UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA
Document: Recourse to Article 21.5 of the DSU by Argentina Notification of an Appeal by the United States under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 20(1) of the Working Procedures for Appellate Review
Date: 16 January 2007
Document codes: WT/DS268/19
Complainant: Argentina
Respondent: U.S.
Third parties: China, EU, Japan, South Korea, Mexico, Taiwan
Dispute stage: Implementation & Compliance
Agreements cited: Art. 1, 2, 3, 6, 11, 12, 18, Annex II  Anti-dumpingArt. VI, X  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES
ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA

Recourse to Article 21.5 of the DSU by Argentina

Notification of an Appeal by the United States
under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 20(1) of the Working Procedures for Appellate Review

 The following notification, dated 12 January 20 07, from the Delegation of the United States,
is being circulated to Members.

Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review, the
United States hereby notifies its decision to app eal to the Appellate Body certain issues of law
covered in the Report of the Panel on : Rec ourse to Article 21.5 of the DSU by Argentina
() and certain legal interpretations developed by the Panel in this dispute.

1. The United States seeks review by the Appellate Body of the Panel's legal conclusion that the
provisions of section 751(c)(4)(B) of the Tariff Ac t of 1930, operating in conjunction with section
751(c)(4)(A) of the Tariff Act and section 351.218(d) (2) of Title 19 of the Code of Federal
Regulations, are inconsistent with Article 11.3 of the Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994 ("Antidumping Agreement") .
1 This finding is in
error and is based on erroneous findings on issues of law and related legal inte rpretations, such as the
finding that U.S. law, including section 751(c)(4)(B) of the Tariff Act and section 351.218(d)(2)(iii)
of the Department of Commerce's regulations, precludes the Department of Commerce from making
an order-wide determination of likelihood of continuation or recu rrence of dumping, supported by
reasoned and adequate conclusions based on the fact s before the agency, wher e an interested party
elects not to participate in the sunset review at the Department of Commerce.

Other errors include, for example, reversi ng the burden of proof by failing to require
Argentina to prove its claim and instead requiring the United States to disprove it; in addition, the
Panel applied the wrong legal standard by ev aluating whether the statute "may" breach the
Antidumping Agreement, rather than whether the st atute mandates a breach of that Agreement .
Further, the Panel failed to make an objective assessme nt of the matter before it, including a failure to
make an objective assessment of the facts of the case, contrary to Article 11 of DSU . For example,
the Panel based its conclusion not on the evidence contained in the panel record – indeed, this
provision of U.S. law had never been used – but rather on the basis of pure speculation by the Panel as
to what the United States would do if the law were to be invoked. For example, the Panel moves from

1See, e.g., paras. 7.32-7.41, 8.1(a).

speculating that evidence would "necessarily" have a "significant impact" on the U.S. determination at
issue to concluding that the United States would be unable to consider any additional evidence.

2. The United States seeks review by the Appellate Body of the Panel's legal conclusion that the
"volume analysis" incorporated by reference in th e Section 129 determination forms part of the
measure taken to comply within the meaning of Article 21.5 of the DSU for purposes of these
proceedings.
2 This conclusion is in error and is ba sed on erroneous findings on issues of law and
related legal interpretations of DSU Article 21.5. Fo r example, in the original proceeding, there were
no recommendations or rulings pertaining to the volu me analysis, and, in the redetermination, the
volume analysis was an unchanged asp ect of the original determination that was simply incorporated
by reference, as was the case in EC – Bed Linen (Article 21.5 – India).3

2See, e.g., paras. 7.88-7.96. Paragraphs 7.98-7.101 and 8.1(c)(2) would be rendered moot if the United
States were to prevail with respect to this claim.
3Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type
Bed Linen from India: Recourse to Article 21.5 of the DSU by India , WT/DS141/AB/RW, adopted 24 April
2003 ("EC – Bed Linen (Article 21.5 – India)").