Document: Executive Summary
Document codes: WT/DS322/RW
Complainant: Japan
Respondent: U.S.
Third parties: Argentina, China, EU, Hong Kong, India, South Korea, Mexico, New Zealand, Norway, Taiwan, Thailand
Dispute stage: Implementation & Compliance
Agreements cited: Art. 2.1, 2.4, 2.4.2, 9.1, 9.2, 9.3, 5.8, 3, 9.5, 11.1, 11.2, 11.3, 1  Anti-dumpingArt. VI  GATT 1994Art. 18.4  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade Organization

ANNEX B

THIRD PARTIES' WRITTEN SUBMISSIONS OR EXECUTIVE
SUMMARIES THEREOF

Contents Page
Annex B-1 Executive Summary of the Third Party Written Submission of the
European Communities
B-2
Annex B-2 Third Party Written Submission of Hong Kong, China B-7
Annex B-3 Executive Summary of the Third Party Written Submission of
Korea
B-11
Annex B-4 Executive Summary of the Third Party Written Submission of
Norway
B-14

ANNEX B-1

EXECUTIVE SUMMARY OF THE THIRD PARTY WRITTEN
SUBMISSION OF THE EUROPEAN COMMUNITIES

(8 August 2008)

I. INTRODUCTION

1. In the present submission, first the Eur opean Communities will address some preliminary
issues in connection with the US request for a prel iminary ruling, including the scope of the Panel's
review and the Panel's jurisdiction to deal with all the measures mentioned by Japan. Then, the
European Communities will enter into the substance of this dispute, which refers to the US lack of
compliance with the DSB's recommendations and rulings in the original dispute.

II. PRELIMINARY ISSUES: SCOPE OF REVIEW AND JURISDICTION OF THE
PANEL

A. SCOPE OF THE PANEL'S REVIEW

2. The European Communities ag rees with Japan's observations. Since it is not possible to
relitigate the same issue twice in Article 21.5 pr oceedings, the European Communities submits that
this Panel cannot enter again into the conformi ty of the zeroing procedures with the covered
agreements. Moreover, the European Communities ob serves that the Appellate Body has noted that
Article 21.5 panels are "bound to follow the legal in terpretations contained in the original panel and
Appellate Body reports that were adopted by the DSB". Consequently, the scope of review of this
compliance Panel should be limited to examine th e acts (or omissions) taken by the United States in
light of its WTO obligations as derived from the covered agreements and the DSB's recommendations
and rulings in the original dispute.

B. ALL THE MEASURES FALL UNDER THE SCOPE OF THIS COMPLIANCE
PROCEEDING

3. The European Communities considers that a ll the measures (being US acts, omissions or
deficiencies) challenged by Japan in this proceedin g fall under the terms of reference of this Panel,
including the three subsequent reviews listed by Jap an. Thus, the Panel should reject the US request
for a preliminary ruling.

4. First, the US omissions and deficiencies in compliance are covered by this Article 21.5
proceeding. Indeed, the phrase "measures taken to comply" in Article 21.5 of the DSU refers to
measures which have been, or which should be, adopted by a Member to bring about compliance with
the recommendations and rulings of the DSB. If the recommendations and rulings of the DSB have
not been complied with, a measure taken to comply does not exist. The European Communities notes
that, despite the fact that the DSB's recommendations and rulings in the original dispute contained a
clear "as such" finding against the use of zeroi ng procedures in any anti-dumping proceeding, the
United States has continued using zeroing in its anti-dumping determinations and when collecting
duties based on zeroing after the end of the reasonable period of implementation. In this sense, the
European Communities understands that Japan challenges the omissions by the United States to take
the necessary measures to comply in this ca se, i.e., that the United States should, on

24 December 2007, have stopped (i) using zeroing procedures in any anti-dumping determination, and
(ii) collecting anti-dumping duties and establishing new cash deposits based on zeroing in connection
with any anti-dumping proceeding a nd, thus, with respect to the measures listed by Japan. Likewise,
the United States should have revised its likelihood of recurrence of dumping determination in the
sunset review at issue.

5. Second, the three subsequent administrative reviews listed by Japan also fall under the scope
of this Article 21.5 proceeding. Indeed, a measur e that essentially replaces an earlier measure remains
within the terms of reference of an original pane l. Thus, a 21.5 panel must be in a position to assess
whether an annual administrative review determinat ion that confirms and supersedes the original
determination relating to the same anti-dumping duty imposed on the same country and the same
product following the same WTO-inconsistent me thodology (i.e., zeroing) constitutes a "continuing
violation". In US – Upland Cotton (21.5) , the panel and the Appellate Body followed a similar
approach. The reasoning developed by the Appellate Body in that case also applies in the present
case. If subsequent reviews containing the same violation (i.e., the use of zeroing procedures) cannot
be discussed in Article 21.5 proceedings, the WTO Me mber concerned would be forced to continue
chasing a ghost through endless litigation. Thus, the Member concerned would not be able to obtain
adequate relief against a violation of the covered agreements, contrary to the objective of "prompt
settlement" of disputes contained in Articles 3.3 and 21.1 of the DSU.

6. In addition, as the Appellate Body observed in US – Softwood Lumber IV (21.5) , the
European Communities considers that meas ures predating the adoption of the DSB's
recommendations and rulings may also be covered by Article 21.5 proceedings. Otherwise, Members
could adopt new measures diametrically against compliance in a particular case just the day before the
adoption of report by the DSB. Therefore, the f act that a measure predates the adoption of the DSB
report in question cannot exclude per se such a measure from the scope of compliance proceedings, as
the United States suggests.

7. In light of this clear connection with the DSB's recommendations and rulings in the original
dispute, the European Communities considers that the three subsequent administrative review
proceedings listed by Japan are measures taken to comply falling within the scope of this proceeding.

C. JAPAN'S PANEL REQUEST PROPERLY IDENTIFIED THE SUBSEQUENT CLOSELY
CONNECTED MEASURES AS REQUIRED BY ARTICLE 6.2 OF THE DSU

8. Japan's Panel Request contains a clear indi cation of the measures at issue, including "any
amendments to the eight periodic reviews and the closely connected instruc tions and notices, as well
as any subsequent closely connected measures". The fact that those measures may occur at a
particular moment in time in the future has not hing to do with the specificity requirement in
Article 6.2 of the DSU. Since Japan has identify th e administrative reviews in Annex 1 of its Panel
Request and because the procedures under US municipa l law to modify those measures are limited,
the United States cannot validly argue that it fails to know the specific measures which fall under the
scope of this proceeding. Therefore, the European Communities considers that the Panel should reject
the US request for a preliminary ruling in full si nce all the measures brought by Japan fall under the
scope of this compliance proceeding.

III. US FAILURE TO BRING ITS MEASURES INTO CONFORMITY WITH THE DSB'S
RECOMMENDATIONS AND RULINGS IN THE ORIGINAL DISPUTE

A. US FAILURE TO COMPLY WITH RESPECT TO THE ZEROING PROCEDURES

9. The European Communities fails to unders tand the US entrenched position as regards its
compliance with respect to the "as such" finding as contained in the DSB's recommendations and

rulings in the original dispute. In this respect, it is evident that the single measure (i.e., the zeroing
procedures) was not limited to one type of comparison in original investigations. It is also evident that
the United States cannot change at this compliance st age the single measure challenged in the original
dispute into a narrower measure simply covering one aspect of the zeroing procedures (i.e., the use of
zeroing in W-to-W comparison in original investigations).

10. The European Communities considers that the United States has not yet modified its zeroing
procedures and, thus, continues using zeroing in any anti-dumping determination (with the exception
of original investigations when applying W-to-W comparison methods in original investigations). In
particular, the USDOC has consistently maintained in recent administrative review proceedings that
"because no change has yet been made with respect to the issue of 'zer oing' in administrative reviews,
the Department has continued with its current approach to calculating and assessing antidumping
duties in this administrative review". Therefore, the United States has failed to comply with the
DSB's recommendations and rulings in the original dispute with respect to the "as such" finding
against zeroing procedures.

B. US FAILURE TO COMPLY WITH RESPECT TO EIGHT ADMINISTRATIVE REVIEWS

11. Japan argues that the United States has con tinued collecting duties based on zeroing after the
end of the reasonable period with respect to five administrative reviews challenged in the original
dispute and three subsequent administrative revi ews, thereby violating the DSB's recommendations
and rulings. The European Communities agrees with the views expressed by Japan and would like to
make the following observations.

1. Liability to pay anti-dumping duties in the US system is determined at a later stage than
the time of importation

12. The European Communities considers that the date of entry is irrelevant when assessing the
US compliance in this case. In lig ht of the characteristics of the US system, the anti-dumping liability
– whether or not it is "created" at the time of impor tation – is not finally determined at that time, but
only at a later stage. According to the US system of duty assessment, the final and true liabilities are
established by the USDOC based on a subsequent re trospective accounting exer cise. This exercise
may lead to the conclusion that the importer is not responsible for the payment of duties. Moreover,
importers can appeal the amounts established by th e USDOC in accordance with US municipal law.
These proceedings may result in a finding of no liabilit y at all and, thus, no obligation to pay duties
(or, alternatively, a modification of the amounts to be collected due to, for example, arithmetical
errors made by the USDOC when calculating th e duties). In these circumstances, the European
Communities cannot understand why the United States w ould not, in that simple accounting exercise,
adjust its calculations so as to properly reflect the degree of dumping (i.e., without zeroing) that
occurred (if any), having a full opportunity to do so (in subsequent reviews of the measures concerned
or in the appeals filed by importers against them ), and at least with effect from the end of the
reasonable period of time.

2. US compliance with the DSB's recomm endations and rulings is prospective

13. In the EC's view, prospective implementa tion of the DSB's recommendations implies that,
after the end of the reasonable period, a WTO Me mber is prevented from taking positive acts which
are diametrically contrary to the adopted DSB report. In this case, prospective implementation
requires one to look at the actions taken by the Unite d States after the end of the reasonable period of
time (i.e., 24 December 2007) in order to examine whether the United States has adopted measures
contrary to the DSB's recommendations and rulings in the original dispute.

14. The European Communities agre es with Japan that, in order to comply with the DSB's
recommendations and rulings, the United States shoul d stop taking any positive acts providing for the
final payment of duties or retention of cash deposits based on zeroing with respect to those entries not
finally liquidated before the end of the reas onable period. This form of compliance is prospective in
nature.

15. The European Communities al so agrees with Japan's obser vation that the adopted DSB
reports do not constitute the temporal moment when a new treaty obligation enters into force; rather,
they amount to an interpretation of the covered agr eements and, thus, a declaration of the obligations
for the Member concerned. In other words, th e adopted DSB reports in the case at hand merely
confirmed that the use of zeroing procedures in those circumstances is prohibited by the Anti-
Dumping Agreement. Consequently, the US obligation to avoid using zeroing was already there when
the Anti-Dumping Agreement entered into force on 1 January 1995. In light of this, any enforcement
of the adopted DSB reports with respect to entr ies which occurred well after 1 January 1995 cannot
amount to retrospective implementation.

3. Retrospective and prospective anti-dumping systems lead to identical results as regards
compliance

16. Contrary to what the United States asserts, th e European Communities considers that, if duties
have not yet been liquidated by the end of the reasonable period of time, no new measure can be taken
that is inconsistent with the adopted DSB reports regardless of whether the Member concerned applies
a retrospective or prospective duty assessment syst em. In both prospective and retrospective anti-
dumping systems, after the end of the reasonable period of time to comply with the DSB's
recommendations and rulings, no new measure (or omission) can be taken that is inconsistent with the
adopted DSB report, regardless of the date of entry covered by that measure.

4. Conclusion

17. In light of the foregoing, th e European Communities agrees with Japan that the United States
has not complied with the DSB's recommendations and rulings in the original proceeding and, thus,
remains in violation of Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the
GATT 1994, since it continues collecting anti-dumping duties and establishing new cash deposit rates
based on zeroing with respect to the administrative re views challenged in the original dispute as well
as the three subsequent reviews listed by Japan.

C. US FAILURE TO COMPLY WITH RESPECT TO ONE SUNSET REVIEW

18. Japans observes that the United States has not taken any actions to bring one of the sunset
reviews challenged in the original dispute into conformity with the DSB's recommendations and
rulings. In contrast, the United States argues that it had the right to do nothing in this case since the
majority of margins considered in the likelihood of dumping determination ca nnot be considered as
WTO-inconsistent since they either predate the Anti-Dumping Agreement or did not involve the use of
zeroing. In the EC's view, the United States is (once more) trying to disregard the specific findings of
the adopted DSB report in the original dispute. Indeed, as the Appellate Body noted, "[t]he Panel
found, as a matter of fact, that, in its likelihoo d-of-dumping determination, the USDOC relied 'on
margins of dumping established in prior proceedi ngs' (…) and [t]he Panel further found that these
margins were calculated during periodic reviews 'on th e basis of simple zeroing'" (emphasis added).
Thus, the European Communities fails to understand on what basis the United States seeks to reopen a
factual issue which was already established in the orig inal proceeding. In addition, in EC's view, the
United States cannot remain completely passive with respect to the sunset review concerned since it
provides for the legal basis for the continued maintenance of the anti-dumping order in question.

19. Consequently, the European Communities c onsiders that the United States has failed to
comply with the DSB's recommendations and rulings in the original dispute when abstaining from
taking any actions to review its likelihood of r ecurrence of dumping determination in the sunset
review concerned.

IV. CONCLUSIONS

20. In light of the foregoing, the European Co mmunities agrees with Japan's claims that the
United States has failed to comply with the DS B's recommendations and rulings in the original
dispute. The European Communities reserves the righ t to comment on other issues at a later stage in
this compliance proceeding.

ANNEX B-2

THIRD PARTY WRITTEN SUBMISSION OF
HONG KONG, CHINA

(8 August 2008)

1. Introduction

1. Hong Kong, China welcomes the opportunity to pr esent its views as a third party before this
Article 21.5 Panel. Hong Kong, China has strong systemic concerns over the full compliance with the
recommendations and rulings of the DSB in this dispute where the procedures of zeroing and the
implementation obligations pertaining to administrative reviews under a retrospective duty assessment
system are at issue.

2. Among the issues raised in these compliance pr oceedings, this submission focuses on two key
issues.

2. Implementation Obligations for Unliquidated Entries after the RPT

3. With respect to the five named administrative reviews
1 which the US failed to take action to
implement the DSB's relevant recommendations and ru lings as claimed by Japan, it is noted that the
US argued in its first written submission essentia lly that implementation should be assessed by
looking at the treatment accorded to goods entered after the expiration of the RPT. According to the
US, the focus for implementation purposes should be on the time of entry of merchandise. It followed
that for goods subject to the five administrative reviews, which were imported before the end of the
RPT, the US might continue to collect excessive dut ies on the basis of the WTO-inconsistent zeroing
procedures after the RPT.

4. Hong Kong, China questions the legal basis of the US assertions. Contrary to what the US
submitted, there is no text in either GATT 1994 or the AD Agreement or the DSU that supports the
US contention that the date of importation of the goo ds concerned is determinis tic as to whether they
are subject to the implementation of the DSB's reco mmendations and rulings. It is not clear in what
way the provisions cited by the US
2 support its claims. None of the named provisions address,
textually or contextually, the question of implementa tion obligations. Indeed, most of them serve to
distinguish a prospective system from a retrospect ive system, or to address the question of when
provisional measures shall take effect, and both of which are not matters in dispute.

5. While it is not disputed that the date of impor tation is one of the rele vant considerations for
the purposes of implementation, it is by no means exhaustive or exclusive as far as AD measures and
obligations are concerned. As mentioned by the US in paragraph 61 of its first written submission,
"notwithstanding that duties are generally levied at the time of importation, Members may instead
require cash deposits or other security , in lieu of the duty, pending final determination of the relevant
information". It is noted that the time gap that exists between collecting cash deposits at the time of
importation and the liquidation of the same import en tries subsequently upon final determination in

1 Japan First Written Submission of 30 June 2008, paragraph 51.
2 US First Written Submission of 28 July 2008, paragraphs 59-64.

administrative reviews is a distinct feature of th e retrospective duty assessment system administered
by the US.

6. Insofar as the present case is concerned, entries of certain of the subject goods before the end
of the RPT would continue to be liquidated by the US after the RPT on the basis of the administrative
reviews already found to be WTO-inconsistent.
3 The US did not dispute this. Hong Kong, China
submits that it is this continuous legal effect, that the WTO-incons istent administrative reviews have
on the acts of liquidation which would take place be yond the RPT, which is relevant in terms of
implementation obligations for the US; and that the time of liquidation, rather than the time of
importation, should be the correct focus for implementation purposes and the proper basis for
implementation obligations. The above position that finality of du ties and obligations occur only
upon liquidation is congruent with the view of the Appellate Body on the retrospective duty
assessment system that "[u]ntil an assessment review is conducted and the import entries are
liquidated, there remains uncertainty …, so that dumping remains in this respect, and until then,
"suspected"".4 This has actually been unde rlined by the US in that sa me case where the Panel noted
that "[t]he United States argues that in no case is assessment – whether at the cash deposit rate or
otherwise – conducted at the time of entry, and in all cases the cash deposit collected at the time of
entry is a baseline proxy of the amount that may ultimately be assessed, and is never itself the final
liability".5

7. The US considers that Japan's position provides for retrospective relief since it would apply to
merchandise entered into the US territory before the end of the RPT. In other words, according to the
US, "retrospectivity" of implementation is determined by the date of entry of the imports. However,
Hong Kong, China, like Japan
6, takes the view that the key date is that of the action undertaken by the
WTO Member concerned rather than the date of en try of the imports. Furthermore, the prospective
nature of the implementation of the DSB's recomme ndations implies that at the end of the RPT, a
WTO Member is prevented from taking actions whic h are contrary to the DSB's recommendations.
This relief is prospective since the WTO Member concerned is required to ensure that the actions it
takes as of the end of the RPT are WTO-consistent. This implies that the US should in the present
case refrain from collecting duties, as of the end of the RPT, on the basis of WTO-inconsistent
zeroing procedures even though it relates to imports entered before the end of the RPT. This
approach is the only one which is consistent with the objective and purpose of the WTO dispute
settlement which is to ensure the prompt settlement of disputes, taking into account in particular the
requirements under Article 19 of the DSU for the WT O Member concerned to bring the measure into
conformity with the relevant c overed agreement and Article 21 of the DSU to ensure a "prompt
compliance with recommendations or rulings of the DSB".

8. As regards the contention of the US that in equality might be create d between retrospective
and prospective duty assessment systems should the case of Japan prevail
7, Hong Kong, China
submits that the different bases and endpoints of implementation obligations for the two duty
assessment systems reflect merely their intrinsically different characteristics and features as envisaged
and permitted under the AD Agreement. The question of uneven "level playing field" does not arise.
If the objective of the AD Agreement were to ach ieve complete likeness, it would not expressly
provide for two different duty assessment systems 8, and would not under the retrospective system

3 Japan First Written Submission of 30 June 2008, paragraph 136.
4 Appellate Body Report, US – Measures Relating to Shrimp from Thailand/Customs Bond Directive
for Merchandise Subject to Anti-dumping/Countervailing Duties , WT/DS343/AB/R, WT/DS345/AB/R ,
paragraph 226.
5 Panel Report, US – Measures Relating to Shrimp from Thailand, WT/DS343/R, paragraph 7.106.
6 Japan First Written Submission of 30 June 2008, paragraphs 141-148.
7 US First Written Submission of 28 July 2008, paragraphs 68-69.
8 See for instance Article 9.3 of the AD Agreement.

allow the collection of cash deposits at the time of importation and permit subsequent adjustments,
including upward adjustments of duties, pending final determination of liability, a feature not
available to the prospective system. Also of not e is that even under the retrospective duty assessment
system, importing Members are under no WTO obligati ons not to liquidate re levant import entries
within the RPT. It is a matter of decision, u nder domestic policy and practices, for the US not to
liquidate the import entries before the expiration of the RPT and hence resulting in their being subject
to the implementation obligations.

3. Implementation Obligations Pertai ning to the Cash Deposits Rates

9. Japan also identified in its first writt en submission three administrative reviews
9 whose
implementation obligations pertaining to cash deposits with which the US failed to comply. The US
countered that it had complied with the recommenda tions and rulings of the DSB since the cash
deposit rates as established by the three reviews that were found to be WTO-inconsistent had already
been terminated and that new cash deposit rates pur suant to subsequent reviews had already been put
in place.10

10. Hong Kong, China submits that in compliance with the implementation obligations in the
present case, what is essentially re quired for the US is that its WTO-inconsistent procedures of
zeroing be terminated.
11 By conducting subsequent reviews with the same WTO-inconsistent zeroing
procedures, it is difficult to see how the implemen tation obligations of the US could have been
fulfilled. While the original reviews might have been superseded, the succeeding reviews continued
to apply the same WTO-inconsistent procedures of zeroing in establishing cash deposit rates, hence
giving rise to the same violation of the WTO obligations.

11. By also asserting that the subsequent admini strative reviews were "incidental" under the US
retrospective duty assessment system, the US claimed that they were not "measures taken to comply"
under Article 21.5 of the DSU and were out side the ambit of the compliance Panel.
12 It should be
mindful that, under the retrospective duty assessment system of the US, the cash deposit rates are
calculated and "superseded" periodically pursuant to successive administrative reviews until the anti-
dumping measure is terminated. If subsequent administrative reviews are not deemed to be "measures
taken to comply", it will be impossible for WTO Members to obtain Article 21.5 remedy for such
WTO-inconsistent duty assessment procedures. And seeking a new panel to review the subsequent
administrative reviews may equally be fruitless give n that the subsequent reviews will likewise be
"incidentally" superseded by further reviews. The WTO-inconsistent practice can then perpetuate
endlessly without any meaningful remedy under the DSU. We would like to invite the Panel to give
special consideration to the above situation in interpreting the language of Article 21.5 and in
determining what are "measures taken to comply" in the present case. In this connection, it is recalled
that the aim of Article 21.5 of the DSU, as cons trued by the Appellate Body, is "to promote the
prompt compliance with DSB recommendations and rulings…by making it unnecessary for a
complainant to begin new proceedings…".
13

9 Covering Reviews Nos. 1, 2 and 3 as appeared in Japan first written submission of 30 June 2008,
paragraph 53.
10 US First Written Submission of 28 July 2008, paragraph 67.
11 Appellate Body Report, US – Measures Relating to Zeroing and Sunset Reviews , WT/DS322/AB/R,
paragraph 190(c) where the AB found that the US acted inconsistently with Articles 2.4 and 9.3 of the AD
Agreement and Article VI:2 of the GATT 1994 by maintaining zeroing procedures in periodic reviews.
12 US first written submission of 28 July 2008, paragraph 44.
13 Appellate Body Report, US – OCTG from Argentina (21.5), WT/DS268/AB/RW, paragraph 151.

4. Conclusion

12. On the basis of the submissions of the parti es to the dispute available to Hong Kong, China,
and for, among others, the reasons stated in th is representation, Hong Kong, China respectfully
submits that the Panel should find that the US fails to comply with the recommendations and the
rulings of the DSB in the original dispute.

13. Hong Kong, China reserves its right to comment on other issues raised in these proceedings.

ANNEX B-3

EXECUTIVE SUMMARY OF THE THIRD PARTY
WRITTEN SUBMISSION OF KOREA

(1 September 2008)

1. In Korea's view, although the Dispute Settlement Body ("DSB") held that the application of
zeroing by the USDOC in the original investigati ons, periodic reviews and sunset reviews constitutes
violation of various provisions of the AD Agreem ent, and although the United States had the benefit
of an 11-month long reasonable period of time ("RPT") for the implementation of the DSB rulings
and recommendations, the United States has simply failed to implement them in good faith.

2. Regarding the jurisdiction of a compliance panel composed under Article 21.5 of the DSU,
any form of non-compliance should be reviewed by a compliance panel. As long as the actions or
omissions of an implementing Member occur after the expiration of the applicable RPT, the Member
has failed to implement the decisions of the DSB in good faith.

3. As to the five periodic reviews being cha llenged by Japan, the United States did not take any
action to eliminate the impact of zeroing as mandate d by the DSB decisions. This is an omission
which constitutes a Member's failure to implem ent the DSB decisions. Regarding the three
subsequent periodic reviews, which were "measures taken to comply," the Un ited States continues to
apply the zeroing methodology. So, this is an a ffirmative action by an implementing Member to
disregard the DSB decisions. Korea submits th at both types of measures should fall under the
jurisdiction of a compliance panel composed under Article 21.5 of the DSU.

4. Korea also agrees with Japan that subsequent review proceedings should be subject to the
jurisdiction of the current Panel. Given the proxi mity in time and the almost identical nature of
measures between periodic reviews in the original dispute and the subsequent reviews, one could
reasonably argue that these subsequent measures ar e simply continuation of the WTO-inconsistent
measures rather than new, separate measures. These subsequent review proceedings would be
effective and meaningful evidence in examining how the implementing Member has implemented so
far or plans to implement in the future.

5. To comply with the rulings and recommenda tions of the DSB, the losing Member must
"withdraw" or "eliminate" the measure, or take otherwise comparable action, before the expiration of
the RPT. In this case, the reco rd evidence proves that the USDOC has continued to apply the zeroing
practice in the original investigations , periodic reviews and sunset reviews after the 11-month RPT
ended on 24 December 2007. The United States, therefore, has failed to implement the DSB ruling
and recommendations in due course.

6. The DSB ruled that the zeroing procedures are WTO-inconsistent in both W-to-W
comparison methodology and T-to-T comparison methodology in original investigations. In its final
notice of 27 December 2006, however, the USDOC declared that it would not implement the
decisions of the DSB to the letter. The 21.5 Panel should conclude that not only the United States has
failed to implement the recommendati ons and rulings of the DSB, but also it does not have intention
to do so in any foreseeable future.

7. Regarding the administrative reviews challe nged by Japan in the current proceedings, the
United States effectively ignored the recommendati ons of the DSB. The United States now attempts

to justify its position by arguing that in each admini strative review case, a prior administrative review
is superseded by a subsequent review, and that since the administrative reviews challenged in the
original dispute do not exist any more with new cash deposit rates, the United States is not required to
do anything to implement.

8. In Korea's view, however, the US position un fairly misconstrues the operating mechanism of
an administrative review and seriously threatens to undermine the basic purpose of the dispute
settlement procedure of the WTO. Such interpre tation would make it impossible for a Member, who
successfully challenged an administrative review by another Member, to get a viable remedy.

9. The anti-dumping measure challenged here is b asically in place for five years until the sunset
review, and all the administrative reviews basically accomplish is to adjust final assessment rates
upward or downward on an annual basis. So, to some extent, one could argue that the administrative
reviews have continuing effect during the five year period.

10. Therefore, by all accounts, an administrativ e review has not been terminated yet simply
because there is a new administrative review going on or completed. An administrative review found
to be WTO-inconsistent thus equally requires adequate implementation by the losing party
irrespective of existence or completion of a subsequent review or reviews.

11. In 21.5 proceeding, sometimes the panel may face a situation where it is required to make a
finding for a measure which has been "technically " or "procedurally" revoked. This would be
particularly necessary when a new, subsequent meas ure is in place, which is quite similar to, and
virtually identical with, the now-revoked original measure. Otherwise, a Member may easily revoke
the inconsistent measure during the RPT and introdu ce a new, equally inconsistent measure promptly
the whole purpose of which is to circumvent a good faith implementation obligation.

12. In the light of the above, Korea requests the Panel to reject the US position that all
administrative reviews originally challenged did not require any action on the part of the United States
simply because there were subsequent reviews afterw ards. Korea requests the Panel to hold that the
United States failed to implement the DSB recommendation in this respect.

13. In the original dispute, the DSB ruled that by relying on margins of dumping calculated in
previous proceedings using the zeroing procedures in the two sunset reviews, the United States acted
inconsistently with Article 11.3 of the AD Agreem ent. Despite the ruling, the anti-dumping orders
are still in effect.

14. The United States appears to argue that even without zeroing, other independent grounds still
support the likelihood or recurrence finding in the said sunset reviews. However, other than
downplaying the importance of dumping margins found in prior periodic reviews in the context of a
sunset review, the United States does not explai n why and how it was able to reach the same
likelihood or recurrence finding even with new, non-zeroed, hypothetical dumping margins. This
explanation of the United States is particularly co nfusing since in conducting a sunset review, the
margins and results of the original investigations and administrative reviews are examined by the
USDOC as key factors.

15. In Korea's view, the sunset reviews of th e USDOC cannot be separated from previous anti-
dumping proceedings. Considering the way it is im plemented, sunset reviews by the USDOC are
more or less an extension of previous findings or prediction based on previous findings.

16. As the United States has not implemented the decisions of the DSB in original investigations
(T-T comparisons) and periodic reviews, and con tinues to apply the zeroing practice, one could
reasonably argue that the subsequent sunset reviews st and to be tainted by the previous investigations

and periodic reviews unless and until the zeroing practice is fully eliminated in these prior
proceedings. As such, Korea submits that the Unite d States has still failed to implement the decisions
of the DSB when it comes to the sunset reviews.

17. In sum, despite the Appellate Body's deci sions and recommendations to bring its measures
into conformity, the United States has simply failed to do so. Korea respectfully submits that for the
reasons stated above the Panel should hold th at the United States failed to comply with
recommendations of the DSB in the original dispute.

I. INTRODUCTION

1. As a third party to this dispute, Norway would like to address the following issues discussed
in the First Written Submissions of Japan and the United States:

• What measures are included in the scope of this proceeding – in other words – what measures
are within the Panel's jurisdiction (chapter II); and

• The extension of one sunset review challenged in the original dispute (chapter III).

II. JURISDICTION OF THE PANEL

A. INTRODUCTION

2. Japan claims that in addition to the measur es that the United States recognizes as being taken
to comply, three subsequent reviews that supersedes the periodic reviews covered by the DSB's
rulings and recommendations must be viewed as "measures taken to comply" under DSU
Article 21.5,and therefore may be included in the scope of the current proceedings.
1

3. The United States, on the other hand, sets out that the three subsequent reviews at issue are
not "measures taken to comply" and therefore outside the scope of these proceedings.
2 In addition,
the United States claims that Japan fails to meet the specificity requirement of Article 6.2 of the DSU,
by attempting "to include future, indeterminate measures within the scope of this proceeding". 3 This
point will not be discussed by Norway.

B. THE SCOPE OF ARTICLE 21.5

4. Article 21.5 of the Dispute Settlement Unders tanding (DSU) determines the scope of a Panel's
jurisdiction in compliance proceedings. Panels a nd the Appellate Body have ruled on the scope of
this article several times, and set out the correct legal interpretation to be given to the provision.

5. It follows from the wording of Article 21.5 that both positive acts taken to comply and
omissions are covered. The Appe llate Body confirmed this in US – Softwood Lumber IV (21.5 –
Canada).
4 A complaining Member may thus challenge m easures that have been adopted with a view
to comply with the recommendations and rulings of the DSB ("consistency"), but also lack of such
measures ("existence"), or a combination of both in situations where the measures taken to comply,
through omissions or otherwise, may achieve only partial compliance.

6. Further, Panels and the Appe llate Body have underlined that it is not up to the complaining
Member alone to determine what constitutes a measure taken to comply. Rather, it is for the panel to
make this determination.
5 To assist a panel in making a decision on what is a measure taken to
comply, the Appellate Body has identified some ad ditional criteria, requiring the panel to scrutinize
the relationship between the relevant measures and to examine the timing, nature and effects of the
various measures.6

2 United States First Written Submission, para. 28.
3 United States First Written Submission, para. 29.
4 Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 67.
5 Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 73 with references.
6 Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 77.

7. The Appellate Body has also underlined that whether the administrative review determination
has "the effect of undermining compliance with the DSB's recommendations and rulings" forms an
integral part of the assessment of what constitut es a measure taken to comply. And furthermore,
that closely connected measures must be identified so as to avoid circumvention.
7

C. THE SCOPE OF THE PANEL'S JURISDICTION IN THE CASE AT HAND

8. The three periodic reviews at issue (cfr. paragr aph 2 above) were neither part of the original
proceedings, nor declared by the United States to be measures taken to comply with the rulings and
recommendations by the DSB.
8 It is therefore for the Panel to determine whether or not the reviews
are "measures taken to comply" within the meaning of Article 21.5. As set out in Section B, this
requires that the Panel makes a concrete analysis of the measures to see if they have a sufficiently
close nexus to another measure taken to comply or the recommendations and rulings of the DSB.

9. Norway believes that the Panel, following th e same analysis as the panel and the Appellate
Body in US – Softwood Lumber IV (21.5 – Canada) should find that the three subsequent reviews at
issue in the current proceedings are within its terms of reference as "measures taken to comply". This
does not mean that all aspects of these reviews fall w ithin the Panel's jurisdiction. The panel and the
Appellate Body in US – Softwood Lumber IV (21.5 – Canada) limited their analysis to the aspects of
later reviews that concerned the methodology contested before the original panel. Based on the same
approach, where "zeroing" is the contested methodol ogy, any subsequent measure that continues or
discontinues zeroing in respect of the same product (and where the subsequent measure "updates" or
"supersedes" (or "replaces") previous calculations of dumping for the products subject to the same
anti-dumping order) will be a "measure taken to comply".

10. The United States argues that two of the sub sequent reviews identified by Japan cannot be
considered measures taken to comply because they pre-date the adoption of the DSB's
recommendations and rulings in the original dispute.
9 In light of previous findings of the Appellate
Body it must be clear that the United States cannot be heard with this argument.

11. In US – Softwood Lumber IV (Article 21.5 - Canada) the Appellate Body assessed a measure
that was initiated before the adoption of the report. The measure was considered to be part of the
scope of the proceeding, even though it "was not initiated in order to comply with the
recommendations and rulings of the DSB and that it operated under its own timelines and procedures
(…)". That fact was, nevertheless, not sufficien t to overcome the multiple and specific links that
existed between the relevant measures. In Norway's view, similar considerations apply in the case at
hand. The important point is not when a review (of one of the measures found to violate WTO rules
in the original case) is initiated, but whether it was completed and/or continued to have effects after
the end of the reasonable period of time.

12. Furthermore, the Appellate Body has held that "[t]he fact that Article 21.5 mandates a panel
to assess "existence" and "consistency" tends to weig h against an interpretation of Article 21.5 that
would confine the scope of a panel's jurisdiction to measures that move in the direction of, or have the
objective of achieving , compliance."
10 Measures cannot be excluded from the scope of compliance
proceedings due to the purpose for which they have been taken.11

7 Appellate Body Report, US – Subsidies on Upland Cotton (21.5 - Brazil), para. 205 with references.
9 United States, First Written Submission, para. 33.
10 Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 67.

13. There can be no doubt that the three subsequent periodic reviews at i ssue has the effect of
undermining the compliance by the United States with the recommendations and rulings by the DSB.
If these reviews were not to fall within the scope of the proceeding, it would turn the United States'
system of duty assessment into a moving target th at escapes from anti-duty disciplines. Requiring
Japan to initiate new panel proceedings in order to challenge dumping determinations in measures that
confirm and supersede the original measures would run counter to the objective of Article 21.5.

14. In light of the above, it is Norway's opin ion that all actions a nd omissions challenged by
Japan in this dispute fall within the scope of the Panel's jurisdiction as provided for in Article 21.5 of
the DSU, including the three specific subsequent pe riodic reviews that have superseded the original
measures.

III. SUNSET REVIEWS

15. In its First Written Submissi on paragraph 29, Japan notes that the United States extended one
of the two sunset reviews covered by the DSB's r ecommendations and rulings in the original dispute
through a subsequent sunset review. Japan cha llenges the United States' omission to implement the
DSB's recommendations and rulings with regard to th is sunset review. Amongst others, Japan claims
that this omission results in a continued violation of Article 11.3 of the Anti-Dumping Agreement.
12

16. The Appellate Body has held that all dum ping margins in sunset reviews conducted in
accordance with Article 11.3, must conform to the disciplines of Article 2.4. If the margins are
calculated using a methodology that is inconsistent w ith Article 2.4, then this could give rise to an
inconsistency not only with Article 2.4, but also with Article 11.3.
13 The Appellate Body has
confirmed that this also applies where the inves tigating authority relies on margins calculated (with
the use of zeroing) during periodic reviews.14

17. Clearly, an inconsistent Sunset Review cannot serve as a basis for the continuation of an anti-
dumping measure. It appears from the facts that the United States did not redo the likelihood-of-
dumping determination of the 1999 Sunset Review.
15 The United States appears to argue that it was
not required to do so. 16 They believe they would have come to the same likelihood determination in
any case and therefore had no need to redo the original determinations.

18. This approach by the United States is mis guided. A mere statement in its First Written
Submission that the United States would have come to the same result in any case is not sufficient to
show compliance. The United States would have to show that it, with correctly calculated dumping
margins, would have reached the same likelihood determination. And, furthermore, only the correctly
calculated margins could then be used to set the anti-dumping duty rates for the future.

19. According to WTO case law, to the extent that a Member relies on dumping margins for a
sunset review determination, such margins must always conform to the disciplines of Article 2.4.
17
This means that all margins that are relied upon for a sunset review determination must be calculated
without zeroing.

20. Rather than do nothing, the United States would have been expected to do a Section 129
review of the Sunset Review of 1999, redo all margin calculations that were calculated with any form

12 Japan, First Written Submission, paras. 155 – 158.
13 See e.g. Appellate Body Report, US – Corrosion Resistant Steel Sunset Review, paras. 127 and 130.
14 Appellate Body Report, US – Zeroing (Japan).
15 United States, First Written Submission, para. 75.
16 United States, First Written Submission, para. 75.
17 Appellate Body Report, US – Corrosion Resistant Steel Sunset Review, para. 127.

of zeroing (if the were to rely on dumping margin s for their likelihood determination), and present
fresh information that could credibly support a likelihood determination.

21. The United States, however, chose to do nothing to bring itself into conformity with the
findings and recommendations of the DSB. This om ission implies that the United States remains in
violation of its obligations under Article 11.3.

IV. CONCLUSION

22. Norway respectfully requests the Panel to exam ine carefully the facts presented by the parties
to this case in light of our arguments, in order to ensure a proper and consiste nt interpretation of the
DSU and the Anti-Dumping Agreement.