gives us a total of
132 different product dimensions. It should be made quite clear that at no time has Guatemala
suggested that the applicant should submit " 132 normal value references" for these products.
Guatemala is of the opinion that, in the light of the text of the Anti-Dumping Agreement as
interpreted in the case law, a single piece of eviden ce for standard black pipes and tubes and a single
piece of evidence for standard galvanized pipes a nd tubes, which respectively cover an insignificant
subset of models falling under the definition of th e product under investigation (3 and 6 respectively),
without any further explanation being given, cannot be considered "sufficient" within the meaning of
Article 5.2 of the Anti-Dumping Agreement. Neither therefore is it true, as Mexico mistakenly states,
that Guatemala is making an allegation sim ilar to that of Canada in the dispute US - Softwood
Lumber VI. Quite the contrary: in that dispute Canada did not argue that the evidence amounted to
an "insignificant subset" of the product under investig ation, which is what Guatemala has done in this
case and as is reflected in its submissions and responses to the Panel's questions.17 The "insignificant"
nature of the product subset used as evidence of dumping is, in any case, just one of a number of
factors which render the dumping evidence "insufficient".
15. As to the facts available, Mexico misappr aises the facts in stating that the verification
problems "were conveyed to Tubac's representatives, and it was the exporters who failed to take any
remedial measures to bring their data into conf ormity so that the IA could make use of the
information."18 This is at odds with the detailed record of the verification visit which states, as
Guatemala explained in its First Written Submission, that Tubac's representatives corrected a number
of errors found in the data, and it wa s this revised information which was verified by the investigating
authority.19 An admission by Mexico that the deta iled record does not accurately reflect the
verification visit would call into question every action Mexico took in the investigation process.

16. Lastly, Mexico misinterprets Guatemala's a ssertion that access or the possibility of access by
the parties to confidential information is irrelevant to its claims under Article 6.5 of the Anti-Dumping
Agreement. First, Mexico wrongly infers that Guatemala would be with drawing its claim that
Economía undermined the exporter's ability to defend itself against the allegations of dumping.20

15 Second Written Submission of Mexico, paragraph 34.

16 Exhibit GTM-3.

17 Oral Submission by Guatemala, paragraph 4(d); Response by Guatemala to Panel question 7;
Rebuttal Submission of Guatemala, paragraphs 38 and 39.

18 Second Written Submission of Mexico, paragraph 125.

19 First Written Submission of Guatemala, paragraphs 192 to 218; Exhibit GTM-15.

20 Rebuttal Submission of Mexico, paragraph 201.

17. Guatemala's claim, however, is that, i rrespective of access or possibility of access for
interested parties to the confidential record, th e requirement for Economía to grant confidential
treatment applies only to information for which the applicant shows good cause and non-confidential
summaries are furnished in suffici ent detail to permit a reasonable understanding of the substance of
the information. Economía simply disregarded this obligation.

18. Guatemala considers that Mexico is endeavour ing to convince the Panel that its legal system,
which access to the confidential record may be allo wed, is "equivalent" to its obligations under
Article 6.5 of the Anti-Dumping Agreement. Without prejudice to the legal considerations set out by
Guatemala in its second submission, including those re lating to the fact that domestic law may not
conflict with an international obligation 21, Guatemala notes that Mexico's approach is not only
WTO-inconsistent, but also poses problems in terms of practical application, such as what happens if
an interested party fails to meet the requiremen ts for accessing the confidential record, as could well
occur were a small exporter unable to pay the bond required by Economía, or, if a government of an
exporting country finds itself unable to bear the cons iderable expense of hiring a Mexican lawyer or
sending someone to Mexico City to satisfy th e conditions under Mexican law for securing access to
the confidential record. Guatemala trusts that the Panel will disregard particularities of Mexican
legislation that are immaterial to Mexico's ob ligations under Article 6.5 of the Anti-Dumping
Agreement.

19. Thank you, Mr Chairman and members of the Panel. Guatemala remains at your disposal
should you have any further question.

21 Rebuttal Submission of Guatemala, paragraph 162.

ANNEX D-4

ORAL STATEMENT OF MEXICO
SECOND MEETING

(7 November 2006)

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 Información 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

INTRODUCTION

1. Representatives of the Guatemalan Government and distinguished members of the Panel,
good morning. On behalf of the Mexican Government and on our own account, we wish to thank you
for the opportunity to present Mexico's views at this stage of the dispute.

2. Once again, it is not Mexico's intention in this oral statement to give a detailed presentation of
the lines of argument already set out in its Second Written Submission, but to highlight a number of
points which we feel to be of the utmost importance.

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

3. Before reiterating the reasons why we consider Guatemala's claims under Article 5.2, 5.3 and
5.8 of the ADA to be unfounded, we feel it worthwhile to refer briefly to the general way in which an
anti-dumping investigation is structured. As we s ee it, an investigation consists essentially of two
stages: (a) the pre-initial stage; and (b) the investigation sensu stricto.

4. As far as the pre-initial stage is concerned, the guidelines to be followed include Article 5.1,
5.2, and 5.3 of the ADA. Also relevant is the WT O case-law (the final panel reports in the disputes
Mexico - Corn Syrup, Argentina – Poultry Anti-Dumping Duties and Guatemala –- Cement II), which
has established that evidence in the application does not have to be of the quality and quantity
necessary to support a preliminary or final determination.

5. It should be noted in this context that:

i. Article 5.1 of the ADA clearly states that the purpose of an investigation is to
determine the existence, degree and effect of any alleged dumping
. Mexico considers
this to be entirely consistent with the above, in the sense that evidence provided in the
application does not have to be of th e quality and quantity necessary to support a
determination of unfair practice and the a pplication of an anti-dumping duty, but to
initiate an investigation. Thus, the inform ation in the application need be no more
than a mere indication of "alleged dumping". We point out that if the domestic
industry had to produce evidence of dumpi ng – rather than of alleged dumping –
initiation would be practically impossible and initiating an in vestigation process
would to some extent be divested of meaning.

ii. Furthermore, Article 5.2 of the ADA states that an application for the initiation of an
anti-dumping investigation must include evidence reasonably available to the
applicant of dumping, injury and a causal link between the dumped imports and the
alleged injury
. The points made above on "alleged dumping" thus also apply to
"alleged injury". Moreover, the obligation for the applicant is to submit information
which is reasonably available to it and wh ich it deems necessary for substantiating its
case for the need to initiate an investigation.

iii. Similarly, Article 5.3 of the ADA establis hes that the IA must examine the accuracy,
adequacy and sufficiency of the evidence provided in the application to determine
whether or not to initiate an investigation. This would imply that, as established with
regard to "alleged dumping" and "alleged injury", evidence in the application need
only be sufficient for the IA to determine objectively that there is a well-founded
probability of dumping, injury and a causal link between the two. An applicant
cannot be required to present evidence of the quality and quantity necessary to
support a preliminary or final determination, but only indications of alleged dumping

and alleged injury. For this reason, during the investigation
, which "is a process
where certainty on the existence of all th e elements necessary in order to adopt a
measure is reached gradually" (see the Panel report in Guatemala –- Cement II ), the
IA assembles the evidence it needs to de termine whether dumping, injury and a
causal link do indeed exist.

6. In that context, the Mexican IA considered that the application submitted by the domestic
industry for initiation of an investigation include d reasonably available information and sufficient
evidence of dumping, injury and a causal link between the two.

7. With regard to evidence in the application concerning norma l value, we feel particular
attention should be drawn to the following:

i. By definition, the normal value of a produc t has to be linked not to a specific exporter
but to the domestic market. We cannot find a single ADA Article which suggests that
normal value must be determined on the basis of documents issued by the exporters
specified in the application. Guatemala's argument to that effect is without merit.

ii. In reply to a specific question from the Pane l, Guatemala stated that, at the pre-initial
stage, it did have to use information on normal value from Tubac to determine
whether or not to initiate the investigati on, because it is the exporters – not the
countries – which provide information on their sales, and that, in accordance with
Article 6.10 of the ADA, dumping margins are calculated on an individual basis.
However, Article 6.10 relates not to the pre-initial stage but to calculation of dumping
margins during the investigation itself, th at is to say, the second stage. Dumping
margins are, indeed, calculated on an indivi dual basis during the investigation, but
this is unrelated to the documents on norma l value taken into consideration prior to
the initiation of the investigation. To assert that information on normal value at the
pre-initial stage has to come from the expor ters specified in the application is
tantamount to saying that the application has to include evidence of dumping in the
quantity and quality necessary to support a prel iminary or final determination, since
every exporter's data is required for the calculation of its own individual margin of
dumping during the investigation.

iii. As to Guatemala's contention that the evidence on normal value was not sufficient
because it was not representative of the full range (that is to say, all categories or
codes) of the product under investigation, it should be pointed out that, as the panel in
US – Softwood Lumber rightly held, in order to initiate an investigation, there is no
need for specific evidence for each category of product incl uded in the scope of the
subject product. This is consistent with the aforementioned criteria for the evidence
required at the pre-initial stage.

iv. Furthermore, Guatemala's standard is at odds with the Panel's finding in Guatemala –
Cement II that more detailed information can be assembled during the investigation –
the process where certainty on the existence of injury is reached gradually – in order
to issue a determination.

8. With regard to the data provided in the a pplication on import volumes, the following is
worthy of special mention:

i. Guatemala questions whether the volume of allegedly dumped imports cited by the
applicant corresponded to all imports under tariff subheadings 7306.30.01 and
7306.30.99 of the Tariff established under Mexico's General Import Duty Law (Tarifa

de la Ley del Impuesto General de Importación , TIGI), yet it acknowledges that other
types of pipes and tubes which could also enter the country under these subheadings
were excluded from the investigation.

ii. Given the way in which goods are classified under the Harmonized System or a
system with more digits (up to eight in the case of Mexico), it is perfectly
understandable that the technical descri ptions of a product may not correspond
entirely to the tariff descriptions. In other words, it is impossible to have a tariff
subheading for each specific product. For this reason, the information available at the
pre-initial stage of an investigation co rresponds to the volumes of goods imported
under each tariff subheading. Requesting that such information be presented in any
other way would render initiating an investigation virtually impossible.

iii. At the pre-initial stage of the Guat emalan pipes and tubes case, Mexico had
information on the volume of imports under tariff subheadings 7306.30.01 and
7306.30.99 of the TIGI and stated that ther e were sufficient indications of "alleged
injury" according to Article 5.2 of the ADA a nd that they were relevant in terms of
reflecting the trend in the volume of alle gedly dumped imports, in accordance with
the standard established in Article 5.1 of the ADA. To submit that information on
import volumes has to be as detailed at the pre-initial stage as Guatemala asserts also
amounts to stating that the application h as to include evidence of injury in the
quantity and quality necessary to support a preliminary or final determination,
contrary to the WTO case-law and all logic.

iv. The proper approach therefore is to a ssemble sufficient information to determine
whether there are indications of allege d injury; and to gather more detailed
information during the investigation – the process where certainty on the existence of
injury is reached gradually – in order to i ssue a determination. For this reason, the
standard advocated by Guatemala is also at odds with the ruling by the panel in
Guatemala - Cement II, as mentioned above.

9. Accordingly, the evidence and data provided in the application constitute the information
which is reasonably available to the applicant and can indeed constitute elements from which alleged
dumping and alleged injury by Guatemalan exporte rs and the causal link between the two can be
inferred, which meets the standard provided for in the ADA itself and the relevant WTO case-law.

10. Regarding examination of the evidence in the application the following should be noted:

i. As stated in the Panel report in EC – Bed Linen , there can be no claim of breach of
Article 5.3 of the ADA for failure to examin e the accuracy and adequacy of evidence
in an application if the information in th e application was sufficient to initiate the
investigation. The reason is that Article 5.3 of the ADA says nothing of the nature of
the examination or the procedures it must fo llow. Consequently, if the evidence in
the application is sufficient to initiate an investigation and the investigation is
subsequently initiated, it should be inferred that the IA did examine the accuracy and
adequacy of the evidence.

ii. It should also be pointed out that the SE, in reviewing the data and evidence provided
in the application, saw fit to issue a requ est for further information from the applicant
("prevención"), in order to clarify and/or s upplement certain information required
under Article 5.2 of the ADA. This request, made on 11 June 2001 by means of
Official Communication UPCI.310.01.1179/2
1, required the applicant to submit

1 See Official Communication UPCI.310.01.1179/2. Exhibit GTM - 2 submitted by Guatemala.

information which the IA felt was necessary to determine whether or not the initiation
of an investigation was appropriate.

iii. In other words, there are no grounds fo r asserting that the IA failed to examine the
accuracy and adequacy of the evidence in the application when the evidence actually
was sufficient and when, moreover, the IA issued the above-mentioned "prevención".

iv. In the case of the pipes and tubes from Gu atemala, for the reasons set out in the
previous paragraphs, Mexico considers that the evidence in the application and the
response to the "prevención" was indeed sufficient to demonstrate alleged dumping,
alleged injury and a causal link between th e two. The examination of accuracy and
adequacy should therefore be considered to have been carried out properly.

11. Mexico notes that, in its responses to the Panel's questions following on from the first
substantive meeting, Guatemala argues that its clai ms under Article 5.8 of the ADA derive from those
made under Article 5.2 and 5.3 of the ADA, considered both individually and as a whole
. In
Guatemala's view, Article 5.2 lays down obligations relating to the content of an application while
Article 5.3 refers to the examination of evidence. Th erefore, it says, if an application fails to meet the
requirements of Article 5.2 and the IA initiates an in vestigation, this will be contrary to Article 5.2
and 5.3 of the ADA and consequently Article 5.8 as well.

12. In Mexico's view it follows from the above reasoning that Guatemala's claim regarding these
Articles taken as a whole would be groundless if it were demonstrated that neither Article 5.2 nor
Article 5.3 of the ADA has been violated. Accordingl y, in the light of our arguments we respectfully
request that if Mexico demonstrates the foregoing, the Panel deem this part of Guatemala's claim to be
without foundation.

13. In Mexico's view, an IA cannot be charged w ith breach of Article 5.2 of the ADA. 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 unders tand how Guatemala can claim that it has violated
Article 5.2 of the ADA. In interpreting and appl ying the law it must be made clear to whom the
provision imposing an obligation applies. In this case, there is no onus whatever on the IA, so it
cannot be argued that some non-existent obligation has been breached.

14. Furthermore, it is important to bear in mind that the obligation Article 5.2 imposes on the
applicant is to provide such information "as is reasonably available". Guatemala has failed to
demonstrate that the information provided in th e application was not the information reasonably
available to the applicant. We fail to see how su ch a claim can be upheld, and without a shred of
evidence to boot. In this case it is for Guatemala, as complainant, to prove its claim.

15. We must point out that we disagree with Guat emala's interpretation of the scope of Article 5.3
of the ADA. In our view, an IA may indeed gath er additional information to that provided 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 gather ing additional data, for example, from the SICMEX
as Mexico did here.

16. Besides, even though there are no specific gui delines as to when the application should be
deemed to contain such information as is "reasonably" available to the applicant, we repeat that such
evidence clearly need not necessarily have to be of the quality that would be necessary to support a
preliminary or final determination. It is also clear that such evidence need be no more than data or
information, that is, indications that support the allegations of dumping, injury and causal link and
which prove on review, conducted pursu ant to Article 5.3 of the ADA, to be sufficient for the IA to

initiate an investigation, given that such indicator s form the basis for initiating an investigation, not
imposing anti-dumping duties.

ARGUMENTS IN SUPPORT OF THE CLAIMS RELATING TO THE PRODUCT UNDER
INVESTIGATION AND THE LIKE PRODUCT

17. Mexico regards the fact that Tubac did not obj ect to the inclusion of pi pes and tubes of up to
six inches in diameter as an important point. As stated in our rebuttal, if an interested party gave
express consent to or tacitly accepted an assertion, ci rcumstance or determination, the IA should treat
such acceptance as valid. With tacit endorsement of the definition of the produc t at issue, the IA had
no reason to disregard pipes and tubes of up to six inches in diameter.

18. In any case, consent from the interested parti es lends greater objectivity and relevance to the
definition in question. 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", which bears out Mexico's interpretation.

19. Mexico respectfully requests that the Panel find that Guatemala is pressing a number of
arguments on non-existent grounds. Since the ADA provides no specific guidance on certain points,
these, it must be assumed, are open to more than one valid interpretation. We therefore consider that
the IA acted in conformity with the ADA.

20. Mexico also emphasizes once again that T ubac had the opportunity to supply additional
information in its replies to the IA's requests for information, which Mexico took into account in its
preliminary and final resolutions and in the on-the-s pot investigation, the public hearing and the stage
of the pleadings.

21. As regards Guatemala's Article 1 and Article 18.1 claims, Mexico considers that there was no
violation of the provisions in question. On the other hand, even assuming for the sake of argument
that there had been some contravention of these Articles, this would not necessarily imply that
Mexico had to revoke the measure since, in Me xico's view, the Panel should leave it up to the
Member which implemented the inconsistent meas ure to choose how it will bring its measure into
conformity with the WTO Agreements, in accordance with Article 17.6(ii) of the ADA.

MEXICO APPLIED THE FACTS AVAILABLE IN CONFORMITY WITH THE ANTI-
DUMPING AGREEMENT

22. With regard to the use of the facts availabl e, it is not worth recalling that the data submitted
by the exporter in the investigation could not be considered reliable, complete, accurate and precise,
because in the on-the-spot investigation the IA f ound inconsistencies with the data previously
supplied by Tubac, which made the company's information virtually unusable.

23. Regarding Guatemala's response to Panel question 103 that "on that assumption Economía
would be acting in a manner inconsistent with Article 6.7 of the Agreement", Mexico is of the opinion
that Article 6.7 of the ADA requires only that the results of the on-the-spot investigation be made
available to the parties or that the parties to be informed thereof; it does not require the information
disclosed to the parties concerning the on-the-spot inv estigation to contain the IA's full analysis of the
investigation proceedings.

24. The detailed record refers to what occurred dur ing the on-the-spot investigation but not to the
IA's evaluation and analysis of all the information ve rified. It certainly does not constitute a thorough
and exhaustive analysis of that information.

25. Accordingly, if Tubac knew that there were discrepancies between the data it had submitted
to the IA and those obtained in the on-the-spot investigation but did nothing to clarify the information,
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.

26. There are consequently no grounds for cont ending that the SE acted inconsistently 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 warned of the possibility of the facts available to the IA being used.

27. Mexico fails to unde rstand how the claims under Article 6. 7 of the ADA can be subsidiary to
those under Article 6.8 of the AD A since we see no connection wh atsoever. Guatemala's claim is
therefore unclear and consequently we request that it be dismissed.

28. We also find quite implausible Guatemala's ex cuse of an "involuntary error" in respect of the
request by Tubac's legal representative for access to the confidential version of the record.

29. Furthermore, Guatemala has submitted no evid ence that Tubac's representative was denied
access to the confidential record and even asserts that access was never requested. If Guatemala is
contending that access is not in itself material sin ce Mexico did not comply with Article 6.5 of the
ADA, we can assume that it is dropping its claim that the SE undermined the exporter's ability to
defend itself against the allegations of dumping.
30. If we assume for the sake of argument that Tubac never did request access to the confidential
version of the record, then Tubac would have no grounds for pleading impairment of its right to
defence because in such case it would be Tubac that failed to assert its right.

31. Reverting to Guatemala's argument that the e xporter 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.

32. We emphasize that since Annex II to and Artic le 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, let alone provide information within a reasonable
period, which significantly impeded the investigation. Consequently, the IA had to make use of the
facts available; this has nothing to do with Article 6.9 and is not a breach of paragraph 6 of Annex II
to the ADA.

CLAIMS RELATING TO THE DETERMINATION OF INJURY

CHOICE OF THE PERIOD OF INVESTIGATION

33. We emphasize that, as said in our writte n submissions, the rice case was based on entirely
different considerations from those analysed here , so Guatemala's assertion is without foundation.
Since the assumptions are entirely different and Guatemala has provided no new arguments, it has
failed to make a prima facie case of violation by Mexico in the terms indicated.

34. Solely for the purpose of making matters clea rer for the Panel as to why it should consider
that Tubac did not object to the choice of the period of investigation, it should be noted that, contrary
to what occurred in Mexico – Rice, Tubac had no objection to the choice made and requested only that
the IA clarify that the investigation period did indeed span the period from 1 July to
31 December 2000. This should be regarded as consent on the part of the exporter.

35. In Mexico's view, this is an issue which th e Panel could well take into account, because an IA
is required to evaluate all evidence that comes to light in the course of an anti-dumping investigation
and to use it as the basis for its determination. Various ADA Articles give preference to first-hand
information, which is precisely that provided by the parties (see paragraph 7.238 of the final Panel
report and paragraphs 288 a nd 289 of the AB report in Mexico -- Rice). The fact that acceptance by
an interested party is an element that cannot be ch allenged must therefore be taken into account. It is
a general principle of law that there is no reason to disregard a party's consent. Since there was tacit
agreement to the choice of the investigation period, the IA saw no reason to change it.

36. Furthermore, the circumstances set fort h in our written submi ssions were genuine
impediments to the use of a more recent period of in vestigation. If we look at the time-frame of the
sequence of events, the delay that Guatemala alleges is a breach of the ADA was perfectly reasonable.
The investigation period was indeed as close as prac ticable to the initiation date. And the lapse of
time between the period under inv estigation and the initiation does not amount to a delay such as to
cast doubt on the relevance of the investigation period . If the problem with the remoteness of data is
that they may no longer be relevant, it must be demonstrated on a case-by- case basis that the data
cannot be used. Guatemala has produced not the slightest evidence of a prima facie presumption of
violation, but merely unfounded assertions. Nor has it substantiated its allegation that the applicant
could have presented more recent information, as we pointed out in our rebuttal.

37. With all due respect, we would consider it mo st unfortunate for the dispute settlement system
if this Panel were to find a prima facie case of violation without one iota of supporting evidence.

CHOICE OF HALF-YEAR PERIODS FOR THE PURPOSES OF INJURY ANALYSIS

38. We consider that the use of comparable peri ods for the purposes of injury analysis eliminated
any potential distortions, and the SE was thus able to make a proper comparison of the information
relating to the investigation period and that pertaini ng to previous comparable periods. A reading of
the final resolution shows that consumption of the product 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 (as is possible with, say, agricultural products, including rice) for the
second half-year period of each year. In order to avoi d seasonal or cyclical tendencies or fluctuations
in economic indicators (such as price indexes or GDP ), it is customary to compare identical periods
which are consistent with the period of investigation as well.

39. Thus, if the SE had found that the indica tors 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.

40. Regarding the level of import penetration 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, let alone claiming, that the periods were "selected". This would be
tantamount to assuming that the SE knew beforehand that, once it had obtained the import
declarations (pedimentos) and invoices for the imports from Guatemala for the six-month periods of
the three years under analysis, the r esults 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.

41. Confirmation of Guatemala's lack of eviden ce can be found in response 40 to the Panel, in
which Guatemala acknowledges that it has no data fo r performance of the industry or imports in the
first six months of each year used for the purposes of injury analysis. In other words, it does not
know whether there actually was higher or lower im port penetration and hence whether or not the
analysis was objective in this respect. Therefore, it has no evidence to sup port its claim and has not
established a prima facie case of violation by Mexico.

DOMESTIC INDUSTRY

42. According to Article 4.1 of the ADA, there ar e 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.

43. Article 5.4 of the ADA provides guidance fo r 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 full ex amination for the purposes of injury determination
can therefore focus exclusively on that producer without this being regarded as a lack of objectivity.

44. Guatemala appears to contend that under Artic le 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.

VOLUME AND PRICE EFFECT OF THE IMPORTS UNDER INVESTIGATION

45. 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; Guatemala's assertion is therefore unfounded.

46. In an investigation, the IA has to find the most appropriate way of collecting information.
One of the key factors in this process is objectivity on the part of the IA, which has to determine
whether certain decisions are appropriate in the light of their likely consequences, relying for this on
its practical experience.

47. 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 time-frame of the investigation with th e attendant risk of violating Article 5.10 of the

ADA. A case in point is the dispute involving brushes from China. 2 Another is that involving valves
from the US. The IA therefore considered it appr opriate to consult both importers and customs
agents.

48. With regard to the financial analysis conduc ted by the IA, the main factors in the downward
trend of operating profits were the reduction in to tal 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, for Hylsa DAT the cost of goods sold declined by 13.2 per
cent, and this led the SE to consid er that the behaviour of these costs was not a factor influencing the
decline in profits over the period in question.

ARGUMENTS IN SUPPORT OF PROCEDURAL CLAIMS

49. With regard to the procedural claims, we are struck by the factual and legal contradictions and
inaccuracies in Guatemala's replies.

50. As far as Mexico's allege d violations of Article 6.5, 6.5.1 and 6.5.2 of the ADA are
concerned, Guatemala, in its responses, now stat es that, under the ADA, the mechanism for providing
access to confidential information is the submissi on of non-confidential summaries; that Tubac's
legal representative was unable to satisfy the co nditions laid down by Mexican legislation for
accessing confidential information; and that, notw ithstanding the above, the question of access to
confidential information is immaterial to its claims under Article 6.5 of the ADA.

51. We note here a contradiction in Guatemala' s statements concerning Article 6.5 of the ADA.
On the one hand, by virtue of its rights under the ADA, it claims that the provision of public
summaries is 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.

52. It is strange that Guatemala should claim that it was not granted access to the content of the
confidential information and then go on to state that the issue of access to confidential information is
irrelevant since in any event, the question of access apart, Mexico failed to comply with its
obligations under Article 6.5 of the ADA.

53. As we already pointed out in our rebuttal, as the Panel held in Argentina – Ceramic Tiles ,
paragraph 6.38, the purpose of Articles 6.5 and 6.5.1 of the ADA is to provide a mechanism that
allows the parties to be informed of the conten t of confidential data, while at the same time
safeguarding the interests of the parties that supply such data.

54. Thus, since the primary objective is that th e parties should be acqua inted with information
supplied on a confidential basis, the best approach in Mexico's view is to focus on determining
whether the rules laid down in Mexican legisla tion concerning access to confidential information
constitute an adequate mechanism for exporters to acquaint themselves with the information.

55. In that connection, and assuming, for the sake of argument, that the record of the investigation
on standard pipes and tubes contained no public summaries of any information submitted by the
applicant (which, as pointed out below, is not th e case), the obligation under Article 6.5 of the ADA
would in any event be satisfied since, as explai ned in our written submissions, the Mexican legal

2 The customs authorities were asked to provide import "pedimentos" with the corresponding invoices,
but it took about three months for the Mexi can authority to recei ve 30 "pedimentos" along with the invoices
(such requests can take even longer depending on the relevant department's workload).

system gives interested parties access to all conf idential information, provided that the requirements
laid down for granting such access are met.

56. Furthermore, the shift in Guatemala's line of argument, whereby it now claims that access as
such is irrelevant, carries with it an implied ac knowledgement that it was in fact possible for the
Guatemalan exporter to consult all the confiden tial information and data, at any point in the
investigation if it saw fit in the interests of a prope r defence. This means that Tubac's defence rights
were not undermined. Any argument to that effect is therefore without foundation.

57. As to whether Mexican legislation on access to confidential data allows the parties to be
informed of the data's content, it is illogical that Guatemala should find the Mexican system to be
wanting in that respect, when it acknowledges in its own responses and in the statement by Ms Mejía
that no such access was even requested. It thus ap pears to be arguing that the Mexican system falls
short of the ADA because it had no access to confidential information – not having sought access –
and that this is a violation of the ADA for which the IA is to blame.

58. An interested party which, having a right, fa ils to exercise it will alone bear the blame for any
resulting injury. Thus, the consequence of not requesting access is entirely of Tubac's making.
Moreover, Guatemala itself forfeited that argumen t when it stated that access to confidential
information is irrelevant as such for the purposes of its claims. For these reasons, we consider that
Guatemala's claims are devoid of all merit and therefore respectfully ask the Panel so to determine.

59. We are also struck by Guatemala's asser tion that Economía did not request non-confidential
summaries from the applicant, si nce, as was shown in paragra ph 209 of our rebuttal, all the
submissions of the parties, including those of Hylsa, were accompanied by their non-confidential
versions, thereby enabling the parties to see the cont ents of the evidence and submissions of the other
parties and what information was classified as conf idential. Thus, Tubac did have the elements it
needed to ascertain the content of the confidential information and the possibility of requesting access
in case it needed any of the data or information c ontained therein. The IA did not deny Tubac the
possibility of seeing the information it needed for its defence since public summaries existed of all
confidential information and it was possible to access the confidential records.

60. Likewise, concerning confidential treatment for Hylsa's submission of 17 September 2002
and the alleged lack of a public summary, cont rary to what is asserted by Guatemala, a non-
confidential summary of that submission did exist, in addition to which, as mentioned in our rebuttal,
Hylsa sent that summary to Tubac's legal representa tive. We therefore request the Panel to dismiss
this argument by Guatemala.

61. Furthermore, it should be noted that, throu ghout this dispute, Guatemala has repeatedly
assumed (see, for example, points 251 and 260 of it s First Written Submission and Reply 23) that
because some factual aspects of the investigation into Guatemalan pipes and tubes are similar to those
examined in other disputes to which Mexico has be en a party it is enough merely to cite the AB and
Panel reports in those cases to demonstrate that Me xico acted in a manner inconsistent with the
ADA.
3 A number of concerns must be raised in this connection:

62. Firstly, it is a matter of some concern that Gu atemala does not wish this Panel to conduct an
"unbiased and objective evaluation" of the facts of this case. As the Panel is aware, the fundamental
principle of law that "the burden of proof lies w ith the party making the assertion" has been applied

3 This has been pointed out by Mexico on a number of occasions, see, for example, its oral statement at
the first meeting.

on more than one occasion by the AB. By way of example we cite US – Shirts and Blouses
(WT/DS33/AB/R)4, EC – Hormones5 and Japan – Agricultural Products II.6
63. From this it ensues that it is not permissible to contend before this Body, by way of a mere
syllogism, that a certain investigation was illegal and because the present investigation is similar, it
too is illegal. The facts of this case must be examined and assessed on their own merits. In this
dispute, however, Guatemala has failed to produce a single piece of evidence to sustain its assertions.

64. We therefore consider that to accept Guat emala's argument would be to set a dangerous
precedent whereby an IA that has been the subject of an unfavourable dispute settlement ruling would
thereafter be considered a "systematic offender" against the ADA.

65. Guatemala is hoping to obtain a favourable ruling, not only by seeking to prevent the Panel
from making an objective assessment of the challeng ed measure, but also by using arguments which
simplify to an extreme the similarities between th e above-mentioned investig ations. As we have
repeatedly pointed out in our written and oral submissions, this investigation into steel pipes and tubes
is not the same as the investigation into rice and certainly not the same as that conducted by
Guatemala into Mexican cement. The following points illustrate this:

(a) In the US rice case, the lapse of time be tween the end of the investigation period and
the initiation of the investigation was 15 months. Here, it was only eight months,
which, as has already been explained, is not such a time span as to give rise to a
presumption that the data from the investigation period are no longer relevant (in
addition to which Guatemala has not submitted data which suggest that the
information corresponding to the investigation period was no longer useable);
(b) In the rice case, in its analysis of the in formation in the application for initiation of an
investigation the SE was not as exhaustive as it was in the Guatemalan pipes and
tubes case. This is reflected by the fact th at – as has already been stated – saw a need
to issue a request "prevención" for the a pplicant to submit the technical information
the IA deemed necessary to determine the feasibility of initiating the investigation;
and

4 " ... the party who asserts a fact , whether the claimant or the res pondent, is responsible for providing
proof thereof. ... the burden of proof rests upon the part y, whether complaining or defending, who asserts the
affirmative of a particular claim or defence. If that pa rty adduces evidence sufficient to raise a presumption that
what is claimed is true, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence
to rebut the presumption."
5 "109. In accordance with our ruling in United States – Shirts and Blouses, the Panel should have begun
the analysis of each legal provision by examining whether the United States and Canada had presented evidence
and legal arguments sufficient to demonstrate that the EC measures were inconsistent with the obligations assumed
by the European Communities under each Article of the SPS Agreement addressed by the Panel, i.e., Articles 3.1,
3.3, 5.1 and 5.5. Only after such a prima facie determination had been made by the Panel may the onus be
shifted to the European Communities to bring forward evidence and arguments to disprove the complaining
party's claim." (Citations omitted.) (Emphasis added.).
6 "129. Article 13 of the DSU and Article 11.2 of the SPS Agreement suggest that Panels have a
significant investigative authority. However, this authority cannot be used by a Panel to rule in favour of a
complaining party which has not established a prima facie case of inconsistency based on specific legal
claims asserted by it. A Panel is entitled to seek information and advice from experts and from any other
relevant source it chooses, pursuant to Article 13 of the DSU and, in an SPS case, Article 11.2 of the SPS
Agreement, to help it to understand and evaluate the evidence submitted and the arguments made by the parties,
but not to make the case for a complaining party". (Emphasis added.)

(c) As stated in the preceding paragraph, no "prevención" or other request for
information or any other kind of administra tive act was issued by the SE in the rice
case. Such matters are time-consuming and are therefore partly responsible in the
present case for the time span between the e nd of the investigation period and the
initiation of the investigation being slightly longer. And unlike in the Guatemalen
pipes and tubes dispute, in the rice case ther e was no need to establish a time limit for
the applicants to respond to a "prevención" for the SE to analyse that response.

66. In the rice case, the AB found that Mexico had acted inconsistently with the ADA in that it
had accepted the period of investigation proposed by th e applicants in the knowledge that this period
had been proposed because it allegedly reflected the highest penetration of exports.

67. Mexico seeks only procedural justice. We would ask that the Panel determine a prima facie
case of violation by Mexico only if Guatemala demonstrates cogently that the IA failed to establish
the facts or misconstrued the ADA and if, in additi on, Mexico is unable to refute such claims.
Needless to say, not a single Guatemalan claim fulfils this requirement.

68. We therefore request that, in view of the discrepancies and erroneous assertions in
Guatemala's pleadings, the Panel dismiss Guatemala's claims in the light of Mexico's present rebuttal
of each and every one of them, since they constitute neither objective evidence nor prima facie
presumptions of violation by the SE.

69. For the above reasons, we consider that Gu atemala's claims regarding the definitive anti-
dumping measure imposed on imports of steel pipes and tubes from Guatemala must be dismissed and
therefore request that this Panel confirm that the anti-dumping investigation and the initiating,
preliminary and final resolutions in this case were issued in conformity with the ADA.

70. Lastly, we remain at your disposal to an swer any further questions you may have and thank
you once again for your attention.

ANNEX D-5

CLOSING STATEMENT OF GUATEMALA
SECOND MEETING

(9 November 2006)

Introduction

1. Mr Chairman, members of the Panel and memb ers of the Secretariat, we wish to thank you
for affording us the opportunity to deliver this closing oral statement.

2. Without prejudice to Guatemala's rebuttals of Mexico's arguments during these proceedings,
we should like to take this opportunity to clarif y some issues addressed by Mexico in its oral
statement yesterday.

3. With regard to the examination of the accur acy and adequacy of the evidence provided in the
application, Mexico submits that the fact that Economía issued a prevención (request for further
information) indicates that it assessed the accur acy and adequacy of the evidence submitted.
1 As far
as Guatemala is concerned, the mere fact of requiring information by means of a prevención is not in
itself proof that such an examination w as carried out. Thus, for example, the prevención to which
Mexico refers contains not only requirements relatin g to the evidence provided in the application for
initiation of an investigation, but other provision s that have to be met such as furnishing non-
confidential summaries of information submitted in confidence. 2 It should also be pointed out that, in
the light of a number of questions in the prevención regarding the accuracy and adequacy of the
evidence provided in the application 3, Economía could have been expected, in its Initiation
Resolution, to confirm the evaluation of such accuracy and adequacy on the basis of Hylsa's responses
to this prevención. Economía, however, made no determination on the sufficiency of the evidence in
this sense.

4. Mexico states that an inves tigating authority may indeed gather additional information to that
provided in the application in order to establish the factual basis on which to make its determinations.
4
Guatemala wishes to clarify that there is a di fference between (i) gathering information to verify the
accuracy and adequacy of the eviden ce provided in the application and (ii) using this information to
remedy factual deficiencies in such evidence. Guatemala is of the opinion that the latter would not be
permitted under the Anti-Dumping Agreement.

5. Mexico also states that, given Tubac's tac it endorsement of the definition of the product at
issue, Economía had no reason not to consider pi pes and tubes of up to six inches in diameter
5, and
that Guatemala indicates that Article 2.1 of the Agreement does not prohibit minor changes to the

1 Second Oral Statement of Mexico, paragraphs 10(ii) and (iii).
2 Official Communication UPCI.310.01.1179/2 of 11 June 2001 (Exhibit GTM-2).
3 Ibid., questions 3 and 4 with regard to information on the import volumes under investigation and
questions 17 to 21 with regard to evidence on the normal value of the products under investigation.
4 Second Oral Statement of Mexico, paragraph 15.
5 Ibid., paragraph 17.

product at issue during the course of the investigati on, which shows that Mexico's interpretation in
this respect was correct.
6 In Guatemala's view, it is plain from Mexico's argument that the decision to
include standard pipes and tubes of up to six in ches in diameter was based on statements by the
parties (a mere assertion by the applicant and the absence of any objection by the exporter) and not on
the facts or positive evidence in the record. Furthermore, the fact that Article 2.1 of the Agreement
does not prohibit minor changes to the definition of the product does not exmpt Economía from
issuing questionnaires and requesting information en abling it to examine the products subsequently
included in the scope of its investigation.

6. With regard to use of the facts availabl e, Guatemala would like to comment briefly on
Mexico's response to Panel question 107, for which a blank space had been left on pages 79 and 80 of
the document dated 3 October 2006 containing Mexi co's responses to the questions posed by the
Panel, and which was finally circulated at the beginning of this meeting. Given the late submission of
this response, Guatemala would like to reserve its right to make further comments thereon on a future
occasion.

7. Guatemala has already explained in sufficient de tail that the record of the verification visit
contradicts the reasons adduced by Economía in pa ragraph 80 of its Final Resolution as the basis for
its rejection of all the informati on submitted by the exporter and for its use of the facts available to
determine the various dumping margins for the exporter under investigation.
7 In its response to
question 107, Mexico gives cross references to parts of the verification visit record and its assertions
in paragraph 80 of the Final Resolution. Howeve r, a review of the references merely confirms
Guatemala's argument that the verification visit reco rd does in fact contradict Economía's findings in
paragraph 80 of its Final Resolution.

8. Annex 1 to this oral statement contains a table detailing the references provided by Mexico.
What can be ascertained from this table is that ther e is no finding in the verification visit record to
support the first reason adduced by Economía for rej ecting the information provided by the exporter.
With regard to the other grounds given in paragrap h 80, the table reveals that, contrary to what is
stated in paragraph 80, Economía's verification te am found no or only minima l inconsistencies and,
where inconsistencies were found, the exporter was ab le to review and rectify the information to the
satisfaction of the verification team.

9. Thus, for example, in its response to ques tion 107, Mexico refers in particular to the
discrepancies found in the physical difference ad justment figures. But it fails to mention that
according to page 10 of the verification visit record, "the SE requested that calculations in relation to
cost differences be based on the cost sheets that had been validated and used for constructed value.
The company used this methodology to calcul ate the new figures fo r physical differences …"
8 This
suggests that Economía had at its disposal reliable information on the physical difference adjustment,
as verified by the investigation team during the inspec tion visit. Furthermore, Mexico fails to explain
how it conducted, or which part of the inspection vi sit record contains, its assessment of the relevance
of using the exporter's information for goods for wh ich there were domestic sales of products with
identical codes and for which there was therefore no need for physical difference adjustments.

10. Moreover, Mexico has implied that the calcu lations for physical differences were based on
new information which was not provided by th e exporter in its responses to the exporters'

6 Ibid., paragraph 18.
7 First Written Submission of Guatemala, paragraphs 191-218.
8 Exhibit GTM-15, page 10.

questionnaire. However, we note that the paragraph to which Mexico refers clearly states that these
calculations were based, at Economía's request, on the cost sheets that had been validated and used for
constructed value. It is clear from what the verification visit record says on constructed value
(pages 14 and 15) that this information was that originally submitted by the exporter and verified
without any problem by Economía.

11. Lastly, in its oral statement at the beginning of this meeting, Mexico suggested that the
exporter was warned in the detailed record of the ve rification visit that the facts available could be
used if it failed to provide the relevant clarifica tions within five days of the record being issued.
Page 16, paragraph 1, of the record to which Mexico was apparently referring (i) makes no mention of
any finding by Economía during the verification vis it which indicates that the exporter either did not
cooperate or failed to furnish the necessary information; and (ii) seems to use the standard wording of
all verification visit records prepared by Economía. Th e exact same wording is in fact used at the end
of the record of the verification visit to the Hy lsa facilities, which will be submitted by Guatemala
with its responses to the Panel questions at this second meeting.

12. As Guatemala has explained, Article 6.8 of and Annex II to the Anti-Dumping Agreement lay
down very strict rules as to when and how the i nvestigating authority can apply the facts available. 9
Mexico's reply to question 107 provides no justifica tion whatsoever for Economía's actions in any of
the aspects on which recourse to the facts available was based.

13. Mexico states that Guatemala has not presented prima facie evidence that the periods selected
for injury analysis are inappropriate.
10 Guatemala considers Mexico's assertion to be quite simply
wrong. According to the legal standard for determ ining the investigation period, either the most
recent such period must be used or else the investig ating authority must expl ain why use of the most
recent period would not be feasible or appropriate. 11 The burden of proof for a complainant consists
in demonstrating that the investigating author ity has not used the most recent period on which
information was available or that the investiga ting authority failed to establish the reasons why
recourse to this period would not be feasible or appropriate. Guatemala has succeeded in
demonstrating both aspects.12 It has therefore managed to establish a prima facie case of violation of
Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dump ing Agreement relying on the use of a remote
investigation period.

14. The legal standard here is not, as Mexi co claims, conditional upon the complainant's
demonstrating how the outcome w ould have differed had injury in formation relating to the most
appropriate period been used. To require a compla inant to gather its own information on injury in
order to demonstrate the inappropriateness of a remote period would be an unsustainable demand.

15. With regard to the definition of the domestic industry, Mexico states that 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 the application, the full examination for the purposes of injury
determination can focus exclusively on that prod ucer without this being regarded as a lack of
objectivity.13 Guatemala, however, notes that Economía di d not define the domestic industry on the

9 First Written Submission of Guatemala, paragraphs 174 to 187.
10 Second Oral Statement of Mexico, paragraphs 36 and 37.
11 Article 3.1 of the Agreement as clarified by the Appellate Body in its Report on Mexico - Anti-
Dumping Measures on Rice, paragraph 165.
12 First Written Submission of Guatemala, paragraphs 245 to 254, and Response by Guatemala to Panel
question 23.
13 Second Oral Statement of Mexico, paragraph 43.

basis of the applicant alone, but also included in its definition the other three companies which made
up the domestic industry as a whole. Furthermore, even assuming that it had so defined the domestic
industry, Economía's injury analysis did not focus solely on this one producer; in some instances,
Economía also used different segments of the domestic industry as a basis, as Guatemala illustrated in
its first written submission.
14

16. With regard to the claim relating to confiden tiality of information, Mexico states that all the
submissions of the parties, including those of Hylsa, were accompanied by their non-confidential
versions, thereby enabling the parties to see the cont ents of the evidence and submissions of the other
parties, as well as what information was classified as confidential.15

17. In this particular instance, Mexico has ma de a general and unfounde d assertion, but failed to
show where the non-confidential summaries of the information on normal value, namely the invoice
and price quote, are to be found.

18. Guatemala, for its part, claims that Economía has systematically violated the obligation to
require the submission of adequate non-confidentia l summaries whenever conf idential information is
provided. This claim refers specifically to th e failure to provide non-confidential summaries of the
information in the invoice and the price quote submitted by the applicant prior to the initiation of the
investigation
16, to Hylsa's reasons as to why structural pi pes and tubes should not form part of the
investigation17, and to the evidence and information relating to the inclusion of structural pipes and
tubes in the scope of the anti-dumping duty.18

19. It is clear from a simple review of the administrative record that a blank sheet does not
contain sufficient detail to "permit a reasonable understanding of the substance of the information
submitted in confidence". By way of example, some of the parts which were left blank and for which
no corresponding non-confidential summary was provided are outlined below:

 (a) Annexes 4, 4.1, 5.A, 5.A.1, 5.B, 5.B.1, 6, 7, 8 and 8.A to the application for initiation
of an investigation.
19

 (b) Response 3 to Economía's request for further information ( prevención) by means of
Official Communication UPCI.310.01.1179/2, in which the applicant put forward
"positions and points of view exclusively specific to the company" in relation to
whether or not structural pipes and tubes should be included in the scope of the
investigation.
20

 (c) Similarly responses 7, 8, 9, 11, 12, 13, 14 and 15 to the same Official Communication
UPCI.310.01.1179/2.21

14 First Written Submission of Guatemala, paragraph 274.
15 Second Oral Statement of Mexico, paragraph 59.
16 Application by Hylsa for the initiation of an investigation, Exhibit GTM-1.
17 Response by Hylsa to Official Communication UPCI.310.01.1179/2, Exhibit GTM-3.
18 Exhibit GTM-31.
19 Exhibit GTM-1.
20 Exhibit GTM-3.
21 Exhibit GTM-3.

20. The Panel can see from these examples (which are not the only ones) that no "reasonable
understanding" of the contents of the information cl assified as confidential is possible. Guatemala
therefore sees no need to repeat the arguments on n on-confidential summaries that it adduced in its
various submissions and answers to the Panel's questions.

21. Mr Chairman and members of the Panel, thank you. Guatemala hopes that, through its
statements, it has been able to provide you with el ements that will prove useful to you in reaching an
appropriate decision.

Annex

Final
Resolution
Reference
provided by
Mexico
7 November
Reference
provided by
Mexico
8 November
Reference provided by Guatemala
Paragraph
80-A
None None On the prueba de totalidad
("completeness test"): Page 12,
paragraph 4: "No significant differences
were found and the explanation and
supporting documentation for the figures
were to the satisfaction of the verification
team" (emphasis added); Page 13,
paragraphs 1-4: "No significant differences
were found." (See paragraphs 192-194 of
the First Written Submission of Guatemala.)
Paragraph
80-B
Page 11,
paragraph 1,
and page 12,
paragraph 4
Page 12,
paragraph 2;
Page 13,
paragraph 6;
Page 12,
paragraph 4;
Page 14,
paragraph 1
Page 12, paragraph 4: "No significant
differences were found and the explanation
and supporting documentation for the
figures were to the satisfaction of the
verification team " (emphasis added);
Page 14, paragraph 2: "The verification
team established that the overall total in the
credit note daily log tallied with the
accounting records ... and that individual
credit note data corresponded to those in the
credit note daily log."
Paragraph
80-C
Page 10,
paragraph 1
Page 11,
paragraph 2
Page 11, paragraph 2. While this paragraph
suggests that some problems were
encountered with the reporting of domestic
sales, Economía subsequently stated, under
the title "Prueba de totalidad" (page 12,
paragraphs 4-6, and page 13,
paragraphs 1-4), that it was able to verify all
reported sales without any significant
differences being found.
Page 10, paragraph 1. This paragraph does
not refer to the data reported for four
product codes as indicated in paragraph
80-C of the Final Resolution. However, as
Guatemala explained in paragraphs 201-202
of its First Written Submission, Mexico has
not specified whether problems were
encountered in respect of constructed value
for the other 28 product codes.
Paragraph
80-D
Page 7,
paragraphs 2
and 7
Page 7,
paragraph 6,
and page 8,

Mexico fails to refer to page 8, paragraph 1,
with regard to freight: "The review found
no inconsistencies between the information

paragraph 3 reviewed and that entered in the company's
accounting system."
 Page 8, paragraph 3: "a sample of 15
invoices was reviewed ... the figure in US
dollars per tonne ... was used to obtain a
simple average for freight cost. This figure
should replace the average figure for freight
reported in the database, since it
corresponds to verified data."
Paragraph
80-E
Page 8,
paragraph 1
 Page 8, paragraph 3, see above. Page 9,
paragraph 1: "with regard to freight to
Costa Rica ... Although the differences
between the data are minimal, the correct
information is that which has been verified "
(emphasis added).
Paragraph
80-F
Page 9,
paragraph 3
Page 9,
paragraph 3
On insurance : page 10, paragraphs 1-2:
"The endorsements submitted by the two
insurance companies establish the amount
of the premium applied to the value of the
goods transported ... Furthermore [the
exporter] reported the value of the sales …
to confirm that the sum of the amounts
insured with the two companies was similar
to the total monthly sales of Tubac S.A."
On physical differences : page 10,
paragraph 3: "the SE requested that
calculations in relation to cost differences
be based on the cost sheets that had been
validated and used for constructed value.
The company used this methodology to
calculate the new figures for physical
differences … " (emphasis added).
Paragraph
80-G
Page 9,
paragraph 7,
and page 10,
paragraph 1
Page 11,
paragraphs 1-2
On production: page 10, last paragraph:
"The verification team compared the
production volume stated in the production
reports with that on the worksheet provided
for the verification visit without finding any
differences. Likewise, the figures for
production by product group were checked
against the general ledger, without any
differences being found" (emphasis added).
On installed capacity, domestic sales and
export sales to third countries: See
paragraph 217 of the First Written
Submission of Guatemala.