AUSTRALIA – ANTI-DUMPING AND COUNTERVAILING DUTY MEASURES ON CERTAIN PRODUCTS FROM CHINA REPORT OF THE PANEL
Document: Addendum BCI deleted, as indicated [[***]]
Date: 26 March 2024
Document codes: WT/DS603/R/Add.1; WT/DS603/R.
Complainant: China
Respondent: Australia
Third parties: Argentina, Brazil, Canada, EU, India, Japan, South Korea, Malaysia, Mexico, Norway, Russia, Singapore, Switzerland, Taiwan, United Kingdom, U.S., Vietnam
Dispute stage: Panel
Agreements cited: Art. 2.1, 2.2, 2.2.1, 2.2.1.1, 2.2.2, 9.3  Anti-dumpingArt. VI:1, VI:2  GATT 1994Art. 1.1(a)(1), 1.1(b), 1.2, 2.1(c), 11.1, 11.2, 11.3, 14(d)  Subsidies and Countervailing Measures (SCM)

AUSTRALIA – ANTI-DUMPING AND COUNTERVAILING DUTY MEASURES
ON CERTAIN PRODUCTS FROM CHINA
 REPORT OF THE PANEL
Addendum
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This addendum contains Annexes A to C to the Report of the Panel to be found in document

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LIST OF ANNEXES
ANNEX A
PANEL DOCUMENTS
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures concerning Business Confidential Information 11
Annex A-3 Interim Review 13
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of China 25
Annex B-2 Integrated executive summary of the arguments of Australia 41
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Brazil 60
Annex C-2 Integrated executive summary of the arguments of Canada 62
Annex C-3 Integrated executive summary of the arguments of the European Union 63
Annex C-4 Integrated executive summary of the arguments of Japan 67
Annex C-5 Integrated executive summary of the arguments of Mexico 70
Annex C-6 Integrated executive summary of the arguments of Norway 72
Annex C-7 Integrated executive summary of the arguments of the Russian Federation 75
Annex C-8 Integrated executive summary of the arguments of the United Kingdom 80
Annex C-9 Integrated executive summary of the arguments of the United States 83

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ANNEX A
PANEL DOCUMENTS
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures concerning Business Confidential Information 11
Annex A-3 Interim Review 13

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ANNEX A-1
WORKING PROCEDURES OF THE PANEL
Adopted on 21 October 2022
General
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding
on Rules and Procedures Governing the Settlement of Disputes ("DS U"). In addition, the
following Working Procedures apply.
(2) The Panel reserves the right to modify these procedures as necessary, after consultation
with the parties.
Confidentiality
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept
confidential. Members shall treat as confidential information that is submitted to the Panel
which the submitting Member has designated as confidential.
(2) In accordance with the DSU, nothing in these Working Procedures shall preclude a party
or third party from disclosing statements of its own positions to the public.
(3) If a party submits a confidential version of its written submissions to the Panel, it shall
also, upon request of a Member, provide a non -confidential summary of the inf ormation
contained in its submissions that could be disclosed to the public. A party should endeavour
to promptly provide a non-confidential summary to any Member requesting it, and if possible
within 10 days of receiving the request.
(4) Upon request, the Panel may adopt appropriate additional procedures for the treatment
and handling of confidential information after consultation with the parties.
Submissions
3. (1) Before the first substantive meeting of the Panel with the parties, each party shall
submit a written submission in which it presents the facts of the case and its arguments, in
accordance with the timetable adopted by the Panel.
(2) Each party shall also submit to the Panel, before the second substantive meeting of the
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.
(3) Each third party that chooses to make a written submission before the first substantive
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by
the Panel.
(4) The Panel may invite the parties or third parties to make additional submissions during
the proceeding, including with respect to requests for preliminary rulings in accordance with
paragraph 4 below.
Preliminary rulings
4. (1) If Australia conside rs that the Panel should make a ruling before the issuance of the
Report that certain measures or claims in the panel request or the complainant's first written
submission are not properly before the Panel, the following procedure applies. Exceptions to
this procedure shall be granted upon a showing of good cause.

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a. Australia shall submit any such request for a preliminary ruling at the earliest possible
opportunity and in any event no later than in its first written submission to the Panel.
China shall submit its response to the request before the first substantive meeting of the
Panel, at a time to be determined by the Panel in light of the request.
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling
request before, during or after the first substantive meeting, or the Panel may defer a
ruling on the issues raised by a preliminary ruling request until it issues its Report to the
parties.
c. If the Panel finds it appropriate to issue a preliminary ruling be fore the issuance of its
Report, the Panel may provide reasons for the ruling at the time that the ruling is made,
or subsequently in its Report.
d. Any request for such a preliminary ruling by the respondent before the first meeting, and
any subsequent s ubmissions of the parties in relation thereto before the first meeting,
shall be served on all third parties. The Panel may provide all third parties with an
opportunity to provide comments on any such request, either in their submissions as
provided for i n the timetable or separately. Any preliminary ruling issued by the Panel
before the first substantive meeting on whether certain measures or claims are properly
before the Panel shall be shared with all third parties.
(2) This procedure is without prejud ice to the parties' right to request other types of
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel
may follow with respect to such requests.
Evidence
5. (1) Each party shall submit all evidence to the Panel no later than during the
first substantive meeting, except evidence necessary for purposes of rebuttal, or evidence
necessary for answers to questions or comments on answers provided by the other party.
Additional exceptions may be granted upon a showing of good cause.
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall
accord the other party an appropriate period of time to comment on the new evidence
submitted.
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language,
the submitting party or third party shall simultaneously submit a translation of the exhibit or
relevant portion into the WTO working language of the submission. The Panel may grant
reasonable extensions of time for the translation of exhibits upon a showing of good cause.
(2) Any objection as to the accuracy of a translation should be raised promptly in writing,
preferably no later than the next submission or meeting (whichever occurs earlier) following
the submission which contains the translation in question. Any objection shall be accompanied
by an explanation of the grounds for the objection and an alternative translation.
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the dispute, indicating the submitting Member and the number of each exhibit on
its cover page. Exhibits submitted by China should be numbered CHN-1, CHN-2, etc. Exhibits
submitted by Australia should be numbered AUS-1, AUS-2, etc. If the last exhibit in connection
with the first submission was numbered AUS -5, the first exhibit in connection with the next
submission thus would be numbered AUS-6. If a party withdraws an exhibit or leaves one or
more exhibits intentionally blank, it should indicate this on the cover page that provides the
number of the blank exhibit.
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together
with each of its submissions, oral statements, and responses to questions.

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(3) If a party submits a document that has already been submitted as an exhibit by the
other party, it should explain why it is submitting that document again.
(4) If a party includes a hyperlink to the content of a website in a submission, and intends
that the cited content form part of the official record, the cited content of the website shall be
provided in the form of an exhibit along with an indication of the date that it was accessed.
Questions
8. The Panel may pose questions to the parties and third parties at any time, including:
a. Before any meeting, the Panel may send written questions, or a list of topics it intends to
pursue in questioning orally during a meeting. The Pan el may ask different or additional
questions at the meeting.
b. The Panel may put questions to the parties and third parties orally during a meeting, and
in writing following the meeting, as provided for in paragraphs 14 and 22 below.
Substantive meetings
9. The Panel shall meet in closed session.
10. The parties shall be present at the meetings only when invited by the Panel to appear before it.
11. (1) Each party has the right to determine the composition of its own delegation when
meeting with the Panel.
(2) Each party shall have the responsibility for all members of its delegation and shall
ensure that each member of its delegation acts in accordance with the DSU, these
Working Procedures, and any Additional Working Procedures of the Panel concerning BCI
particularly with regard to the confidentiality of the proceeding and the submissions of the
parties and third parties.
12. Each party shall provide to the Panel the list of members of its delegation no later than 5 p.m.
(Geneva time) three working days before the first day of each meeting with the Panel.
13. These panel proceedings are being conducted in English. A request by a party for interpretation
from one WTO language to another should be made to the Panel as early as possible,
preferably at the organizational stage, to allow sufficient time to ensure availability of
interpreters.
14. The first substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall invite China to make an opening statement to present its case first.
Subsequently, the Panel shall invite Australia to present its point of view. Before each
party takes the floor, it shall provide the Panel and other participants at the meeting with
a provisional written version of its statement. If interpretation is needed, each party shall
provide additional copies for the interpreters before taking the floor.
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each party
is invited to limit the duration of its opening statement to not more than 75 minutes. If
either party considers that it requires more time for its opening statement, it should inform
the Panel and the other party at least 10 days befo re the meeting, together with an
estimate of the expected duration of its statement. The Panel will accord equal time to the
other party.
c. After the conclusion of the opening statements, the Panel shall give each party the
opportunity to make comments or ask the other party questions.
d. The Panel may subsequently pose questions to the parties.

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e. Once the questioning has concluded, the Panel sha ll afford each party an opportunity to
present a brief closing statement, with China presenting its statement first. Before each
party takes the floor, it shall provide the Panel and other participants at the meeting with
a provisional written version of its closing statement, if available.
f. Following the meeting:
i. Each party shall submit a final written version of its opening statement no later than
5 p.m. (Geneva time) on the first working day following the meeting. At the same
time, each party should also submit a final written version of any prepared closing
statement that it delivered at the meeting.
ii. Each party shall send in writing, within the timeframe established by the Panel before
the end of the meeting, any questions to the other party to which it wishes to receive
a response in writing.
iii. The Panel shall send in writing, within the timeframe established by the Panel before
the end of the meeting, any questions to the parties to which it wishes to receive a
response in writing.
iv. Each party shall respond in writing to the questions from the Panel, and to any
questions posed by the other party, within the time -frame established by the Panel
before the end of the meeting.
15. The second substantive meeting of the Panel with the parties shall be conducted in the same
manner as the first substantive meeting with the Panel, except that Australia shall be given
the opportunity to present its oral statement first. The party that presented its opening
statement first shall present its closing statement first.
16. Each party shall be given the opportunity to comment on the responses to questions provided
by the other party after the second substantive meeting, in accordance with the timetable
adopted by the Panel.
17. If, because of the sanitary crisis related to COVID-19 or any other situation, the substantive
meetings cannot be physically held in Geneva on the scheduled dates or either party indicates
that travel to Geneva will not be possible for its delegation, the Panel may, depending on the
circumstances, choose to modify the timetable and/or these Working Procedures after
consulting the parties.
Third party session
18. Each third party may present its views orally during a session of the first substantive meeting
with the parties set aside for that purpose.
19. Each third party shall indicate to the Panel whether it intends to make an oral statement during
the third-party session three weeks in advance of this session.
20. (1) Each third party has the right to determine the composition of its own delegation when
meeting with the Panel.
(2) Each third party shall have the responsibility for all members of its delegation and shall
ensure that each member of its delegation acts in accordance with the DSU, these
Working Procedures, and any Additional Working Procedures of the Panel Concerning BCI
particularly with regard to the confidentiality of the proceeding and the submissions of the
parties and third parties.
(3) Each third party shall provide, no later than three w orking days before the third-party
session, a list of members of its delegation who will attend the session.
21. To ensure the availability of interpreters, the third parties shall also indicate at least
three weeks before the third-party session whether they intend to make their statement in a

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WTO language other than English, which is the language in which these panel proceedings are
being conducted, and whether they would require interpretation from English to any other
WTO language.
22. The third-party session shall be conducted as follows:
a. All parties and third parties may be present during the entirety of this session.
b. The Panel shall first hear the oral statements of the third parties. Each third party making
an oral statement at the third-party session shall provide the Panel and other participants
with a provisional written version of its statement before it takes the floor. If interpretation
of a third party's oral statement is needed, that third party shall provide additional copies
for the interpreters before taking the floor.
c. Each third party should limit the duration of its statement to 15 minutes, and avoid
repetition of the arguments already in its submission. If a third party considers that it
requires more time for its opening state ment, it should inform the Panel and the parties
at least 10 days before the meeting, together with an estimate of the expected duration
of its statement. The Panel will accord equal time to all third parties for their statements.
d. After the third parti es have made their statements, the parties shall be given the
opportunity to pose questions to any third party for clarification on any matter raised in
that third party's submission or statement.
e. The Panel may subsequently pose questions to any third party.
f. Following the third-party session:
i. Each third party shall submit the final written version of its oral statement, no later
than 5 p.m. (Geneva time) on the first working day following the meeting.
ii. Each party may send in writing, within t he timeframe to be established by the Panel
before the end of the meeting, any questions to one or more third parties to which it
wishes to receive a response in writing.
iii. The Panel may send in writing, within the timeframe to be established by the Pa nel
before the end of the meeting, any questions to one or more third parties to which it
wishes to receive a response in writing.
iv. Each third party choosing to do so shall respond in writing to written questions from
the Panel or a party, within a timeframe established by the Panel before the end of the
meeting.
Descriptive part and executive summaries
23. The description of the arguments of the parties and third parties in the descriptive part of the
Panel report shall consist of executive summaries p rovided by the parties and third parties,
which shall be annexed as addenda to the report. These executive summaries shall not in any
way serve as a substitute for the submissions of the parties and third parties in the Panel's
examination of the case.
24. Each party shall submit one integrated executive summary. This integrated executive
summary shall summarize the facts and arguments as presented to the Panel in the party's
first and second written submissions and first and second oral statements, and ma y also
include a summary of the party's first and second closing statements, responses to questions
following the first and second substantive meetings, and comments on the other party's
responses following the second substantive meeting. The timing of the submission of the
integrated executive summary shall be indicated in the timetable adopted by the Panel.
25. Each party's integrated executive summary shall be limited to 30 pages.

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26. The Panel may request the parties and third parties to provide execu tive summaries of facts
and arguments presented in any other submissions to the Panel for which a deadline may not
be specified in the timetable.
27. Each third party shall submit an integrated executive summary of its arguments as presented
in its written submission and statement in accordance with the timetable adopted by the Panel.
This integrated executive summary may also include a summary of responses to questions.
The executive summary to be provided by each third party shall not exceed six pages. If a
third-party submission and/or oral statement does not exceed six pages in total, this shall
serve as the executive summary of that third party's arguments unless that third party
indicates that it does not wish for the submission and/or oral statement t o serve as its
executive summary, in which case it shall submit a separate executive summary.
Interim review
28. Following issuance of the interim report, each party may submit a written request to review
precise aspects of the interim report and request a further meeting with the Panel, in
accordance with the timetable adopted by the Panel. The right to request such a meeting shall
be exercised no later than at the time the written request for review is submitted.
29. If no meeting is requested, each party may submit written comments on the other party's
written request for review in accordance with the timetable adopted by the Panel. Such written
comments shall be limited to the other party's written request for review.
30. If a meeting is requested, the Panel shall consult with the parties on the timing of the meeting
and any further written comments.
Interim and Final Report
31. The interim report, as well as the final report before its official circulation, shall be kept strictly
confidential and shall not be disclosed.
Service of documents
32. The following procedures regarding service of documents apply to all documents submitted by
parties and third parties during the proceeding:
a. Each party and third party shall submit all documents to the Panel by submitting them via
the Disputes On -Line Registry Application (DORA) https://dora.wto.org by 5 p.m.
(Geneva time) on the due dates established by the Panel. The electronic version uploaded
into DORA shall constitute the official version for the purposes of submission deadlines
and the record of the dispute. Upload of a document into DORA shall constitute electronic
service on the Panel, the other party, and the third parties.
b. By 5 p.m. (Geneva time) the next working day following the electronic submission, each
party and third party shall submit one paper copy of all documents it submits to the Panel,
including the exhibits, with the DS Registry (office No. 2047). The DS Registrar shall stamp
the documents with the date and time of the submission. If an exhibit is in a format that
is impractica l to submit as a paper copy, then the party may submit such exhibit in
electronic format only. In this case, the cover page of the exhibit should indicate that the
exhibit is only available in electronic format.
c. The Panel shall provide the parties with the Descriptive Part of the Report, the
Interim Report and the Final Report, as well as all other documents or communications
issued by the Panel during the proceeding, via DORA.
d. If the parties or third parties have any questions or technical difficulties relating to DORA,
they are invited to contact the DS Registry (DSRegistry@wto.org).
e. If any party or third party is unable to meet the 5 p.m. deadline because of technical
difficulties in uploading these documents into DORA, the party or third party concerned

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shall inform the DS Registry (DSRegistry@wto.org) without delay and provide an electronic
version of all documents to be submitted to the Panel by email including any exhibits. The
email shall be addressed to DSRegistry@wto.org, the Panel Secretary
(huijian.zhu@wto.org), th e other party and, if appropriate, the third parties. The
documents sent by email shall be submitted no later than 5:30 p.m. on the due date
established by the Panel. If the file size of specific exhibits makes transmission by email
impossible, or it would require more than five email messages, owing to the number of
exhibits to be filed, to transmit all of them by email, the specific large file size exhibits, or
those that cannot be attached to the first five email messages, shall be filed with the
DS Registry (office No. 2047) and provided to the other party and, if appropriate, the
third parties by no later than 9:30 a.m. the next working day on an electronic medium
acceptable to the recipient. In that case, the party or third party concerned shall send a
notification to the DS Registrar, copying the Panel Secretary ( huijian.zhu@wto.org), the
other party, and the third parties, as appropriate, via email, identifying the numbers of
the exhibits that cannot be transmitted by email.
f. In case any party or third party is unable to access a document filed through DORA because
of technical difficulties, it shall promptly, and in any case no later than 5 p.m. on the next
working day after the due date for the filing of the document, inform the DS Registrar, the
Panel Secretary ( huijian.zhu@wto.org), and the party or third party that filed the
document, of the problem by email and shall, if possible, identify the relevant
document(s). The DS Registrar will promptly try to identify a solution to the technical
problem. In the meantime, the party or third party that filed the document(s) shall,
promptly after being informed of the problem, provide an electronic version of the relevant
document(s) to the affected party or third party by email, with a copy to the DS Regi stry
(DSRegistry@wto.org) and the Panel Secretary ( huijian.zhu@wto.org) to allow access to
the document(s) while the technical problem is being addressed. The DS Registrar may
provide an electronic version of the relevant document(s) by email if the affected party or
third party so requests. The DS Registrar shall in that case copy the party or third party
that filed the document(s) on the email message.
g. Parties and third parties are responsible, through their DORA account administrators, for
creating and updating their DORA accounts. The DS Registry is available to provide
assistance with managing the DORA accounts.
Correction of clerical errors in submissions
33. The Panel may grant leave to a party or third party to correct clerical errors in any of its
submissions (including paragraph numbering and typographical mistakes). Any such request
should identify the nature of the errors to be corrected, and should be made promptly following
the filing of the submission in question.
Parties' agreed procedures for arbitration
34. The Panel takes note of the Agreed Procedures for Arbitration under Article 25 of the DSU in
this dispute notified by the parties on 28 April 2022 (WT/DS603/4) and of the joint requests
of the parties to the Panel formulated therein.

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ANNEX A-2
ADDITIONAL WORKING PROCEDURES CONCERNING
BUSINESS CONFIDENTIAL INFORMATION
Adopted on 21 October 2022
1. For the purpose of this proceeding, business confidential information ("BCI") is defined as any
information that has been designated as such by a party submitting the information to the Panel.
The parties shall only designate as BCI information that is not availab le in the public domain, the
release of which would cause serious harm to the interests of the originator(s) of the information.
BCI may include information that was previously treated by the Australian investigating authority as
confidential in the course of the anti-dumping and countervailing proceedings at issue in this dispute.
2. If a party considers that an entity, that submitted BCI relied on in an investigation at issue, is
entitled to object to the use of BCI in the proceedings, the party shall provide written notification to
the relevant entity that the submitted BCI may be used in the course of the dispute in accordance
with these Additional Working Procedures, unless agreed otherwise with the relevant entity. If the
entity does not respond to the correspondence, within a reasonable period of time, the parties
acknowledge that the entity's BCI may be used in accordance with these Additional Working
Procedures.
3. Each party shall assist and facilitate any communication under paragraph 2 to an entity in its
territory.
4. No person may have access to BCI except a Panelist, a member of the Secretariat assisting
the Panel, an employee of a party or a third party (subject to paragraphs 5 and 6), or an outside
advisor to a party or a third party (subject to paragraphs 5 and 6) for the purposes of this dispute.
However, an outside advisor is not permitted to access BCI if that advisor is an officer or employee
of an enterprise engaged in the production, sale, export, or import of the products that were the
subject of the proceedings at issue in this dispute, or an officer or employee of an association of
such enterprises.
5. When third parties receive written submissions pursuant to the Working Procedures, the
third parties shall receive a version of such written submissions and any exhibits with BCI redacted.
The BCI-redacted versions of written submissions and exhibits received by third parties shall be
sufficient to convey a reasonable understanding of the nature of the information at issue. Written
submissions and exhibits, and their BCI-redacted versions, shall be submitted at the same time.
6. A third party may request access to the BCI version of a BCI -redacted written submission or
exhibit received pursuant to the Working Procedures. The Panel, after consulting the parties, shall
decide whether to grant access to such BCI, taking into consideration the sensitivity of the
information and the need for the third party to see the information for the purpose of participating
effectively in the Panel procee dings. Any such request shall include a list of the third party's
representatives and outside advisors who would have access to the BCI. If granted, the third party's
access to the non-redacted version of a written submission or exhibit containing BCI will take place
on the premises of the WTO Secretariat, unless good cause is shown for an alternative arrangement.
7. A person having access to BCI submitted in these Panel proceedings shall treat it as
confidential, i.e., shall not disclose that information other than to those persons authorized to receive
it pursuant to these procedures. Each party and third party shall have responsibility in this regard
for its employees as well as any outside advisors used for the purposes of this dispute. BCI obtained
under these procedures may be used only for the purpose of providing information and
argumentation in this dispute and for no other purpose. All documents and electronic storage media
containing BCI shall be stored in such a manner as to prevent unauthorized a ccess to such
information.

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8. When a party or third party includes BCI in a submission or exhibit, the cover and/or first page
of the document containing BCI, and each page of the document, shall be marked to indicate the
presence of such information. Spec ifically, the first page or cover of the document shall state
"Contains Business Confidential Information on pages xxxxxx", and each page of the document shall
contain the notice "Contains Business Confidential Information" at the top of the page. The spec ific
information in question shall be placed between double square brackets, as follows: [[xx.xxx.xx]].
In addition to the above, exhibits containing BCI shall be marked as such also by placing the word
"BCI" next to the exhibit number (e.g. Exhibit CHN-1 (BCI)).
9. When BCI is submitted in electronic format, the file name shall include the terms "Business
Confidential Information" or "BCI". In addition, where applicable, the label of the storage medium
shall be clearly marked with the statement "Business Confidential Information" or "BCI".
10. In the case of an oral statement containing BCI, the party or third party making such a
statement shall inform the Panel before making it that the statement will contain BCI, and the Panel
will ensure that only persons authorized to have access to BCI pursuant to these procedures are in
the room to hear that statement. The written versions of such oral statements submitted to the
Panel shall be marked as provided for in paragraph 8.
11. When a party or third party submits a document containing BCI to the Panel, the other party
and third parties, when referring to that BCI in their documents, including written submissions and
oral statements, shall clearly identify all such information in those documents. All such docume nts
shall be marked as described in paragraph 8.
12. If a party considers that information submitted by the other party or a third party should have
been designated as BCI and objects to such submission without BCI designation, it shall promptly
bring this objection to the attention of the Panel and the other party or third party, together with
the reasons for the objection. Similarly, if a party considers that the other party or a third party
submitted information designated as BCI information which should not be so designated, it shall
promptly bring this objection to the attention of the Panel and the other party or third party, together
with the reasons for the objection. The Panel shall decide whether information subject to an objection
will be treated as BCI for the purposes of these proceedings on the basis of the criteria set out in
paragraph 1.
13. The Panel will not disclose BCI, in its report or in any other way, to persons not authorized
under these procedures to have access to BCI. The Panel may, however, make statements of
conclusion drawn from such information. Before the Panel circulates its final report to the Members,
the Panel will give each party an opportunity to review the report to ensure that it does not contain
any information that the party has designated as BCI.
14. Submissions, exhibits, and other documents or recordings containing BCI will be included in
the record forwarded to the Appellate Body in the event of an appeal of the Panel's Report.
15. The Panel takes note of the Agreed Procedures for Arbitration under Article 25 of the DSU in
this dispute notified by the parties on 28 April 2022 (WT/DS603/4) and of the joint requests of the
parties to the Panel formulated therein.

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ANNEX A-3
INTERIM REVIEW
1 INTRODUCTION
1.1. Pursuant to Article 15.3 of the DSU, this Annex sets out the Panel's discussion and disposition
of the requests for review made by the parties at the interim review stage. The numbering of
paragraphs and footnotes in the Interim Report is the same as in the Final Report.
1.1 General considerations
1.2. In this section, the Panel explains the approach it has taken to certain categories of requests
in a more global manner. The Panel will then proceed to focus on those requests made by China and
Australia that raise more substantive issues which warrant being set out and discussed individually.
1.3. Certain typographical or formatting errors have been corrected.1 Additionally, certain editorial
improvements have been made to ensure greater consistency, precision and clarity in terminology.2
A number of paragraphs and footnotes referencing party arguments on particular points have been
adjusted where a party requested revisions to more precisely and/or fully reflect its position on the
point being summarized. 3 The Panel has also sought to accommodate requests by a party to
supplement certain footnote citations with additional references to other relevant paragraphs from
its submissions.4 Certain other conforming edits and editorial revis ions have been made. In the
instances addressed in this paragraph, the other party did not specifically comment on the request
for review. Requests for review on which the other did specifically comment are discussed
individually below.
2 CHINA'S REQUESTS FOR REVIEW
2.1 Paragraph 7.18
2.1. China requests that the Panel replace the phrase "'one indivisible, continuous measure'" in
paragraph 7.18 with the phrase "one indivisible, continuous set of measures in each respect", and
revise footnote 75 to cite "China's response to Panel question No. 38, para. 118 and China's second
written submission, para. 45". China asserts that this would more accurately reflect the development
of China's arguments during the course of the dispute. In the alternative, China requests that the
Panel remove the sentence containing this phrase.5
2.2. Australia argues that China's request is inappropriate because the current language accurately
reflects China's argument at the first meeting. However, Australia suggests al ternate language for
the paragraph in question that Australia considers to be acceptable.6
2.3. The Panel has amended the language of the paragraph and revised footnote 75 to more
accurately reflect the development of China's arguments during the course of the dispute.

1 These changes occurred, among others, in paras. 7.32, 7.34, 7.248, 7.282, fns 68, 107, 175, 203,
223, 227, 284, 285, 343, 469 and 491.
2 We agree with Australia's suggestion that we use a capital "G" for Government when referring to the
Government of China or Australia. (Australia's request for interim review, section III.2.e). We have made the
relevant corrections throughout the Interim Report.
3 These changes occurred in paras. 7.13, 7.17, 7.19, fns 502 and 526.
4 These include additions to fns 52, 53, 59, 81, 144, 167, 282, 482, 511, 587, 595, and 605. The Panel
has made such changes without prejudice to its understanding that, when a panel elects to include footnote
citations referencing one or both parties' submissions on a particular point, the panel is free to provide a
pinpoint citation to the paragraph(s) the panel considers relevant, as opposed to exhaustively referencing all
relevant paragraphs from the parties' written submissions, oral statements, responses to panel questions,
and/or associated comments.
5 China's request for interim review, section C.
6 Australia's comments on China's request for interim review, section II.

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2.2 Paragraph 7.20
2.4. China requests that the Panel use the word "clarifies" instead of "contends" in the final sentence
of paragraph 7.20 because, in China's view, "contends" improperly implies a contention of
evidentiary fact, and also suggests that Australia can revise China's claims.7
2.5. Australia considers this suggested change inappropriate mainly because "[n]either China, nor
Australia, was able to change or 'clarify' the legal effect of those claims after the panel request was
submitted – although both were entitled to make submissions about the scope of those legal claims".
However, Australia suggests that the Panel could use "submits" or "argues" in place of "contends".8
2.6. The Panel has revised the language in question to more accurately reflect China's arguments.
2.3 Paragraph 7.22
2.7. China requests that the Panel revise the language in the first sentence of paragraph 7.22, and
footnote 85, in a manner similar to that requested by China vis-à-vis paragraph 7.18, discussed
further above.9
2.8. Australia considers that, in the context of the sentence as reframed by China, the insertion of
the word "clarifies" rather than "characterizes" would mean the sentence would read as if the Panel
accepted that "clarification", rather than it being an account of China's submission. Australia does
not oppose the other changes to the sentence requested by China, but if they are made, in
Australia's view, the phrase "clarifies that" should not be included, and instead either "characterizes"
should be retained, or the sentence should read "China clarifies that its submission is that the
measure is an 'indivisible, continuous set of measures in each respect'".10
2.9. The Panel has amended the language of paragraph 7.22 and footnote 85 in a manner consistent
with the changes that the Panel has made to paragraph 7.18.
2.4 Paragraph 7.35
2.10. China suggests that the Panel insert "Australia argues that" at the beginning of the sentence
beginning with "[s]uch expiry ar guments" because, in China's view, the sentence without the
suggested phrase might be read to indicate that the Panel disagrees with the notion that the Panel
has jurisdiction to rule on expired measures.11
2.11. Australia opposes China's proposed change because, in Australia's view, the sentence is
accurate as written and the suggested change would make the sentence confusing.12
2.12. The Panel has altered the sentence to further clarify the sentence and to reflect that the Panel
is not indicating that i t accepts that expired measures are ipso facto outside the Panel's terms of
reference.
2.5 Footnote 675
2.13. China requests that the Panel amend the last sentence of the footnote to clarify its language.
Specifically, China indicates that it is unclear to what the words "case" and "situation" refer to in the
last sentence.13
2.14. Australia considers that the "'situation' referred to is the 'more general legal situation' referred
to in the immediately preceding sentence". Australia considers th at no additional clarification is
required, but does suggest alternative phrasing for the sentence, i.e. revising "situation" to read
"more general situation". However, Australia agrees with China that the phrase "even in that case"

7 China's request for interim review, section E.
8 Australia's comments on China's request for interim review, section III.
9 China's request for interim review, section F.
10 Australia's comments on China's request for interim review, section IV.
11 China's request for interim review, section I.
12 Australia's comments on China's request for interim review, section V.
13 China's request for interim review, section J.

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in the final sentence o f footnote 675, is ambiguous. Australia suggests deleting the phrase or
replacing it with the words "in the case of the ADC's initiation decision with respect to Program 1".14
2.15. The Panel has revised the footnote to clarify its language. The Panel gen erally finds
Australia's suggestions on how to clarify the language reasonable, and has made clarifications to the
footnote's language along the lines Australia suggests.
3 AUSTRALIA'S REQUESTS FOR REVIEW
3.1 Section 7.1.2 (Standard of review)
3.1.1 Paragraph 7.6
3.1. Australia requests that the Panel add a reference to Article 17.6(ii) of the
Anti-Dumping Agreement in the section addressing the Panel's standard of review.15
3.2. China objects to Australia's request. China considers that the Panel d id not rely on
Article 17.6(ii) in its Interim Report to decide any issue. China further considers that the ruling of
the arbitrators in Colombia – Frozen Fries did not involve the application of Article 17.6(ii). Finally,
China argues that the Panel has r eferred to Article 17.6(ii) under the heading of "Treaty
Interpretation" and there is no need to repeat this provision in the context of the "standard of review"
section.16
3.3. We have referred to Article 17.6(ii) of the Anti -Dumping Agreement at paragra ph 7.3 of the
Interim Report, addressing treaty interpretation. Thus, we consider it unnecessary to refer to this
provision again in the section dealing with the Panel's standard of review.
3.1.2 Proposed new "Burden of proof" section
3.4. Australia requests that the Panel include a section discussing burden of proof in the beginning
part of the Report "for clarity and consistency of the Report". Australia argues, in particular, that a
burden of proof section is required because the Pa nel has "in many cases, [found] that China has
failed to present a prima facie case in advancing certain claims in this dispute".17
3.5. China objects to Australia's request. China argues that the Panel's reasoning with respect to
China's claims is clear, subject to its requests for review of precise aspects of the Interim Report.
Further, China argues that there is no requirement for a panel to include a separate section on
"burden of proof" and that whether to include such a section is within the Panel's discretion.
According to China, the Panel's choice of not including such a section in the Report does not impact
the resolution of this dispute.18
3.6. We consider it within our discretion to set out certain relevant and pertinent general principles
in our Report. We note that some previous panels have included a section on burden of proof in their
reports while others have not. In the present case, we do not find it necessary to include a burden
of proof section.
3.2 Section 7.2 (Expiry o f measures and Australia's challenges under Article 6.2 of the
DSU)
3.2.1 Paragraph 7.21
3.7. Australia requests that the Panel add the following italicized sentence to paragraph 7.21: "Also,
according to Australia, China failed to mention the wind towe rs expiry review in its first written
submission with respect to any claim except AD claim 6.a. Similarly, Australia submitted that China
made no reference to the stainless steel sinks expiry review and interim reviews in its first written

14 Australia's comments on China's request for interim review, section VI.
15 Australia's request for interim review, section II.1.a.
16 China comments on Australia's request for interim review, section II.1.a.
17 Australia's request for interim review, section II.1.b.
18 China comments on Australia's request for interim review, section II.1.b.

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submission with respect to AD claims 1, 3, 4 and 7(a) ". Australia considers that an appropriate
footnote reference would be to paragraph 131 of Australia's second written submission.19
3.8. China considers that Australia's suggested change is unnecessary because the repo rt already
adequately summarizes the parties' arguments in this context.20
3.9. The Panel has revised the language of the paragraph to further clarify Australia's arguments.
3.2.2 Paragraph 7.24
3.10. Australia requests that the Panel make certain changes to this paragraph concerning the use
of the word "essence". First, Australia considers that China used the word "essence" as indicating
that there were no changes as between the original investigations and the subsequent interim and
expiry reviews, wh ereas the Panel appears to characterize China's argument, and
Australia's response thereto, as different. Second, Australia considers that Australia did not argue
"that the essence of certain such aspects did change between the investigations and interim reviews
and expiry reviews", as stated in paragraph 7.24, but instead argued that there were factual
differences with respect to both the findings and methodologies employed by the ADC between the
original investigations and the subsequent reviews. Third, Australia considers that Australia did not
argue that if there were "no essence change as between the investigations and expiry reviews, then
the panel could only make findings with respect to the expiry reviews", but rather argued "that in a
hypothetical situation, where there were no changes in methodology between the original and expiry
review, then 'the panel in that entirely different scenario could make findings with respect to the
latest-in-time expiry reviews under the principle of judicial economy'".21 Australia therefore requests
that paragraph 7.24 be amended to reflect these considerations. Additionally, for increased clarity,
Australia requests that the Panel mention that the "essence" concept used by the Panel is different
from the "essence" concept advanced in by China in its submissions.22
3.11. China considers that Australia's request is unnecessary because the request "proceeds in the
same obfuscatory manner as the procedural complaints and technicalities that Australia employed
in the proce edings before the Panel" . China also indicates that China sees no finding in the
Interim Report to the effect that arguments advanced by China related to essence are legally
irrelevant, as Australia appears to suggest.23
3.12. The Panel has revised the pa ragraph in question to further clarify the parties' arguments in
this context.
3.2.3 Paragraph 7.35
3.13. Australia requests that the Panel revise paragraph 7.35 as follows to reflect its arguments
more accurately: "Australia argues that the measures ha ve expired because the ADC found that
Program 1 conferred no benefit to Chinese exporters in the expiry review and that it was not a
countervailable subsidy. The ADC, therefore, terminated all countervailing duties and
other measures associated with Progra m 1 assigning a zero countervailing duty rate to that
programme".24
3.14. China considers that Australia's request is unnecessary. China asserts that the basis for
Australia's arguments concerning the expiry of Program 1 was that the Australian investigat ing
authority determined that Program 1 was not countervailable as it did not confer a benefit, a
determination that the Panel recorded to in its Report. However, in China's view, the Panel never
finds in its Report that the countervailing measure with respect to Program 1 expired. China therefore
finds particularly objectionable Australia's request to include the language to the effect that "[t]he

19 Australia's request for interim review, section II.2.a.
20 China's comments on Australia's request for interim review, section II.2.a.
21 Australia's request for interim review, section II.2.b (quoting Australia's response to Panel question
No. 70, para. 41).
22 Australia's request for interim review, section II.2.b.
23 China's comments on Australia's request for interim review, section II.2.b.
24 Australia's request for interim review, section II.3.a. (bold type and strikeout original)

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ADC, therefore, terminated all countervailing duties and other measures associated with
Program 1".25
3.15. The Panel has amended the language in the paragraph to more clearly reflect
Australia's arguments.
3.2.4 Section 7.2.3 (Australia's claims under Article 6.2 of the DSU)
3.16. Australia requests that the Panel reconsider paragraphs 7.46 to 7.50 of the Interim Report,
which addresses the function of China's claim under Article 9.3 of the Anti -Dumping Agreement in
conjunction with Australia's argument that it was necessary for China to cite Article 11.3 of the
Anti-Dumping Agreement in order t o bring claims under the Anti -Dumping Agreement vis-à-vis
expiry reviews. In particular, Australia argues that without a reference to Article 11.3 of the
Anti-Dumping Agreement in a panel request, the panel request cannot be said to have provided "a
brief summary of the legal basis of the complaint sufficient to present the problem clearly" as
required by Article 6.2 of the DSU. In other words, Australia argues that, without a citation to
Article 11.3 in a panel request, the respondent is not put on notice that expiry reviews are being
challenged.26
3.17. China considers that Australia's request for reconsideration of this portion of the Report is
unnecessary. China notes, in particular, that: (a) panels can address issues in ways not raised by
the parties; (b) Australia never properly supported its position that "Article 11.3 is the starting
provision for all claims connected with the calculation of the dumping margin during an expiry
review"; (c) the panel request, contrary to Australia's assertions, iden tified the expiry reviews and
made claims under Articles 2 and 9.3; and (d) the Panel's reasoning in this context is sound.27
3.18. The Panel considers that the Interim Report, as written in this context, effectively conveys
the Panel's consideration of this issue. The Panel has, however, added a sentence further to clarify
that a reference to Article 11.3 of the Anti -Dumping Agreement was not, in this case, necessary to
satisfy the requirements of Article 6.2 of the DSU.
3.3 Section 7.3.1.1 (Legal framework)
3.3.1 Paragraph 7.57
3.19. Australia requests, to increase the clarity of the Report, that paragraph 7.57 be amended as
follows: "In the underlying investigation in that dispute, the ADC relied on considered the same
statutory language as in the un derlying proceedings here." Australia, in particular, argues that the
language as written may improperly suggest that the ADC conflated the concept of "competitive
market costs" in its domestic legislation with that of the second condition of the first sen tence of
Article 2.2.1.1.28
3.20. China considers Australia's requested change unnecessary. China sees no ambiguity in the
sentence to which Australia refers. In response specifically to Australia's position that the language
in question suggests a conflation of the ADC's consideration of "competitive market costs" with the
second condition of the first sentence of Article 2.2.1.1, China notes the following sentence of the
Interim Report states: "[t]he panel found that the ADC had made no finding as to wh ether the
second condition had been fulfilled when rejecting exporters' costs".29
3.21. The Panel considers the requested change reasonable and therefore has implemented it. The
change also, in the Panel's view, further clarifies that the claim being addressed by the panel in the
dispute in question was not an "as such" finding with respect to Australian legislation.

25 China's comments on Australia's request for interim review, section II.3.a.
26 Australia's request for interim review, section II.4.
27 China's comments on Australia's request for interim review, section II.4.
28 Australia's request for interim review, section II.5.a. (bold type and strikeout original)
29 China's comments on Australia's request for interim review, section II.5.a.

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3.3.2 Paragraph 7.58
3.22. Australia requests that paragraph 7.58 reflect Australia's textual arguments concerning the
meaning of the fir st sentence of Article 2.2.1.1 and cite paragraphs 182-191 of its first written
submission and paragraphs 149-186 of its second written submission in this context.30
3.23. China objects to Australia's request. In particular, China considers that panels do not need to
detail every argument made by a party in its Report and asserts that China also made arguments
on the same subject-matter to the Panel.31
3.24. The Panel has made changes to footnote 137 to this paragraph to reflect
Australia's arguments more fully.
3.3.3 Paragraph 7.59
3.25. Australia requests that the Panel revise paragraph 7.59 to reflect Australia's argument that
the interpretation of the first sentence of Article 2.2.1.1 by the panel in Australia – Anti-Dumping
Measures on Pa per should not be followed because it was inconsistent with the plain text of the
Anti-Dumping Agreement.32
3.26. China considers that no review of this aspect of the Interim Report is needed because China
sees nothing improper regarding the language as drafted.33
3.27. The Panel has added certain text to footnote 137 in this section to more fully reflect
Australia's arguments in this context.
3.4 Section 7.4.2.2 (Main party arguments)
3.4.1 Paragraph 7.154
3.28. Australia requests that the Panel revise paragr aph 7.154 to include the bolded language as
follows:
Rather, according to Australia, the ADC acknowledged that it needed to make findings
specifically with respect to the strictures of the second condition of Article 2.2.1.1, and
then did so by finding th at the exporter's records reflected 304 SS CRC costs that
were distorted by the Chinese government's interventions in the steel market.
[fns. removed for the purposes of this document]34
3.29. China considers Australia's requested change to be unnecessary. In China's view, the relevant
language in the Interim Report, when read in context with the footnotes, is sufficiently clear and
already captures what Australia advocates.35
3.30. The Panel has made the suggested change to further clarify the relevant sentence.
3.5 Section 7.4.4.1 (Main party arguments)
3.5.1 Paragraph 7.172 and footnote 323
3.31. Australia requests that the Panel revise paragraph 7.172 to include the bolded language as
follows to more fully capture submissions made with respect to AD Claim 2:
In light of such observations, Australia concludes that this claim is dependent on
China's other Article 2.2 claim, discussed in the section immediately above, insofar as

30 Australia's request for interim review, section II.5.b.
31 China's comments on Australia's request for interim review, section II.5.b.
32 Australia's request for interim review, section II.5.c.
33 China's comments on Australia's request for interim review, section II.5.c.
34 Australia's request for interim review, section II.6.a.
35 China's comments on Australia's request for interim review, section II.6.a.

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this claim concerns the stainless steel sinks investigation . [footnote 323] With
respect to the interim and expiry reviews, Australia submits that for AD claim 2
China cannot have made a prima facie case for the interim and expiry reviews
because it has not addressed the differences in the ADC's OCOT assessment
between the investigation and the interim and expiry reviews, or advanced any
separate arguments. [new footnote]
3.32. Australia also requests that the Panel: (a) amend footnote 323 to include the following bolded
language: "Australia's first written submis sion, para. 410.; Australia's response to Panel
question No. 5, paras. 1-2; Australia's response to Panel question No. 69, para. 27."; and
add the following new footnote: "Australia's response to Panel question No. 69, para. 28".36
3.33. China considers t hat Australia's request to include a reference to the stainless steel sinks
investigation is unnecessary. China notes that this paragraph refers to "the section immediately
above", i.e. section 7.4.3, which refers to "surrogate costs for 304 SS CRC". China further indicates
that the Interim Report also makes reference to Australia's first written submission which refers to
"stainless steel sinks". China also argues that Australia's requests are improper because Australia
seeks to "set out its opinions of it s arguments … as well as interpreting China's submissions to the
Panel".37
3.34. The Panel has revised the language of the paragraph and accompanying footnote to more
fully reflect Australia's arguments.
3.5.2 Paragraph 7.174
3.35. Australia requests, to reflect Australia's arguments more accurately, that the Panel revise
paragraph 7.174 as follows:
In answer to a question from the Panel Australia also argue sd that there were
differences was a change of essence as between the investigation and expiry review,
which China's arguments did not engage with , because in the investigation the
ADC used the price of North American and European prices for 304 SS CRC published
by MEPS (International) Ltd.38
3.36. China indicates that this request "is a clear example of Australia seeking to clarify something
needlessly and in a manner that adds nothing to the interim report. There can be no doubt that
Australia argued '[t]here is no 'essence'". China also considers that Australia's arguments regarding
"differences" between different segments were effectively arguments concerning the "essence" of
the challenged measures.39
3.37. The Panel has revised the language in the paragraph to more clearly reflect
Australia's arguments.
3.6 Section 7.4.9.1 (Main party arguments)
3.6.1 Paragraph 7.269
3.38. Australia argues that the Panel's statement at paragraph 7.269 that the ADC relied on "facts
available" is incorrect and requests the following amendment to paragraph 7.269:
According to Australia, the ADC therefore had regard to the evidence before it to
resort to facts available, which included substantial evidence that there was significant
government intervention in the Chinese iron and steel industry that distorted prices for
various steel outputs.40

36 Australia's request for interim review, section II.7.a. (bold type and strikeout original)
37 China's comments on Australia's request for interim review, section II.7.a.
38 Australia's request for interim review, section II.7.b. (bold type and strikeout original)
39 China's comments on Australia's request for interim review, section II.7.b.
40 Australia's request for interim review, section II.8.a. (bold type and strikeout original)

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3.39. China objects to Australia's request. China refers, in particular, to Australia's response to
Panel question No. 75, para. 62.a that:
In Railway Wheels Report 446, the dumping margin for what is describe d as "all other
exporters" from China was determined on the basis of facts available.41
3.40. China argues that if the Panel were to accede to Australia's request, the relevant sentence
should be changed to "… resort to available information, which Australia claimed included substantial
evidence …".42
3.41. We note that at paragraph 595 of its first written submission Australia states that "the ADC
resorted to the evidence available to it, including findings from previous investigations". To more
accurately reflect Australia's submission, we have modified paragraph 7.269, using the same
wording as used by Australia at paragraph 595 of its first written submission.
3.7 Section 7.4.10.1 (Main party arguments)
3.7.1 Paragraph 7.281
3.42. Australia argues that the Panel's summary of its arguments at paragraph 7.281 of the
Interim Report "misses some nuances" associated with its responses to the Panel's question Nos. 91
and 92. Australia requests the Panel to make the following amendments:
Australia underlin es that, in its view, the systematic series of actions was
evidenced by the ADC 's analysis of the conferral of a benefit under Program 1 to
selected exporters in the investigation . was sufficient to establish the de facto
specificity of Program 1. and that Australia submits, given that the
identification of a subsidy programme is a case -by-case analysis, no further
analysis was needed with respect to any other entities that may have received financial
contributions or associated benefits under Program 1.43
3.43. China objects to Australia's request. China argues that the Panel has both reported the
"nuance" that Australia is concerned about in the first sentence of the paragraph and has then
expressed its own view of what Australia's argument amounts to in a later sentence. According to
China, Australia's request contradicts the Panel's expressed views and adds nothing.44
3.44. We have decided to accept some of the modifications requested by Australia to better reflect
Australia's arguments.
3.8 Section 7.5.1.1 (Main party arguments)
3.8.1 Paragraph 7.305
3.45. Australia requests that the Panel revise its language in this paragraph and footnote 583 to
reflect that the ADC made, according to Australia, a first condition finding in the railway wheels
investigation. In particular, Australia argues that the first condition finding was evident from such a
finding being present in the statement of essential facts.45
3.46. China considers that no review of this aspect of the Interim Report is necessary because the
existing language in question is supported by the record.46
3.47. The Panel has revised the language of the paragraph and footnote 583 to reflect
Australia's arguments more clearly in this context. However, we do not revise our conclusion in this

41 China comments on Australia's request for interim review, para. 59 (quoting Australia's response to
42 China comments on Australia's request for interim review, section II.8.a.
43 Australia's request for interim review, section II.9.a.
44 China comments on Australia's request for interim review, section II.9.a.
45 Australia's request for interim review, section II.10.a.
46 China's comments on Australia's request for interim review, section II.10.a.

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context because the statement of essential facts, in our view, does not represent the relevant
findings of the ADC.
3.9 Section 7.5.1.2 (Evaluation)
3.9.1 Paragraph 7.309
3.48. Australia requests that, further to its request addressed directly above, that the Panel revise
its language in this paragraph to reflect that the ADC made, according to Australia, a first condition
finding in the railway wheels investigation.47
3.49. China considers that no review of t his aspect of the Interim Report is necessary essentially
for the same reasons as those stated above with respect to paragraph 7.305.48
3.50. The Panel has revised the language of the paragraph and footnote 600 to more clearly reflect
Australia's arguments in this context and to be consistent with the changes the Panel made to
paragraph 7.305, discussed in the section directly above.
3.10 Footnotes and typographical errors
3.10.1 Footnote 158
3.51. Australia considers the Panel has inaccurately recorded Australia's arguments in this footnote.
Australia considers that at no point did it suggest that the second condition finding was "implicit" in
the ADC's findings. As such, Australia requests the following revision to footnote 158:
We also note that nei ther China nor Australia consider that the ADC's method of
rejecting TSP's relevant costs was materially different as between the investigation and
expiry review. Australia indicates that in both the investigation and expiry review the
ADC issued no second condition finding in the express language of Article 2.2.1.1, but,
in both cases, the negative finding was nonetheless evident somehow implicit in
from the reports conclusion that TSP's costs did not reflect competitive market
costs. (Australia's response to Panel question No s. 61, para. 195 and 78,
paras. 110-119).49
3.52. China considers that no review of this aspect of the Interim Report is necessary because the
Panel's characterizations of Australia's position in this context are reasonable.50
3.53. The Panel has revised the language of the footnote to more accurately reflect
Australia's submissions in this context.
3.10.2 Footnote 302
3.54. Australia considers the Panel's summar y of Australia's submission on the second condition
finding in the stainless steel sinks investigation to be incomplete. Australia therefore requests the
following amendments to footnote 302: "We note that Australia argues that, while not made
expressly in the language of Article 2.2.1.1, a negative finding under the second condition
is evident in the report. Australia submitted that the ADC understood that it had to make a
finding under the second condition of Article 2.2.1.1, as evidenced by the ADC's sta tement that:"
and "We ultimately find such statements immaterial because they do not amount to findings under
the second condition. See, also, Australia's SWS, paras. 238-244; Australia's responses to
Panel question No. 61, para. 194 and No. 78, paras. 85-91".51

47 Australia's request for interim review, section II.11.a.
48 China's comments on Australia's request for interim review, section II.11.a.
49 Australia's request for interim review, section III.1.h.
50 China's comments on Australia's request for interim review, section III.1.h.
51 Australia's request for interim review, section III.1.o. (bold type original)

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3.55. China's position is the same here as it was for footnote 158, discussed directly above.52
3.56. The Panel has revised the language of the footnote in a manner consistent with its treatment
of footnote 158, discussed directly above.
3.10.3 Footnote 439
3.57. Australia argues that the first sentence of this footnote may be understood as a general
statement of principle that prices paid for accessories purchased from third parties can never reflect
its profit inclusive of market value. Australia requests that the Panel add the words "paid by Primy"
to clarify that the statement pertains to the specific circumstances of Primy in the present case.53
3.58. China objects to Australia's request. China argues that, first, the Panel states clearly that the
comments in the footnote relate to "Australia's argument during these proceedings". Second, China
argues that the footnote makes clear that the consideration undertaken by the Panel was of "the
profit generated by the third-party supplier, rather than the profit generated by Primy when the
accessories were resold".54
3.59. In light of our use of the words "Australia's argument during these proceedings" and the
references to "the profits generated by Primy", we do not consider that our for mulation of the first
sentence of footnote 439 is likely to lead to the misunderstanding pointed to by Australia.
Nevertheless, we have decided to insert the additional words requested by Australia for purpose of
clarity.
3.10.4 Footnote 494
3.60. Australia requests the Panel to delete reference to page 139 of the Investigation 238 Final
Report, (Exhibit CHN-2) because page 139 does not refer to Program 1.55
3.61. China notes that the Panel may have intended to refer to page 137 of the Investigation 23 8
Final Report, (Exhibit CHN-2) which refers to Program 1. If so, China argues that a correction, rather
than deletion, is warranted.56
3.62. We have changed the page number from 139 to 137 in footnote 494 as that is, in our view,
a more appropriate reference.
3.10.5 List of Annexes
3.63. Australia submits that Annex C -2 "Integrated executive summary of the arguments of
Canada" and the references to it in the Interim Report could be deleted because, in its view, Canada
did not make any written or oral s ubmissions in relation to this dispute and did not submit an
integrated executive summary.57
3.64. Paragraph 27 of the Panel's Working Procedures provides that a third-party submission and/or
oral statement shall serve as the executive summary of that thi rd party's arguments if it does not
exceed six pages in total, unless that third party indicates that it does not wish for the submission
and/or oral statement to serve as its executive summary, in which case it shall submit a separate
executive summary. Canada did not indicate to the Panel that it does not wish for its oral statement
at the third -party session to serve as its executive summary. For this reason, we consider
Canada's oral statement at the third -party session to be its executive summary for t he purpose of
paragraph 27 of the Panel's Working Procedures.

52 China's comments on Australia's request for interim review, section III.1.o.
53 Australia's request for interim review, section III.1.q.
54 China comments on Australia's request for interim review, section III.1.q. (underlining original)
55 Australia's request for interim review, section III.1.t.
56 China's comments on Australia's request for interim review, section III.1.t.
57 Australia's request for interim review, section III.2.a.

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3.10.6 Paragraph 7.111
3.65. Australia suggests, because there was only one exporter (TSP) in the context of wind towers,
following revision to the paragraph: "… the ADC to reject the exporter's record costs for steel plate
in constructing normal value".58
3.66. China considers that no review of this aspect of the Interim Report is necessary because the
existing sentence is correct and no purpose is served by altering it in the requested manner.
As context, China indicates that the information used by the ADC to calculate the uncooperative and
all others-rate in this context was information from TSP.59
3.67. The Panel has made the suggested change to increase the clarity and consistency of the
Panel's discussions surrounding wind towers.

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ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of China 25
Annex B-2 Integrated executive summary of the arguments of Australia 41

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ANNEX B-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CHINA
A China's AD claims
A.1 AD claim 1
 Australia used non-country of origin costs in working out the cost of production in
the country of origin
1. ADA Article 2.2 allows the margin of dumping to be determined by comparison with the cost
of production in the country of origin plus a reasonable amount for administrative, selling and
general costs and for profits.
2. In imposing anti-dumping measures against Chinese exports of wind towers, Australia used a
mix of information about costs, some from Chinese Taipei and the Republic of Korea, to create
artificial "costs", unfounded in any market. The record reveals no consideration or recognition
by Australia of the required adaptation of the information to arrive at the cost of production
in the country of origin. That information was used to apply "uplifts" to the exporter's actu al
cost of plate steel and flanges. Australia denies that non -China costs were used to work out
the cost of production of wind towers. The record discloses otherwise.
3. In imposing anti-dumping measures against Chinese exports of stainless steel sinks, Australia
used a MEPS (data agency) 304 SS CRC "benchmark" for Europe and North America in place
of the Chinese exporters' actual costs of stainless steel. The out-of-country "benchmark" was
then adjusted for Chinese exporters' delivery costs and per tonne s plitting costs. Australia
claims that North American and European prices, with those adjustments, were an appropriate
proxy for the cost of production of stainless steel sinks in China. This cannot be sustained. A
revised method in a later review – the rep lacement of the MEPS benchmark with an
SBB benchmark – simply magnified the artificiality of the exercise.
4. In imposing anti-dumping measures against Chinese exports of railway wheels, Australia used
a French steel billet price in place of the Chinese exporter's actual costs of raw materials used
to make railway wheels and its costs of converting the raw materials into steel billet. Australia
argues that it "adjusted" the French steel billet price in arriving at the cost of production of
railway wheels in China in an "appropriate" manner. It did so by deducting the selling, general
and administrative expenses of a European steelmaker Arcelor -Mittal from the French steel
billet price. These practices cannot hope to arrive at an input cost in China.
5. China has explained how the Appellate Body report in EU – Biodiesel made clear that "cost of
production … in the country of origin" is to be understood as a reference to the price paid or
to be paid to produce something within the country of origin. The Appella te Body also stated
that whatever information is used to establish the cost, it must be used to arrive at the cost
of production in the country of origin. In the same report the Appellate Body faulted the
European Union for using a surrogate cost for the p urpose of removing perceived distortions
in the cost in the country of origin. That was found to be antithetical to the clear words of
Article 2.2 which provide that a proxy for a normal value based on domestic selling price can
be the cost of production in the country of origin plus a reasonable amount for administrative,
selling and general costs and for profits. The primacy of Article 2.2 has also been made quite
clear by the Appellate Body in its report in Ukraine – Ammonium Nitrate. It is there stated
that costs calculated on the basis of records kept by the exporter or producer under
Article 2.2.1.1 must lead to a cost of production in the country of origin.
6. Accordingly, Australia's practices in the cases at issue do not comply with ADA Article 2, which
provides that the margin of dumping may be determined by comparison of the export price
with the cost of production in the country of origin plus a reasonable amount for
administrative, selling and general costs and for profits. In all cases Australia failed to work
out the cost of production in China of the subject products, and in no case were the substituted

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costs of production established in a manner that could serve to arrive at the cost of production
in China.
A.2 AD claim 2
 Australia used non -country cost of production in applying the ordinary course of
trade test to stainless steel sink exporters
7. ADA Article 2.2.1 employs an exporter's cost of production plus a reasonable amount for
administrative, selling and general costs in the application of the ordinary course of trade test,
pursuant to which sales may be disregarded in determining normal value by reason of price.
8. The cost of production to be used in the below cost test under Article 2.2.1 must comply with
the requirement to use the e xporter's cost record under Article 2.2.1.1 and ultimately must
be the cost in the country origin under Articles 2.1 and 2.2. The non -compliance adverted to
by China in AD claim 1 with respect to stainless steel sinks also renders Australia's application
of that test non-compliant with its obligations. This is because the cost of production used in
the application of that test was not the cost of production of the exporters' stainless steel sinks
in China, being the country of origin.
9. Australia offers no substantive defence other than to reiterate its defence with respect to
AD claim 1. As stated, Australia's claim that North American and European prices were an
appropriate proxy for the cost of production of stainless steel sinks in China is unsustainable.
A.3 AD claim 3
 Australia used non-record costs that were not actually incurred in working out the
cost of production
10. ADA Article 2.2.1.1 states that for the purpose of paragraph 2 costs shall normally be
calculated on the basis of records kept by the exporter or producer under investigation,
provided that such records are in accordance with the generally accepted accounting principles
of the exporting country and reasonably reflect the costs associated with the production and
sale of the product under consideration.
11. In imposing anti-dumping measures against Chinese exports of wind towers, stainless steel
sinks and railway wheels, Australia did not calculate the exporters' costs on the basis of their
records. As stated with respect to AD claim 1, Australia's cost of production calculations were
infected by uplifting the exporters' actual costs using outside China costs, or substituting the
exporters' actual costs using cost "benchmarks" and prices derived outside China, or using
non-costs or costs of a type the exporters did not incur. No adaptation was applied to the
out-of-country cost information to arrive at the cost in the country of origin. Ultimately, none
of these costs were exporter record costs.
12. Initially, China's argumentation concerning China's AD claim 3 focussed on the well -founded
legal principle that requires a determination to be made about the applicability of a rule before
considering the applicability of a derogation to that rule. The architecture of the first sentence
of Article 2.2.1.1 insists that costs shall normally be calculated on the basis of records kept
by the exporter if they are in accordance with generally accepted accounting principles of the
exporting country and reasonably reflect the costs associated with the production and sale of
the product concerned. Deciding whether the rule applies – that the exporter's record is
available to be used – is logically and legally anterior to an inquiry about the existence and
applicability of any derogation that may arise fr om the "shall normally" wording in the
sentence. This approach also respects and applies the approach adopted by the panel
regarding precisely the same issue in Australia – Anti-Dumping Measures on Paper.
13. In its defence, Australia argued, in its first written statement:
(a) that in the railway wheels case it did not rely on a failure of the exporter's records to
meet the second condition of the first sentence in disregarding the records, rather it
relied on its perception that the circumstances in which the exporter's steel billet costs
were formed were "not normal or ordinary"; and

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(b) that in the stainless steel sinks case it had first determined the applicability of the rule,
and in so doing found the second condition in the first sentence, that the exporters'
records reasonably reflect the costs associated with the production and sale of the
product concerned, had not been met with respect to any of those records.
14. Australia initially presented no coherently explained defence with respect to AD claim 3 in the
wind towers case.
15. In its second written statement, Australia then followed up its initial defence by doubling down
on its opinion that the second condition of the first sentence had not been met with respect
to the records of the stai nless steel sink exporters, and that this had been properly
determined. Australia clarified that this was also its defence with respect to the determination
not to use the wind tower exporter's records. Australia also reiterated its defence with respect
to the railway wheels exporter, which was that its determination not to use the exporter's
record was because the circumstances in which the exporter's steel billet costs were formed
were "not normal or ordinary". Australia admits that it did not make a second condition finding
with respect to the records of the railway wheels exporter but rejects the proposition that
there is an order of analysis that required it to make such a finding before relying on its "not
normal or ordinary" excuse to disregard the records.
16. In rebuttal of Australia's variously and implausibly explained defences, China pressed its
AD claim 3 on the grounds, as stated in that claim:
(a) that Australia had failed to determine the second condition, or had wrongly determined
that condition, in circumstances where it was necessary to properly determine whether
the rule to base calculations of costs on an exporter's records applied, both absolutely
(wind towers and stainless steel sinks) and before resorting to a consideration of
whether there was any ability to derogate from that rule (railway wheels); and
(b) without detracting from that rebuttal, that Australia had wrongly interpreted any
permitted derogation from the rule, on the "shall normally" basis, in the railway wheels
case.
17. Turning first to Australia's claims that the second of the two conditions under Article 2.2.1.1
for calculating costs on the basis of their records was not satisfied with respect to the wind
towers and stainless steel sinks exporters, China sees no evidence on the record of those
investigations to support that claim. Australia did not determine or did not properly determine
that the exporters' records reasonably reflected the costs associated with the production and
sale of the product concerned. Appellate Body reports make clear that the second condition is
satisfied where the recorded costs suitably and sufficiently reproduce the costs incurred by
the exporter as have a genuine relationship with the production of the product concerned.
Ipso facto, that condition is satisfied with respect to actual input costs if the records record
those actual input costs. Australia's attempts to escape the confines of the second condition,
in order to justify ignorance of those exporters' record costs, are unconvincing.
18. Turning now to the defence put up by Australia with respect to the rejection of the record
costs of the railway wheels exporter (and of the stainless steel sinks exporters, in a later
expiry review), Australia claims that it was released from compliance w ith Article 2.2.1.1's
obligation to calculate costs on the basis of the exporters' records because that is only what
"normally" applies. Australia argues that the "circumstances" in which those exporters' costs
were formed were "not normal or ordinary". Au stralia also claims that the existence or
non-existence of the rule constituted by application of the two conditions need not be
examined before considering any flexibility to derogate from the rule that may be afforded by
the "shall normally" wording. Thi s is despite rulings and observations of previous panel and
Appellate Body reports that state the contrary.
19. Regarding Australia's employment of the word "normally" to ignore the railway wheel
exporter's actual verified costs, in records that Australia says it did not need to find satisfied
the two conditions, China responds in the following manner.

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(a) First, China notes that Australia did not adopt the required order of analysis of the rule
and of any permitted derogation from the rule in the first sen tence of Article 2.2.1.1.
This is because Australia failed to determine the second condition before contemplating
whether any derogation from the rule that is established by satisfaction of the two
conditions may apply. This failure is admitted by Australia.
(b) Secondly, China maintains that satisfaction of the two conditions establishes the normal
state in which an investigating authority must apply the cost calculations on the basis
of the records kept by the exporter, and that "normally" does not provide an exception
that is independent of satisfaction of the two conditions.
(c) Thirdly, having been invited by Panel questioning to consider whether there may be a
second permissible interpretation of the first sentence of Article 2.2.1.1, China indicated
its preference for the proposition that satisfaction of the two conditions effectuates the
rule and excludes any derogation therefrom, as explained in (b) above. Without
detracting from that preference, China considered that an independent "normally"
derogation could be enlivened with respect to the manner of calculation of costs in an
exporter's records, as an accounting matter, but that such a derogation could neither
cause nor permit an exporters' actual verified purchase costs to be ignored.
(d) Fourthly, China submitted that it is not necessary for the Panel to determine the
circumstances in which a departure from the calculations of costs in an exporter's record
costs may be justified, under the assumption that the "shall normally" wording provides
some "flexibility". In China's submission, any flexibility would only relate to cost
calculation issues, in an accounting sense, and only in compelling circumstances, and
would not extend to the exclusion of actual costs incurred by and recorded in an
exporter's records.
20. China has supported its submissions in this regard with observations going to the ordinary
meaning, context, object and purpose of Article 2.2.1.1. With respect to the second
permissible interpretation, China also presented supplementary means of interpretation to
assist the Panel. This has been done on the basis that any meaning purportedly allowing a
WTO Member to form its own unbounded view of whether an exporter's actual costs are
"normal or ordinary", as Australia would have it, would lead to manifestly absurd or
unreasonable results.
21. Lastly, China notes Australia's claims that, in an expiry review with respect to stainless steel
sinks, it did determine the two conditions, and found that they had been met, and then went
on to determine that circumstances existed for a "normally" based avoidance of the rule
requiring the acceptance of the exporters' records for cost calculation purposes. In response
to those claims China has pointed out that no finding in the terms of t he second condition is
evident on the face of the expiry review report. Moreover, China notes Australia's admission
that no negative finding with respect to "normally" appears in the record of that investigation.
Regardless, China equally relies upon the i nterpretations of ADA Article 2.2.1.1 presented to
the Panel in rebuttal of Australia's railway wheels "normally" defence with respect to
Australia's claim to have made a negative "normally" determination in the stainless steel sinks
expiry review.
A.4 AD claim 4
 Australia used non -record costs of production in applying the ordinary course of
trade test to stainless steel sink exporters
22. ADA Article 2.2.1 employs an exporter's cost of production plus a reasonable amount for
administrative, selling and general costs in the application of the ordinary course of trade test,
pursuant to which sales may be disregarded in determining normal value by reason of price.
23. The cost of production to be used in the below cost test under Article 2.2.1 must comply with
the requirement to use the exporter's cost record under Article 2.2.1.1 and ultimately must
be the cost in the country origin under Articles 2.1 and 2.2. The non -compliance adverted to
by China in AD claim 3 also renders Australia's application of that test with respect to the
stainless steel sinks exporters non-compliant with its obligations. This is because the cost of

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production used in the application of that test was not the exporters' record costs, nor was it
the cost in the country of origin.
24. Australia offers no substantive defence other than to reiterate its defence with respect to
AD claim 3. As stated, Australia's claim that an exporter's actual verified purchase costs can
be ignored, when it failed to determine or wrongly determined whether the second condition
in the fourth sentence of Article 2.2.1.1 had been met, or based on an interpretation of
"normally" that Australia related to the exporters' actual verified costs instead of to the
calculations of costs , on the purported basis that th e exporters' actual verified costs were
formed in circumstances that were not "normal or ordinary", is unsustainable.
 AD claim 5.c
 Australia used a value not recognisable as a cost in working out the wind tower
exporter's cost of production
25. ADA Articles 2.2 and 2.2.1.1 require an exporter's cost of production to be determined in the
country of origin and to be based on its records. In each case the exporter's cost records must
be properly examined.
26. China has drawn the Panel's attention to the fact that the Chinese wind tower exporter's plate
steel and flange costs were "uplifted", in the original investigation, by a concoction of
"domestic selling prices in other markets for plate steel", being those in Chinese Taipei and
Korea, and the "normal val ue" of a Chinese steel plate producer in a different investigation.
Then, in a later expiry review, the fabricated and inflated "competitive market cost" value for
plate steel was further uplifted using the movement in SBB (data agency) plate steel
"benchmark" prices for East Asia, excluding China, over the period from the original
investigation to the time of the expiry review ("the SBB price trend").
27. These practices were a contrivance. They led to "cost" findings that had no factual, legal or
logical basis at all. In its original investigation, Australia asserted that the difference between
the so-called plate steel "domestic selling price in other markets" and the "normal value" of
the same Chinese plate steel from an earlier time must be applied as a n uplift ratio to the
Chinese wind tower exporter's actual cost for plate steel to derive the "competitive market
cost" for plate steel and flange in China. The Chinese exporter's costs for plate steel and flange
were uplifted by a ratio that had no compar ative correlation with those costs. The ratio was
the difference between two values unrelated to the Chinese exporter's costs.
28. Then, in uplifting the SBB "benchmark" by the degree by which the imputed plate steel cost
from the original investigation wa s higher than the SBB benchmark from the same time, a
"super inflated" benchmark was created. This caused a further uplift to the Chinese exporter's
cost of plate steel, which was already higher than the SBB benchmark before it was uplifted.
29. China's claim is that the "cost" thereby arrived at is not a cost of production of any description.
There was no genuine determination of the suitability of the Chinese exporter's cost records
as required by Article 2.2.1.1. The replaced cost was not a cost of produ ction in the country
of origin nor was it an exporter record cost. But more than that, it was incapable of answering
the description of being a "cost", anywhere or at all for the purposes of Article 2.2's
requirement that normal value may be determined using an exporter's "cost of production in
the country of origin plus a reasonable amount for administrative, selling and general costs
and for profits".
30. Australia's argument that this claim is "subsumed" within China's claim 1 is incorrect. China's
claim 5(c) is an extension of China's claims 1 and 3. China's claim 5.c highlights that costs
must be used for working out the cost of production in the country of origin. The plate steel
"number" or "value" Australia came up with was not recognisable as a cost at all.

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A.6 AD claim 5.d
 Australia used a type of cost that was not incurred by the railway wheel exporter in
working out its cost of production
31. ADA Articles 2.2 and 2.2.1.1 require an exporter's cost of production to be determined in the
country of origin and to be based on the calculations in its records. In each case costs must
be identified.
32. This claim is similarly an extension of AD claims 1 and 3, but in a different sense. One of the
costs used by Australia to work out the railway wheel exporter's cost of production in the
country of origin was not a cost experienced by the exporter in undertaking such production.
The exporter's costs were raw material input costs for steelmaking, including iron ore, coking
coal and steel scrap, an d the costs of conversion of these inputs into steel billet. Australia
ignored those costs and instead worked out the exporter's cost of production using an
intermediate product cost, that of steel billet. That it was improperly derived from a French
purchase price, as to which see AD claims 1 and 3, is one thing. That it was not a cost of iron
ore, coking coal or steel scrap, and of their conversion, which were the railway wheel
exporter's actual costs, is another thing, and is the basis for this claim.
33. As for AD claim 5.c, Australia again argued that China's claim 5.d is subsumed into AD claims 1
and 3. It is not. To work out an exporter's cost of production in the country of origin, Australia
was required to use the costs experienced by the exporter. Steel billet was not purchased by
the railway wheel exporter. Should there be grounds to use a "cost of production … plus a
reasonable amount for administrative, selling and general costs and for profits" as a proxy for
a domestic selling price normal valu e, then China says that the types of costs used in that
working out must be those of the cooperative exporter to which the cost of production is to
apply.
A.7 AD claim 6.a
 Australia made no due allowance for higher non-country of origin/non-record costs
used for normal value compared to lower actual costs used for export price
34. ADA Article 2.4 requires a fair comparison to be made between the export price and the normal
value, by way of due allowance. This extends to any differences that are demonstrate d to
affect price comparability.
35. As stated, due allowance must be made for differences affecting price comparability. In the
cases at issue, the prices were the export price of the products concerned and their respective
proxy price worked out using "c ost of production … plus a reasonable amount for
administrative, selling and general costs and for profits". Cost was a difference affecting that
price comparability, because in each case the normal value incorporated higher costs than the
export price. These higher costs are the subject of China's AD claims 1 through 4. Ipso facto,
the cost difference must be a relevant candidate for due allowance.
36. Australia's argument in response is that Article 2.4 is concerned with differences that affect
price comp arability between the normal value and export price. Apart from making the
unexplained assertion that Article 2.4 cannot undo adjustments in the construction of normal
value properly made under other provisions of the covered agreement, Australia does not
articulate why its argument does not support China's claim.
37. Australia and China have agreed that the Panel need not make a finding with respect to
claim 6.a if it is the case that China's AD claims 1 through 4 are sustained.
A.8 AD claim 6.b.i
 Australia applied an inflated upward due allowance to stainless steel sinks
exporter's normal values based on a fictional non-refundable VAT cost
38. ADA Article 2.4 requires a fair comparison to be made between the export price and the normal
value, by wa y of due allowance. The differences must be demonstrated to affect price
comparability.

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39. The first problem that China has with this adjustment is that it was made without reasoned
and adequate explanation, and without positive evidence that could either establish or quantify
the effect of the VAT liability differences that affected price comparability. This lack of positive
evidence is plainly demonstrated on the face of the investigation record. The exporter
concerned made a submission about the way the due allowance had been calculated. In
response the investigating authority claimed that because the exporter was aware of the "fact"
that it was unable to recover the full amount of VAT paid, this "should have" caused the
exporter to raise its export price.
40. Australia argues that there was positive evidence underlying its finding that the VAT liability
difference affected price comparability. However, all it refers to by way of evidence is the VAT
liability difference itself. No information was sought f rom the exporter as to how or whether
the actual non-refundable amount may have impacted the exporter's export pricing decision
in comparison to its domestic pricing decision. China's position is that it is not open to an
investigating authority to make an adverse price comparability finding where it has no
evidentiary basis to do so.
41. The second problem that China has is that, even if the VAT liability differences did have an
impact on price comparability, the adjustment calculated and adopted by Austra lia was not
made based on that difference. The problem that China has with this is simply explained. The
difference between VAT that was refundable on export sales of the products, being nine
percentage points of the export price, as compared to the 17 per centage points of VAT
collected on domestic sales, being eight percentage points, was applied to the normal value,
whether that normal value was calculated on a VAT free domestic price basis, or on a VAT free
cost-plus-profit basis. As such, the adjustment could not serve the purpose of adjusting for
what Australia claims to be an additional cost arising from the non -refundable VAT expense
on export sales. The adjustment so applied was not a due allowance based on the merits of
the case.
42. Furthermore, the normal value was either constructed based on, or affected by the use of,
non-actual, non-country of origin and non -record costs that were wrongly imputed to the
respective exporters. The eight percentage point upwards adjustment operated on a
non-actual cost base and also could not be representative of an actual cost difference. Making
an adjustment to account for a non -actual amount could not have been an allowance made
on its "merits".
43. Australia's defence to its non-actual due allowance approach extends to nothing more than a
statement that the difference (between performing the due allowance correctly and doing it
in the way it was) was not "material". Materiality is not to the point, but even if it was relevant
the record demonstrates that the non-evidenced and non-actual adjustment made equated to
an 8.7% upward adjustment to the normal value, which is clearly "material".
A.9 AD claim 6.b.ii, first instance
 Australia applied an inflated upward due allowance to stainless steel sinks
exporters' norm al values by differentiating between profit on self -produced and
purchased accessories
44. ADA Article 2.4 requires a fair comparison to be made between the export price and the normal
value, by way of due allowance. The differences must be demonstrated to affect price
comparability.
45. China's claim is that it was improper for Australia to ascribe a profit to an "accessory" cost
difference in stainless steel sinks sold domestically as compared to those exported, based on
whether the accessory was self-manufactured by the exporter instead of being an accessory
purchased by the exporter.
46. Australia admitted in its investigation report that where the cost adjustments for specification
differences occurred with respect to accessories purchased from third pa rty suppliers, no
"ordinary course of trade" profit margin would be applied. This is despite the fact that the
Chinese exporter confirmed that it did not treat self -produced accessories differently to
procured accessories for the purpose of determining the cost and price of the stainless steel

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sinks as a final product. Accessories were accounted for no differently than other material
inputs. The exporter therefore did not discriminate the profit earnings associated with
accessories based on their source and was incapable of doing so.
47. Australia has tried to hide its discriminatory approach towards adjusting for specification
differences by stating that it was a merits determination, whereby it was concluded that
certain accessories were priced inclusive of profit, whereas others were not. In response China
draws attention to the fact that profit is earned on all costs incurred in the production and sale
of any given product. Profit is the difference between revenue and cost, whatever those costs
are. Australia's argument has no factual, financial, accounting or mathematical logic to support
it.
A.10 AD claim 6.b.ii, second instance
 Australia applied an inflated upward due allowance to stainless steel sinks
exporters' normal values using average specification costs not applicable to the
compared models
48. ADA Article 2.4 requires a fair comparison to be made between the export price and the normal
value, by way of due allowance. The differences must be demonstrated to affect price
comparability.
49. China's claim is that Australia made a due allowance that was not precise enough to properly
adjust for the actual differences between the domestic and export models of certain stainless
steel sinks. Put simply, certain product models in a given "model control code" (a grouping of
product models, known by the acronym "MCC") were disqualified from normal value usage by
application of the "ordinary course of trade" below cost test performed on a MCC basis. The
dumping margin was calculated using the remai ning product models in the MCC. However,
the due allowance as between the domestically sold and exported product models that
remained was worked out as an average of the specification cost difference across the entire
MCC, and not for the remaining product models alone.
50. China has referred the Panel to WTO authority that makes clear that complexity is not an
excuse for failing to undertake adjustments that are necessary to ensure the correct
determination of dumping margins. This is consistent with the p lain wording of Article 2.4,
which provides that due allowances must be made in each case, on the merits.
51. Australia's various rebuttals – that the adjustments made were "appropriate" and "recognised
difference", that averaging carries with it "inherent distortions", and that adjustments were
made "to the extent" required to ensure a fair comparison – are a smokescreen. They betray
the fact that Australia's finding suffers from a substantial and critical lack of required accuracy,
as China has demonstrated to the Panel factually and legally.
A.11 AD claim 6.b.iii
 Australia made a due allowance for specification difference based on a comparison
between export model costs instead of between an export model and a domestic
model
52. ADA Article 2.4 requires a fair comparison to be made between the export price and the normal
value, by way of due allowance. The differences must be demonstrated to affect price
comparability.
53. Australia used a cost of production difference between two export models for the purposes of
working out the impact of a specification difference on a dumping margin. China's concern is
to understand why the specification difference was worked out between two export models,
when it should have been worked out on the basis of the specification cost difference between
the two models being compared for dumping margin purposes, being a domestic model and
an export model.
54. Australia admitted, on the record, that the specification difference was worked out comparing
the cost of production of two export models, even though it was open to Australia to use
domestic costs. Domestic costs "could" have been used but, according to Australia, using the

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export costs "in a way" achieved that outcome. China disagrees. It cannot be possible to
demonstrate the effect on the price comparability of an export product and a domestic product
if circumstances affecting two export products are the circumstances considered.
A.12 AD claim 7.a
 Australia failed to work out amounts for profits on the basis of actual data pertaining
to production and sales of the wind towers and stainless steel sinks exporters
55. ADA Article 2.2.2 requires amounts for profits to be based on actual data pertaining to
production and sales in the ordinary course of trade of the like prod uct by the exporter or
producer under investigation.
56. China's AD claim 7.a identifies the clear fact that, with respect to the amount for profits for
determining the normal value of wind towers, Australia worked out a rate of profit based on
the exporter's actual costs compared with its actual revenue. That rate was then applied to
the sum of the inflated costs of production, being the cost of production adopting non-country
of origin non-record costs (AD claims 1 and 3, respectively) and non-costs (AD claim 5.c), and
the selling general and administrative costs. The amount for profits was therefore not based
on actual data, because it was based on non-actual costs, being data that was not the actual
data pertaining to production of the like product by the exporter.
57. With respect to stainless steel sinks, China's AD claim 7.a identifies the clear fact that Australia
used non-actual costs in the ordinary course of trade test for one exporter where comparable
domestic sales were found to exist. The implic ation here is that the higher than actual
non-country of origin non -record costs (AD claims 1, 2, 3 and 4, variously) caused only the
higher priced domestic sales to remain in the universe of domestic sales used for normal value
purposes. For the one exporter that was found to have comparable domestic sales, this also
caused the profit on the sales that did pass the ordinary course of trade test to be higher than
it otherwise would have been. That rate of profit was applied to the higher than actual
non-country of origin non -record costs (AD claims 1, 2, 3 and 4, variously) for models of
stainless steel sinks that did not have comparable domestic sales.
58. For the other stainless steel exporters, Australia found no comparable models for determining
a dumping margin at all. Nonetheless, an ordinary course of trade profit was worked out for
the entire universe of domestically sold stainless steel sinks, using the higher than actual
non-country of origin non-record costs (AD claims 1, 2, 3 and 4, variously) in doing so. It was
this distorted profit – distorted because it only included the higher priced domestic sales that
survived application of the ordinary course of trade test – that was the applied to the cost of
production plus a reasonable amount for admini strative, selling and general costs. However,
it was not the cost of production in the country of origin of the exporters concerned, because
of the inclusion of non-country of origin non-record costs. That is, the amount for profit was
not calculated based on actual cost data pertaining to production of like products by the
exporter under investigation.
59. Australia attempts to convince the Panel that because Article 2.2.2 chapeau provides that
amounts for profits shall be based on the exporter's actual data, it does not matter if the basis
includes non-actual data or changes due to the introduction of non-actual data. This is a vacant
argument. The only other argument that Australia puts up is that the chapeau has not been
interpreted in previous WTO cases, to which China responds by saying that is probably because
no right-minded Member would conceive of applying it in a manner that is contrary to the
plain words of the Article.
A.13 AD claim 7.b
 Australia failed to work out the actual amounts incurred and realised by the railway
wheels exporter in respect of production and sales in the domestic market of the
country of origin
60. If actual data pertaining to production and sales in the ordinary course of trade of the like
product does not allow for profit determination, ADA Article 2.2.2(i) allows amounts for profits
to be determined in respect of the actual amounts incurred and realised by the exporter in

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respect of production and sales in the domestic market of the country of origin of the sam e
general category of products.
61. China's AD claim 7.b identifies that Australia did not separate domestic cost and sales data
from export cost and sales data in its application of Article 2.2.2(i) when working out a profit
rate of the same general category of products in the railway wheels case. That rate was then
applied to the sum of the inflated costs of production, being the cost of production adopting
non-country of origin non -record costs (AD claims 1 and 3, respectively) and non -costs
(AD claim 5.c), and the selling, general and administrative costs. The amount for profits was
therefore not based on the actual amount realised by the exporter, because the amount was
based on non-actual costs, and not only with respect to sales in the domestic market.
62. Australia's defences are various and unusual. First, Australia says that it was not possible for
its investigating authority to disaggregate the data concerned. Second, Australia says that the
record of the investigation does not show whether it was possible for the exporter to do so.
Lastly, Australia says that its investigation authority followed the exporter's request to do it
wrongly. China submits that none of these claimed defences absolve Australia from properly
carrying out its investigation and complying with its obligations under Article 2.2.2(i).
63. Ultimately, therefore, Australia cannot deny, and it must be accepted, that the amount for
profit was not the actual amount realised by the Chinese exporter on its domestic sales, and
that the determination failed to comply with Article 2.2.2(i).
A.14 AD claim 7.c
 Australia arrived at opposite "like products" findings in the same investigation, such
that one or the other of those findings was wrong
64. ADA Article 2.2 provides that a comparable price of a like product can be determined, as the
normal value of the like product to that exported, using third country export price or cost of
production plus administrative selling and general costs and profits, if domestic sales are not
available for that purpose. There are three reasons that domestic sales may not be available.
They are no sales of the like product in the ordinary course of trade in the domestic market;
a particular market situation in the domestic market; or a low volume of sales in the domestic
market.
65. ADA Article 2.2.2 provides a means for working out the amounts for profits where there are
sales in the ordinary course of trade of the like product in the domestic market.
66. China's AD claim 7.c draws attention to Australia's usage of a costs and profit construction as
the comparable price, on the basis that there were no domestic sales of the like product for
normal value purposes, which was opposed to its usage of the ordinary course of trade profit
calculation on the basis that there were domestic sales of the like product in the domestic
market. Both cannot be correct. There are either sales of the like product in the domestic
market, or there are not.
67. Australia attempts to answer this by saying that it did not find that th ere were no domestic
sales of like products for the purposes of Article 2.2. Rather, it says there were no relevant
sales of like products. It does so without explaining, on the investigation record or in the
proceedings, which of the three grounds for div erting from domestic sales of like products
gives credence to this relevancy argument.
A.15 AD claim 8
 Australia imposed amounts of anti-dumping duties that exceeded and were greater
in amount than the margin of dumping
68. GATT 1994 Article VI:2 allows a contracting party, in order to offset or prevent dumping, to
levy on any dumped product an anti-dumping duty not greater in amount than the margin of
dumping in respect of such product. ADA Article 9.3 requires that the amount of any
anti-dumping duty shall not exceed the margin of dumping as established under ADA Article 2.

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69. China laid out all of its AD claims in detail. Each claim addressed a circumstance that caused
the normal value to be higher than it otherwise would have been.
70. Australia's defence is that China's AD claim 8 is entirely contingent on the Panel finding that
Australia acted inconsistently with ADA Article 2 under China's individually enumerated and
explained claims. Australia states that China has not made out a prima facie case with respect
to any of China's claims. Australia therefore does not contest, with respect to China's claims
with which the Panel agrees, that Australia imposed amounts of anti -dumping duties that
exceeded and were greater in amount than the m argin of dumping that should have been
established.
71. In that circumstance China's AD claim 8 is uncontested. Therefore, the success of China's
AD claim 8 will follow the outcome of the Panel's findings with respect to China's other AD
claims.
B China's CV claims
B.1 CV claims 2 and 3
 Australia failed to determine or improperly determined that the alleged provision of
goods conferred a benefit to the recipient and wrongly determined that the alleged
provision of goods was made for less than adequate remuneration
72. SCMA Article 1.1(b) requires that for a subsidy to exist, it must confer a benefit. Australia
considered that an alleged provision of goods, being the form of subsidy described by SCMA
Article 1.1(a)(1)(iii), had benefitted Chinese stai nless steel exporters ("Program 1").
Determining whether a benefit is conferred via such a subsidy requires the application of the
disciplines outlined in SCMA Article 14(d). Accordingly, there will be no conferral of benefit
unless the provision of goods is made for less than adequate remuneration. Article 14(d)
requires that such a determination must be made in relation to the prevailing market
conditions for the goods in question in the country of provision or purchase.
73. The determination of the adequacy of remuneration requires a comparison between the cost
of provision of the allegedly subsidised goods and a benefit benchmark. Normally a benefit
benchmark will be based on prices derived from the market for the goods in question. This is
because such prices have the requisite connection with the prevailing market conditions in the
country of provision or purchase, and so align with the requirements of Article 14(d).
74. There is an exception to this general rule, arising in circumstances in which there is a price
distortion arising from government intervention in the market in which the goods are provided,
such that private prices arising from that same market cannot be said to be market
determined. That exception is limited. The existence of such a price distortion does not hinge
on government intervention, even where such intervention is considered to be widespread.
What is required is an analysis of the specific market in question which establishes a nexus
between the identified government interventio n in that market and price distortion. Where
such a nexus is indirect, a more detailed analysis will be required.
75. In the original stainless steel sinks investigation, and since then, Australia has relied upon out
of country prices to determine the benefit conferred by Program 1.
76. Australia argues that because the Chinese Government did not provide a complete response
to the Government Questionnaire, it was appropriate to rely on findings in prior investigations
relating to different products to concl ude that there was a price distortion in the Chinese
market for 304 SS CRC, which would render in -country prices derived from that market
inappropriate for the task set by Article 14(d).
77. This is not a sufficient basis to disregard private, in -country prices. The analysis required to
establish the existence of a price distortion in the market for the supposedly subsidised goods
must consider that market. Australia has not identified any analysis of the market for 304 SS
CRC. Australia did not identify, i n the record of its investigation, any specific government
intervention in the Chinese market for 304 SS CRC. Australia did not identify or explain any
nexus between such intervention and the alleged distortion. In total, the record relating to

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Program 1 was ignorant of the conditions in the market for the good that Program 1 allegedly
provided.
78. There was no reasoned or adequate explanation justifying the adoption of an out -of-country
benefit benchmark to determine the conferral of any benefit under Pro gram 1. Yet, in all but
one instance, the benefit benchmark used with respect to Program 1 was based on
out-of-country prices. In each of these instances, the out -of-country prices were adjusted to
reflect only the differences in delivery terms between the Chinese market and the markets
from which the benchmark was drawn.
79. To reiterate, SCMA Article 14(d) dictates that the determination of the adequacy of
remuneration must be made in relation to the prevailing market conditions of the goods in
question. This requirement applies whether or not the benefit benchmark is derived from
in-country prices or, where reasoned and adequately explained, out-of-country prices. In the
latter case, this may require adjustments to the out-of-country prices, so that they relate to,
or refer to, or are connected with, prevailing market conditions for the goods in question.
80. Australia argues that it considered making adjustments to the benchmark, and so it took all
necessary steps to select a benchmark that reflected prevailing market conditions.
81. A finding that goods were provided for less than adequate remuneration needs to be
determined in relation to prevailing market conditions for the good in the country of provision
or purchase. The benchmarks used to determine the adequacy of remuneration for Program 1
were an amalgam of North American and European price benchmarks, adjusted only for
differences in delivery costs between those markets and China. A benchmark derived in that
way does not reflect the prevailing mark et conditions in China. This remains the case
irrespective of whether the investigating authority considered making other adjustments. The
requirements of Article 14(d) need to be met to determine that any provision of goods was at
less than adequate remuneration.
82. Australia's determination that 304 SS CRC was provided for less than adequate remuneration
does not meet the requirements of Article 14(d). Australia rejected in -country prices without
any reasoned or adequate explanation as to why the market in which those prices were derived
was distorted, Australia then adopted a benchmark that did not relate to the prevailing market
conditions in the Chinese marker for 304 SS CRC. It follows that the conclusion that Program 1
conferred any benefit under Article 1.1(b) was arrived at incorrectly.
B.2 CV claim 4
 Australia failed to make a proper determination that the alleged provision of goods
was specific
83. Article 2.1(c) requires any alleged de facto specificity of a subsidy to be ascertained against
four criteria. The criterion relevant to this proceeding was "the use of a subsidy program by a
limited number of certain enterprises". In determining that a subsidy is specific on such a
basis, Article 2.1(c) requires that an investigating authority take acc ount of both the extent
of diversification of economic activities within the authority of the granting jurisdiction and the
length of time in which the subsidy programme has been in operation.
84. Australia did not determine the existence of a subsidy program, in the sense that there is no
record analysis of whether there was a systematic series of actions pursuant to which financial
contributions which confer a benefit are provided to certain enterprises. Australia merely
treated the concept of a subsidy and a subsidy program as interchangeable.
85. In this proceeding, Australia has attempted to adduce evidence, in the form of a list of
transactions, upon which the existence of a subsidy program could be implied. In doing so,
Australia has failed to reckon with prior panel and Appellate Body rulings that such a list, or
such transactions, is or are alone insufficient to establish a systemic series of actions that
would constitute a subsidy program. Australia has also not recognised explicit state ments in
panel and Appellate Body reports that require an investigating authority to provide a reasoned
and adequate explanation as to how the evidence indicates the existence of a subsidy
program. This was not done by Australia.

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86. With respect to the re quirement that an investigating authority must consider the length of
time in which the subsidy program has been in operation, Australia has only pointed to an
indeterminate reference to the duration of supposed government influence. Australia did not
identify the length of time the alleged subsidy program was in operation, nor did Australia
consider whether that period of operation had explanatory force behind the supposed use of
the program by a limited number of certain enterprises.
87. Similarly, with r espect to the extent of diversification of economic activities within the
authority of the granting jurisdiction, Australia has merely pointed to its conclusion that
Program 1 is specific. There is no active or meaningful consideration of this factor.
88. Article 2.1(c) is said to set out the terrain for assessing de facto specificity. Australia's
conclusion that Program 1 was specific was not made within the bounds of this terrain, and
so does not comply with Australia's obligations under Article 2.1(c).
B.3 CV claim 5
 Australia initiated the countervailing investigation without sufficient evidence and
without proper review of the evidence
89. SCMA Article 11.3 sets out the circumstances in which a subsidy investigation can be initiated.
It requires that the investigating authority review the accuracy and adequacy of the evidence
provided in an application lodged in accordance with Article 11.2 to determine whether the
evidence is sufficient to justify the initiation of an investigation. This includes evidence of the
existence of a subsidy, as well as evidence of the nature (i.e., specificity) of the alleged
subsidy. By its terms, simple assertion, unsubstantiated by relevant evidence, cannot be
considered sufficient to meet the requirements of Article 11.2.
90. The application lodged by the Australian industry did not include evidence of the specificity of
Program 1. The application does not use the term "specificity". Any "specificity" of Program 1
is not referred to in the consideration report which set out the investigating authority's review
of the evidence upon which the initiation of the investigation was based. Australia has referred
to comments in the application to suggest that the specificity of Program 1 was implied in the
allegations. This is tenuous. Any such implication would only amount to a faint assertion, and
not evidence.
91. Australia's further argues that an investigation authority has free rein to examine information
outside an application where evidence is not reasonably available to the applicant. China
accepts that an investigating authority may have regard to information outside an application,
to review the accuracy and adequacy of information included in the application for the
purposes of Article 11.3. China does not accept that the re is a broad discretion to find
additional information to redress fundamental evidentiary flaws in an application.
92. Further, China disagrees that, at the time of initiation of the investigation, Australia's
investigating authority had regard to informa tion outside the application to satisfy itself that
there was sufficient evidence of specificity to justify that initiation. The contemporary record
does not evidence any such consideration. Indeed, it does not concern itself with the specificity
of Program 1 at all.
93. In these proceedings, Australia has argued that the investigating authority had regard to prior
investigations in relation to different products. But this logic is flawed. The outcomes of these
prior investigations were publicly available, and so "reasonably available" to the applicant,
thus undercutting the supposed justification for the investigating authority looking outside the
application. Confronted with this, Australia then referred to confidential attachments to those
investigations that China has not seen and that were not provided to the Panel. In any case,
these prior investigations did not consider whether the provision of 304 SS CRC was specific
to certain enterprises.
94. The application did not meet the requirements of Article 11.2, meaning that the initiation of
the investigation was not justified under Article 11.3.

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C Australia's "terms of reference" objections
95. Australia has sought to strike out many of China's claims on the basis that the panel
purportedly lacks jurisdict ion to hear those claims. These have become known in the
proceedings as terms of reference ("ToR") issues. Australia's arguments may be separated
into two categories. The first is Australia's argument that measures that are the subject of
China's claims "no longer exist". The second is that China's request for the establishment of a
panel ("RFE", "panel request") did not sufficiently bring some of China's AD claims or any of
China's CV claims before the Panel in terms of DSU Article 6.2.
96. These arguments are without merit. They only reflect Australia's desperation to avoid being
brought to account for its longstanding and wide-ranging mistreatment of China and Chinese
exporters in AD and CV matters.
C.1 ToR, first category
 Australia's argument that the panel lacks jurisdiction because challenged measures
no longer "exist" is without merit
97. China has demonstrated to the Panel that Australia's preliminary ruling request for the Panel
to agree that certain of the measures at issue "no longer exist" fails, for many reasons. China
has responded by pointing out:
(a) that the measures have not expired;
(b) that the original investigations form the continued legal and practical foundation for the
measures;
(c) that the measures at issue present relevant and current WTO violations;
(d) that the measures are a connected, continuous set of measures with continued legal,
practical and operational effect; and
(e) that the dispute between the parties remains unresolved and is amenable to resolution
via findings and recommendations of a panel.
98. Australia argues that all of China's wind tower AD claims are outside the panel's jurisdiction
based on two allegations. The first is that the original investigation had ceased to provide the
legal basis for the anti -dumping duties when the Panel was established. The second is that
the express revocation of the AD order with respect to the only cooperative exporter at the
time of the original investigation, TSP, in some manner "expired" the measures about which
China has complained.
99. Australia's first argument fails because of the foundational nature of the original investigation
and the legal continuation of the AD order thereafter. Australia's second argument fails both
on the same reasoning and because the measures were imposed against all other Chinese
wind tower exporters on the basis of the reasoning and findings of the investigating authority
in the originating proceeding. Of course, the challenged AD order continues to exist. The basis
of China's AD claims is how th e order came to be in existence in the first place, and how it
has been further developed in other non-compliant ways since then.
100. Australia further argues that China's stainless steel sinks AD claims relating to the findings
made in the original investigation are outside the panel's jurisdiction, on the alleged basis that
the original investigation had ceased to provide the legal basis for the anti -dumping duties
when the Panel was established. China responds to this in the same way as it has responded
to the same allegation made by Australia with respect to the wind tower AD claims.
101. A principal "measure" that Australia claims no longer exists is the measure that includes the
finding, and the reasoning underlying the finding, concerning the alleged Article 1.1(a)(1)(iii)
provision of goods at less than adequate remuneration subsidy for Chinese stainless steel
exporters ("Program 1"). Australia claims that the Australian measure with respect to that
alleged subsidy no longer existed at the time of the RFE. However, that is not the case at all.

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(a) First, the countervailing measure was put in place based on Australia's conclusion that
there were a number of countervailable subsidies, including Program 1. A later
conclusion at the time of what is referr ed to under Australian law as a continuation
inquiry, which determines that at the time of the continuation of the original measure
there was no amount of Program 1 subsidy, does not reverse the non -compliance on
which the imposition of the measure was originally based.
(b) Second, China has provided evidence that demonstrates that in Australia's domestic
system there is a legal assumption that the foundational subsidies found in an original
proceeding continue to be open to investigation during reviews and are open to be
re-countervailed if is found that amounts of those subsidies have been received in the
period of the review, even where the subsidies were not countervailed in a previous
period.
(c) Third, under Australian law there is no legal power, at t he time of continuation of a
measure, for the competent Minister to do anything other than revoke the whole
measure or, if not revoked, to remove one or other of the exporters or countries subject
to the continued measure from its scope and/or to remove ce rtain kinds of products
from amongst the like products that are subject to its scope. It is not possible for the
operative order to be no longer applicable to a particular alleged subsidy unless it is
expressly and fully revoked.
(d) Lastly, in none of the reviews subsequent to the original imposition of the measures is
there any recanting or reversal of the unsound reasoning upon which the imposition of
the measure with respect to the Program 1 subsidy was first justified.
102. China has also noted that even where measures are truly "expired", which has in any case not
been established, a panel can still make findings and recommendations with respect to them.
C.2 ToR, second category
 Australia's assertion that not mentioning specific ADA and SCMA Articles
compromises China's RFE is incorrect
103. Australia argues that without citing ADA Articles 11.3 and 11.2, all of China's AD claims with
respect to matters arising from review and expiry review determinations concerning wind
towers and stainless steel sinks are outside the Panel's jurisdiction. This argument firstly rests
on the proposition that subsequent review determinations become the exclusive basis of
measures that are continued (not expired). Such a proposition is incorrect, semantically,
procedurally and legally, as China has already exposed with respect to Australia's first category
of ToR complaints.
104. Secondly, China notes that it has not made a claim that requires adjudication of any element
of Article 11.3 or Article 11.2. China's AD claims are brought in relation to Australia's failure
to act consistently with the requirements set out in ADA Articles 2.1, 2.2, 2.2.1, 2.2.1.1, and
2.4, and GATT 1994 Article VI:1 (and, as a result, ADA Article 9.3 and GATT 1994
Article VI:2). ADA Article 2 expressly applies in relation to the determination of dumping "for
the purposes of the Anti -Dumping Agreement". The procedures within which those
non-compliances occurred are defined and covered by the instruments clearly identified in the
RFE. Thus, China maintains that mention of ADA Articles 11.3 or 11.2 was not called for and
that its RFE presented the legal problem sufficiently clearly.
105. China rebuts Australia's identical argument as posited with respect to China's CV claims
concerning stainless steel sinks – which is that SCMA Article 21.3 was not cited in the RFE –
in identical manner.
106. Australia's final ToR argument is that not citing SCMA Article 2.4 is fatal to the adjudication of
China's CV claim. China responds by noting that Australia pays no heed to the totality of the
RFE and what can be specifically inferred from its text. A reasonable panel, assessing China's
RFE on its merits, as a whole, and in light of attendant circumstances, could not fail to
recognise the narrative statement therein that Australia "did not clearly substantiate its
determination on the basis of positive evidence". Nor, China sug gests, could Australia. This

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wording tracks and identifies SCMA Article 2.4's explicit direction that any determination of
specificity shall be "clearly substantiated on the basis of positive evidence". Therefore, China's
RFE provided a brief summary of th e legal basis of the complaint sufficient to present the
problem clearly in this respect, consistent with the requirement of DSU Article 6.2.

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ANNEX B-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF AUSTRALIA
I. INTRODUCTION
China's claims in this dispute relate to three separate steel products – railway wheels, wind
towers and stainless steel sinks. Each of these products was the subject of separate and distinct
investigations undertaken at different times over nearly a decade: three separate anti -dumping
investigations for railway wheels, wind towers, and stainless steel sinks; plus a stainless steel sinks
countervailing duty investigation; followed by three separate interim reviews for stainless steel
sinks; and separate expiry reviews for stainless steel sinks and wind towers. The evidence shows
that the ADC acted as an unbiased and objective investigating authority; that it carefully examined
the different evidence before it in each investigation and that it made distinctly different findings
based on the evidence.
China's case is fully without merit. It has either failed to establish a prima facie case or failed
to demonstrate that the ADC 's conduct and decisions were inconsistent with Australia 's
WTO obligations.
Most of China's claims are directed at matters outside the Panel's terms of reference. China's
claims in relation to stainless steel sinks and wind towers are almost entirely directed at measures
that have been terminated or superseded before the time of panel establishment. Those original
determinations, and interim reviews, were terminated or superseded at the time of panel
establishment and are outside the Panel 's terms of reference under Articles 3.2, 3.4, 3.7, 6.2, and
7.1 of the DSU. The Panel, therefore, should not make findings or recommendations with respect to
these claims under Article 19.1 of the DSU.
Moreover, in its panel request, China also failed to cite a legal basis capable of supporting its
claims against the interim and expiry reviews, a minimum prerequisite that is always necessary
under WTO rules. As a consequence, none of China 's claims in relation to stainless steel sinks and
wind towers are properly before the Panel. In any event, even if the Panel were to find that these
claims are within its terms of reference, those claims lack merit.
China's claims that are properly before the Pa nel are those that concern the railway wheels
investigation. These claims are based on a misunderstanding of Australia's domestic framework and
on legally unsound interpretations of the Anti-Dumping Agreement.
Contrary to China's submissions, an unbiased and objective investigating authority could have
reached the same conclusions as the ADC in each of the challenged investigations. The ADC's conduct
and decisions were consistent with Australia's WTO obligations. Australia therefore requests that, to
the extent the Panel finds China's claims within its terms of reference, the Panel rejects all of China's
claims.
II. BURDEN OF PROOF
The burden of proof in WTO dispute settlement is on the complainant to establish a prima facie
case of a violation of a covered agreement.1 In presenting a prima facie case, the complainant must
put forward evidence and legal argument in relation to each element of its claims.2 It follows that a
respondent's measure is to be "treated as WTO-consistent, until sufficient evidence is presented to
prove the contrary."3 Where argument or evidence is presented by a complainant, the evidence must

1 Australia's first written submission, para. 9 citing Appellate Body Reports, US – Carbon Steel,
2 Australia's first written submission, para. 9. Appellate Body Report, US – Gambling, para. 140. See
also Appellate Body Report, US – Zeroing (EC), para. 217.
3 Australia's first written submission, paras. 9–10; Australia's responses to Panel question no. 107,
para. 236. Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US II), para. 66 (emphasis
original). See also Appellate Body Report, US – Carbon Steel, para. 157.

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be "sufficient to raise a presumption that what is claimed is true". 4 A mere assertion of a claim is
not enough.5
China has largely failed in its burden as the complainant to make a prima facie case.6 This
includes with respect to several claims made by China towards Stainless Steel Sinks Interim Reviews
352, 459, 461, Expiry Review 517 and Expiry Review 487, in respect of which China presented no
arguments or evidence.7
III. STANDARD OF REVIEW
The Panel's standard of review is established in Article 11 of the DSU and Articles 17.5 and
17.6 of the Anti-Dumping Agreement. In sum, this standard is whether an unbiased and objective
investigating authority, in light of the evidence that was before it and the explanations provided,
could have (not that it inevitably would have) reached the same conclusions as the ADC. 8 Under
Article 17.6(i) of the Anti-Dumping Agreement, if the establishment of the facts by the investigating
authority was proper and th e evaluation was unbiased and objective, a panel should not overturn
that evaluation, even though the panel might have reached a different conclusion.
Further, under Article 17.6(ii) of the Anti-Dumping Agreement, where there is more than one
permissible interpretation of a provision, a panel should find the authority's measure to be in
conformity with the Agreement if it rests upon one of those permissible interpretations.9
IV. CHINA'S CLAIMS CONCERNING STAINLESS STEEL SINKS AND WIND TOWERS
MEASURES ARE OUTSIDE THE PANEL'S TERMS OF REFERENCE
A. ALL OF CHINA'S CVD CLAIMS ARE OUTSIDE THE SCOPE OF THE PANEL'S TERMS OF
REFERENCE
China's CVD claims in section B.2 of its panel request are directed only to the countervailing
measures associated with Program 1. China expressly and unambiguously limited its claims to "the
countervailing measures… only with regard" to Program 1.10 All countervailing measures related to
Program 1 have long been terminated at the time of panel establishment.11

4 Australia's first written submission, para. 10.
5 Australia's first written submission, para. 10.
6 See, e.g., Australia's comments on China's response to Panel question no. 95, paras. 87-96.
7 See, e.g., Australia's comments on China's response to Panel question no. 95, paras. 87-96. China has
failed to make a prima facie case with respect to a number of claims directed at the interim and expiry reviews
by failing present any argument or evidence as to how that claim applies to the interim or expiry review,
independent from the original investigation. See Australia's comments on China's response to Panel question
no. 95, para. 87.
8 See, e.g., Australia's first written submission, para. 12; Australia's second written submission,
paras. 8-9. Panel Report, US – Softwood Lumber VI, para. 7.15. The standard of review under Article 11 of the
DSU is understood in light of the obligations of the particular covered agreement to derive a more specific
standard of review. In this way the standard of review under Article 11 moulds to the relevant covered
agreement. See Appellate Body Report, US – Countervailing Duty Investigation on DRAMS, para. 184 (referring
to Appellate Body Reports, US – Lamb, para. 105 and US – Cotton Yarn, paras. 75-78). For Article 17.6(i), the
Appellate Body has recognised the parallels with the Panel's role under Article 11 of the DSU. See Appellate
Body Report, US – Hot-Rolled Steel, para. 55. While Article 11 of the DSU provides the standard of review for
claims under the SCM Agreement, this standard also corresponds with claims under the Anti-Dumping
Agreement.
9 Australia's first written submission, fn. 11:
In considering their standard of review, the arbitrators in Colombia – Frozen Fries found that,
"… different treaty interpreters applying the same tools of the Vienna Convention may, in good faith
and with solid arguments in support, reach different conclusions on the "correct" interpretation of a
treaty provision. This may be particularly true for the Anti-Dumping Agreement, which was drafted
with the understanding that investigating authorities employ different methodologies and approaches.
Treaty interpretation is not an exact science and applying the Vienna Convention's method does not
magically and inevitably lead to a single result. In most cases, treaty interpretation involves weighing,
balancing, and choice" (fns. omitted). [Award of the Arbitrator, Colombia – Frozen Fries, para. 4.14].
10 China's panel request, section B.2.
11 PRR paras. 13, 23 and 25; Australia's second written submission, para. 25.

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With very li mited exception, measures that are no longer in existence before panel
establishment are outside the panel's terms of reference. 12 The DSU does not vest panels with the
authority to issue advisory opinions on measures that are expired, terminated, supersed ed or
otherwise non-existent.13
At the time that China filed its panel request, no measure related to Program 1 had been in
existence for nearly two years.14 This is because in Expiry Review 517, which superseded the original
determination in 2020, the ADC found that no exporter received a benefit in respect of Program 1.
As a consequence, there was no subsidy and, in turn, no countervailing duties relating to Program 1
have been applied to any imports of stainless steel sinks from China since 27 March 2020.15
All of China's claims in sections B.2.1 through B.2.5 of its panel request are thus with respect
to measures that were not in existence at the time the Panel was established. Accordingly, consistent
with Articles 3.2, 3.4, 3.7, 6.2, 7.1 and 19.1 of the DSU and previous panel and Appellate Body
reports, China's CVD claims are outside the Panel's terms of reference and the Panel should issue
no findings or recommendations in respect of these claims.16
China has advanced several arguments seeking to remedy this defect in its panel request. For
the reasons explained below, these arguments are without merit and should be rejected.
1. China improperly att empts to redefine the challenged
measures contained in its own panel request
Under WTO rules, the measures at issue are those identified by a complainant in its request
for panel establishment. Yet, despite the text of its own panel request, China has repeatedly
attempted to recast the challenged measures throughout this dispute.17
At the first Panel meeting, China advanced an argument that the measures at issue were not
just those "only with regard to Program 1", as expressly identified in its pane l request, but, rather,
"only one indivisible, continuous measure in each respect", including all instruments listed in no. 8
through 23 of the panel request's appendix.18
A complainant bears the burden of establishing that separate legal instruments comprise part
of an overarching measure. 19 The complainant must provide evidence of how the different
components operate together as part of a single measure and how a single measure exists as distinct
from its components.20 China has presented no evidence for why these separate legal instruments
should be considered together, or how a countervailing measure taken as a whole is distinct from
its parts.21
2. China's attempts to reinvent its claims in section B.2 of
its panel request should be rejected
China has repeatedly attempted to reinvent its claims under section B.2 of its panel request
and to drastically expand the scope of this dispute by advancing two principal arguments: (a) that
its claims are with respect to the methodology used by the ADC to assess Program 1;22 and (b) that
it should be granted assurances that Program 1 would never be considered by the ADC in future

12 Australia's first written submission, paras. 64-73. Appellate Body Report, EC – Chicken Cuts,
para. 156: "[t]he term "specific measures at issue in Article 6.2 suggests that as a general rule, the measures
included in a panel's terms of reference must be measures that are in existence at the time of the
establishment of the panel".
13 PRR, paras. 4-12; Australia's second written submission, paras. 68-72.
14 Australia's second written submission, para. 25 citing fn 13: "It is clear, based on a plain reading of
China's panel request, that the countervailing measures challenged by China are only those related to
Program 1, namely the original determination and any resulting duties"; Australia's response to Panel
question no. 7, paras. 9-14.
15 Stainless Steel Sinks Continuation 517 Report, (Exhibit CHN-36), pp. 82-83, 85; Evidence of
Termination of Program 1, (Exhibit AUS-71).
16 Australia's second written submission, para. 25.
17 Australia's second written submission, paras. 122-135.
18 China's opening statement at the first Panel meeting, paras. 12-14.
19 Australia's second written submission, para. 35 citing Appellate Body Report, Russia – Railway
Equipment, para. 5.239.
20 Australia's second written submission, para. 35 citing Appellate Body Report, Argentina – Import
Measures, para. 5.108.
21 Australia's second written submission para. 35.
22 China's second written submission, paras. 39-40.

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reviews.23 Both of these arguments should be rejected. The first argument amounts to an
impermissible attempt to convert China' s "as applied" claims in sections B.2.1 -B.2.5 to "as such"
challenges. The second equates to an impermissible request for an advisory opinion from the Panel
with respect to future, speculative measures.24
3. China's assertions that countervailing measures related
to Program 1 still exist are baseless
China has asserted that countervailing measures related to Program 1 still exist. 25 China's
assertions are simply wrong. Australia's evidence establishes that no countervailing measures
related to Program 1 have existed since 27 March 2020.26
B. ALL OF CHINA'S AD CLAIMS WITH REGARD TO STAINLESS STEEL SINKS AND WIND
TOWERS ARE OUTSIDE THE SCOPE OF THE PANEL'S TERMS OF REFERENCE
China's AD claims concerning both stainless steel sinks and wind towers investigations in
section B.1 of its panel request are outside the Panel's terms of reference.
 First, nearly all of China's claims concerning wind towers and stainless steel sinks in
section B.1.1 through B.1.8 relate exclusively to the origina l determinations in both investigations.
As the original determinations for stainless steel sinks and wind towers were superseded by expiry
reviews at the time of panel establishment, they are not "measures at issue" for the purposes of
Article 6.2 of the DSU.27
Second, to the extent that China sought to challenge Expiry Review 487 and Expiry
Review 517, China failed to cite the relevant provision of the WTO Agreements related to expiry
reviews, Article 11.3 of the Anti -Dumping Agreement. China therefor e failed to "provide a brief
summary of the legal basis of the complaint sufficient to present the problem clearly" in accordance
with Article 6.2 of the DSU. 28 China cannot bring a separate and standalone claim under Article 2
without citing Article 11.3 of the Anti-Dumping Agreement in its panel request.29
Third, to the extent China sought to challenge Stainless Steel Sinks Interim Reviews 352, 459,
and 461 (and noting China only raised arguments after the first Panel meeting 30), China failed to
cite Article 11.2 of the Anti -Dumping Agreement. Having failed to cite the requisite article of the
Anti-Dumping Agreement to challenge these reviews, the interim reviews are similarly outside the
Panel's terms of reference.31
Australia has addressed in detail the many jurisdictional flaws in China's AD claims under
section B.1 of China's panel request in its written submissions, opening statements, closing
statements, and responses to panel questions. 32 Australia respectfully requests that t he Panel find
all of China's AD claims against wind towers and stainless steel sinks are outside the Panel 's terms
of reference.

23 China's second written submission, para. 40; China's response to the PRR dated 4 January, para. 55.
24 Australia's second written submission, paras. 39-43.
25 China's response to the PRR dated 4 January, paras. 33-48.
26 Australia's second written submission, paras. 44-58.
27 See Australia's first written submission, paras. 54-79.
28 Australia's second written submission, para. 62 and fn. 58 citing Appellate Body Report, Korea –
Dairy, para. 124, in which the Appellate Body found that:
Identification of the treaty provisions claimed to have been violated by the respondent is
always necessary both for purposes of defining the terms of reference of a panel and for informing the
respondent and the third parties of the claims made by the complainant; such identification is a
minimum prerequisite if the legal basis of the complaint is to be presented at all.
29 Australia's first written submission, paras. 95-101; Australia's second written submission,
paras. 104-113.
30 China's response to Panel question no. 37, paras. 112-117.
31 Australia's second written submission, paras. 122-129.
32 Australia's PRR dated 16 December 2022; Australia's additional PRR comments dated
12 January 2023; Australia's first written submission, paras. 222-139 and 657-666; Australia's opening
statement at the first Panel meeting, paras. 15-41; Australia's closing statement at the first Panel meeting,
paras. 4-12; Australia's responses to the Panel questions, particularly Panel questions no. 6-10 and 42-60, as
summarised in Australia's second written submission, para. 15.

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V. RESPONSES TO AD CLAIMS: RAILWAY WHEELS
A. DOMESTIC FRAMEWORK
China's AD claim 3 and consequential AD claims in relation to railway wheels fundamentally
misconceive the function of the "competitive market cost" findings made by the ADC in its
determination of antidumping duties.33 Its flawed understanding of how "competitive market costs"
are applied under Australia's domest ic framework flowed through to its understanding and
interpretation of the ADC's reports. In turn, this led China to assert that the ADC made
WTO-inconsistent findings under the second condition of Article 2.2.1.1 of the Anti -Dumping
Agreement wherever the term "competitive market cost" is used.34 This is simply incorrect. Contrary
to China's erroneous claims, the ADC's findings and determinations were entirely consistent with the
Anti-Dumping Agreement.
The ADC's consideration of whether exporters ' records reflect the concept of "competitive
market costs" is not intended as, and does not operate as, a mirror of Article 2.2.1.1 of the
Anti-Dumping Agreement.35 Section 43(2) of the Customs (International Obligations) Regulation
2015 (formerly Regulation 1 80(2) of the Customs Regulations 1926 ) imposes a narrow positive
obligation to use exporter records where the prescribed criteria are satisfied, including where the
records "reasonably reflect competitive market costs". 36 The provision at issue says nothin g about
how to calculate the cost of production if the prescribed criteria are not met.37 Where the records do
not "reasonably reflect competitive market costs", the Minister or Parliamentary Secretary has a
degree of discretion as to how to construct the cost of production. 38 That discretion must be
exercised, and was exercised in the railway wheels investigation, in a manner that complies with the
requirements of the Anti-Dumping Agreement, including the first sentence of Article 2.2.1.1 of the
Anti-Dumping Agreement.39
B. AD CLAIM 3
1. Australia acted consistently with Article 2.2.1.1 of the
Anti-Dumping Agreement in departing from the
exporter's records
China's AD claim 3 with respect of railway wheels has shifted throughout the dispute and by
the close of submissions included several layers of alternative argument.
China originally submitted under AD claim 3 that the ADC made an improper finding under the
second condition of Article 2.2.1.1 of the Anti -Dumping Agreement because Railway Wheels
Investigation 466 Report contained the phrase "reasonably reflects competitive market costs."40 This
contention was clearly wrong.41 China fundamentally misunderstands the ADC's findings. The ADC's
decision to depart from Masteel's records for a single cost item—steel billet—was not pursuant to
the second condition of Article 2.2.1.1. Rather, the ADC expressly found that the circumstances in

33 This finding was made under section 43(2) of the Customs (International Obligations) Regulation
2015, which was in effect during the railway wheels investigation. The previous version of this provision,
regulation 180(2) of the Customs Regulations 1926, was in effect during the wind towers and stainless steel
sinks investigations. See, e.g., Australia's first written submission, paras. 146-147; Australia's second written
submission, paras. 144, 235, 316; Australia's comments on China's responses to Panel question no. 80,
para. 66.
34 See, e.g., Australia's first written submission, paras. 146-147; Australia's second written submission,
paras. 144, 235, 316; Australia's comments on China's responses to Panel question no. 80, para. 66.
35 See, e.g., Australia's first written submission, para. 148; Australia's second written submission,
paras. 144, 235, 316; Australia's response to Panel question no. 61, para. 191; Australia's response to Panel
question no. 77, paras. 66-67 and Australia's response to Panel question no. 78, paras. 79, 114.
36 See, e.g., Australia's first written submission, paras. 148-149; Australia's second written submission,
paras. 144, 235, 316; Australia's response to Panel question no. 61, paras. 188-192; Australia's response to
Panel questions nos. 77 and 78.
37 Australia's response to Panel question no. 61, paras. 188-192; Australia's response to Panel
questions nos. 77 and 78.
38 Australia's response to Panel question no. 77; Australia's response to Panel question no. 78, para. 78.
39 Australia's response to Panel's question no. 77, para. 68; Australia's response to Panel question
no. 78, para. 78.
40 China's first written submission, paras. 226-228.
41 See, e.g., Australia's closing statement at the first Panel meeting, para. 24.

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which Masteel's costs were formed were not normal or ordinary under the "normally" term in
Article 2.2.1.1.42
The ADC found that there were systemic and structural imbalances in China's steel and steel
input markets, owing to the Government of China's serious and pervasive influence in these
markets.43 The ADC found that these circumstances translated to Masteel's rec ords, and to one
specific element of Masteel 's costs in particular —its costs for steel billet. 44 On this basis, the ADC
found that the circumstances in which Masteel's costs for steel billet were formed were not normal
or ordinary. The ADC relied on information other than Masteel's records when calculating the cost of
production of steel billet for the purpose of constructing the normal value of railway wheels.45
The ADC's finding was permissible under Article 2.2.1.1 and consistent with the actions of an
unbiased and objective investigating authority.46 The ADC acted consistently with Article 2.2.1.1 of
the Anti-Dumping Agreement in departing from Masteel's records when calculating the cost of steel
billet in Railway Wheels Investigation 466.47
2. There is no mandatory order of analysis or decision
making in the first sentence of Article 2.2.1.1
China's next layer of argument was that the ADC was not entitled to make a finding on the
basis of "normally" because the ADC was obligated to first make affirmative findings under the first
and second conditions of Article 2.2.1.1, in order to have recourse to "normally".48
This purported requirement for a mandatory order of analysis in the first sentence of
Article 2.2.1.1 has no basis in the Anti-Dumping Agreement. There is nothing in the text or structure
of Article 2.2.1.1 that suggests, let alone mandates, a particular order of analysis. Nor does the
context or purpose of Article 2.2.1.1 support the existence of a sequencing requirement.49
To the extent that the panel in Australia – Anti-Dumping Measures on Paper found that there
is a mandatory order of analysis within Article 2.2.1.1,50 this approach should not be followed. It is
inconsistent with the plain text of the Anti-Dumping Agreement.51
Read as a whole, Article 2.2.1.1 provides an obligation for an investigating authority to use
exporters' records as the basis of cost calculations for the purpose of constructing normal value,
provided that certain conditions are met.52 This obligation only applies where:
a) circumstances are normal;
b) the records are in accordance with the generally accepted accounting principles of the
export country; and
c) the records reasonably reflect the costs associated with the production and sale of the
product under consideration.53

42 Railway Wheels Investigation 466 Report, (Exhibit CHN-3), pp. 24, 80 and 95. Australia's first written
submission, paras. 192-246; Australia's second written submission, paras. 181-186; Australia's response to
Panel question no. 61, para. 193. Australia's response to Panel question no. 78, paras. 81–84.
43 Railway Wheels Investigation 466 Report, (Exhibit CHN-3), pp. 24, 80, 95.
44 Railway Wheels Investigation 466 Report, (Exhibit CHN-3), pp. 24, 80, 95.
45 See Australia's first written submission, paras. 192-246.
46 Article 11 of the DSU, and Articles 17.5(ii) and 17.6(i) of the Anti-Dumping Agreement; Panel Report,
US – Softwood Lumber VI, para. 7.15. Further, where the Panel finds that a relevant provision of the
Anti-Dumping Agreement admits of more than one permissible interpretation, the Panel shall find the
authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible
interpretations. See Article 17.6(ii) of the Anti-Dumping Agreement.
47 See Australia's first written submission, paras. 192-249.
48 China's opening statement at the first Panel meeting, para. 71. See also China's closing statement at
the first Panel meeting, paras. 11-12.
49 Australia's second written submission, paras. 146-180; Australia's opening statement at the second
Panel meeting, paras. 43-49.
50 See China's second written submission, para. 201 citing Panel Report, Australia – Anti-Dumping
Measures on Paper, para. 7.117.
51 Australia's second written submission, paras. 146-180; Australia's opening statement at the second
Panel meeting, paras. 43-49.
52 Australia's second written submission, paras. 146-180; Australia's opening statement at the second
Panel meeting, paras. 43-49.
53 See Australia's second written submission, paras. 146-180.

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These three circumstances are not mutually exclusive, nor are they contingent on one
another.54
3. China's arguendo arguments regarding "normally" are
internally inconsistent and lack merit
Lastly, China has provided several mutually inconsistent interpretations of the content of
"normally." The first interpretation of "normally" that China advanced was that the te rm should be
given no independent meaning distinct from the first and second conditions provided for in
Article 2.2.1.1.55 Such an interpretation is incompatible with the ordinary principles of treaty
interpretation. Previous WTO panels and the Appellate B ody have consistently found that the term
"normally" must be given meaning and effect.56
The second interpretation China advanced was that cost records were not required to be used
where there is a "compelling reason to doubt the accuracy, completeness, faithfulness and reliability
of a cost or costs kept in the records".57 On China's account, the content of "normally" is limited to
where there has been a "peculiarity of a reason" why the records would not already have been
caught by the first and second conditions.58 This interpretation reduces the content of "normally" to
the same content as the second condition of Article 2.2.1.1, and similarly fails to give "normally"
meaning and effect. It is implausible that the parties to the Anti -Dumping Agreement deliberately
included the broad term "normally" alongside the more specific first and second conditions, but
intended to give "normally" no more than inutile incremental additional meaning.
In response to Panel question no. 106, China advanced a thir d interpretation of "normally."
China contended that "normally" modifies only the verb "calculated" ,59 and therefore, "' normally'
concerns only calculation issues or calculation methodology issues ... "60 This interpretation is
irreconcilable with the plai n meaning, structure, and evident purpose of the first sentence of
Article 2.2.1.1. On its plain terms, the grammatical effect of "normally" is to modify the phrase,
"shall … be calculated."61 The practical effect is to qualify the obligation of the investigating authority
to calculate the costs on the basis of an exporter's records. That is, in circumstances which are not
"normal", an investigating authority may derogate from its obligation to calculate costs on the basis
of an exporter's records.
In Australia's view, the clear focus of Article 2.2.1.1 is on the costs recorded in an exporter 's
records, and whether those records provide a sound basis for calculating the costs of production and
sale of the product under consideration. 62 In any event, the Panel need not provide a precise
definition of "normally" in order to resolve the issues in this dispute, nor should the Panel seek to
delineate all circumstances when an investigating authority may invoke it. 63 Assessing whether
circumstances are not normal and ordinary is an inherently fact-specific examination.64

54 See Australia's second written submission, paras. 146-180.
55 China's second written submission, para. 247(a).
56 Australia's first written submission, paras. 185-188 citing Appellate Body Reports, US – Clove
Cigarettes, para. 273, EU – Biodiesel (Argentina), para. 6.71; Panel Reports, China – Broiler Products,
Anti-Dumping Measures on Paper, paras. 7.111, 7.115.
57 China's second written submission, paras. 247(b).
58 China's second written submission, para. 234.
59 China's response to Panel question no. 106, para. 224.
60 China's response to Panel question no. 106, para. 224.
61 Australia's first written submission, para. 184 citing Panel Report, Australia – Anti-Dumping Measures
on Paper, para. 7.111.
62 Australia's response to Panel question no. 79, para. 121.
63 See Australia's first written submission, para. 191; Australia's second written submission, para. 186.
64 See, e.g., Australia's first written submission, para. 191; Australia's second written submission,
para. 186; Australia's response to Panel question no. 106, para. 232; Australia's response to Panel question
no. 79, para. 140, fn. 126:
Australia notes that this fact and circumstance-specific interpretation of "normally" was
adopted by the panel in Pakistan – BOPP Film (UAE). While that panel's focus was on the use of the
term "normally" in the different context of Article 11.4 of the Anti-Dumping Agreement, it is clear from
the panel's reasoning that an analogy was to be drawn with the use of "normally" in Article 2.2.1.1.
That panel report has been appealed by Pakistan, but the notice of appeal (as far as Australia is
aware) does not refer to the panel's findings relating to the interpretation of Article 11.4 of the
Anti-Dumping Agreement.

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China's AD claim 3 with respect to railway wheels does not have merit, and therefore the Panel
should reject this claim.
C. AD CLAIM 1
In AD claim 1, China contended that out-of-country data can never be used by an investigating
authority to determine "cost of production in the country of origin". 65 China's interpretation is
irreconcilable with the text of Article 2.2 and is inconsistent with the observations of the Appellate
Body in EU – Biodiesel (Argentina).66
In the facts and circumstances of the ADC 's railway wheels investigation, the ADC acted
consistently with the requirements of Article 2.2 of the Anti -Dumping Agreement in its reliance on
data external to Masteel's records as the basis for constructing steel billet costs in China.67
Further, the ADC acted consistently with the requirements under Article 2.2 by adapting the
out-of-country reference data to Masteel's circumstances as an integrated steel producer in China.68
The ADC properly relied on data external to Masteel's records as the basis for constructing steel
billet costs in China under Article 2.2 of the Anti -Dumping Agreement. Having determined that
recourse to French data was appropriate based on the record evidence, the ADC proceeded to make
the necessary adjustments, adapting the data sourced from outside China to Masteel's circumstances
in China. It did this on the basis of the information that was available to it and appropriate to use
on the facts of the investigation.69
Contrary to China 's arguments, the ADC was under no obligation to adapt the external
reference data in a manner that would reintroduce the market distortions that the ADC sought to
redress. As the Panel alluded to in question no. 21,70 China appears to claim that – through its choice
of reference data under Article 2.2 – the ADC should have reintroduced the very same distortions
that the ADC legitimately excluded under Article 2.2.1.1. This would be nonsensical.71
The ADC acted consistently with Article 2.2 of the Anti-Dumping Agreement in determining an
appropriate cost of production in the country of origin. The Panel should, therefore, reject China's
AD claim 1.
D. AD CLAIM 5.D
China argues, through AD claim 5.d, that Australia did not properly determine the exporter's
cost of production, because the ADC used the cost of an input to production, steel billet, where the
exporter did not have an identical cost in its financial records because steel billet was self-made by
the exporter from raw materials.72

65 China's opening statement at the first Panel meeting, paras. 45-46.
66 Australia's first written submission, paras. 279-283; Australia's opening statement at the first Panel
meeting paras. 61-63; Australia's closing statement at the first Panel meeting, paras. 17-21; Appellate Body
We observe that Article 2.2 of the Anti‐Dumping Agreement and Article VI:1(b)(ii) of the GATT
1994 do not contain additional words or qualifying language specifying the type of evidence that must
be used, or limiting the sources of information or evidence to only those sources inside the country of
origin. An investigating authority will naturally look for information on the cost of production "in the
country of origin" from sources inside the country. At the same time, these provisions do not preclude
the possibility that the authority may also need to look for such information from sources outside the
country.
67 Australia's second written submission, paras. 196-198.
68 Australia's second written submission, para. 200.
69 Australia's first written submission, paras. 298-300; Australia's second written submission, paras. 199
to 201.
70 Panel question no. 21:
To both parties - If non-Chinese surrogate costs were properly used by the ADC to construct
normal values, consistent with Articles 2.2.1.1 and 2.2, would the adjustments that China advocates
have led the ADC to essentially revert back to the exporters' actual costs to construct normal values?
Would such a result make legal or practical sense? Please explain.
71 Australia's second written submission, para. 197.
72 China's panel request, section B.1.5.

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It remains unclear from China's submissions what it contends to be the legal basis for AD claim
5.d.73 To the extent that AD claim 5.d relates to Australia's obligation under Art icle 2.2 to assess
costs of production in the country of origin, it is duplicative of AD claim 1.
China originally argued that AD claim 5.d as it relates to Article 2.2.1.1 "deals with the issue
of what a 'cost' is, in the records of an exporter, for t he purposes of answering the question of
whether the records 'reasonably reflect the costs associated with the production' of the product
concerned' under Article 2.2.1.1".74 That is, China framed this claim as being an offshoot of China's
AD claim 3 argument that the ADC misapplied the second condition of Article 2.2.1.1. This argument
is predicated on China 's incorrect assumption that the ADC 's decision was based on a negative
finding under the second condition of Article 2.2.1.1. The ADC resorted to information external to
Masteel's records pursuant to a finding under the "normally" term of Article 2.2.1.1, not pursuant to
a finding under the second condition.
China subsequently argued that the ADC failed to discharge its obligation under Article 2.2.1.1
by calculating a cost (of steel billet) that was not genuinely related to Masteel's production and sales
of railway wheels. 75 China's argument is unsupported by the record. It is clear from the facts of
Railway Wheels Investigation 466 that there was a genuine relationship between Masteel's steel
billet costs and Masteel's costs of producing and selling railway wheels.76
The ADC properly evaluated the record evidence and acted in an objective and unbiased
manner when it determined that calculating costs at the level of steel billet was appropriate for the
purpose of constructing the cost of production of railway wheels. China 's claim has no discernible
legal basis. The Panel should reject China's AD claim 5.d.
E. AD CLAIM 6.A
China alleged that the ADC failed to make "due allowances" to ensure a fair comparison
between the export price and constructed normal value under Article 2.4 of the Anti -Dumping
Agreement, because it did not apply "allowances" that would have had the effect of entirely reversing
the construction of normal value under Article 2.2 of the Anti -Dumping Agreement. According to
China, "due allowance that reverses the margin calculation's non-compliance with the requirements
of Articles 2.1, 2.2 and 2.4 would be perfectly fitting."77
China's complaints about the construction of normal value are the subject of AD claims 3 and
1. To the extent AD Claim 6 reagitates those points, this claim is purely consequential and duplicative
of China's earlier claims. But, China's AD Claim 6 also takes the nonsensical further step of arguing
that, even if the Panel finds normal value was properly constructed, the ADC was obliged t o apply
adjustments to reintroduce the very distortions that the ADC deliberately removed from its normal
value calculation.
Article 2.4 requires investigating authorities to make adjustments to export price and/or
normal value to allow for a fair comp arison. It is not a mechanism for investigating authorities to
re-engineer normal value at the comparison stage of the margin calculation. 78 China's approach is
legally impermissible and makes no practical sense.
If China fails on AD claims 1 and 3, China must also fail on AD claim 6.a.79 If China succeeds
on AD claims 1 and 3, AD claim 6a is legal impermissible and must nevertheless fail.80
F. AD CLAIM 7.B
In AD Claim 7.b China alleges that the ADC did not determine the profit rate on the basis of
the exporter's sales in the domestic market; and complains that the profit rate assessed was applied

73 Australia's second written submission at paras. 209–214.
74 China's first written submission, para. 308.
75 China's response to Panel's question no. 15, paras. 49-54.
76 Australia's first written submission, paras. 260-265.
77 China's opening statement at the first Panel meeting, para. 93.
78 Panel Report, EU – Biodiesel (Argentina), para. 7.296; Panel Report, Egypt – Steel Rebar,
79 Australia's second written submission, para. 268.
80 Australia's second written submission, para. 268.

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to the exporter 's cost of production as computed by the ADC rather than the Chinese exporter's
unadjusted recorded cost of production.81
The ADC used Masteel's actual sales data to calculate the profit component of the constructed
normal value, using as its basis Masteel 's sales figures from its "Wheels Division". 82 This data was
the verified information available to the ADC. 83 The record shows that Mas teel had positively
suggested that the ADC use this data for this purpose.84
China's further allegation that Australia improperly applied the profit ratio to an out-of-country
cost of production is entirely consequential on China's earlier claims, in particular AD claim 1. Given
that China has failed to make a prime facie case in support of AD claim 1, China has also failed to
make a prima facie case for AD claim 7.b.85
G. AD CLAIM 8
China's AD claim 8 under Article 9.3 of the Anti-Dumping Agreement is entirely consequential
on China's other claims. 86 Since China's other claims fail, so too must AD claim 8.
VI. CONDITIONAL RESPONSES TO AD CLAIMS: STAINLESS STEEL SINKS
Even if the AD measures relating to stainless steel sinks – Investigation 238, Interim Reviews
352, 459, 461, and Expiry Review 517 – were within the Panel's terms of reference, all of China's
AD claims would fail. China failed to demonstrate that an unbiased and objective investigating
authority, considering the e vidence that was before the ADC, could not have reached the ADC's
conclusions. Further, China has failed to make a prima facie case for AD claims 1, 2, 3, 6.a, 6.b.i,
7.a and 8 for Interim Reviews 352, 459, 461 and Expiry Review 517.87
A. AD CLAIM 3
1. Regulation 180(2) is not the second condition of Article 2.2.1.1
China's argument that the ADC's findings in Stainless Steel Sinks Investigation 238 Report
made for the purposes of regulation 180(2) were also findings to reject records for the purposes of
the second condition of Article 2.2.1.1 is without merit.88
 In Investigation 238 Report, the ADC found that the criteria in regulation 180(2) were not
met.89 The ADC therefore conducted a further evaluation of whether to use the exporters' records
under Article 2.2.1.1, as discussed further in the following section. 90 In this further evaluation, the
ADC properly departed from the exporters' records with respect to a single cost item – 304 SS CRC
– in accordance with the second condition of Article 2.2.1.1.91
2. The ADC's second condition finding
The ADC considered that the exporters' recorded costs for 304 SS CRC did not reasonably
reflect the actual costs of 304 SS CRC associated with the production and sale of stainless steel

81 China's first written submission, paras. 431-432.
82 Australia's first written submission, paras. 337-341.
83 Australia's response to Panel question no. 31, paras. 88-93.
84 See Emails from Percival Legal to ADC, dated 9 June 2018 to 11 June 2018, (Exhibit AUS-77).
85 Australia's first written submission, para. 343; Australia's second written submission, para. 229.
86 Australia's first written submission, para. 344.
87 Australia's comments on China's response to Panel question no. 95, paras. 87-96.
88 Australia's first written submission, para. 149; Australia's second written submission, paras. 144-145,
235; Australia's closing statement at the first Panel meeting, para. 24; Panel Report, Australia – Anti-Dumping
Measures on Paper, paras. 7.102-7.103. See Customs (International Obligations) Regulation 2015,
(Exhibit CHN-41), pp. 36-37.
89 Australia's second written submission, para. 240; see also para. 145; Stainless Steel Sinks
Investigation 238 Report, (Exhibit CHN-2), p. 42.
90 Australia's second written submission, para. 240; Stainless Steel Sinks Investigation 238 Report,
(Exhibit CHN-2), pp. 42, 134-136, 146-147.
91 Australia's first written submission, paras. 362 -381; Australia's second written submission,
paras. 237, 241-243; Australia's response to Panel question no. 61, paras. 194. Australia's response to Panel
question no. 78, paras. 85-91.

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sinks.92 The operative finding is on page 42 of Investigation 238 Report. 93 A further discussion of
the ADC's assessment of the evidence underpinning these findings appears at pages 134 to 136 of
Investigation 238 Report.94 It is clear from page 146 of the Report that in making that finding the
ADC expressly considered the specific terms of th e second condition of Article 2.2.1.1, as distinct
from its consideration of its obligations under regulation 180(2).95
The ADC found that the recorded costs in the exporters' records were not an accurate and
reliable reflection of the costs of 304 SS CRC actually incurred.96 This determination was based on
the ADC's finding that 304 SS CRC prices in China were affected by the Government of China's
influence in the iron and steel industry, which had a distorting effect on the 304 SS CRC market. 97
The record evidence demonstrated that the Government of China's influence in the 304 SS CRC
market in China distorted the market overall.98
In light of this finding, the ADC concluded that the exporters ' recorded costs for 304 SS CRC
did not reasonably refle ct the costs associated with the production and sale of the product under
consideration and, therefore, could not be relied upon for the construction of normal value. Given
the record before the ADC this was a conclusion that could have been reached by an unbiased and
objective investigating authority.
Accordingly, China's AD claim 3 in relation to Investigation 238 should fail.99
B. AD CLAIM 1
China's AD claim 1 is premised on a mischaracterisation of the ADC's analysis and findings in
Investigation 238 Report.100 China considers there was a "simple substitution" of Chinese data for
European data, even though the Report demonstrates that the ADC's analysis resulted in an
appropriate and tailored constructed cost.101
First, the ADC considered whether it could use in-country data.102 The record evidence before
the ADC indicated that using in -country data would have reintroduced the distortions identified in
the 304 SS CRC market in China that had informed the ADC's decision to depart from the exporters'
recorded 304 SS CRC costs in the first place.103 As such, in-country data could not be used.

92 Australia's first written submission, paras. 362-381; Australia's second written submission, para. 241;
Australia's response to Panel question no. 61, paras. 194. Australia's response to Panel question no. 78,
paras. 85-91.
93 Australia's first written submission, para. 374-380; Australia's second written submission, para. 241;
Australia's response to Panel question no. 61, para. 194; Australia's response to Panel question nos. 85-91.
94 Stainless Steel Sinks Investigation 238 Report, (Exhibit CHN-2), pp. 134-136. See also Australia's
first written submission, paras. 362-381; Australia's second written submission, para. 241; Australia's response
to Panel question no. 61, paras. 194. Australia's response to Panel question no. 78, paras. 85-91.
95 Stainless Steel Sinks Investigation 238 Report, (Exhibit CHN-2), p. 146. See also Australia's first
written submission, paras. 362-381; Australia's second written submission, para. 241.
96 Panel Reports, EU – Biodiesel (Argentina), fn. 400, EU – Biodiesel (Argentina), para. 7.232; see also
Appellate Body Report, EU – Biodiesel (Argentina), para. 6.33. See also Australia's first written submission,
paras, 374-380; Australia's second written submission, paras. 245-246. Australia's second written submission,
paras. 245-246.
97 Stainless Steel Sinks Investigation 238 Report, (Exhibit CHN-2), pp. 40-42, 134-136. Australia's
second written submission, para. 241. Australia's first written submission, paras. 362 -381; Australia's
response to Panel question no. 78, paras. 85–109.
98 Australia's first written submission, paras. 376-378; Australia's second written submission, para. 249.
99 Australia's second written submission, para. 251.
100 Australia's second written submission, paras. 254-255.
101 Australia's second written submission, para. 255; Australia's first written submission,
paras. 383-386.; c.f. China's opening statement at the first Panel meeting, paras. 55-59.
102 Australia's second written submission, para. 259; Australia's first written submission,
paras. 387-391.
103 Australia's second written submission, paras. 254-255, 258-259; Australia's first written submission,
paras. 387-391. See Stainless Steel Sinks Investigation 238 Report, (Exhibit CHN-2), pp. 42, 207-208;
Stainless Steel Sinks Investigation 238 – PAD, (Exhibit AUS-48), p. 28; Stainless Steel Sinks Investigation 238
– SEF, (Exhibit AUS-49), pp. 182-183; Stainless Steel Sinks Investigation 238 – SEF, (Exhibit AUS-49),
pp. 182-183; [[***]] (Exhibit AUS-52 (BCI)) p. 9.

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Second, the ADC considered seven potential out -of-country sources of reference data that
were on the record.104 The ADC assessed the available data and arrived at an appropriate proxy that
was: (a) limited to the steel grade in question (304 SS CRC);105 (b) not overly narrow (e.g., sourced
from a single buyer purchasing the input predominantly from a single supplier);106 (c) derived from
independent sources;107 and (d) unaffected by distortions in the 304 SS CRC market in China. 108
Ultimately, the ADC determined that the MEPS -based average price for 304 SS CRC using the
monthly reported MEPS North American and European prices was suitable for its purpose.109
Third, the ADC did not "simply substitute" this reference data. 110 Informed by the record
evidence, the ADC adapted the data to arrive at an appropriate proxy for the cost of production in
China. It incorporated the verified delivery costs of 304 SS CRC in China and the verified per tonne
slitting cost, where that cost had been incurred by exporters when purchasing 304 SS CRC.111
An unbiased and objective authority could have reached the conclusions of the ADC in
Investigation 238.112 China's AD claim 1 must, therefore, fail.113
C. AD CLAIMS 2 AND 4
There is no factual dispute between the parties regarding the ADC's approach to determining
the below-cost sales in the ordinary course of trade (OCOT) in Investigation 238 Report.114 Further,
the parties agree that costs determined under Article 2.2 apply to the OCOT determinatio n in
Articles 2.1 and 2.2.1. 115 Considering this, Australia understands that AD claim 2 is consequential
on AD claim 1 with respect to Investigation 238 and, AD claim 4 is consequential on AD claim 3 with
respect to Investigation 238.116
Therefore, China's AD claims 2 and 4 must fail because China's AD claims 1 and 3 must fail
with respect to Investigation 238.117
D. AD CLAIM 6.A
As in the case of Railway Wheels Investigation 466, China's AD claim 6.a in relation to stainless
steel sinks impermissibly conflates the calculation of normal value with fair comparison under Article
2.4 of the Anti-Dumping Agreement. It is an attempt to challenge the basis of the cost of production
in the Stainless Steel Sinks Investigation 238 through the guise of Article 2.4 adjustments.118 If

104 Australia's second written submission, paras. 254-255, 258, 260; Australia's first written submission,
paras. 392-393. See Stainless Steel Sinks Investigation 238 Report, (Exhibit CHN-2), pp. 42, 209-217.
105 Australia's second written submission, paras. 254-255, 258, 260; Australia's first written submission,
para. 394. See Stainless Steel Sinks Investigation 238 Report, (Exhibit CHN-2), pp. 42, 213.
106 Australia's second written submission, paras. 254-255, 258, 260; Australia's first written submission,
para. 394. See Stainless Steel Sinks Investigation 238 Report, (Exhibit CHN-2), pp. 42, 215.
107 Australia's second written submission, paras. 254-255, 258, 260; Australia's first written submission,
para. 394. See Stainless Steel Sinks Investigation 238 Report, (Exhibit CHN-2), pp. 42, 216.
108 Australia's second written submission, paras. 254-255, 258, 260; Australia's first written submission,
para. 394. See Stainless Steel Sinks Investigation 238 Report, (Exhibit CHN-2), pp. 42, 213.
109 Australia's second written submission, paras. 254-255, 258, 260; Australia's first written submission,
paras. 395-397. See Stainless Steel Sinks Investigation 238 Report, (Exhibit CHN-2), pp. 42, 217.
110 Australia's second written submission, paras. 254-255, 261.
111 Australia's second written submission, paras. 254-255, 258, 261; Australia's first written submission,
paras. 398-405. See Stainless Steel Sinks Investigation 238 Report, (Exhibit CHN-2), pp. 42, 217-219.
112 Australia's first written submission, para. 406; Australia's second written submission, para. 262.
113 Australia's first written submission, para. 406; Australia's second written submission, para. 262.
114 Australia's second written submission, para. 265. See also Australia's first written submission,
paras. 407-411.
115 Australia's second written submission, para. 265. See also Australia's first written submission,
paras. 407-411.
116 Australia's first written submission, paras. 407-411; Australia's response to Panel question no. 2,
para. 2. In the interests of clarity, Australia uses the descriptions consequential and dependent to mean the
same thing: that if no contravention were established under one claim, then the other claim must likewise fail
as it depends on the success of the anterior claim. See Australia's response to Panel question no. 12, para. 29.
117 Australia's second written submission, paras. 263-266. See also Australia's first written submission,
paras. 407-411.
118 Australia's second written submission, para. 267.

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China fails on AD claims 1 and 3, China must also fail on AD claim 6.a. If China succeeds on AD
claims 1 and 3, China's AD claim 6.a should nevertheless fail.119
E. AD CLAIM 6.B
1. AD claim 6.b.i
AD claim 6.b.i focuses on the ADC's calculation of a due allowance for VAT under Article 2.4
with respect to Investigation 238. China made two related submissions. The first was that the ADC
did not provide a reasoned and adequate explanation or there was no evidence before the ADC that
the difference in the VAT recoverability rate had any impact or any likely impact on price
comparability.120 The second was that "even if the VAT liability differences did have an impact on
price comparability, then the allowance to account for that difference should have been made on its
merits" i.e., that the adjustment should have been computed based on the exporters' recorded costs,
not on the costs computed by the ADC.121
Both arguments are without merit. In carrying out the obligation to make a due allowance on
its merits under Article 2.4, there is no particular methodology or "specific rules" that an
investigating authority must apply.122 The issue before the Panel is whether the approach adopted
was one which an unbiased and objective authority could have used.
In response to China's first submission, the ADC relied on clear evidence on the record that
there was an actual, quantifiable difference in the VAT liability for export sales as compared to
domestic sales. Given the evident difference in tax treatment, as reported by the investigated
companies themselves, the ADC determined that this VAT liability difference likely had an impact on
price comparability. 123 In doing so, the ADC adopted a method for calculating due a llowance
adjustments for taxation that was based on evidence on the record and consistent with Article 2.4.124
Contrary to China's second submission, the ADC's approach to the VAT due allowance was
merited. If China's approach was accepted and the adju stment was made by application of the
adjustment rate to the exporters' recorded costs, instead of the constructed costs, there would be
an illogical dissonance between the adjustment value and the constructed value to which that
adjustment would be applie d. Under China 's proposed approach, the ADC would effectively be
recalculating the cost of production on a different basis.125 The ADC's approach was consistent with
Australia's obligations under Article 2.4 of the Anti-Dumping Agreement.126
2. AD claim 6.b.ii
China's AD claim 6.b.ii concerns one exporter, Primy, and is limited to Expiry Review 517.
Even if Expiry Review 517 is within the Panel's terms of reference (which Australia argues it is not),
the ADC acted consistently with Article 2.4 in relati on to calculating due allowances for differences
in accessories by (a) not including an additional amount for profit for externally purchased
accessories; and (b) averaging externally sourced domestic accessory costs for each MCC to
calculate the downward adjustment to the normal value.127
Australia agrees with China that differences in physical characteristics between the export and
the domestic model should be quantified, and adjustments should be made to prices to account for
these differences. 128 The disagreement between Australia and China is with respect to the
methodology used to quantify these cost differences.
The issue raised by the first part of China 's claim is that, as part of determining the value of
accessories, the ADC assigned a profit margin to accessories that were manufactured in-house and

119 Australia's second written submission, para. 268.
120 Australia's first written submission, para. 415; Australia's second written submission, para. 272.
121 Australia's first written submission, para. 415.
122 Australia's first written submission, paras. 417-423.
123 Australia's first written submission, paras. 424-431; Australia's second written submission,
paras. 272-273.
124 Australia's second written submission, paras. 272-274.
125 Australia's second written submission, paras. 275-279.
126 Australia's first written submission, paras. 432-435.
127 Australia's first written submission, paras. 436-455; Australia's second written submission,
paras. 280-290.
128 Australia's first written submission, para 417-418.

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did not assign a profit margin to accessories that were purchased from third parties. The ADC took
this approach because it assessed that the price paid for third -party sourced accessories would
include a profit margin (i.e., the profit of the third party), whereas the cost to make for in -house
produced accessories did not include a profit. The reason for the different approaches was fully
explained by the ADC as follows: the purchase price of the third-party produced accessories reflected
the market value of the item, and therefore already included an amount for profit. 129 The ADC
reached this position after an extensive dialogue with exporters and taking their views and the
evidence into account.130
In relation to the second part of China's claim, the ADC sought and relied on the information
from the exporters to develop an MCC structure and assess differences between domestic and export
sales.
The averaging (and deduction) of domestic accessory costs for each MCC was: (a) based on
an MCC structure that was developed taking into account comments from the exporters; and (b)
designed to help generate fair price comparisons across MCCs that were sold with different
accessories.
The ADC's quantification of accessory costs incorporated Primy 's data for its domestic and
export sales, was on its merits and was appropriate in the circumstances.131 China's AD claim 6.b.ii
should be rejected by the Panel.
3. AD claim 6.b.iii
China's AD claim 6.b.iii concerns a single exporter, Zhuhai Grand, and is limited to Expiry
Review 517. Even if Expiry Review 517 is within the Panel's terms of reference (which Australia
argues it is not), the ADC acted consistently with Article 2.4. China's claim relates to a disagreement
with the ADC 's approach to computing the adjustment to account for certain product differences
between a domestic and an export sale. Australia and China agree that an adjustment is required.132
China disagreement is with the ADC's approach in accounting for certain product differences between
export and domestic products. 133 The ADC 's calculations clearly accounted for the differences
between export and domestic products and was consistent with its obligations under Article 2.4 of
the Anti-Dumping Agreement.134
4. AD claim 7.a
China's AD claim 7.a alleges that, in Investigation 238, the ADC failed to determine the profits
of exporters based on actual data pertaining to production and sales of stainless steel sinks. China's
AD claim 7.a is derivative of AD claims 1 and 3. 135 It should be rejected for the reasons set out in
Australia's responses to those claims.136
Contrary to China's allegations, the ADC determined a reasonable amount for profits based on
actual data pertaining to production and sales, consistent with Articles 2.2 and 2.2.2 of the
Anti-Dumping Agreement. Article 2.2.2 does not otherwise provide for any particular methodology
in order to determine the amount for profits.137
 Australia considers that the words "based on" in Article 2.2.2 must be given meaning and
effect, in the context and in light of the object and purpose of the Anti -Dumping Agreement.
Article 2.2.2 does not require the wholesale adoption of the raw data in the exporters records without
exception, such that an investigating authority is precluded from assessing or evaluating that raw
data consistent with the disciplines of Articles 2.2.1.1 and 2.2.

129 Australia's first written submission, para. 440; Stainless Steel Sinks Continuation 517 Report,
(Exhibit CHN-36), p. 59.
130 Australia's first written submission, para. 441.
131 Australia's first written submission, paras. 444-445; Australia's second written submission,
paras. 287-289; Australia's response to Panel's question no. 26.
132 Australia's second written submission, para. 292.
133 Australia's first written submission, para. 459.
134 Australia's first written submission, paras. 456-463; Australia's second written submission,
paras. 291-297.
135 Australia's first written submission, para. 473.
136 Australia's second written submission, para. 298.
137 Australia's first written submission, para. 465; Panel Report, US – Softwood Lumber V, para. 7.263.

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An unbiased and objective authority could have reached the conclusions of the ADC in
Stainless Steel Sinks Investigation 238 with respect to the profit amount. China's AD claim 7.a should
be rejected by the Panel.
F. AD CLAIM 8
China's AD claim 8 under Article 9.3 of the Anti-Dumping Agreement is consequential on the
Panel finding inconsistency with Article 2 under China's earlier AD claims regarding Investigation
238.138 As China has not demonstrated any error in its earlier claims, AD claim 8 must fail also.139
VII. CONDITIONAL RESPONSES TO AD CLAIMS: WIND TOWERS
Australia's primary submission is that all of China's claims regarding the wind towers measures
are outside the scope of the Panel's terms of reference.
Even if the Panel were to find that Invest igation 221 and/or Expiry Review 487 were within
the scope of its terms of reference, it should find that China's AD claims fail to make a prima facie
case that the wind towers measures are inconsistent with the Anti ‐Dumping Agreement. 140
Accordingly, China's claims should be rejected.
A. CHINA HAS NOT MADE A PRIMA FACIE CASE THAT THE WIND TOWERS MEASURES ARE
INCONSISTENT WITH THE ANTI-DUMPING AGREEMENT
1. AD claim 3
China's argument, under AD claim 3 concerning the ADC's findings in Wind Towers
Investigation 221 Report is based on a misunderstanding of the findings in the report. China treats
the references to "competitive market costs" and regulation 180(2) as a finding under the second
condition of Article 2.2.1.1. As discussed in paragraph 26 above, regulation 180(2) says nothing
about, and provides no basis for, the rejection of records, and is not the same as findings made
under the second condition. 141 The references to it serve a different purpose, and do not reflect a
finding on the basis of Article 2.2.1.1. 142 The ADC's distinct finding under the second condition is
apparent from the investigation report.143
2. AD claim 1
China's arguments under claim 1 are predicated on China 's contention that the "uplift ratio"
was based on the differences between price values associated with a Chinese plate steel producer
in a different investigation and "the values associated with Korean and Chinese Taipei plate steel
producers".144 But, as the Wind Towers Report makes clear, Korean and Chinese Taipei plate steel
prices had no role in the ADC's calculation of the normal value of wind towers in Investigation 221.
This is confirmed in Confidential Appendix 2 – Wind Towers Investigation 221 Report which was
exhibited in response to Panel question no. 42(a). 145
3. AD claim 5.c
Under AD claim 5.c, China claims that the "cost difference used for the purposes of the
so-called 'uplift' was not and could never be considered to have been unbiased and objective" .146
The legal basis for China's arguments is entirely unclear, even after multiple rounds of

138 Australia's second written submission, para. 311; Australia's first written submission,
paras. 550-553. See China's first written submission, paras. 465, 469, 474-475, 477-479.
139 Australia's second written submission, para. 311; Australia's first written submission,
paras. 550-553.
140 Australia's first written submission, paras. 475-562.
141 Australia's second written submission, paras. 145, 235, 313, 315-316.
142 Australia's second written submission, paras. 315-317; Australia's response to Panel question no. 61,
para. 195; Australia's response to Panel question no. 78, paras. 110-115.
143 Australia's response to Panel question 78, para. 88.
144 China's response to Panel question no. 11, para. 31. See also China's opening statement at the first
Panel meeting, paras. 48-49.
145 [[***]] (Exhibit AUS-75 (BCI)).
146 China's first written submission, para. 261.

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submissions.147 To the extent that it is predicated on Article 2.2, this claim appears to be wholly
subsumed under, and duplicative of, China's AD claim 1.148
To the extent that China's AD claim 5.c is based on the second condition of Article 2.2.1.1,
then there may be a separate aspect of the claim, but there is no legal basis for it.149 It appears that
China's ultimate complaint is that because the second condition of Article 2.2.1.1 uses the phrase
"the costs associated with the production and sale of the product", that when an investigating
authority engages in a construction of normal value it must only — unequivocally, according to China
— have regard to costs of the exporter being considered. This is unsupported by the text of the
Anti-Dumping Agreement. China has not established any legal basis for this purported requirement.
4. AD claim 6.a
For the same reasons set out above in relation to railway wheels, China AD claim 6.a in relation
to wind towers should fail.150
5. AD claim 7.a
Under AD claim 7.a, China challenges the multiplication of the actual profit rate to the "uplifted
cost of production" which it alleges was not "the cost of production in the country of origin".151
If the calculated cost of production is the correct amount for a "cost of production in the
country of origin", then applying an uncontested actual profit rate to that amount would result in a
"reasonable amount for … profits" that would be consistent with Articles 2.2 and 2.2.2 of the
Anti-Dumping Agreement. As such, since China has failed to make a prima facie case under
AD claim 1, then this claim must also necessarily fail.152
6. AD claim 7.c
China's claim 7.c that the ADC 's findings on like products were inconsistent must fail for th e
reasons set out in Australia 's written submissions. 153 In both the original investigation and expiry
review the ADC found that there were sales of like goods in China. However, the ADC found there
was an absence of relevant sales of like goods for the purpose of determining normal value.154
7. AD claim 8
China's AD claim 8 is entirely contingent on the Panel finding that Australia acted inconsistently
with Article 2 of the Anti -Dumping Agreement under its earlier claims. As outlined above, there is
no basis for such findings in each case.155
VIII. CONDITIONAL RESPONSES TO CVD CLAIMS
Australia's submission is that all of China's claims regarding the stainless steel sinks measures,
including China's CVD claims, are outside the scope of the Panel's ter ms of reference. Specifically,
China's CVD claims under section B.2 of its panel request are limited solely to the CVD measures
"with regard to" Program 1.
Even if the Panel were to find that China's claims involving Program 1 were within its terms of
reference, China has failed to demonstrate that ADC acted inconsistently with the
SCM Agreement.156 Accordingly, China's CVD claims should be rejected. Moreover, because any
measures relating to Program 1 were terminated with effect from 27 March 2020 there is simply no

147 Australia's second written submission, paras. 319-320.
148 Australia's second written submission, para. 320.
149 Australia's response to Panel question no. 16, paras. 35-36.
150 Australia's first written submission, paras. 531-536. Australia's second written submission,
paras. 323-326.
151 China's first written submission, paras. 412-416.
152 Australia's second written submission, paras. 327-329.
153 Australia's first written submission, paras. 545-549; Australia's second written submission,
para. 330.
154 Australia's response to Panel question no. 29, paras. 83-84.
155 Australia's second written submission, para. 331.
156 Australia's first written submission, paras. 563-707.

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matter at issue between the parties that this Panel could resolve, nor any measure it could
recommend Australia bring into compliance as a result, in accordance with Article 19.1 of the DSU.157
A. CVD CLAIM 1
China confirmed in bilateral communications with Australia that it would no longer be pursuing
any claims related to financial contribution and Article 1.1(a) of the SCM Agreement. 158 Australia
notes that China did not advance any arguments with respect to these claims in any of its
submissions.
B. CVD CLAIMS 2 AND 3
China contends that the ADC was not entitled, in light of the requirements of the
SCM Agreement, to disregard in-country prices of 304 SS CRC and challenges the ADC 's use of an
out-of-country benchmark as well as the associated adjustments.159
Contrary to China's submission, the ADC:
a) in accordance with Article 14(d) of the SCM Agreement, and previous decisions of the
Appellate Body, including in US – Carbon Steel (India), correctly disregarded in-country
prices of 304 SS CRC due to pervasive intervention by the Government of China in the
market, causing distortions;
b) adopted an out -of-country benchmark that was the best available representation of
the market-determined price of 304 SS CRC in China; and
c) adjusted this benchmark for prevailing market conditions in China.160
The ADC, therefore, acted consistently with the requirements of Articles 1.1(b) and 14(d) of
the SCM Agreement, and China's claims should be rejected.161
C. CVD CLAIM 4
China argued that the ADC failed to properly establish that Program 1 was specific in
accordance with Articles 1.2 and 2.1(c) of the SCM Agreement. China alleges four separate
inconsistencies. However, China's arguments are unsupported by the facts and WTO law.
First, China argues that the ADC did not identify a subsidy programme as required under
Article 2.1(c) of the SCM Agreement. 162 But the record shows that the ADC did identify a subsidy
programme. Specifically, the ADC identified a systematic patter n of 304 SS CRC being provided to
Zhuhai Grand for less than adequate remuneration.163
Second, China submits Australia failed to consider whether Program 1 was used by a limited
number of certain enterprises.164 China is mistaken. The ADC acted consist ently with Article 2.1(c)
of the SCM Agreement by showing that access to the subsidy was limited to "certain enterprises"
that used 304 SS CRC as a key input. Specifically, the ADC found that access to Program 1 was
limited to enterprises engaged in the manufacture of downstream products (including stainless steel
sinks) that use 304 SS CRC as a key input.165

157 PRR, para. 25.
158 Australia's first written submission, para. 570.
159 China's first written submission, paras. 481-534.
160 Australia's second written submission, para. 337. See also Australia's first written submission,
paras. 607-617.
161 Australia's second written submission, paras. 336-364.
162 China's first written submission, paras. 554-558.
163 Australia's first written submission, paras. 638, 652-653; Australia's second written submission,
paras. 367-371; Australia's response to Panel question no. 91, paras. 175-178.
164 China's first written submission, paras. 559-560.
165 Australia's first written submission, para. 639; Australia's response to Panel question no. 92,
paras. 179-182.

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Third, China argues Australia failed to expressly or implicitly take account of the two factors
listed in the final sentence of Article 2.1(c) of the SCM Agreement.166 But the record shows that the
ADC complied with the requirements of the final sentence of Article 2.1(c) of the SCM Agreement.
The ADC took into account both factors, and its consideration of both factors is indicated in Stainless
Steel Sinks Investigation 238 Report.167
Finally, China contends that the ADC failed to clearly substantiate its determination of
specificity on the basis of positive evidence as required by Article 2.4.168 But, China failed to raise a
claim under Article 2.4 of the SCM Agreement in its panel request. Accordingly, China's claims with
respect to Article 2.4 of the SCM Agreement fall outside the Panel's terms of reference and, in turn,
the Panel should not make any findings or recommendations with respect to this claim.169
D. CVD CLAIM 5
China makes two allegations under CVD claim 5.
First, China alleges that the ADC did not have sufficient evidence that Program 1 was specific
to initiate the investigation.170 Contrary to China's submission, the record shows the application did
contain information in relation to the nature of the alleged subsidy. The application provided evidence
of the common recipients that used and benefited from a variation of Program 1 investigated by the
Canada Border Services Agency.171
In addition, there was evidence and associated confidential documentation connected with
two previous investigations into similar steel products that was not reasonably available to the
applicant, but was available to the ADC. 172 The ADC considered this evidence, along with the
information provided by the applicant, and concluded that there was a sufficient basis to justify the
initiation of an investigation under Article 11.3 of the SCM Agreement. Having regard to all of that
evidence, as an objective and unbiased investigating authority, the ADC properly concluded that the
evidence was sufficient to justify the initiation of an investigation under Article 11.3 of the
SCM Agreement.173
Second, China claims that one piece of evidence relied on by the ADC to initiate the
investigation was "out -of-date" and did not demonstrate that stainless steel sinks were being
"presently" subsidised during the relevant period of review. 174 China's argument is focused on a
single piece of evidence relied upon, and ignores the surrounding context of all of the other evidence
considered by the ADC that covered the period of investigation.175
The ADC acted consistently with the requirements of Article 1 1.1, 11.2 and 11.3 of the SCM
Agreement. China's claims should fail.
IX. CONCLUSION
Australia requests that the Panel find that the entirety of China's claims with respect to the
stainless steel sinks and wind towers cases are outside the Panel's terms of reference. In any event,
as demonstrated in Australia's submissions and responses to questions from the Panel, the ADC's
findings with respect to all three cases are consistent with Australia's obligations under the
Anti-Dumping Agreement and the SCM Agreement.

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ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Brazil 60
Annex C-2 Integrated executive summary of the arguments of Canada 62
Annex C-3 Integrated executive summary of the arguments of the European Union 63
Annex C-4 Integrated executive summary of the arguments of Japan 67
Annex C-5 Integrated executive summary of the arguments of Mexico 70
Annex C-6 Integrated executive summary of the arguments of Norway 72
Annex C-7 Integrated executive summary of the arguments of the Russian Federation 75
Annex C-8 Integrated executive summary of the arguments of the United Kingdom 80
Annex C-9 Integrated executive summary of the arguments of the United States 83

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ANNEX C-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF BRAZIL
INTRODUCTION
1. Brazil welcomes the opportunity to present its views on the issues raised in these panel
proceedings. In Brazil's view, the key elements of the dispute are the interpretation and
application of the phrase "particular market situation" in Article 2.2 of the ADA, and the
interpretation and application of the term "normally" in Article 2.2.1.1 of the ADA.
2. In this submission, Brazil does not take a position regarding the facts of the di spute, but will
present its views on what it considers to be the proper interpretation of those two expressions.
Article 2.2 of the Anti-Dumping Agreement and the existence of a "particular market
situation".
3. In the present dispute, China considers tha t several procedures adopted by Australia's
investigating authority in three different investigations were in violation of the ADA. In particular,
China claims that Australia failed to use (i) the cost of production in the country of origin and
(ii) the ex porters' records on costs, thus improperly determining the normal value of Chinese
exports.1
4. Australia, in its turn, justifies the methodology used by its investigating authority by alleging
that its decisions were made on the basis of a "particular ma rket situation" under Article 2.2,
and that exporters' records "were not 'normal' within the meaning of Article 2.2.1.1 of the ADA".2
Australia claims its investigating authority "was required to assess the existence of dumping or
subsidization in light of the clear evidence in each case of high levels of Government intervention
in relevant parts of the Chinese steel and steel input markets".3
5. Article 2.2 sets out the conditions under which an investigating authority may resort to
alternative methodologies for reaching a constructed value for the determination of dumping.
The existence of a "particular market situation" is one of the situations that justifies the use of
such methodologies.
6. There is no clear definition of what constitutes a "particula r market situation" in the text of the
ADA. In previous disputes in which the term was the subject of appreciation by panels, the main
issue was whether price distortions, mainly caused by governmental actions, constituted a
"particular market situation".
7. Brazil notes, however, that the mere existence of governmental intervention, by means of
regulation or financial assistance, does not constitute per se a "particular market situation". For
the purposes of Article 2.2, governmental actions are relevant only if they create market
distortions that do not permit a proper comparison of domestic and export prices. As found by
the panel in Australia – Anti-Dumping Measures on Paper , "the phrases 'particular market
situation' and 'permit a proper comparison' function together to establish a condition for
disregarding domestic market sales as the basis for normal value".4
8. In light of this reading, Brazil understands that the text of Article 2.2 entails a double obligation
to investigating authorities: first, they must conduct an assessment to demonstrate the
existence of a "particular market situation"; secondly, they must examine whether sales done
in such a situation "do not permit a proper comparison" of the domestic and the export price.
9. This second step is a qualitative comparison of whether the prices can be properly compared. It
should be demonstrated by a reasoned assessment on how a "particular market situation" affects

1 China's First Written Submission, para. 2.
2 Australia's First Written Submission, para. 5.
3 Id., para. 7
4 Panel Report, Australia – Anti-Dumping Measures on Paper, para 7.27.

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that comparison. If these two conditions were satisfied, then the investigating authority would
be allowed to resort to an alternative method for the constructed value.
10. Turning to the interpretation and application of the word "normally" in the first sentence of
Article 2.2.1.1 of the ADA, it should be noted that "normally" is an adverb that means "under
normal or ordinary conditions; as a rule; ordinarily". 5 In this case, such a rule is subject to the
two conditions expressed in the second part of the first sentence of Article 2.2.1.1: "provided
that such records are in accordance with the generally accepted accounting principles of the
exporting country and reasonably reflect the costs associated with the production and sale of
the product under consideration".
11. Brazil concurs with the interpretation of the panel in Australia – Anti-Dumping Measures on Paper
that the word "normally" modulates the obligation contained in that article, by providing
investigating authorities with enough flexibility to depart from the information provided by
exporters, if there are compelling reasons to do so even when the abovementioned two
conditions are satisfied.6
12. In the present dispute, Brazil considers that the Panel has the opportunity to further clarify the
requirements of Article 2.2 and of Article 2.2.1.1. Even if those requirements were satisfied, the
Panel may also need to assess if the adjustments made by the investigating authority were
proper, unbiased and objective.
CONCLUSION
13. Brazil appreciates the opportunity to comment on these issues in these proceedings and hopes
that the viewpoints presented in this submission will prove helpful to the Panel in assessing the
subject matter brought before it.

5 New Shorter Oxford English Dictionary, 2002, p. 1941.
6 Panel Report, Australia – Anti-Dumping Measures on Paper, para. 7.116-7.117.

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ANNEX C-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA
1. Thank you Madame Chair
2. Canada thanks the Panel for the opportunity to present its views in this dispute.
3. Canada notes that the Russian Federation is also participating as a third party. Canada informs
the Panel that it will not be enga ging with the Russian Federation in this proceeding. Canada
expresses its solidarity with the Ukrainian people, and condemns in the strongest terms the
Russian Federation's unjustifiable and unprovoked invasion of Ukraine. The Russian Federation's
unlawful campaign of aggression violates international law and the United Nations Charter, and
gravely threatens international peace and security and the rules-based order. Canada demands that
the Russian Federation immediately and unconditionally cease the illega l use of force against
Ukraine, and withdraw its military forces from within Ukraine's internationally recognized borders.
We also call on the Russian Federation to uphold its obligations under international humanitarian
law and human rights law, and to protect all civilian populations and infrastructure.
4. This concludes Canada's oral statement. We thank you for your attention.

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ANNEX C-3
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION
1. PROCEDURAL ISSUES
1.1. Identification of measures / expired measures under Article 6.2 DSU
1. Regarding the question whether the original determinations are within the Panel's terms of
reference in view of the fact that they had been replaced by the expiry review two years prior
to panel establishment, the EU considers it important to distinguish between two separate legal
issues. The first issue concerns the jurisdictional question as to whether China's panel request
sufficiently identifies the specific measure(s) at issue. Measures not properly identified fall
outside a panel's terms of reference, and cannot be the subject of panel findings or
recommendations.1 In this context, the Appellate Body explained that "the measures at issue
must be identified with sufficient precision so that what is referred to adjudication may be
discerned from the pan el request". 2 China identified both the original and expiry review
determinations as relevant measures and clarified that it only challenges Program 1 in this
respect. This is sufficient for identification purposes and for Australia to defend itself. The expired
measure therefore is within the Panel's terms of reference.
2. The second question relates to the issue as to whether the Panel could or should make findings
and/or recommendations on the (expired) original determinations. As a general rule, the
measures included in a panel's terms of reference must be measures that are in existence at the
time of the establishment of the panel."3 While this is the starting point of any legal assessment
on expired measures, it is not yet the end of the analysis. A long line of case law has developed
as to the specific circumstances under which measures may be subject to panel review despite
their expiry. A recent panel report recalled the importance of the distinction between cases in
which the measures in question had expired before or only after the panel's establishment by
the DSB. While panels often make findings (but no recommendations) on measures expired after
panel establishment, "in respect of measures withdrawn before panel establishment, panel
practice appears to heavily lean against making any findings" .4 The relevance of this temporal
distinction was recently confirmed by the Appellate Body in EU – PET (Pakistan).5 The EU notes
that the extensive case law on expired measures – as to whether a panel can make
recommendations and/or findings – shows that expired measures do not per se fall outside a
panel's terms of reference as Australia and some third parties argue – otherwise the question of
findings or recommendations would not even arise. Rather, such expired measures are within a
panel's terms of reference and hence the panel has jurisdiction. However, it will depend on the
individual circumstances whether – and to what extent – the panel may exercise such
jurisdiction. In the present case, the EU considers that there are no circumstances (such as, e.g.
lingering effects or risk of recurrence) that would speak in favour of making findi ngs on the
expired original determinations. The Panel therefore cannot make findings on the expired original
determinations in the present case.
1.2. China's failure to cite Articles 11.3 ADA and 21.3 SCMA (expiry reviews)
3. While the expiry review determ inations are within the Panel's terms of reference, the EU
considers that China cannot succeed with its claims against the expiry review determinations on
substance because China failed to cite Articles 11.3 ADA and 21.3 SCMA in its panel request.
The Appellate Body has made clear that "the identification of the treaty provisions is always
necessary for purposes of defining the terms of reference of a panel and for informing the
respondent of the claims".6

1 Appellate Body Reports, Dominican Republic – Import and Sale of Cigarettes, para. 120 and EC and
certain member States – Large Civil Aircraft, para. 790.
2 Appellate Body Report, US – Continued Zeroing, para. 168.
3 Appellate Body Report, EC – Chicken Cuts, para. 156.
4 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines II), para. 7.469.
5 Appellate Body Report, EU – PET (Pakistan), para. 5.39.
6 Appellate Body Report, Korea – Dairy, para. 124. See also Appellate Body Report, Russia – Railway
Equipment, para. 5.28.

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4. Articles 11.3 ADA and 21.3 SCMA are the specifi c and central provisions in the Anti -Dumping
Agreement and SCM Agreement dealing with expiry review determinations. The obligations
arising with respect to an expiry review determination therefore result from the obligations
contained in Article 11.3 ADA, or from obligations contained elsewhere in the Anti -Dumping
Agreement (e.g., Article 3 ADA), provided they are raised in connection with Article 11.3 ADA.
The listing of Article 11.3 ADA, in the EU's view, is therefore essential for a panel request alleging
violations with respect to expiry review determinations.
5. Original investigations and expiry review determinations are covered in the two Agreements
through different legal provisions because there are important differences between these
two types of investigations. In particular, other than the original investigation, the expiry review
is a prospective determination. The Appellate Body stated in this regard: "In an original
anti-dumping investigation, investigating authorities must determine whether d umping exists
during the period of investigation. In contrast, in a sunset review of an anti -dumping duty,
investigating authorities must determine whether the expiry of the duty that was imposed at the
conclusion of an original investigation would be like ly to lead to continuation or recurrence of
dumping".7 For example, with respect to injury, a previous panel found that Article 3 ADA is not
directly applicable in case of an expiry review but could only be relevant to the panel's
interpretation of the obligations contained in Article 11.3 ADA.8 A previous panel also pointed to
the fact that original investigations and sunset reviews are distinct processes with different
purposes. It stated that "in light of the fundamental qualitative differences in the nature of these
two distinct processes … it would not be surprising to us that the textual obligations pertaining
to each of the two processes may differ". 9 These rulings confirm that Articles 11.3 ADA / 21.3
SCMA must be cited to in a panel request that targets expiry review determinations. In the
absence of any reference by the complainant to Articles 11.3 ADA / 21.3 SCMA in the panel
request, the claims relating to expiry review determinations fall outside the panel's terms of
reference.
6. The EU does not opine as to whether it is necessary to quote Articles 11.3 ADA / 21.3 SCMA for
each individual claim relating to expiry review determinations or whether it may be sufficient to
quote Article 11.3 ADA once in the panel request (also for multiple claims) in order to allow the
respondent to properly defend itself. In the present case, China failed to make any reference to
Article 11.3 ADA / 21.3 SCMA in its panel request. This means that the violations relating to the
expiry review determinations alleged by China are not within the Panel's terms of reference.
1.3. Initiation of an investigation
7. The EU agrees with Australia that an investigating authority is not limited to considering the
evidence in the application. There is no indication in the text of Article 5 ADA (or Article 11
SCMA) that an investigating authority is limited to considering only the evidence in the
application. On the contrary, Articles 5.3 ADA / 11.3 SCMA require "that authorities shall
examine the accuracy and adequacy of the evidence provided in the application to determine
whether there is sufficient evidence to justify t he initiation of an investigation." If authorities
were limited to evidence contained in the application, they would be hampered, in some cases
even unable, to examine the accuracy and adequacy of the evidence provided in the application
as required by Art icles 5.3 ADA and 11.3 SCMA. There are also numerous panel reports that
make clear that investigating authorities may take into account other evidence 10 and that the
initiation may even be found WTO inconsistent if the authorities fail to corroborate evidence
contained in the application through other evidence.11
2. DUMPING DETERMINATION
2.1. Interpretation of "normally" under Article 2.2.1.1 ADA, first sentence
8. The European Union agrees with the panel in Australia – Anti-Dumping measures on A4 Copy
Paper that an investigating authority may disregard the records of costs kept by the exporter or
producer under investigation even if the two conditions in the first sentence of Article 2.2.1.1
ADA are satisfied. By its own terms, the first sentence of Article 2.2.1.1 does not explicitly set

7 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 107.
8 Panel Report, EU – Cost Adjustment Methodologies II (Russia), para. 7.381.
9 Panel Report, US – Corrosion-Resistant Steel Sunset Review, para. 7.8.
10 Panel Report, China – GOES, para. 7.56; Panel Report, Mexico – Olive Oil, para. 7.225; Panel Report,
11 Panel Report, Mexico –Steel Pipes and Tubes, para. 7.39; Panel Report, Morocco – Definitive AD
Measures on Exercise Books (Tunisia), para. 7.380.

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out what circumstances may be considered "normal" and what circumstances may be considered
"not normal".12
9. As expl ained in prior submissions on this issue 13, the European Union considers that it is
necessary to interpret Article 2.2.1.1, and particularly the term "normally", in the overall context
of Article VI of the GATT 1994 and Article 2 of the Anti-Dumping Agreement.
10. This flexibility to disregard the records of costs kept by the exporter or producer under
investigation in certain circumstances is enshrined not only in the term "normally", which
qualifies and modifies the obligation of the investigating authority to calculate costs of production
on the basis of producers' records, but also in the term "[f]or the purpose of paragraph 2" which
clarifies the purpose of the calculation. That purpose is the determination of dumping and of a
normal value (that is, a value that is normal) for the product concerned.
11. Following the definition of dumping, and the introduction of the notions of normal value and
price comparability in Article 2.1, Article 2.2 elaborates the rules for determining normal value.
When there are no domestic sales of the like product or, for various reasons, such sales cannot
be used, the choice lies between a comparable representative price to a third country or a
constructed normal value. Article 2.2 contains two sub-paragraphs. Article 2.2.1 focuses on the
question of when domestic sales or sales to a third country may be treated as not in the ordinary
course of trade by reason of price (when they are below the costs of production plus
administrative, selling and general costs). Article 2.2.2 focuses in on how to determine amounts
for administrative, selling and general costs and profit "for the purpose of paragraph 2", that
purpose being to determine a normal value.
12. Article 2.2.1 itself contains one further sub -paragraph: Article 2.2.1.1. By its own terms,
Article 2.2.1.1 is framed as a provision to be applied "for the purpose of paragraph 2". The term
"purpose" appears in the singular. To understand the provision properly, we must therefore look
back to the single purpose of paragraph 2. We must neither improperly expand nor narrow that
single purpose. Nor must we break down paragraph 2 into multiple purposes and arbitrarily
select one of them, to the exclusion of others. The single purpose of paragraph 2 is, as we have
already observed, to set out rules governing the establishment of a value that is normal or, for
short, a normal value. Thus, we must correctly understand the first sentence of Article 2.2.1.1
as requiring that, for the purpose of establishing a normal value, provided that certain conditions
are met, costs shall normally be based on the records of the investigated firm.
13. The term normal value is not a defined term. Article 2 ADA elaborates rules that govern the
determination of a normal value, but that is not the same thing as a definition. Defining a term
has a particular consequence. It means that, in order to understand the defined term, one does
not apply the interpretative rules directly to the defined term, but rather to the definition itself.
By contrast, if a term is not defined, then it falls to be interpreted in accordance with the
customary rules of interpretation of public international law. Therefore, the term normal value,
that is, the notion of a value that is normal, falls to be interpreted in accordance wi th the
customary rules of interpretation of public international law.
14. Article VI:1 of the GATT 1994 and the Ad Notes, together with the terms of Article 2 of the
Anti-Dumping Agreement, provide immediate and compelling contextual guidance regarding
situations that are not "normal".

12 By its own terms, Article 2.2.1.1 does indicate some of the circumstances in which it may be justified
to reject/replace/adjust specific cost items in the records of the investigated firm. For example, the
second sentence of Article 2.2.1.1 refers to cost allocations have been "historically utilized" by the
investigated firm, in particular as regards amortization, depreciation, allowances for capital expenditures and
other development costs. Thus, a specific cost allocation might be in accordance with GAAP and otherwise
"reasonably reflect the costs …", but it might not have been "historically utilized" by the investigated firm, as
opposed to being specifically engineered for the purposes of completing the questionnaire response. Thus, in
such a situation, instead of calculating costs exclusively on the basis of the records kept by the investigated
firm, an investigating authority may be entitled to reject/replace/adjust such costs (by definition, by having
recourse to information or data exogenous to the records kept by the investigated firm). The same comment
applies with respect to the third sentence of Article 2.2.1.1 (including footnote 6), which relates to
non-recurring items of cost and start-up operations. Also in this situation, instead of calculating costs
exclusively on the basis of the records kept by the investigated firm, an investigating authority may be entitled
to reject/replace/adjust such costs. The same comment applies with respect to the existence of an
"association or compensatory arrangement" as referenced in Article 2.3.
13 See notably as the EU submissions as a party in EU – Biodiesel and the EU third party submissions in
Ukraine – Ammonium Nitrate and Australia – A4 copy paper.

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15. A value is normal when it results from the normal operation of the market forces of supply and
demand. Therefore, in any situation in which a particular item of data has been lawfully rejected
as distorted and unreliable because it does not result from the normal operation of the market
forces of supply and demand, such item of data does not need to be brought back into the
calculation pursuant to Article 2.2.1.1. This is a simple matter of common sense: if a data-point
is distorted and unreliable that must be so for the dumping calculation as a whole.
16. Consequently, an investigating authority is permitted, and may even be required, to reject,
replace or adjust the costs of production in the records of the investigated firm if those costs are
unsuitable to serve as the basis for calculating a constructed normal value due to a "particular
market situation".14
2.2. The relationship between the term "normally" and the two conditions for
considering records kept by exporters as contained in Article 2.2.1.1
17. The European Union is not convinced by the reasoning provided by the panel for interpreting
Article 2.2.1.1 as it did with respect to the relationship between the term "normally" and the
two explicit conditions for considering records kept by exporters.15
18. Because relying on "normally" to reject a company's records constitutes a departure from the
"default" rule under Article 2.2.1.1 to use the records, the investigating authority can only do so
where it finds a compelling reason to do it. The European Union would not exclude that there
may be cases where particular factual circumstances or due process considerations would also
justify the need for an investigating authority to provide explanation concerning compliance with
the explicit conditions in the context of setting out the reasons for rejecting the records based
on circumstances that are not normal or ordinary, but it is not readily apparent why this would
flow from an obligation to "give meaning to the whole of the obligation in Article 2.2.1.1". Beyond
such circumstances it would not a priori seem necessary to include extensive or even explicit
findings and reasoning with respect to the two explicit conditions in every case, provided it is
clear on which basis the investigating authority decided to reject the records16 and why and the
record confirms that compliance with the relevant conditions has been evaluated.17

14 The meaning of "particular market situation" was not subject to adjudication in EU – Biodiesel
(Argentina). See: Appellate Body Report, EU – Biodiesel (Argentina), footnote 120. The Panel in Australia –
Anti-Dumping measures on A4 Copy Paper observed that "[t]he phrase "particular market situation" does not
lend itself to a definition that foresees all the varied situations that an investigating authority may encounter
that would fail to permit a "proper comparison". In our view, the drafters' choice to use such a phrase should
be treated as a deliberate one. Consequently, while the expression "particular market situation" is constrained
by the qualifiers "particular" and "market", it nevertheless cannot be interpreted in a way that comprehensively
identifies the circumstances or affairs constituting the situation that an investigating authority may have to
consider".), See Panel Report, Australia – Anti-Dumping measures on A4 Copy Paper, paragraphs 7.21.
15 Panel report, Australia – Anti-Dumping Measures on Paper, para. 7.117.
16 A respondent could not rely upon "implicit" findings, analyses, or considerations to substantiate a new
or different rationale to that articulated by the investigating authority in its determination (To this effect see
Panel Report, Korea – Stainless Steel Bars, para. 7.41)
17 It is accepted for example that Article 3.4 ADA allows an investigating authority to undertake an
"implicit analysis" of a factor, provided that the record contains evidence that the factor has been evaluated
(Panel Report, Pakistan – BOPP Film (UAE), para. 7.357).

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ANNEX C-4
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN
I. Challenges to expired measures
1. The Appellate Body stated in EC – Chicken Cuts that "as a general rule, the measures included
in a panel's terms of reference must be measures that are in existence at the time of the
establishment of the panel."1 This is because the WTO dispute settlement mechanism is not
intended to award compensat ion for disadvantages caused by past measures, but rather to
positively solve existing disputes.2
2. Japan considers that the core question a panel should examine when determining whether to
address the claims against anti -dumping or countervailing duty m easures is whether the
imposition of the anti -dumping or countervailing duties continued at the time of panel
establishment, and not whether each individual legal instrument had been withdrawn or
superseded at the time. This is because, even if determinati ons made in the context of an
original investigation have been superseded or "replaced" by an expiry review, certain of the
deficiencies in the original determinations may persist and call ongoing measures into question
where, for example, the investigatin g authority relied in its expiry review on the analysis or
determinations made in the original investigation. In such a scenario, the panel could examine
the alleged deficiencies of the original determination to the extent that it continues to affect
the o ngoing measures and provided that the relevant measures, including the original
determination, are properly identified in the panel request.
II. Panel's terms of reference
3. Article 7.1 of the DSU provides that a panel's terms of reference are based on the description
of the panel request.3 Article 6.2, in turn, requires that a panel request "identify the specific
measures at issue" and "provide a brief summary of the legal basis of the complaint sufficient
to present the problem clearly".
4. This means that, in this dispute, China was required to specify not only the measures it intends
to challenge but also what aspects of the challenged measures are, in its view, inconsistent
with the particular provisions of the Anti -Dumping and/or SCM Agreement.4 Accordingly, if
China intended to challenge the Australian investigating authority's conduct in expiry reviews,
it would have needed to cite to Article 11.3 of the Anti -Dumping Agreement, which is the
provision primarily governing expiry reviews, rather than Articles 2 and 3 of that Agreement,
which set out an authority's obligations in an original investigation. Although the interpretation
of Article 11.3 is to a certain extent informed by Articles 2 and 3, the obligations under the
former provision are clearly separate and distinct from those under the latter provisions.5
III. Calculation of "normal value" under Articles 2.1, 2.2, and 2.2.1.1 of the
Anti-Dumping Agreement and Article VI:1(b)(ii) of the GATT 1994
A. Interpretation of the word "normally" in the first sentence of Article 2.2.1.1
5. Article VI:1(b) of the GATT 1994 and Article 2.2 of the Anti-Dumping Agreement provide that,
where there is no comparable domestic price for the exported products at issue, an
investigating authority may rely on alternative bases for establishing their normal value,
including a formula based on "the cost of production [of the product] in the country of origin".
Article 2.2.1.1 further explains that when determining "the cost of production in the country
of origin", an investigating authority "normally" must calculate costs on the basis of records

1 Appellate Body Report, EC – Chicken Cuts, para. 156.
2 Article 3.7 of the DSU.
3 Appellate Body Report, EC – Selected Customs Matters, para. 131.
4 See Appellate Body Report, US – Carbon Steel, para. 127.
5 See Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 107.

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kept by the exporter or producer, "provided that" the records: (1) are in accordance with the
generally accepted accounting principles of the exporting country; and (2) "reasonably reflect
the costs associated with the production and sale of the product under consideration".
6. The deliberate insertion of the word "normally" in Article 2.2.1.1 indicates that, even where
the two conditions in the "provided that" clause are met, an investigating authority may
consider information or evidence other than the recorded costs in certain circumstances.
Interpreting this provision otherwise would render the term "normally" inutile and redundant,
which is clearly inconsistent with customary rules of treaty interpretation embodied in
(inter alia) Article 31 of the Vienna Convention on the Law of the Treaties. At the same time,
in order to give "meaning and effect" to the two conditions, and in light o f the ordinary
meaning of the word "normally", an investigating authority cannot freely disregard the records
where the two conditions are met. Rather, the investigating authority must provide a
"compelling reason" to deviate from its obligation to "normal ly" use the recorded costs and
rely on other sources of information.6
7. Japan does not presume to define what constitutes "a compelling reason" not to use the
recorded costs, but recalls that the costs calculated pursuant to Article 2.2.1.1 "must be
capable of generating [an appropriate] proxy" 7 for the normal value calculated pursuant to
Article 2.1. Article 2.1, in turn, defines the "normal value" as the "comparable price, in the
ordinary course of trade, for the like product when destined for consumption in the exporting
country".8 As the Appellate Body has explained, the term "ordinary course of trade" indicates
that the normal value must be compatible with "'normal' commercial practice" in the market
of the country of origin.9 In other words, calculation of the normal value under these provisions
appears to presume that the prices and/or costs to be used reflect the normal functioning of
the market.
8. Therefore, as an extreme example, if the prices of all inputs are determined arbitrarily by
government regulations, rather than through the normal functioning of the market in the
country of origin, there might be a "compelling reason" for an investigating authority to
exclude the recorded costs and to seek other information or evidence when calculati ng the
constructed normal value.
B. Evidence other than recorded costs an investigating authority may seek
under Article 2.2 of the Anti-Dumping Agreement
9. Articles 2.2 and 2.2.1.1 of the Anti-Dumping Agreement do not clearly stipulate what kinds of
information or evidence an investigating authority can use when it deviates from the general
rule under Article 2.2.1.1 to use recorded costs, nor do they limit the sources of information
or evidence to sources inside the country of origin.10
10. Japan submits that the phrase "the cost of production [of the product] in the country of origin"
in Article 2.2 and Article VI:1(b)(ii) of the GATT 1994 should be also interpreted in light of the
role of these provisions to provide an "appropriate proxy" for the price of the like product if it
were sold in the ordinary course of trade in the home market. Accordingly, Japan considers
that an investigating authority is not precluded from using out -of-country information if the
recorded costs do not reflect the normal functioning of the market and the out -of-country
information is more probative in arriving at the cost of production in the country of origin.11
11. Japan also understands that, given that out-of-country information may be used to "arrive at"
the cost of production in the country of origin, an investigating authority may be required to
make certain adaptations to that information as appropriate in the specific circumstances of
each case.12

6 Panel Report, Australia – Anti-Dumping Measures on Paper, para. 7.117.
7 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.24.
8 Emphasis added.
9 Appellate Body Report, US – Hot Rolled Steel, para. 140.
10 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.70.
11 Appellate Body Report, EU – Biodiesel (Argentina), paras. 6.70 and 6.81.
12 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.73.

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C. Article 17.6(ii) of the Anti-Dumping Agreement
12. Japan submits that the core question that a panel is required to answer under Article 17.6(ii)
of the Anti-Dumping Agreement is whether the interpretation of a particular term or provision
of the Anti-Dumping Agreement submitted by the party/investigating authority is permissible
in accordance with the customary rules of treaty interpret ation embodied in Articles 31 and
32 of the Vienna Convention.
13. Japan understands that this question has been focused on by the Appellate Body as well as
the arbitrators in Colombia – Frozen Fries , and in each case, it was found that the
interpretation of the relevant provisions asserted by the investigating authority was not
permissible under the rules of the pertinent rules of the Vienna Convention. 13 The question
that the Panel should examine in this dispute is not different from those done by the
Appellate Body and the arbitrators in the previous cases —whether Australia's interpretation
of Article 2.2.1.1 that is permissible under the rules of treaty interpretation in Articles 31 and
32 of the Vienna Convention.
IV. Whether an investigating authority may consider evidence not included in the
application when initiating an investigation
14. In deciding whether to initiate a countervailing duty investigation, an investigating authority
is not precluded from considering evidence other than that included in the application.
15. Pursuant to Articles 11.2 and 11.3 of the SCM Agreement, and Articles 5.2 and 5.3 of the
Anti-Dumping Agreement, the legal standard applicable when initiating a countervailing duty
or anti-dumping investigation is whether there is sufficient evidence to justify the initiation.14
In applying this legal standard to anti -dumping investigations, the panel in Guatemala –
Cement I pointed out that there is nothing in the Anti -Dumping Agreement that prevents an
investigating authority from seeking evidence other than that included in the application. 15
Similarly, the panel in Guatemala – Cement II stated that "one of the consequences of th[e]
difference in obligations [under Articles 5.2 and 5.3 of the Anti -Dumping Agreement] is that
investigating authorities need not content themselves with the information provided in the
application but may gather information on their own in order to meet the standard of sufficient
evidence for initiation in Article 5.3."16 Those interpretations of Articles 5.2 and 5.3 would
equally apply to Articles 11.2 and 11.3 of the SCM Agreement, which contain nearly identical
provisions.
16. The view that an investigating authority may consider evidence not included in the application
seems a lso consistent with the fact that, under Article 11.6 of the SCM Agreement and
Article 5.6 of the Anti-Dumping Agreement, the authority can even initiate an investigation on
its own initiative, without receiving a written application by a domestic industry at all.

13 The Appellate Body, US – Continued Zeroing, para. 270 (referring to the Appellate Body Report, US –
Hot Rolled Steel, para. 60) and paras. 267, 272-273 and 317; Article 25 Arbitration Award, Colombia – Frozen
Fries, paras. 4.14, 4.30 and 4.101.
14 SCM Agreement, Articles 11.2, 11.3; Anti-Dumping Agreement, Articles 5.2 and 5.3.
15 Panel Report, Guatemala – Cement I, para. 7.53.
16 Panel Report, Guatemala – Cement II, para. 8.62. (emphasis added)

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ANNEX C-5
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF MEXICO
1. Mexico appreciates the opportunity to express its views in this proceeding.
2. Mexico agrees with the following argument of Australia: "[a] holistic and proper interpretation
of Article 2.2.1.1 [of the Anti-Dumping Agreement] must take [the term] "normally" into account",1
and interpret it in a way that is not redundant and does not violate the principle of effectiveness.
This principle is recognized by t he WTO case law in several reports, including the Appellate Body
report in US – Gasoline.2
3. In previous proceedings, Mexico referred to the interpretations and findings of panels and the
Appellate Body according to which the obligation to calculate the costs based on the records kept by
the exporters or producers, prescribed by Article 2.2.1.1 of the Anti -Dumping Agreement, is not
absolute.
4. Article 2.2.1.1 of the Antidumping Agreement establishes the requirements that the records
of the exporter or pr oducer must comply with so that they can be used as the basis to calculate
costs in an antidumping investigation. In this regard, we note that the text of the article raises the
following two premises:
a) The first establishes that, normally, the costs will be calculated on the basis of the records
kept by the exporter or producer.
b) The second establishes that the aforementioned premise, will apply as long as two conditions
are met:
i. That the records of the exporter or producer are in accordance with the generally
accepted accounting principles (GAAP) of the exporting country; and
ii. that they reasonably reflect the costs associated with the production and sale of the
investigated product.
5. In other words, if the exporter or producer's records meet the above two conditions then, the
authority will normally use the exporter or producer's accounting records.
6. In Mexico's view, the term "normally", used in the first phrase of Article 2.2.1.1 of the
Anti-Dumping Agreement, implies that investigating authorities are not immediately required to use
the records of investigated exporters or producers, even if they comply with the two mentioned
conditions, namely, that they are compatible with the accounting principles of the exporting country,
and they reasonably reflect the costs associated with the production and sale of the considered
product. In fact, the term "normally" suggests that the investigating authorities are empowered to
analyze whether the use of the records of the investigated exporters or producers would lead to an
"abnormal" or "exceptional" result, even if the two aforementioned conditions were fulfilled, as well
as to approve or reject the records in accordance with the result of the analysis.
7. Therefore, Mexico considers that the conditioning term "normally" implies the existence of
circumstances other than the two conditions expressly indicated in Article 2.2.1.1 of the Antidumping

1 Australia's FWS, para. 182.
2 Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline (DS2),
p. 27:
"… One of the corollaries o f the "general rule of interpretation" in the Vienna Convention is that
interpretation must give meaning and effect to all the terms of a treaty. An interpreter is not free to
adopt a reading that would result in reducing whole clauses or paragraphs of a t reaty to redundancy or
inutility."

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Agreement, which permits an authority not to use of the records kept by the exporters or producers,
as it is not an absolute obligation.
8. Thereby, as Australia mentions in its submission, in the US – Clove Cigarettes case, the
Appellate Body concluded that, if an obligation is qualified by the adverb "normally", the referred
obligation admits some exemptions under certain circumstances.3
9. The term "normally" implies that there is a presumption in favor of the accounting records of
the producer or exporter to be considered for the calculation of costs as the preferred basis, but it
is a rebuttable presumption. In this context, if the records meet those conditions, and the authority
decides not to use them as a basis for the calculation then the consequence is that the authority
would have the burden of justifying the reasoning behind that decision.
10. This interpretation is in accordance with the Appellate Body interpretation in the EU – Biodiesel
(Argentina) case, in which it found that "[…] the authority is not prohibited from relying on
information other than that contained in the records kept by the exporter or producer, including in-
country and out-of-country evidence".4
11. With this, we conclude our intervention, we are happy to answer any question that the Panel
may have.

3 Appellate Body Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes
(DS406), para. 273. Retrieved by the Panel in China – Anti-Dumping and Countervailing Duty Measures on Broiler
Products from the United States (DS427), para. 7.161.
4 Appellate Body Report, European Union – Anti-Dumping Measures on Biodiesel from Argentina ,
para. 6.73.

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ANNEX C-6
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY
I. INTRODUCTION
Madam Chair, distinguished Members of the Panel,
1. Norway welcomes this opportunity to present its views on the issues raised in these
panel proceedings.
2. Before introducing Norway's views, we would like to take this opportunity to restate
Norway's stance on Russia's ongoing aggression against Ukraine.
3. Norway continues to strongly condemn Russia's egregious military attack on its
neighbour Ukraine. Russia's war of aggression against Ukraine constitute s a gross
violation of international law, the rules -based system which also underpins this
organisation and the dispute settlement mechanism. This military aggression is also
gravely hurting multilateral cooperation at a time when we need it more than ever.
4. We reiterate Norway's unwavering support for Ukraine's sovereignty and territorial
integrity, within its internationally recognised borders.
5. Now turning to the present proceedings, Norway did not present a written submission
to the Panel. Without taking a position on the facts of this dispute, Norway will
confine its statement to comment on what we consider to be some of the key issues
in the dispute. In this oral statement, Norway will therefore set out its views on the
proper legal inter pretation of Articles 2.2 and 2.2.1.1 of the Anti -Dumping
Agreement (hereinafter "ADA") in regards to this dispute.
II. ARTICLE 2.2 OF THE ADA: WHEN A PARTICULAR MARKET SITUATION RENDERS THE
DOMESTIC PRICES UNABLE TO PERMIT A PROPER COMPARISON
6. Article 2.1 of the ADA restates the obligation to ensure a proper comparison between
the export price and the normal value, and Article 2.2 provides details on how the
investigating authorities shall ensure price comparability where domestic sales do
not permit a proper comparison.
7. Among the limited circumstances where an external benchmark should be used to
ensure price comparability, Article 2.2 makes reference to situations where sales of
the like product destined for consumption in the domestic market of the exporting
country "do not permit a proper comparison" because of the "particular market
situation".
8. Norway submits that the mere existence of a "particular market situation" does not
in itself permit the investigating authority to disregard home market prices. The
wording of the provision establishes a link between the particular market situation
and the inability to provide a proper comparison. The term "because of" entails that
the situation with sales not permitting a proper comparison must be caused by either
"the particular market situation" or "the low volume of sales".
9. Reference is made to the panel's findings in Australia – Anti-Dumping Measures on
Paper para. 7.27: "Specifically, that domestic sales 'do not permit a proper
comparison' must be 'because of the particular market situation'. If domestic sales
do permit a proper comparison, then they cannot be disregarded as the basis for
normal value, regardless of the existence of the particular market situation and its
effects, whatever those may be".

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10. Moreover, the fact that the comma appears after the word "when" bundles and links
the alternative criteria "particular market situation" and "low volume of sales" to the
criterion of sales not permitting a proper comparison. It is clear that this criterion
must be applied to situations where there is a "particular market situation" or a "low
volume of sales". Otherwise, there would be no need for the provision to contain the
alternative of disregarding home market prices where there are no sales at all.
11. The nexus between the particular market situation or low volume of sales
respectively and the ability to permit a proper comparison is evident in the structure
of the paragraph; the first phrase of the first sentence concerns situations where
there are no sales and naturally there can be no "such sales" permitting a proper
comparison. The second phrase is prefaced by "or", which creates a distinction from
the first phrase and separates the information after the first comma. This, in turn
enables application of the criterion of "do not permit a proper comparison" only to
the second phrase. If this criterion was not meant to be used for both alternatives,
the provision would have been drafted by each of the criteria separated by comma
and using "or" before the last alternative.
12. Hence, a literal interpretation of the provision indicates that the criterion of "do not
permit a proper comparison" should be applied to both alternatives under the second
phrase of the sentence.
13. Norway therefore agrees with Brazil, as argued in its third party written submission,1
that governmental actions are relevant only if they create market distortions that do
not permit a proper comparison of domestic and export prices.
III. ARTICLE 2.2.1.1 OF THE ADA: THE POSSIBILITY OF REJECTING THE EXPORTER'S OR
PRODUCERS'S COST OF PRODUCTION AND RESORTING TO AN EXTERNAL BENCHMARK
WHEN CALCULATING NORMAL VALUE
14. Turning now to Article 2.2.1.1 of the ADA, and the detailed rules on how to establish
the "cost of production" of the exporter or producer under investigation, the plain
text of Article 2.2.1.1 of the ADA makes clear that the cost of production shall
"normally" be based on records kept by the exporter that reasonably reflect the
actual cost of production in the exporting country.
15. The ordinary meaning of the adverb "normally" suggests "[u]nder normal or ordinary
conditions; ordinarily; as a rule". 2 The Appellate Body confirmed in US – Clove
Cigarettes that "the qualification of an obligation with the adverb 'normally' …
indicates that the rule … admits derogation" under conditions that are not "normal"
or "ordinary".3
16. The panel in Australia – Anti-Dumping Measures on Paper clarified the relationship
between "normally" and the other two conditions in the article. The panel concluded
that "in relying on 'normally', the investigating authority should give meaning to the
whole of the obligation in Article 2.2.1.1, first sentence, and should therefore
examine whether the records satisfy the two explici t conditions and provide a
satisfactory explanation as to why, nonetheless, it finds compelling reasons to
disregard them".4
17. To give meaning to the whole of Article 2.2.1.1, it is necessary to include the
obligation to justify any deviations from using the domestic market price. As laid out
by the panel in China – Broiler Products , "the use of the term 'normally' in

1 Brazil's written third party submission, para. 7.
2 The New Shorter Oxford English Dictionary, 4th edition, L. Brown (ed.) (Oxford University Press, 1993),
Vol. 2, p. 1940.
3 Appellate Body Report, US – Clove Cigarettes, para. 273.
4 Panel Report, Australia – Anti-Dumping Measures on Paper, para. 7.117

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Article 2.2.1.1 means that an investigating authority is bound to explain why it
departed from the norm and declined to use a respondent's books and records".5
18. As stated by the Appellate Body in US – Anti Dumping and Countervailing Duties
(China) the "investigating authority may reject in-country private prices if it reaches
the conclusion that these are too distorted due to the predomi nant participation of
the government as a supplier in the market".6 The determination to reject the actual
costs of the producer must be specific to the exporter or producer in question, and
to the cost factors in question, and based on positive evidence together with a
reasoned explanation of the compelling reasons for the rejection.
19. Investigating authorities should, consequently, be mindful that it is not sufficient to
determine that the government has a substantial presence in a given market to
authorise resort to an out -of-country benchmark. It is also necessary to determine
that the said presence distorts prices for inputs through the chain of production in
such a compelling way that all domestic prices available for comparison would not
properly reflect prevailing market conditions.
IV. CONCLUSION
20. Norway respectfully requests the Panel to take account of the considerations laid out
in this statement when evaluating the claims set forth in this dispute.
21. Madam Chair, distinguished Members of the Panel, this concludes Norway's
statement today. Thank you for your attention.

5 Panel Report, China Broiler Products, para. 7.161
6 Appellate Body Report, US – Anti Dumping and Countervailing Duties (China), paras. 446-447.
Emphasis added.

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ANNEX C-7
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE RUSSIAN FEDERATION
I. Introduction
1. The Russian Federation exercises its right to participate in these proceedings as a third party
because of its sys temic interest in the correct and consistent interpretation and application of the
covered agreements, in particular the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 (hereinafter "the Anti -Dumping Agreement") and the
Agreement on Subsidies and Countervailing Measures (hereinafter "the SCM Agreement"). Whilst
not taking a final position on the specific facts of this case, the Russian Federation will provide its
views on the legal claims and arguments advanced by the parties to the dispute, to the extent they
concern the interpretation of Articles 2.2, 2.2.1.1 and 2.2.1 of the Anti -Dumping Agreement and
Article 14(d) of the SCM Agreement.
II. Proper interpretation of Articles 2.2, 2.2.1.1 and 2.2.1 of the Anti -Dumping
Agreement
2. To start with, the Russian Federation concurs with China that interpretation of any treaty
provision is to be conducted "in accordance with the general rule of interpretation set out in Article 31
of the Vienna Convention […] reinforce d by Article 3.2 of the Dispute Settlement Understanding".
The words actually used provide the basis for an interpretation that must give meaning and effect
to all its terms.1 Importantly, "provisions of the Anti-Dumping Agreement are explicit regarding the
permissibility of disregarding certain matters." 2 Thus, the starting point in treaty interpretation is
the text of the relevant treaty provision. In this regard, Article 17.6(ii) of the Anti -Dumping
Agreement does not provide an excuse to deviate from the rules, as a permissible interpretation in
the sense of Article 17.6(ii) of the Anti -Dumping Agreement may be only the one that "is found to
be appropriate after application of the pertinent rules of the Vienna Convention".
Article 2.2.1.1 of the Anti-Dumping Agreement
3. The Russian Federation submits that Australia's position that the circumstances of the
underlying investigations "were not normal or ordinary" within the meaning of Article 2.2.1.1 of the
Anti-Dumping Agreement 3, as well as understanding under these circumstances "government
intervention" in domestic steel and steel input market 4 stem from the legally flawed thesis. This
Australia's reliance on Article 2.2.1.1 of the Anti-Dumping Agreement has no legal value and must
be rejected by the Panel for the reasons set forth below.
4. First, as a starting point it should be stressed that dumping is "the result of the pricing
behaviour of individual exporters or foreign producers". 5 From this follows the only true conclusion
that it is the way the investigated exporters (producers) establish the prices for their products which
must be taken into account when determining dumping. Dumping cannot be established based on
the factors that are beyond the control of the investigated producer or exporter. Otherwise, the
letter and spirit of the Anti-Dumping Agreement will be made null and void.
5. Second. the term "reasonably" in Article 2.2.1.1 qualifies "the reproduction or
correspondence of the costs".6 The words "reasonably reflect" refer to "such records". 7 Taking into
account the structure of Article 2.2.1.1 of the Anti -Dumping Agreement, a nd that the words

1 Appellate Body Report, Japan – Alcoholic Beverages II, p. 17.
2 Appellate Body Report, US – Continued Zeroing, para. 286.
3 See, inter alia, Australia's FWS, paras. 5, 155, 179, 191-192, 198.
4 See, inter alia, Australia's FWS, paras. 6-7, 179, 209, 218-219.
5 Appellate Body Report, EU – Biodiesel (Argentina), fn. 130 (referring to Appellate Body Reports, US –
Zeroing (Japan), paras. 111 and 156; US – Zeroing (EC), para. 129; and US – Stainless Steel (Mexico),
6 Ibid.
7 Ibid.

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"reasonably reflect" precede the words "costs associated with the production and sale of the product
under consideration", "it is clear that it is the 'records' of the individual exporters or producers under
investigation that are subject to the condition to 'reasonably reflect' the 'costs'". 8 Therefore, the
second condition of the first sentence of Article 2.2.1.1 requires examination of "whether the records
kept by the exporter or producer suitably and sufficiently correspond to or repr oduce those costs
incurred by the investigated exporter or producer that have a genuine relationship with the
production and sale of the specific product under consideration".9
6. From all this it clearly follows that "there is no additional or abstract s tandard of
'reasonableness' that governs the meaning of 'costs' in the second condition in the first sentence of
Article 2.2.1.1".10 The Appellate Body in Ukraine – Ammonium Nitrate (Russia) confirmed that "the
examination under the second condition in the first sentence of Article 2.2.1.1 is not one that pertains
to whether the costs contained in the records are not reasonable because, for instance, they are
lower than those in other countries".11 Article 2.2.1.1 of the Anti-Dumping Agreement concerns with
the quality of records of "the exporter or producer under investigation" and the proper allocation of
costs, and not with the government regulation. This provision does not permit any analysis related
to "competitive market costs" or "government regulation".
7. In violation of applicable WTO rules Australian investigating authorities simply imported into
the first sentence of Article 2.2.1.1 of the Anti-Dumping Agreement additional inquiries as to whether
the records contain the so called "competitive m arket costs". 12 Such an inquiry is contrary to
Article 2.2.1.1 of the Anti-Dumping Agreement. The first sentence of Article 2.2.1.1 does not contain
such words and phrases as "competitive", "market", "government" or "effect". There are also no
words in th e text of the Anti -Dumping Agreement suggested by some third parties such as:
"governmental actions" ; " a normal value"; "normal operation of the market forces of supply and
demand"; "a particular market situation"; "distorted and unreliable" data ; "norma l commercial
practice"; "normal commercial conditions"; "would -be market price of the final product"; "well -
functioning market"; "government regulation"; "third-country input prices"; "abnormal conditions";
"government interference"; "normal commercial pri nciples"; "commercial conception of costs";
"economically meaningful data". In the absence of the textual support for such inquiries, a treaty
interpreter must not import into a treaty and its provisions concepts that were not intended, 13 and
other words which are not there.
8. The first sentence of Article 2.2.1.1 of the Anti-Dumping Agreement contains the rule for the
calculation of the cost of production and sale of the specific product under consideration. The
first sentence of Article 2.2.1.1 stipula tes that "costs shall normally" be calculated on the basis of
records kept by the exporter or producer under investigation, provided that such records meet
two conditions: (i) they are in accordance with the generally accepted accounting principles of the
exporting country and (ii) they reasonably reflect the costs associated with the production and sale
of the product under consideration.
9. Accordingly, when both conditions of the first sentence of Article 2.2.1.1 are met, as a general
and legally binding rule, an investigating authority must calculate the cost of production and sale of
specific product under consideration based on the records kept by investigated producer (exporter).
This is the only permissible interpretation of the first sentence of Article 2.2.1.1 within the meaning
of Article 17.6(ii) of the Anti-Dumping Agreement.
Meaning of the term "normally"
10. The Russian Federation notes Australia's position that there is an open list of circumstances
under the term "normally" in Article 2.2.1.1 of the Anti -Dumping Agreement permitting an
investigating authority to reject the correctly recorded costs. 14 In particular, Australia alleges that

8 Ibid.
9 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.26. (emphasis added).
10 Appellate Body Report, Ukraine – Ammonium Nitrate (Russia), para. 6.102 (referring to. Appellate
Body Report, EU – Biodiesel (Argentina), para. 6.37 and 6.56).
11 Appellate Body Report, Ukraine – Ammonium Nitrate (Russia), para. 6.102.
12 See, for example, China's FWS, paras. 76, 162-163, 167, 178-180.
13 Appellate Body Report, India – Patents (US), para. 45.
14 See, for example, Australia's FWS, paras. 180, 189.

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"Article 2.2.1.1 expressly authorises an investigating authority to depart from an exporter's records
in circumstances which are not 'normal'".15 This position is legally flawed.
11. First, the dictionary meaning of the adverb "normally" is "[i]n a regular manner; regularly;
[u]nder normal or ordinary conditions; as a rule". 16 The auxiliary ve rb "shall" indicates that this
provision is of mandatory character as the word "'shall" is commonly used in legal texts to express
a mandatory rule". 17 Thus, according to the general rule set forth in the first sentence of
Article 2.2.1.1 of the Anti-Dumping Agreement, the costs of production and sale of the product under
consideration shall be calculated on the basis of records kept by the investigated producers and
exporters provided that these records meet the two conditions of the first sentence.
12. Second, the immediate context of the first sentence of Article 2.2.1.1 of the Anti -Dumping
Agreement exclusively touches upon accounting and reporting practices which may make it difficult
for an investigating authority to ascertain all costs actually incu rred by the investigated producers
and exporters of the specific product under consideration. This once again emphasizes that
Article 2.2.1.1 of the Anti-Dumping Agreement is focused on accounting and reporting practices of
actual costs of production of the specific product under consideration.18
13. Third, the Anti -Dumping Agreement addresses pricing behavior of foreign exporters or
producers, which is a different situation from the one addressed by the SCM Agreement (conferring
benefit to the recipient by government).19 Article 1 of the Anti -Dumping Agreement and Article 10
of the SCM Agreement support this understanding.
14. Fourth, neither Article 2, nor other provisions of the Anti -Dumping Agreement mention the
term "input" or "input prices". According to Article 2.1 a product is being dumped when it is
"introduced into the commerce of another country" at an export price that is " less than its normal
value". There is no textual support in the Anti-Dumping Agreement for the assessment of prices for
inputs in determination of the normal value.
15. Fifth, Article 2.2 of the Anti -Dumping Agreement provides mandatory rule for constructi ng
the normal value on the basis of the cost of production of the like product in the country of origin.
Article 2.2 of the Anti -Dumping Agreement does not provide for any possibility to construct the
normal value based on the out-of-the-country data. Just the opposite – there is mandatory obligation
to construct the normal value on the basis of the cost of production in the country of origin as
is.
16. Sixth, contrary to certain views expressed in this proceeding, the existence of "the particular
market situation" does not give carte blanche to investigating authorities. Even in cases when sales
do not permit a proper comparison because of the particular market situation and an investigating
authority resorts to the second alternative method to construct the normal value, the latter shall be
based on the cost of production in the country of origin. There is no way to reject costs in the country
of origin and substitute them with prices outside the country of origin in constructing the normal
value.
17. Seventh, it is appropriate to recall that "provisions of the Anti -Dumping Agreement are
explicit regarding the permissibility of disregarding certain matters". 20 Only limited number of
explicit provisions, such as the second Ad Note to Article VI:1 of the GA TT 1994 (which is
incorporated by reference into the Anti-Dumping Agreement through Article 2.7 thereof), can provide
the legal basis for an investigating authority to use prices or costs other than those in the country
of origin of the product under consideration. Such provisions suggest "that their drafters considered

15 Australia's FWS, para. 180. (emphasis added)
16 Oxford English Dictionary, entry for the word "normally", accessed January 25, 2023,
https://www.oed.com/view/Entry/128277?redirectedFrom=normally#eid..
17 Appellate Body Report, EC – Fasteners (China), para. 316.
18 See Panel Report, EС – Salmon (Norway), para. 7.483.
19 See Appellate Body Reports, US – Anti-Dumping and Countervailing Duties (China), para. 568.
20 Appellate Body Report, US – Continued Zeroing, para. 286 (referring to the Appellate Body Report,

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explicit derogations to be needed in order to allow investigating authorities to use prices or costs
other than those prevailing in the country of origin".21
Articles 2.2.1.1 and 2.2.1 of the Anti-Dumping Agreement
18. The Russian Federation agrees with China that "Article 2.2.1.1 is relevant in relation to the
OCOT determination under Article 2.2.1, in that Article 2.2.1.1 contains the specific requirements
with respect to the determination of cost "[f]or the purpose of paragraph 2", to which Article 2.2.1
belongs".22 The introductory phrase in Article 2.2.1.1 states that it applies to "[p]aragraph 2" which
covers, inter alia , Article 2.2.1 of the Anti -Dumping Agreement, and thus these pro visions are
related. In EU – Biodiesel (Argentina) the Appellate Body explained that Articles 2.2.1 and 2.2.1.1
are connected as they "elaborate on various aspects of Article 2.2" of the Anti-Dumping Agreement.23
The panel in EC – Salmon (Norway) recognized that the rules for calculating the costs used in a
determination under Article 2.2.1 are found in Article 2.2.1.1. 24 In Ukraine – Ammonium Nitrate
(Russia), on the basis of the text of these provisions, the panel held that "costs used in the
ordinary-course-of-trade test under Article 2.2.1 must be consistent with Article 2.2.1.1". 25
Otherwise, it is "likely to create systemic problems as in conducting their ordinary -course-of-trade
test under Article 2.2.1.1 investigating authorities would be free to use a cost of production
calculated inconsistently with Article 2.2.1.1, thereby frustrating the very purpose of this test". 26
Therefore, Australia's ordinary -course of trade determination to the extent it relied on costs
calculated inconsistently with Ar ticle 2.2.1.1 breached its obligations under Article 2.2.1 of the
Anti-Dumping Agreement.
Article 2.2 of the Anti-Dumping Agreement
19. Article 2.2 of the Anti -Dumping Agreement explicitly requires, inter alia , to construct the
normal value on the basis of "the cost of production in the country of origin". The obligation in
Article 2.2 of the Anti-Dumping Agreement is of a mandatory nature because it uses the word "shall"
which is "commonly used in legal texts to express a mandatory rule".27
20. Hence, Article 2.2 of the Anti -Dumping Agreement expressly requires the cost of production
both to be assessed on the basis of, and to be based on, the costs that exist in the country where
the investigated exporter or producer produces the product under c onsideration. There is no
possibility to interpret the phrase "the cost of production in the country of origin" in a way that would
allow an authority to substitute the production costs in the country of origin with the extraneous
prices/costs/data obtained from third countries that are not the costs of production in the country
of origin.
21. The Russian Federation agrees with China that there is a hierarchical relationship between
Article 2.2 and its subparagraphs, and the clear discipline of Article 2.2. 28 The hierarchical
relationship is expressed in the fact that "even where an investigating authority is justified in not
calculating production costs on the basis of the exporter's or producer's records under the
first sentence of Article 2.2.1.1, it remains subject to the disciplines set out in Article 2.2, including
its relevant subparagraphs, regarding the construction of normal value".29
Conclusions
22. Therefore, Articles 2.2.1.1, 2.2.1 and 2.2 of the Anti -Dumping Agreement prescribe an
obligation f or the investigating authority to calculate costs based on the costs associated with
production and sale of the product under consideration in the country of origin. Thus, Australian

22 China's FWS, para. 126.
23 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.14.
24 Panel Report, EC – Salmon (Norway), para. 7.252; Panel Report, Ukraine – Ammonium Nitrate
(Russia), para. 7.116.
25 Panel Report, Ukraine – Ammonium Nitrate (Russia), para. 7.116.
26 Ibid. (emphasis added)
27 Appellate Body Report, EC – Fasteners (China), para. 316.
28 China's FWS, para. 100.
29 Appellate Body Report, Ukraine – Ammonium Nitrate (Russia), para. 6.89. (emphasis added)

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investigating authorities acted inconsistently with obligations under Art icles 2.2, 2.2.1.1 and 2.2.1
of the Anti-Dumping Agreement.
III. Proper interpretation of Article 14(d) of the SCM Agreement
23. The Russian Federation submits that deviation from in-country prices as a primary benchmark
for the calculation of a benefit from provision of goods "made for less than adequate remuneration"
under Article 14(d) of the SCM Agreement is possible in strictly limited circumstances and must meet
very high evidentiary threshold. Such a recourse to an alternative benchmark must be made only
after the investigating authority has established that, first, in-country prices are distorted as a result
of the government intervention and, second, distortion is so significant that the prices cannot reflect
the prevailing market conditions. More specifically, before proceeding to use the alternative
benchmark, the investigating authority must establish that the government's role is so predominant
that it effectively determines the price of the goods in question". 30 Establishing plain presence of
government intervention, as well as mere likelihood of the distortion, would not suffice. To interpret
Article 14(d) of the SCM Agreement as proposed by Australia would amount to a manifest lowering
of this standard. Therefore, allegations by Australia wit h respect to Article 14(d) of the SCM
Agreement are unfounded and must be rejected in their totality.

30 Appellate Body Report, US - Countervailing Measures (China) (Article 21.5 – China), para. 5.147.

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ANNEX C-8
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED KINGDOM
I. INTRODUCTION
1. The United Kingdom welcomes the opportunity to participate as a third party in this dispute.
During the course of the proceedings, the United Kingdom provided the Panel with its views on the
legal interpretation of certain provisions of the Agreement on Implementation of Article VI of th e
General Agreement on Tariffs and Trade 1994 (the "Anti-Dumping Agreement").
2. Fundamentally, the United Kingdom's position is that the term "normally" in Article 2.2.1.1
of the Anti -Dumping Agreement provides flexibility to an investigating authority to , in certain
circumstances, not use costs in records kept by a producer or exporter under investigation when
constructing normal value. Logically, it must follow that, having been permitted to not use those
costs under Article 2.2.1.1, an investigating aut hority is then permitted to use out of country
information in order to calculate the cost of production under Article 2.2.
II. THE TERM "NORMALLY" IN ARTICLE 2.2.1.1 OF THE ANTI-DUMPING AGREEMENT
3. Article 2.2 of the Anti -Dumping Agreement allows an inves tigating authority to construct
normal value on the basis of "the cost of production in the country of origin plus a reasonable amount
for administrative, selling and general costs and for profits". Article 2.2.1.1 provides that, when
doing so, the "cost of production" shall "normally" be calculated on the basis of records kept by the
producer or exporter, provided that two conditions are met. These conditions are that such records
(1) "are in accordance with the generally accepted accounting principles of the exporting country"
and (2) "reasonably reflect the costs associated with the production and sale of the product".
4. The United Kingdom considers that the ordinary meaning of the term "normally" in
Article 2.2.1.1, understood in light of its context, and in light of the object and purpose of the
Anti-Dumping Agreement, does not require an investigating authority to calculate costs on the basis
of records kept by a producer or exporter in all cases, even where the two conditions in that provision
are met.
5. The ordinary meaning of the term "normally" is "under normal or ordinary conditions".1 The
effect of the phrase "provided that" in the same sentence is that, where the two conditions (which
follow that phrase) are satisfied, costs should "normally" be calculated on the basis of records kept
by the exporter or producer under investigation. Even if the two conditions are satisfied, however,
the term "normally" provides flexibility to deviate from this methodology if conditions are not normal
or ordinary.
6. The context of the Anti-Dumping Agreement lends further support to this interpretation. The
Anti-Dumping Agreement contains five provisions that use the phrase "provided that" and an
obligation introduced by the verb "shall". 2 Only two of these fi ve provisions also contain the term
"normally";3 this indicates the term was deliberately included to add meaning.4
7. Finally, the object and purpose of Article 2 of the Anti -Dumping Agreement supports this
interpretation. The purpose of constructing no rmal value is to establish that value "through an
appropriate proxy for the price of the like product in the ordinary course of trade in the domestic
market of the exporting country when the normal value cannot be determined on the basis of
domestic sales. The costs calculated pursuant to Article 2.2.1.1 of the Anti -Dumping Agreement

1 Oxford English Dictionary definition of "normally, adv.", available at
https://www.oed.com/view/Entry/128277, accessed 28 March 2023.
2 Article 2.2, Article 2.2.1.1 (first sentence), Article 2.2.1.1 (second sentence), Article 9.5 and
footnote 2 of the Anti-Dumping Agreement.
3 Article 2.2.1.1 (first sentence), and footnote 2 of the Anti-Dumping Agreement.
4 See Panel Report, Australia – Anti-Dumping Measures on Paper, para. 7.115.

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must be capable of generating such a proxy".5 The need for costs to be an appropriate proxy supports
the interpretation that "normally" permits a Member not to use costs when doing so would not yield
an appropriate proxy.
8. This interpretation is consistent with previous panel and Appellate Body reports. The
Appellate Body has stated that "given the reference to 'normally' in the first sentence of
Article 2.2.1.1, we do not e xclude that there might be circumstances, other than those in the
two conditions set out in that sentence, in which the obligation to base the calculation of costs on
the records kept by the exporter or producer under investigation does not apply".6
9. If no such flexibility existed, then "normally" would be otiose. Such an interpretation would
be contrary to the principle of effectiveness in treaty law. The Appellate Body has recognised that it
is an important aspect of the general rule of interpretation under the Vienna Convention that
"interpretation must give meaning and effect to all the terms of a treaty".7
10. The United Kingdom agrees with Australia that a substantial proportion of suppliers selling
at below cost -recovery rates is an example of when a market does not operate under normal or
ordinary conditions. 8 Several provisions of the Anti -Dumping Agreement are predicated on the
assumption that all private companies set out to make a profit. For example, Article 2.2 explicitly
requires an investigating authority to add a "reasonable amount … for profits" alongside other
relevant costs. Similarly, in Article 2.2.1, where sales are made at a price below the cost of producing
that product (i.e. there is a negative profit margin), such sales "may be treated as not being in the
ordinary course of trade" where those sales are made over an extended period of time, in substantial
quantities and where the price does not provide for cost recovery within a reasonable period of time.
The United Kingdom therefore submits that a market dominated by loss -making firms does not
operate under conditions that can be considered normal or ordinary.
III. CALCULATING NORMAL VALUE USING THE "COST OF PRODUCTION IN THE
COUNTRY OF ORIGIN" UNDER ARTICLE 2.2 OF THE ANTI-DUMPING AGREEMENT
11. Article 2.2 of the Anti -Dumping Agreement requires that, where an investigating authority
constructs normal value based on costs of production plus administrative, selling and general costs
and profits, it must use the "cost of production in the country of origin". The United Kingdom submits
that where an investigating authority has established that the circumstances in the relevant market
are not normal or ordinary, and it is therefore not appropriate to use the records of the exporter or
producer, it follows that it is not required to use those same costs when constructing normal value
pursuant to Article 2.2.
12. Nothing in the text of Article 2.2 of the Anti-Dumping Agreement precludes an investigating
authority from relying on out-of-country information in constructing normal value. Article 2.2 should
also be read in light of the context provided by Article 2.2.1.1. While Article 2.2.1.1 establishes
records kept by a producer or exporter as the preferred source of pr oduction data, it does not
preclude the use of other data. 9 It expressly provides that two conditions must be met before
requiring an investigating authority to "normally" calculate costs of production "on the basis of
records kept by the exporter or prod ucer under investigation". In addition, as the United Kingdom
argues above, the term "normally" establishes that even where these two conditions in the first
sentence of Article 2.2.1.1 are met, an investigating authority may nevertheless reject exporters'
recorded costs; that is, where the circumstances are not normal or ordinary.
13. Article 2.2 requires that the costs used reflect the cost of production in the "country of
origin". This means that adjustments may be needed to out-of-country data to ensure that "country
of origin" costs are represented accurately. Which specific adjustments are required will vary from
case to case depending on factual circumstances relating to the product concerned, the particular

5 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.24 (emphasis added). See also Panel
Reports, EU – Biodiesel (Argentina), para. 7.233; Thailand – H-Beams, para. 7.112; US – Softwood Lumber V,
para. 7.278.
6 Appellate Body Report, Ukraine – Ammonium Nitrate, para. 6.105. See also Panel Report, Australia –
Anti-Dumping Measures on Paper, para. 7.115.
7 Appellate Body Report, US – Gasoline, p. 23.
8 Australia's first written submission, para. 201.
9 Appellate Body Report, EU – Biodiesel (Argentina), paras. 6.70-6.71.

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exporters or producers in question, and ot her relevant circumstances. While the investigating
authority is required to make adjustments to out -of-country costs in order to make them
representative of costs in the country of origin, it is not required to apply to the out-of-country costs
the very same conditions that made the exporter recorded costs not normal or ordinary.
14. Reading Article 2.2 alongside Article 2.2.1.1, and, particularly the term "normally" in the
latter, indicates that the necessary adjustments to out -of-country data need to mak e that data
representative of the costs of production in the country of origin, were the conditions in that country
to be normal and ordinary. This is the only harmonious interpretation of Articles 2.2 and 2.2.1.1.
Otherwise, the investigating authority wo uld be allowed to reject exporters' recorded costs where
conditions are not normal or ordinary, but must apply those very same abnormal conditions to the
replacement costs. The result would be an inappropriate normal value based on reported costs which
do not reflect normal and ordinary conditions.
15. This interpretation is also supported by the object and purpose of Article 2.2. The core
purpose of Article 2.2 is to ensure that the "normal value" to which the export price is compared is
such as to allow a proper comparison between these two values. In order to allow a proper
comparison, the "normal value" must be just that: "normal". A value which is either based on
unreliable or distorted information, or information that is made unreliable or distorted by
inappropriate adjustments, would not be "normal" and would not enable a proper comparison. This
would defeat the core purpose of Article 2.2.

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ANNEX C-9
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES
I. Article 17.6(ii) of the AD Agreement
1. As Australia noted in its first written submission, Article 17.6(ii) governs where a provision
has more than one "permissible" interpretation. At the end of the Uruguay Round negotiations,
Article 17.6(ii) was key to the acceptance of the other provisions of the AD Agreement. The existence
of such a provision confirms that Members were aware that the text of the AD Agreement could pose
particular interpretive challenges, at least in part because it was drafted to cover varying and
complex anti -dumping regimes and long -standing differences concerning methodology.
WTO Members agreed, therefore, that it would be a legal error not to respect a permissible
interpretation of the AD Agreement.
2. The question under Article 17.6(ii) is whether an investigating authority's interpretation of the
AD Agreement is a permissible interpretation. As the United States has explained for years,
"permissible" means just that: a meaning that could be reached under the Vienna Convention.
Article 17.6(ii) itself confirms that provisions of the AD Agreement may "admit[] of more than one
permissible interpretation." If that is the case and the investigating authority has relied upon one
such interpretation, a panel must find the measure to be in conformity with the AD Agreement. As
one panel report stated, "[I]n accordance with Article 17.6(ii) of the AD Agreement, if an
interpretation is 'permissible', then we are compelled to accept it."
3. The recent award by the arbitrators in Colombia – Anti-Dumping Duties on Frozen Fries from
Belgium, Germany and the Netherlands (DS591), provides an exemplar. The arbitrators in that
dispute seriously engaged with the text of Article 17.6(ii) and appropriately recognized that the
subparagraphs of Article 17.6 "must be understood in a manner granting special deference to
investigating authorities under the Anti-Dumping Agreement." That analysis addressed directly the
nature of treaty interpretation under the Vienna Convention and explained that a proper "approach
assumes, as the second sentence does, that different treaty interpreters applying the same tools of
the Vienna Convention may, in good faith and with solid arguments in support, reach different
conclusions on the 'correct' interpretation of a treaty provision." The arbitrators in that dispute went
on to note favorably the observation that the Vienna Convention rules "are facilitative not disciplinary
and do not 'instruct the treaty interpreter to find a single meaning of the treaty' as a former
Appellate Body member has written."
4. The ordinary meaning of "permissible" is "allowable" or "permitted" – that is, an interpretation
that could be reached under customary rules of interpretation. Thus, the Panel's task under
Article 17.6(ii) is to determine whether Australia's investigating authority relied upon an
interpretation that could be reached under customary rules of interpretation – and not whether
Australia's interpretation is the same as the one the Panel might reach first. With this standard in
mind, Australia's first written submission demonstrates that the interpretations underlying the
challenged AD and CVD determinations, at a minimum, satisfied that Article 17.6(ii) standard. For
example, as explained in the U.S. third -party submission and el aborated today, Australia's
investigating authority employed an interpretation of Articles 2.2 and 2.2.1.1 of the AD Agreement
that is based on the text of those provisions, and under the customary rules of interpretation reflects
a permissible interpretation.
II. Claims Concerning the AD Agreement
5. To begin with, the text of the Article 2.2 of the AD Agreement provides:

When there are no sales of the like product in the ordinary course of trade in the domestic
market of the exporting country or when, because of the particular market situation or the
low volume of the sales in the domestic market of the exporting country, such sales do not
permit a proper comparison, the margin of dumping shall be determined by comparison with
a comparable price of the like product when exported to an appropriate third country, provided
that this price is representative, or with the cost of production in the country of origin plus a
reasonable amount for administrative, selling and general costs and for profits.

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6. Notably, Article 2.2 of the AD Agreement specifies that alternatives to domestic market prices
may be used to find normal value when, because of a "particular market situation" or a "low volume
of ... sales in the domestic market of the exporting country," the domestic prices "do not permit a
proper comparison." Article 2.2 prescribes two alternative data sources that may provide for a
"proper comparison" whenever domestic market sales price data cannot be used to calculate normal
value: (1) "a comparable price" for the like product when exported to an "appropriate" third country,
provided the price is representative; or (2) the cost of production in the country of origin plus a
reasonable amount for administrative, selling, and general co sts and for profits. A key phrase in
Article 2.2 is "proper comparison," and the placement of this phrase in Article 2.2 reinforces that
normal value must be based on prices (or costs) that "permit a proper comparison." To understand
what a "proper comparison" entails, it is important to understand the framework of Article VI:1 of
the GATT 1994, which establishes the framework for Article 2 of the Anti-Dumping Agreement.
7. Understood correctly, Article VI:1 of the GATT 1994 establishes that the dumping comparison
requires comparable prices or costs. Article VI:1(a) establishes that dumping occurs when the price
of an exported product "is less than the comparable price, in the ordinary course of trade , for the
like product" in the home market. This suggests that "determining price comparability" under Article
VI:1 refers first to determining whether there is such a "comparable price, in the ordinary course of
trade." Without a "comparable price, in the ordinary course of trade," or suitable proxy, no dumping
comparison can be made. This applies to domestic prices, third -country export prices, and costs of
production (which include prices between input suppliers and the exporter or producer under
investigation).
8. The AD Agreement is, as its title suggests, a n agreement on the application of Article VI of
the GATT 1994 and, through Article 2, implements the principle of comparability set forth in
Article VI:1. For example, Article 2.1 of the AD Agreement establishes that "a product is to be
considered as being dumped, i.e. introduced into the commerce of another country at less than its
normal value, if the export price of the product being exported from one country to another is less
than the comparable price, in the ordinary course of trade, for the like prod uct when destined for
consumption in the exporting country." This text is nearly identical to Article VI:1 (specifically, the
second sentence and subparagraph (a)). Article 2.1 thus retains the key elements from Article VI:1
for domestic prices or costs to be used to calculate normal value. Specifically, there must be a
"comparable price, in the ordinary course of trade".
9. Thus, contrary to China's position, the text of Article 2.2 does not require that normal value
be constructed using the cost of produ ction in the country of origin. To the contrary, the "proper
comparison" text of Article 2.2 of the AD Agreement reflects that establishing normal value requires
a "comparable price, in the ordinary course of trade," and cannot be interpreted as preventing an
investigating authority from evaluating evidence that government interference affects the "proper
comparison" of prices or costs. Several examples from prior disputes also reflect that domestic price,
third-country export price, and cost of production may be considered not "a comparable price, in the
ordinary course of trade," when the evidence of record indicates they do not reflect normal
commercial principles: a price for a sale may not reflect the criteria of the marketplace; a price for
a sale migh t not reflect normal commercial practices, such as in relation to other terms and
conditions of sale; a price for a sale might be one established between related parties, rather than
a transaction between economically independent entities at market prices, and thus not reflect
normal commercial principles; or a price for the sale of an input used in the production of the product
under consideration may not be consistent with an arm's -length transaction price or reflect normal
commercial principles.
10. The above examples indicate that where normal commercial conditions do not prevail in the
marketplace, prices may not be "comparable". In these instances, Article 2.2 does not prohibit the
use of out-of-country information to evaluate recorded costs, or to adjust or replace recorded costs,
when formulating the appropriate cost for an individual producer. Indeed, prior DSB reports have
come to similar conclusions, and have not excluded the possibility that an investigating authority
may use information and evidence outside the country of origin to determine the prices in the country
of origin. Accordingly, the text of Article 2.2 does not preclude an investigating authority from looking
to sources outside the country of origin for information or evidence about costs associated with the
production of the product under consideration. The text likewise does not preclude the investigating
authority from using such information or evidence to determine an exporter's or producer's cost of
production in the country of ori gin. That the ADC evaluated sources outside China concerning the

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costs associated with the production of the products under consideration is not inconsistent with
Article 2.2 of the AD Agreement.
11. The United States agrees with Australia that the adverb "normally" must be understood in a
manner that does not render it "inutile and redundant." Specifically, the adverb "normally"
immediately follows the verb "shall" in the Article 2.2.1.1 phrase "costs shall normally be calculated."
In the context of a treaty provision, the verb "shall" is understood to indicate a mandatory obligation
or commitment. The adverb "normally" is generally defined as "[i]n a regular manner; … [u]nder
normal or ordinary conditions; as a rule, ordinarily." As such, the adverb "normally" moderates the
obligation established in the first sentence of Article 2.2.1.1, because while "normally" confirms that
"under normal or ordinary conditions" costs should be calculated on the basis of the records kept by
the exporter or producer under investigation," it also directs that where conditions are demonstrated
to be not normal or not ordinary, costs need not be calculated on the basis of these records.
12. By contrast, an interpretation that "normally" only refers to the two conditions in the first
sentence of Article 2.2.1.1 would render the adverb inutile and redundant. Together, the verb "shall"
and the conjunction "provided that" sufficiently reference the two conditions in the first sentence of
Article 2.2.1.1. Consistent with the principl e of effectiveness, it is redundant for the adverb
"normally" to do so as well. It is clear that the presence of the adverb "normally" instills a degree of
flexibility to the first sentence of Article 2.2.1.1 and expressly contemplates that there will be
instances when the evidence demonstrates that an investigating authority should not calculate costs
on the basis of the records kept by the exporter or producer, even when these records satisfy the
two conditions that follow the conjunction "provided that." If an investigating authority pursuant to
Article 2.2.1.1 decided not to use a respondent's books and records, it would need to "explain why
it departed from the norm" and "justify its decision on the record of the investigation and/or in the
published determinations." In this case, Australia has highlighted where in its determination the ADC
explained its departure from the norm. China has offered no argument as to how that explanation
and supporting record evidence failed to explain the ADC's departure, or how it breached the
"normally" condition of the first sentence of Article 2.2.1.1. In addition, the United States disagrees
with China's interpretation of the second condition in the first sentence of Article 2.2.1.1 of the
AD Agreement.
13. "For the purpose of paragraph 2" indicates that Article 2.2.1.1 should be read together with
Article 2.2. The costs calculated under Article 2.2 must be capable of generating "an appropriate
proxy for the price of the like product in the ordinary course of trade in the domestic market of the
exporting country when the normal value cannot be determined on the basis of domestic sales."
Given that the costs under Article 2.2.1.1 must be capable of generating an appropriate proxy to
allow for a proper comparison, "cost" refers to costs that reflect normal commercial principles
associated with producing the product in the exporting country and not simply the "cost" reflected,
for example, in an invoice price. That the costs are " associated with the production and sale of the
product under consideration" also supports a commercial conception of costs, because the term
"associated with" suggests a substantive connection between real economic costs and the production
or sale of the product under consideration. To suggest other wise would oblige investigating
authorities to accept, for example, artificial transfer prices between related parties – amounts that
have no economic meaning. Given that Article 6 addresses the examination of the records of an
investigated firm, it would be superfluous to read Article 2.2.1.1 as addressing the same issue.
Article 6.6 provides that investigating authorities "shall during the course of an investigation satisfy
themselves as to the accuracy of the information supplied by interested parties up on which their
findings are based." Article 6.7 provides investigating authorities with the ability to "verify
information provided or to obtain further details … [by] carry[ing] out investigations in the territory
of other Members as required." Article 6.8 provides that the absence of necessary information, which
assuredly includes accurate and actual data, may leave investigating authorities to make a
determination "on the basis of facts available." Since Article 6 provides for the examination of the
costs reported in the records kept by an investigated firm, interpreting the second condition of
Article 2.2.1.1 as also requiring an investigating authority to accept a reported cost just because it
matches such records reduces this condition to redundancy or inutility.
14. In sum, Article 2.2.1.1 of the AD Agreement, properly interpreted, does not mean that the
costs reported in the records kept by the exporter or producer under investigation must always be
used absent any consideration. To the contrary, an i nvestigating authority may examine such
records. That examination may include, inter alia, a consideration of whether the costs kept by the
exporter or producer under investigation do not "reasonably reflect" real, economically meaningful

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data associated with the production and sale of the product under consideration. In such a situation,
an unbiased and objective investigating authority would have a basis under the AD Agreement to
reject or adjust a cost that does not reflect normal commercial principles, so long as its determination
was based on a reasoned and adequate explanation.
15. A non-arm's-length sale illustrates one type of transaction where an investigating authority
may look beyond the four corners of a respondent's records and determine whether the transaction
does not "reasonably reflect" all costs incurred in respect of the production and sale of the product,
because the reported price may fail to accurately and reliably reflect the interaction between
independent buyers and sellers. The autho rity under Article 2.2.1.1 to reject a non -arm's-length
transaction from a respondent's records thus makes clear that "costs" that are "associated with" the
production and sale of a product must be understood as costs that "suitably and sufficiently
correspond to or reproduce the costs that have a genuine relationship with the production and sale
of the specific product under consideration."
16. Similar to a non -arm's-length sale, State interference by an exporting Member in the
marketplace may generate rec ords that do not reasonably reflect costs associated with the
production and sale of the product under consideration within the meaning of the second condition
of Article 2.2.1.1. When the normal value cannot be determined on the basis of domestic sales, the
costs calculated under Article 2.2.1.1 must be capable of generating an appropriate proxy for the
price of the like product in the ordinary course of trade in the domestic market of the exporting
country. Like the situation in which parties to a transaction are related, where a State intervenes in
the marketplace to interfere with the ability of buyers and sellers to enter into transactions according
to their own commercial interests, "there is reason to suppose that the sales price might be fixed
according to criteria which are not those of the marketplace". The context provided by other
provisions in Article 2.2 also undermines China's suggested interpretation. Where the AD Agreement
refers to costs "actually incurred by producers," it does so explicitly. For administrative, selling, and
general costs, Article 2.2.2(i) references "the actual amounts incurred and realized by the exporter
or producer in question." Similarly, Article 2.2.2(ii) uses an express limitation to "the actual amounts
incurred and r ealized by other exporters or producers." Given the express language in
Articles 2.2.2(i) and 2.2.2(ii), Article 2.2.1.1 cannot be read to limit "costs" to those actually incurred
in the way envisioned by China.
17. For the above reasons, the focus of the Panel's inquiry in this matter should be on whether
Australia's findings for rejecting input costs, based on the facts and circumstances of its
investigation, is one that could have been reached by an objective and unbiased investigating
authority. An investigating authority may examine whether a respondent's recorded costs "suitably
and sufficiently correspond to or reproduce the costs that have a genuine relationship with the
production and sale of the specific product under consideration." It would be incongruous to consider
that Australia was prohibited from examining whether those same steel costs reasonably reflect the
costs associated with the production and sale of the product under consideration for purposes of
constructing normal value under Article 2.2.1.1.
18. The United States notes that China's erroneous interpretation of Article 2 contradicts the
practice of its own investigating authority. In its antidumping practice, it has resorted to out -of-
country cost information to establish normal valu e. It has done so without regard to the exporting
respondents' reported price and cost information in the exporting country, and on the basis of
purported government intervention in the exporting country. That China's positions before the Panel
conflict wi th the practice of its investigating authority underscores that those positions are not
consistent with the text of Articles 2.2 or 2.2.1.1.
III. Claims Concerning the SCM Agreement
19. From Australia's request for a preliminary ruling, the United States understands China's claims
to concern CVD measures on stainless steel sinks that terminated before the Panel was established,
and that therefore are outside the Panel's terms of reference. For completeness, the United States
will also briefly comment on China's claims regarding Article 2.1(c) and 14(d) of the SCM Agreement,
which rely upon incorrect interpretations of those provisions.
20. Article 14(d) of the SCM Agreement reflects that an investigating authority has scope in
selecting an appropriate bench mark to consider the particular circumstances presented in an

BCI deleted, as indicated [[***]]

investigation. Although an investigating authority should first consider proposed in -country prices
for the good in question, it would not be appropriate to rely on such prices if, as a result o f
government intervention in the market, they are not market-determined. Government intervention
may distort in -country prices in a variety of ways – e.g., by administratively setting the price,
through the government's participation as a buyer or seller, or where the government is the
predominant supplier of a good. In this regard, it is not surprising that an investigating authority
might rely on out -of-country benchmarks to calculate the benefit from inputs provided by the
Government of China for less th an adequate remuneration. The reliability of Chinese in -country
prices was of sufficient concern to Members that China's Accession Protocol recognizes that such
prices within China might not always be appropriate benchmarks. Specifically, Article 15(b) sta tes,
"if there are special difficulties in [applying the relevant provisions of the SCM Agreement], the
importing WTO Member may then use methodologies for identifying and measuring the subsidy
benefit which take into account the possibility that prevailing terms and conditions in China may not
always be available as appropriate benchmarks." The text of Article 14(d) contradicts China's
position that the ADC was not permitted, in evaluating the extent of benefit, from comparing Chinese
prices to an appropriate out-of-country benchmark.
21. China's argument that the ADC was required to identify a formal "subsidy program"
implemented through a plan or scheme is not supported by the text of Article 2.1 of the
SCM Agreement. Specifically, nothing in the text of Article 2.1(c) requires an investigating authority
to identify a "subsidy program" that is formally set out in a plan or scheme. Article 2.1(c) provides
that one of the "factors" that "may be considered" as p art of de facto specificity analysis is "use of
a subsidy programme by a limited number of certain enterprises." As China points out, in the original
CVD investigation, the ADC identified in its specificity analysis the "program" at issue. China argues
that the systematic granting of financial contribution to a limited group of producers of subject
merchandise, as outlined by the ADC, did not suffice under Article 2.1(c) because it did not evince
a plan or scheme of some kind. However, China identifies neither the additional evidence of a "plan
or scheme" that the ADC was required to cite nor the basis under Article 2.1(c) for such a
requirement. China does not identify a basis for the Panel to find that ADC's de facto specificity
determination was inconsistent with the text of Article 2.1(c). If the Panel reaches the substance of
China's claim (i.e., determines the claim to be within its terms of reference, despite the measure
having been terminated), then it would need to evaluate whether an unbiased and ob jective
investigating authority could have reached the conclusion that the subsidies conferred to the
Chinese producers in question were limited in use.