MEXICO – DEFINITIVE ANTI-DUMPING MEASURES ON BEEF AND RICE
Document: Report of the Appellate Body
Date: 29 November 2005
Document codes: WT/DS295/AB/R
Complainant: U.S.
Respondent: Mexico
Third parties: China, EU, Turkey
Dispute stage: Appellate Body
Agreements cited: Art. 12.5, 12.7, 19.3, 11.9, 21.1, 21.2, 32.1, 12.1.1  Subsidies and Countervailing Measures (SCM)Art. VI:2  GATT 1994Art. 1, 3.1, 3.2, 3.4, 3.5, 4.1, 5.8, 6.1, 6.2, 6.4, 6.8, 6.9, 6.10, 9.3, 9.4, 9.5, 11.1, 12.1, 12.2, 11.9, 18.1, 19.3, 21.1, 21.2, 32.1  Anti-dumping

MEXICO – DEFINITIVE ANTI-DUMPING MEASURES
ON BEEF AND RICE

Complaint with Respect to Rice

AB-2005-6

Report of the Appellate Body

APPELLATE BODY

, Complaint
with Respect to Rice

Mexico, Appellant
United States, Appellee

China, Third Participant
European Communities, Third Participant
Turkey, Third Participant

 AB-2005-6

 Present:

 Lockhart, Presiding Member
 Abi-Saab, Member
 Taniguchi, Member

I. Introduction
1. Mexico appeals certain issues of law and legal in terpretations developed in the Panel Report,
 , Complaint with Respect to Rice (the
"Panel Report").1 The Panel was established to consider a complaint by the United States concerning
the imposition of definitive anti-dumping duties by Me xico on imports of long-grain white rice from
the United States 2, as well as certain provisions of Mexican law relating to anti-dumping and
countervailing duty proceedings.
2. The Mexican Rice Council filed an anti-dumping petition on 2 June 2000 with the Ministry of
Commerce and Industrial Development ("SECOFI"), Me xico's investigating authority at that time. 3
The investigation was initiated in December 2000 by the Ministry of Economy ("Economía") 4, which

1, 6 June 2005.
2In its request for consultations (, , , , 23 June 2003
(attached as Annex III to this Report)), the United States raised claims with respect to the anti-dumping measure
on beef, the anti-dumping measure on long-grain white rice, certain provisions of the Foreign Trade Act of
Mexico (the "FTA"), and one provision of the Federal Code of Civil Procedure. The claims with respect to the
anti-dumping measure on beef, however, were not includ ed in the request for the establishment of a panel
(WT/DS295/2, 22 September 2003 (attached as Annex II to this Report)). The Panel Report, therefore, did not
examine the anti-dumping measure on beef. (Panel Report, footnote 2 to para. 1.2)
3Panel Report, para. 2.2.
originarias de los Estados Unidos de América, independientemente del país de procedencia ", Diario Oficial,
11 December 2000, First Section, pp. 4-26 (Exhibit US-1 submitted by the United States to the Panel).

succeeded SECOFI as Mexico's investigating authority.
5 The notice of initiation, a copy of the
petition and attachments thereto, and the investigatio n questionnaire were sent to the Government of
the United States and to the two exporters that were specifically identified in the petition as the
"exporters", Producers Rice Mill, Inc. ("Producer s Rice") and Riceland Foods, Inc. ("Riceland"). 6
Two additional exporters, The Rice Company and Fa rmers Rice Milling Company ("Farmers Rice"),
came forward following the initiation of the investig ation and before the pre liminary determination,
and requested copies of the questionnaire.7
3. The period of investigation for the purpose of the dumping determination was 1 March to
31 August 1999. For the purpose of the injury dete rmination, Economía collected data for the period
March 1997 through August 1999, but based its analysis on the data for 1 March to 31 August for the
years 1997, 1998, and 1999 8 and issued its final affirma tive determination on 5 June 2002. 9
Economía found that Farmers Rice and Ricela nd had not been dumping during the period of
investigation and consequently imposed a zero per cent duty on these exporters. With respect to The
Rice Company, Economía determined a dumping margin of 3.93 per cent and imposed a duty in that
amount. Economía also imposed on the remain ing United States exporters of the subject
merchandise, including Producers Rice, a duty of 10.18 per cent, calculated on the basis of the facts
available.10
4. Before the Panel, the United States raised claims with respect to Economía's anti-dumping
investigation on long-grain white rice, allegi ng that Economía's dumping determination was
inconsistent with Article VI:2 of the General Agreement on Tariffs and Trade 1994 (the
"GATT 1994"), as well as Articles 1, 5.8, 6.1, 6.2, 6.4, 6.6, 6.8, 6.10, 9.3, 9.4, 9.5, 12.1, and 12.2 of
the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994

5As the Panel noted, the name of Mexico's investigating authority was changed from SECOFI to
Economía, which completed the investigation on long-grain white rice from the United States. (Panel Report,
footnote 4 to para. 2.2)
6Panel Report, para. 2.4. See also Notice to Producers Rice Mills, Inc . of the initiation of
the investigation, 11 December 2000 (Exhibit ME X-6 submitted by Mexico to the Panel); Notice to
Riceland Foods, Inc . of the initiation of the anti-dumping investig ation on imports of long-grain white rice,
11 December 2000 (Exhibit MEX-7 s ubmitted by Mexico to the Panel) ; Notice of the initiation of the
investigation communicated to the Government of the United States of America through its Embassy in Mexico
City, 11 December 2000 (Exhibit MEX-9 submitted by Mexico to the Panel).
7Panel Report, para. 2.5.
8Ibid., paras. 2.4 and 7.75.
Generales de Importación y de Exportación, originarias de los Estados Unidos de América, independientemente
del país de procedencia", Diario Oficial, 5 June 2002, Second Section, pp. 1-47 (Exhibit US-6 submitted by the
United States to the Panel; Exhibit MEX-1 submitted by Mexico to the Panel).
10Panel Report, para. 2.7.

(the "Anti-Dumping Agreement ") and Annex II thereto. 11 The United States also alleged that
Economía's injury determination w as inconsistent with Articles VI:2 and VI:6(a) of the GATT 1994,
as well as Articles 1, 3.1, 3.2, 3.4, 3.5, 6.2, 6.8, and 12.2 of the Anti-Dumping Agreement and
Annex II thereto.12 In addition, the United States claimed th at certain provisions of the Foreign Trade
Act of Mexico (the "FTA") and one provision of the Federal Code of Civil Procedure are inconsistent,
as such, with various provisions of the Anti-Dumping Agreement and the Agreement on Subsidies
and Countervailing Measures (the "SCM Agreement").13
5. In the Panel Report, circulated to Members of the World Trade Organization (the "WTO")
on 6 June 2005, the Panel concluded that:
(a) Economía's dumping determination is inconsistent with Artic les 5.8, 6.1, 6.8, 6.10,
and 12.1 of the Anti-Dumping Agreement and paragraphs 1 and 7 of Annex II
thereto14;
(b) Economía's injury determination is inconsistent with Articles 3.1, 3.2, 3.4, and 3.5 of
the Anti-Dumping Agreement15;
(c) Article 53 of the FTA is inconsistent, as such, with Article 6.1.1 of the Anti-Dumping
Agreement and Article 12.1.1 of the SCM Agreement16;
(d) Article 64 of the FTA is inconsistent , as such, with Article 6.8 of the Anti-Dumping
Agreement and paragraphs 1, 3, 5, and 7 of Annex II thereto, and Article 12.7 of the
SCM Agreement17;
(e) Article 68 of the FTA is inconsistent, as such , with Articles 5.8, 9.3, and 11.2 of the
Anti-Dumping Agreement and Articles 11.9 and 21.2 of the SCM Agreement18;

11Panel Report, para. 3.1(h)-(m).
13The FTA provisions challenged by the United States are Articles 53, 64, 68, 89D, and 93V, as well as
Articles 68 and 97 read together. The United States also challenged Section 366 of the Federal Code of Civil
Procedure. (Panel Report, para. 3.1(n)-(s))
14Ibid., para. 8.3.
15Ibid., para. 8.1.
16Ibid., para. 8.5(a).
17Ibid., para. 8.5(b).
18Ibid., para. 8.5(c).

(f) Article 89D of the FTA is inconsiste nt, as such, with Article 9.5 of the Anti-Dumping
Agreement and Article 19.3 of the SCM Agreement
19;
(g) Article 93V of the FTA is inconsiste nt, as such, with Article 18.1 of the Anti-
Dumping Agreement and Article 32.1 of the SCM Agreement20; and
(h) Articles 68 and 97 of the FTA, read together, are inconsistent, as such, with
Articles 9.3 and 11.2 of the Anti-Dumping Agreement, and Article 21.2 of the SCM
Agreement.21
6. The Panel further concluded that the United States had failed to make a prima facie case in
two respects: (i) that Article 366 of the Federal Code of Civil Procedure is inconsistent with
Articles 9.3, 9.5, and 11.2 of the Anti-Dumping Agreement and Articles 19.3 and 21.2 of the
SCM Agreement; and (ii) that Articles 68 and 97 of the FTA, read together, are inconsistent with
Article 9.5 of the Anti-Dumping Agreement and Article 19.3 of the SCM Agreement.22 With respect
to the remaining claims of the United Stat es, the Panel exercised "judicial economy". 23 The Panel
therefore recommended that the Dispute Settlement Body (the "DSB") reques t Mexico to bring its
measures into conformity with its obligations under the Anti-Dumping Agreement and the SCM
Agreement.24
7. On 20 July 2005, Mexico notified the DSB of its intention to appeal certain issues of law
covered in the Panel Report and cer tain legal interpretations devel oped by the Panel, pursuant to
Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes (the "DSU"), and filed a Notice of Appeal 25 pursuant to Rule 20(1) of the Working
Procedures for Appellate Review (the " Working Procedures").26 At the outset of the appeal, the
participants asked to have all wr itten submissions made available to all participants in English and
Spanish. Following consultations with the partic ipants, the Appellate Body Division hearing the
appeal issued a Working Schedule for the appeal, taking into account time periods for translation of

19Panel Report, para. 8.5(d).
20Ibid., para. 8.5(e).
21Ibid., para. 8.5(f).
22Ibid.
23Ibid., paras. 8.1, 8.2, 8.3(b) and (c), 8.4, and 8.5(b).
24Ibid., para. 8.7.
25WT/DS295/6 (attached as Annex I to this Report).
26WT/AB/WP/5, 4 January 2005.

submissions estimated by the WTO Language Services and Documentation Division. 27 G i v e n
the time required for the translation of submissions, it was not possible to circulate this Report within
90 days from the date the Notice of Appeal was filed. The participants confirmed in writing
their agreement to deem the Appellate Body Re port in this proceeding, issued no later than
29 November 2005, to be an Appellate Body Report circulated pursuant to Article 17.5 of the DSU.28
8. On 27 July 2005, Mexico filed an appellant's submission. 29 On 6 September 2005, the United
States filed an appellee's submission. 30 China and the European Communities each filed a third
participant's submission on 29 August 2005. 31 On 5 October 2005, Turkey notified its intention to
appear at the oral hearing as a third participant.32
9. On 4 August 2005, Mexico filed a letter with th e Appellate Body Secretariat requesting that
the Division modify the Working Schedule. Mexico stated that the Working Schedule provided for
"five calendar days" between the date Mexico w ould receive the translated appellee's and third
participant's submissions, and the first day of the oral hearing, whereas the Working Procedures
provided normally for 10 to 15 days for that period. 33 Mexico submitted that the other time periods
provided in the Working Schedule corresponded to the time periods in a typical appeal, with
additional time provided where necessary for translati on. Mexico therefore requested that it be given
"as much time as possible" in the period preceding th e oral hearing to ensure that both participants
had "an equal opportunity to present their case".34

27Letter from the Director of the Appellate Body Secr etariat to the participants and third participants,
dated 27 July 2005.
28Letter from the Ambassador and Permanent Represen tative of Mexico to the WTO to the Director
of the Appellate Body Secretariat, dated 4 August 2005; letter from the Senior Legal Advisor of the
Permanent Mission of the United States to the WTO to th e Director of the Appellate Body Secretariat, dated
4 August 2005.
29Pursuant to Rule 21(1) of the Working Procedures . A courtesy English translation of Mexico's
appellant's submission, prepared by the WTO Language Services and Documentation Division, was provided to
the participants and third participants on 19 August 2005.
30Pursuant to Rules 22 and 23(4) of the Working Procedures. A courtesy Spanish translation of the
United States' appellee's submission, prepared by the WTO Language Serv ices and Documentation Division,
was provided to the participants and third participants on 28 September 2005.
31Pursuant to Rule 24(1) of the Working Procedures. Courtesy Spanish translations of China's and the
European Communities' third participant's submissi ons, prepared by the WTO Language Services and
Documentation Division, were provided to the participants and third participants on 28 September 2005.
32Pursuant to Rule 24(4) of the Working Procedures.
33Letter from the Ambassador and Permanent Representative of Mexico to the WTO to the Director of
the Appellate Body Secretariat, dated 4 August 2005. The Working Schedule provided for Mexico to receive
the translated appellee's and third participant's submissions on 30 September 2005, and the oral hearing to
commence on 6 October 2005.
34Ibid.

10. The Appellate Body Division invited the United States and the third participants to comment
on Mexico's request, stating its understanding that the request had been made pursuant to Rule 16(2)
of the Working Procedures.
35 The United States responded that, although it was not clear that the
time period provided for in the Working Schedule w as "manifestly unfair", it "recognize[d] Mexico's
point of view" and therefore would not object to a "slight, further modification" of the Schedule. 36 In
its reply, the Division noted that "[i]n the light of [Mexico's] request", the WTO Language Services
and Documentation Division had informed the Appe llate Body Secretariat that it would provide a
translation of the United States' appellee's submission two days earlier than scheduled, that is, eight
days before the oral hearing. The Division conc luded that, in these circumstances, maintaining the
original Working Schedule "would not prejudice the ability of Mexico to defend its interests" and
therefore declined Mexico's request.37
11. The oral hearing in this appeal was held on 6 and 7 October 2005. The participants and third
participants (with the exception of Turkey) presen ted oral arguments and responded to questions
posed by the Members of the Division hearing the appeal.
II. Arguments of the Participants and the Third Participants
A. Claims of Error by Mexico – Appellant
1. Article 6.2 of the DSU
12. Mexico appeals the Panel's finding that those claims set out in the United States' panel
request, but not indicated in the request for cons ultations, do not fall outside the Panel's terms of
reference.

35Letter from the Acting Director of the Appellate Body Secretariat to the participants and third
participants, dated 8 August 2005. Rule 16(2) of the Working Procedures provides:
In exceptional circumstances, where strict adherence to a time-period set out
in these Rules would result in a manifest unfairness, a party to the dispute, a
participant, a third party or a third participant may request that a division
modify a time-period set out in these Rules for the filing of documents or
the date set out in the working schedule for the oral hearing. Where such a
request is granted by a division, any modification of time shall be notified to
the parties to the dispute, participants, third parties and third participants in a
revised working schedule.
36Letter from the Senior Legal Advisor for the Permanent Mission of the United States to the WTO to
the Acting Director of the Appellate Body Secretariat, dated 10 August 2005. No third participant filed any
comment on Mexico's request.
37Letter from the Acting Director of the Appellate Body Secretariat to the Ambassador and Permanent
Representative of Mexico to the WTO, dated 11 August 2005.

13. Mexico argues that the inclusion in the United States' panel request of WTO legal provisions
that did not form part of the request for consultati ons is inconsistent with Article 6.2 of the DSU.
Pursuant to Article 4.4 of the DSU, the United St ates was required to indicate, in its request for
consultations, the "legal basis" for its complaint, including the provisions with which a measure is
alleged to be inconsistent. Pursuant to Article 6.2 of the DSU, the United States was required not only
to indicate the "legal basis" of its complaint in its pa nel request, but to do so in a manner "sufficient
to present the problem clearly". Thus, according to Mexico, the only difference between the request
for consultations and the panel request is that the latter should contain a brief statement by the
complaining party of the legal basis already identified in the former, in order to "present the problem
clearly". The "legal basis" itself, however, rema ins unchanged from the request for consultations to
the panel request.
14. Mexico submits that its interpretation of Ar ticles 4.4 and 6.2 of the DSU is based on the
customary rules of treaty interpretation codified in Articles 31 and 32 of the Vienna Convention on
the Law of Treaties (the "Vienna Convention").38 Mexico points out that, in the light of Article 31 of
the Vienna Convention, the "ordinary meaning" 39 of the term "legal basis" must be the same in both
Article 4.4 and Article 6.2 of the DSU. Mexico argues that, on the basis of this "ordinary meaning", it
is clear that an increase in the number of allegati ons of inconsistency with WTO provisions cited in
the panel request, compared with the request for consultations, does not alter the "legal" nature of
such allegations, but does alter the "basis" of the complaining party's claims. For example, Mexico
explains that a panel request with claims resting on two articles of the GATT 1994 would not have
the same "basis" as a request founded on seven articles of the GATT 1994. Moreover,
supplementary means of interpretation, as provided for in Article 32 of the Vienna Convention ,
confirm the above interpretation. Mexico points, in particular, to the fact that the requirement of a
"legal basis" in panel requests—existing at the time of the 1988 Montreal Ministerial Conference
during the Uruguay Round—was subsequently included, after the 1990 Brussels Ministerial
Conference, as a requirement of requests for consultations.
15. Mexico states that the Appellate Body has not yet considered the question whether the legal
basis set out in the request for consultations can be expanded in the panel request. However, Mexico
refers to the decision of the Appellate Body, in US – Carbon Steel, that the legal basis of a complaint
cannot be established at a stage later than the pane l request if that basis was not established in the
panel request itself. Mexico opines that the same prin ciple applies at an earlier procedural stage, as in

38Done at Vienna, 23 May 1969, 1155 UNTS 331; 8 International Legal Materials 679.
39Mexico's appellant's submission, para. 14 (" sentido corriente ") (quoting Article 31 of the Vienna
Convention).

the present case, such that the legal basis of a complaint cannot be included in a panel request if it was
not included first in the request for consultations.
16. Alternatively, if the Appellate Body upholds th e finding of the Panel, Mexico alleges that the
legal grounds posited by the United States in its pane l request are not "sufficiently inter-related" to
justify their inclusion in the panel request wit hout having been included in the request for
consultations.
40
17. Consequently, Mexico requests the Appellate Body to reverse the Panel's finding that the
legal provisions alleged in the pane l request to have been violated need not be identical to those
identified in the request for consultations. Mexico further requests the Appellate Body to find that
those claims set out for the first time in the Unite d States' panel request were not properly before the
Panel and, accordingly, to reverse the Panel's findings on those claims.
2. Economía's Injury Determination
(a) The Use of a Period of Investigation Ending in August 1999
18. Mexico appeals the Panel's finding that the use of a period of investigation ending in
August 1999 for purposes of the injury analysis is inc onsistent with Articles 3.1, 3.2, 3.4, and 3.5 of
the Anti-Dumping Agreement.
19. Mexico submits that the Panel's finding re garding the remoteness of the period of
investigation is beyond the terms of reference of th is dispute. The scope of the dispute derives from
the terms of reference and from the panel request s ubmitted by the United States. The claim made by
the United States in its panel request is that Mexico violated Article 5.1 of the Anti-Dumping
Agreement by not examining recent data, because the pur pose of an anti-dumping investigation is to
determine whether dumping is occurring at the present time. Mexico alleges, however, that the Panel
disregarded the United States' claim and "reconstructed" the argument differently. 41 Instead of
considering whether Mexico had violated Article 5.1, the Panel decided, on the basis of other articles
of the Anti-Dumping Agreement , that the purpose of an anti-dumping investigation is to determine
whether dumping is occurring at the present time, a nd that Mexico had examined a period that was
not relevant for this determination, thereby br eaching Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-
Dumping Agreement.

consultas").
41Ibid., para. 39 ("reconstruyó").

20. Mexico contends that, even if the Panel had act ed consistently with the terms of reference
applicable to the dispute, the Panel nevertheless erred because it required that the period of data
collection and the investigation period be the sam e. Mexico agrees with the Panel that the Anti-
Dumping Agreement contains no rule regarding the pe riod to be used for an anti-dumping
investigation, and that the data on which an invest igation is based may relate to an earlier period.
However, Mexico submits that these assertions contra dict the Panel's conclusion that there must be a
real-time connection between the period of investig ation and the period of the collection of data.
Indeed, if such a temporal connection existed, the investigation would have to proceed concurrently
with the collection of related information, in wh ich case there would be no point in collecting data
from an earlier period.
21. Mexico also argues that the Panel mistakenly de termined that the purpose of an anti-dumping
investigation is to offset dumping causing injury at the present time. According to the Panel, the
purpose of an anti-dumping investiga tion is established by the use of verbs in the present tense, as in
the expression "causing injury" in Articles 3.5 and 11.1 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994. In Mexico's opinion , the fact that these Articles contain verbs in the
present tense is not determinative, as several articles of the Anti-Dumping Agreement refer to the
future, without their having to be interpreted in the narrow and literal sense. Furthermore, according
to Mexico, it is not possible to conduct an investig ation without using data from a previous period. It
follows, then, that the expression "causi ng injury" in Article 3.5 of the Anti-Dumping Agreement
must be interpreted in such a manner that it refers to the situation where it can be assumed that, on the
basis of data relating to a previous period, dumpi ng is still causing injury. Lastly, Mexico observes
that, if the purpose of Article 3.1 of the Anti-Dumping Agreement were to counteract dumping
causing injury at the present time, the Article should provide so expressly, which clearly it does not.
22. Thus, Mexico contends that Economía correctly established the investigation period and acted
in a manner consistent with Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement .
Consequently, Mexico requests the Appellate Body to reverse the Panel's findings to the contrary.
(b) The Use of Six-month Periods in the Injury Analysis
23. Mexico appeals the Panel's findings that Mexico acted inconsistently with Articles 3.1 and 3.5
of the Anti-Dumping Agreement because Economía limited its injury analysis to only six months of
the years 1997, 1998, and 1999.
24. Mexico alleges that the Panel's findings of inc onsistency are based on presumptions that have
not been demonstrated and, therefore, are unfounde d. Mexico considers that comparing the periods
March to August of 1997, 1998, and 1999 does not imply that the analysis was not objective and not

based on positive evidence. According to Mexico, the Panel erred because it assumed that, as a rule,
information should be analyzed for full years; th is implies that if any WTO Member conducts an
injury analysis using parts of a year, and compar es them, a presumption arises that its methodology is
not objective, and the Member therefore bears the bur den of proving that its analysis is objective.
Mexico contends that this presumption is flawed, because it amounts to assuming that the Anti-
Dumping Agreement contains obligations with regard to matters not mentioned in the Agreement.
Finally, Mexico argues that, even though it did not have to prove that its methodology was objective,
it submitted arguments to this effect, but the Panel "simply disregarded" them.
42
25. Mexico recalls that Economía conducted the inju ry analysis by comparing the period March
to August 1997 with the corresponding periods in 1998 and 1999. For Mexico, it is incorrect to
assume, as did the Panel, that such comparison show s "the most negative side of the state of the
domestic industry"43, because the indicators for March to August of a particular year are compared
with the indicators for March to August of the other two years, and not with the indicators for
September to February. Mexico s ubmits that using comparable periods for the injury analysis was
proper, because it eliminated any distortions that might have occurred had it examined two different
time periods for the dumping and injury phases of the investigation. Mexico also alleges that the
Panel's position that the period March to August show s "the most negative side of the state of the
domestic industry" relies on an uncertain premise: for Mexico, the percentage by which imports of
long-grain white rice in the March to August peri ods of 1998 and 1999 exceeded imports during the
rest of the year was "practically negligible", whereas, in 1997, imports from the United States were
lower between March and August than during the rest of the year.
44
26. In its reasoning, the Panel expressed the view that there were some similarities between the
situation before it and that discussed by the Appellate Body in US – Hot-Rolled Steel , where certain
parts of the domestic industry were not examined by the investigating authority. 45 Mexico argues that
the Appellate Body Report in US – Hot-Rolled Steel is inapplicable because, in the case at hand,
Economía undertook a comparison of the periods Ma rch to August 1997, 1998, and 1999, and no
information was disregarded in a comparison that involved "structurally equivalent periods".46

43Panel Report, para. 7.85.
44Mexico's appellant's submission, para. 83 ("prácticamente desestimable").
45Panel Report, para. 7.84.
46Mexico's appellant's submission, para. 88(c) ("periodos estructuralmente iguales").

27. Thus, Mexico contends that the use of a si x-month period from 1997, 1998, and 1999 in the
injury analysis was consistent with Articles 3.1 and 3.5 of the Anti-Dumping Agreement , and
accordingly requests the Appellate Body to reverse the Panel's findings to the contrary.
(c) The Examination of the Volume and Price Effects of Dumped
Imports
28. Mexico appeals the Panel's finding that, in its injury analysis, Economía acted inconsistently
with Articles 3.1 and 3.2 of the Anti-Dumping Agreement by failing to conduct an objective
examination, based on positive evidence, of the volume and price effects of dumped imports.
29. Mexico alleges that, contrary to what was st ated by the Panel, Economía properly established
the facts relating to the trends in the volume of du mped imports. For Mexico, this is proved by the
structure of the Final Determination issued by Economía, in which all the background, considerations,
findings, and elements of the determination are set ou t consistent with Mexico's obligations under the
Anti-Dumping Agreement.
30. According to Mexico, the Panel simply su mmarized the final determination made by
Economía, without providing any reasons to substantiate its determina tion that Mexico had violated
the Anti-Dumping Agreement in its examination of the volume of dumped imports. Mexico argues
that the fact that Economía used the methodology described in the final determination implies no
violation of the Anti-Dumping Agreement because that Agreement im poses no specific obligation
with respect to the methodology to be used to determine the volume of dumped imports.
31. Mexico also submits that the Panel's statement that "the investigating authority consistently
chose to make assumptions which negativ ely affected the exporters' interests" 47 is "biased" 48 and not
supported by legal reasoning. According to Mexico, Economía conducted an injury analysis based on
positive evidence because it considered all the available relevant in formation and did not have the
possibility of collecting any further information than that used during the investigation.
32. Thus, Mexico requests the Appellate Body to reverse the Panel's finding that it did not act
consistently with Article s 3.1 and 3.2 of the Anti-Dumping Agreement based on Economía's
examination of the volume of dumped imports and their effect on prices for like products in the
domestic market.

47Panel Report, para. 7.112.
48Mexico's appellant's submission, para. 108 ("de manera parcial").

3. Economía's Dumping Determination

(a) The Application of the Anti-Dumping Order to Farmers Rice and
Riceland
33. Mexico appeals the Panel's finding that Mexico acted inconsistently with Article 5.8 of the
Anti-Dumping Agreement because Economía did not terminate the investigation in respect of the two
exporters that were found not to have been dumpi ng, and by not excluding them from the application
of the anti-dumping duty order.
34. Mexico submits that the Panel's finding is based on an erroneous interpretation of Article 5.8.
Mexico contends that, instead of analyzing the mean ing of the term "investigation", the Panel focused
on the term "margin of dumping" in the second sentence of Article 5.8. The Panel's analysis, Mexico
argues, does not follow the interpretative approach required by the Vienna Convention. According to
Mexico, had the Panel analyzed the term "inv estigation", it would not have inferred from its
interpretation of the term "margin of dumping" that "Article 5.8 of the [ Anti-Dumping Agreement ]
requires the termination of the investigation, a nd thus the exclusion from the anti-dumping order of
any exporter or producer with a below de minimis margin of dumping."49 In Mexico's submission, a
measure may be applied to those exporters; what is not permitted is to apply a positive anti-dumping
duty to them. To this end, Mexico emphasizes that a distinction must be made between the definitive
anti-dumping duties and the particular act of the authority through which the duties are imposed. The
definitive anti-dumping duties do not constitute in th emselves a measure, the measure being the act of
the authority through which the duties are imposed. Mexico contends that the Anti-Dumping
Agreement does not prevent exporters for whom a de minimis margin was determined from being
covered by such a measure.
35. According to Mexico, the main function of anti-dumping procedures is to conduct an
examination with respect to products, not expo rters. This suggests that the scope of the
"investigation" referred to in Article 5.8 specifica lly concerns the product, and not the enterprise
exporting the product. Mexico contends that Artic le 5.8 addresses whether there should be an anti-
dumping procedure where there is not sufficient eviden ce to initiate an investigation. Accordingly,
Mexico submits, Article 5.8 refers to the termin ation of the proceeding as a whole, not to the
termination of the investigation in respect of indivi dual exporters. Mexico also argues that the term
"investigation", as used in Article 5.8, refers to a stage in any anti-dumping proceeding, and not to
action concerning individual exporters.

49Panel Report, para. 7.144.

36. Mexico contends that the Panel "ignore[d]" 50 the context of Article 5.8, in particular,
Article 3.3 of the Anti-Dumping Agreement . According to Mexico, Article 3.3 confirms that the
relevant margin of dumping under Article 5.8 is the margin established in relation to the imports from
each Member. Mexico further argues that the Pa nel's interpretation of Article 5.8 leads "to a
manifestly absurd and unreasonable result" that would make the application of anti-dumping measures
unmanageable.51
37. Mexico also submits that, even if the de minimis margin of dumping had to be calculated for
each individual exporter or producer, Mexico did not act inconsistently with the Anti-Dumping
Agreement because Economía terminated its investig ation when it was satisfied that the United
States' exporters had a dumping margin of zero per cent. According to Mexico, Economía was unable
to determine with certainty whether the dumping margin was de minimis until the final determination
was made. Mexico argues that, because Economía terminated the investigation at that stage in respect
of Farmers Rice and Riceland, it complied with Article 5.8.
38. Consequently, Mexico requests the Appellate Body to reverse the Panel's finding that Mexico
acted inconsistently with Article 5.8 of the Anti-Dumping Agreement in its anti-dumping
investigation.
(b) The Application of a Facts Available-based Dumping Margin to
Producers Rice
39. Mexico appeals the Panel's finding that Mexico act ed inconsistently with Article 6.8, read in
the light of paragraph 7 of Annex II to the Anti-Dumping Agreement, because Economía calculated a
margin of dumping on the basis of the facts availa ble for Producers Rice, an exporter that did not
export long-grain white rice to Mexico during the period of investigation.
40. Mexico alleges that the Panel did not act in acco rdance with the terms of reference applicable
to the dispute, arguing that the United States did not make a claim on the basis of Article 6.8 and
Annex II, but, rather, rested its claim on Article 9.4 of the Anti-Dumping Agreement . Mexico
contends that, as the Panel rejected the United St ates' contention that the margin of dumping should
have been calculated in accordan ce with Article 9.4, the Panel should have found that the United
States' argument was without merit and that, as a resu lt, Mexico did not act inconsistently with the
Anti-Dumping Agreement . For Mexico, the Panel exceeded its terms of reference in moving on to

50Mexico's appellant's submission, para. 126 ("ignor[ó]").

analyze whether Mexico calculated the margin of dumping for Producers Rice in conformity with
Article 6.8 and Annex II.
41. Thus, Mexico requests the Appellate Body to reverse the Panel's finding that Mexico acted
inconsistently with Article 6.8 of the Anti-Dumping Agreement in applying a margin of dumping to
Producers Rice based on the facts available.
(c) The Requirement that Economía Identify Exporters or Producers
Covered by the Investigation
42. Mexico challenges the Panel's findings that Economía's treatment of non-investigated
exporters and producers was inconsistent with Articles 6.1, 6.8, 6.10, and 12.1 of the Anti-Dumping
Agreement, and paragraph 1 of Annex II thereto. Mexico's appeal focuses on the Panel's assessment
that, under these provisions, the "known" producer s or exporters include those of whom an
investigating authority should reasonably be cons idered to have had knowledge, and that an
investigating authority should take steps to find out who are the exporters or producers covered by the
investigation.
43. Mexico argues that, under Article 6.10, the inv estigating authority is obliged to determine
individual margins of dumping for those exporters or producers whose existence has been notified,
but is not obliged to determ ine individual margins for all firms. Mexico submits that Economía
complied with Article 6.10 by calculating individual margins of dumping for all known exporters and
producers that took part in the investigation. As regards the exporters that were not investigated
individually, Mexico contends that Economía met its obligations under the Anti-Dumping Agreement
by giving the United States' authorities public notification of initiation of the investigation, a copy of
the request to initiate an investigation and the annexes thereto, as well as the questionnaire for
exporters and foreign producers. Mexico argues that an investigating authority has no obligation to
take steps to find out who are the exporters or foreign producers. For Mexico, the Panel's reasoning is
flawed because the Panel made an a priori assumption that the diplomatic authorities of the
exporting Member do not have any obligation to ma ke their exporters or producers aware of the
investigation, whereas such obligation is stat ed in footnote 15 to Article 6.1.1 of the Anti-Dumping
Agreement. Mexico adds that it complied with Articles 6.1 and 12.1 of the Anti-Dumping Agreement
because there is no provision in the Anti-Dumping Agreement that requires an investigating authority
to take any action in order to identify each and every one of the foreign producers or exporters.

44. Mexico also contends that, under Article 6.8, Economía was entitled to calculate a margin of
dumping based on the facts available for the export ers and producers that were not investigated,
because it met its obligations under Articles 6.1 and 6. 10, and the exporters and producers that were
not investigated did not provide the necessary information.
45. Consequently, Mexico requests the Appellate Body to reverse the Panel's findings of
inconsistency with Articles 6.1, 6.8, 6.10, and 12.1 of the Anti-Dumping Agreement, and paragraph 1
of Annex II thereto.
4. The Foreign Trade Act
(a) Preliminary Issues
46. Mexico submits that the Panel made two errors with respect to each of the United States' "as
such" claims against the FTA: (i) in ruling on th ese claims notwithstanding the United States' failure
to establish a prima facie case; and (ii) in concluding that each of the challenged FTA provisions
was "mandatory", notwithstanding that Article 2 of the FTA gives Economía discr etion to ensure that
those provisions are interpreted consistently with the WTO agreements.
47. Mexico contends that the Panel ruled on the Un ited States' challenges to provisions of the
FTA where the United States had failed to make a prima facie case of inconsistency with respect to
any of the challenged provisions. According to Mexico, the United States' submission of the texts of
the relevant provisions was insufficient to make a prima facie case, because the United States was
required, by virtue of the Appellate Body decision in US – Carbon Steel , to also submit evidence
relating to the operation of the FTA provisions. Mexico submits that such evidence might have
included application of the law by executive branch officials, interpretation by domestic courts, or
opinions of legal experts. In the absence of such evidence, Mexico argues, the Panel made the case of
WTO-inconsistency for the United States with respect to the challenged provisions of the FTA.
48. Mexico alleges that the United States' claims w ith regard to the contested provisions of the
FTA rest on the assertion that those provisions require the investigating authority to act in a manner
inconsistent with the provisions of the Anti-Dumping Agreement and the SCM Agreement.
Consequently, the Panel's task, according to Mexico , was to ascertain whether those provisions of the
FTA are in fact mandatory, and, if so, whether th is results in an inconsistency with Mexico's
obligations under the WTO agreements. Mexico c ontends that, if the Panel had found that the
provisions challenged by the United States are not mandatory, the Panel would necessarily have found
the United States' claims to be without merit.

49. Mexico alleges that the Panel erred in its findings with regard to the FTA because it
"disregarded"
52 Mexico's arguments concerning the rele vance of Article 2 of the FTA, which
establishes that provisions of the FTA may not be applied in a manner inconsistent with the provisions
of international treaties or agreements entered into by Mexico. In the light of Article 2, Mexico
submits that the provisions of the FTA do not mandate that the investigating authority act in a
particular way, but, instead, give it discretion to act in a manner consistent with the WTO agreements.
Had the Panel properly considered Mexico's arguments relating to Article 2, Mexico argues, the Panel
would have concluded that the challenged FTA provisions are "discretionary" rather than "mandatory"
and, consequently, that they are not inconsistent with the Anti-Dumping Agreement or the SCM
Agreement.
50. In the light of the above, Mexico requests the A ppellate Body to find that the Panel erred in
making findings on claims in the absence of a prima facie case, and in "disregarding" Mexico's
arguments relating to Article 2 of the FTA. Con sequently, Mexico further requests the Appellate
Body to reverse the Panel's findings with respect to the challenged provisions of the FTA.
(b) Article 53
51. Mexico contends that the Panel erred in fi nding that the 30-day period for responding to
questionnaires—provided for in Article 6.1.1 of the Anti-Dumping Agreement and Article 12.1.1 of
the SCM Agreement —is to be granted to all exporters without exception. According to Mexico,
these provisions contain no such obligation; this time period applies only to those that have received
the corresponding questionnaire from the investigating authority, that is, only to exporters to whom
the questionnaire has been sent. In this respect, Mexico argues that it would be "illogical" 53 to grant
the above-mentioned period whenever an exporter or foreign producer not previously known to the
investigating authority comes forward, because doing so would undoubtedly cause delays in the
investigation proceedings beyond the time-limits prescribed by Article 5.10 of the Anti-Dumping
Agreement and Article 11.11 of the SCM Agreement.
52. Consequently, Mexico requests the Appellate Body to reverse the Panel's finding that
Article 53 of the FTA is inconsistent, as such, with Article 6.1.1 of the Anti-Dumping Agreement and
Article 12.1.1 of the SCM Agreement.

52Mexico's appellant's submission, para. 195(d) ("desestimó").
53Ibid., para. 230 ("ilógico").

(c) Article 64
53. Mexico appeals the Panel's finding that Article 64 of the FTA is inconsistent, as such, with
Article 6.8 of the Anti-Dumping Agreement , paragraphs 1, 3, 5, and 7 of Annex II thereto, and
Article 12.7 of the SCM Agreement.
54. Mexico argues that Article 6.8 of the Anti-Dumping Agreement and Article 12.7 of the SCM
Agreement permit an investigating authority to calcu late margins of dumping or subsidization for
parties that do not supply the n ecessary information. According to Me xico, if an interested party did
not appear in the investigation or did not export during the period of investigation, this means that the
exporter in question did not provide the informa tion necessary for determining whether there is a
margin of dumping or subsidization. Viewed in this light, Mexico argues, Article 64 is not WTO-
inconsistent because it provides for margins to be cal culated on the basis of the facts available where
interested parties do not provide the necessary informa tion, including where interested parties do not
appear in the investigation or do not export during the investigation period.
55. Mexico argues that Article 64 is consistent with paragraph 3 of Annex II to the Anti-
Dumping Agreement inasmuch as that paragraph establish es the obligation to take into account all
verifiable information. If an exporter does not pr ovide the necessary inform ation, however, there is
no verifiable information to be taken into account, an d, thus, recourse to facts available in the absence
of such information is not inconsistent with the stated obligation.
56. Mexico argues that Article 64 is consistent with paragraph 5 of Annex II to the Anti-
Dumping Agreement inasmuch as that paragraph provides th at the investigating authority shall not
disregard information provided by the exporter, even if that information is not ideal in all respects.
According to Mexico, paragraph 5 indicates that, in order for such information to be considered, it
must be ideal in at least one respect. Mexico contends that if an exporter does not provide the
information needed to determine its dumping margin, the information cannot be said to be ideal in at
least one respect, because the information is "totally lacking".54
57. Mexico further argues that Article 64 is consiste nt with paragraphs 1 and 7 of Annex II to the
Anti-Dumping Agreement. Mexico submits that paragraph 1 provides that, if the interested party does
not supply the information required, the investigati ng authority shall be free to make determinations
on the basis of the facts available, including th ose contained in the petition. Moreover, Mexico
argues, paragraph 7 explicitly provides that, if an interested party does not cooperate and fails to
submit relevant information, this could lead to a result that is less favourable to the interested party

54Mexico's appellant's submission, para. 243(b) ("la inexistencia absoluta de información").

than if it had cooperated. Mexico contends that , as paragraph 7 expressly provides that there may be
such a less-favourable result, there is no basis to reject the option of applying the highest margin
calculated, as in Article 64, because this result would fall under the category of less-favourable results
that may be applied to an exporter or foreign producer that does not cooperate. Therefore, in Mexico's
submission, paragraphs 1 and 7 of Annex II specifically contemplate the use of facts available as
provided for in Article 64.
(d) Article 68
58. Mexico argues that the Panel erred in determ ining that, even though Article 5.8 of the Anti-
Dumping Agreement does not apply to reviews, Article 68 of the FTA is inconsistent with it because
the logical consequence of its exclusion is that fo reign producers or exporters may not be subject to
review. Mexico submits that the scope of Article 5.8 of the Anti-Dumping Agreement and
Article 11.9 of the SCM Agreement is limited to the original investigation: once the investigation
has ended, Article 5.8 ceases to apply. Because Arti cle 68 applies solely to events subsequent to the
investigation—that is, to reviews—the provision bears no relation to the above-mentioned Articles
and thus cannot properly be found to be inconsistent with them.
59. Mexico also contends that Article 5.8 of the Anti-Dumping Agreement and Article 11.9 of
the SCM Agreement make a clear reference to the moment at which an investigation should be
terminated if the margin of dumping is de minimis, namely, the moment at which the investigating
authority determines that the said margin of dumping is de minimis. In this respect, Mexico explains
that Economía is unable to determine with cer tainty whether the margin of dumping is de minimis
until the final determination of the investigation. According to Mexico, Article 68 does not prevent
Economía from terminating the investigation when it is sure of the amount of the dumping margin,
that is, when it makes a final determination in the investigation concerned. Thus, Mexico argues, in
the case of exporters for whom a below- de minimis duty has been established in the final
determination, the investigation is properly termin ated at that time, consistent with the relevant
provisions of the Anti-Dumping Agreement and the SCM Agreement.
60. In addition, Mexico alleges that the Panel erred in finding that definitive measures may not be
applied to exporters for whom a de minimis margin of dumping or subsidization has been
determined. According to Mexico, duties are not a measure as such, the measure being the action by
the authority through which the duties are applied. Investigating authorities may therefore apply
definitive measures to those exporters provided th at they do not impose a positive anti-dumping or
countervailing duty on them. Indeed, this is consistent with the pr actice of Mexico, where exporters
are included in the definitive measure—which estab lishes firms' dumping margins—but this does not

imply that, if their margins are de minimis, an anti-dumping or countervailing duty will, in fact, be
imposed on them.
61. With regard to the element of "representativen ess" provided for in Article 68, Mexico asserts
that there are no treaty provisions prohibiting the showing of a "representative" volume of export sales
as a prerequisite to the calculation of a margin in reviews. According to Mexico, the only obligation
laid down by Articles 9.3 and 11.2 of the Anti-Dumping Agreement and Article 21.2 of the SCM
Agreement is that the reviews be initiated by the investigating authority upon request of certain
interested parties. The text contains no guidelines, however, on how the reviews are to be conducted.
As Article 68 does not preclude the mandated intitiation of reviews, Mexico submits, it is not
inconsistent with the aforementioned treaty provisions.
62. Consequently, Mexico requests the Appellate Body to reverse the Panel's finding that
Article 68 of the FTA is inconsistent, as such, with Articles 5.8, 9.3, and 11.2 of the Anti-Dumping
Agreement, and Articles 11.9 and 21.2 of the SCM Agreement.
(e) Article 89D
63. In Mexico's view, the texts of Article 9.5 of the Anti-Dumping Agreement and Article 19.3
of the SCM Agreement contain no prohibition on an agency requiring that exporters demonstrate a
"representative" volume of export sales in order to r eceive a calculated margin in a review. In the
absence of such a prohibition, Mexico argues, it must be considered that th e negotiators of those
Agreements intended to permit agencies to impose su ch requirements. As a result, Mexico submits,
Article 89D of the FTA is not inconsistent with Mexico's obligations under the Anti-Dumping
Agreement and the SCM Agreement.
64. Consequently, Mexico requests the Appellate Body to reverse the Panel's finding that
Article 89D of the FTA is inconsistent, as such, with Article 9.5 of the Anti-Dumping Agreement and
Article 19.3 of the SCM Agreement.
(f) Article 93V
65. Mexico argues that the Panel failed to comply with its obligations under Article 11 of the
DSU in finding that Article 93V of the FTA is in consistent, as such, with Article 18.1 of the Anti-
Dumping Agreement and Article 32.1 of the SCM Agreement.
66. Mexico submits that the specific measure that is the subject of the United States' complaint is
the Spanish text of the FTA, in this case, of Article 93V. The Panel, however, based its finding
exclusively on an English translation of the contested measu re, which does not reflect precisely the

meaning of the Spanish text of the article in questi on. Specifically, Mexico contends that the Panel's
reliance on the English translation led it to conclude—incorrectly—that Article 93V mandates the
imposition of fines in certain circumstances.
67. Mexico also alleges that the Panel failed to an alyze those additional elements of Article 93V
that indicate clearly that the provision is not mandatory. According to Mexico, Article 93V expressly
provides that fines shall be imposed only when Econom ía itself considers that the remedial effect of
anti-dumping or countervailing duties is being undermined ; and, even if Economía considers this to
be the case, it is required to hear the arguments of the alleged offender and it may then conclude that
the impact of the anti-dumping or countervailing dut ies has not been affected, in which case no fine
would be imposed. Thus, Mexico argues, it is "illogical"
55 to assume, as the Panel did, that Economía
has no discretion to impose a fine.
68. Accordingly, Mexico requests the Appellate Body to find that the Panel failed to comply with
its obligations under Article 11 of the DSU and to re verse the Panel's finding that Article 93V of the
FTA is inconsistent, as such, with Article 18.1 of the Anti-Dumping Agreement and Article 32.1 of
the SCM Agreement.
(g) Articles 68 and 97
69. Mexico argues that nothing in Article 68 of the FTA bears any relation to the prohibition
alleged by the United States against the conduct of reviews while judicial proceedings are ongoing.
Similarly, with respect to Article 97of the FTA, Mexico alleges that the provision does not prevent
Economía from undertaking reviews as required by the Anti-Dumping Agreement and the SCM
Agreement. According to Mexico, because neither of the challenged provisions contains the
prohibition alleged by the United States, the Panel should have found that the United States had not
made a prima facie case of inconsistency with respect to either Article 68 or Article 97.
70. Mexico further argues that Articles 68 and 97 of the FTA are consistent with Articles 9.3
and 11.2 of the Anti-Dumping Agreement and Article 21.2 of the SCM Agreement , because those
provisions require that reviews be gran ted upon request only once a duty becomes definitive. The
Panel understood these provisions of the Agreements to require reviews once duties have been
imposed by a final determination following an investig ation. Mexico submits that this interpretation
is in error, however, because duties become definitive only upon the conclusion of judicial
proceedings. Mexico contends that this ensures le gal certainty for exporters, who are not required to
pay the duties until the exporter has had an opportunity to exhaust its appeals of the definitive

55Mexico's appellant's submission, para. 283(c) ("ilógico").

measure and the final liability of the exporter is th ereby established. Because duties are not definitive
before that point, and Articles 68 and 97 do not prevent reviews once judicial proceedings have
concluded, Articles 68 and 97 are not inconsiste nt with Mexico's obligations under the Anti-Dumping
Agreement or the SCM Agreement.
71. Consequently, Mexico requests the Appellate Body to reverse the Panel's finding that
Articles 68 and 97 of the FTA are inconsistent, as such, with Articles 9.3 and 11.2 of the Anti-
Dumping Agreement and Article 21.2 of the SCM Agreement.
B. Arguments of the United States – Appellee
1. Article 6.2 of the DSU
72. The United States alleges that Mexico "mischaracterizes" the Panel's finding under Article 6.2
of the DSU because the Panel made no findings on wh ether it was consistent with Article 6.2 of the
DSU to include claims in a panel request that were not included in the request for consultations.
According to the United States, Mexico never made such an allegation, but argued instead that it was
inconsistent with Articles 4.5 and 4.7 of the DSU to include claims for the first time in the panel
request. Nevertheless, the United States submits, even if Mexico had made that argument, the Panel
would have rejected it based on th e same reasoning the Panel applied in rejecting Mexico's arguments
under Article 4 of the DSU.
73. The United States argues that it is well established that a panel's terms of reference are
established by the panel request, not by the request for consultations. The United States opines that
"it would make little sense" to limit the legal claims that may be included in a panel request to those
included in the request for consultations, because one of the purposes of consultations is to foster a
better understanding of the relevant measures and c oncerns of the various Members in order to
promote a "satisfactory adjustment of the matter".56 The United States further notes that the Appellate
Body found, in Brazil – Aircraft , that there is no requirement to have a "precise and exact identity"
between the measures included in the request for consultati ons and those in the panel request and,
thus, the same logic would apply with respect to the legal basis of the complaint.57
74. The United States submits that the DSU reflec ts the difference between panel requests and
requests for consultations by providing different requirements for each. According to the United
States, although the DSU requires that a panel request provide " a brief summary of the legal basis of

the complaint sufficient to present the problem clearly"
58, it requires that requests for consultations
provide only " an indication of the legal basis for the complaint". 59 Finally, the United States
contends that Mexico's practice in WTO dispute settlement proceedings indicates that it does not
believe its own arguments on this issue.
75. The United States requests the Appellate Body to uphold the Panel's finding that the United
States' claims set out in the panel request, includ ing those not initially raised in the request for
consultations, were properly within its terms of reference.
2. Economía's Injury Determination
(a) The Use of a Period of Investigation Ending in August 1999
76. The United States contends that Mexico's arguments on appeal regarding the use of a period
of investigation ending in August 1999 provide "no basis" for reversing the Panel's finding on this
issue.60 According to the United States, Mexico's argument—that the United States' claim on this
issue was premised on an inconsis tency with Article 5.1 of the Anti-Dumping Agreement—is a
"transparently incorrect assertion". 61 The United States argues that its panel request refutes this
argument, because it contains no allegation of inconsistency with Article 5.1 of the Anti-Dumping
Agreement.
77. In addition, the United States disagrees with Mexico's argument that, because the Anti-
Dumping Agreement does not so state explicitly, it may not be concluded that the purpose of an anti-
dumping investigation is to offset dumping that is cau sing injury at the time of the investigation. The
United States submits that Mexico fails to account for the language in Article VI of the GATT 1994
providing that anti-dumping duties may be imposed "to offset or prevent" dumping. Mexico also
"disregard[s]" other textual evidence referred to by the Panel in reaching its conclusions, including the
use of the present tense in the relevant provisions.
62
78. As regards Mexico's assertion that the Panel failed to analyze the "applicability" 63 of the data
used by Economía, the United States argues that the Panel, in fact, did so and that Mexico ignores a
series of the Panel's factual findings that support th e Panel's conclusion that Economía failed to make

58Article 6.2 of the DSU. (emphasis added)
59Article 4.4 of the DSU. (emphasis added)
61Ibid.
62Ibid., para. 47.

a determination of injury based on positive evidence and involving an objective examination. Finally,
with respect to Mexico's argument that the Pa nel should have found that its interpretation was
"permissible" under Article 17.6(ii) of the Anti-Dumping Agreement , the United States maintains
that it is not clear how Mexico's interpretation differs from the Panel's interpretation of the anti-
dumping provisions at issue.
79. Consequently, the United States requests the Appellate Body to uphold the Panel's finding
that Mexico acted inconsistently with Ar ticles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement
because Economía based its injury determination on a period of investigation that ended more than
15 months before the initiation of the investigation.
(b) The Use of Six-Month Periods in the Injury Analysis
80. The United States agrees with the Panel's findi ng that Economía's decision to "ignore" half
the injury data for each of the years in the period of investigation was inconsistent with Articles 3.1
and 3.5 of the Anti-Dumping Agreement.64 According to the United St ates, Mexico's arguments on
this issue "mischaracterize" the Panel's legal findings, "disregard" its factual findings, and provide "no
basis" for reversing the Panel's conclusions. 65 The United States observes that, whereas Economía
established a three-year period of investigation and collected data for the entirety of that period, it
disregarded half the data it had collected. The United States submits that it established a prima facie
case that Economía's approach was inconsistent with Articles 3.1 and 3.5 of the Anti-Dumping
Agreement, and that Mexico failed to provide a convin cing and valid reason explaining its approach
and thereby rebutting the prima facie case.
81. The United States underscores that the Panel b ased its findings on Economía's own published
determinations. It adds that, as factual findings, these points are not within the scope of appellate
review. According to the United States, the Appellate Body should also reject the table submitted in
paragraph 83 of Mexico's appellant's submission, because there is no uncontroverted basis to conclude
that the data in Mexico's table accurately reflect the true level of imports of long-grain white rice
during the three-year period of investigation regarding injury.
82. In the light of the above, the United States requ ests the Appellate Body to uphold the Panel's
finding that Mexico acted inconsistently with Articles 3.1 and 3.5 of the Anti-Dumping Agreement
by limiting its injury analysis to only six months of the years 1997, 1998, and 1999.

65Ibid., para. 55.

(c) The Examination of the Volume and Price Effects of Dumped
Imports
83. According to the United States, the Panel co rrectly concluded as a matter of fact that
Economía based its determination of import volumes and price effects on assumptions instead of
facts. The United States adds that the Panel explai ned at length why it so concluded and, therefore,
why Economía's analysis was inconsistent w ith the requirements of Article 3 of the Anti-Dumping
Agreement. The United States emphasizes that an inves tigating authority's ability to devise its own
methodology for determining injury does not mean th at the investigating authority is free to use a
methodology that results in an investigation that is not objective and based on positive evidence.
84. As regards Mexico's claim that the Panel's an alysis was "biased", the United States points out
that Mexico has made no claims under Article 11 of the DSU and, therefore, this claim should be
rejected.
66 Finally, the United States disagrees with Me xico's assertion that it was not possible for
Economía to collect additional information. Acco rding to the United States, Economía could have
gathered more accurate information if it had sen t its anti-dumping questionnaire to a greater number
of exporters and if it had referred to the pedimentos ("customs declarations").
85. The United States requests the Appellate Body to uphold the Panel's finding that Mexico
acted inconsistently with Articles 3.1 and 3.2 of the Anti-Dumping Agreement by failing to conduct
an objective examination based on positive eviden ce of the volume and price effects of dumped
imports as part of its injury analysis.
3. Economía's Dumping Determination
(a) The Application of the Anti-Dumping Order to Farmers Rice and
Riceland
86. The United States agrees with the Panel that the term "margin of dumping" in the second and
third sentences of Article 5.8 refers to the individual margin of dumping of an exporter or producer,
rather than a country-wide margin. According to the United States, further support for the Panel's
finding can be found in the third sentence of Artic le 5.8, because the term "export price" mentioned
therein is inherently firm-specific, not country-wide.
87. For the United States, none of Mexico's argumen ts provides a basis for reversing the Panel's
finding that Mexico acted inconsiste ntly with Article 5.8 of the Anti-Dumping Agreement . The
United States argues that Mexico failed to explai n why it believes the Pane l would have reached a
different conclusion had it examined the meaning of the term "investigation" and the phrase "shall be

terminated promptly". The United States also argu es that Mexico's attempt to distinguish between the
imposition of a measure and the levying of duties is incorrect, because such distinction would imply
that an anti-dumping measure might be imposed in cases where all of the margins are below
de minimis, or where the investigating authority reaches a negative determination of injury (as long as
no duties are collected).
88. According to the United States, neither Article 5.8 nor Article 1 of the Anti-Dumping
Agreement can be construed to permit Members to in clude in the scope of an anti-dumping measure
an exporter or producer that is investigated and found not to be dumping, because in such
circumstances the exported products cannot be found to be dumped imports that are causing injury to
the domestic industry. Furthermore, the United States considers that Article 3.3 of the Anti-Dumping
Agreement, to which Mexico refers, is an injury prov ision that has nothing to do with the dumping
determination. In any event, the United States submits, Article 3.3 shows that when the drafters
intended for a particular calculation to be done on a country-wide basis, they said so explicitly.
89. The United States contends that an investiga ting authority can conduct a single investigation
of multiple firms, and then terminate its investigatio n with respect to specific firms, by stating in its
final determination that it will exclude from the meas ure those firms that were investigated and found
not to be dumping. Accordingly, the United States argues, Mexico is wrong in stating that the Panel's
interpretation would lead to a manifestly absurd and unreasonable result. Finally, the United States
submits that Mexico's argument—that Economía acted consistently with Article 5.8 because it
terminated the investigation with respect to Fa rmers Rice and Riceland as soon as it had concluded
they had zero margins—is not credible, because Economía applied the anti-dumping measure to both
firms.
90. Accordingly, the United States requests the Appella te Body to uphold the Panel's finding that
Mexico acted inconsistently with Article 5.8 of the Anti-Dumping Agreement by not terminating the
investigation with respect to Farmers Rice and Riceland and by not excluding them from the
application of the definitive anti-dumping measur e, notwithstanding that Economía found that
Farmers Rice and Riceland were not dumping.
(b) The Application of a Facts Available-based Dumping Margin to
Producers Rice
91. The United States submits that Mexico mak es the "perplexing" assertion that the United
States never claimed that the facts available-based anti-dumping margin was inconsistent with
Mexico's WTO obligations, and that the Panel, ther efore, exceeded its terms of reference in so

deciding.
67 The United States underscores that it specifically cited paragraph 7 of Annex II to the
Anti-Dumping Agreement in the panel request, and explained in its submissions to the Panel why it
considered that the margin of dumping applied to Producers Rice was inconsistent with paragraph 7 of
Annex II.
92. Accordingly, the United States requests the Appella te Body to uphold the Panel's finding that
Mexico acted inconsistently with Article 6.8 of the Anti-Dumping Agreement and paragraph 7 of
Annex II thereto in its application of a facts available-based dumping margin to Producers Rice.
(c) The Requirement that Economía Identify Exporters or Producers
Covered by the Investigation
93. The United States agrees with the Panel's analys is of the scope of Article 6.10 of the Anti-
Dumping Agreement. According to the United States, the Pa nel correctly found that Economía acted
inconsistently with Article 6.10 "by 'remaining entir ely passive in the identification of exporters or
producers interested in the investigation, and by not calculating an individual margin of dumping for
each exporter or producer that was known or should reasonably have been known' to it."68 The United
States adds that, contrary to what Mexico suggests, the Panel did not find that Article 6.10 requires an
investigating authority to identify and calculate an individual margin of dumping for every exporter
or producer of the subject merchandise.
94. The United States also agrees with the Panel's conclusion that an investigating authority
cannot apply the facts available to a particular e xporter or producer without first sending the exporter
or producer a copy of its questionnaire and asking it to reply. For the United States, Mexico's
approach is wrong, because it focuses solely on the text of Article 6.8 and does not take into account
other provisions of the Anti-Dumping Agreement, such as Article 6.1 a nd paragraph 1 of Annex II
thereto. The United States submits that Economía fail ed to provide to all of the interested parties in
the investigation the notice required by Article 6. 1 and, consequently, contrary to what Mexico
suggests, Economía did not act consistently with Article 6.1.3. Accordingly, the United States argues,
Economía could not apply a facts available-based ma rgin to the exporters or producers for whom it
did not meet its obligations under Article 6.1.
95. According to the United States, there is no textua l basis for Mexico's argument that it was the
United States Government, and not Economía, that had an obligation to identify and notify the
exporters and producers that Economía was purporting to investigate. The United States adds that
footnote 15 to Article 6.1.1 of the Anti-Dumping Agreement does not create an independent

obligation for the exporting government to iden tify exporters and producers covered by the
investigation. Finally, the United States submits that the Panel properly found that Economía acted
inconsistently with Article 12.1 of the Anti-Dumping Agreement by failing to provide notice that it
had initiated an investigation to each of the inter ested parties known to have an interest in the
investigation.
96. The United States, therefore, requests the Appella te Body to uphold the Panel's finding that
Mexico acted inconsistently with Articles 6.1, 6.8, 6.10, and 12.1 of the Anti-Dumping Agreement
and paragraph 1 of Annex II thereto in its applica tion of a facts available-based dumping margin to
the United States producers and exporters that it did not investigate.
4. The Foreign Trade Act
(a) Preliminary Issues
97. The United States submits that, although Mexico argues that the Panel failed to address
Mexico's arguments concerning Article 2 of the FTA, Mexico concedes in its appellant's submission
that the Panel did, in fact, address them. Furt hermore, according to the United States, Mexico
emphasized before the Panel that each of the ac tions required by the cha llenged FTA provisions was
consistent with Mexico's WTO obligations. In this respect, the United States argues, Mexico fails to
explain how Article 2 could "override the clear re quirements" of the challenged provisions, when
Mexico sees no conflict between the provisions and its WTO obligations.69
98. The United States, therefore, requests the Appella te Body to uphold the Panel's finding that
Article 2 of the FTA does not prevent the Panel from finding that other FTA provisions are
inconsistent, "as such", with Mexico's WTO obligations.
(b) Article 53
99. According to the United States, the disagreement between the parties regarding Article 53 of
the FTA centred not on the meaning of Article 53, but on the proper interpretation of Article 6.1.1 of
the Anti-Dumping Agreement and Article 12.1.1 of the SCM Agreement. The United States agrees
with the Panel that, pursuant to the plain language of these treaty provisions, an exporter is entitled to
a 30-day response time regardless of when it receives the questionnaire. Mexico's interpretation—that
these provisions require a 30-day response time only when an authority sends the questionnaire to an
interested party at the time of initiation of the investigation—can be supported only by reading words
into the provisions that are not there.

100. In addition, the United States contends that, contrary to Mexico's assertion, the panel report in
Argentina – Poultry Anti-Dumping Duties does not support Mexico's interpretation of the treaty.
According to the United States, Mexico is "taking the Argentina – Poultry Anti-Dumping Duties
language out of context and ignor ing other language in that repor t which undermines its own position
and plainly supports" the Panel's findings.
70
101. Consequently, the United States requests the Appellate Body to uphold the Panel's finding
that Article 53 of the FTA is inconsistent, as such, with Article 6.1.1 of the Anti-Dumping Agreement
and Article 12.1.1 of the SCM Agreement.
(c) Article 64
102. The United States contests Mexico's argument th at the Panel should have found Article 64 of
the FTA consistent with para graph 3 of Annex II to the Anti-Dumping Agreement because that
paragraph requires investigating authorities to take info rmation into account only if it is "verifiable".
The United States submits that Article 64 requires Economía to apply the highest facts available-
based margin to firms that did not appear in the investigation or did not export the subject
merchandise during the period of investigation. T hus, according to the United States, even if these
firms submit "verifiable" information, Economía ma y not take it into account unless it results in the
highest facts available-based margin. The United States argues that the failure to take such
information into account, without regard to the eff ect it might have on the ultimate margin, renders
Article 64 inconsistent with paragraph 3 of Annex II.
103. In addition, the United States disagrees with Me xico's argument that the Panel should have
found Article 64 consistent with pa ragraph 5 of Annex II to the Anti-Dumping Agreement because
that paragraph entitles an investigating authority to re ject information that is not ideal in at least one
respect. The United States submits that paragraph 5 does not authorize an investigating authority to
disregard such information if the interested party that submitted it acted to the best of its ability. By
requiring Economía to apply always the highest fa cts available-based marg in, Article 64 prevents
Economía from considering whether a party has acted to the best of its ability. Therefore, the United
States argues that Article 64 is inconsistent with paragraph 5 of Annex II.
104. The United States further contends that the Pa nel correctly determined that Article 64 is
inconsistent with paragraphs 1 and 7 of Annex II to the Anti-Dumping Agreement. The United States
asserts that paragraph 1 requires the investigating aut hority to specify the information required and to

70United States' appellee's submission, para. 127 (referring to Mexico's appellant's submission,
paras. 229 and 233(b), in turn quoting Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.145).

ensure that the interested party is aware that th e investigating authority may make a determination
based on the facts available if the party fails to supply the requested data. Article 64, however,
requires Economía to apply the highest fact available-based margin in all cases, even if the authority
fails to provide the notice required by paragraph 1 of Annex II. Regarding paragraph 7 of Annex II,
the United States argues that it permits an investigating authority to base its findings on secondary
sources—such as the petition—provided that the i nvestigating authority does so "with special
circumspection", including by checking other, indepe ndent sources. According to the United States,
Article 64 is inconsistent with paragraph 7 of Annex II because it requires Economía to apply the
highest facts available-based margin in all cases, thereby preventing Economía from exercising
special circumspection.
105. In view of the above, the United States requ ests the Appellate Body to uphold the Panel's
finding that Article 64 of the FTA is incons istent, as such, with Article 6.8 of the Anti-Dumping
Agreement and paragraphs 1, 3, 5, and 7 of Annex II thereto, and Article 12.7 of the SCM
Agreement.
(d) Article 68
106. The United States contends that the Panel co rrectly found that Article 68 of the FTA is
inconsistent, as such, with Article 5.8 of the Anti-Dumping Agreement and Article 11.9 of the
SCM Agreement because it requires Economía to conduct re views of exporters and producers that
were investigated and found not to be dumping or receiving countervailable subsidies. According to
the United States, Mexico's arguments in response to the Panel's findings are similar to the arguments
it raised above with respect to Farmers Rice and Riceland
71, and are "similarly without merit".72
107. The United States argues that, contrary to Mexico's assertion, the Panel addressed—and
rejected—Mexico's argument that Article 5.8 of the Anti-Dumping Agreement cannot be the basis for
a finding of inconsistency with respect to Article 68 of the FTA because Article 5.8 applies only to
investigations. As the Panel correctly found, if Article 5.8 requires an investigating authority to
exclude a particular exporter from an anti-dumping measu re imposed at the end of an investigation, it
necessarily follows that the investigating authorit y cannot subsequently subject that exporter to a
review under the very measure from which it should have been excluded in the first instance. The
United States further argues that Article 17.4 of the Anti-Dumping Agreement is irrelevant to this
issue, and that taking Mexico's argument on this prov ision to its "logical conclusion" would permit an
investigating authority to impose an anti-dumping measure on exporters in cases where all of the

71See supra, paras. 89-90.

margins are below de minimis, or where the investigating author ity reaches a negative determination
of injury, so long as no duties are collected.
73
108. With respect to Articles 9.3 and 11.2 of the Anti-Dumping Agreement and Article 21.2 of the
SCM Agreement , the United States submits that the Panel correctly found that none of these WTO
provisions permits an investigating authority to re quire an exporter to demonstrate, as a condition for
obtaining a review, that its sales during the review period were "representative". According to the
United States, the "primary basis" of Mexico's appe al of the Panel's finding is a "mischaracterization"
of the relevant provisions of the Anti-Dumping Agreement and the SCM Agreement.74 The United
States submits that Mexico's argument—that the provi sions at issue require the investigating authority
to initiate reviews, but do not contain any obligation with respect to the conduct of those reviews—
"elevate[s] form over substance", because refusing to complete a review of a firm that does not
demonstrate a "representative" volume of sales is tantamount to refusing to initiate the review. 75
Furthermore, none of these provisions permits a Me mber to condition the conduct of a review on a
showing of a "representative" volume of sales, and none limits the obligations contained therein to the
 initiation of a review. Therefore, the United States ar gues, an investigating authority cannot meet its
obligation to "review" the need for the duty mere ly by initiating the review and then refusing to
determine a re-calculated margin.
109. In addition, the United States contends that Me xico "misunderstands" the interaction between
the customary rules of treaty interpreta tion and the requirements of Article 68. 76 Although Mexico
correctly notes that the fact that a treaty provisio n is silent on a specific issue must have some
meaning, Mexico fails to recognize that the WTO provisions at issue are not silent but, instead, "quite
explicit" with respect to the limited requirements that an exporter or producer must meet in order to be
entitled to reviews.
77
110. Accordingly, the United States requests the Appellate Body to uphold the Panel's findings that
Article 68 of the FTA is inconsistent, as such, with Articles 5.8, 9.3, and 11.2 of the Anti-Dumping
Agreement, and Articles 11.9 and 21.2 of the SCM Agreement.

74Ibid., para. 152.
75Ibid.
76Ibid., para. 155.
77Ibid.

(e) Article 89D
111. According to the United States, the issue with r espect to Article 89D of the FTA is virtually
identical to that in relation to Article 68 of the FTA. 78 The United States submits that Mexico again
"misunderstand[s]" the interaction between the cust omary rules of treaty interpretation and the FTA
provision at issue.79 According to the United States, and contrary to Mexico's assertion, Article 9.5 of
the Anti-Dumping Agreement and Article 19.3 of the SCM Agreement are not silent with respect to
the requirements that an exporter or producer must meet in order to be entitled to an expedited review.
Therefore, the United States submits, the Panel correctly found that these provisions do not permit an
investigating authority to deny expedited reviews to exporters and producers that do not demonstrate a
"representative" volume of exports during the review period.80
112. The United States accordingly requests the Appella te Body to uphold the Panel's finding that
Article 89D of the FTA is inconsistent, as such, with Article 9.5 of the Anti-Dumping Agreement and
Article 19.3 of the SCM Agreement.
(f) Article 93V
113. The United States contends that, although Mexico does not contest directly the Panel's
conclusion that Article 93V of the FTA is a specif ic action against dumping or subsidization, Mexico
asserts that the Panel failed to comply with its obligations under Article 11 of the DSU because it
analyzed neither the Spanish version of Article 93V nor those parts of the provision that allegedly
show that it is discretionary. The United States submits that "[n]either assertion has merit".81
114. According to the United States, Mexico's argument that the Panel based its findings
exclusively on the English version of Article 93V is "belied" by the fact that the English version of
the Panel Report addresses both the Spanish text of Article 93V and its English translation. 82 T h e
United States further argues that the United States submitted the English translation of Article 93V
drawn from Mexico's WTO notifications and that Mexico did not contest the accuracy of the

78See supra, paras. 109-110.
81Ibid., para. 164.
82Ibid. (referring to Panel Report (in English and Spanish), para. 7.279 and footnote 229 thereto).

translation before the Panel.
83 The United States submits that Mexico has not explained how it would
be inconsistent with Article 11 of the DSU for the Panel to examine the English version of Mexico's
own WTO notification when Mexico never contested it.
115. The United States contends that Mexico's alle gation that the Panel failed to examine other
parts of Article 93V also lacks merit because the Pa nel Report explicitly sets out the text in question.
Thus, there is no basis for Mexico's assertion that the Panel overlooked it. Moreover, according to the
United States, the language proffered by Me xico simply confirms that Economía must impose a fine
if it finds that the conditions in Article 93V are met. Finally, the United States asserts that the fact
that Economía has not, to date, imposed such a fine is not meaningful in the light of Mexico's failure
before the Panel to point to any case where Econom ía found that the conditions for imposing a fine
were met, and yet decided not to impose one. The United States therefore submits that the Panel
correctly found that Article 93V provides for a specific action against dumping or subsidization that is
not provided for in Article 18.1 of the Anti-Dumping Agreement or Article 32.1 of the SCM
Agreement.
116. The United States therefore requests the Appella te Body to uphold the Panel's finding that
Article 93V of the FTA is inconsistent , as such, with Article 18.1 of the Anti-Dumping Agreement
and Article 32.1 of the SCM Agreement.
(g) Articles 68 and 97
117. The United States contends that Mexico's assertion that Article 68 of the FTA bears no
relation to the prohibition of reviews while judicial review proceedings are ongoing, and that there is
nothing in Article 97 of the FTA preventing Ec onomía from conducting reviews, is "remarkable" 84,
because the facts underlining the Panel's findings on this point were uncontested. Furthermore, even
if Mexico does now contest this understanding of the challenged provisions, the Panel found, as a
matter of fact, that Articles 68 and 97 work togeth er to preclude reviews while judicial proceedings
are ongoing. The United States submits that these factual findings are not properly a subject for
appellate review as Mexico has not alleged that the Panel did not comply with Article 11 of the DSU
in making those factual findings.

83United States' appellee's submission, para. 165 (referring to "Notification of Laws and Regulations
under Article 18.5 and 32.6 of the Relevant Agreements, Communication from Mexico",
G/ADP/N/1/MEX/1/Suppl.2, G/SCM/N/1/Mex/1/Suppl.1, G/SG/N/1/MEX/1/Suppl.1, 24 April, 2003, p. 14;
and "Notification of Laws and Regulations under Article 18.5 of the Agreement, Communication from Mexico",
G/ADP/N/1/MEX/1, 18 May 1995, p. 12).
84Ibid., para. 170.

118. Regarding Article 97, the United States agrees wi th the Panel that, contrary to Mexico's
assertion, a product becomes subject to "definitive" duties at the time that an anti-dumping or
countervailing measure is imposed, and not only when the final liability for the duties is subsequently
determined. The United States argues that Article 11.2 of the Anti-Dumping Agreement further
supports the Panel's finding because, when Article 11.2 is interpreted in the context of Article 11.1, it
is clear that the term "imposition of the definitive duty" in Article 11.2 refers to the imposition of the
anti-dumping or countervailing duty measure itself.
119. The United States requests the Appellate Body to uphold the Panel's finding that Articles 68
and 97 of the FTA are inconsistent, as such, with Articles 9.3 and 11.2 of the Anti-Dumping
Agreement and Article 21.2 of the SCM Agreement.
C. Arguments of the Third Participants
1. China
(a) Article 6.2 of the DSU
120. China submits that the Appellate Body has dete rmined that, contrary to Mexico's argument,
there is no requirement of identity between a request for consultations and a panel request. In the
absence of such a requirement, the relevant qu estion is whether the addition of certain WTO
provisions in a panel request has "expanded the scope of the dispute". 85 In this respect, China refers
to the decisions of the Appellate Body in Brazil – Aircraft and US – Certain EC Products , arguing
that resolution of this issue requires the Appella te Body to examine whether new legal provisions
added by the United States in the panel request ha ve changed the "essence" of, and are "separate" and
"legally distinct" from, the measures and th e legal provisions expressed in the request for
consultations.86
(b) Economía's Injury and Dumping Determinations
121. China submits that the alleged silence of the Anti-Dumping Agreement regarding the
selection of the period of investigation for making an injury determination does not provide Mexico
with "unfettered" discretion in selecting this period. 87 China agrees with the Panel that the

85China's third participant's submission, para. 7.
86Ibid., para. 8 (quoting Appellate Body Report, Brazil – Aircraft , paras. 127, 130, and 132; and
Appellate Body Report, US – Certain EC Products, para. 75).
87Ibid., para. 12.

investigating authority, conducting a "selective" ex amination, bears the obligation to justify its
conduct.
88
122. China further agrees with the Panel that inv estigating authorities cannot remain "entirely
passive" during the investigation and that, therefor e, "the term 'known' [in Article 6.10 of the Anti-
Dumping Agreement] cannot be construed in such an artificially contrived and solipsistic manner as to
become a warrant for a passive investigative approach". 89 China submits that the obligations for
investigating authorities to identify known exporters and interested parties are not without limitation
because, if investigating authorities are obligat ed to seek evidence ac tively from all sources
available, it is likely that "anti-dumping investig ations would, as a consequence, become totally
unmanageable".90
123. China also agrees with the Panel that Mexico erred in applying a dumping margin, based on
the facts available, to a United States producer that did not export to Mexico during the period of
investigation. China submits, however, that this finding, based on Article 6.8 of the Anti-Dumping
Agreement and Annex II thereto, should rest, rather, on Article 9.5 of the Anti-Dumping Agreement.
According to China, Article 9.5 expressly requires that no anti-dumping duties shall be levied on
imports from exporters that did not export the pr oduct to the importing Member during the period of
investigation.
(c) The Foreign Trade Act
124. China disagrees with Mexico's contention that , merely because a Member's legal system
renders treaties "self-executing", its domestic laws—"no matter how inconsistent with the WTO
agreements"—may not be challenged as such. 91 China considers Mexico's reasoning "absurd" 92
because the same domestic law would face different consequences under the WTO agreements based
solely on the fact that it was enacted in two differe nt Members, with two different legal systems.
China, therefore, submits that, notwithstanding Article 2 of the FTA, the Panel properly found that the
"direct effect of the WTO [a]greements cannot shield" the domestic law from scrutiny by WTO
panels.93

88China's third participant's submission, para. 13. (emphasis omitted)
91Ibid., para. 33.
92Ibid.

2. European Communities
(a) Economía's Injury and Dumping Determinations
125. The European Communities agrees with the Panel' s finding that Mexico acted inconsistently
with the Anti-Dumping Agreement by choosing to base its injury determination on a period of
investigation that ended more than 15 months before the initiation. The European Communities
endorses the Panel's interpretation of Article 3.1 of the Anti-Dumping Agreement , because it
understands the Panel's characterization of Article 3. 1 as "an overarching provision" to mean that the
obligations in Article 3.1 inform all of the other obligations set out in Article 3. Moreover, the
European Communities agrees with the Panel's unde rstanding that there must be a temporal
connection between the data collected and the injury alleged to exist at the time of the investigation.
126. The European Communities also agrees with the Panel's finding that Mexico acted
inconsistently with the Anti-Dumping Agreement by limiting its injury analysis to only six months of
the years 1997, 1998, and 1999. The European Co mmunities argues that nothing in the text of
Article 3.1 of the Anti-Dumping Agreement permits an investigating authority to disregard certain
data in the injury investigation period; when the Members sought to permit investigating authorities
to disregard certain matters, they did so explicitl y. According to the Eu ropean Communities, if a
Member fails to explain properly why it disregards certain data, a panel mu st conclude that the
investigating authority did not act in a fair and even-handed manner.
127. The European Communities furthermore agrees w ith the Panel's finding that Mexico acted
inconsistently with the Anti-Dumping Agreement by failing to conduct an objective examination,
based on positive evidence, of the volume and price effects of dumped imports. The European
Communities endorses the Panel's view that, where an investigating authority consistently makes
assumptions that negatively affect the exporter's inter ests, it does not behave in an objective, fair, and
even-handed manner.
128. The European Communities disagre es with the Panel's finding regarding Article 5.8 of the
Anti-Dumping Agreement. The European Communities argues that Article 5.8 imposes an obligation
on an investigating authority to terminate a count ry-wide investigation only when the country-wide
dumping margin is de minimis . In addition, it contends that the country-wide approach to the
initiation of an original investigation is "common sense"
94, because an investigating authority has no
real means of establishing, with complete certainty , the full list of export ers or producers in the
exporting Member. The Anti-Dumping Agreement imposes no obligation on an investigating

94European Communities' third participant's submission, para. 22.

authority to seek out actively that information. Finally, the European Communities submits that the
fact that the establishment of a country-wide margin of dumping is expressly associated in
Article 3.3(a) with the de minimis rule in Article 5.8 demonstrates that interpreting the term "margin
of dumping" in Article 5.8 as referring to the count ry-wide margin of dumping constitutes the correct
interpretation of that latter provision.
129. The European Communities agrees with the Panel's finding that Article 9.4 of the Anti-
Dumping Agreement does not apply to situations other than sampling. Also, the European
Communities considers, as did the Panel, that an investigating authority would, in principle, be
entitled to use the facts available in the calculation of a margin of dumping for a producer that did not
export during the period of investigation.
130. The European Communities also agrees with th e Panel's "implicit finding that a residual duty
may be imposed on unknown exporters, where appropriate, based on the facts available."
95
Nevertheless, it disagrees with the Panel's conclusion that an investigating au thority is required to
seek out actively the identity of export ers, other than those mentioned in the application, or those that
come forward following the publication of the notice of initiation.
(b) The Foreign Trade Act
131. The European Communities does not support Mexi co's arguments as to the "discretionary"
nature of the challenged provisions of the FTA and, accordingly, agrees with the Panel's findings of
inconsistency with respect to those provisions. The European Communities submits that, although
these provisions do not require the investigating authority in all cases to act in a WTO-inconsistent
manner, or prevent the investigating authority in all cases from acting in a WTO-inconsistent
manner, the Panel properly examined the cons istency of these provisions with the covered
agreements, without framing its analysis in te rms of the "mandatory/discretionary" doctrine. 96 Even
had it done so, the European Communities argues, "a mechanistic application of that doctrine could
not have averted a finding of inconsistency" with respect to those provisions.97

95European Communities' third participant's submission, para. 26.
96Ibid., para. 29.
97Ibid.

III. Issues Raised in This Appeal
132. The following issues are raised in this appeal:
(a) whether the Panel erred, under Article 6.2 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (the "DSU"), in finding that the
claims in the United States' panel requ est which were not "indicat[ed]" in the
consultations request did not fall outside the Panel's terms of reference;
(b) with respect to the injury determination by the Ministry of Economy of Mexico
("Economía"):
(i) whether the Panel exceeded its terms of reference in concluding that
Economía's use of a period of investigation ending in August 1999 was
inconsistent with Articles 3.1, 3.2, 3.4, and 3.5 of the Agreement on
Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994 (the "Anti-Dumping Agreement");
(ii) whether the Panel erred in finding th at Economía's use of a period of
investigation ending in August 1999 resulted in a failure to make a
determination of injury based on " positive evidence", as required by
Article 3.1 of the Anti-Dumping Agreement , and that, as a consequence,
Mexico acted inconsistently with Articles 3.2, 3.4, and 3.5 of that Agreement;
(iii) whether the Panel erred in finding that, in limiting the injury analysis to six
months of the years 1997, 1998, and 1999, Economía failed to make a
determination of injury that involved an "objective examination" as required
by Article 3.1 of the Anti-Dumping Agreement, and that, as a consequence,
Mexico acted inconsistently with Article 3.5 of that Agreement; and
(iv) whether the Panel erred in finding that Economía's injury analysis with
respect to the volume and price effect s of dumped imports was inconsistent
with Articles 3.1 and 3.2 of the Anti-Dumping Agreement;
(c) with respect to Economía's dumping determination:
(i) whether the Panel erred in finding that Mexico did not terminate immediately
the investigation in respect of Farmers Rice Milling Company ("Farmers
Rice") and Riceland Foods, Inc. ("Riceland") because Economía did not

exclude them from the application of the definitive anti-dumping measure, as
required by Article 5.8 of the Anti-Dumping Agreement;
(ii) whether the Panel exceeded its terms of reference in concluding that
Economía calculated a margin of dumping on the basis of facts available for
Producers Rice, in a manner inconsistent with Article 6.8 of the Anti-
Dumping Agreement read in the light of paragraph 7 of Annex II to that
Agreement; and
(iii) whether the Panel erred in finding that , with respect to the exporters that
Economía did not investigate, Mexico ac ted inconsistently with Articles 6.1,
6.8, 6.10, 12.1, and paragraph 1 of Annex II to the Anti-Dumping Agreement;
and
(d) with respect to the provisions of the Foreign Trade Act of Mexico (the "FTA"):
(i) whether the Panel erred in considering that a prima facie case had been
made out concerning the consistency of the challenged provisions of the FTA
with Mexico's obligations under the Anti-Dumping Agreement and the
Agreement on Subsidies and Countervailing Measures (the " SCM
Agreement");
(ii) whether the Panel erred by disregarding Article 2 of the FTA, or Mexico's
argument in relation thereto, in concl uding that the challenged provisions of
the FTA are mandatory measures;
(iii) whether the Panel erred in finding that Article 53 of the FTA is inconsistent,
as such, with Article 6.1.1 of the Anti-Dumping Agreement and
Article 12.1.1 of the SCM Agreement;
(iv) whether the Panel erred in finding that Article 64 of the FTA is inconsistent,
as such, with Article 6.8 of the Anti-Dumping Agreement, and paragraphs 1,
3, 5, and 7 of Annex II thereto, and Article 12.7 of the SCM Agreement;
(v) whether the Panel erred in finding that Article 68 of the FTA is inconsistent,
as such, with Articles 5.8, 9.3, and 11.2 of the Anti-Dumping Agreement ,
and Articles 11.9 and 21.2 of the SCM Agreement;

(vi) whether the Panel erred in finding that Article 89D of the FTA is
inconsistent, as such, with Article 9.5 of the Anti-Dumping Agreement and
Article 19.3 of the SCM Agreement;
(vii) whether the Panel, in its interpretati on of Article 93V of the FTA, failed to
fulfil its obligations under Article 11 of the DSU; and
(viii) whether the Panel erred in finding that Articles 68 and 97 of the FTA, read
together, are inconsistent, as such, with Articles 9.3.2 and 11.2 of the Anti-
Dumping Agreement, and Article 21.2 of the SCM Agreement.
IV. Article 6.2 of the DSU
133. We begin our examination of Mexico's appeal with its challenge under Article 6.2 of the
DSU. Mexico requested a preliminary ruling from the Panel that certain claims advanced by the
United States were outside the Panel's terms of reference because, inter alia , the provisions with
which the challenged measures were alleged to be inc onsistent in the request for the establishment of
a panel differed from those identified in the request for consultations. 98 The Panel rejected this
request, finding, inter alia, that there is no need for "complete identity between the scope of the
request for consultations and the requ est for establishment [of a panel]" 99; it is necessary only that
consultations be held on the "matter" in dispute. The Panel concluded that, because the additional
provisions in the panel request were "closely related" to those in th e request for consultations, and the
challenged measures remained unchanged, consultations had been held on the "matter" at issue in this
dispute.100
134. On appeal, Mexico argues that, although Article 6.2 of the DSU requires that the "legal basis"
of the complaint be more fully explained in the pane l request than in the request for consultations, the
"legal basis" in the panel request may not extend beyond that "indicat[ed]" 101 in the request for
consultations.102 In particular, Mexico submits that, where a measure is alleged in the request for
consultations to be inconsistent with certain provis ions of the covered agreements, additional
provisions may not form the basis of a llegations of inconsistency in the panel request . Mexico
contends that the United States included in its panel request provisions not identified in the request for
consultations and, therefore, that the claims based on those additional provisions were not within the

98Panel Report, para. 7.38.
99Ibid., para. 7.41.
100Ibid., para. 7.43.
101Article 4.4 of the DSU.
102Mexico's appellant's submission, paras. 14 and 16.

Panel's terms of reference. Mexico further argues, in the alternative, that the legal bases set out in the
panel request are not sufficiently related to those in dicated in the request for consultations, so as to
fall within the Panel's terms of reference.
103
135. We look first to the text of the relevant provi sions setting out the information that must be
contained in requests for consulta tions and panel requests. Article 4.4 of the DSU, dealing with
requests for consultations, provides:
... Any request for consultations shall be submitted in writing and
shall give the reasons for the request, including identification of the
measures at issue and an indication of the legal basis for the
complaint. (emphasis added)
Article 6.2 of the DSU, which deals with panel requests, provides:
The request for the establishment of a panel … shall indicate whether
consultations were held, identify the specific measures at issue and
provide a brief summary of the legal basis of the complaint
sufficient to present the problem clearly. (emphasis added)
136. The Appellate Body has previously explained th at the term "legal basis", which appears in
both Article 4.4 and Article 6.2, refers to the claims made by the complaining party. 104 It does not
follow from the use of the same term in both provision s, however, that the claims made at the time of
the panel request must be identical to those indicated in the request for consultations. Indeed, instead
of such a rigid approach, we consider that the di spute settlement mechanism, which generally requires
that a panel request be preceded by consultations 105, allows for a measure of flexibility to Members in
subsequently formulating complaints in panel requests.
137. The Appellate Body has observed that consultati ons serve a critical role in circumscribing the
scope of a dispute:

104Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 162.
105We observe that, if the responding Member does not engage in consultations within 30 days of a
request, the DSU permits a complaining Member to "proceed directly" to requesting the establishment of a panel
to hear its complaint. (Article 4.3 of the DSU)

Through consultations, parties exchange information, assess the
strengths and weaknesses of their respective cases, narrow the scope
of the differences between them and, in many cases, reach a mutually
agreed solution in accordance with the explicit preference expressed
in Article 3.7 of the DSU. More over, even where no such agreed
solution is reached, consultations provide the parties an opportunity
to define and delimit the scope of the dispute between them.
106
(emphasis added)
The Appellate Body has also emphasized this objectiv e of consultations in finding that, with respect
to the measures at issue , Articles 4 and 6 of the DSU do not "require a precise and exact identity "
between the request for consultations and the pa nel request, provided that the "essence" of the
challenged measures had not changed.107
138. In our view, the same logic applies with respect to the legal basis of the complaint. A
complaining party may learn of additional inform ation during consultations —for example, a better
understanding of the operation of a challenged meas ure—that could warrant revising the list of treaty
provisions with which the measure is alleged to be inconsistent. Such a revision may lead to a
narrowing of the complaint, or to a reformulati on of the complaint that takes into account new
information such that additional provisions of the covered agreements become relevant. The claims
set out in a panel request may thus be expected to be shaped by, and thereby constitute a natural
evolution of, the consultation process. Reading the DSU, as Mexico does, to limit the legal basis set
out in the panel request to what was indicated in the request for consultations, would ignore an
important rationale behind the requirement to hold consultations—namely, the exchange of
information necessary to refine the contours of the dispute, which are subsequently set out in the panel
request. In this light, we consider that it is not necessary that the provisions referred to in the request
for consultations be identical to those set out in the panel request, provided that the "legal basis" in the
panel request may reasonably be said to have evolved from the "legal basis" that formed the subject of
consultations. In other words, the addition of prov isions must not have the effect of changing the
essence of the complaint.

106Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 54. See also Appellate Body
All parties engaged in dispute settlement under the DSU must be fully
forthcoming from the very beginning both as to the claims involved in a
dispute and as to the facts relating to those claims. Claims must be stated
clearly. Facts must be disclosed freely. This must be so in consultations as
well as in the more formal setting of panel proceedings. In fact, the demands
of due process that are implicit in th e DSU make this especially necessary
during consultations. For the claims th at are made and the facts that are
established during consultations do much to shape the substance and the scope
of subsequent panel proceedings.
107Appellate Body Report, Brazil – Aircraft, para. 132. (original emphasis)

139. Based on this understanding, we turn now to c onsider whether the legal basis in the United
States' panel request may reasonably be said to ha ve evolved from the legal basis indicated in its
request for consultations, and that the essence of the complaint has not changed. As an initial matter,
we note that Mexico identifies 13 treaty provisions included by the United States in its panel request
that Mexico says did not form part of the legal basis identified in the request for consultations.
108 Of
these 13, the Panel exercised judicial economy in rela tion to claims under two provisions (Article 1 of
the Anti-Dumping Agreement and Article VI:2 of the General Agreement on Tariffs and
Trade 1994 (the "GATT 1994"))109 and made no findings relating to two other provisions (Article 4.1
of the Anti-Dumping Agreement and Article 12.5 of the SCM Agreement). In other words, the Panel
made no findings of inconsistency—and indeed, undert ook no analysis at all—with respect to four of
the 13 claims that Mexico alleges on appeal were not properly identified by the United States in the
request for consultations as part of the "legal basis" of the complaint.
140. In the absence of any findings of inconsistency by the Panel or an appeal by the United States
on these four claims, we see no need to decide whethe r they were sufficiently identified as part of the
"legal basis" for the complaint, because doing so "would not serve 'to secure a positive solution' to this
dispute".110 At the oral hearing, Mexico and the United States agreed with this approach. 111 We
therefore decline to examine whethe r these four claims evolved out of the "legal basis" indicated in
the request for consultations. The remaining provision s are considered in three categories of claims:
(i) Article 11.2 of the Anti-Dumping Agreement and Article 21.2 of the SCM Agreement ;
(ii) Article 18.1 of the Anti-Dumping Agreement and Article 32.1 of the SCM Agreement ; and
(iii) paragraphs 1, 3, 5, 6, and 7 of Annex II to the Anti-Dumping Agreement.
141. The first category of claims relates to the Unite d States' challenge to Articles 68 and 97 of the
FTA. In both the request for consultations and the panel request, the United States based its challenge
on the fact that Economía was prevented from conduc ting reviews other than sunset reviews whilst an
anti-dumping order was the subject of judicial proceedings. 112 The United States alleged, in the
request for consultations, that this was inconsiste nt with certain treaty provisions dealing generally

109See Panel Report, paras. 8.1(a)-(b) and 8.4(b)-(c).
110Appellate Body Report, Japan – Apples, para. 215 (quoting Article 3.7 of the DSU).
111Mexico's and the United States' responses to questioning at the oral hearing.
112See Request for Consultations by the United States (attached as Annex III to this Report), p. 3:
Article 366 of Mexico's Federal Code of Civil Procedure, in conjunction
with Article 68 of the Foreign Trade Ac t, appears to be inconsistent with
Articles 9 and 11 of the AD Agreement and Articles 19 and 21 of the SCM
Agreement to the extent that the provisions prevent Mexico from conducting
reviews of anti-dumping or countervailing duty orders while a judicial
review of the order is ongoing[.] (emphasis added)

with the duration and extent of anti-dumping a nd countervailing duty orders, including Article 11 of
the Anti-Dumping Agreement and Article 21 of the SCM Agreement.113 The treaty provisions added
by the United States in its panel request—Article 11.2 of the Anti-Dumping Agreement and
Article 21.2 of the SCM Agreement—are the principal provisions of those Agreements governing
reviews (other than sunset reviews) of such or ders. Given that the essence of the United States'
complaint against Articles 68 and 97 of the FTA, when read together—in both the request for
consultations and the panel request—relates to the c onduct of reviews other than sunset reviews, it
appears to us that the legal basis in the panel re quest naturally evolved from the legal basis indicated
in the request for consultations.
142. The second category of provisions relates to the Un ited States' challenge to Article 93V of the
FTA. In its request for consultations, the United States alleged that Article 93V imposed duties on
subject merchandise entered before the investigati ng authority's final determination, in a manner
inconsistent with Articles 7 and 10.6 of the Anti-Dumping Agreement and Articles 17 and 20.6 of the
SCM Agreement.114 These treaty provisions govern the application of provisional measures as well as
duties levied on products entered prior to the date of application of provisional measures. In its panel
request, the United States contended that these duties are inconsistent with two other treaty
provisions, namely, Article 18.1 of the Anti-Dumping Agreement and Article 32.1 of the
SCM Agreement.115 These latter treaty provisions require that "specific action against" dumping or

113The United States identified Article 11 (without specification of paragraph) of the Anti-Dumping
Agreement, as well as Article 11.1 of that Agreement, and Article 21 (without specification of paragraph) of the
SCM Agreement, as well as Article 21.1 of that Agreement. (Request for Consultations by the United States
(attached as Annex III to this Report))
114See Request for Consultations by the United States (attached as Annex III to this Report), p. 3:
Article 93V ... appears to provide fo r the application of definitive
anti-dumping or countervailing duties on products entered prior to the date
of application of provisional measures (1) for longer than allowed under the
AD and SCM Agreements, and (2) even if not all AD or SCM Agreement
requirements for applying such duties are met.
115Request for the Establishment of a Panel by the United States (attached as Annex II to this Report),
WT/DS295/2, para. 2(e).

subsidization be taken only in acco rdance with the GATT 1994 and the Anti-Dumping Agreement or
the SCM Agreement.
116
143. Duties properly imposed or levied on goods entered before a final determination—including
provisional measures—are one type of "specific ac tion against" dumping or subsidization that is
permitted by the Anti-Dumping Agreement and the SCM Agreement. The consultations held in this
dispute with respect to Article 93V focused on the allegedly improper imposition or levying of
duties on goods entered before the final determinati on. A claim of WTO-inconsistent "specific action
against" dumping or subsidization could reasonably have evolved from these consultations. Thus, we
are of the view that the claim set out in the pane l request represents a natural evolution of the claim
indicated in the request for consultations.
144. The final category of claims that Mexico conte nds was outside the Pane l's terms of reference
relates to the United States' challenges under several paragraphs of Annex II to the Anti-Dumping
Agreement, entitled "Best Information Available in Terms of Paragraph 8 of Article 6". All of the
paragraphs in Annex II govern th e proper application of facts available in an anti-dumping
investigation. In its request fo r consultations, the United States did not refer explicitly to specific
paragraphs of Annex II. However, it did refer to Article 6.8 of the Anti-Dumping Agreement and
Annex II thereto generally; the use of "facts ava ilable" by Economía; and "the manner in which
Mexico determined anti-dumping margins for US expor ters that were not individually investigated",
which included the use of facts available. 117 Mexico does not contend that these issues were not part
of the consultations held by the parties. Thus, we consider that the legal basi s of the complaint in the
panel request—namely, specific paragraphs of Annex II to the Anti-Dumping Agreement—developed
out of the legal basis indicated in the request for consultations.

116In a previous case involving a challenge under Article 18.1 of the Anti-Dumping Agreement and
Article 32.1 of the SCM Agreement, the Appellate Body has stated:
[T]he CDSOA has an adverse bearing on the foreign producers/exporters in
that the imports into the United States of the dumped or subsidized products
(besides being subject to anti-dumping or countervailing duties) result in the
financing of United States competitors—producers of like products—
through the transfer to the latter of the duties collected on those exports.
Thus, foreign producers/exporters have an incentive not to engage in the
practice of exporting dumped or subsid ized products or to terminate such
practices. Because the CDSOA has an adverse bearing on, and, more
specifically, is designed and structured so that it dissuades the practice of
dumping or the practice of subsidization, and because it creates an incentive
to terminate such practices, the CDSOA is undoubtedly an action "against"
dumping or a subsidy, within the meaning of Article 18.1 of the Anti-
Dumping Agreement and of Article 32.1 of the SCM Agreement.
(Appellate Body Report, US – Offset Act (Byrd Amendment), para. 256)
117Request for Consultations by the United States (attached as Annex III to this Report), pp. 2-3.

145. In the light of the above, we uphold the Panel's finding, in paragraph 7.43 of the Panel
Report, that the claims in the United States' panel re quest that were not "indicat[ed]" in the request for
consultations did not fall outside the Panel's terms of reference.
V. Economía's Injury Determination
A. The Period of Investigation and the Terms of Reference
146. We examine, first, Mexico's allegation that the Panel did not act in conformity with its terms
of reference in finding that Economía's use of a period of investigation e nding in August 1999 was
inconsistent with the Anti-Dumping Agreement.
147. Economía examined data for a period of inv estigation covering Marc h to August 1999 for
purposes of its dumping determination, and March to August in 1997, 1998, and 1999 for purposes of
its injury analysis. The investigation was initiate d on 11 December 2000, 15 months after the end of
the period of investigation. Final anti-dumping me asures were imposed on 5 June 2002, just less than
three years after the end of the period of investigation.
148. According to the Panel, although the Anti-Dumping Agreement does not contain any specific
rules concerning the period to be used for data co llection in an anti-dumping investigation, this does
not mean that the investigating authority's discre tion in using a certain period of investigation is
boundless. The Panel was of the view that ther e is an "inherent real-time link" between the
imposition of the measure and the conditions fo r application of the measure, namely, dumping
causing injury. 118 For the Panel, "the [ Anti-Dumping Agreement ] requires that the conditions for
imposing anti-dumping measures, that dumped imports are causing injury, have to be present at the
time of imposition of the measure, to the extent practically possible." 119 The Anti-Dumping
Agreement establishes a framework that allows Member s to take actions in order to rebalance the
injurious situation that is created by dumping. The Panel reasoned, accordingly, that injurious
dumping should exist at the time of the imposition of the anti-dumping duty, because the function of
the anti-dumping duty is to "counterbalance[]" injurious dumping, and that anti-dumping duties
imposed in the absence of current injurious dumping would not achieve the rebalancing contemplated
by the Anti-Dumping Agreement.120 Thus, for the Panel, it is necessary to base a determination of
dumping causing injury on data that is pertinent or re levant with regard to the current situation, taking
into account the "inevitable delay" caused by th e practical need to conduct an investigation. 121 The

118Panel Report, para. 7.58.
119Ibid., para. 7.63.
120Ibid., para. 7.61.
121Ibid.

Panel emphasized that, although it is well establis hed that the data on the basis of which the
determination of dumping causing injury is made may be based on a past period (the period of
investigation), "this 'historical' data is being used to draw conclusions about the current situation" and,
therefore, "the more recent data is likely to be i nherently more relevant and thus especially important
to the investigation."
122 For the Panel, "the data considered concerning dumping, injury and the
causal link should include, to the extent possible, th e most recent information, taking into account the
inevitable delay caused by the need for an investigation, as well as any practical problems of data
collection in any particular case."123
149. The Panel went on to analyze Economía's use of a period of investigation ending in
August 1999. The Panel noted that this period of investigation was suggested by the domestic
industry in the application submitted on 2 June 20 00, and that the investigation was initiated six
months later (on 11 December 2000). The Panel al so observed that Economía accepted the period of
investigation suggested by the petitioner, even tho ugh, at the time of initiation, that period had ended
more than 15 months earlier. The Panel underlined that: during the investigation, no attempt was
made by Economía to update any of the informati on obtained from the interested parties to reflect
what had occurred in the 15 months between the e nd of the period of investigation in August 1999
and the start of the investigation in December 2000; Mexico did not argue that practical problems
necessitated this particular period of investigation or that updating the information was not possible;
and Mexico did not provide any explanation as to why more recent information was not sought.
150. Article 3.1 of the Anti-Dumping Agreement requires, inter alia, that the injury determination
be "based on positive evidence". In the Panel's view, ev idence that is not relevant or pertinent with
respect to the issue to be decided is not "pos itive evidence" within the meaning of Article 3.1. 124 The
15-month gap between the end of the period of inv estigation and the initiation of the investigation,
according to the Panel, amounted to a "hiatus" su fficiently long as to impugn the reliability of the
period of investigation to deliver, for the purposes of a determination, evidence that has the "requisite
pertinence or relevance" to constitute "positive evidence" in Article 3.1. 125 Thus, according to the
Panel, "given the passage of time and the uncertainty about the factual situation in that relevant
interim, the information lacks credibility and relia bility, thereby failing to meet the criterion of
'positive evidence' pursuant to Article 3.1 of the [ Anti-Dumping Agreement]."126 As a consequence of
finding a violation of Article 3.1, the Panel found th at Mexico acted in breach of Articles 3.2, 3.4,

122Panel Report, para. 7.58.
123Ibid.
124Ibid., para. 7.55.
125Ibid., para. 7.64.
126Ibid.

and 3.5 of that Agreement when considering the volume and price effects of the dumped imports, all
relevant factors affecting the state of the i ndustry, and the causal relationship between dumped
imports and the alleged injury to the domestic industry, respectively. In the light of these findings, the
Panel did not consider it necessary to examine the United States' claims of violation of Article 1 of the
Anti-Dumping Agreement and Article VI of the GATT 1994.
151. On appeal, Mexico contends that the Panel acted inconsistently with its terms of reference
because the Panel's reasoning was different from th e argument put forward by the United States.
According to Mexico, the United States argued befo re the Panel that the purpose of an anti-dumping
measure is to offset or prevent dumping that is currently causing or threatening to cause material
injury, and that the legal basis for this contention was Article 5.1 of the Anti-Dumping Agreement.
Mexico submits that the United States argued before the Panel that, by not examining recent data,
Mexico acted in a manner inconsistent with Article 5.1 of the Anti-Dumping Agreement and that, as
a result, Mexico violated Article VI of the GATT 1994 and Articles 1, 3.1, 3.2, and 3.5 of the Anti-
Dumping Agreement.127 Thus, Mexico argues, the Panel did not act in conformity with its terms of
reference because it did not address the questions raised by the United States' argument—including
whether Mexico violated Article 5.1 of the Anti-Dumping Agreement —but, rather, conducted an
analysis that reconstructed in a manner different to the United States' reasoning.128
152. It is well settled that the terms of reference of a panel define the scope of the dispute 129 and
that the claims identified in the request for the est ablishment of a panel establish the panel's terms of
reference under Article 7 of the DSU. 130 Panels are not permitted to address legal claims falling
outside their terms of reference. 131 In this case, the panel request does not mention Article 5.1 of the
Anti-Dumping Agreement. In other words, the United States ha d not made a claim before the Panel
that Mexico had violated Article 5.1 of the Anti-Dumping Agreement .132 Accordingly, the issue
whether Mexico violated Article 5.1 fell outside th e scope of the dispute; had the Panel made a
finding under that provision, it would have exceeded its terms of reference. By not addressing this
issue, the Panel properly confined itself to the limits of its terms of reference. We fail to see why it
should be faulted for having done so.

128Ibid., paras. 37 and 39.
129Appellate Body Report, US – Carbon Steel, para. 126.
130Appellate Body Report, EC – Bananas III, para. 141.
132In response to questioning at the oral hearing, the United States confirmed that it did not make a
claim under Article 5.1. The United States, rather, indicated that it did reference Article 5.1 as evidence for the
need to base a determination on the most recent available data.

153. Mexico emphasizes paragraphs 55, 56, and 57 of the United States' first written submission to
the Panel. It contends that the United States alle ged in these paragraphs that Article 5.1 of the Anti-
Dumping Agreement is the basis for maintaining that the purpose of an anti-dumping investigation is
to determine whether dumping is taking place at th e present time, and that, consequently, Article 5.1
obliged Mexico to consider a period that was as close as practicable to the date of initiation.
133
Mexico adds that the United States argued that no t examining recent data automatically implied that
Mexico was acting inconsistently with th e obligations under Article 5.1 of the Anti-Dumping
Agreement, and this consequently meant a violation of Article VI of the GATT 1994 and Articles 1,
3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement.134
154. Paragraphs 55, 56, and 57 of the United States' first written submission to the Panel read as
follows:
The purpose of an antidumping measure is not to punish exporters for
past dumping practices. Rather, it is to "offset or prevent" dumping
that is presently causing or threaten ing to cause material injury to a
domestic industry in the importing country.
A Member is not offsetting or preventing injurious dumping if the
dumping or injury has completely ceased or never existed. Thus, in
order to impose an antidumping measure, the investigating authority
must examine, as part of its initial investigation pursuant to Article 5
of the AD Agreement, a period of time that is as close to the date of
initiation as practicable.
Article 5.1 of the AD Agreement states that the purpose of a dumping
investigation is to determine the "existence, degree and effect of any
alleged dumping." The ordinary meaning of the term "existence" is
"[c]ontinued being: continuance in being." Hence, the purpose of a
dumping investigation is not to t est whether foreign exporters may
have dumped at some point in the past, but whether dumping is
occurring at the present time. As such, to make this determination,
the period subject to investigation must cover a period of time as
close to the date of initiation as practicable. Numerous provisions in
Article VI and the AD Agreemen t support this interpretation,
including, but not limited to:
 Article VI of GATT 1994, which defines dumping and injury in
the present tense ( e.g., dumping "is" causing or threatening to
cause injury).
 Article 2 of the AD Agreement, which defines "dumping" in the
present tense ( e.g., "being" dumped and Export Price "is" lower
than Normal Value).

133Mexico's appellant's submission, paras. 35-36.
134Ibid., para. 36(c).

 The whole point of the examination pursuant to Article 3.4 of the
AD Agreement is to examine the present "state" of the domestic
industry; not its condition during some remote time period.
 Similarly, Article 3.5 establishes a test for causation that seeks to
determine whether the dumpe d imports "are" causing or
threatening to cause injury.
 The "clearly foreseen" and "imminent" standards in Article 3.7
suggest a period of investigation that is as recent as practicable.
 The term "domestic industry" is de fined in Article 4 and used in
many provisions of the AD Agreement, most notably Articles 3.4
and 5.4. In Article 5.4, the term clearly refers to those producers
in existence at the time the petition is filed. Absent some
contrary indication in the agreement, it follows that the "domestic
industry" examined in Article 3.4 is the same set of producers –
not a different set of producers who may have produced the like
product in the past.
 Article 5.8 of the AD Agreemen t describes the negligibility
standard for both injury and the volume of imports in the present
tense (i.e., "is negligible"). (footnotes omitted)
155. In our view, contrary to what Mexico suggests, the United States did not argue in
paragraphs 55, 56, and 57 that Me xico breached Article 5.1 of the Anti-Dumping Agreement . The
proposition advanced by the United States was that th e purpose of an anti-dumping investigation is to
test whether dumping is occurring at the present time and that anti-dumping duties should respond to
current dumping, not to dumping that occurred at some time in the past. This specific question—
whether the purpose of an anti-dumping investigation is to determine whether dumping is occurring at
the present time and whether the conditions for imposing anti-dumping measures have to be present at
the time of imposition of the measure—was extensiv ely discussed by the Panel, in particular, in
paragraphs 7.57 to 7.63 of the Panel Report. The United States referred to Article VI of the
GATT 1994 and provisions of the Anti-Dumping Agreement , including Article 5.1 thereof, as
arguments—not claims—to support its position that the purpose of a dumping investigation is to
determine whether dumping is occurring at the present time. However, the United States did not ask
the Panel—in paragraphs 55, 56, and 57 or else where—to determine whether Mexico violated
Article 5.1 of the Anti-Dumping Agreement.
156. Thus, we do not consider that the Panel rec onstructed or restructured the United States'
argument regarding Economía's use of a period of in vestigation ending in August 1999, and that the
Panel developed a legal reasoning di fferent from the United States' approach. Indeed, even if it had
done so, we would not necessarily find that the Pane l thereby acted improperly. As the Appellate

Body indicated in US – Certain EC Products , a panel is not obliged to limit its legal reasoning to
arguments presented by the parties.
135 The Appellate Body also stated, in EC – Hormones, that:
... nothing in the DSU limits the fa culty of a panel freely to use
arguments submitted by any of the parties—or to develop its own
legal reasoning—to support its own findings and conclusions on the
matter under its consideration.136
157. Accordingly, we find that the Panel did not exceed its terms of reference in concluding, in
paragraphs 7.65 and 8.1(a) of th e Panel Report, that Economía's use of a period of investigation
ending in August 1999 was inconsistent with Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping
Agreement.
B. The Use of a Period of Investigation Ending in August 1999 and the Criterion of
Positive Evidence
158. We turn now to the issue whether the Panel erred in finding that Economía's use of a period of
investigation ending in August 1999 resulted in a failure to make a determination of injury based on
positive evidence, as required by Article 3.1 of the Anti-Dumping Agreement.
159. The Panel found that, by choosing to base its determination of injury on a period of
investigation that ended more than 15 months before the initiation of the investigation, Mexico failed
to comply with the obligation to make a dete rmination of injury b ased on positive evidence. 137 As a
consequence, the Panel found that Mexico acted incons istently with Articles 3.1, 3.2, 3.4, and 3.5 of
the Anti-Dumping Agreement. We have already set out above, in paragraphs 148 to 150, the Panel's
reasoning in this regard.
160. Mexico challenges the Panel's findings regarding Economía's use of a period of investigation
ending in August 1999. This challenge is distin ct from that relating to the Panel's terms of
reference.138 According to Mexico, the Panel erred in findi ng that there is an "inherent real-time link"
between the investigation and the data on which it is based. 139 Mexico alleges that this "real-time
link" requirement is inconsistent with the option of using a past period as the period of
investigation.140 Mexico also argues that the Panel contradicts itself because the Panel acknowledged
that it is impossible that the period of investiga tion used for purposes of data collection coincide

135Appellate Body Report, US – Certain EC Products, para. 123.
137Panel Report, para. 7.65.
138See supra, section V.A.
140Ibid., para. 43.

exactly with the time period in which the inv estigating authority conducts its investigation. 141 F o r
Mexico, the content of Article 3.1 of the Anti-Dumping Agreement does not focus on how remote the
investigation period is, but on the applicability of the data used.142
161. Mexico also argues that the Panel erred b ecause it considered that remoteness of the
investigation period per se implied a violation of Article 3.1 143, and that the Panel's finding of a
violation of Article 3.1 was based exclusively on th e remoteness of the investigation period. Mexico
contends that, in the analysis under Article 3.1, th e Panel should have examined the scope of the data
used and their applicability 144; it also should have assessed whether the information on which
Economía's determination was based was adequate. 145 According to Mexico, because the United
States did not establish that the data relating to th e period of investigation were inappropriate, it did
not make out a prima facie case of violation of Article 3.1 of the Anti-Dumping Agreement.146
162. The Panel considered that the recommendati on adopted by the Committee on Anti-Dumping
Practices—the Recommendation Concerning the Pe riods of Data Collection for Anti-Dumping
Investigations (the "Recommendation") 147—provides useful support for the correct interpretation of
the obligations found in the text of the Anti-Dumping Agreement .148 According to Mexico, the
Recommendation does not constitute a basis for finding that a given period of investigation is
inconsistent with the Anti-Dumping Agreement; at best, it may provide some guidance. 149 Finally,
Mexico submits that, because the Panel had no le gal basis for finding that remoteness of the
investigation period per se implies a violation of the Anti-Dumping Agreement , the Panel should
have found that Mexico's interpretation concerning the integration of the data collection period was
permissible pursuant to Article 17.6(ii) of the Anti-Dumping Agreement.150

142Ibid., para. 49.
143Ibid., para. 57.
144Ibid., para. 58.
145Ibid., para. 55.
146Ibid., para. 60.
147G/ADP/6, adopted by the Committee on Anti-Dumping Practices on 5 May 2000.
148Panel Report, para. 7.62.
149Mexico's appellant's submission, paras. 63-64.
150Ibid., paras. 66(d) and 67.

163. We begin our analysis with the text of Article 3.1 of the Anti-Dumping Agreement , which
sets forth the general requirement for making an injury determination:
A determination of injury for purposes of Article VI of GATT 1994
shall be based on positive evidence and involve an objective
examination of both (a) the volume of the dumped imports and the
effect of the dumped imports on prices in the domestic market for
like products, and (b) the consequent impact of these imports on
domestic producers of such products.
Article 3.1 thus requires, inter alia, that the injury determination be based on positive evidence.
164. The Panel described "positive evidence" as evid ence that is relevant and pertinent with
respect to the issue to be decide d, and that has the characteristics of being inherently reliable and
creditworthy.
151 The Panel was of the view that, under th e positive evidence criterion of Article 3.1,
the question whether the information at issue c onstituted "positive evidence"—that is to say, was
relevant, pertinent, reliable, and creditworthy—h ad to be assessed with respect to the current
situation.152
165. We agree with the Panel that evidence that is not relevant or pertinent to the issue to be
decided is not "positive evidence". We also agree with the Panel that relevance or pertinence must be
assessed with respect to the existenc e of injury caused by dumping at the time the investigation takes
place. Under Article VI of the GATT 1994 and its "application" in the Anti-Dumping Agreement153,
the conditions for imposing an anti-dumping duty—in jury caused by dumping—should obtain at that
time. Article VI:2 of the GATT 1994 provides that anti-dumping duties are imposed "to offset or
prevent" dumping. The term "offset" suggests th at the scheme established in Article VI of the
GATT 1994, and applied through the provisions of the Anti-Dumping Agreement, fulfils a corrective
function: Members are permitted to take correct ive measures in order to counter the injurious
situation created by dumping. Under the logic of this corrective scheme, the imposition of anti-
dumping duties is justified to the extent that they respond to injury caused by dumping. To use the
Panel's terminology, anti-dumping duties "c ounterbalance[]" injury caused by dumping. 154 Because
the conditions to impose an anti-dumping duty are to be assessed with respect to the current situation,

151Panel Report, para. 7.55.
152Ibid., para. 7.61.
153Article 1 of the Anti-Dumping Agreement states that the provisions of that Agreement "govern the
application of Article VI of GATT 1994".
154Panel Report, para. 7.61.

the determination of whether injury exists should be based on data that provide indications of the
situation prevailing when the investigation takes place.155
166. This, of course, does not imply that investig ating authorities are not allowed to establish a
period of investigation that covers a past period. We note that, contrary to what Mexico suggests, the
Panel did not state that the Anti-Dumping Agreement requires a coincidence in time between the
investigation and the data used therein. 156 On the contrary, the Panel recognized that "it is well
established that the data on the basis of which [the determination that dumped imports cause injury] is
made may be based on a past period, known as the period of investigation." 157 In order to determine
whether injury caused by dumping ex ists when the investigation tak es place, "historical data" may be
used. We agree with the Panel, however, that more recent data is likely to provide better indications
about current injury.158
167. We agree with Mexico that using a remote investigation period is not per se a violation of
Article 3.1.159 In our view, however, the Panel did not set out such a principle, as its findings relate to
the specific circumstances of this case. The Pane l was satisfied that, in this specific case, a prima
facie case was established that the info rmation used by Economía did not provide reliable indications
of current injury and, therefore, did not meet the criterion of positive evidence in Article 3.1 of the

155We note that in response to questioning at the or al hearing, Mexico agreed that a determination of
injury caused by dumping should be based on data that are pertinent or relevant with regard to the current
situation.
157Panel Report, para. 7.58. The Panel also added that "the inevitable delay caused by the need for an
investigation, as well as any practical problems of data collection in any particular case" should be taken into
account. (Ibid.)
158Ibid.

Anti-Dumping Agreement.
160 The Panel arrived at this conclusion on the basis of several factors. The
Panel attached importance to the existence of a 15-month gap between the end of the period of
investigation and the initiation of the investigation, and a gap of almost three years between the end of
the period of investigation and the imposition of final anti-dumping dut ies. However, these temporal
gaps were not the only circumstances that the Panel took into account. The Panel, as trier of the facts,
gave weight to other factors: (i) the period of investigation chosen by Economía was that proposed by
the petitioner; (ii) Mexico did not establish that practical problems necessitated this particular period
of investigation; (iii) it was not established that updating the information was not possible; (iv) no
attempt was made to update the information; a nd (v) Mexico did not provide any reason—apart from
the allegation that it is Mexico's general practice to accept the period of investigation submitted by the
petitioner—why more recent information was not sought. 161 Thus, it is not only the remoteness of the
period of investigation, but also these other circ umstances that formed th e basis for the Panel to
conclude that a prima facie case was established. In the light of the general assessment of these
other circumstances carried out by the Panel as trier of the facts, we accept that a gap of 15 months
between the end of the period of investigation and the initiation of the investigation, and another gap
of almost three years between the end of the peri od of investigation and the imposition of the final
anti-dumping duties, may raise real doubts about th e existence of a sufficiently relevant nexus
between the data relating to the period of investig ation and current injury. Therefore, we have no
reason to disturb the Panel's assessment that a prima facie case of violation of Article 3.1 was made
out.

160We recall that a prima facie case is:
... one which, in the absence of effective refutation by the defending party,
requires a panel, as a matter of law, to rule in favour of the complaining
party presenting the prima facie case.
(Appellate Body Report, EC – Hormones, para. 104)
 We also note that, in US – Gambling, the Appellate Body stated:
The evidence and arguments underlying a prima facie case ... must be
sufficient to identify the challenged measure and its basic import, identify
the relevant WTO provision and obligation contained therein, and explain
the basis for the claimed inconsistency of the measure with that provision.
(Appellate Body Report, US – Gambling, para. 141)
 As the Appellate Body stated in US – Wool Shirts and Blouses , the nature and scope of evidence
required to establish a prima facie case "will necessarily vary from measure to measure, provision to provision,
and case to case." (Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323, at 335) See
also Appellate Body Report, Japan – Apples, para. 159.
161Panel Report, para. 7.64.

168. Mexico had the opportunity to rebut the prima facie case that the information on which
Economía relied did not meet the criterion of positive evidence in Article 3.1 of the Anti-Dumping
Agreement. Thus, Mexico could have sought to show th at the information relating to the period of
investigation conveyed indications as to current injury and constituted an appropriate basis for
determining whether there was current injury, in spite of its remoteness. Mexico did not do so. In the
absence of "an effective refutation", it appears to us that it was not unreasonable for the Panel to
conclude that the criterion of positive evidence set out in Article 3.1 of the Anti-Dumping Agreement
was not met.
169. Mexico also argues that the Panel erred b ecause it based its finding that the period of
investigation used by Economía was inconsistent with the Anti-Dumping Agreement on the
Recommendation referred to above in paragraph 162, a non-binding document adopted by the
Committee on Anti-Dumping Practices. The Recommendation stipulates, inter alia, that the period of
data collection should end as close to the date of initiation of the investigation as is practicable.162 We
disagree with Mexico's argument. The Panel took care to recall that this Recommendation is a "non-
binding guide" that "does not add new obligations, nor detract from the existing obligations of
Members under the [ Anti-Dumping Agreement ]".163 It appears to us that the Panel referred to the
Recommendation, not as a legal basis for its findings , but simply to show that the Recommendation's
content was not inconsistent with its own reasoning. Doing so does not constitute an error of law. In
any event, we note that the Recommendation was not a decisive factor that led the Panel to conclude
that the criterion of "positive evidence" in Article 3.1 was not met.
170. We turn now to Mexico's argument that the Panel should have found that Mexico's
interpretation concerning the "integration" of the data collection period 164 was permissible pursuant to
Article 17.6(ii) of the Anti-Dumping Agreement. This provision reads as follows:

162The Recommendation provides, in relevant part:
The Committee recommends that with respect to original investigations to
determine the existence of dumping and consequent injury –
1. As a general rule:
(a) the period of data collection for dumping investigations normally
should be twelve months, and in any case no less than six months, ending
as close to the date of initiation as is practicable[.]
(Panel Report, footnote 75 to para. 7.62) (footnote omitted; emphasis added)
163Ibid., para. 7.62.

[T]he panel shall interpret the rele vant provisions of the Agreement
in accordance with customary rule s of interpretation of public
international law. Where the panel finds that a relevant provision of
the Agreement admits of more than one permissible interpretation,
the panel shall find the authorities' me asure to be in conformity with
the Agreement if it rests upon one of those permissible
interpretations.
171. We have some difficulty with Mexico's argu ment. The Panel had to decide whether the
information relating to a period of investigati on ending in August 1999 c onstituted an appropriate
basis for making a determination of injury. The issue before the Panel centred on the manner in
which Economía conducted the injury analysis, not the interpretation of a specific provision of the
Anti-Dumping Agreement. Furthermore, as we underlined above, the Panel expressed the view that
the data on the basis of which a determination of injury caused by dumping is made may relate to a
past period, to the extent this information is relevant with regard to the current situation.
165 It appears
to us that the Panel's view is compatib le with Mexico's own reading of the Anti-Dumping Agreement,
according to which using data rela ting to a past period does not, per se , entail a violation of that
Agreement. For these reasons, we are of the view that Mexico's argument regarding Article 17.6(ii)
of the Anti-Dumping Agreement is without merit.
172. Accordingly, we uphold the Panel's finding, in paragra phs 7.65 and 8.1(a) of the Panel
Report, that Economía's use of a period of investig ation ending in August 1999 resulted in a failure to
make a determination of injury based on "positiv e evidence" as required by Article 3.1 of the Anti-
Dumping Agreement . As a result of this finding, we also uphold the Panel's finding, in
paragraphs 7.65 and 8.1(a) of the Panel Report, that by choosing this period of investigation, Mexico
acted inconsistently with Articles 3.2, 3.4, and 3.5 of that Agreement.
C. The March–August Period
173. We turn now to the issue whether the Panel er red in finding that, in limiting the injury
analysis to the March–August period of 1997, 1998, and 1999, Economía failed to make a
determination of injury that involves an "objectiv e examination" as required by Article 3.1 of the
Anti-Dumping Agreement.
174. For the purposes of examining the injury to th e domestic industry, Economía collected data
for a continuous period of three years covering 1997, 1998, and 1999. However, Economía limited its
analysis to data for the months of March to Augus t of these years; data from the period September to
February of each of these years were disregarded. In the Panel's view, such an examination, made on

165Panel Report, paras. 7.58 and 7.61.

the basis of an incomplete set of data and character ized by the selective use of certain data for the
injury analysis, could not be "objective" within the meaning of Article 3.1 of the Anti-Dumping
Agreement, unless a proper justification were provided. 166 In this respect, the Panel noted that
Mexico's only argument was that it was necessary to examine data relating only to the six months
from March to August because this was also the si x-month period chosen for the analysis of the
existence of dumping. The Panel considered that this did not constitute a proper justification for
ignoring half of the data concerning the state of the domestic industry. For the Panel, the Anti-
Dumping Agreement does not require that "a period of investigation [for] the injury analysis should
be chosen to fit the period of investigation fo r the dumping analysis in case the latter ... covers a
period of less than 12 months."167
175. The Panel also underscored that, in the petition submitted in June 2000, the domestic
producers suggested that the six-month period of Ma rch to August should be used because it reflected
the period of highest import penetration. 168 Thus, according to the Panel, this period would show the
most negative side of the state of the domestic industry. 169 The Panel noted that, in its Preliminary
Determination170, Economía stated that, in accordance with the information provided by the petitioner,
"imports tend to be concentrated during the period from March to August every year, which
corresponds to the investigated period proposed by the petitioner". 171 The Panel explained that,
although Economía was discussing the imports of pa ddy rice—the raw material for the production of
the subject long-grain white rice—Economía neve rtheless "clearly accepted the link made between
production of paddy rice and the imports of the fina l product which the applicant points out is mainly
imported in the period March–August." 172 Thus, the Panel noted that the Preliminary Determination
referred to the petitioner's claim that the main impor t activity of the final product takes place within

166Panel Report, para. 7.81.
167Ibid., para. 7.82.
168Ibid., para. 7.83 (referring to the " Solicitud de investigación antidumping contra las importaciones
de arroz blanco originarias de los Estados Unidos de América " ("Application for initiation of an anti-dumping
investigation regarding imports of long-grain white ri ce from the United States"), 2 June 2000 (Exhibit US-8
submitted by the United States to the Panel (the "Application for Initiation"), p. 34).
169Panel Report, para. 7.85.
General de Importación, originarias de los Estados Unidos de América, independientemente del país de
procedencia", Diario Oficial , 18 July 2001, pp. 3-54 (Exhibit US-14 submitted by the United States to the
Panel) (the "Preliminary Determination").
171Ibid., para. 65.
172Panel Report, para. 7.83.

the period March to August, during which period "paddy rice is not harvested and for that reason this
period adequately reflects the import activity."
173
176. The Panel found that the injury analysis of Economía, which was based on data covering only
six months of each of the three years examined, did not allow for an "objective examination", as
required by Article 3.1 of the Anti-Dumping Agreement, for two reasons: first, whereas the injury
analysis was selective and provided only a part of the picture, no proper justification was provided by
Mexico in support of this approach; and secondly, Economía accepted the "period of investigation
proposed by the applicants because it allegedly represented the period of hi ghest import penetration
and would thus show the most negative side of the state of the domestic industry". 174 For these two
reasons, the Panel considered that the injury analysis was not based on data that provided an "accurate
and unbiased picture" 175 and, therefore, was not "objective" within the meaning of Article 3.1. As a
consequence of a violation of Article 3.1 of the Anti-Dumping Agreement , the Panel found that
Mexico had acted inconsistently with Article 3.5 of the Anti-Dumping Agreement, which refers to the
demonstration of a causal relationship between the dumped imports and the injury. The Panel
exercised judicial economy with respect to the United States' claims under Articles 1 (principles)
and 6.2 (opportunity for defence) of the Anti-Dumping Agreement.
177. Mexico challenges the Panel's finding that Economía's injury analysis was not "objective"
because it was based on data covering only six months of each of the three years examined. Mexico
argues that, in making its findings, the Panel did not rely on a legal basis, but only on assumptions. 176
Thus, according to Mexico, the assertions that Ma rch to August is the period of highest import
penetration, and that this period shows the most negative side of the state of the domestic industry, are
unsubstantiated assumptions that reflect a "mere opinion". 177 For Mexico, the Panel improperly
assumed that there is a general rule according to which data relating to entire years have to be
analyzed in an injury analysis. Mexico submit s that the Panel thereby erred because such an
assumption implies that, if an investigating authorit y were to use segments of years in its injury
analysis, it would be presumed that the methodol ogy was not objective, and the responding Member
would bear the burden of justifying that the agency's analysis was objective.178

174Ibid., para. 7.85.
175Ibid., para. 7.79.
177Ibid., paras. 73-74 ("una mera opinión").
178Ibid., para. 76.

178. Mexico also argues that the Panel erred in assu ming that the data relating to the March to
August period for 1997, 1998, and 1999 showed the mo st negative side of the state of the domestic
industry. For Mexico, the methodology used by Ec onomía is not flawed because six-month periods
with the same "structure" were compared. 179 Mexico further submits that the information used by
Economía does not constitute an "incomplete set of data" 180 but, rather, is complete in that it allows a
comparison of the relevant indicators for the do mestic industry with prior comparable periods. 181
Mexico adds that using comparable periods in the injury analysis constituted a proper methodology
because "distortions" were avoided; Economía was thus able to make a proper comparison between
the data relating to the period of investigation and those pertaining to previous comparable periods. 182
Mexico reiterates that Economía used the March to August period in 1997, 1998, and 1999 in order to
avoid distortions in the comparis on between the period of investigation for purposes of the dumping
determination and the period of investigation for purposes of the injury analysis.183
179. Mexico observes that, although in 1998 and 1999 long-grain white rice imports were higher in
the March to August period than in the rest of th e year, that was not the case in 1997, where long-
grain white rice imports were lower in the March to August period than during the rest of the year.
Mexico adds that the percentage by which imports in the March to August periods of 1998 and 1999
exceeded those during the rest of th e year was practically negligible. 184 Accordingly, Mexico
contends that the Panel's view that the March to August period shows the most negative side of the
state of the domestic industry rests upon a questionable premise. 185 Mexico also contends that,
contrary to what the Panel suggested, the dom estic production of long-grain white rice is not
dependent on the production cycles of paddy rice b ecause, when there is a drop in domestic paddy
rice production, the domestic producers of long-grai n white rice rely on imported paddy rice.
Consequently, Mexico submits, domestic producti on of long-grain white rice remains constant
throughout the year.186

179For Mexico, "the structur e is by definition the same if exactly the same periods for each year are
180Panel Report, para. 7.81.
182Ibid., para. 82.
183Ibid.
184Ibid., para. 83.
185Ibid., paras. 83-84.
186Ibid., para. 89.

180. The Panel expressed the view that, under Article 3. 1, an injury analysis can be "objective"
only "if it is based on data which provide an accura te and unbiased picture of what it is that one is
examining".
187 This view is consistent with the Appellate Body's statement in US – Hot-Rolled Steel
regarding the requirement to conduct an "obj ective examination" under Article 3.1 of the Anti-
Dumping Agreement:
[A]n "objective examination" requires that the domestic industry, and
the effects of dumped imports, be investigated in an unbiased manner,
without favouring the interests of an y interested party, or group of
interested parties, in th e investigation. The duty of the investigating
authorities to conduct an "objective examination" recognizes that the
determination will be influenced by the objectivity, or any lack thereof,
of the investigative process.
188 (footnote omitted)
Therefore, the question to be decided is whether th e Panel erred in finding that the data used by
Economía in the injury analysis, which relate to the same six-month period in 1997, 1998, and 1999,
did not provide an "accurate and unbiased picture" of the injury suffered by the domestic industry.
181. We note that the Panel's finding is based not only on Economía's selective use of the
information gathered for the purpose of the injury analysis. Indeed, in reaching the conclusion that
the data used by Economía did not provide an "accu rate and unbiased picture", the Panel also relied
on another factor: the acceptance by Economía of the period of investigation proposed by the
petitioner, knowing that the petitioner proposed that period because it allegedly represented the period
of highest import penetration. It appears to us th at, in the specific circumst ances of this case, these
two factors, considered together, were sufficient to make out a prima facie case that the data used by
Economía did not provide an "accurate and unbiased picture".
182. Mexico did not present an "effective refutation" 189 of that prima facie case by providing a
proper justification for the use of the March to August period. The only explanation presented by
Mexico, and reiterated on appeal, was that the pe riod of investigation for purposes of the dumping
determination was March to August 1999, and that, therefore, it should be used in the injury analysis
in order to avoid "distortions" in the comparison between the period of investigation for purposes of
the dumping determination and the period of investigation for purposes of the injury analysis.190

187Panel Report, para. 7.79.
188Appellate Body Report, US – Hot-Rolled Steel, para. 193.

183. In US – Hot-Rolled Steel , the Appellate Body stated that, from the definition of injury
provided in footnote 9 of the Anti-Dumping Agreement191, "[i]t emerges clearly ... that the focus of an
injury determination is the state of the 'domestic industry'."192 We fail to see how, in the present case,
the use of data relating to the whole year, as oppo sed to the March to August period, would have
introduced "distortions" of the assessment of the "state of the domestic industry". Rather, in our view,
examining data relating to the whole year would result in a more accurate picture of the "state of the
domestic industry" than an examination limited to a six-month period. Moreover, the explanation put
forward by Mexico implies that the dumping de termination and the injury determination are
integrated. This is not the case; although injury and dumping must be linked by a causal relationship,
these determinations are two separate operations re lying on distinct data seeking to determine
different things. Accordingly, we see no reason to disagree with the Panel that the explanation
provided by Mexico with respect to Economía's choice of a limited period of investigation for
purposes of the injury analysis was not a "proper justification" 193 sufficient to refute the prima facie
case that the data used by Economía did not provide an "accurate and unbiased picture" of the state of
the domestic industry. We therefore agree with the Panel that the data used by Economía in the injury
analysis, relating to the March to August period of 1997, 1998, and 1999, did not provide an "accurate
and unbiased picture" of the state of the domestic in dustry and, thus, did not result in an "objective
examination" as required by Article 3.1 of the Anti-Dumping Agreement.
184. On appeal, Mexico's objections to the Panel's reasoning are not, in substance, different from
the arguments it submitted before the Panel. Mexi co argues that the proposition that the March to
August period is the period of highest import pe netration is an unsubstantiated assumption that
reflects a "mere opinion". 194 We disagree. In its reasoning, the Panel referred to the petitioner's
position that the main import activity of long-grain white rice takes place within the March to August
period—during which paddy rice is not harvested in Mexico—and that, for this reason, this period
adequately reflects the import activity. 195 Making such a reference is not, in our view, making an
unsubstantiated assumption that reflects a "mere opinion".

191Footnote 9 to Article 3 of the Anti-Dumping Agreement reads:
Under this Agreement the term "injury" shall, unless otherwise specified, be
taken to mean material injury to a domestic industry, threat of material
injury to a domestic industry or material retardation of the establishment of
such an industry and shall be interp reted in accordance with the provisions
of this Article.
192Appellate Body Report, US – Hot-Rolled Steel, para. 189.
193Panel Report, para. 7.81.
194Mexico's appellant's submission, paras. 73-74. ("una mera opinión")
195Panel Report, para. 7.83 (referring to Application for Initiation, supra, footnote 168, p. 34; and

185. Nor can we accept Mexico's argument that the Panel created a presumption that an injury
analysis based on data relating to only parts of years is not objective. We note, first, that the Panel
underscored that its "ruling should not be read as to imply that there could never be any convincing
and valid reasons for examining only parts of years."
196 Secondly, the Panel's finding is not based
exclusively on the fact that Economía was selective as regards the data it used in the injury analysis.
It is the combination of this factor with a nother—"the acceptance of a period of investigation
proposed by the applicants because it allegedly represented the period of hi ghest import penetration
and would thus show the most negative si de of the state of the domestic industry" 197—that led the
Panel to consider that a prima facie violation of Article 3.1 had been established. Mexico had an
opportunity to refute the prima facie case by presenting a "proper justification" for the use of the
March to August period; however, it failed to do so.
186. Mexico submits that the methodology used was not flawed because six-month periods with
the same structure were compared. 198 We agree with Mexico that it was not improper for Economía
to make comparisons with previous years. The Pa nel, however, did not find that Economía could not
make comparisons with previous periods in the injury analysis. The Panel discussed a different
question, namely, whether Economía's methodology was flawed because segments of years were
compared instead of full years.
187. Mexico argues that, in 1997, long-grain white rice imports were lower in the March to August
period than in the rest of the year, and that in 1998 and 1999, imports in the March to August period
were higher than in the rest of the year by only a negligible amount. Mexico also contends that the
domestic production of long-grain white rice is inde pendent of the production cycles of paddy rice.
On these bases, Mexico questions what it alleg es are the premises on which the Panel based its
assertion that the period March to August shows the most negative side of the state of the domestic
industry.
199 Mexico's allegations refer to facts concerning import patterns of long-grain white rice and
the relationship between the production of long-grain wh ite rice and that of paddy rice. Contrary to
what Mexico suggests, the Panel's reasoning was not centred on an assessment of the import patterns
of long-grain white rice or the relationship between the production of long-grain white rice and that of
paddy rice. On these questions of fact, the Pane l did not make any finding , because it considered it

196Panel Report, para. 7.82.
197Ibid., para. 7.85.
199Ibid., para. 84.

was unnecessary to do so. 200 Rather, the Panel's position was based on the findings that Economía
selected the same period of investigation as that put forward by the petitioner, and that the petitioner
proposed this period because the months March to August allegedly represent the period of highest
import penetration.201 As we mentioned above, we are of the view that the Panel did not err by taking
into account this factor in its analysis.202
188. For these reasons, we uphold the Panel's findings, in paragraphs 7.86 and 8.1(b) of the Panel
Report, that, in limiting the injury analysis to th e March to August period of 1997, 1998, and 1999,
Mexico failed to make a determination of injury that involves an "objective examination", as required
by Article 3.1 of the Anti-Dumping Agreement. Accordingly, we also uphold the Panel's findings, in
paragraphs 7.87 and 8.1(b) of the Panel Report, that, in limiting the injury analysis to the March to
August period of 1997, 1998, and 1999, Mexico act ed inconsistently with Article 3.5 of that
Agreement.
D. The Volume and Price Effects of the Dumped Imports
189. We move now to the issue whether the Panel erred in finding that Economía did not conduct
an objective examination based on pos itive evidence in its analysis of the volume and price effects of
the dumped imports. This issue concerns the me thodology used by Economía to determine the
volume of the dumped imports and that used to de termine the price effects of the dumped imports.
The Panel found that the use of these methodologies resulted in an injury analysis that was not
consistent with the requirements under Articles 3.1 and 3.2 of the Anti-Dumping Agreement to
conduct an objective examination based on positive ev idence of the volume and price effects of the
dumped imports.

200Panel Report, para. 7.85. Mexico's position that, in 1997, long-grain white rice imports were lower
in the March to August period than in the rest of the year, and that, in 1998 and 1999, imports in this period
were higher than in the rest of the year by only a negligible amount, is based on a table presented in
paragraph 83 of Mexico's appellant's submission. In response to questioning at the oral hearing, Mexico
indicated that this table was submitted to the Panel, whereas the United States said that, before the Panel, it
contested the validity of the information set out in the table. The Panel did not make any finding with respect to
this table.
201Panel Report, para. 7.85. The petitioner's position is set out in the Application for Initiation, supra,
footnote 168, p. 34 and in the Preliminary Determination, supra, footnote 170, para. 64. Further to questioning
at the oral hearing, Mexico recognized that, before Economía, the petitioner took the position that the main
import activity of long-grain white ri ce in Mexico takes place within the March to August period, and that
Economía accepted this position.
202Supra, para. 181.

1. Economía's Analysis

190. Economía explains in the Final Determina tion how it established the volume of dumped
imports of the subject product into Mexico. 203 The Final Determinati on shows that Economía was
confronted with the problem of distinguishing, first, the subject rice imports (that is, "long-grain white
rice") from imports of all types of rice, and, second ly, the imports of the subject product that were
dumped into Mexico from those imports that were not dumped. The first problem arose from the fact
that the tariff line under which long-grain white rice was imported (1006.30.01) at the time of the
investigation also covered other types of rice, su ch as medium-grain and short-grain rice, as well as
glazed or parboiled rice, which were not part of the investigation.
191. Economía had requested information about l ong-grain white rice exports from each of the
four companies that participated in the investigation. One firm re plied that it had not exported during
the period of investigation and, therefore, it did not provide any information. Economía considered
that the only company that provided correct inform ation for the whole period of investigation was
Farmers Rice, whose exports increased by 303. 7 per cent in the 1998 March to August period,
compared to the previous corresponding period, an d by 12.3 per cent during the investigated period
in 1999, in relation to the previous corresponding period.
204 Economía considered that two other
participating companies, The Rice Company and Ri celand, did not provide accurate information for
the whole period of investigation, and decided, fo r that reason, not to use the information submitted
by these two companies. Instead, it established that the variation in volume of exports observed in the
case of Farmers Rice was an acceptable indicator of the behaviour of the exports by Riceland and The
Rice Company.
192. Economía did not find a dumping margin for Farmers Rice and Riceland.
193. For determining the volume of imports from co mpanies other than the four participating
firms, Economía decided to use the methodology pr oposed by the petitioner: rice imported below a
certain price level was to be treated as the subject product, long-grain white rice, while rice imported
above that price was not. Economía explained that it decided to use this methodology, even though
the methodology failed to provide accurate info rmation for the years 1997 and 1998. Economía
sought to overcome this lack of accurate data for the years 1997 and 1998 by assuming that the share
of imports of the subject product in the total imports of all types of rice during those years was the
same as in the year 1999. On this basis, Econom ía established that, as regards the companies other
than the four participating companies, the inves tigated imports increased 8.6 per cent in the period

203Final Determination, supra, footnote 9, paras. 206-261.
204Ibid., paras. 226-227.

March to August 1998, in relation to the same period in the previ ous year, and increased 3.4 per cent
during the investigation period of March to Augus t 1999, in relation to the previous comparable
period.
194. Regarding the second problem of separating the volume of dumped subject imports from non-
dumped subject imports, Economía took the total volume of imports of the subject product and
subtracted from that amount the imports from the expor ters that participated in the investigation and
for which no dumping margin was found.
195. With respect to the analysis of the evolution of prices of the subject imports and their effects
on domestic prices, Economía considered, first, that , as the price of all kinds of rice decreased during
the investigation period, and as the export price of Farmers Rice also decreased, it was reasonable to
conclude that the prices of the remaining imports, including the dumped imports, decreased. 205
Furthermore, Economía observed that, during the i nvestigation period, the dumped products were
priced below the domestic product and that the pri ce of the dumped imports was lower than the prices
of the domestic products in periods previous to the investigated period. As a result, Economía
determined that this situation pr ovoked the decline in the prices of the domestic producers. Also,
Economía considered that the entry during the inv estigated period of imports at reduced prices from
Argentina and the decline, in the same period, of the price of non-dumped imports from the United
States, contributed to the decline in prices of th e domestic products. Thus, Economía determined that
the dumped imports from the United States contributed to pressure faced by the domestic producers to
lower their prices during the investigated period.
206
2. The Panel's Reasoning and Mexico's Appeal
196. From reading Articles 3.1 and 3.2 of the Anti-Dumping Agreement together, the Panel
concluded that the basis for any evaluation as to the volume of dumped imports or the price effects of
such imports had to be positive evidence, and that "t he word 'positive' means that the evidence must
[have been] of an affirmative, objective and veri fiable character, and that it must be credible."
207
Thus, for the Panel, the question before it was whether Economía had based its determination on
information that is affirmative, objective, verifiable, and credible.

205Final Determination, supra, footnote 9, para. 270.
206Ibid., paras. 285 and 294-296.
207Panel Report, para. 7.98.

197. As regards the analysis of the volume of the dumped imports, the Panel was of the view that
the methodology used by Economía was flawed and r esulted in a determination that was not based on
positive evidence. For the Panel, the determinati on of the volume of dumped imports was based not
on facts, but on a series of unsubstantiated assumptions made by Economía
208: (i) as regards
companies other than the four participating firms, rice sold below a certain price level was assumed to
be long-grain white rice 209; (ii) during the years 1997 and 1998, the subject imports from companies
other than the four participating firms were assume d to keep the same share in the total amount of
imports of all types of rice from the United States as in the year 1999 210; and (iii) it was assumed that
all examined firms' export volumes show a similar trend to that of the exporter that provided full
three-year volume information, namely, Farmers Rice. 211 The Panel was of the view that all these
assumptions were unsubstantiated. The Panel added that Economía a ppeared to have consistently
chosen to make assumptions that negatively affected exporters' interests.212
198. With regard to the analysis on the evolution of prices of the dumped imports and their effects
on domestic prices, the Panel also found that Economí a's determination that dumped imports resulted
in a decline in domestic prices was based on unsubstantiated assumptions and, accordingly, was
inconsistent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement . The Panel observed that
Economía had compared three types of prices: (a) export price of all types of rice (both subject rice
and non-subject rice); (b) export price of Farmers Rice, a producer with no margin of dumping; and
(c) the export price of the remaining imports, including the dumped imports. According to the Panel,
Economía had assumed that:
... because the price of a broader category of rice – i.e. category (a) --
declined, and because the prices of one participating exporter of the
subject product, who was not found to have been dumping,
decreased, the third category of rice – (c) or "dumped imports" -- is a
sub-set of the first category of rice, and this third category of rice
must have declined also.
213 (footnote omitted)
The Panel did not consider this to be a warranted assumption.

208Panel Report, para. 7.111.
209Ibid.
210Ibid.
211Ibid., para. 7.112.
212Ibid.
213Ibid., para. 7.113.

199. For these reasons, the Panel found that Economía's injury analysis with regard to the volume
and price effects of the dumped imports was inconsistent with the requirements of Articles 3.1 and 3.2
of the Anti-Dumping Agreement to conduct an objective examination based on positive evidence. In
the light of these findings, the Panel exercised judi cial economy as regards the United States' claim
based on Article 6.8 of the Anti-Dumping Agreement (determinations on facts available) and
Annex II (best information available) thereto.
200. On appeal, Mexico challenges the Panel's findi ng that Economía did not conduct an objective
examination based on positive evidence of the volume and price effects of the dumped imports, as
required by Articles 3.1 and 3.2 of the Anti-Dumping Agreement. According to Mexico, Economía
made an objective examination based on positive evid ence because, in its injury analysis, it relied on
the information available to it, including the re levant data, and it eval uated this information
correctly.214 Mexico adds that Economía's examina tion of the trends in the volume of dumped
imports was based on facts properly established, as it appears from the structure of the Final
Determination, in which all the background, considerations, findings, and elements of the
determination consistent with Mexico's obligations under the Anti-Dumping Agreement were set
out.
215 For Mexico, Article 3 of the Anti-Dumping Agreement does not impose any requirement on
the methodology to be used and, therefore, the f act that Economía used the methodology described in
the Final Determination does not imply any violation of the Anti-Dumping Agreement .216 M e x i c o
also submits that the Panel's statement that "the investigating authority consistently chose to make
assumptions which negatively affected the exporters' interests" 217, is not supported by legal
reasoning.218 According to Mexico, Economía conducte d an injury analysis based on positive
evidence because it considered all th e available relevant information 219, and it was not possible to
collect any more information than that used during the investigation.220

215Ibid., para. 100.
216Ibid., para. 106.
217Panel Report, para. 7.112.
218Mexico's appellant's submission, paras. 108-109.
219Ibid., para. 111.
220Ibid., para. 110.

3. Analysis

201. We begin our analysis with the text of Articles 3.1 and 3.2 of the Anti-Dumping Agreement,
which provide:
Determination of Injury
3.1 A determination of injury for purposes of Article VI of
GATT 1994 shall be based on pos itive evidence and involve an
objective examination of both (a) the volume of the dumped imports
and the effect of the dumped imports on prices in the domestic
market for like products, and (b) the consequent impact of these
imports on domestic producers of such products.
3.2 With regard to the volume of the dumped imports, the
investigating authorities shall cons ider whether there has been a
significant increase in dumped imports, either in absolute terms or
relative to production or consump tion in the importing Member.
With regard to the effect of the dumped imports on prices, the
investigating authorities shall cons ider whether there has been a
significant price undercutting by the dumped imports as compared
with the price of a like product of the importing Member, or whether
the effect of such imports is otherwise to depress prices to a
significant degree or prevent price increases, which otherwise would
have occurred, to a significant degree. No one or several of these
factors can necessarily give decisive guidance. (footnote omitted)
202. We agree with the Panel that it flows from reading these two provisions together that the basis
of any evaluation as to the volume of dumped imports or the price effects of such imports has to be
positive evidence.
221 In this respect, the Appellate Body stated, in US – Hot-Rolled Steel , that the
term "positive evidence" in Article 3.1 relates "to the quality of the evidence that authorities may rely
upon in making a determination" and that "[t]he word 'positive' means ... that the evidence must be of an
affirmative, objective and verifiable character, and that it must be credible."222 We also observe that, in
Thailand – H-Beams, the Appellate Body said that "Article 3.1 is an overarching provision that sets
forth a Member's fundamental, substantive obligation" with respect to the injury determination, and
that this general obligation "informs the more de tailed obligations" in the remainder of Article 3. 223
Therefore, it appears to us that the Panel correc tly identified the question it had to address, namely,
whether Economía based its determinations regarding the volume of dumped imports and the effect of

221Panel Report, para. 7.98.
222Appellate Body Report, US – Hot-Rolled Steel, para. 192.
223Appellate Body Report, Thailand – H-Beams, para. 106.

the dumped imports on prices in the domestic market on information that has the quality of positive
evidence.224
203. In the methodology used to determine the volume of dumped imports, Economía relied on
three assumptions, which we set out above. 225 Its determination on the price effects of the dumped
imports was also built upon the assumption that the e xport price of the dumped imports follows the
same evolution as the export price of all types of rice (both subject rice and non-subject rice) and the
export price of Farmers Rice, a firm that was found not to have a margin of dumping. 226 All these
assumptions were critical to Economía's reasoning and its determinations on the volume and the price
effects of the dumped imports.
204. Mexico is correct in asserting that Articles 3.1 and 3.2 do not prescribe a methodology that
must be followed by an investigating authority in conducting an injury analysis. Consequently, an
investigating authority enjoys a certain discreti on in adopting a methodology to guide its injury
analysis. Within the bounds of this discretion, it may be expected that an investigating authority
might have to rely on reasonable assumptions or draw inferences. In doing so, however, the
investigating authority must ensure that its dete rminations are based on "positive evidence". Thus,
when, in an investigating authority's methodol ogy, a determination rests upon assumptions, these
assumptions should be derived as reasonable inferences from a credible basis of facts, and should be
sufficiently explained so that their objectivity and credibility can be verified.
205. In this case, the Panel found violati ons of Articles 3.1 and 3.2 of the Anti-Dumping
Agreement because important assumptions on which Ec onomía was relying in its methodology were
"unsubstantiated".
227 An investigating authority that uses a methodology premised on unsubstantiated
assumptions does not conduct an examination based on positive evidence. An assumption is not
properly substantiated when the investigating aut hority does not explain why it would be appropriate
to use it in the analysis. The assumptions on wh ich Economía relied in its methodology played an
important role in its reasoning. In the Final Determination, Economía di d not explain why these
assumptions were appropriate and credible in the analysis of the volume and price effects of the
dumped imports, or how they would contribute to providing an accurate picture of the volume and

224Panel Report, para. 7.110.
225See supra, para. 197.
226Final Determination, supra, footnote 9, para. 270.
227Panel Report, paras. 7.111-7.113.

price effects of the dumped imports.
228 We therefore agree with the Panel that the assumptions on
which Economía was relying in its methodology were not properly substantiated.
206. Accordingly, we uphold the Panel's findings, in paragra phs 7.116 and 8.1(c) of the Panel
Report, that Economía's injury analysis with r espect to the volume and price effects of dumped
imports was inconsistent with the requi rements of Articles 3.1 and 3.2 of the Anti-Dumping
Agreement to conduct an objective examination based on positive evidence.
VI. Economía's Dumping Determination
A. The Application of the Anti-Dumping Measure to Farmers Rice and Riceland
207. We now turn to issues relating to Economía's dumping determination. The first issue we
examine is whether the Panel erred in finding that, by not excluding Farmers Rice and Riceland from
the application of the definitive anti-dumping measure , Mexico acted inconsiste ntly with Article 5.8
of the Anti-Dumping Agreement . These two exporters were found by Economía not to have been
dumping during the period of inv estigation, but were nevertheless covered by the anti-dumping
measure.
208. The Panel found that, by not excluding Farmers Rice and Riceland from the application of the
definitive anti-dumping measure, Mexico did not terminate immediately the anti-dumping
investigation with respect to these non-dumping export ers and, therefore, acted inconsistently with
Article 5.8 of the Anti-Dumping Agreement . For the Panel, the second sentence of Article 5.8
requires the immediate termination of the investig ation in respect of an exporter for which an
individual margin of dumping of zero or de minimis is found. This is a proper reading of Article 5.8
because, the Panel reasoned, the term "margin of dumping" in Article 5.8—as well as in the Anti-
Dumping Agreement in general—refers to the individual margin of dumping of an exporter or
producer, rather than to a country-wide margin of dumping.
229 The Panel based this view on the fact
that Article 6.10 of the Anti-Dumping Agreement provides that the authorities shall, as a rule,
determine an individual margin of dumping for each known exporter or producer of the product under
investigation. The Panel examined the rest of the Anti-Dumping Agreement and found that there was
nothing in that Agreement that contradicts the conclusion that the term "margin of dumping" is

228Final Determination, supra, footnote 9, paras. 228-229, 239, and 270. The justification provided by
Economía for resorting to assumptions was the lack of hard data. This is not a sufficient explanation because,
by definition, assumptions are used in the absence of hard evidence, as surrogates for such data. Instead, we
would expect an investigating authority to substan tiate the reasonableness and credibility of particular
assumptions.
229Panel Report, para. 7.137.

company-specific, rather than country-wide. 230 In particular, the Panel observed that "[a] number of
references to the 'exporter or producer under i nvestigation' in Article 2, for example in
Article[s] 2.2.1.1, 2.2.2, and 2.3 of the [ Anti-Dumping Agreement ], make explicit the generally
accepted understanding that Article 2 of the [ Anti-Dumping Agreement ] prescribes the manner in
which an individual margin of dumping for an expo rter or producer under investigation is to be
determined."231 According to the Panel, "whenever the [ Anti-Dumping Agreement ] refers to the
determination of a margin of dumping, it refers to the margin of dumping determined for the
individual exporter."232
209. The Panel considered that Economía's calculation of individual margins of dumping for all
exporters participating in the investigation was cons istent with the Panel's views. The Panel also
underscored that, in Article 5.8 of the Anti-Dumping Agreement, the margin of dumping is juxtaposed
with the volume of dumped imports and that, whereas it is expressly stipulated that the latter is to be
examined on a country-wide basis, no such stipulation is made with regard to the margin of dumping.
For the Panel, this confirmed its view that the refe rence to the margin of dumping in Article 5.8 is a
reference to the individual margin of dumping to be determined on an exporter-specific basis.
233
Accordingly, the Panel found that the investigation that is to be immediately terminated under the
second sentence of Article 5.8 is the investigation in respect of the individual exporter for which a
zero or de minimis margin is established.234
210. The Panel then addressed Mexico's argument that the application of the anti-dumping order to
Farmers Rice and Riceland was WTO-consistent because no duty in excess of the zero margin of
dumping was imposed and that, as long as the requireme nt of Article 9.3 (amount of dumping duty) is
respected, nothing in the Agreement prohibits th e inclusion of non-dumping exporters in an anti-
dumping measure. The Panel rejected this argum ent on the ground that Articles 5.8 and 9.3 serve
different purposes and that, accordingly, compliance with Article 9.3 does not constitute compliance
with Article 5.8. For the Panel, Article 5 of the Anti-Dumping Agreement , entitled "Initiation and
Subsequent Investigation", concerns the investiga tion to determine whether or not an exporter or
producer may be subject to an anti-dumping order. In this context, the Panel reasoned, Article 5.8 of
the Anti-Dumping Agreement requires the termination of the in vestigation, and thus the exclusion
from the anti-dumping order, of any exporter or producer with a margin of dumping below
de minimis. The Panel contrasted this with Article 9.3, which deals with the amount of the duty to be

230Panel Report, para. 7.138.
231Ibid., para. 7.139. (footnote omitted)
232Ibid., para. 7.140.
233Ibid., para. 7.141.
234Ibid., para. 7.140.

imposed and collected after it has been established th at a duty may be applied to a given exporter or
producer.
235 Accordingly, the Panel found that, by not excluding from the application of the definitive
anti-dumping measure two exporters that were found by Economía not to have been dumping, Mexico
did not terminate immediately the investigation in resp ect of them and, thus, acted inconsistently with
Article 5.8 of the Anti-Dumping Agreement.
211. On appeal, Mexico challenges this finding on the ground that the Panel did not interpret
Article 5.8 correctly. Mexico argues that, contra ry to the Panel's view, Article 5.8 requires the
termination of the investigation when, for a give n country, the country-wide margin of dumping is
de minimis. Mexico contends that the Panel came to the erroneous conclusion that the term "margin
of dumping" in Article 5.8 refers to the individu al margin of dumping of an exporter or producer,
rather than to a country-wide margin of dum ping; the Panel erred because it focused on the
interpretation of the term "margin of dumping" instead of analyzing, first, the term "investigation" and
the phrase "an investigation shall be terminated prom ptly". Mexico argues that the Panel's reasoning
implies that, in anti-dumping procedures, the number of investigations should be equal to the number
of exporters involved 236, which would be inconsistent with th e text of Article 5.8 referring to the
termination of "an investigation". Mexico adds that the phrase "to justify proceeding with the case" in
the first sentence of Article 5.8, as well as the phras e "[t]here shall be immediate termination" in the
second sentence, confirms that the phrase "an investigation shall be terminated promptly" refers to the
procedure as a whole, and not to actions in respect of one exporter. 237 For Mexico, the main purpose
of anti-dumping procedures is to undertake a revi ew with regard to products, not exporters. 238 Thus,
the word "investigation", used in Ar ticle 5.8, refers to a stage in any anti-dumping procedure, and not
to action with respect to an individual exporter.239
212. Mexico also argues that the Panel erred in finding that Article 5.8 requires "the exclusion
from the anti-dumping order of any exporter or producer with a below de minimis margin of
dumping"240, because such a finding is based on the as sumption that definitive anti-dumping duties
constitute a measure. For Mexico, this assumption is incorrect: definitive anti-dumping duties would
not, in themselves, constitute a measure; the measure would consist, rather, of the act of the authority
that imposes such duties. 241 Mexico goes on to argue that nowhere in the Anti-Dumping Agreement

235Panel Report, para. 7.144.
237Ibid.
238Ibid.
239Ibid.
240Panel Report, para. 7.144.

is it stated that it is not possible to apply a measure to exporters for whom a de minimis margin has
been determined.242
213. Mexico submits that Article 3.3 of the Anti-Dumping Agreement provides relevant context
for interpreting Article 5.8, and that the Panel erre d by ignoring this provision. Article 3.3 refers,
inter alia, to the determination that "the margin of dumping established in relation to the imports from
each country is more than de minimis as defined in paragraph 8 of Article 5". Mexico underscores
that Article 3.3 refers to a country-wide margin of dumping, not to the individual margin of dumping
of an exporter or producer. Mexico also emphasizes that Article 5.8 is specifically mentioned in
Article 3.3. According to Mexico, Article 3.3 conf irms that the relevant margin of dumping is the
margin of dumping established in relation to the imports from each country.
243
214. Finally, Mexico contends that, in any event, it acted consistently with Article 5.8 because
Economía was satisfied that the margin of dumpi ng for Riceland and Farmers Rice was zero per cent
only at the stage of the final determination, and the investigation was terminated at that stage. 244
Mexico states that the second sentence of Article 5. 8 provides that the termination of the investigation
takes place when the authority determin es that "the margin of dumping is de minimis ". Mexico
explains that, with respect to Mexico's anti-dum ping regime, such a determ ination cannot be made
before the final determination stage, because it is only at that moment that Economía is able to
determine with certainty whether the margin of dumping is de minimis.245 Mexico thus contends that,
vis-à-vis Riceland and Farmers Rice, it complied with Article 5.8, because Economía was satisfied
that their margin of dumping was zero per cent only when the final determination was made, and
Economía terminated the investigation at that time.246

243Ibid., para. 128.
244Ibid., para. 139.
245Ibid., para. 141.
246Ibid., para. 142.

215. We begin our analysis with Article 5.8 of the Anti-Dumping Agreement, which reads:
An application under paragraph 1 shall be rejected and an
investigation shall be terminated promptly as soon as the authorities
concerned are satisfied that there is not sufficient evidence of either
dumping or of injury to justify proceeding with the case. There shall
be immediate termination in cases where the authorities determine
that the margin of dumping is de minimis , or that the volume of
dumped imports, actual or potential, or the injury, is negligible. The
margin of dumping shall be considered to be de minimis if this
margin is less than 2 per cent, expressed as a percentage of the export
price. The volume of dumped imports shall normally be regarded as
negligible if the volume of dumped imports from a particular country
is found to account for less than 3 per cent of imports of the like
product in the importing Member, unless countries which
individually account for less than 3 per cent of the imports of the like
product in the importing Member collectively account for more than
7 per cent of imports of the like product in the importing Member.
216. The Panel's position—that the term "margin of dumping" in Article 5.8 refers to the
individual margin of dumping of an exporter or pr oducer rather than to a country-wide margin of
dumping—is consistent with the use of the term "margins of dumping" in Article 2.4.2 of the Anti-
Dumping Agreement
247, as stated by the Appellate Body in US – Hot-Rolled Steel:
"[M]argins" means the individual margin of dumping determined for
each of the investigated exporters and producers of the product under
investigation, for that particular product.
248 (footnote omitted)
217. We also agree with the reasons provided by the Panel in support of its position, which are set
out in paragraphs 7.137 to 7.142 of the Panel Report, and summarized in paragraph 208 above.
Accordingly, we share the Panel's view that the second sentence of Article 5.8 requires the immediate
termination of the investigation in respect of exporters for which an individual margin of dumping of
zero or de minimis is determined.

247Article 2.4.2 of the Anti-Dumping Agreement provides:
Subject to the provisions governing fa ir comparison in paragraph 4, the
existence of margins of dumping during the investigation phase shall
normally be established on the basis of a comparison of a weighted average
normal value with a weighted average of prices of all comparable export
transactions or by a comparison of no rmal value and export prices on a
transaction-to-transaction basis. A normal value established on a weighted
average basis may be compared to prices of individual export transactions if
the authorities find a pattern of export prices which differ significantly
among different purchasers, regions or time periods, and if an explanation is
provided as to why such differences cannot be taken into account
appropriately by the use of a weight ed average-to-weighted average or
transaction-to-transaction comparison.
248Appellate Body Report, US – Hot-Rolled Steel, para. 118.

218. Having said that, we agree with Mexico that, for the purposes of Article 5.8, there is one
investigation and not as many investigations as ther e are exporters or foreign producers. However,
nothing in the Panel Report suggests to us that the Panel assumed differently. The Panel's position
was, rather, that there is a single investigation, and that Article 5.8 requires the "immediate
termination" of this investigation in respect of the individual exporter or producer for which a zero or
 de minimis margin is established.
249
219. The second sentence of Article 5.8 provides that there shall be "immediate termination" of the
investigation where the authorities determine that the margin of dumping is de minimis. The issuance
of the order that establishes anti-dumping duties—or the decision not to issue an order—is the
ultimate step of the "investigation" contemplated in Article 5.8; in most cases, an investigation is
"terminated" with the issuance of an order or a de cision not to issue an order. This ultimate step
necessarily follows the final determination. In the present case, the order establishing anti-dumping
duties came after the final determination of a margin of dumping of zero per cent was made for
Farmers Rice and Riceland, but the order nevert heless covered these exporters. Given that the
issuance of the order establishing anti-dumping duti es necessarily occurs after the final determination
is made, the only way to terminate immediately an investigation, in respect of producers or exporters
for which a de minimis margin of dumping is determined, is to exclude them from the scope of the
order. Economía failed to do so, and, therefore, it did not terminate immediately the investigation in
respect of Farmers Rice and Riceland, as required by Article 5.8 of the Anti-Dumping Agreement.
220. Regarding Mexico's arguments a bout the relevant context in Article 3.3 for interpreting the
term "margin of dumping" in Article 5.8, in our op inion, Article 3.3 does not add to the analysis of
Article 5.8. First, Article 3.3 establishes conditions for cumulation of the effects of the imports from
more than one country, which is unrelated to the te rmination of an investigation under Article 5.8.
Secondly, although, as Mexico pointed out, Article 3.3 refers to Article 5.8, this reference concerns
uniquely the definition of a de minimis margin of dumping (defined in the third sentence of
Article 5.8 as a margin of less than two per cent, expressed as a percentage of the export price).
Mexico's contention that the Panel erred in the in terpretation of Article 5.8 does not relate to the
definition of " de minimis ". Accordingly, we are of the view that the reference to Article 5.8 in
Article 3.3 is not relevant to Mexico's argument under Article 5.8. Thirdly, it is explicitly provided in
Article 3.3 that "the margin of dumping [is] establis hed in relation to the imports from each country".
It could be argued that this spec ific language was incorporated into Article 3.3 to mark a departure
from the general rule that the term "margin of dumping" refers to the individual margin of dumping of
an exporter or producer. In other words, although Me xico contends that Article 3.3 provides context

249Panel Report, para. 7.140.

to suggest that the Panel erred in its interpretation of Article 5.8, it could also be viewed as context
that supports the Panel's interpretation of Article 5.8, as no language similar to that of Article 3.3 ("the
margin of dumping [is] established in relation to imports from each country") can be found in
Article 5.8. Accordingly, we are of the view that , contrary to what Mexico argues, Article 3.3 does
not provide useful context for interpreting the term "margin of dumping" in Article 5.8.
221. For all these reasons, we uphold the Panel's findings, in paragraphs 7.145 and 8.3(a) of the
Panel Report, that Mexico acted inconsistently with Article 5.8 of the Anti-Dumping Agreement
when it did not terminate immediately the inves tigation in respect of Farmers Rice and Riceland
because Economía did not exclude them from the ap plication of the definitive anti-dumping measure,
whereas these exporters were found by Economía not to have been dumping.
B. The Margin of Dumping for Producers Rice and the Terms of Reference
222. We move now to the issue whether the Panel acted in conformity with its terms of reference
in finding that the margin of dumping was calculated in a manner inconsistent with Article 6.8 of the
Anti-Dumping Agreement, read in the light of paragraph 7 of Annex II thereto.
223. This issue concerns Economía's calculation of a margin of dumping for Producers Rice based
on the facts available. This firm did not export the subject product during the period of investigation.
It also responded to the questionnaire and fully co operated with Economía. Mexico contends that,
under the terms of reference, the Panel did not have the authority to assess whether, in applying a
facts available-based dumping margin to Produ cers Rice, Economía acte d consistently with
Article 6.8 of the Anti-Dumping Agreement and Annex II thereto, given that the Panel found that
Mexico did not breach Article 9.4 of the Anti-Dumping Agreement.
224. The Panel addressed, first, the United States' claim that the anti-dumping duty for Producers
Rice should have been determined on the basis of the methodology described in Article 9.4 of the
 Anti-Dumping Agreement. The Panel considered that Article 9.4 deals with "the very specific and
defined situation of the use of a sample by the i nvestigating authority" in cases where the number of
exporters, producers, importers, or types of products involved is so large as to make impracticable the
determination of an individual margin of dumping for each known exporter or producer.
250 For this
particular situation, the Panel added, Article 9. 4 provides a specific methodology with regard to the
calculation of the anti-dumping duty for those interested parties that did not form part of the
sample.
251 For the Panel, Article 9.4 does not appl y to situations other than cases involving

250Panel Report, para. 7.157.
251Ibid., para. 7.158.

sampling.252 In this case, Economía did not resort to sampling. The Panel therefore rejected the
United States' claim relating to Article 9.4.253
225. The Panel went on to examine the United States' claim that Economía acted in breach of
Article 6.8 of the Anti-Dumping Agreement when resorting to the use of facts available to calculate a
duty rate for the non-shipping exporter, Producers Rice. The Panel noted that Article 6.8 permits
determinations to be made on the basis of the best information available, but only if certain conditions
are met.
254 Some of those conditions are set out in Annex II to the Anti-Dumping Agreement.255 For
the Panel, the use of the term "best information" in Annex II means that information has to be not
simply correct or useful per se, rather, it must be the most fitting or most appropriate information
available in the case at hand. The Panel added that "[d]etermining that something is 'best' inevitably
requires ... an evaluative, comparative assessment as the term 'best' can only be properly applied
where an unambiguously superlative status obtains."
256 The Panel also underscored that paragraph 7
of Annex II requires that, if the authorities ha ve to base their findings on information from a
secondary source, they should do so with "special circumspection".257
226. The Panel observed that Economía determined that a margin based on the facts available had
to be calculated for Producers Rice because it did not make any exports during the investigated
period. Assuming arguendo that Economía would be entitled to determine a margin based on the
facts available, the Panel concluded that the manne r in which the facts available were used with
regard to Producers Rice was not in accordance with Article 6.8 or Annex II. On the basis of an
examination of the record, the Panel found:
... no basis to consider that the au thority made any attempt to check
the applicant's information against information obtained from other
interested parties or undertook the evaluative, comparative
assessment that would have enabled the authority to assess whether
the information provided by th e applicant was indeed the best
information available."
258 (original emphasis)

252Panel Report, para. 7.158.
253Ibid., para. 7.159.
254Ibid., para. 7.166.
255Annex II is entitled "Best Information Available in Terms of Paragraph 8 of Article 6".
256Panel Report, para. 7.166.
258Ibid., para. 7.167.

The Panel added that, in its view, Economía did not use the applicant's information with "special
circumspection" as required by paragraph 7 of Annex II.
259 Accordingly, the Panel found that
Economía calculated a margin of dumping on the basis of the facts available for Producers Rice in a
manner inconsistent with Article 6.8 of the Anti-Dumping Agreement, read in the light of paragraph
7 to Annex II of the Anti-Dumping Agreement.260
227. Mexico does not challenge the substance of th e Panel's reasoning. Rather, it contests the
Panel's authority, under the terms of reference, to make a finding regarding Article 6.8 of the Anti-
Dumping Agreement and Annex II thereto, given the Pa nel's finding on Article 9.4 of that
Agreement. According to Mexico, the United Stat es did not make two distinct claims—one on the
basis of Article 9.4, and the other on the basis of Article 6.8 and Annex II—but a single claim centred
on Article 9.4. This single United States claim, according to Mexico, is that Economía was under an
obligation to comply with the provisions of Article 9.4, and that Mexico violated the Anti-Dumping
Agreement in calculating a margin of dumping for Produ cers Rice on the basis of the facts available,
instead of applying the provisions of Article 9.4.
261 Mexico contends that the Panel disposed of the
issue raised by the United States' claim in deciding that Economía did not have to calculate the margin
of dumping for Producers Rice according to the provi sions of Article 9.4. For Mexico, this Panel
finding resolved the issue, and the Panel exceeded its terms of reference in analyzing whether Mexico
calculated the margin of dumping for Producers Rice in conformity with Article 6.8 and Annex II.262
228. We begin our analysis with the terms of refere nce of the Panel, which establish the scope of
the dispute and the jurisdiction of the Panel:
To examine, in the light of the relevant provisions of the covered
agreements cited by the United St ates in document WT/DS295/2, the
matter referred to the DSB by the United States in that document, and
to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those
agreements.
263

259Panel Report, para. 7.167.
260Ibid., para. 7.168.
261Mexico's appellant's submission, paras. 151-152.
262Ibid., para. 155.
263Panel Report, para. 1.2.

229. The Panel's standard terms of reference refer to document WT/DS295/2, the request for the
establishment of a panel by the United States. Paragraph 1(f) of the panel request reads as follows:
On 5 June 2002, Mexico published in the Diario Oficial its definitive
antidumping measure on long-grain white rice. This measure appears
to be inconsistent with the following provisions of the AD
Agreement and the GATT 1994:

(f) Articles 6.6, 6.8, 6.10, 9.3, 9.4, and 9.5 of the AD
Agreement, and paragraphs 1, 3, 5, 6, and 7 of Annex II of
the AD Agreement, by applying the facts available to a US
respondent rice exporter that was investigated and found to
have no shipments during the period of investigation ... .
230. The panel request refers to Article 6.8 a nd five paragraphs of Annex II to the Anti-Dumping
Agreement, as well as to Article 9.4 of that Agreement. Thus, under its terms of reference, the Panel
had jurisdiction to decide whether Mexico acted in a manner inconsistent with Articles 6.8 and 9.4 of
the Anti-Dumping Agreement, and paragraphs 1, 3, 5, 6, and 7 of Annex II thereto, "by applying the
facts available to a [United States] respondent rice exporter that was investigated and found to have
no shipments during the period of investigation".
231. Furthermore, it appears from the United States' first written submission to the Panel that the
United States made a distinct claim on the basis of Article 6.8 and Annex II, in addition to a claim
based on Article 9.4. In paragraph 171 of that submission, the United States claimed that, "[f]irst,
Economía's application of a facts available ma rgin to Producers Rice breached Article 9.4."
264
Arguments in support of this claim were developed in paragraphs 171 to 173 of the United States' first
written submission to the Panel. The United States put forward a distinct claim in paragraph 174,
alleging that "Economía's treatment of Producers Rice also breached Article 6.8 of the [ Anti-
Dumping Agreement ] and paragraphs 3, 5, 6 a nd 7 of Annex II." (emphasi s added) Arguments in
support of this claim were elaborated in paragraphs 174 to 183. These arguments are different from
and independent of those developed in paragrap hs 171 to 173—in support of the claim that
"Economía's application of a facts available margin to Producers Rice breached Article 9.4."
265
232. Neither the request for the establishment of a panel, nor the United States' first written
submission to the Panel, supports Mexico's theory th at the United States' case was limited to a single
claim centred on Article 9.4. The terms of refe rence were broad enough to allow the Panel to
examine whether the use of facts available to ca lculate the margin of dumping for Producers Rice

264United States' first written submission to the Panel, para. 171.
265Ibid.

breached Article 9.4, as well as to consider whether the use of facts available was inconsistent with
Article 6.8 (considered in combination with Annex II). In its submissions to the Panel, the United
States elaborated arguments on two distinct clai ms, one based on Article 9.4, and the other on
Article 6.8 and Annex II. Neither the terms of refe rence, nor the claims made by the United States
before the Panel, prevented the Panel from analyzing arguments relating to Article 9.4 as well as those
relating to Article 6.8 and Annex II. The Panel was entitled to examine claims under Article 9.4 as
well as under Article 6.8 together with paragraph 7 of Annex II.
233. Accordingly, we find that the Panel did not exceed its terms of reference in concluding, in
paragraphs 7.168 and 8.3(b) of th e Panel Report, that Economía calculated a margin of dumping on
the basis of the facts available for Producers Rice in a manner inconsistent with Article 6.8 of the
Anti-Dumping Agreement, read in the light of paragraph 7 of Annex II to that Agreement.
C. The Margin of Dumping for the Exporters Not Investigated
234. We move now to Mexico's appeal against th e Panel's findings in relation to Economía's
calculation of a margin of dumping based on the fact s available for the United States exporters that it
did not investigate.
235. The application filed by the Mexican petiti oner referred to two Un ited States exporters,
Producers Rice and Riceland. Economía initiated the investigation and sent a notice of initiation as
well as a questionnaire to each of the two exporters lis ted in the application and to the United States
Embassy in Mexico City. The notice of initiation stat ed that any interested party had a period of 30
days to appear before Economía. Two United Stat es exporters, The Rice Company and Farmers Rice,
as well as an industry association, the USA Rice Fe deration, came forward on their own initiative and
each completed a questionnaire. Individual marg ins of dumping were assigned for all four United
States exporters that participated in the investiga tion. For all other United States exporters that did
not come forward themselves and did not provide information, a residual margin of dumping was
calculated based on the facts available. These fact s available consisted of the information submitted
by the petitioner.
266 The margin of dumping assigned to the exporters not investigated was 10.18 per
cent.267

266Final Determination, supra, footnote 9, para. 138.
267In comparison, Economía determined a margin of dumping of 3.93 per cent for The Rice Company
and zero per cent for Farmers Rice and Riceland. Economía calculated an individual margin of dumping based
on the facts available for Producers Rice. The margin of dumping assigned for Producers Rice was also 10.18
per cent. (See Final Determination, supra, footnote 9, paras. 91, 113, 137, 138, and 157)

236. The Panel began its analysis with Article 6.10 of the Anti-Dumping Agreement, which sets
forth the general rule that "[t]he authorities sha ll determine ... an individual margin of dumping for
each known exporter or producer concerned of the pr oduct under investigation." The Panel's analysis
focused on the interpretation of the term "known e xporter or producer" in Article 6.10. The Panel
examined the context of this provision and considered that it consisted of "the overarching obligation
to conduct an investigation and ... the specific obligations on the authority to ensure that all
interested parties are in formed of the information required of them and are given the opportunity to
present all evidence to support their case." 268 For the Panel, the notion of "investigation" implies that
the investigating authority "has to play an active ro le in the search of the information it requires in
order to make its determination."269 In addition, the Panel stated that the term "known" in Article 6.10
cannot be construed in a manner that would transfor m it into "a warrant for a passive investigative
approach", as such an interpretation would "effectively read out of the [ Anti-Dumping Agreement] an
important aspect of the obligation of an investigating authority regarding the conduct of an
investigation."
270 On these bases, the Panel concluded that the term "known exporter or producer" in
Article 6.10 refers to the exporters or producers of which "an objective and unbiased investigating
authority properly establishing the facts and conducti ng an active investigation could have and should
have reasonably been considered to have [obtained] knowledge."271
237. The Panel then moved on to Articles 6.1, 6.1.3, and 12.1 of the Anti-Dumping Agreement .
Article 6.1 requires that all interested parties be given notice of the information required by the
investigating authority, whereas Article 6.1.3 specifies that the full text of the application is to be
provided to the known exporters. Article 12.1 simila rly provides for a notification requirement with
regard to all interested parties known to have an in terest in the investigation. In analyzing these
provisions, the Panel took an approach similar to that it adopted for its analysis of Article 6.10. The
Panel opined that, in order to comply with the requi rement to ensure that all interested parties be
given notice of the information required of them, the investigating authority, when conducting an
investigation, cannot remain "entirely passive" in the identification of the interested parties, and must
inform those interested parties of which it can reasonably obtain knowledge.272
238. According to the Panel, the requirement in Artic le 6.1 is fundamental to a correct application
of Article 6.8, which concerns the use of facts av ailable by the investigating authority. Article 6.8
provides that, when an interested party refuses access, to or does not provide necessary information

268Panel Report, para. 7.184. (original emphasis)
269Ibid., para. 7.185.
270Ibid., para. 7.188.
271Ibid., para. 7.187. (footnote omitted)
272Ibid., para. 7.192.

within, a reasonable period, or significantly impede s the investigation, a determination may be made
on the basis of the facts available. The Panel re asoned that a determination cannot be made on the
basis of the facts available if an interested party has not been properly notified and informed of the
information it is required to subm it under Article 6.1, because "it cannot be argued to have refused
access to or to otherwise have withheld necessary information or to have significantly impeded the
investigation."
273 The Panel added that this is "evidenced also by the requirement in paragraph 1 of
Annex II of the [Anti-Dumping Agreement]".274
239. Turning to the facts of the case, the Panel stat ed that Economía could have deduced from the
application that the listing in the application of exporters or foreign producers was incomplete.275 The
Panel expressed the view that Economía could have obtained information about the rice industry in
the United States through two industry associations me ntioned in the application, and that it would
have been possible for Economía to identify all Unit ed States exporters by examining the so-called
pedimentos (customs declarations). 276 The Panel added that information on United States exporters
was also available from a number of public sources, such as a United States magazine about the rice
industry, Rice Journal, a source mentioned in the application filed by the Mexican petitioner. 277 The
Panel also noted that, "[w]hile the investigating authority notified the US authorities of the initiation
of the investigation as required by Article[s] 6.1.3 and 12.1 of the [ Anti-Dumping Agreement], it did
not request the assistance of the authorities in identifying US exporters or producers." 278 For these
reasons, the Panel concluded that "an objective and unbiased investigating authority conducting an
investigation in a reasonable manner should have made more of an effort to obtain knowledge of other
US exporters."279
240. Accordingly, the Panel found that Economía did not comply with Articles 6.1 and 12.1 of the
Anti-Dumping Agreement "as it failed to notify all interested parties known to have an interest in the
investigation of the initiation of the investiga tion and of the informa tion required of them." 280 I n
addition, the Panel found that "by applying the fact s available in the calculation of a margin of
dumping for the [United States] exporters or produ cers that were known or could reasonably have
been known to the authority, Mexico acted in a ma nner which is inconsistent with Article 6.8 and

273Panel Report, para. 7.194.
274Ibid.
275Ibid., paras. 7.197-7.198.
276Ibid., para. 7.199.
277Ibid.
278Ibid.
279Ibid.
280Ibid., para. 7.200.

paragraph 1 of Annex II of the [ Anti-Dumping Agreement]."281 As regards Article 6.10 of the Anti-
Dumping Agreement , the Panel found that Mexico acted in breach of this provision "by remaining
entirely passive in the identification of exporters or producers interested in the investigation, and by
not calculating an individual margin for dumping for each exporter or producer that was known or
should reasonably have been known to the investigating authority."
282 The Panel exercised judicial
economy with respect to the United States' claims concerning Article 6.6 (accuracy of information),
Article 9.4 (duty applied to e xporters or producers not examined , and Article 9.5 (exporters or
producers not exporting the product to the importing Member) of the Anti-Dumping Agreement.
241. Mexico challenges the Panel's findings that Economía's treatment of non-investigated
exporters and producers was inconsistent with Ar ticles 6.1, 6.8, 6.10, 12.1, and paragraph 1 of
Annex II to the Anti-Dumping Agreement. Mexico's appeal focuses on the Panel's view that, under
these provisions, the known producers or exporters incl ude those of which an investigating authority
should have reasonably been considered to have knowledge, and that an investigating authority should
take steps to find out which are the exporters or producers covered by the investigation.
242. Mexico argues that, under Article 6.10, the inv estigating authority is obliged to determine
individual margins of dumping for those exporters or producers whose existence has been notified,
but the investigating authority does not have to determine individual margins for all producers and
exporters. According to Mexico, there is no provision in the Anti-Dumping Agreement laying down
such an obligation. 283 Mexico argues that it complied with Article 6.10 by calculating individual
margins of dumping for all known exporters or forei gn producers that took part in the investigation.284
As regards the exporters that were not investigat ed individually, Mexico submits that it met its
obligations under the Anti-Dumping Agreement by giving the United States authorities public
notification of initiation of the investigation, a copy of the request to initiate an investigation and the
annexes thereto, as well as the form to be completed by exporters and foreign producers. 285 F o r
Mexico, the Panel's reasoning is flawed because the Panel made an a priori assumption that the
diplomatic authorities of the exporting Member do not have any obligation to make their exporters or
producers aware of the investigation, whereas such an obligation exists and is stated in footnote 15 to
Article 6.1.1 of the Anti-Dumping Agreement .286 Mexico adds that it complied with Articles 6.1
and 12.1 of the Anti-Dumping Agreement as there is no provision in the Anti-Dumping Agreement

281Panel Report, para. 7.200.
282Ibid., para. 7.201.
284Ibid., para. 168.
285Ibid., para. 169.
286Ibid., para. 173.

that requires an investigating authority to take an y action in order to iden tify each and every one of
the foreign producers or exporters.
287
243. Mexico also contends that, under Article 6.8, Mexico was entitled to calculate a margin of
dumping based on the facts available for the export ers and producers that were not investigated,
because Mexico had met its obligations under Artic les 6.1 and 6.10, and the firms that were not
investigated had failed to provide the necessary information.288
244. We divide our analysis in three parts. Firs t, we examine whether the Panel erred in finding
that Economía did not comply with Articles 6.1 and 12.1 of the Anti-Dumping Agreement because "it
failed to notify all interested parties known to have an interest in the investigation of the initiation of
the investigation and of the information required of them." 289 In the second part, we turn to the
question whether the Panel erred in finding that Mexico acted in breach of Article 6.10 of the Anti-
Dumping Agreement "by not calculating an individual margin of dumping for each exporter ... that
was known or should reasonably have been known to the investigating authority." 290 Finally, we
discuss in the third part whether the Panel was correct in finding that, by applying the facts available
in the calculation of a margin of dumping for th e United States exporters that were known or could
reasonably have been known to Economía, Mexico acted inconsistently with Article 6.8 and
paragraph 1 of Annex II to the Anti-Dumping Agreement.291
1. Articles 12.1 and 6.1 of the Anti-Dumping Agreement
245. We begin our analysis with the text of Articles 12.1 and 6.1 of the Anti-Dumping Agreement:
Public Notice and Explanation of Determinations
12.1 When the authorities are satisfied that there is sufficient
evidence to justify the initiation of an anti-dumping investigation
pursuant to Article 5, the Member or Members the products of which
are subject to such investigation and other interested parties known to
the investigating authorities to have an interest therein shall be
notified and a public notice shall be given.

288Ibid., paras. 178 and 182.
289Panel Report, para. 7.200.
290Ibid., para. 7.201.
291Ibid., para. 7.200.

Evidence
6.1 All interested parties in an anti-dumping investigation shall
be given notice of the information which the authorities require and
ample opportunity to present in writing all evidence which they
consider relevant in respect of the investigation in question.
246. Article 12.1 provides that "interested parties know n to the investigating authorities to have an
interest" in the investigation "shall be notified" of the initiation of the anti-dumping investigation. We
note that Article 6.11(i) defines "interested parti es" for the purposes of the Agreement to include "an
exporter or foreign producer or the importer of a product subject to investigation, or a trade or
business association a majority of the members of which are producers, exporters or importers of such
product".
247. The Panel found that the term "interested par ties known to the investigating authorities" in
Article 12.1 covers not only the expor ters known to the investigating authority, but also the exporters
of which "it can reasonably obtain knowledge".
292 In our view, the extensive interpretation given by
the Panel to this term is incorrect. The text of Article 12.1 is not ambiguous: the investigating
authority is under the obligation to notify the initiation of the investigation to the exporters known to
it at the time it is satisfied that there is sufficient ev idence to justify the initiation of the investigation.
Nothing in the text of Article 12.1 suggests that the notification requirement applies to importers other
than those of which the investigating authority had actual knowledge at that time.
248. In this case, upon the initiation of the investig ation, Economía knew the exporters referred to
in the application, Producers Rice and Riceland. Economía sent a notice of initiation of the
investigation to each of them. 293 Economía thus notified the initiation of the investigation to the
exporters known to it at that time, thereby complying with Article 12.1 of the Anti-Dumping
Agreement.
249. We move now to Article 6.1 of the Anti-Dumping Agreement. Under this provision, "[a]ll
interested parties in an anti-dumping investigation shall be given notice of the information which the
authorities require". This element of Article 6.1 s hould be read in the light of Article 6.1.3, which
provides:

292Panel Report, para. 7.192.
293Ibid., para. 7.197.

As soon as an investigation has been initiated, the authorities shall
provide the full text of the written application received under
paragraph 1 of Article 5 to the know n exporters and to the authorities
of the exporting Member and shall make it available, upon request, to
other interested parties involved. Due regard shall be paid to the
requirement for the protection of confidential information, as
provided for in paragraph 5. (footnote omitted)
This provision requires investigation authorities to "provide the full text of the written application ...
to the known exporters ". (emphasis added) We see no reason why there should be asymmetry
between Articles 6.1 and 6.1.3. In our view, ex porters that were given notice of the required
information under Article 6.1 shoul d be understood to be the same exporters entitled to receive the
text of the application under Article 6.1.3, namely, the "known" exporters.
250. Thus, the explicit reference in Article 6.1.3 to "known exporters" supports the view that the
exporters that shall be given notice of the requi red information under Article 6.1 are the exporters
known to the investigating authority. These expor ters include not only those referred to in the
application, but also the exporters who might have made themselves known to the investigating
authority following the issuance of the public notice required by Article 12.1 of the Anti-Dumping
Agreement, and those that otherwise might have become known to it subsequent to the notice of
initiation.
251. The Panel found that, under Article 6.1, the investigating authority has a duty to give notice of
the required information to exporters of which "it can reasonably obtain knowledge".
294 As we
explained above, Article 6.1 requires the investigatin g authority to give notice to the exporters known
to it. Extending the duty to give notice under Artic le 6.1 to exporters of which the investigating
authority does not know, but of which it might ha ve obtained knowledge, would imply that, under
Article 6.1, the investigating authority is subject to a duty to undertake an inquiry, which may be
extensive, to identify the exporters. We cannot find, in Article 6.1 or anywhere else in the Anti-
Dumping Agreement, any legal basis for such an obligation, which in some circumstances could be
onerous. Accordingly, in our view, Economía was not obliged under Article 6.1 to give notice of the
required information to exporters of which it di d not know but of which it could have obtained
knowledge.
252. In this case, Economía sent a questionnaire to each of the two exporters mentioned in the
application, Producers Rice and Riceland. Two other exporters, The Rice Company and Farmers
Rice, as well as an industry association, the US A Rice Federation, came forward on their own
initiative. Economía also sent them each a questionn aire. Thus, we are satis fied that Economía gave

294Panel Report, para. 7.192.

notice of the required information to all the e xporters of which it had actual knowledge, and that,
accordingly, Mexico did not act inconsistently with Article 6.1 of the Anti-Dumping Agreement.
253. For these reasons, we reverse the Panel's findings, in paragraphs 7.200 and 8.3(c) of the
Panel Report, that, with respect to the exporters that Economía did not investigate, Mexico acted
inconsistently with Articles 6.1 and 12.1 of the Anti-Dumping Agreement.
2. Article 6.10 of the Anti-Dumping Agreement
254. Article 6.10 reads as follows:
The authorities shall, as a rule, determine an individual margin of
dumping for each known exporter or producer concerned of the
product under investigation. In cases where the number of exporters,
producers, importers or types of prod ucts involved is so large as to
make such a determination imprac ticable, the authorities may limit
their examination either to a reas onable number of interested parties
or products by using samples which are statistically valid on the basis
of information available to the auth orities at the time of the selection,
or to the largest percentage of the volume of the exports from the
country in question which can reasonably be investigated.
255. The first sentence of Article 6.10 provides that the investigating authority "shall, as a rule,
determine an individual margin of dumping for each known exporter or producer concerned of the
product under investigation." (emphasis added) For the Panel, the term "known exporter or producer"
refers not only to the exporters or foreign producer s of which the investigating authority knows, but
also to those with which "an unbiased and objective investigating authority properly establishing the
facts would be reasonably expected to have become conversant".
295 Again, we do not see in the Anti-
Dumping Agreement a legal basis for such an interpre tation of the term "known exporter or
producer". This interpretation is difficult to reco ncile with the ordinary meaning of the term: a
known exporter or producer is an exporter or prod ucer known to the investigating authority, not an
exporter or producer of which it does not know, but shoul d have known. In our view, the rule set out
in the first sentence of Article 6.10 (determini ng an individual margin of dumping) covers the
exporters or foreign producers of which the inv estigating authority knows at the time the calculation
of the margins of dumping is made. Under the fi rst sentence of Article 6.10, the investigating
authority is not required to determine an indivi dual margin of dumping for exporters or foreign
producers of whose existence it was unaware.

295Panel Report, para. 7.187.

256. In this case, Economía calculated individua l margins of dumping for the two exporters
explicitly listed in the application, namely, Produ cers Rice and Riceland. Economía also determined
individual margins of dumping for the two exporte rs who came forward of their own initiative,
namely, The Rice Company and Farmers Rice. Thus , Economía acted consistently with the first
sentence of Article 6.10 of the Anti-Dumping Agreement , given that it determined an individual
margin of dumping for each exporter of which it knew at the time it calculated the dumping margins.
257. Accordingly, we reverse the Panel's findings, in paragra phs 7.201 and 8.3(c) of the Panel
Report, that, with respect to the exporters that Economía did not investigate, Mexico acted
inconsistently with Article 6.10 of the Anti-Dumping Agreement.
3. Article 6.8 of the Anti-Dumping Agreement

258. Article 6.8 reads as follows:
In cases in which any interested party refuses access to, or otherwise
does not provide, necessary information within a reasonable period or
significantly impedes the investigation, preliminary and final
determinations, affirmative or negative, may be made on the basis of
the facts available. The provisions of Annex II shall be observed in
the application of this paragraph.
259. The last sentence of Article 6.8 provides that the provisions of Annex II shall be observed in
the application of that paragraph. In particular, under the second sentence of paragraph 1 of Annex II,
the investigating authorities should "ensure" that an interested party is "aware" that, if the required
information is not supplied within a reasonabl e time, "the authorities will be free to make
determinations on the basis of facts available, including those contained in the application for the
initiation of the investigation by the domestic industry ." (emphasis added)
296 The second sentence of
paragraph 1 of Annex II conditions the use of facts from the petitioner's application on making the
interested party "aware" that, if the information is not supplied by it within a reasonable time, the
investigating authority will be free to resort to these facts available. In other words, an exporter shall
be given the opportunity to provide the information required by the investigating authority before the
latter resorts to facts available that can be adverse to the exporter's interests. An exporter that is

296The full text of paragraph 1 of Annex II reads as follows:
As soon as possible after the initiation of the investigation, the investigating
authorities should specify in detail the information required from any
interested party, and the manner in which that information should be
structured by the interested party in its response. The authorities should also
ensure that the party is aware that if information is not supplied within a
reasonable time, the authorities will be free to make determinations on the
basis of the facts available, including those contained in the application for
the initiation of the investigation by the domestic industry.

unknown to the investigating authority—and, therefore, is not notified of the information required to
be submitted to the investigating authority—is denied such an opportunity. Accordingly, an
investigating authority that uses the facts available in the app lication for the initiation of the
investigation against an exporter that was not gi ven notice of the information the investigating
authority requires, acts in a manner inconsiste nt with paragraph 1 of Annex II to the Anti-Dumping
Agreement and, therefore, with Article 6.8 of that Agreement.
260. In this case, four United States exporters—Pr oducers Rice, Riceland, The Rice Company, and
Farmers Rice—were given notice of the information to submit to Economía. The United States
exporters that Economía did not investigate were not notified of the information it required.
Notwithstanding this, Economía used facts availabl e contained in the application submitted by the
petitioner against these uninvestigated exporters. 297 As a result, Economía assigned to them a margin
of dumping of 10.18 per cent, which was higher than the margins individually calculated for The Rice
Company (3.93 per cent), Farmers Rice (zero per cent), and Riceland (zero percent). 298 In doing so,
Economía acted in a manner inconsistent with paragraph 1 of Annex II to the Anti-Dumping
Agreement and, therefore, with Article 6.8 of that Agreement.
261. For these reasons, we uphold the Panel's findings, in paragr aphs 7.200 and 8.3(c) of the
Panel Report that, by applying the facts availabl e contained in the application submitted by the
petitioner in calculating the margin of dumping for United States exporters that Economía did not
investigate, Mexico acted inconsistently with paragraph 1 of Annex II to the Anti-Dumping
Agreement and, therefore, with Article 6.8 of that Agreement.
262. Finally, we address Mexico's argument that the Panel made an a priori assumption that the
diplomatic authorities of the exporting Member do not have an obligation to make their exporters or
producers aware of the investigation. According to Me xico, such an obligation exists and is stated in
footnote 15 to Article 6.1.1 of the Anti-Dumping Agreement .299 Footnote 15 to Article 6.1.1
provides:

297Final Determination, supra, footnote 9, para. 138.
298An individual margin of dumping was calculated for Producers Rice; however, this individual
margin of dumping of 10.18 per cent was based on information submitted by the petitioner. This information
was the same as that on the basis of which the margin of dumping for exporters not investigated was
determined. (See Final Determination, supra, footnote 9, para. 138)

As a general rule, the time-limit fo r exporters shall be counted from
the date of receipt of the questionnaire, which for this purpose shall
be deemed to have been received one week from the date on which it
was sent to the respondent or transmitted to the appropriate
diplomatic representative of the exporting Member or, in the case of
a separate customs territory Member of the WTO, an official
representative of the exporting territory.
263. Footnote 15 establishes a general rule for counting the time that exporters have for replying to
the questionnaires sent to them. Although this general rule refers to the date on which the
questionnaire "was sent to the respondent or transmit ted to the appropriate diplomatic representative
of the exporting Member", it does not provide any indication as to whether it is incumbent on the
government of the exporting country to make the relevant exporters or producers aware of the
investigation. Accordingly, we cannot deduce from footnote 15 to Article 6.1.1, alone, an obligation
for diplomatic authorities of the exporting Member to make their exporters or producers aware of the
investigation.
264. In sum, we find that Economía was not under an obligation to give notice, under Articles 12.1
and 6.1 of the Anti-Dumping Agreement, to exporters of which it did not know. We also find that
Economía was not required, under Article 6.10 of the Anti-Dumping Agreement , to determine an
individual margin of dumping for exporters of whic h it did not know. However, we find that with
respect to United States producers or exporters that were not given notice of the required information,
Economía was not allowed to calculate a margin of dumping on the basis of the facts available
contained in the application submitted by the petitioner. Accordingly, we reverse the Panel's
findings, in paragraphs 7.200 and 8.3(c) of the Pane l Report, that Mexico acted inconsistently with
Articles 12.1 and 6.1 of the Anti-Dumping Agreement . We also reverse the Panel's findings, in
paragraphs 7.201 and 8.3(c) of the Panel Report, that Mexico acted inconsistently with Article 6.10 of
the Anti-Dumping Agreement . However, we uphold the Panel's findings, in paragraphs 7.200
and 8.3(c) of the Panel Report, that Mexico acted in consistently with paragra ph 1 of Annex II to the
Anti-Dumping Agreement and, therefore, with Article 6.8 of that Agreement.
VII. The Foreign Trade Act
265. The Panel found the following Articles of the FTA in consistent with certain provisions of the
Anti-Dumping Agreement and the SCM Agreement : Articles 53, 64, 68, 89D, 93V, as well as
Articles 68 and 97, read together. Mexico appeal s each of these findings of inconsistency. We
address below, first, Mexico's arguments that apply to the entirety of the Panel's analysis of the FTA
provisions before turning to Mexico's claims of e rror with respect to each challenged provision of the
FTA.

A. Preliminary Issues
266. We discuss in this section two cross-cutting issues raised by Mexico that apply to all of the
Panel's findings of inconsistency re lating to the FTA. First, we consider Mexico's contention that the
Panel erred in ruling on the consistency of the ch allenged provisions of the FTA because the United
States had not made out a prima facie case of inconsistency. Secondly, we consider Mexico's
argument that the Panel erred in failing to recognize that the challenged provisions of the FTA are
"discretionary" measures that permit the investiga ting authority to apply them in a WTO-consistent
manner.
1. Prima Facie Case
267. Mexico contends that the United States failed to establish a prima facie case of
inconsistency with respect to any of the challenge d provisions of the FTA. Mexico submits that the
text of each of these provisions is open to different interpretations and, accordingly, does not reveal a
"clear obligation" for Economía to act in a certain manner. 300 Therefore, in Mexico's view, the United
States was required, in order to establish a prima facie case, to provide evidence as to the scope and
application of these measures in addition to their text. As the United States submitted only the text
of the challenged provisions, Mexico argues, it did not establish its prima facie case, and the Panel
was thereby not permitted to rule on those claims.301
268. One element of a prima facie case that a complaining Member must present with respect to a
measure challenged "as such" consists of evidence and arguments "sufficient to identify the challenged
measure and its basic import". 302 The evidentiary requirement of this element may be met by the text
of the challenged measure alone.303

300Mexico's response to questioning at the oral hearing.
303Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 263.

269. In this case, the United States submitted the text of each challenged provision of the FTA in
support of its claims and argued in its submissions how it understood those provisions to operate.
304 A
review of the challenged provisions indicates to us that the United States' proffered interpretation was
adequately supported by the text so as to satisfy the requirement for a prima facie case.305 In our view,
the fact that the challenged provisions of the FTA may support multiple interpretations, and that Mexico
considers the United States' interpretation "incorrect" 306, does not render insufficient the prima facie
case put forward by the United States based on the language of the provisions.
270. Moreover, we observe that, with two exceptions 307, Mexico did not even contest before the
Panel the interpretation of the FTA proposed by the United States; instead, Mexico limited its rebuttal
of the United States' claims to contesting the applicability of the relevant WTO obligations. With
respect to each of the challenged provisions, the Panel agreed with the United States' interpretation.
308 It
appears, therefore, that the Panel found that th e text and the parties' common understanding of the
provisions were sufficient to determine what those challenged provisions required of the investigating

304We note that, with respect to certain of these pr ovisions, the United States also submitted evidence
supporting its understanding of their operation. In relation to Article 68 of the FTA, the United States submitted
the notice of initiation of a review under Article 68, indicating that the showing by an exporter of a
inicio de la revisión de la cuota compensatoria definitiva impuesta a las importaciones de manzanas de mesa de
fracción arancelaria 0808.10.01 de la Tarifa de la Ley de los Impuestos Generales de Importación y de
Exportación, originarias de los Estados Unidos de América, independientemente del país de procedencia ",
Diario Oficial, 21 October 2003, First Section, pp. 16-27 (Exhibit US-24 submitted by the United States to the
Panel)) See also United States' response to Question 31 posed by the Panel, para. 76, Panel Report, p. B-22.
In support of its claims against Articles 68 and 97, read together, the United States submitted a letter
from Economía to a United States pro ducer, evincing the requirement that judicial proceedings be concluded
before the review of an order may take place. (Exhibit US-20 submitted by the United States to the Panel) See
also Panel Report, para. 7.289.
305The challenged provisions of the FTA, and the United States' and the Panel's interpretations of those
provisions are set out in the Panel Report: paras. 7.213, 7.216, 7.220, and 7.224-7.225, (Article 53);
paras. 7.226-7.227, and 7.236-7.237 (Article 64); paras. 7.243-7.244, 7.250-7.253, and 7.259 (Article 68);
paras. 7.261, 7.264, and 7.266-7.267 (Article 89D); paras. 7.270, 7.273, and 7.278- 7.279 (Article 93V); and
paras. 7.281, and 7.287-7.290 (Articles 68 and 97).
307Mexico did assert before the Panel that: (i) all the provisions of the FTA were "discretionary", by
virtue of Article 2 of the FTA and Article 133 of the Mexican Constitution; and (ii) Article 93V was
"discretionary", on the basis of the opening language of that provision. These allegations have also been raised
on appeal and are addressed infra, Sections VII.A.2 and VII.F.
308The Panel found that the United States had failed to make out a prima facie case with respect to
Article 366 of the Federal Code of Civil Procedure. In so doing, the Panel did not reject an interpretation of that
provision, but rather, determined that "the United States ha[d] not sufficiently explained which 'proceedings' this
provision refers to and failed to provide sufficient arguments concerning the context of this provision the meaning
and scope of which is not immediately clear to us." (Panel Report, para. 7.298) The United States does not appeal
this finding.

authority.309 In these circumstances, we do not see on what basis the Panel may be said to have made
the case for the United States. Therefore, we find that the Panel did not err in considering that a
prima facie case had been made out concerning the consistency of the challenged provisions of the
FTA with Mexico's obligations under the Anti-Dumping Agreement and the SCM Agreement.
2. The "Mandatory" or "Discretionary" Nature of the FTA Provisions
271. Mexico contends that the Panel erred in dete rmining that the FTA articles challenged by the
United States require Economía to act in a way that is inconsistent with the Anti-Dumping
Agreement and the SCM Agreement.310 Mexico argued before the Panel that Article 2 of the FTA
requires that the other provisions of the FTA not be applied in a manner contrary to any international
treaty signed by Mexico, in cluding the WTO Agreements. 311 According to Mexico, the Panel
"disregarded totally" this argument.312 Mexico submits that, had the other provisions of the FTA been
properly understood in the light of Article 2, th e Panel would have concluded that these provisions
give Economía discretion to act in a manner co nsistent with its obligations under the WTO
Agreements, which "necessarily" would have led the Panel to dismiss the United States' claims. 313
Instead, argues Mexico, the Panel failed to "undertake[] an impartial analysis" 314 and "did not
correctly analyze the meaning and scope of the articles of the FTA" in concluding that the FTA
provisions at issue were mandatory.
315
272. We cannot accept Mexico's contention that the Panel "disregarded" Article 2 of the FTA, or
Mexico's arguments relating to this provision, in arriving at a conclusion on whether the challenged
provisions of the FTA were mandatory. In fact , the Panel asked Mexico questions specifically
addressing Article 2 of the FTA. 316 The Panel subsequently posed additional questions after the
second panel meeting, relating to the specific in teraction between Article 2 and the other FTA
provisions.317 Following on these questions and responses, the Panel explicitly noted and responded

309The Panel's description of the challenged provisio ns is found in the Panel Report: paras. 7.220
and 7.225 (Article 53); paras. 7.238-7.240 (Article 64); paras. 7.251, 7.253, and 7.259 (Article 68);
paras. 7.266 and 7.268 (Article 89D); paras. 7.278-7.279 (Article 93V); and para. 7.289 (Articles 68 and 97).
311Ibid., paras. 211-212.
313Ibid., para. 204(f) ("necesariamente").
314Ibid., para. 195(c) ("analizarla de manera imparcial").
315Ibid., heading to paras. 205-220 ("no analizó de forma adecuada el sentido y alcance de los artículos
de la LCE").
316Question 30 posed by the Panel to Mexico during the Panel proceedings, and Mexico's response
thereto, Panel Report, p. B-34.
317Question 12 posed by the Panel to the United States during the Panel proceedings, Panel Report,
p. C-11.

in the Panel Report to Mexico's argument that "any domestic law has to be applied in a manner which
is compatible with Mexico's international obligations."
318 Mexico acknowledges the Panel's response
to its arguments, but contends that it constitut es "an incorrect and incomplete interpretation of
Mexico's arguments". 319 Although Mexico may disagree with the weight ascribed by the Panel to
Article 2 of the FTA, we fail to see how this constitutes "disregard[]" of Mexico's arguments.
273. In any event, we are of the vi ew that this aspect of Mexico's appeal should have been more
appropriately brought under Article 11 of the DSU. Mexico's argument is premised on the Panel's
purported failure to read the challenged provisions of the FTA in the light of another FTA provision
that Mexico brought to the attention of the Panel. Mexico alleges that the Panel "disregarded" this
evidence and "made unsubstantiated findings" on the mandatory nature of the challenged provisions
of the FTA "virtually without undertaking any relevant analysis". 320 Mexico's claim of error,
therefore, rests on the Panel's failure to conduct its analysis in a proper and impartial manner: Mexico
does not contest, on the merits, the Panel's decision rejecting the supposed import of Article 2 for the
interpretation of the other provisions of the FTA.
274. In this light, Mexico's claim on appeal appears to be a traditional Article 11 claim challenging
the Panel's failure to accord sufficient weight to evidence submitted by one of the parties. 321 It is well
settled that an Article 11 claim—by definition, on e on which a panel could not have ruled—must be
clearly discernible in a Notice of Appeal 322 and explicitly articulated in an appellant's written
submission.323 Mexico did not raise this claim under Artic le 11 of the DSU, either in its Notice of
Appeal or in its appellant's submission. Therefore, we make no finding under that provision.324
275. For these reasons, we find that the Panel did not disregard Article 2 of the FTA, or
Mexico's argument in relation thereto, in concludi ng that the challenged provisions of the FTA are
"mandatory" measures, requiring Economía to take certain actions in given circumstances.

alegatos de México").
ningún análisis al respecto, formuló constataciones que no tienen base alguna").
321The Appellate Body has consistently recognized the appreciation of the evidence as a matter falling
within the discretion of the panel. (See, for example, Appellate Body Report, Australia – Salmon , para. 267;
Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 177; Appellate Body Report, EC –
Sardines, para. 300; and Appellate Body Report, Japan – Apples, paras. 232-238)
322Appellate Body Report, Japan – Apples , para. 127; Appellate Body Report, US – Countervailing
Measures on Certain EC Products, para. 74.
323Appellate Body Report, US – Steel Safeguards, para. 498.
324Mexico raises a distinct Article 11 claim in the context of its challenge to the Panel's finding on
Article 93V of the FTA. (See infra, Section VII.F)

B. Article 53
276. Article 53 of the FTA provides:
The interested parties shall submit their arguments, information and
evidence in conformity with the applicable legislation, within a
period of 28 days from the day following the publication of the
initiating resolution.
277. The Panel found as follows:
We consider that Article 6.1.1 of the AD Agreement clearly provides
that any exporter or foreign producer receiving a questionnaire shall
be given 30 days for reply. This 30-day rule does not make a
distinction between those exporters that received a questionnaire at
the time of initiation because they happened to be known to the
applicant and were thus informed of the initiation, and those that
make themselves known or the existence of which becomes known to
the authorities and to which questionnaires are sent following
initiation. In our view, by using the date of publication of the
initiation notice as the starting point for the time period for
questionnaire responses, Article 53 of the Act effectively prevents
Mexico from giving each exporter or foreign producer receiving a
questionnaire 30 days to respond. For that reason we consider
Article 53 of the Act to be in consistent with the unequivocal
requirement in Article 6.1.1 of the AD Agreement to provide for 30
days to respond to questionnaires. (footnote omitted)
…
... In addition, we consider that the requirement contained in
Article 6.1.1 of the AD Agreement to provide for 30 days to respond
to questionnaires is identical to that of Article 12.1.1 of the SCM
Agreement. For the same reasons as set forth above, we therefore
find that Article 53 of the Act is as such also inconsistent with
Article 12.1.1 of the SCM Agreement.
325
278. Mexico submits that the Panel's inte rpretation of Article 6.1.1 of the Anti-Dumping
Agreement and Article 12.1.1 of the SCM Agreement is in error. Mexico contends that the Panel
interpreted the obligation in those provisions too broa dly, requiring that 30 days be provided to each
and every exporter or foreign producer receiving a questionnaire. 326 According to Mexico, the
"ordinary meaning" of these provisions indicates that the 30 days need be provided only to those
exporters and foreign producers to whom the investigating authority sends a questionnaire 327, which,
in Mexico's view, are the exporters and foreign producers made known to the investigating authority

325Panel Report, paras. 7.220 and 7.223.
326Mexico's appellant's submission, para. 232(a).
327Ibid., para. 233(b) ("sentido corriente").

at the outset of an investigation.
328 Mexico suggests that such a read ing is also logical because, if an
investigating authority were to provide 30 days to every respondent that makes itself known to the
agency, investigations could not be comple ted within the time-limits set out in the Anti-Dumping
Agreement and the SCM Agreement.329
279. We begin our analysis with the texts of the re levant provisions of th e covered agreements.
Article 6.1.1 of the Anti-Dumping Agreement provides, in relevant part:
Exporters or foreign producers receiving questionnaires used in an
anti-dumping investigation shall be given at least 30 days for reply.15

15 As a general rule, the time-limit for exporters shall be counted from the
date of receipt of the questionnaire, wh ich for this purpose shall be deemed
to have been received one week from the date on which it was sent to the
respondent or transmitted to the appropriate diplomatic representative of the
exporting Member or, in the case of a se parate customs territory Member of
the WTO, an official representative of the exporting territory.
Similarly, the relevant part of Article 12.1.1 of the SCM Agreement provides:
Exporters, foreign producers or interested Members receiving
questionnaires used in a countervailing duty investigation shall be
given at least 30 days for reply.40

40 As a general rule, the time-limit for exporters shall be counted from the
date of receipt of the questionnaire, wh ich for this purpose shall be deemed
to have been received one week from the date on which it was sent to the
respondent or transmitted to the appropriate diplomatic representatives of
the exporting Member or, in the case of a separate customs territory
Member of the WTO, an official representative of the exporting territory.
280. These provisions explicitly require that an inves tigating authority provide at least 30 days for
reply to all exporters and foreign producers receiving a qu estionnaire, to be counted, "[a]s a general
rule", from the date of receipt of the questionnaire. Article 6.1 of the Anti-Dumping Agreement
provides for all interested parties in an anti-dumping investigation to receive a questionnaire from
the investigating authority. 330 As we observed above, this includ es not only those referred to in the

328Mexico's response to questioning at the oral hearing.
329Mexico's appellant's submission, para. 233(c) (referring to Appellate Body Report, US – Hot-Rolled
Steel, para. 73).
330Article 6.1 of the Anti-Dumping Agreement provides:
All interested parties in an anti-dumpi ng investigation shall be given notice
of the information which the authorities require and ample opportunity to
present in writing all evidence which they consider relevant in respect of the
investigation in question.

petition for anti-dumping duties, as Mexico argues, but also those that made themselves known to the
investigating authority—further to the issuance of a public notice of initiation or otherwise—and
those that the investigating authority might id entify as a result of some inquiry of its own. 331 We are
of the view that the same understanding applies to Article 12.1 of the SCM Agreement.332 It follows,
therefore, that the period of at least 30 days to re ply to questionnaires, provided for in Article 6.1.1 of
the Anti-Dumping Agreement and Article 12.1.1 of the SCM Agreement , must be extended to all
such exporters and foreign producers, whether known to the investigating authority at the outset of the
investigation or at some point thereafter.
281. We are not persuaded by Mexico's argument that such an interpretation of Article 6.1.1 of the
Anti-Dumping Agreement and Article 12.1.1 of the SCM Agreement is "illogical" on the ground that
granting 30 days to exporters and foreign produ cers appearing after the notice of initiation would
prevent the agency from complying with the time- limits for investigations set out in those
Agreements.333 Mexico has not shown how providing 30 days for reply to all exporters and foreign
producers receiving a questionnaire would prevent an investigating authority from complying with the
time-frames set out in those Agreements. Those Ag reements contemplate, in the typical case, that
exporters and foreign producers not identified in the petition will make themselves known to the
investigating authority in the earlier stages of the proceeding—for example, s hortly after publication
of the notice of initiation—rather than at some later stage.
282. Having said that, we recognize that it is theore tically possible, as Mexico posits, that the
notification of interest by an exporter or producer is at such a late stage in the proceeding that an
investigating authority, seeking to comply with the time-limits provided for in the Anti-Dumping
Agreement and the SCM Agreement334, could not reasonably take into account information submitted
by that respondent. The Appellate Body has observe d, in this respect, that the due process rights in
Article 6 of the Anti-Dumping Agreement —which include the right to 30 days for reply to a
questionnaire—"cannot extend indefinitely" but, instead , are limited by the investigating authority's
need "to 'control the conduct' of its inquiry and to 'carry out the multiple steps' required to reach a

331Supra, para. 250.
332Article 12.1 of the SCM Agreement provides:
Interested Members and all interested parties in a countervailing duty
investigation shall be given notice of the information which the authorities
require and ample opportunity to present in writing all evidence which they
consider relevant in respect of the investigation in question.
333Mexico's appellant's submission, para. 233(c) ("ilógico").
334Article 5.10 of the Anti-Dumping Agreement; Article 11.11 of the SCM Agreement.

timely completion" of the proceeding.
335 As such, the time-limits for completing an investigation
serve to circumscribe the obligation in Article 6.1.1 to provide all interested parties 30 days to reply
to a questionnaire. In our view, the same may be said with respect to the identical obligation in
Article 12.1.1 of the SCM Agreement. Accordingly, we fail to see how the argument put forward by
Mexico can constitute a legal basis supporting an interpretation of Article 6.1.1 of the Anti-Dumping
Agreement and Article 12.1.1 of the SCM Agreement under which, contrary to the plain language of
those provisions, only those exporters and foreign pr oducers known at the time of initiation must be
provided 30 days to reply to the questionnaire.
283. In the light of our understanding of the obligation in Article 6.1.1 of the Anti-Dumping
Agreement and Article 12.1.1 of the SCM Agreement , we turn to the challenged provision of the
FTA. The time period provided by Ar ticle 53 to reply to questionnaires 336—28 working days 337—is
counted from "the publication of the initiating resolu tion". As a result, a certain group of exporters
and foreign producers—for example, those to whom questionnaires are sent following the notice of
initiation, including those that may make themselves known to the investigating authority in response
to the public notice of initiation—cannot be provide d 30 days to reply without having to request an
extension from Economía.
338 We, therefore, uphold the Panel's findings, in paragraphs 7.223, 7.225,
and 8.5(a) of the Panel Report, that Article 53 of the FTA is inconsistent, as such, with Article 6.1.1 of
the Anti-Dumping Agreement and Article 12.1.1 of the SCM Agreement.
C. Article 64
284. Article 64 of the FTA provides:
The Ministry shall determine a countervailing duty[339] on the basis of
the highest margin of price discrimination or subsidization obtained
from the facts available, in the following cases:

335Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 242 (quoting
Appellate Body Report, US – Hot-Rolled Steel , para. 73, in turn quoting Panel Report, US – Hot-Rolled Steel ,
para. 7.54).
336It is not contested by Mexico that the submission of information covered by Article 53 includes
questionnaire responses of exporters and foreign producers.
337Both parties agreed before the Panel that the 28 days specified in Article 53 refers to "working days"
("días habiles") by virtue of Article 3 of the FTA. (Panel Report, para. 7.218 and footnote 201 thereto)
338Before the Panel, Mexico argued that, under the FTA, Economía ma y authorize extensions to meet
the 30-day requirement. The Panel responded that "[e]xporters or fore ign producers recei ving questionnaires
should not be forced to use the possibility of requesting extensions to obtain the time period of 30 days they are
entitled to, without any showing of good cause." (Panel Report, para. 7.222) We agree with this response of the
Panel and note that, in any event, Mexico does not press this argument on appeal.
339The Panel observed that "the term 'countervailing duty ' referred to throughout the [FTA] is used to
refer to both anti-dumping duties and countervailing duties." (Panel Report, footnote 206 to para. 7.236)

I. When the producers fail to app ear at the investigation; or
II. When the producers fail to provide the information in a
proper and timely fashion, significantly impede the investigation, or
supply information or evidence that is incomplete, incorrect or does
not derive from their accounts, th us preventing the determination of
an individual margin of price discrimination or subsidization; or
III. When the producers have not exported the product subject to
investigation during the investigation period.
The facts available shall be underst ood to mean those substantiated
by evidence and data provided by th e interested parties or additional
parties in a proper and timely fashion, and by the information
gathered by the investigating authority.
285. The United States claimed that Article 64 was inconsistent with Article 6.8 of the Anti-
Dumping Agreement , paragraphs 1, 3, 5, a nd 7 of Annex II thereto, and Article 12.7 of the
SCM Agreement. The Panel determined that Article 6.8 of the Anti-Dumping Agreement , and
paragraphs 1, 3, 5, and 7 of A nnex II thereto, condition an investigating authority's reliance on the
facts available on its use of whatever information is provided by the interested parties, where possible,
and on its exercise of "special circumspection" when relying on secondary source information.
340
Moreover, the Panel was of the view that the title of Annex II—"Best Information Available in Terms
of Paragraph 8 of Article 6"—makes clear that in su ch instances, the agency is to rely on the "best"
information available, which requires on the part of the agency "an inherently comparative evaluation
of the 'evidence available'". 341 The Panel understood Article 64 to require Economía to assign the
highest margin calculated from the facts available to producers that do not appear or that did not
export the subject merchandise during the period of i nvestigation, without consideration of whether
other evidence on record might prove more accurate . On this basis, the Panel found Article 64
inconsistent with Article 6.8 of the Anti-Dumping Agreement, paragraphs 1, 3, 5, and 7 of Annex II
thereto, and Article 12.7 of the SCM Agreement.342
286. Mexico submits that these provisions of the Anti-Dumping Agreement and the SCM
Agreement permit the use of facts available with resp ect to respondents that "do[] not provide" the
information requested by the investigating authority. 343 According to Mexico, such respondents
include producers that do not appear in an investig ation or that do not export the subject merchandise

340Panel Report, para. 7.238.
342Ibid., para. 7.242.
343Mexico's appellant's submission, para. 245(e) ("no facilita la información requerida").

during the period of investigation.
344 Mexico further observes that paragraph 7 of Annex II explicitly
recognizes that respondents failing to provide necessary information may face higher margins than if
they had cooperated with the investigation. 345 In Mexico's view, because Article 64 permits
Economía to use facts available when calculati ng margins for respondents that do not provide
necessary information, it is consistent with the relevant provisions of the Anti-Dumping Agreement
and the SCM Agreement.346
287. We begin by reviewing the relevant provisions of the Anti-Dumping Agreement governing
the use of facts available. Article 6.8 provid es that an investigating authority may base its
determinations on the basis of facts available where, inter alia , a respondent "does not provide …
necessary information within a reasonable period", subject to the conditions set out in Annex II,
entitled "Best Information Available in Terms of Paragraph 8 of Article 6". Among these conditions
is the obligation in paragraph 1 of Annex II to inform the relevant respondent that, if it fails to provide
the necessary information, the agency will resort to use of facts available. Paragraph 3 obliges an
investigating authority to "take[] into account" th e information supplied by a respondent, even if
other information requested has not been provid ed by the respondent and will need to be
supplemented by facts available. Similarly, para graph 5 prevents an investigating authority from
rejecting the information supplied by a respondent, even if incomplete, where the respondent "acted to
the best of its ability". Finally, paragraph 7 mandate s, where an investigating authority relies on data
from a secondary source to fill in gaps resulting from a respondent's failure to provide requested
information, that the investigating authority examine such data "with special circumspection."
288. From these obligations, we understand that an investigating authority in an anti-dumping
investigation may rely on the facts available to calculate margins for a respondent that failed to
provide some or all of the necessary information re quested by the agency. In so doing, however, the
agency must first have made the respondent aware th at it may be subject to a margin calculated on the
basis of the facts available because of the respond ent's failure to provide necessary information.
Furthermore, assuming a respondent acted to the best of its ability, an agency must generally use, in
the first instance, the information the respondent did provide, if any.
289. With respect to the facts that an agency may use when faced with missing information, the
agency's discretion is not unlimited. First, the fa cts to be employed are expected to be the "best
information available". In this respect, we agree with the Panel's explanation:

344Mexico's appellant's submission, para. 245(e).
345Ibid., para. 245(f).
346Ibid., para. 245(c)-(e).

The use of the term "best information" means that information has to
be not simply correct or useful per se, but the most fitting or "most
appropriate" information available in the case at hand. Determining
that something is "best" inevita bly requires, in our view, an
evaluative, comparative assessment as the term "best" can only be
properly applied where an unambiguous ly superlative status obtains.
It means that, for the conditions of Article 6.8 of the AD Agreement
and Annex II to be complied with, there can be no better information
available to be used in the partic ular circumstances. Clearly, an
investigating authority can only be in a position to make that
judgement correctly if it has made an inherently comparative
evaluation of the "evidence available".
347 (original emphasis;
footnote omitted)
Secondly, when culling necessary information fro m secondary sources, the agency should ascertain
for itself the reliability and accuracy of such info rmation by checking it, where practicable, against
information contained in other independent sources at its disposal, including material submitted by
interested parties. Such an active approach is co mpelled by the obligation to treat data obtained from
secondary sources "with special circumspection".
290. We turn now to Article 12.7 of the SCM Agreement . The Panel based its finding of
inconsistency with that provision on the reasoning it had developed with respect to the obligations in
Article 6.8 of the Anti-Dumping Agreement and paragraphs 1, 3, 5, and 7 of Annex II thereto.348 We
observe, however, that there are important textual di fferences between the relevant provisions of the
Anti-Dumping Agreement and the SCM Agreement—namely, the absence in the SCM Agreement of
an equivalent to Annex II to the Anti-Dumping Agreement.
291. Article 12.7 of the SCM Agreement provides:
In cases in which any interested Me mber or interested party refuses
access to, or otherwise does not provide, necessary information
within a reasonable period or significantly impedes the investigation,
preliminary and final determinations, affirmative or negative, may be
made on the basis of the facts available.
Like Article 6.8 of the Anti-Dumping Agreement , Article 12.7 of the SCM Agreement permits an
investigating authority, under certain circumstances, to fill in gaps in the information necessary to
arrive at a conclusion as to subsidization (or dumping) and injury. As in the Anti-Dumping
Agreement, Article 12.7 prescribes the information that may be used for such purposes as the "facts
available". Unlike the Anti-Dumping Agreement, the SCM Agreement does not expressly set out in
an annex the conditions for determin ing precisely which "facts" might be "available" for an agency to

347Panel Report, para. 7.166.
348Ibid., para. 7.242.

use when a respondent fails to provide necessary in formation. This does not mean, however, that no
such conditions exist in the SCM Agreement.
292. Turning to the context of Article 12.7, we ar e of the view that, like Article 6 of the Anti-
Dumping Agreement, Article 12 of the SCM Agreement as a whole "set[s] out evidentiary rules that
apply throughout the course of the … investigation, and provide[s] also for due process rights that
are enjoyed by 'interested parties' throughout … an investigation".
349 In this respect, Article 12.1
provides:
Interested Members and all interested parties in a countervailing duty
investigation shall be given notice of the information which the
authorities require and ample opportunity to present in writing all
evidence which they consider relevant in respect of the investigation
in question.
This due process obligation—that an interested pa rty be permitted to present all the evidence it
considers relevant—concomitantly requires the investig ating authority, where appropriate, to take into
account the information submitted by an interested party.350
293. Moreover, we note that Article 12.7 is intended to ensure that the failure of an interested party
to provide necessary information does not hinder an agency's investigation. Thus, the provision
permits the use of facts on record solely for the pur pose of replacing information that may be missing,
in order to arrive at an accurate subsidization or injury determination.
294. In view of the above, we understand that rec ourse to facts available does not permit an
investigating authority to use any information in wh atever way it chooses. First, such recourse is not
a licence to rely on only part of the evidence provi ded. To the extent possible, an investigating
authority using the "facts available" in a counterva iling duty investigation must take into account all
the substantiated facts provided by an interested party, even if those facts may not constitute the
complete information requested of that party. Secondly, the "facts available" to the agency are
generally limited to those that may reasonably replace the information that an interested party failed to
provide. In certain circumstances, this may include information from secondary sources.

349Appellate Body Report, EC – Tube or Pipe Fittings , para. 138 (quoting Appellate Body Report,
EC – Bed Linen (Article 21.5 - India), para. 136). (emphasis added in EC – Tube or Pipe Fittings)
350We note that the Appellate Body has found that the obligation in Article 6.1 of the Anti-Dumping
Agreement—the counterpart to Article 12.1 of the SCM Agreement —is not satisfied where the investigating
authority "disregard[s]" information submitted by an interested party. (Appellate Body Report, US – Oil
Country Tubular Goods Sunset Reviews, para. 246)

295. This understanding of the limitations on an investig ating authority's use of "facts available" in
countervailing duty investigations is further supported by the simila r, limited recourse to "facts
available" permitted under Annex II to the Anti-Dumping Agreement. Indeed, in our view, it would
be anomalous if Article 12.7 of the SCM Agreement were to permit the use of "facts available" in
countervailing duty investigations in a manner markedly different from that in anti-dumping
investigations.
296. We now consider the consistency of the cha llenged provision of the FTA with the above
provisions of the Anti-Dumping Agreement and the SCM Agreement . The Panel understood
Article 64 to mandate Economía to calculate the hi ghest possible margin on the basis of the facts
available and apply that margin to, inter alia, foreign producers that do not appear in the investigation
and to those that did not export the subject merchandise during the period of investigation. 351 In other
words, Article 64 appears to require the agency to apply indiscriminately su ch a margin—the highest
that could be calculated on the basis of the facts av ailable—to certain foreign producers or exporters.
The provision so requires even in instances—such as the case of fore ign producers that do not appear
in an investigation—where the producer is not sent a questionnaire and thus may not be informed of
the consequences for its failure to provide requested information.
297. Article 64 also does not on its face permit the agency to use any information that might be
provided by a foreign producer or exporter, even if incomplete, where the use of such information
would result in a margin lower than the highest f acts available margin. Nor does it allow the agency
to engage in the "evaluative, comparative assessment" 352 necessary in order to determine which facts
are "best" to fill in the missing information. Fu rthermore, Article 64 requires Economía to use those
facts necessary to arrive at the hi ghest margin that can be calculate d, even if those facts, although
"substantiated", might be deemed unreliable by the agency after exercising "special circumspection".
Thus, in all situations of incomplete informati on—including those of producers not appearing in the
investigation and producers not exporting th e subject merchandise during the period of
investigation
353—we read Article 64 as preventing Economía from engaging in the reasoned and
selective use of the facts available directed by Article 6.8 of the Anti-Dumping Agreement, Annex II
thereto, and Article 12.7 of the SCM Agreement.

351Panel Report, paras. 7.237-7.238.
353Like the Panel, we assume arguendo that Article 6.8 and Annex II apply to the calculation of
individual margins for non-shipping exporters, that is, those that did not export the subject merchandise during
the period of investigation. (See Ibid., para. 7.241 and footnote 158 to para. 7.163)

298. In the light of the above, we uphold the Panel's findings, in pa ragraphs 7.242 and 8.5(b) of
the Panel Report, that Article 64 of the FTA is inconsistent, as such, with Article 6.8 of the Anti-
Dumping Agreement , paragraphs 1, 3, 5, and 7 of Anne x II thereto, and Article 12.7 of the SCM
Agreement.
D. Article 68
299. The Panel examined separately two different aspects of the United States' challenge to
Article 68 of the FTA: (i) relating to administrative reviews for exporters found in the investigation to
have de minimis margins; and (ii) relating to the "representativeness" requirement for respondents
seeking an administrative review. We analyze these challenges in turn below.
1. Exporters with De Minimis Margins

300. Article 68 of the FTA provides, with respect to exporters with de minimis margins:
Final countervailing duties shall be reviewed annually at the request
of a party or ex officio by the Ministry at any time, as shall imports
from producers for whom no positive margin of price discrimination
or subsidization was determined in the investigation.
301. The United States argued before the Panel that Ar ticle 68 is inconsistent with Article 5.8 of
the Anti-Dumping Agreement and Article 11.9 of the SCM Agreement . The Panel confirmed its
finding, made in the context of evaluati ng the United States' "as applied" claims 354, that Article 5.8 of
the Anti-Dumping Agreement requires an investigating authority to exclude, from the definitive anti-
dumping measure, exporters found not to have been dumping above de minimis levels. The Panel
further observed that the "logical consequence" of su ch exclusion is that those exporters may not be
subjected to administrative reviews or changed circumstances reviews. 355 As Article 68 requires that
such exporters be subject to such reviews upon re quest of an interested party, the Panel found
Article 68 to be inconsistent with Article 5.8 of the Anti-Dumping Agreement and, mutatis mutandis,
Article 11.9 of the SCM Agreement.356
302. Mexico alleges on appeal that the Panel e rred in interpreting Article 5.8 of the Anti-Dumping
Agreement and Article 11.9 of the SCM Agreement . According to Mexico, by finding that
Article 68—which deals exclusively with reviews— is inconsistent with these provisions, the Panel
failed to recognize that the obligations containe d in these provisions are limited to original

354See Panel Report, para. 7.166.
355Ibid., para. 7.251.
356The Panel provided no further reasoning as to why its analysis under Article 5.8 of the Anti-
Dumping Agreement applies equally to Article 11.9 of the SCM Agreement.

investigations.357 Mexico contends that Article 5.8 and Article 11.9 do not apply to events subsequent
to the original investigation, including reviews. 358 Even if those provisions did apply, Mexico argues,
they require only that the investigating authority not levy duties on the relevant respondents; these
provisions do not address the question whether those respondents may be included in the definitive
measure at the end of an investigation. 359 Thus, according to Mexico, because Article 68 does not
require that duties be imposed on such respondents, this basis for the Panel's finding of inconsistency
is erroneous.
303. We begin with the relevant provisions of the Anti-Dumping Agreement and the SCM
Agreement. Article 5 of the Anti-Dumping Agreement is titled "Initiation and Subsequent
Investigation". Paragraph 8 of Article 5 provides:
An application under paragraph 1 shall be rejected and an
investigation shall be terminated promptly as soon as the authorities
concerned are satisfied that there is not sufficient evidence of either
dumping or of injury to justify proceeding with the case. There shall
be immediate termination in cases where the authorities determine
that the margin of dumping is de minimis, or that the volume of
dumped imports, actual or potential, or the injury, is negligible.
304. Article 11 of the SCM Agreement is also titled "Initiation and Subsequent Investigation".
Paragraph 9 of Article 11 provides:
An application under paragraph 1 shall be rejected and an
investigation shall be terminated promptly as soon as the authorities
concerned are satisfied that there is not sufficient evidence of either
subsidization or of injury to jus tify proceeding with the case. There
shall be immediate termination in cases where the amount of a
subsidy is de minimis , or where the volume of subsidized imports,
actual or potential, or the injury, is negligible.
305. We have already indicated that the Panel was correct in finding that Article 5.8 of the Anti-
Dumping Agreement requires an investigating authority to terminate the investigation "in respect of"
an exporter found not to have a margin above de minimis, and that the exporter consequently must be
excluded from the definitive anti-dumping measure.
360 An investigating authority does not, of course,
impose duties—including duties at zero per cent— on exporters excluded from the definitive anti-

357Mexico's appellant's submission, para. 259(b).
358Ibid., para. 259(c).
359Ibid., para. 259(d)-(g). Mexico explains that incl usion of an exporter in the measure does not
necessarily mean a duty will be levied on that particular respondent; this is because such a respondent may be
assigned a duty of zero.
360Supra, paras. 216-218.

dumping measure. We therefore agree with the Panel that the "logical consequence"
361 of this
approach is that such exporters cannot be subj ect to administrative and changed circumstances
reviews, because such reviews examine, respectively, the "duty paid"362 and "the need for the
continued imposition of the duty". 363 Were an investigating authority to undertake a review of
exporters that were excluded from the anti-dumping measure by virtue of their de minimis margins,
those exporters effectively would be made subject to the anti-dumping measure, inconsistent with
Article 5.8. The same may be said with respect to Article 11.9 of the SCM Agreement.
306. We now consider whether Article 68 of the FTA is consistent with these treaty provisions.
The Panel found that Article 68 requires Economía to "review ... producers for which during the
original investigation it was determined that they had not been engaged in dumping practices or had
not received any subsidies." 364 As we have stated, such exporters were to have been excluded from
the anti-dumping measure, by virtue of Article 5.8 of the Anti-Dumping Agreement , and from the
countervailing duty measure, by virtue of Article 11.9 of the SCM Agreement . Excluding these
exporters from anti-dumping or coun tervailing duty measures necessarily implies that they must also
be excluded from administrative and changed circum stances reviews. By requiring Economía to
conduct a review for exporters with no margins and, by extension, de minimis margins, Article 68 is
inconsistent with Article 5.8 of the Anti-Dumping Agreement and Article 11.9 of the SCM
Agreement.
307. We therefore uphold the Panel's findings, in paragra phs 7.251 and 8.5(c) of the Panel
Report, that Article 68 of the FTA is incons istent, as such, with Article 5.8 of the Anti-Dumping
Agreement and Article 11.9 of the SCM Agreement.
2. The "Representativeness" Requirement
308. The Panel also examined the United States' cha llenge to another element of Article 68, which
provides:
The party requesting a review shall satisfy the Ministry that the
volume of exports to Mexico during the review period is
representative.
The Panel understood this aspect of Article 68 to require respondents, in order to obtain an
administrative or changed circumstances review, to show that the volume of their exports to Mexico

361Panel Report, para. 7.251.
362Article 9.3.2 of the Anti-Dumping Agreement. (emphasis added)
363Article 11.2 of the Anti-Dumping Agreement; Article 21.2 of the SCM Agreement. (emphasis added)
364Panel Report, para. 7.251.

during the period of review was "representative".365 The Panel noted that the only condition placed on
requests for administrative reviews by Article 9.3.2 of the Anti-Dumping Agreement , was that a
respondent's request be supported by "evidence", which the Panel understood to refer to evidence
necessary to permit the investigating authority to calculate a dumping margin. The Panel further
stated that, as Article 9.3.2 provides for administra tive reviews to determine the duties paid in excess
of the dumping margin be refunded, the volum e of exports is "completely irrelevant". 366 The Panel
therefore concluded that Article 9.3 did not contem plate a prerequisite of showing a "representative"
volume of export sales in order to obtain an administrative review.367
309. With respect to Article 11.2 of the Anti-Dumping Agreement and Article 21.2 of the
SCM Agreement, the Panel similarly observed that the only requirements to be satisfied by a
respondent requesting a changed circumstances revi ew under these provisions were that a reasonable
period of time had elapsed since the imposition of th e duty, and that the request be substantiated by
"positive information".368 The Panel was also of the view that this "positive information" related to
the continued need for the duty and the likelihood of continuation or recurrence of injury, but did not
necessarily include the volume of e xports during the period of review. 369 The Panel thus concluded
that an investigating authority must conduct a changed circumstances review whenever the two
requirements stated in the provisions had been satisfi ed, regardless of the "representative" nature of
the respondent's exports.370
310. Mexico contends that the Panel erred in its interpretation of Articles 9.3 and 11.2 of the Anti-
Dumping Agreement , and Article 21.2 of the SCM Agreement . According to Mexico, the "only
obligation" in those provisions is that the investigating authority initiate a review 371; beyond
initiation, however, the provisions "do[] not c ontain any guidelines on how [reviews] should be
conducted or their outcome in the presence or absence of a particular element". 372 In Mexico's view,
Article 68 does not preclude the initiation of a review, but requires only a showing of
"representative" export volumes in order for a responde nt to receive a re-calculated margin. Viewed

365Panel Report, para. 7.253.
366Ibid., para. 7.257.
367Ibid.
368Ibid., para. 7.258 (quoting Article 11.2 of the Anti-Dumping Agreement and Article 21.2 of the
SCM Agreement).
369Ibid., paras. 7.258-7.259.
370Ibid., para. 7.258.
372Ibid., para. 264 (" No hay en su texto directriz alguna al respecto de cómo [los exámenes] deben
llevarse a cabo ni del resultado que debe haber en presencia o ausencia de un determinado elemento ").
(underlining omitted)

in this light, Mexico submits, Article 68 is not in consistent with the obligations in Articles 9.3
and 11.2 of the Anti-Dumping Agreement, or Article 21.2 of the SCM Agreement.
311. We begin our analysis by reviewing the WTO pr ovisions at issue. Article 9.3 of the Anti-
Dumping Agreement provides:
The amount of the anti-dumping duty shall not exceed the margin of
dumping as established under Article 2.
The sub-paragraphs of Article 9. 3—including, of particular releva nce here, sub-paragraphs 1 and 2—
specify in greater detail how investigating authorities are to comply with this more general obligation,
namely, by providing for refunds to respondents wh ose duties have exceeded their dumping margins.
Article 9.3.1 deals with such refunds for Members employing a retrospective system for the
assessment and collection of anti-dumping duties, wh ereas Article 9.3.2 deals with those Members,
such as Mexico, employing a prospective system.
312. Article 9.3.2 provides:
When the amount of the anti-dumping duty is assessed on a
prospective basis, provision shall be made for a prompt refund, upon
request, of any duty paid in excess of the margin of dumping. A
refund of any such duty paid in excess of the actual margin of
dumping shall normally take place within 12 months, and in no case
more than 18 months, after the date on which a request for a refund,
duly supported by evidence, has been made by an importer of the
product subject to the anti-dumping duty. The refund authorized
should normally be made within 90 days of the above-noted
decision.
We note, first, that this provision mandates a refund where an importer has paid duties in excess of
the margin of dumping and the importer requests a re fund. The refund of duties is conditioned solely
on (i) the request being made by an importer of the product subject to the anti-dumping duty; and (ii)
the request having been "duly supported by evidence". Other than these requirements, we see no basis
for an investigating authority to decline to affect the mandated refund. Indeed, failure to do so would
result in the importer having paid a duty in excess of the dumping margin, contrary to Article 9.3.
313. Article 11.2 of the Anti-Dumping Agreement governs reviews other than duty assessment
reviews under Article 9.3, including changed circumstances reviews. Article 11.2 provides:

The authorities shall review the n eed for the continued imposition of
the duty, where warranted, on their own initiative or, provided that a
reasonable period of time has elapsed since the imposition of the
definitive anti-dumping duty, upon request by any interested party
which submits positive information substantiating the need for a
review.
21 Interested parties shall have the right to request the
authorities to examine whether the continued imposition of the duty
is necessary to offset dumping, whet her the injury would be likely to
continue or recur if the duty were removed or varied, or both. If, as a
result of the review under this pa ragraph, the authorities determine
that the anti-dumping duty is no longer warranted, it shall be
terminated immediately.

 21 A determination of final liability for payment of anti-dumping duties,
as provided for in paragraph 3 of Article 9, does not by itself constitute a
review within the meaning of this Article.
314. Article 11.2 requires an agency to conduct a review, inter alia, at the request of an interested
party, and to terminate the anti-dumping duty where the agency determines that the duty "is no longer
warranted". The interested party has the right to request the authority to examine whether the
continued imposition of the duty is necessary to offset dumping, whether the injury would be likely to
continue or recur if the duty were removed or vari ed, or both. Article 11.2 conditions this obligation
on (i) the passage of a reasonable period of time sin ce imposition of the definitive duty; and (ii) the
submission by the interested party of "positive inform ation" substantiating the need for a review. As
the Panel correctly observed, this latter conditio n may be satisfied in a particular case with
information not related to export volumes.373 Where the conditions in Article 11.2 have been met, the
plain words of the provision make it clear that the agency has no discretion to refuse to complete a
review, including consideration of whether the duty shoul d be terminated in the light of the results of
the review. We see no reason why the same unde rstanding does not apply in the context of

373Panel Report, para. 7.259.

countervailing duty investigations, in particular give n the identical language in Article 21.2 of the
SCM Agreement
.374
315. Although, as Mexico emphasizes, none of the above provisions contains an express obligation
not to condition a review on a showing of "representative" volume of exports 375, this does not mean
that those provisions permit such a condition. Rather , we consider that they require an investigating
authority to undertake duty assessment reviews and changed circumstances reviews once the
conditions set out in those provisions have been satisfied. In our view, these conditions are
exhaustive; thus, if an agency seeks to impose additional conditions on a respondent's right to a
review, this would be inconsistent with t hose provisions. This includes a showing of a
"representative" volume of export sales, which Article 68 of the FTA imposes as an absolute
requirement in every case before affording the respondent the right to a review or refund.376
316. We, therefore, uphold the Panel's findings, in paragra phs 7.260 and 8.5(c) of the Panel
Report, that Article 68 of the FTA is inconsiste nt, as such, with Articles 9.3 and 11.2 of the Anti-
Dumping Agreement, and Article 21.2 of the SCM Agreement.
E. Article 89D
317. Article 89D of the FTA provides:
Producers of goods subject to a final countervailing duty [377] who
exported no such goods during the pe riod under investigation in the
proceedings that gave rise to such duty may request the Ministry to
initiate a procedure for new exporters with a view to assessing
individual margins of price discrimination, provided that:

374Article 21.2 of the SCM Agreement provides:
The authorities shall review the need for the continued imposition of the
duty, where warranted, on their own initiative or, provided that a reasonable
period of time has elapsed since the imposition of the definitive
countervailing duty, upon request by any interested party which submits
positive information substantiating the need for a review. Interested parties
shall have the right to request the authorities to examine whether the
continued imposition of the duty is necessary to offset subsidization,
whether the injury would be likely to continue or recur if the duty were
removed or varied, or both. If, as a result of the review under this
paragraph, the authorities determine that the countervailing duty is no longer
warranted, it shall be terminated immediately.
376See Panel Report, para. 7.259 ("Article 68 of the [FTA] requires as a rule that each time an
interested party is unable to show that volume of expor ts during the review period was representative, such a
review is to be denied." (original emphasis)).
377See supra, footnote 339.

I. Their exports to the national territory of the goods subject to
countervailing duties were sub sequent to the period under
investigation in the proceedings that gave rise to the countervailing
duty. The requesting party shall sa tisfy the Ministry that the volume
of exports during the period of review is representative[.]
318. Before the Panel, the United States asserted that Article 89D requires a producer to
demonstrate that the volume of its exports during th e period of review was "representative", in order
to be entitled to an expedited review. According to the United States, this requirement constitutes a
restriction on a respondent's right to an expedited re view that is not permitted by Article 9.5 of the
Anti-Dumping Agreement or Article 19.3 of the SCM Agreement.
378
319. The Panel found that Article 9.5 of the Anti-Dumping Agreement requires an investigating
authority to conduct an expedited review for a new shipper, provided that (i) the requesting exporter
had not exported the subject merchandise to the impor ting Member during the period of investigation;
and that (ii) the exporter can show that it is not re lated to an exporter or foreign producer already
subject to the anti-dumping duties. 379 The Panel similarly found that Article 19.3 of the SCM
Agreement requires an investigating authority to conduc t an expedited review at the request of an
exporter, provided that the exporter (i) is subject to a definitive duty; and (ii) was not examined
during the original investigation for reas ons other than a refusal to cooperate. 380 According to the
Panel, Article 89D requires Economía to reject a re quest for an expedited review, not only where the
above conditions have not been met, but also where the exporter fails to esta blish that the volume of
exports during the period of review was "representa tive". As this latter ground for denying requests
for expedited reviews was not provided for in either Agreement, the Panel found Article 89D
inconsistent with Article 9.5 of the Anti-Dumping Agreement and Article 19.3 of the SCM
Agreement.381
320. Mexico argues that both provisions are "silent" on the question whether an investigating
authority may consider the "representativeness" of the volume of exports as part of its decision to
grant an expedited review.382 In Mexico's submission, this "silen ce" reflects the "deliberate intention"
of negotiators to allow investigating authorities to implement these reviews in a manner best suited to
the structure of their respective anti-dumping and countervailing duty systems. 383 Mexico contends

378Panel Report, para. 7.261.
379Ibid., para. 7.266.
380Ibid., para. 7.268.
381Ibid., paras. 7.266 and 7.268.
382Mexico's appellant's submission, para. 273 ("guarda[n] silencio").
383Ibid. ("la intención deliberada").

that the "silence" of these provisions must therefore be given meaning, which the Panel failed to do by
finding therein an obligation that does not exist and, consequently, finding Ar ticle 89D inconsistent
with this purported obligation.
321. We review, first, the text of the releva nt WTO provisions. Article 9.5 of the Anti-Dumping
Agreement provides:
If a product is subject to anti-dumping duties in an importing
Member, the authorities shall promptly carry out a review for the
purpose of determining individual margins of dumping for any
exporters or producers in the expor ting country in question who have
not exported the product to the importing Member during the period
of investigation, provided that th ese exporters or producers can show
that they are not related to any of the exporters or producers in the
exporting country who are subject to the anti-dumping duties on the
product. Such a review shall be initiated and carried out on an
accelerated basis, compared to normal duty assessment and review
proceedings in the importing Member. ...
We agree with the Panel that Article 9.5 requires that an investigating authority carry out an
expedited review of a new shipper for an exporter that (i) did not export the subject merchandise to
the importing Member during the period of investigati on, and (ii) demonstrated that it was not related
to a foreign producer or exporter already subject to anti-dumping duties.
 384
322. Article 19.3 of the SCM Agreement provides:
Any exporter whose exports are subj ect to a definitive countervailing
duty but who was not actually investigated for reasons other than a
refusal to cooperate, shall be entitle d to an expedited review in order
that the investigating authorities promptly establish an individual
countervailing duty rate for that exporter.
We also agree with the Panel that Article 19.3 requires that an investigating authority carry out an
expedited review for an exporter that (i) is subject to a definitive countervailing duty; and (ii) was not
examined during the original investigation for reasons other than a refusal to cooperate.
 385
323. We examine now the consistency of Article 89D with the above treaty provisions. The Panel
found that Article 89D permits Economía to conduct an expedited review provided that, inter alia, the
respondent make a showing of a "representative" vol ume of exports to Mexico during the period of

384Panel Report, para. 7.266.
385Ibid., para. 7.268.

review.386 By so requiring, Article 89D, like Article 68 of the FTA 387, imposes a condition not
provided for in the relevant provisions of the Agre ements. As such, Article 89D prevents Economía
from granting a review in instances where the conditions set out in the relevant WTO provisions have,
in fact, been met by a respondent.
324. For these reasons, we uphold the Panel's findings, in paragraphs 7.269 and 8.5(d) of the
Panel Report, that Article 89D of the FTA is in consistent, as such, with Article 9.5 of the Anti-
Dumping Agreement and Article 19.3 of the SCM Agreement.
F. Article 93V
325. In its first written submission to the Panel, the United States quoted Article 93V of the FTA,
in English, as follows:
It shall be the responsibility of the Ministry to punish the following
infringements:

(V) Importation, once the investigation is under way, of identical
or like goods in significant quantities, as compared to total
imports and domestic production, within a relatively short
period, when in the light of the timing and the volume of the
imports and other circumstances such imports are considered
likely to undermine the remedial effect of the countervailing
duty: by a fine equivalent to the amount resulting from the
application of the final countervailing duty to the imports
entered for up to five months following the date of initiation
of the investigation. This pe nalty shall only be applied once
the Ministry has issued the resolution determining the final
countervailing duties . ...
388
326. The United States alleged before the Panel that, pursuant to Article 93V, a "clear, direct and
unavoidable connection" exists between, on the on e hand, the constituent elements of dumping or
subsidization and, on the other hand, the fines required to be imposed by Economía. 389 As a result,
the United States argued, Article 93V constitutes a "specific action against" 390 dumping or

386Panel Report, para. 7.266.
387See supra, para. 315.
388United States' first written submission to the Panel, para. 268 (quoting "Notification of Laws and
Regulations under Article 18.5 of the Agreement: Communication from Mexico", G/ADP/N/1/MEX/1,
18 May 1995, p. 12; and "Notification of Laws and Regulations under Article 18.5 and 32.6 of the Relevant
Agreements: Communication from Mexico", G/ADP/N/1/MEX/1/Supp.2, 24 April 2003, p. 15).
389Panel Report, para. 7.270 (quoting United States' fi rst written submission to the Panel, para. 271, in
turn quoting Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 242, in turn quoting Panel
Report, US – Offset Act (Byrd Amendment), para. 7.21).
390Article 18.1 of the Anti-Dumping Agreement and Article 32.1 of the SCM Agreement.

subsidization and, therefore, is inc onsistent within Article 18.1 of the Anti-Dumping Agreement and
Article 32.1 of the SCM Agreement. Mexico contended that Article 93V did not require Economía to
impose certain fines but, instead, only authorized the agency to do so. Th erefore, in Mexico's view,
this provision was not inconsistent with the WTO Agreements.
391
327. The Panel determined that Article 93V re quires Economía to impose fines on certain
importers "only following a determination that th e constituent elements of dumping or subsidization
are present".392 The Panel further found that Article 93V "threaten[ed]" to impose fines on any firm
importing the product subject to an anti-dumping investigation. 393 On these bases, the Panel
concluded that Article 93V provides for a "specific action against" dumping or subsidization that is
not provided for in the Anti-Dumping Agreement or the SCM Agreement.394 In response to Mexico's
assertion that Article 93V did not require Economía to impose fines, the Panel stated:
We do not consider this argument to be convincing. When a law like
the Act provides that it "shall be the responsibility of the Ministry to
punish the following infringements", 229 it does more than just
divid[e] competences among the government, but rather stipulates
that fines are to be imposed in case the conditions of Article 93V of
the Act are met and that it is up to the Ministry of Economy
responsible also for the conduct of anti-dumping and countervailing
duty investigations to impose such fines.
395

 229 The Spanish original of the law reads: " Corresponde a la Secretaría
sancionar las siguientes infracciones: ...".
328. On appeal, Mexico argues that the Panel should have based its interpretation of Article 93V
on the Spanish text of the provision, instead of relying on an inaccurate English translation. 396
Mexico contests, in particular, the opening phrase of the English translation, which provides that "[i]t
shall be the responsibility" of Economía to impose fi nes in certain circumstances. In Mexico's view,
the Panel, based on this understa nding of Article 93V, erroneously c oncluded that Article 93V is a
"mandatory" provision, requiring Economía to impose fines under certain conditions. 397 Referring to
the same phrase in Spanish—" [c]orresponde a la Secretaría sancionar las siguientes infracciones "—

391Mexico's first written submission to the Panel, paras. 283-285.
392Panel Report, para. 7.278.
393Ibid.
394Ibid.
395Ibid., para. 7.279.
396Mexico's appellant's submission, paras. 279 and 282.

Mexico submits that the term " corresponde" is better translated as "to pertain" or "to belong". 398
According to Mexico, the Panel's failure to interpre t Article 93V in such manner, and thereby to find
it discretionary, constitutes error under Article 11 of the DSU. Had the Panel properly recognized the
discretionary character of Article 93V, Mexico ar gues, the Panel could not have found that provision
inconsistent with Mexico's obligations under the WTO Agreements.399
329. We note, at the outset, that the claim of error on appeal is under Article 11 of the DSU.
Article 11 of the DSU requires panels, inter alia , to "make an objective assessment of the matter
before it, including an objective assessment of the facts of the case ". Thus, the question before us is
not necessarily whether we agree with the Panel's in terpretation of Article 93V, but, rather, whether
the Panel committed an error, rising to the level of a failure to make an obj ective assessment, when it
came to its conclusion on the meaning of that provision.
330. Turning to the circumstances of this case, we observe that Article 93V was notified by
Mexico to the WTO Anti-Dumping Committee in 1995 and in 2003, as required by Article 18.5 of the
Anti-Dumping Agreement.
400 The English translation of Article 93V that was provided to the Panel by
the United States was the official WTO translation of these notifications. 401 Although Mexico argued
in its submissions to the Panel that Article 93V was not mandatory—based in part on the opening
language of Article 93402—Mexico never questioned the use of th ese official WTO translations as the
basis for the Panel's examination. 403 We do not see how the Panel can be said to have failed to make
an objective assessment when it relied on an official WTO English translation of Mexico's law, to

398Mexico's appellant's submission, para. 282 ("el significado de 'corresponde' es 'tocar, pertenecer'").
399Mexico's opening statement at the oral hearing.
400"Notification of Laws and Regulations under Article 18.5 of the Agreement: Communication
from Mexico", G/ADP/N/1/MEX/1, 18 May 1995, p. 12; "Notification of Laws and Regulations under
Article 18.5 and 32.6 of the Relevant Agreements: Communication from Mexico", G/ADP/N/1/MEX/1/Supp.2,
24 April 2003, p. 15. Article 18.5 of the Anti-Dumping Agreement provides:
Each Member shall inform the Committee of any changes in its laws and
regulations relevant to this Agreement and in the administration of such
laws and regulations.
401See supra, para. 325. The United States also provided the original Spanish text of this provision.
(United States' first written submission to the Panel, footnote 207 to para. 268)
402Mexico's first written submission to the Panel, para s. 283-284; Mexico's second written submission
to the Panel, paras. 236-237; Mexico's opening statemen t at the first meeting with the Panel, paras. 88-90;
Mexico's opening statement at the second meeting with the Panel, para. 112.
403Mexico's response to questioning at the oral hearing.

which Mexico itself raised no objection. Therefore, we find that, in its interpretation of Article 93V
of the FTA, the Panel did not fail to fulfil its obligations under Article 11 of the DSU.
404
G. Articles 68 and 97
331. Mexico raises two challenges to the Panel's an alysis of the United States' claims against
Articles 68 and 97 of the FTA: (i) Mexico alleges that the United States failed to make a prima facie
case that these provisions are inconsistent with Articles 9.3 and 11.2 of the Anti-Dumping Agreement,
and Article 21.2 of the SCM Agreement ; and (ii) Mexico contests the Panel's interpretation of
Articles 9.3 and 11.2 of the Anti-Dumping Agreement and Article 21.2 of the SCM Agreement, in
particular, the Panel's understandi ng that a product is subject to a definitive anti-dumping duty once
the duty is imposed following the investigation, rather than once judicial proceedings in relation to the
anti-dumping order have concluded. We address these two challenges below in turn.
1. Prima Facie Case
332. Article 68 of the FTA provides:
Final countervailing duties [405] shall be reviewed annually at the
request of a party ... as shall imports from producers for whom no
positive margin of price discrimination or subsidization was
determined in the investigation....
Article 97 of the FTA provides:
Any interested party may, in respect of the resolutions and actions
referred to in Article 94, paragra ph (V), choose to resort to the
alternative dispute settlement mechan isms . . . . If such mechanisms
are chosen:
II. Only the resolution issu ed by the Ministry as
a result of the decision emanating from the
alternative mechanisms shall be considered final. ...

404Article 93V, on its face, seeks to address the possible dumping of subject merchandise taking place
during the anti-dumping or countervailing duty investigation. We note that, although the Panel found Article
93V inconsistent with provisions of the Anti-Dumping Agreement and the SCM Agreement, both Agreements
provide a means for investigating authorities to address this concern, namely, through the imposition of
provisional measures and duties on products entered prior to the date of application of provisional measures.
(See Articles 7 and 10 of the Anti-Dumping Agreement and Articles 17 and 20 of the SCM Agreement)
405Supra, footnote 339.

333. Mexico contends that Article 68 of the FTA "bears no relation whatsoever to [the] alleged
prohibition" on the conduct of reviews while judicial proceedings are ongoing. 406 Mexico similarly
asserts that Article 97 of the FTA contains "not hing ... establishing that the Mexican authority is
prevented or obliged to refrain from undertak ing reviews or examining anti-dumping or
countervailing duties."407 Because neither provision results in the alleged prohibition, Mexico argues,
the United States did not establish a prima facie case of inconsistency with Articles 9.3 and 11.2 of
the Anti-Dumping Agreement and Article 21.2 of the SCM Agreement.408
334. We note, at the outset, that the United States su bmits that this aspect of Mexico's appeal
should fail because the Panel found " as a matter of fact " that Articles 68 and 97 "work together to
preclude reviews while judicial proceedings are ongoi ng", and that, therefore, Mexico's challenge to
that interpretation should have been brought under Article 11 of the DSU. 409 However, Mexico is not
challenging simply the Panel's interpretation of these provisions of the FTA; rather, Mexico
contends that these provisions, on their face, are insufficient to establish a prima facie case of
inconsistency with the relevant provisions of the Anti-Dumping Agreement and the SCM Agreement,
and that, therefore, the Panel should not have ruled on these claims. An appeal based on a
complaining Member's failure to make out a prima facie case need not be raised exclusively under
Article 11 of the DSU. 410 We therefore decline the United Stat es' request to reject this aspect of
Mexico's appeal for failure to bring the claim of error under Article 11 of the DSU.
335. Turning to the merits of Mexico's prima facie challenge, we recall that the Appellate Body
considered a similar challenge in US – Gambling , where the responding Member argued on appeal
that the complaining Member had failed to make a prima facie case of inconsistency with respect to
particular measures identified in the panel request. There, the Appellate Body observed that:

prohibición"). (emphasis omitted)
mexicana está impedida u obligada a no realizar revisiones o exámenes de los derechos antidumping o
compensatorios").
408Ibid., paras. 294 and 297.
409United States' appellee's submission, para. 171. (original emphasis)
410See, for example, Appellate Body Report, US – Gambling , paras. 133-157; and Appellate Body
Report, Japan – Agricultural Products II, paras. 118-131.

The evidence and arguments underlying a prima facie case ... must
be sufficient to identify the challenged measure and its basic import,
identify the relevant WTO provision and obligation contained
therein, and explain the basis for the claimed inconsistency of the
measure with that provision.
411
336. The United States submitted the text of Artic les 68 and 97, describing their meaning as
follows:
Similarly, Article 68 of the Foreign Trade Act only allows for the
review of "final" duties, and unde r Article 97 of the Foreign Trade
Act, only determinations issued at the end of a judicial proceeding
(including a "binational panel" revi ew) can be considered "final."
The preclusion of reviews applies not only to the exporters or
producers that are plaintiffs in the j udicial action, but also to all other
producers and exporters that are subject to the antidumping or
countervailing duties (which, given Mexican practice, means every
producer or exporter of the product in the country subject to the
order). On this basis, Mexico h as denied several requests by U.S.
producers and exporters to obtain re views of the duties applied to
their exports.
412
The United States also submitted a letter from the inv estigating authority to a United States exporter,
which denied the exporter a review on the basis of, inter alia, Articles 68 and 97.413
337. With respect to the relevant WTO provisions a nd the allegations of in consistency, the United
States argued:

412United States' first written submission to the Panel, para. 286. (footnote omitted)
413The Panel provided an English translation of th e relevant parts of the letter from the Mexican
investigating authority (Exhibit US-20 submitted by the United States to the Panel) as follows:
[I]n conformity with Articles 68 of the FTA and 99, 100 and 101 of the
Regulation, in order to be able to request a review it is required that the
determination subject of the review be definitive, ...
In this particular case, the final determination on bovine meat and edible
offals, published in the Official Journal of 28 April 2000, is not of a
definitive nature, as will be considered as final only the determination of the
Secretaria which results from the d ecision taken by the mechanisms of
alternative dispute resolution, in conformity with Article 97 II of the FTA.

... Articles 11.2 of the AD Agreement and 21.2 of the SCM
Agreement each state that Members "shall" conduct reviews of
definitive anti-dumping and countervailing duties, "upon request,"
after a reasonable period of time. Although both provisions permit a
Member to require the requesting part y to substantiate the need for a
review, neither provision allows a Me mber to refuse a review on the
grounds that the antidumping or countervailing duty measure is
subject to judicial review. By requiring Mexican authorities to refuse
reviews on such grounds, Articles 68 and 97 of the Foreign Trade
Act, and Article 366 of the [Federal Code of Civil Procedure], breach
Article 11.2 of the AD Agreement and Article 21.2 of the SCM
Agreement.
... Article 9.3.2 of the AD Agreement states that Members "shall"
provide for "a prompt refund, upon request, of any duty paid in
excess of the margin of dumping." Mexico, however, asserts that
Article 366, Article 68, and Article 97 preclude it from doing so. For
this reason, the provisions are inconsistent with Article 9.3.2.
 414
338. It is clear from the "evidence and legal argument" 415 presented by the United States that its
claim was based not on Article 68 or Article 97 in isolation but, rather, on Article 68 read
in conjunction with Article 97, which the United States argued resulted in a prohibition against
reviews of anti-dumping or countervailing duty measures that were the subject of ongoing
litigation.416 We are therefore of the view that the Un ited States sufficiently identified the challenged
measures as Articles 68 and 97 of the FTA, when read together; set out its understanding of the
relevant legal obligations in Articles 9.3.2 and 11.2 of the Anti-Dumping Agreement and Article 21.2
of the SCM Agreement; and explained how, in its view, those measures fail to comply with these
obligations. Thus, the Panel did not err in consider ing that the United States had met the standard for
a prima facie case, as that standard was set out in US – Gambling, quoted above. Accordingly, we
see no merit in Mexico's argument that the United States did not make out a prima facie case with
respect to Articles 68 and 97 of the FTA.

414United States' first written submission to the Panel, paras. 288-289. (footnote omitted)
415Appellate Body Report, US – Gambling , para. 140 (quoting Appellate Body Report, US – Wool
Shirts and Blouses, p. 16, DSR 1997:I, 323, at 336). (emphasis added in US – Gambling)
416The Panel understood Mexico not to contest the United States' characterization of these provisions:
The United States argues that, in case a judicial review of the measure is
requested, before a domestic or bi-national body, the challenged provisions
require the authority to suspend all administrative, expedited and changed
circumstances reviews. In essence Me xico confirms that the provisions
operate in this manner, but argues that this does not constitute a violation of
any of the provisions alleged to have been violated.
(Panel Report, para. 7.289)

2. Interpretation of Treaty Provisions

339. The Panel found that Articles 9.3 and 11.2 of the Anti-Dumping Agreement, and Article 21.2
of the SCM Agreement, require an investigating authority, in cases where a product is subject to a
definitive duty, to review the amount of, and/or need for, continued imposition of such duties. 417 The
Panel therefore examined at what point a product is subject to a definitive duty so as to trigger an
agency's obligation to conduct the reviews describe d in these provisions. The term "duty" in these
provisions, according to the Panel, "clear[ly]" refers to the duties that a Member may impose at the
end of an investigation meeting the conditions in the Agreements. 418 The Panel further understood
that Article 9 of the Anti-Dumping Agreement and Article 19 of the SCM Agreement make a "clear
distinction" between the imposition and collection of a duty.419 Following from this distinction, the
Panel stated that a product is "subject to a duty" once a final determination has been made to impose
a duty on that product, even if such duty has not been collected yet because of ongoing judicial
proceedings. Thus, in the Panel's view, once a duty has been imposed following an investigation, the
agency may not refuse to conduct the reviews provided for in Articles 9.3 and 11.2 of the Anti-
Dumping Agreement and Article 21.2 of the SCM Agreement.
340. Mexico argues that the Panel erred in its inte rpretation of Articles 9.3 and 11.2 of the Anti-
Dumping Agreement and Article 21.2 of the SCM Agreement , and in its consequent finding of
inconsistency with respect to Artic les 68 and 97 of the FTA. Mexico submits that, so long as there is
a procedure for challenging the relevant duty—fo r example, judicial review—such duty cannot be
"definitive" and a product cannot be said to be "subject to" it, because the court may declare the action
of the investigating authority unlaw ful and thereby remove the duty. 420 In this light, Mexico argues
that it complies with the requirements of these trea ty provisions because it provides exporters an
opportunity to request duty assessment and changed circumstances reviews as soon as judicial
proceedings have concluded, that is, as soon as thos e duties become definitive. Mexico asserts that
nothing in the challenged provisions of the FTA prev ents the investigating authority from conducting
such reviews.

417Panel Report, paras. 7.294-7.295.
418Ibid., para. 7.295.
419Ibid.
420Mexico's appellant's submission, para. 298(c) ("firme"; "no se esté sujeto a").

341. We consider, first, the treaty provisions at issue. Article 9.3 of the Anti-Dumping Agreement
provides:
9.3 The amount of the anti-dumping duty shall not exceed the
margin of dumping as established under Article 2.
…
9.3.2 When the amount of the anti-dumping duty is
assessed on a prospective basis, provision shall be
made for a prompt refund, upon request, of any duty
paid in excess of the margin of dumping. A refund
of any such duty paid in excess of the actual margin
of dumping shall normally take place within
12 months, and in no case more than 18 months,
after the date on which a request for a refund, duly
supported by evidence, has been made by an
importer of the product subject to the anti-dumping
duty. … (footnote omitted; emphasis added)
342. Article 11.2 of the Anti-Dumping Agreement provides:
The authorities shall review the n eed for the continued imposition of
the duty, where warranted, on their own initiative or, provided that a
reasonable period of time has elapsed since the imposition of the
definitive anti-dumping duty , upon request by any interested party
which submits positive information substantiating the need for a
review. … (footnote omitted; emphasis added)
343. Similarly, in the countervailing duty context, Article 21.2 of the SCM Agreement provides:
The authorities shall review the n eed for the continued imposition of
the duty, where warranted, on their own initiative or, provided that a
reasonable period of time has elapsed since the imposition of the
definitive countervailing duty , upon request by any interested party
which submits positive informati on substantiating the need for a
review. ... (emphasis added)
344. As we observed in our previous discussion of Ar ticle 68 of the FTA, Articles 9.3.2 and 11.2
of the Anti-Dumping Agreement, and Article 21.2 of the SCM Agreement, place certain conditions—
stated in those provisions themselves—on an agency's granting of refunds requested by importers for
duties paid in excess of dumping margins, and on an agency's review of anti-dumping and
countervailing duties when requested by interested parties.
421 If those conditions are met, the
investigating authority must undertake a duty assessme nt review and refund the excess duties paid, or
carry out a review on the need for continued imposition of the duty. Among the permissible

421See supra, paras. 312 and 314.

conditions an agency may place on a duty assessment or changed circumstances review are the
following: (i) the product at issue is "subject to [an] anti-dumping duty", in the case of Article 9.3.2
of the Anti-Dumping Agreement; and (ii) a reasonable period of time elapses since the imposition of
the "definitive [anti-dumping or countervailing] duty", in the case of Article 11.2 of the Anti-
Dumping Agreement and Article 21.2 of the SCM Agreement . Determining the consistency of
Articles 68 and 97 with these treaty provisions requires us to identify the point at which an anti-
dumping or countervailing duty becomes "definitive", as well as the point at which a product may be
said to be "subject to" an anti-dumping duty
345. Article 11.2 of the Anti-Dumping Agreement and Article 21.2 of the SCM Agreement ,
referring to the "imposition of the definitive [an ti-dumping or countervailing] duty", suggest that a
duty may be characterized as "definitive" at the time of its imposition. Article 12.2.2 of the Anti-
Dumping Agreement and Article 22.5 of the SCM Agreement set out requirements for an
"affirmative determination providing for the impos ition of a definitive duty". These provisions
indicate that a definitive duty is imposed subsequent to a final affirmative determination. We are of
the view, therefore, that a duty becomes "definitive" —and therefore satisfies one of the conditions to
a review set out in Articles 9.3 and 11.2 of the Anti-Dumping Agreement and Article 21.2 of the
SCM Agreement—at the time of the investigating author ity's final affirmative determination.
422
346. We find confirmation of this understanding in the fact that, with respect to duties imposed by
an agency, the Anti-Dumping Agreement and the SCM Agreement both appear to employ the term
"definitive" as a contrast to the term "provisi onal". In this respect, Article 7 of the Anti-Dumping
Agreement and Article 17 of the SCM Agreement authorize the use of "provisional measures",
specifically including "provisional" duties 423, following a preliminary affirmative determination by
the investigating authority. 424 Other provisions of the Agreements refer to "definitive" measures,
including "definitive" duties, following a complete i nvestigation and a final a ffirmative determination
made with respect to dum ping, injury, and causation. 425 The Agreements therefore use the term
"definitive" to distinguish duties imposed after a final determination (following an investigation)
from "provisional" duties that may be imposed under certain conditions during the course of an
investigation, namely, after a preliminary determination.

422Thus, we agree with the Panel's statement that "[t]he duties imposed by an authority following an
investigation which resulted in an affirmative final determination are final or definitive anti-dumping or
countervailing duties, even if the authorities decide[] to collect such duties only provisionally, and conditional
upon the results of the judicial review proceedings." (Panel Report, para. 7.296)
423Article 7.2 of the Anti-Dumping Agreement; Article 17.2 of the SCM Agreement.
424Article 7.1(ii) of the Anti-Dumping Agreement; Article 17.1(ii) of the SCM Agreement.
425See, for example, Article 9.1 of the Anti-Dumping Agreement and Article 19.1 of the SCM
Agreement.

347. Turning to Article 9.3.2 of the Anti-Dumping Agreement, and the condition that the product
be "subject to" an anti-dumping duty, we share the vi ew of the Panel that "a product is subject to a
duty as soon as an investigation has been concluded and a final determination has been made deciding
to impose anti-dumping or countervailing duties." 426 In our view, this follows from the fact that
imposition of a definitive duty occurs at the time of a final determination, and that an importer must
pay anti-dumping duties to enter the subject me rchandise once the anti-dumping duties have been
imposed.
348. In the light of the above, we understand that Articles 9.3.2 and 11.2 of the Anti-Dumping
Agreement, and Article 21.2 of the SCM Agreement , permit agencies to require that duties be
imposed on a product—in the sense that a final dete rmination be made, following an original
investigation, with respect to the anti-dumping/ countervailing duty liability for entries of such
product—as a condition of the right to a refund or re view of duties. This condition is permitted by
virtue of the proviso in Article 9.3.2 of the Anti-Dumping Agreement that the product at issue be
"subject to [an] anti-dumping duty", and the proviso in Article 11.2 of the Anti-Dumping Agreement
and Article 21.2 of the SCM Agreement that a reasonable period of time elapse since the imposition
of the "definitive [anti-dumping or countervailing] duty". Where duties have been imposed, however,
and the remaining conditions of th ese treaty provisions have been satis fied, an investigating authority
is not permitted to decline a request for a duty assessment or changed circumstances review.
349. We now examine the consistency of Article s 68 and 97 of the FTA with these treaty
provisions. The Panel understood Articles 68 and 97, when read together, to prevent Economía from
conducting duty assessment or changed circumstan ces reviews with respect to anti-dumping and
countervailing duties that are the subject of judi cial proceedings, including proceedings before
binational panels of Chapter 19 of the Nort h American Free Trade Agreement (NAFTA). 427 T h e
reviews that are precluded by Articles 68 and 97 in clude reviews of duties that are "definitive" and
that, therefore, govern the entries of the subject merchandise because th ey have been imposed
following an original investigation. In other wo rds, these provisions appear to impose a condition on
duty assessment and changed circumstances revi ews—that is, the completion of judicial
proceedings—that is not provided for in Articles 9.3.2 and 11.2 of the Anti-Dumping Agreement, or
in Article 21.2 of the SCM Agreement . For this reason, we uphold the Panel's findings, in
paragraphs 7.297 and 8.5(f) of the Panel Report, that Articles 68 and 97 of the FTA, read together, are
inconsistent, as such, with Articles 9.3.2 and 11.2 of the Anti-Dumping Agreement and Article 21.2
of the SCM Agreement.

426Panel Report, para. 7.295.
427Ibid., paras. 7.281 and 7.289-7.290.

VIII. Findings and Conclusions
350. For the reasons set out in this Report, the Appellate Body:
(a) upholds
 the Panel's finding, in paragraph 7.43 of the Panel Report, that the claims in
the United States' panel request, which were not "indicat[ed]" in the request for
consultations, did not fall outside the Panel's terms of reference;
(b) with respect to Economía's injury determination:
(i) finds that the Panel did not exceed its terms of reference in concluding, in
paragraphs 7.65 and 8.1(a) of the Pa nel Report, that Economía's use of a
period of investigation ending in August 1999 was inconsistent with
Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement;
(ii) upholds the Panel's findings, in paragraphs 7.65 and 8.1(c) of the Panel
Report, that Economía's use of a peri od of investigation ending in August
1999 resulted in a failure to make a determination of injury based on
"positive evidence", as required by Article 3.1 of the Anti-Dumping
Agreement, and that, as a consequence, Mexico acted inconsistently with
Articles 3.2, 3.4, and 3.5 of that Agreement;
(iii) upholds the Panel's findings, in paragraphs 7.86 and 8.1(b) of the Panel
Report, that, in limiting the injury analysis to the March to August period
of 1997, 1998, and 1999, Mexico failed to make a determination of injury
that involves an "objective examination" , as required by Article 3.1 of the
Anti-Dumping Agreement , and that, as a consequence, Mexico acted
inconsistently with Article 3.5 of that Agreement; and
(iv) upholds the Panel's findings, in paragra phs 7.116 and 8.1(c) of the Panel
Report, that Economía's injury analysis with respect to the volume and price
effects of dumped imports was inconsiste nt with Articles 3.1 and 3.2 of the
Anti-Dumping Agreement;
(c) with respect to Economía's dumping determination:
(i) upholds the Panel's findings, in paragra phs 7.145 and 8.3(a) of the Panel
Report, that Mexico did not terminate immediately the investigation in
respect of Farmers Rice and Riceland because Economía did not exclude

them from the application of the definitive anti-dumping measure, and,
therefore, acted inconsistently with Article 5.8 of the Anti-Dumping
Agreement;
(ii) finds that the Panel did not exceed its terms of reference in concluding, in
paragraphs 7.168 and 8.3(b) of the Pane l Report, that Economía calculated a
margin of dumping on the basis of the facts available for Producers Rice in a
manner inconsistent with Article 6.8 of the Anti-Dumping Agreement, read in
the light of paragraph 7 of Annex II to that Agreement;
(iii) reverses the Panel's findings, in paragraphs 7.200, 7.201, and 8.3(c) of the
Panel Report, that, with respect to the exporters that Economía did not
investigate, Mexico acted inconsistently with Articles 6.1, 6.10, and 12.1 of
the Anti-Dumping Agreement; and
(iv) upholds the Panel's findings, in paragraphs 7.200 and 8.3(c) of the Panel
Report, that, by applying the facts av ailable contained in the application
submitted by the petitioner in calculating the margin of dumping for those
United States exporters Economía did not investigate, Mexico acted
inconsistently with paragraph 1 of Annex II to the Anti-Dumping Agreement
and, therefore, with Article 6.8 of that Agreement; and
(d) with respect to the provisions of the Foreign Trade Act of Mexico (the "FTA"):
(i) finds that the Panel did not err in considering that a prima facie case had
been made out concerning the consistency of the challenged provisions of the
FTA with Mexico's obligations under the Anti-Dumping Agreement and the
SCM Agreement;
(ii) finds that the Panel did not disregard Article 2 of the FTA, or Mexico's
argument in relation thereto, in concl uding that the challenged provisions of
the FTA are mandatory measures;
(iii) upholds the Panel's findings, in paragraphs 7.223, 7.225, and 8.5(a) of the
Panel Report, that Article 53 of the FTA is inconsistent, as such, with
Article 6.1.1 of the Anti-Dumping Agreement and Article 12.1.1 of the SCM
Agreement;

(iv) upholds
 the Panel's findings, in paragraphs 7.242 and 8.5(b) of the Panel
Report, that Article 64 of the FTA is inc onsistent, as such, with Article 6.8 of
the Anti-Dumping Agreement, paragraphs 1, 3, 5, and 7 of Annex II thereto,
and Article 12.7 of the SCM Agreement;
(v) upholds the Panel's findings, in paragraphs 7.251, 7.260, and 8.5(c) of the
Panel Report, that Article 68 of the FTA is inconsistent, as such, with
Articles 5.8, 9.3, and 11.2 of the Anti-Dumping Agreement , and
Articles 11.9 and 21.2 of the SCM Agreement;
(vi) upholds the Panel's findings, in paragraphs 7.269 and 8.5(d) of the Panel
Report, that Article 89D of the FTA is inconsistent, as such, with Article 9.5
of the Anti-Dumping Agreement and Article 19.3 of the SCM Agreement;
(vii) finds that, in its interpretation of Artic le 93V of the FTA, the Panel did not
fail to fulfil its obligations under Article 11 of the DSU; and
(viii) upholds the Panel's findings, in paragra phs 7.297 and 8.5(f) of the Panel
Report, that Articles 68 and 97 of the FTA , read together, are inconsistent, as
such, with Articles 9.3.2 and 11.2 of the Anti-Dumping Agreement and
Article 21.2 of the SCM Agreement.
351. The Appellate Body recommends that the Dispute Settlement Body request Mexico to bring
its measures, found in this Re port and in the Panel Report as modified by this Report, to be
inconsistent with the Anti-Dumping Agreement and the SCM Agreement , into conformity with its
obligations under those Agreements.

Signed in the original in Geneva this 10th day of November 2005 by:

John Lockhart
Presiding Member

 _________________________ _________________________
 Georges Abi-Saab Yasuhei Taniguchi
 Member Member

ANNEX I

20 July 2005
 (05-3306)
 Original: Spanish

Complaint with Respect to Rice

Notification of an Appeal by Mexico under Article 16.4 and Article 17 of
the Understanding on Rules and Procedures Governing
the Settlement of Disputes (DSU) and Rule 20.1 of
the Working Procedures for Appellate Review

 The following notification dated 20 July 2005 fro m the delegation of Mexico is circulated to
Members.

 Pursuant to Article 16 of the Understa nding on Rules and Procedures Governing the
Settlement of Disputes (DSU) and Rule 20 of the Working Procedures for Appellate Review, Mexico
wishes to notify its decision to appeal certain points of law covered in the final report of the Panel that
examined the case (WT/DS295/R) and
the corresponding legal interpretations, as outlined below.

1. Mexico seeks review by the Appellate Body of the Panel's finding that the request for
establishment of a panel presented by the United Stat es was not inconsistent with Article 6.2 of the
DSU. This finding is based on points of law and err oneous legal interpretations, such as extension of
the legal basis of the complaint
1 through acceptance that the pane l request should include 13 legal
provisions that did not appear in the request for consultations.
2. Mexico seeks review by the Appellate Body of the Panel's findings and conclusions that
Mexico's Ministry of the Economy acted inconsistent ly with Article 3.1, 3.2, 3.4 and 3.5 of the
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
(AD Agreement) in issuing its determination of in jury in the anti-dumping investigation on imports of
long-grain white rice from the United States. Mexico holds that these findings and conclusions, as set
forth below, lie outside the context established by the terms of reference applicable to this dispute, are
in error and are based on misinterpretations of the cited Articles of the AD Agreement and of various
Appellate Body reports (some of wh ich were not considered at all although Mexico cited them in its
written submissions):

1 See paras. 7.38 to 7.45 and 7.49 of the Panel's report.

 (a) The findings in paragraphs 7.50 to 7. 65 of the final report of the Panel and the
conclusion in paragraph 8.1(a) of the report, in which the Panel erred in determining
that Mexico acted inconsistently with Article 3.1, 3.2, 3.4 and 3.5 of the
AD Agreement by basing its injury determin ation on a period of investigation which
had ended more than 15 months before the initiation of the investigation.
 (b) The findings in paragraphs 7.66 to 7. 88 of the final report of the Panel and the
conclusion in paragraph 8.1(b) of the report, in which the Panel erred in determining
that Mexico acted inconsistently with Ar ticle 3.1 and 3.5 of the AD Agreement by
limiting its injury analysis to six months of the years 1997, 1998, and 1999.

 (c) The findings in paragraphs 7.89 and 7. 117 of the final report of the Panel and the
conclusion in paragraph 8.1(c) of the report, in which the Panel erred in determining
that Mexico acted inconsistently with Ar ticle 3.1 and 3.2 of the AD Agreement by
failing to conduct an objective examinati on based on positive evidence of the price
effects and volume of dumped imports as part of its injury analysis.

3. Mexico seeks review by the Appellate Body of the Panel's findings and conclusions that
Mexico's Ministry of the Economy acted inconsistently with Articles 5.8, 6.1, 6.8, 6.10 and 12.1, and
paragraphs 1 and 7 of Annex II of the AD Agreement in issuing its determination of the margin of
dumping in the anti-dumping investigation on imports of long-grain white rice from the United States.
Mexico holds that these findings and conclusions, as set forth below, lie outside the context
established by the terms of reference applicable to th is dispute, are in error and are based on incorrect
interpretations of the aforementioned Articles a nd Annex of the AD Agreement and of various
Appellate Body reports (some of wh ich were not considered at all although Mexico cited them in its
written submissions):
 (a) The findings in paragraphs 7.133 to 7. 145 of the final report of the Panel and the
conclusion in paragraph 8.3(a) of the report, in which the Panel erred in determining
that Mexico acted inconsistently with Article 5.8 of the AD Agreement by not
terminating the investigation on the United States exporters which, as the Panel notes,
had exported at undumped prices, and by not excluding those exporters from
application of the definitive anti-dumping measure.

 (b) The findings in paragraphs 7.146 to 7. 168 of the final report of the Panel and the
conclusion in paragraph 8.3(b) of the report, in which the Panel erred in determining
that Mexico acted inconsistently with Artic le 6.8 and paragraph 7 of Annex II of the
AD Agreement in its application of a facts available-based dumping margin to the
exporter Producers Rice.

 (c) The findings in paragraphs 7.169 to 7. 202 of the final report of the Panel and the
conclusion in paragraph 8.3(c) of the report, in which the Panel erred in determining
that Mexico acted inconsistently with Articles 6.1, 6.8, 6.10 and 12.1 and paragraph 1
of Annex II of the AD Agreement in its application of a facts available-based
dumping margin to United States producers a nd exporters that it allegedly did not
investigate.

4. Mexico seeks review by the Appellate Body of the Panel's findings and conclusions that
Mexico's Foreign Trade Act (FTA) is inconsistent with Articles 5.8, 6.1.1, 6.8, 9.3, 9.5, 11.2 and 18.1,
paragraphs 1, 3, 5 and 7 of Anne x II of the AD Agreement, and Articles 11.9, 12.1.1, 12.7, 19.3, 21.2
and 32.1 of the Agreement on Subsidies and Count ervailing Measures (SCM Agreement). Mexico
holds that these findings and conclusions, as set fort h below, are in error and are based on incorrect
interpretations of the aforementioned Articles of the AD and SCM Agreements and of various
Appellate Body reports (some of wh ich were not considered at all although Mexico cited them in its
written submissions):

 (a) The findings in paragraphs 7.213 and 7. 225 of the final report of the Panel and the
conclusion in paragraph 8.5(a) of the repor t, in which the Panel determined that
Article 53 of the FTA is inconsistent as su ch with Article 6.1.1 of the AD Agreement
and Article 12.1.1 of the SCM Agreement. The reason being that the Panel erred in
determining that Article 53 of the FTA is mandatory and misconstrued Articles 6.1.1
and 5.10 of the AD Agreement and Articles 12.1.1 and 11.11 of the SCM Agreement.

 (b) The findings in paragraphs 7.226 to 7. 242 of the final report of the Panel and the
conclusion in paragraph 8.5(b) of the repor t, in which the Panel determined that
Article 64 of the FTA is inconsistent as such with Article 6.8 and paragraphs 1, 3, 5
and 7 of Annex II of the AD Agreement a nd Article 12.7 of the SCM Agreement.
The reason being that the Panel erred in de termining that Article 64 of the FTA is
mandatory and misconstrued Article 6.8 and pa ragraphs 1, 3, 5 and 7 of Annex II of
the AD Agreement and Article 12.7 of the SCM Agreement. Furthermore, these
findings are based on an erroneous interpretati on of Article 6.8 and paragraphs 1, 3, 5
and 7 of Annex II of the AD Agreement and Article 12.7 of the SCM Agreement.

 (c) The findings in paragraphs 7.243 to 7. 260 of the final report of the Panel and the
conclusion in paragraph 8.5(c) of the repor t, in which the Panel determined that
Article 68 of the FTA is inconsistent as su ch with Articles 5.8, 9.3 and 11.2 of the
AD Agreement and Articles 11.9 and 21.2 of the SCM Agreement. The reason being
that the Panel erred in determining that Article 68 of the FTA is mandatory and
misconstrued Articles 5.8, 9.3 and 11.2 of the AD Agreement and Articles 11.9 and
21.2 of the SCM Agreement. Furthermore, these findings are based on an erroneous
legal interpretation of Articles 5.8, 9.3 and 11.2 of the AD Agreement and
Articles 11.9 and 21.2 of the SCM Agreement.

 (d) The findings in paragraphs 7.261 to 7. 269 of the final report of the Panel and the
conclusion in paragraph 8.5(d) of the repor t, in which the Panel determined that
Article 89D of the FTA is inconsistent as such with Article 9.5 of the AD Agreement
and Article 19.3 of the SCM Agreement. The reason being that the Panel erred in
determining that Article 89D of the FTA is mandatory and misconstrued Article 9.5
of the AD Agreement and Article 19.3 of th e SCM Agreement. Furthermore, these
findings are based on an erroneous legal interpretation of Article 9.5 of the
AD Agreement and Article 19.3 of the SCM Agreement.

 (e) The findings in paragraphs 7.270 to 7. 280 of the final report of the Panel and the
conclusion in paragraph 8.5(e) of the repor t, in which the Panel determined that
Article 93V of the FTA is inconsiste nt as such with Article 18.1 of the
AD Agreement and Article 32.1 of the SCM Agreement. The reason being that the
Panel erred in determining that Artic le 93V of the FTA is mandatory and
misconstrued Article 18.1 of the AD Agreement and Article 32.1 of the
SCM Agreement.

 (f) The findings in paragraphs 7.281 to 7.299 of the final report of the Panel and the
conclusion in paragraph 8.5(f) of the repor t, in which the Panel determined that
Articles 68 and 97 of the FTA are inconsistent as such with Articles 9.3 and 11.2 of
the AD Agreement and Article 21.2 of the SCM Agreement. The reason being that
the Panel erred in determining that Articles 68 and 97 of the FTA are mandatory and
misconstrued Articles 9.3 and 11.2 of th e AD Agreement and Article 21.2 of the
SCM Agreement.

5. Mexico seeks review by the Appellate Body of the Panel's findings and conclusions
concerning paragraphs 7.270 to 7.280 of the fi nal report of the Panel and the conclusion in

paragraph 8.5(e) of the report, in which the Pa nel determined that Article 93V of the FTA is
inconsistent as such with Article 18.1 of the AD Ag reement and Article 32.1 of the SCM Agreement.
By misinterpreting Article 93 of the FTA, the Panel failed to make an objective assessment of the
facts of the case. in breach of Article 11 of the DSU.
6. Mexico seeks review by the Appellate Body of the Panel's findings and conclusions that
Mexico acted inconsistently with the provisions of the AD and SCM Agreements and that this
resulted in nullification or impairment of the be nefits accruing to the United States under those
Agreements.

ANNEX II

22 September 2003
 (03-5043)
 Original: English

Request for the Establishment of a Panel by the United States

 The following communication, dated 19 Sept ember 2003, from the Permanent Mission of the
United States to the Chairman of the Dispute Settleme nt Body, is circulated pursuant to Article 6.2 of
the DSU.

 The United States considers that certain measures of the Government of Mexico are
inconsistent with Mexico's commitments and obligations under the General Agreement on Tariffs and
Trade 1994 ("GATT 1994"), the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 ("AD Agreement"), and the Agreement on Subsidies and
Countervailing Measures ("SCM Agreement"). In particular:

(1) On 5 June 2002, Mexico published in the Diario Oficial its definitive antidumping measure
on long-grain white rice.
1 This measure appears to be inconsis tent with the following provisions of
the AD Agreement and the GATT 1994:

 (a) Article VI of the GATT 1994 and Articles 1, 3.1, 3.2, 3.4, 3.5, and 4.1 of the
AD Agreement because Mexico based its in jury and causation analyses on only six
months of data for each of the years exam ined; failed to collect or examine recent
data; failed to properly evaluate the rele vant economic factors; failed to base its
determination on a demonstration that the dumped imports are, through the effects of
dumping, causing injury within the meani ng of the AD Agreement; and failed to base
its injury determinations on positive evidence or to conduct objective examinations of
the volume of dumped imports, the effect of those imports on prices in the domestic
market of like products, and the impact of the imports on domestic producers of those
products;

 (b) Article 5.8 of the AD Agreement, because Mexico failed to terminate the
antidumping investigation after a negative pr eliminary determination of injury, and
Articles 5.8 and 11.1 of the AD Agreement because Mexico failed to exclude certain

Importación y de Exportación, originarias de los Estados Unidos de América, independientemente del país de
procedencia, Diario Oficial, Segunda Sección 1 (5 de Junio de 2002).

respondent US exporters from the measure after negative final determinations of
dumping;

 (c) Articles 6.1, 6.2, and 6.4 of the AD Agreement, because Mexico, inter alia, failed to
give all of the interested parties in the i nvestigation notice of the information that the
authorities required or ampl e opportunity to present in writing all evidence which
they considered relevant in respect of the antidumping investigation, failed to give all
interested parties a full opportunity for the de fense of their interests, and failed to
provide timely opportunities for the responde nt US exporters to see all information
that was relevant to presentation of their cases, that was not confidential as defined in
Article 6.5, and that the authorities used in their investigation;

 (d) Article 6.8 of the AD Agreement, and paragr aphs 1, 3, 5, 6, and 7 of Annex II of the
AD Agreement, by improperly rejecting in formation submitted by US exporters and
applying the facts available in the evaluation of injury;

 (e) Article 6.9 of the AD Agreement, beca use the investigating authorities, before the
final determination was made, failed to in form the respondent US exporters of the
essential facts under consideration which formed the basis for the decision to apply a
definitive measure;

 (f) Articles 6.6, 6.8, 6.10, 9.3, 9.4, and 9.5 of the AD Agreemen t, and paragraphs 1, 3, 5,
6, and 7 of Annex II of the AD Agreement, by applying the facts available to a US
respondent rice exporter that was investigated and found to have no shipments during
the period of investigation;

 (g) Articles 1, 6.1, 6.6, 6.8, 6.10, 9.3, 9.4, 9.5, 12.1, and 12.2 of the AD Agreement, and
paragraphs 1, 3, 5, 6, and 7 of Annex II of the AD Agreement, by applying the facts
available in establishing the antidumping margins that it assigned to US exporters that
were not individually investigated, and by doing so in an improper manner;

 (h) Article 12.2 of the AD Agreement, because Mexico failed in its final determination in
the rice investigation to set forth in su fficient detail the findings and conclusions
reached on all issues of fact and law considered material or to provide all relevant
information on the matters of fact and law and reasons which led to the imposition of
final measures; and

 (i) Article VI:2 of the GATT 1994, because Mexico levied an antidumping duty greater
in amount than the margin of dumping.

(2) Certain provisions of Mexico's Foreign Trad e Act also appear to be inconsistent with
Mexico's obligations under vari ous provisions of the AD Agreement and the SCM Agreement.
Specifically:

 (a) Article 53 of the Foreign Trade Act requi res interested parties to present arguments,
information, and evidence to the investiga ting authorities within 28 days of the day
after publication of the initiation notice. This provision does not appear to permit the
investigating authorities to grant extensions of the 28-day deadline. Accordingly, the
provision appears to be inconsistent with Articles 6.1.1 and 12.1.1 of the AD and
SCM Agreements, respectively, which speci fy that due consideration should be
granted to extension requests and that such requests should, upon cause shown, be
granted whenever practicable;

 (b) Article 64 of the Foreign Trade Act c odifies the "facts available" approach that
Mexico applied in the rice investigation, as described in subpara graphs (f) and (g) of
section (1) above. This provision appears to be inconsistent with Articles 6.1, 6.6,
6.8, 6.10, 9.3, 9.4, and 9.5 of the AD Agreement, and paragraphs 1, 3, 5, 6, and 7 of
Annex II of the AD Agreement; and with Article s 6.6, 6.8, 6.10, 9.3, 9.4, and 9.5 of
the AD Agreement, paragraphs 1, 3, 5, 6, and 7 of Annex II of the AD Agreement,
and Articles 12.5, 12.7, and 19.3 of the SCM Agreement, to the extent that it requires
the application of facts available rates to exporters with no shipments during the
period of investigation;

 (c) Article 68 of the Foreign Trade Act appears to require reviews of respondent
exporters that were not assigned a positive ma rgin in an investigation, and appears to
require that respondent exporters seeking re views demonstrate that their volume of
exports during the period of review was "r epresentative." This provision appears to
be inconsistent with Articles 5.8 and 11. 1 of the AD Agreement (as described in
subparagraph (b) of section (1) above), with Articles 9.3 and 11.2 of the AD
Agreement, and with Articles 11.9, 21.1, and 21.2 of the SCM Agreement;

 (d) Article 89D of the Foreign Trade Act appears to require that "new shippers"
requesting expedited reviews demonstrate that their exports were subsequent to the
period of investigation and that the volume of exports during the period of review
was "representative." This provision appears to be inconsistent with Article 9.5 of the
AD Agreement and Article 19.3 of the SCM Agreement;

 (e) Article 93V of the Foreign Trade Act app ears to provide for the application of fines
on importers that enter products subject to antidumping and countervailing duty
investigations while such investigations ar e underway. This provision appears to be
inconsistent with Article 18.1 of the AD Agreement and Article 32.1 of the SCM
Agreement.

(3) Mexican officials have asserted that Article 366 of Mexico's Federal C ode of Civil Procedure
and Articles 68 and 97 of the Foreign Trade Ac t prevent Mexico from conducting reviews of
antidumping or countervailing duty orders while a judi cial review of the order is ongoing, including a
"binational panel" review pursuan t to Chapter Nineteen of the North American Free Trade
Agreement. These provisions appear to be inconsistent with Articles 9.3, 9.5, and 11.2 of the
AD Agreement, and Articles 19.3 and 21.2 of the SCM Agreement.

 On 16 June 2003, the United States Government requested consultations with the Government
of Mexico pursuant to Article 4 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU"), Article XXII:1 of the GATT 1994, Article 17.3 of the
AD Agreement, and Article 30 of the SCM Agreemen t. The United States and Mexico held such
consultations on 31 July and 1 August 2003. These cons ultations provided some helpful clarifications
but unfortunately did not resolve the dispute.

 Accordingly, the United States respectfully re quests, pursuant to Article 6 of the DSU,
Article 17.4 of the AD Agreement, and Article 30 of the SCM Agreement, that the Dispute Settlement
Body establish a panel to examine this matter, with the standard terms of reference as set out in
Article 7.1 of the DSU. The United States further as ks that this request for a panel be placed on the
agenda for the next meeting of the Dispute Settlement Body to be held on 2 October 2003.

ANNEX III

23 June 2003
 (03-3349)
 Original: English

Request for Consultations by the United States

 The following communication, dated 16 June 2003, from the Permanent Mission of the
United States to the Permanent Mission of Mexico and to the Chairman of the Dispute Settlement
Body, is circulated in accordance with Article 4.4 of the DSU.

 My authorities have instructed me to request consultations with the Government of Mexico
pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes, Article XXII:1 of the General Agreement on Tariffs and Trade 1994 ("GATT 1994"),
Article 17.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994 ("AD Agreement"), and Article 30 of the Agreement on Subsidies and Countervailing
Measures ("SCM Agreement"), with respect to Mexi co's definitive anti-dumping measures on beef
and long grain white rice, published in the Diario Oficial on 28 April 2000
1 and 5 June 2002 2
respectively, as well as any amendments thereto or extensions thereof 3 and any related measures 4 and
also with respect to certain provisions of Mexico 's Foreign Trade Act and its Federal Code of Civil
Procedure. These measures appear to be inconsiste nt with Mexico's obligations under the provisions
of GATT 1994, the AD Agreement, and the SCM Agreement.

comestibles de bovino, mercancía clasificada en las fracciones arancelarias 0201.10.01, 0202.10.01,
del Impuesto General de Importación, originarias de lo s Estados Unidos de América, independientemente del
país de procedencia, Diario Oficial, Segunda Sección 8 (28 de Abril de 2000).
Generales de Importación y de Exportación, originarias de los Estados Unidos de América, independientemente
del país de procedencia, Diario Oficial, Segunda Sección 1 (5 de Junio de 2002).
3 Including any further determinations made pursuant to court order or remand.
4 These include, for example, the Resolución final de la investigación sobre elusión del pago de cuotas
compensatorias impuestas a las importaciones de carne de bovino en cortes deshuesada y sin deshuesar,
Tarifa de la Ley del Impuesto General de Importación, originarias de los Estados Unidos de América,
independientemente del país de procedencia, Diario Oficial, Primera Sección 1 (22 de Mayo 2001).

 In particular, the United States believes that the anti-dumping measures on beef and rice are
inconsistent with at least the following provisions:

• Article 3 of the AD Agreement, because Mexico, inter alia, based its injury (or threat) and
causation analyses on only six months of data for each of the years examined; failed to
collect or examine recent data; failed in the beef investigation to evaluate all relevant
economic factors and indices having a bearing on the state of the industry; and failed to base
its injury determinations on positive evidence or to conduct objective examinations of the
volume of dumped imports, the effect of those imports on prices in the domestic market of
like products, and the impact of the imports on domestic producers of those products;

• Article 5.8 of the AD Agreement, because Mexi co failed to terminate the rice investigation
after a negative preliminary determination of injury, and Articles 5.8 and 11.1 of the
AD Agreement because Mexico failed to exclude certain respondent US exporters from the
beef and rice measures after negative final determinations of dumping;

• Article 6 of the AD Agreement, because Mexico, inter alia, failed to provide respondent US
exporters with ample opportunity to present in writing all evidence which they considered
relevant in respect of the anti-dumping investigati ons and failed to give all interested parties a
full opportunity for the defense of their inte rests, and Article 6 and Annex II of the
AD Agreement by improperly applying the facts available to a US respondent rice exporter
that was investigated and found to have no shipments during the period of investigation;

• Article 9 of the AD Agreement, in conjunction with Article 6, because of the manner in which
Mexico determined anti-dumping margins for US exporters that were not individually
investigated;

• Article 6 and 9 of the AD Agreement and Article VI of GATT 1994, because Mexico,
inter alia, limited the application of the respondent-s pecific margins that it calculated in the
beef investigation to selected grades of meat imported within 30 days of slaughter (applying
"facts available" margins to the respondents' othe r shipments) and limited the application of a
particular US respondent exporter's margin af ter conducting an "anti- circumvention review"
that found the respondent was not engaged in circumvention;

• Articles 9 and 11 of the AD Agreement, because Mexico rejected requests by certain US
respondent exporters to conduct reviews of the beef anti-dumping order; and

• Article 12 of the AD Agreement, because Mexico failed in its final de terminations in both
investigations to set forth in sufficient detail the findings and conclusions reached on all
issues of fact and law considered material or to provide all relevant information on the matters
of fact and law and reasons which led to the imposition of final measures.

 In addition, the following provisions of Mexico's Foreign Trade Act appear to be inconsistent
with Mexico's obligations under the provisions of the AD Agreement and the SCM Agreement:

• Article 53, which requires interested parties to present arguments, information, and evidence
to the investigating authorities within 28 days of the day after publication of the initiation
notice. This provision appears to be inconsistent with Articles 6.1.1 and 12.1.1 of the AD and
SCM Agreements, respectively, which specify th at exporters/foreign producers shall be given
at least 30 days to respond to questionnaires, a nd that, as a general rule, the 30 days are to be
counted from the date of receipt of the questionnaire;

• Article 64, which codifies the "facts available" approach that Mexico applied in the rice and
beef investigations, as described in the fourth bullet above. This provision appears to be
inconsistent with Article 9 of the AD Agreem ent, in conjunction with Article 6; and with
Article 6.8 of the AD Agreement and Article 12.7 of the SCM Agreement to the extent that it
requires the application of facts available ra tes to exporters with no shipments during the
period of investigation;

• Article 68, which appears to require reviews of respondent exporters that were not assigned a
positive margin in an investigation, and appear s to require that respondent exporters seeking
reviews demonstrate that their volume of exports during the period of review was
"representative." This provision appears to be inconsistent with Artic les 5.8 and 11.1 of the
AD Agreement (as described in the second bullet above), with Article 9 of the
AD Agreement, and with Articles 11.9 and 21.1 of the SCM Agreement;

• Article 89D, which appears to require that "new shippers" requesting expedited reviews
demonstrate that their volume of exports duri ng the period of review was "representative."
This provision appears to be inconsistent with Article 9.5 of the AD Agreement and
Article 19.3 of the SCM Agreement, which re quire authorities to conduct reviews without
regard to such a condition; and

• Article 93V, which appears to provide for th e application of definitive anti-dumping or
countervailing duties on products entered prior to the date of application of provisional
measures (1) for longer than allowed under the AD and SCM Agreements, and (2) even if not
all AD or SCM Agreement requirements for a pplying such duties are met. This provision
appears to be inconsistent with Articles 7 a nd 10.6 of the AD Agreement and Articles 17 and
20.6 of the SCM Agreement.

 Finally, Article 366 of Mexico's Federal C ode of Civil Procedure, in conjunction with
Article 68 of the Foreign Trade Act, appears to be inconsistent with Articles 9 and 11 of the
AD Agreement and Articles 19 and 21 of the SCM Ag reement to the extent that the provisions
prevent Mexico from conducting reviews of anti- dumping or countervailing duty orders while a
judicial review of the order is ongoing, includ ing a "binational panel" review pursuant to
Chapter Nineteen of the North American Free Trade Agreement.

 Mexico's measures also appear to nullify or impair benefits accruing to the United States
directly or indirectly under the cited agreements.

 We look forward to receiving your reply to the present request and to fixing a mutually
convenient date for consultations.