UNITED STATES – LAWS, REGULATIONS AND METHODOLOGY FOR CALCULATING DUMPING MARGINS ("ZEROING")
Document: Report of the Appellate Body
Date: 18 April 2006
Document codes: WT/DS294/AB/R
Complainant: EU
Respondent: U.S.
Third parties: Argentina, Brazil, China, Taiwan, Hong Kong, India, Japan, South Korea, Mexico, Norway, Thailand, Turkey
Dispute stage: Implementation & Compliance
Agreements cited: Art. 1, 2.1, 2.4, 5.8, 9.1, 9.3, 9.5, 11  Anti-dumpingArt. VI  GATT 1994Art. 18.4  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade OrganizationArt. 3  Anti-dumping

UNITED STATES – LAWS, REGULATIONS AND
METHODOLOGY FOR CALCULATING
DUMPING MARGINS ("ZEROING")

AB-2006-2

Report of the Appellate Body

APPELLATE BODY

European Communities, Appellant/Appellee
United States, Appellant/Appellee

Argentina, Third Participant
Brazil, Third Participant
China, Third Participant
Hong Kong, China Third Participant
India, Third Participant
Japan, Third Participant
Korea, Third Participant
Mexico, Third Participant
Norway, Third Participant
Separate Customs Territory of Taiwan, Penghu,
Kinmen, and Matsu, Third Participant
 AB-2006-2

 Present:

 Sacerdoti, Presiding Member
 Janow, Member
 Taniguchi, Member

I. Introduction
1. The European Communities and the United States each appeals certain issues of law and legal
interpretations developed in the Panel Report, (the "Panel Report").
1 The Panel was established to
consider a complaint by the European Communities concerning the application by the United States
of the so-called "zeroing methodology" when determining dumping margins in anti-dumping
proceedings, including proceedings resulting in the imposition of anti-dumping measures as well as
proceedings relating to the collection of anti-dumping duties.
2
2. Before the Panel, the European Communities challenged, under the Agreement on
Implementation of Article VI of the Ge neral Agreement on Tariffs and Trade 1994 (the " Anti-
Dumping Agreement"), the General Agreement on Tariffs and Trade 1994 (the "GATT 1994"), and
the Marrakesh Agreement Establishing the (the "WTO Agreement"):

1WT/DS294/R, 31 October 2005.
2Panel Report, para. 2.1.

(a) Sections 731, 751(a)(2)(A)(i)-(ii), 771(35)(A )-(B), and 777A(d) of the Tariff Act
of 1930 (the "Tariff Act")
3; Section 351.414(c)(2) of the United States Department
of Commerce ("USDOC") Regulations ("Section 351.414(c)(2)")4; certain provisions
of the 1997 edition of the Import Administration Antidumping Manual (the "Anti-
Dumping Manual") 5; the "Standard AD Margin Program" 6, which includes the
"Standard Zeroing Procedures"7; and the United States' "practice or methodology" of
zeroing;
(b) the use of "model zeroing"8 in certain "original investigations"9; and
(c) the use of "simple zeroing"10 in certain "anti-dumping duty administrative reviews".11

3These provisions are codified in United States Code of Federal Regulations , Title 19, Sections 1673,
1675, and 1677, respectively (Exhibit EC-33 submitted by the European Communities to the Panel).
4Section 351.414(c)(2) is found in United States Federal Register , Vol. 62, No. 96 (19 May 1997),
Rules and Regulations, p. 27415 (Exhibit EC-35.3 su bmitted by the European Communities to the Panel),
codified in United States Code of Federal Regulations, Title 19, Section 351.414(c)(2).
5See Exhibit EC-36 submitted by the European Communities to the Panel. The Anti-Dumping Manual
is available at: http://ia.ita.doc.gov/admanual/index.html.
6The "Standard AD Margin Program" consists of computer programming used by the USDOC to
calculate margins of dumping. More specifically, the US DOC uses lines of computer code contained in the
"Standard AD Margin Program" whenever it develops a specific computer program to calculate a margin of
dumping in a particular anti-dumping proceeding. (See Exhibits EC-43 and EC-46 submitted by the European
Communities to the Panel)
7The term "Standard Zeroing Procedures" is used in the Panel Report to refer to certain lines of
programming code contained in the USDOC's Standard AD Margin Program. More specifically, it refers to
certain lines of programming code that incorporate the zeroing methodology by selecting (for inclusion in the
numerator of the overall dumping margin) only those resu lts of multiple comparisons that are greater than zero
for purposes of calculating the aggregate amount of du mping. (European Communities' first written submission
to the Panel, paras. 125 and 129) The term "Standard Zeroing Procedures" is not used in United States anti-
dumping laws and regulations. (See Panel Report, paras. 7.71-7.72)
8The term "model zeroing" refers to the methodology described in paras. 2.3 and 2.10 of the Panel
Report.
9In our discussion, we use the term "original inves tigations" to refer to investigations within the
meaning of Article 5 of the Anti-Dumping Agreement. The original investigations challenged by the European
Communities are listed in Exhibits EC-1 through EC-15 submitted by the European Communities to the Panel.
Further details may be found in para. 2.6 and footnote 119 to para. 7.9 of the Panel Report.
10The term "simple zeroing" refers to the methodology described in paras. 2.5 and 2.12 of the Panel
Report.
11In our discussion, we use the term "administrative review" to describe the "periodic review of the
amount of anti-dumping duty" as required by Section 751(a) of the Tariff Act. That provision requires the
USDOC to review and determine the amount of any anti-dumping duty at leas t once during each 12-month
period beginning on the anniversary of the date of publication of an anti-dumping duty order if a request for
such a review has been received. (Panel Report, footnote 236 to para. 7.142) The administrative reviews
challenged by the European Communities are listed in Exhibits EC-16 through EC-31 submitted by the
European Communities to the Panel. Further details may be found in para. 2.6 and footnote 202 to para. 7.110
of the Panel Report.

3. In the Panel Report, circulated to Members of the World Trade Organization (the "WTO") on
31 October 2005, the Panel made the following findings:
(a) The United States acted inconsistently with Article 2.4.2 of
the [ Anti-Dumping] Agreement when in the anti-dumping
investigations listed in Exhibits EC-1 to EC-15 USDOC did
not include in the numerator used to calculate weighted
average dumping margins any amounts by which average
export prices in individual averaging groups exceeded the
average normal value for such groups.
(b) Sections 771(35)(A) and (B), 731 and 777(A)(d) of the Tariff
Act are not as such inconsistent with Articles 2.4, 2.4.2,
5.8, 9.3, 1 and 18.4 of the [ Anti-Dumping] Agreement ,
Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4
of the WTO Agreement with respect to the use of a zeroing
methodology in the calculation of margins of dumping in
original investigations.
(c) The United States' zeroing methodology, as it relates to
original investigations, is a norm which, as such, is
inconsistent with Article 2.4.2 of the [ Anti-Dumping]
Agreement.
(d) The United States did not act inconsistently with
Article 2.4.2 of the [ Anti-Dumping] Agreement when, in the
administrative reviews listed in Exhibits EC-16 to EC-31,
USDOC used a methodology that involved asymmetrical
comparisons between export price and normal value and in
which no account was taken of any amount by which export
prices exceeded normal value.
(e) The United States did not act inconsistently with Article 2.4
of the [Anti-Dumping] Agreement when in the administrative
reviews listed in Exhibits EC-16 to EC-31 USDOC
calculated dumping margins by comparing average monthly
normal value with prices of individual export transactions
and did not include in the numerator of the dumping margins
any amounts by which export prices of individual
transactions exceeded the normal value.
(f) The United States did not act inconsistently with Articles 9.3,
11.1 and 11.2, 1 and 18.4 of the [ Anti-Dumping] Agreement,
Articles VI:1 and VI:2 of GATT 1994 and Article XVI:4 of
the WTO Agreement in the administrative reviews listed in
Exhibits EC-16 to EC-31.

(g) The Standard Zeroing Procedures used by the United States
in administrative reviews or the United States practice or
methodology of zeroing and S ections 771(35)(A) and (B),
731, 777A(d) and 751(a)(2)(i) and (ii) of the Tariff Act and
Section 351.414(c)(2) of the USDOC Regulations are not as
such inconsistent with Articles 2.4, 2.4.2, 9.3, 11.1 and 11.2,
1 and 18.4 of the [ Anti-Dumping] Agreement , Articles VI:1
and VI:2 of the GATT 1994 and Article XVI:4 of the WTO
Agreement.
(h) The Standard Zeroing Procedures used or relied upon by the
United States in new shipper reviews, changed circumstances
reviews and sunset reviews and Sections 771(35)(A) and (B),
731, 777A(d) and 715(a)(2)(i) and (ii) of the Tariff Act and
Section 351.414(c)(2) of the USDOC Regulations are not as
such inconsistent with Articles 2.4, 2.4.2, 9.3, 9.5, 11.1,
11.2, 11.3, 1 and 18.4 of the [ Anti-Dumping] Agreement ,
Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4
of the WTO Agreement.
12 (footnotes omitted)
4. On 17 January 2006, the Eur opean Communities notified the Di spute Settlement Body (the
"DSB") of its intention to appeal certain issues of law covered in the Panel Report and certain legal
interpretations developed by the Pane l, pursuant to Article 16.4 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (the "DSU"), and filed a Notice of Appeal 13
pursuant to Rule 20 of the Working Procedures for Appellate Review (the "Working Procedures").14
On 24 January 2006, the European Communities filed an appellant's submission. 15 On that same day,
Japan filed a third participant's submission.16 On 30 January 2006, the United States notified the DSB
of its intention to appeal certain issues of la w covered in the Panel Report and certain legal
interpretations developed by the Panel, pursuant to Article 16.4 of the DSU, and filed a Notice of

12Panel Report, para. 8.1. The Panel decided to exercise judicial economy and did not rule on the
European Communities' claim that the application of model zeroing in the investigations listed in Exhibits EC-1
through EC-15 was inconsistent with Articles 1, 2.4, 3.1, 3.2, 3.5, 5.8, 9.3, and 18.4 of the Anti-Dumping
Agreement, Articles VI:1 and VI:2 of the GA TT 1994, and Article XVI:4 of the WTO Agreement. The Panel
also exercised judicial economy on the European Communities' claim that the Standard Zeroing Procedures used
by the USDOC in original investigations are inconsistent, as such, with Articles 1, 2.4, 3.1, 3.2, 3.5, 5.8, 9.3,
and 18.4 of the Anti-Dumping Agreement, Articles VI:1 and VI:2 of the GAT T 1994, and Article XVI:4 of the
WTO Agreement. (Ibid., para. 8.2)
13WT/DS294/12 (attached as Annex I to this Report).
14WT/AB/WP/5, 4 January 2005.
15Pursuant to Rule 21 of the Working Procedures.
16Pursuant to Rule 24(1) and (3) of the Working Procedures. Concerning the timing of its submission,
Japan stated that, given that it has brought its own dispute regarding the United States' zeroing methodology
(US – Zeroing (Japan) , WT/DS322), "its interests in this appeal are, essentially, those of an appellant, even
though it is a third participant." Japan went on to say that it was, therefore, taking "the unusual step of filing its
third participant's submission on the same day as the a ppellant, that is, considerably 'within 25 days after the
date of filing of the Notice of Appeal'." (Japan's third participant's submission, para. 3)

Other Appeal 17 pursuant to Rule 23(1) and (2) of the Working Procedures . On 1 February 2006,
the United States filed an other appellant's submission. 18 On 13 February 2006, the European
Communities and the United States each filed an appellee's submission 19 and Brazil, China, Korea,
Mexico, Norway, and the Separate Customs Terr itory of Taiwan, Penghu, Kinmen, and Matsu each
filed a third participant's submission. 20 On the same day, Argentina, India, and Hong Kong, China
each notified its intention to appear at the oral h earing as a third participant and to make an oral
statement.21
5. The oral hearing in this appeal was held on 1 and 2 March 2006. The participants and third
participants presented oral arguments and respond ed to questions posed by the Members of the
Appellate Body Division hearing the appeal.

II. Arguments of the Participants and the Third Participants
A. Claims of Error by the European Communities – Appellant
1. Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT
1994
6. The European Communities requests the Appellate Body to reverse the Panel's finding that
the United States did not act inconsistently with Article 9.3 of the Anti-Dumping Agreement , and
Article VI:2 of the GATT 1994. The European Communities notes that Article 9.3 provides that the
amount of anti-dumping duty shall not exceed the ma rgin of dumping established under Article 2.
The European Communities claims th at, in the administrative reviews at issue, the United States did
not correctly establish the anti-dumping duty amount or the margin of dumping because the Untied
States did not comply with its obligation to ensure that the amount of anti-dumping duty collected did
not exceed the margin of dumping.
7. For the European Communities, the disagreement between the parties flows, in essence, from
their respective interpretations of the terms "dumping" and "margin of dumping" in the Anti-Dumping
Agreement, and whether these terms apply at the level of the product as a whole, or at the level of a
comparison between a weighted-average normal va lue and an individual export transaction. The
European Communities submits that these terms are defined in relation to a product as a whole .

17WT/DS294/13 (attached as Annex II to this Report).
18Pursuant to Rule 23(3) of the Working Procedures.
19Pursuant to Rules 22 and 23(4) of the Working Procedures.
20Pursuant to Rule 24(1) and (3) of the Working Procedures.
21Pursuant to Rule 24(2) of the Working Procedures.

Thus, "dumping" and "margin of dumping" within the meaning of the Anti-Dumping Agreement
cannot, according to the European Communities, be found to exist only for a type, model, or category
of that product, including a "category"
22 consisting of one or more relatively low-priced export
transactions.
8. The European Communities undersco res that it is clear that an investigating authority may
undertake multiple intermediate comparisons betw een a weighted-average "normal value" and
individual export transactions. However, the results of such multiple comparisons are not "margins of
dumping", but, rather, reflect only intermediate calcula tions made by an investigating authority in the
context of establishing margins of dumping for the pr oduct as a whole. The investigating authority is
under the obligation to aggregate all of the results of these multiple intermediate comparisons. The
European Communities maintains that, aside from the exception provided for by the second sentence
of Article 2.4.2, as well as by Articles 2.2.1, 2.7, and 9.4 of the Anti-Dumping Agreement, there is no
basis in the Anti-Dumping Agreement that would justify taking into account the results of some
multiple comparisons, in the process of calculating margins of dumping, while disregarding others.
9. According to the European Communities, the Pa nel erred in concludi ng that the Appellate
Body's findings in EC – Bed Linen 23 and US – Softwood Lumber V 24 were based on Article 2.4.2 of
the Anti-Dumping Agreement and limited to the consistency of zeroing as applied in the original
proceedings. The European Communities submits that the view that "dumping" and "margins of
dumping" can only be established for the product under investigation as a whole is in consonance with
the need for consistent treatment of a product in an anti-dumping proceeding. For the European
Communities, it is clear that the obligations that apply when a margin of dumping is calculated or
relied upon are the same throughout the Anti-Dumping Agreement , and this use of zeroing by the
United States in the present case is inconsistent with the Anti-Dumping Agreement.
10. The European Communities argues that the United States' calculation of a revised cash
deposit rate is identical in all relevant respects to the margin calculation performed in the original
proceedings. For the European Communities, there is no basis on which the United States can
plausibly argue that zeroing, which is prohibited in original proceedings, somehow becomes permitted
when done in an administrative review.

22European Communities' appellant's submission, paras. 59 and 61.
23See Appellate Body Report, EC – Bed Linen, para. 53.
24See Appellate Body Report, US – Softwood Lumber V, paras. 91-103.

11. According to the European Communities, the u se of zeroing in the calculation of either the
cash deposit rate or the amount of duty finally assessed "systematically" 25 inflates the amount of the
anti-dumping duty. The European Communities claims that, as a result of the use of zeroing in the
administrative reviews at issue, the amount of the anti-dumping duty assessed exceeds the margin of
dumping determined for the product as a whole and, ther efore, the use of zeroing is inconsistent with
Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.
2. Article 2.4 of the Anti-Dumping Agreement
12. The European Communities claims that the Pane l erred in finding that the United States did
not act inconsistently with the first sentence of Article 2.4 of the Anti-Dumping Agreement . The
European Communities first indicates that it agrees with the Panel that Article 2.4 establishes an
"overarching and i ndependent obligation" 26 to make a fair comparison between normal value and
export price. However, the European Communitie s contends that the Panel erred because—absent
targeted dumping—a comparison between normal value and export price that does not fully take into
account all export transactions does not result in the calculation of a margin of dumping for the
product as a whole and "is therefore not a fair comparison within the meaning of Article 2.4, first
sentence."
27 Furthermore, the European Communities contends that the methodology employed by
the USDOC in the administrative reviews at issue is inconsistent with Article 2.4, because it inflates
the margin of dumping and, therefore, is inherently biased. The European Communities also refers to
the Appellate Body's statement in EC – Bed Linen that "the practice of 'zeroing' at issue in this dispute
... is not a 'fair comparison' between export price and normal value, as required by Article 2.4 and by
Article 2.4.2." 28 In the European Communities' view, the findings of the Appellate Body in US –
Corrosion-Resistant Steel Sunset Review 29 and US – Softwood Lumber V 30 also confirm that the
zeroing methodology is unfair and, therefore, inconsiste nt with the first sentence of Article 2.4 of the
Anti-Dumping Agreement.
13. With respect to the third to fifth sentences of Article 2.4, the European Communities appeals
the Panel's finding that zeroing is not an impermissi ble allowance or adjustment for a difference other
than one affecting price comparability. For the Euro pean Communities, the third to fifth sentences of

26Ibid., para. 71.
27Ibid., para. 75.
28Appellate Body Report, EC – Bed Linen , para. 55 (original emphasis) (quoted in European
29See Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 127-128, 130,
and 135.
30See Appellate Body Report, US – Softwood Lumber V, paras. 93, 96-97, 99, and 101.

Article 2.4 do not only impose obligations on Members to make adjustments for differences that
affect price comparability, but also impose an obligati on not to make an adjustment when there is no
such difference. The European Co mmunities adds that, if the third to fifth sentences of Article 2.4
refer to certain differences for which adjustments are to be made, the list is illustrative, with the
implication that the types of differences and adjust ments referred to in the third to fifth sentences are
not exhaustive. According to the European Communities, zeroing should be construed as an
adjustment or allowance falling within the scope of the third sentence of Article 2.4, because the
effect of the zeroing adjustment is to reduce the price at which particular export transactions were in
fact made. For the European Communities, the Pa nel erred because, irrespective of whether the
simple zeroing adjustment is conceptually differe nt from the elements of the illustrative list of
Article 2.4, third to fifth sentences, it is not an adjustment made for a "difference affecting price
comparability"
31 and, therefore, it is inconsistent with Article 2.4, third to fifth sentences.
14. The European Communities submits that "[t]he sco pe of the obligations contained in the third
to fifth sentences of Article 2.4 is not limited acco rding to the point in time, or the stage of the
calculation, at which the adjustment or allowance is introduced into the calculation of the margin of
dumping."32 Furthermore, the European Communities ar gues that the Panel erred when it stated
that the European Communities' argument cannot be reconciled with Article 2.4.2; in the European
Communities' view, the Panel failed to take into account the opening words of Article 2.4.2:
"Subject to the provisions governing fair comparison in paragraph 4". According to the European
Communities, it is clear, in particular, from the opening words of the second sentence of Article 2.4,
that the third to fifth sentences of Article 2.4 are provisions "governing fair comparison". According
to the European Communities, it follows that Article 2.4.2 is "subject to" the provisions in the third to
fifth sentences of Article 2.4.
15. Finally, the European Communities submits that the "targeted dumping" provision in
Article 2.4.2 need not be considered in resolving th e legal issues in this case, and that, in any event,
this provision does not support the Panel's finding th at zeroing is not an impermissible allowance or
adjustment for a difference other than a difference affecting price comparability.
3. Article 2.4.2 of the Anti-Dumping Agreement
16. The European Communities "conditionally" appeals the Panel's finding that the United States
did not act inconsistently with Article 2.4.2 of the Anti-Dumping Agreement by using, in the
administrative reviews at issue, a methodology that involves asymmetrical comparisons between

32Ibid., para. 129.

monthly "normal values" established on a weighted average basis and prices of individual export
transactions. The second sentence of Article 2.4.2 provides that such asymmetrical comparisons may
be made "if the authorities find a pattern of expor t prices which differ significantly among different
purchasers, regions or time periods, and if an explan ation is provided as to why such differences
cannot be taken into account appropriately by the u se of a weighted average-to-weighted average or
transaction-to-transaction comparison." According to the European Communities, the United States
acted inconsistently with this provision becau se it used the asymmetrical comparison method even
though the conditions for the application of the second sentence of Article 2.4.2 were not fulfilled.
17. The European Communities underlin es, however, that the Appellate Body need not consider
the appeal on this issue if it agrees with the Eu ropean Communities' appeal from the Panel's findings
on Article 9.3 of the Anti-Dumping Agreement , Article VI:2 of the GATT 1994, Article 2.4, first
sentence, or Article 2.4, third to fifth sentences, of the Anti-Dumping Agreement.
18. In the European Communities' view, the refere nce in Article 2.4.2 to "the existence of
margins of dumping during the investigation phase" requires investigating authorities to establish
margins of dumping "on the basis of data arising during the investigation period". 33 The European
Communities claims that, in rejecting this view, th e Panel failed to properly consider the ordinary
meaning of Article 2.4.2 "as a whole". In partic ular, the Panel erred in finding that the terms
"period" and "phase" cannot be equated. The European Communities underscores that "during the
investigation phase" refers to the "existence" and no t to the "establishment" of margins of dumping.
Therefore, according to the Eur opean Communities, "the phrase refers to a distinct period in which
margins of dumping exist, i.e. an investigation period; and not ... a period of time in which margins
of dumping are established "34 and thus does not limit the applicability of Article 2.4.2 to original
proceedings. Furthermore, the term "investigation" describes a "systematic examination or inquiry or
a careful study of or research into a particular subject" 35; in Article 2.4.2, that particular subject is
"margins of dumping".
19. In the European Communities' view, the Panel in correctly read the phrase at issue as "the
establishment of margins of dumping during the investigation phase". 36 The European Communities
adds that the term "investigation" is not synonym ous with the term "investigation to determine the
existence, degree and effect of any alleged dumping". 37 The ordinary meanings of the terms "during

34Ibid., para. 175. (original emphasis)
35Ibid., para. 186.
36Ibid., paras. 176, 184, and 207.
37Ibid., para. 159.

the ... period" and "during the ... phase" coincide, indicating a determinate temporal stage in the
passage of time, or "a distinct period".
38 In the European Communities' view, the Panel put too much
emphasis on the word "phase": it erre d by "selectively and subjectively beginning with this word
and mechanistically elevating it to a position of such para mount and overwhelming importance in its
analysis".39
20. Relying on the context of Article 2.4.2, the European Communities argues that the use of the
term "margins of dumping" in the phrase "the existence of margins of dumping during the
investigation phase", together with the defined te rm "margin of dumping" in Article VI:2 of the
GATT 1994, support its position that the requirements set out in the first sentence of Article 2.4.2 do
not apply only to original proceedings. In addition, Articles 9.3 and 9.3.3 confirm its interpretation of
the phrase because the reference to Article 2 in these pr ovisions must be taken to be a reference to the
whole of Article 2. The European Communities also argues that Articles 1, 5, and 18 provide no
support for the position that the application of Articl e 2.4.2 is limited to original proceedings. The
European Communities also relies on the Anti-Dumping Agreement as a whole in arguing that the
term "investigation phase" in Article 2.4.2 does not have the particular meaning ascribed to it by the
Panel.
21. The European Communities argues that the word "normally" in Article 2.4.2 "is at odds
with"40 the Panel's interpretation of that provision. In addition, the Eur opean Communities asserts
that the Panel's interpretation of the phrase "during th e investigation phase" is inconsistent with rules
of English grammar. In support of its claim, th e European Communities provides a list of references
to grammatical units, phrases, and elements of an English sentence or clause, accompanied by
citations to extracts of an English grammar text.
41
22. With respect to the object and purpose of the Anti-Dumping Agreement , the European
Communities takes issue with the Panel's view that the limited application of Article 2.4.2 to
proceedings under Article 5 results from qualitativ e differences between the purpose of original
proceedings and the purpose of anti-dumping duty assessment proceedings. The European
Communities also argues that the Panel confused the "import-specific" argument and the "importer-
specific" argument, which are fundamentally differe nt. While Article 9.3 may allow duty assessment
on an importer-specific basis, it does not permit zero ing when aggregating the results of comparisons
between weighted-average normal values and the prices of individual export transactions for a

38European Communities' appellant's submission, paras. 203-204.
39Ibid., para. 204. (emphasis added)
40Ibid., para. 220.
41Ibid., paras. 163, 177, and 180.

particular importer. In this regard, the European Communities considers that "[i]t is perfectly possible
to make a calculation of a dumped amount in relation to each importer without zeroing in such a way
that the rule in Article 9.3 is respected." 42 The European Communities su bmits that the United States
failed to prove that WTO Members intended to impart a "special meaning" on the term "investigation
phase" in Article 2.4.2, within the meaning of Article 31(4) of the Vienna Convention on the Law of
Treaties (the " Vienna Convention ").43 The European Communities al so argues that subsequent
practice and preparatory works do not support the Panel's interpretation.
4. Other Claims
23. First, the European Communiti es challenges the Panel's finding that Section 351.414(c)(2) of
the USDOC Regulations, as it relates to administrati ve reviews, is not inconsistent, as such, with
Articles 1, 2.4, 2.4.2, 9.3, 11.1, 11.2, and 18.4 of the Anti-Dumping Agreement , Articles VI:1
and VI:2 of the GATT 1994, and Article XVI:4 of the WTO Agreement. The European Communities
considers that Section 351.414(c)(2) is inconsistent with Article 2.4.2 because "it permits the use of an
asymmetrical method without any of the cumulative conditions set out in Article 2.4.2 having been
met", and because "it provides that the normal rule is asymmetry, when Article 2.4.2 provides that the
normal rule is symmetry."44
24. The European Communities also appeals the Panel's finding that Section 351.414(c)(2), as it
relates to new shipper reviews, changed circum stances reviews, and sunset reviews, is not
inconsistent, as such, with Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4 of the Anti-
Dumping Agreement , Articles VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of the WTO
Agreement.
25. Secondly, the European Communities argues that the Panel erred in finding that the zeroing
methodology used or relied upon by the United States in administrative reviews is not, as such,
inconsistent with Articles 1, 2.4, 2.4. 2, 9.3, 11.1, 11.2, and 18.4 of the Anti-Dumping Agreement ,
Articles VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of the WTO Agreement. The European
Communities further contends that the Panel erre d in finding that the zeroing methodology used or
relied upon by the United States in new shipper review s, changed circumstance s reviews, and sunset
reviews, is not, as such , inconsistent with Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4 of
the Anti-Dumping Agreement, Articles VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of the

42European Communities' appellant's submission, para. 288. (original underlining)
43Done at Vienna, 23 May 1969, 1155 UNTS 331; 8 International Legal Materials 679.

WTO Agreement. According to the European Communities, the zeroing methodology is inconsistent
with the stated provisions because it reflects the instruction "to zero systematically ".
45
26. Thirdly, the European Communities appeals the Panel's exercise of judicial economy with
respect to the question whether administrative revi ews based on model zeroing are inconsistent with
Article 9.3 of the Anti-Dumping Agreement. The European Communities argues that, in cases where
there is no request for an administrative review, th e USDOC issues assessment instructions to United
States Customs to collect final anti-dumping duties at the cash deposit rate, that is at the rate that was
set in the original investigation using model zero ing. The European Communities contends that, in
such cases, the application of model zeroing in an assessment review will necessarily be inconsistent
with Article 9.3 of the Anti-Dumping Agreement. The European Communities refers, in particular, to
the first sample case presented by the European Communities to the Panel regarding anti-dumping
duties on stainless steel from Italy.46 According to the European Communities, the final anti-dumping
duties in that case were assessed, in part, on the basis of a margin of dumping established by using
model zeroing.
27. The European Communities also appeals the Pa nel's decision to exercise judicial economy
with respect to the question of whether model zeroi ng, as applied in the original investigations at
issue, is inconsistent with Article 2.4 of the Anti-Dumping Agreement.
28. The European Communities further argues that the Panel erred in exercising judicial economy
with respect to the question of whether the An ti-Dumping Manual is a measure that is, as such,
inconsistent with Articles 1, 2.4, 2.4.2, 5.8, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4 of the Anti-Dumping
Agreement, Articles VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of the WTO Agreement. In
support of its claim, the European Communities subm its that "[t]he parties agree that the [Anti-
Dumping] Manual is a measure." 47 The European Communities further explains that the Anti-
Dumping Manual "directs the use of the Standard Zeroing Procedures, Methodology and Practice
[and] provides a link between the relevant provision s of the Tariff Act and the Regulations, and the
Standard Zeroing Procedures, Methodology and Practice."48
29. Fourthly, the European Communities "conditio nally" appeals the Panel's conclusions
regarding the Standard Zeroing Procedures and requests the Appellate Body "to complete the

46See Panel Report, para. 2.9.
47European Communities' appellant's submission, para. 343 and footnote 340 to para. 342 (referring to
United States' first written submission to the Panel, para. 84).
48Ibid., para. 343.

analysis"49 by finding that the Standard Zeroing Pro cedures are, as such, inconsistent with
Articles 1, 2.4, 2.4.2, 5.8, 9.3, and 18.4 of the Anti-Dumping Agreement, Articles VI:1 and VI:2 of
the GATT 1994, and Article XVI:4 of the WTO Agreement. The European Communities' request is
conditioned on the Appellate Body reversing the Panel's finding that the zeroing methodology is
inconsistent, as such, with Article 2.4.2. Accordi ng to the European Communities, its request would
also be triggered if the Appellate Body consid ers that the Standard Zeroing Procedures are not
"condemned" (as a result of the Panel's finding on the zeroing methodology, as such) in the sense that
"compliance [by the United States] would necess itate modification of the Standard Zeroing
Procedures".50 The European Communities also "conditio nally" appeals the Panel's exercise of
judicial economy with respect to the United States' "practice" of zeroing in original investigations,
administrative reviews, new shipper reviews, chan ged circumstances reviews, and sunset reviews.
This appeal is triggered if the European Communities does not prevail on appeal with respect to either
its claim regarding the zeroing methodology or its claim regarding the Standard Zeroing Procedures.
30. Fifthly, the European Communities argues that th e Panel acted inconsistently with Article 11
of the DSU by "demonstrat[ing] insufficient reasoning, or internal inconsistency, or the making of a
case"
51 for the United States. In the alternative, the European Communities submits that, to the extent
that the Panel's findings can be considered finding s of fact, the Panel acted inconsistently with
Article 11 of the DSU in that it did not make an objective assessment of the facts.
31. Finally, the European Communities submits that the Panel erred in concluding that, in the
administrative reviews at issue, the USDOC did not act inconsistently with Articles 11.1 and 11.2 of
the Anti-Dumping Agreement. The European Communities argues th at, contrary to what the Panel
stated, its challenge under Articles 11.1 and 11.2 of the Anti-Dumping Agreement does not pre-
suppose that its claims under Articles 2.4 and 2. 4.2 would succeed. The European Communities
submits that "[t]he re-investigation of the cash depo sit rate, which is carried out in conjunction with
the retrospective assessment proceeding, must ... be consistent with the obligations set out in
Articles 11.1 and 11.2." 52 According to the European Communities, "[t]hose provisions go to the
question of the re-investigation of the margin of dumping calculated during the original proceeding" 53
and do not allow an investigating authority to ch ange the basic methodology for calculating a margin

49European Communities' appellant's submission, paras. 374 and 376.
50Ibid., para. 372.
51Ibid., para. 370 and footnote 360 thereto (referring to European Communities' replies to questions
posed by the Panel at the first Panel meeting, para. 1; and European Communities' second written submission to
the Panel, para. 18).
52Ibid., para. 365.
53Ibid.

of dumping, as defined in Article VI of the GATT 1994 and in Article 2 of the Anti-Dumping
Agreement.
B. Arguments of the United States – Appellee
1. Article 9.3 of the Anti-Dumping Agreement, Article VI:2 of the GATT 1994,

and Article 2.4.2 of the Anti-Dumping Agreement
32. The United States requests the Appellate Body to dismiss the European Communities' appeal
concerning Article 9.3 of the Anti-Dumping Agreement. The main issue, in the United States' view,
is whether, pursuant to Article 9.3, the United States was required to reduce the amount of dumping
duties levied on particular import transactions to account for other import transactions in which
merchandise was sold at more than normal value. The Anti-Dumping Agreement does not, according
to the United States, require such an offset when assessing anti-dumping duties with respect to a
particular importer.
33. The United States agrees with the Panel that "t he concept of 'margin of dumping' in GATT
Article VI is defined in terms of a price difference in a situation in which a product is introduced into
the commerce of another country at less than its normal value i.e. when the export price of the product
is less than the normal value of the product."54 According to the United States, the "product" must be
the "product as a whole" when the "price" in volves the average of "all comparable export
transactions." However, when a Member uses a comparison methodology other than the average-to-
average methodology, the price of an individual export transaction is the price that is compared to the
normal value. Thus, during the investigation phase, Article 2.4.2 authorizes the use of transaction-to-
transaction comparisons, or, in specified circumstances, comparisons of individual export transactions
to weighted-average normal values. In either case, the "price" is the price of an individual export
transaction. According to the United States, in these circumstances, the "product" being introduced
into the commerce of the importing Member is the product involved in the particular export
transaction. Moreover, Article 2.4.2 does not require that the results of those multiple comparisons be
aggregated to represent what the European Commun ities would consider the "product as a whole", or
to be expressed as a percentage.
34. Regarding the findings of the Appellate Body in US – Softwood Lumber V , the United States
notes that "the Appellate Body expressly recognized that the only issue before it was whether offsets
were required under the average-to-average comparison method found in Article 2.4.2."55 The United

54Panel Report, para. 7.59. (original emphasis)
55United States' appellee's submission, para. 175 (referring to Appellate Body Report, US – Softwood
Lumber V, paras. 104-105 and 108).

States further points out that the Appellate Body clarified in that case that the terms "all comparable
export transactions" and "margins of dumping" should be interprete d "in an integrated manner". 56
Accordingly, the Appellate Body's conclusion that there was an obligation to calculate a margin of
dumping for the product as a whole was limited to the use of the average-to-average comparison
method during the investigation phase.
35. Moreover, the United States argues that the fact that the "margin of dumping" need not
always refer to a calculation for the "product as a whole," as the European Communities claims, is
confirmed by the text of the first paragraph of Ad Article VI:1 of the GATT 1994. That provision
uses the term "margin of dumping" in a manner that can reasonably be interpreted as applying only on
a transaction-specific basis.
36. The United States argues that Article 2.4.2 applies on ly to investigations and, by virtue of its
text, is limited to the establishment of the existe nce of margins of dumping during the investigation
phase. The Panel correctly concluded that the refe rence to Article 2 in Article 9.3 does not override
any limitation contained in Article 2.4.2 itself. In the United States' view, the Panel also properly
interpreted the ordinary meaning of the phrase "t he existence of margins of dumping during the
investigation phase". The analysis of the limitation in Article 2.4.2 must consider the entire term
"investigation phase" and not only the word "investig ation". In the United States' view, the term
"investigation phase" refers to that stage in which an authority estab lishes the existence of margins of
dumping, namely, the phase pursuant to Article 5, which, in comparison with other "phases", has a
"unique function". 57 The Appellate Body has previously recognized that the purpose of an
investigation is different from the purpose of other proceedings that follow th e investigation phase.
The United States submits that the function of an investigation is "to determine whether injurious
dumping exists so as to warrant the imposition of an antidumping duty", and the function of an
assessment proceeding is "to determine the amount of antidumping duties that should be assessed". 58
As an example of the different nature of investig ations and assessment proceedings, the United States
argues that, once an anti-dumping duty is imposed, even if the level of dumping falls below
de minimis, a Member is not automatically obligated to terminate an anti-dumping duty. Contrary to
the European Communities' arguments, the use of different methodologies in investigations and
assessment proceedings does not lead to an "intolerab le inconsistency"
59 in the concept of dumping
that would apply in different stages of the proceedings.

56Appellate Body Report, US – Softwood Lumber V, para. 85.
58Ibid., para. 62.
59Ibid.

37. The United States considers that its view is s upported by the use of the term "investigation"
throughout the Anti-Dumping Agreement. Articles 5.7 and 5.8 expressly refer to the "investigation".
For instance, Article 5.8, requiring the terminat ion of an "investigation" where the authorities
determine that the margin of dumping is de minimis, applies only to the investigation phase and not
also to some subsequent action, such as sunset re views. As another example, the United States points
to Article 6, which concerns "evidence" and uses the word "investigations". The United States then
refers to Article 11.4, which "specifically cro ss-references the obligations concerning evidence and
procedure contained in Article 6".
60 In the United States' view, if th e obligations of Article 6 were to
apply to all proceedings under the Anti-Dumping Agreement, such a cross-reference would serve no
purpose.
38. The United States submits that, in contrast to investigations, Article 9.3 assessment
proceedings are not investigations and are not conc erned with the "existentia l question" of whether
injurious dumping exists. Instead, Article 9 assessment proceedings are concerned with the
measurement of dumping in order to establish the precise amount of an anti-dumping duty that an
importer must pay. If, during an assessment proceed ing, the margin of dumping is determined to be
zero, the Member is not entitled to assess, but is obligated to refund, the amount of anti-dumping
duties for the import transactions subject to that proceeding. Given the different functions of an
Article 5 investigation and an Article 9 assessment pr oceeding, obligations that apply with respect to
an Article 5 investigation do not necessarily apply to an Article 9 assessment proceeding.
39. The United States also takes the view that the Panel correctly examined and considered the
ordinary meaning of Article 2.4.2 in its context and in the light of the object and purpose of the Anti-
Dumping Agreement . The Panel also correctly applied prior panel and Appe llate Body reports,
notably, US – Carbon Steel , EC – Bed Linen , and US – Corrosion-Resistant Steel Sunset Review .
These reports support the Panel's finding that there ar e distinctions, "both in legal obligations and in
purpose"
61, between original investigations, on the on e hand, and other actions in anti-dumping or
countervailing duty proceedings, on the other hand. Contrary to the European Communities'
arguments, the Panel did not treat any of the reports as determinative of the issue before it, but rather
recognized a pattern throughout these reports consis tent with its own findings. The Panel also
correctly rejected the European Communities' alternative interpre tations of the phrase "during the
investigation phase" in Article 2.4.2, that is, that th is phrase refers to the "period of investigation".
In the United States' view, there is no reason why, after using the term "period of investigation"
several times in Article 2, the drafters would not have used the same term in Article 2.4.2 if they had

61Ibid., para. 78.

wished to refer to the same concep t. With respect to the European Communities' argument that the
phrase places a limit on the amount of time in which the investigating authority must make its
determination, the United States argues that the Panel correctly found that Article 2 does not address
procedural aspects, such as the timing of determinations.
40. Furthermore, in the United States' view, the Panel was correct in rejecting the European
Communities' arguments relating to the obj ect and purpose of Article 9.3 and the Anti-Dumping
Agreement. The United States argues that only a treaty can have an object and purpose as understood
under the customary rules of interpretation; the purpose or function of a specific provision can be
determined only by ascertaining what the provision means, a process that requires a consideration of
the treaty's object and purpose. Furthermore, th e European Communities' approach to Article 9.3—
namely, that the purpose of a duty assessment proceedi ng under Article 9.3.1 is simply "to update the
temporal frame for normal value" and that, ther efore, there is no reason to apply a different
comparison methodology in an assessment procee ding—would prohibit the assessment of anti-
dumping duties on an importer- or import-specific b asis. According to the United States, the Panel
also correctly rejected the European Communities' arguments concerning subsequent practice; the
evidence adduced by the European Communities fails to demons trate a uniform intention that the
obligations contained in Article 2.4.2 apply beyond Article 5 investigations. The Panel was also
correct in rejecting the European Communities' ar guments concerning supplementary means of treaty
interpretation.
41. The United States also requests the Appellate Body to reject the European Communities'
additional arguments regarding Article 2.4.2. Conc erning the use of the word "normally" in the first
sentence of Article 2.4.2, the United States argues th at, contrary to the European Communities' view,
the use of that word does not undermine the Panel's in terpretation of Article 2.4.2. The fact that the
"normal" rule for investigations might not be th e "normal" rule for assessment proceedings, sunset
reviews, and other reviews, does not detract from it being the "normal" rule for investigations.
Finally, the "rules of grammar" referred to by the European Communities, do not, in the United States'
view, invalidate the Panel's interpretation of Article 2.4.2: there is no basis or rule that the phrase
"during the investigation phase" must modify the word "existence" rather than "establishment" of the
margin of dumping.
2. Article 2.4 of the Anti-Dumping Agreement

42. The United States requests the Appellate Body to reject the European Communities' appeal
concerning Article 2.4. The United States argues that the issue of whether a certain methodology is
fair must be determined "based upon the substantive rules contained within the [ Anti-Dumping]

Agreement."
62 Article 2.4 is not "indeterminate"; the el ements of what constitutes a fair comparison
are contained in Article 2.4. The United States considers it "not credible" 63 that WTO Members
would have agreed that Article 2.4 requires what the United States terms "offsets" 64, but decided not
to mention this agreement expressly in the text of Article 2.4. Moreover, the simple fact that one
methodology results in a higher dumping margin than a nother is an insufficient basis to conclude that
the first methodology is "unfair" within the meaning of Article 2.4. Rather, the term "fair" must be
interpreted in a manner consistent with other obligations contained in the Anti-Dumping Agreement.
43. The United States submits that the text of Article 2.4 does not require the calculation of a
dumping margin with respect to the "product as a whol e". Such a requirement cannot be read into the
concept of "fair comparison". The obligation to calculate margins of dumping for the product as a
whole is limited to the use of the averag e-to-average comparison methodology during the
investigation phase under Article 2.4.2. If the fair comparison requirement were interpreted so as to
impose the same obligation, the first sentence of Article 2.4.2 would be redundant. The Appellate
Body, in the United States' view, has never found an obligation to provide for "offsets" stemming
from the "fair comparison" requirement in Article 2.4, and its report in EC – Bed Linen contains no
textual analysis of the "fair comparison" requirement or a finding with respect to Article 2.4. The
United States also refers to the Appellate Body Reports in EC – Bed Linen, US – Corrosion-Resistant
Steel Sunset Review , and US – Softwood Lumber V as providing no basis for a conclusion that "the
fair comparison requirement establishes an independent obligation to provide offsets."
65
44. The European Communities' interpretative appr oach to Article 2.4 would, in the United
States' view, nullify the second sentence of Article 2. 4.2. The comparison method in that sentence is
an exception to the methods in the first sentence, but it is not an exception to the "fair comparison"
requirement in Article 2.4. If Article 2.4 requir es offsets, then offsets must be made under the
targeted dumping provision of the second sentence of Article 2.4.2. However, according to the United
States, the average-to-transaction comparison method with offsets will yield mathematically the same
result as the average-to-average comparison method. The European Communities' interpretation,
argues the United States, denies the second sentence of Article 2.4.2 "the very function for which it
was created".66

63Ibid., para. 117.
64Ibid.
65Ibid., para. 140.

45. Next, the United States contends that "the denial of offsets is not an undue price adjustment"67
pursuant to Article 2.4. If the denial of offsets is considered an undue price adjustment, it would be
an undue adjustment for all three comparison methods described in Article 2.4.2. However, again,
such an approach would have the effect of nullifying the second sentence of Article 2.4.2.
Concerning the European Communities argument—th at Article 2.4.2, second sentence, does not
specify in every detail how an investigating authority might conduct its targeted dumping analysis and
that, if an authority finds a significant pattern of ex port price differences with respect to two regions,
the authority could simply calculate a margin of dumping for the region in which the pattern occurs—
the United States argues that there is no textua l support for the European Communities' suggestion
that a WTO Member may calculate separate anti- dumping duty margins based on subsets of export
transactions.68
46. The United States further argues that there is no obligation relating to the "product as a
whole" that requires "offsets" in assessment pr oceedings. The European Communities is seeking
"to elevate a phrase that has been discussed in cer tain dispute settlement reports in one specific
context"69, but that is not contained in the Anti-Dumping Agreement, into an obligation that informs
the interpretation of numerous other provisions of th at Agreement. In the United States' view, the
Panel did not err in its interpretation of the ob ligation to determine the margin of dumping and
correctly found that the term "margin of dumping" could be applied on a transaction-specific basis.
The United States further submits that the fact that, in an investigation, an individual margin of
dumping must be calculated on an exporter- or produ cer-specific basis, does not preclude, in the
context of Article 9, that the margin of dumpi ng may be calculated on an importer- or import-specific
basis.
47. The United States further takes the view that the Anti-Dumping Agreement does not
recognize "negative" margins of dumping. In that Ag reement, the word "margin" is modified by the
word "dumping", giving it a special meaning—th e price difference when a product has been
"introduced into the commerce of an importing country at less than its normal value."70 Thus, if the
price of the export transaction exceeds normal value, there is no margin of dumping. The United
States finds support for its view in Article 9.4 and the use of the terms "zero and de minimis
margins" therein. Finally, the United States argues that the special standard of review applicable
according to Article 17.6(ii) of the Anti-Dumping Agreement confirms the permissibility of the

67United States' appellee's submission, section IV.C.4, pp. 74-78.
68Ibid., para. 160.
69Ibid., para. 167.
70Ibid., para. 191 (quoting Article VI:1 of the GATT 1994). (emphasis added by the United States)

United States' approach. The United States requests th e Appellate Body to consider that "there may
be multiple permissible interpretations of particular provisions in the [ Anti-Dumping] Agreement and
that, at a minimum, the [United States'] approach to assessment proceedings is a permissible one."
71
3. Other Claims
48. The United States argues that the Panel properly rejected the European Communities' "as
such" claims that Section 351.414(c)(2) of the USDOC Regulations as well as the zeroing
methodology are inconsistent with Articles 1, 2.4, 2. 4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4 of the
Anti-Dumping Agreement, Articles VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of the WTO
Agreement. In the United States' views, the Panel co rrectly found that the European Communities'
claims were dependent on a finding of an inconsistency with Articles 2.4 and 2.4.2. Given that the
Panel properly rejected that interp retation, it also correctly rejected these "dependent" claims of the
European Communities. The United States point out that the European Communities does not take
issue with the Panel's characteriza tion of these claims as "dependent" 72 upon a finding of breach of
Article 2.4 and/or Article 2.4.2.
49. Even if the Appellate Body were to rever se the Panel's findings concerning Articles 2.4
and 2.4.2 with respect to the assessment proceedings at issue, the United States submits that the
Appellate Body should decline to complete the Pa nel's legal analysis and should not examine the
European Communities' "as such" claims. The Appella te Body has previously declined to complete a
panel's analysis in circumstances where doing so would involve addressing claims "which the panel
has not addressed at all".
73 Moreover, completing the legal analysis is "particularly inappropriate" 74
where a party has failed to establish a prima facie case, such as in the present case.
50. Next, according to the United States, the Pane l properly exercised judicial economy with
respect to the consistency of "model zeroing" with Article 9.3 of the Anti-Dumping Agreement. The
United States takes issue with th e European Communities' argument th at a finding on this issue was
necessary "in order to effectively reso lve the dispute between the parties" 75, because, when the
European Communities requests the United States to br ing the measure at issue into conformity with
Article 2.4.2, the United States "will respond that the measure at issue is already in conformity with

72Ibid., para. 200.
73Appellate Body Report, EC – Export Subsidies on Sugar , para. 337 (quoted in United States'
appellee's submission, para. 201).

Article 9.3."76 According to the United States, this ar gument "simply invites speculation as to how
the United States might implement the recommendations and rulings of the ... DSB" 77; the European
Communities has not explained or demonstrated why a finding on this point is necessary to resolve
the dispute.
51. Concerning the Panel's exercise of judici al economy with respect to the European
Communities' claim that model zeroing, as applied in the original investigations at issue, is
inconsistent with Article 2.4, the United States rejects the European Commu nities' contention that
further findings on this matter are necessary because the United States might implement by
"switching"
78 to a different comparison methodology, thereby potentially introducing an adjustment
that is inconsistent with Article 2.4. In the Un ited States' view, the Appellate Body should not opine
on how "any potentially changed measure"79 could be WTO-inconsistent.
52. The United States further argues that the Appe llate Body should decline to rule on the
European Communities' conditional claim regard ing the Panel's exercise of judicial economy
regarding the United States' "practice" of zeroing in original investigations, administrative reviews,
new shipper reviews, changed circumstances revi ews, and sunset reviews. The United States
emphasizes that the European Comm unities simply alleges error on the part of the Panel without any
argumentation or citation to arguments contained in its submissions to the Panel, and thus failed to set
out a "precise statement" of the grounds for its appeal, as required by Rule 21(2)(b) of the Working
Procedures.
53. The United States furthermore requests the Appellate Body to reject the European
Communities' claim under Article 11 of the DSU. According to the United States, the European
Communities did not properly identify this claim in its Notice of Appeal and did not provide requisite
notice to the United States, the third participants, and the Appellate Body. Secondly, the European
Communities' appellant's submission is "devoid" 80 of any arguments in support of its claim. Thirdly,
the European Communities does not reference "a single Panel finding that evinces the asserted
flaws"81, and has therefore not substantiated its claim th at the Panel failed to act consistently with
Article 11 of the DSU.

79Ibid., para. 214.
80Ibid., para. 227.
81Ibid., para. 230.

54. The United States furthermore rejects the Eur opean Communities' contention that the Panel
erred in concluding that, in the administrative revi ews at issue, the USDOC did not act inconsistently
with Articles 11.1 and 11.2 of the Anti-Dumping Agreement. The European Communities does not
explain what it perceives to be the obligations set forth in Articles 11.1 and 11.2 and how those
obligations relate to Article 9.3 assessment pro ceedings. Furthermore, the European Communities
"never reconciled"
82 its claims under Articles 11.1 and 11.2 with its own recognition that the duty
assessment proceedings conducted by the Un ited States "correspond to and fit within" 83 Article 9.3 of
the Anti-Dumping Agreement.
C. Claims of Error by the United States – Appellant
55. The United States appeals the Panel's finding that the zeroing methodology is inconsistent, as
such, with Article 2.4.2 of the Anti-Dumping Agreement. The United States' appeal is based on four
main arguments.
56. First, according to the United States, the Panel erred in finding that the zeroing methodology
is a measure that can be challenged, as such, in dispute settlement proceedings. The United States
emphasizes that the Panel's conclusion is not supported by the text of the DSU or by previous rulings
by the Appellate Body regarding the types of meas ures that can be challenged, as such, in dispute
settlement proceedings. The United States refers, in particular, to Article 3.3 of the DSU which
speaks of "measures taken by another Member". Th e United States further recalls that the Appellate
Body has previously recognized that, "[i]n principle, any act or omission attributable to a WTO
Member can be a measure of that Member for purposes of dispute settlement proceedings."
 84 Thus,
according to the United States, "a measure may exist where, at a minimum, a Member acts, or where
it fails to act where it has an obligation to do so." 85 The United States acknowledges that measures
can "consist[ ] not only of particular acts applied only to a specific situation, but also of acts setting
forth rules or norms that are intended to have general and pros pective application."
86 The United
States argues, however, that it is clear from these prev ious rulings of the Appellate Body that there is
a distinction between an act, or instrument, on th e one hand, and rules or norms, on the other hand.
The latter, in the sense of a principle or standard, are not themselves "measures".

83Ibid.
84Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 81.
85United States' other appellant's submission, para. 11.
86Ibid., para. 12 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
para. 82).

57. In the United States view, the Panel erred in finding that the zeroing methodology is a "norm"
and, thus, a "measure", even though it did not iden tify any act or instrument creating or containing
this "norm". "The standard applied by the Panel obvi ates the need for any sort of act or instrument ...,
binding or non-binding." 87 Moreover, under the Panel's sta ndard, according to the United States,
"abstractions can be measures."88 The United States submits that this approach "would start the WTO
dispute settlement system down the path of legi slating 'norms' rather than resolving disputes
concerning measures." 89 The United States further submits that a description of what a WTO
Member has "typically"90 done is not the same as a separate measure that prescribes that Member to
act in that manner.
58. Secondly, the United States argues that "the Panel did not identify any act or instrument of the
United States setting forth or creating that rule or norm" 91 and there was no evidence that such acts or
instruments exist. The United States emphasizes that, the evidence relied upon by the Panel "was
historical, and related to what the USDOC has done in the past, not what it does." 92 The United States
adds that the Panel's reliance on the past use of certain lines of computer code "does not help to
identify the act or instrument, if any, th at is causing the use of these lines of code." 93 Instead, the
evidence before the Panel "did not suggest anything other than that the decision-makers in past
cases"94 simply considered zeroing to be an appropriate response to the facts.
59. The United States also contends that the Panel's reliance on the findings of the panel in Japan
– Film is inapt. In Japan – Film, the United States challenged certa in laws and regulations, as well
as "less formal or less concrete forms of governmental action."95 The question before the panel in
that case was "whether informal 'action' , such as 'administrative guidance' ( gyôsei shidô ), could
constitute a measure."96 The panel concluded that it could. However, "'administrative guidance', even
though informal, is still an 'act', and, thus, sa tisfies the minimum require ment for a 'measure'." 97 The
panel in Japan – Film was not presented with the question of whether something other than an act or
an instrument could constitute a measure. Therefor e, according to the United States, the findings of

87United States' other appellant's submission, para. 27.
88Ibid., para. 4.
89Ibid.
90Ibid., para. 19.
91Ibid., para. 33.
92Ibid., para. 36.
93Ibid., para. 37.
94Ibid.
96Ibid., para. 40.
97Ibid. (footnote omitted)

the panel in that case provide no support for the Panel's conclusion that zeroing methodology is a
measure.
60. In sum, on this point, according to the United St ates, "the Panel neither attempted to identify
an act or instrument of the United States that mi ght constitute a measure subject to an 'as such'
challenge, nor did its analysis reveal any such measure."
98
61. Thirdly, the United States submits that, even assuming, arguendo, that the zeroing
methodology could constitute a "measure", the Panel fa iled to apply the correct standard and failed to
make an objective assessment of the matter as required under Article 11 of the DSU.
62. The United States argues that, "[i]n order to conclu de that a measure, as such, is inconsistent
with a WTO obligation, that measure must mandate a breach of that obligation." 99 The United States
contends, moreover, that "[t]he standard for de termining whether a measure as such breaches a WTO
obligation is that the measure either mandates WT O-inconsistent action or precludes WTO-consistent
action."100 To the extent the Panel failed to apply the mandatory/discretionary distinction in analyzing
and finding a breach of Article 2.4.2, the Panel erred.
63. The United States notes that the Appellate Body has confirmed that "in order to determine
whether a measure is 'as such' inconsistent, reliance solely on statistics or aggregate results is not
enough."101 Nor is it enough, according to the United St ates, to say that resu lts are "predictable". 102
Instead, "it has to be established th at the measure causes the results." 103 As the Appellate Body
explained in US – Anti-Dumping Measures on Oil Country Tubular Goods , in the context of the
Sunset Policy Bulletin (the "SPB"), it has to be "demonstrate[d] that the SPB instructs the USDOC
to treat dumping margins and import volumes as c onclusive" and that the USDOC "made a final
determination ... due to the SPB". 104 The United States underlines that the Panel engaged in no
comparable analysis with respect to the zeroing methodology in the present case. The United States

98United States' other appellant's submission, para. 41.
99Ibid., para. 43.
100Ibid., para. 44.
101Ibid., para. 50 (referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews,
para. 215; and Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods ,
para. 202).
102Ibid., para. 50.
103Ibid.
104Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods, para. 206.

emphasizes that the "lack of rigor" in the Panel's an alysis is "disturbing", in particular because the
Panel itself recognized that "as such" challenges are "serious challenges".105
64. Fourthly, according to the United States, the Pa nel erred in allocati ng the burden of proof
regarding this claim and in finding that the European Communities had established a prima facie
case. The Panel stated that it would consider "whe ther there exists what the European Communities
terms methodology and whether this methodolo gy can be found to be WTO-inconsistent" 106, even
though the Panel did not explain what the European Communities "meant by 'methodology'" 107; the
Panel, in the United States' view, could no t do so, because the European Communities never
explained how "methodology" properly could be c onsidered a measure. The Panel effectively
relieved the European Communities from its burden to demonstrate, as part of its prima facie case,
an act or instrument that required the USDOC to "zero" in anti-dumping investigations.
D. Arguments of the European Communities – Appellee
65. The European Communities requests the Appellate Body to dismiss the United States' appeal
that the Panel erred in finding that the zeroing met hodology is inconsistent, as such, with Article 2.4.2
of the Anti-Dumping Agreement.
66. The European Communities disagrees with the Un ited States' arguments regarding the issue
of "act or instrument". A measure need not be an "act or instrument"; it can be an omission. The
Appellate Body has previously stated that there ar e no limitations on the types of measures that may,
as such, be subject to WTO dispute settlement. 108 In any event, the European Communities considers
that the "Standard AD Margin Program", which c ontains the Standard Zeroing Procedures, is
correctly characterized as an "act or instrument". 109 In the European Communities' view, the Panel
ultimately considered that the Standard Zeroing Procedures are an "instrument" and, in fact, a
"measure", or "evidence of a measure".110
67. Secondly, the European Communities requests the Appellate Body to reject the United States'
claim under Article 11. According to the Europe an Communities, the United States, in its other
appeal, inappropriately focuses on the so-called ma ndatory/discretionary "rule", rather than
addressing the question of whether the measure is in conformity with WTO provisions. The

106Panel Report, para. 7.98.
107United States' other appellant's submission, para. 55.
108Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, pars. 81-89.
110Ibid.

European Communities expresses doubts concerning the correctness and usefulness of the
mandatory/discretionary rule. Referring to findings of the Appellate Body in US – Corrosion-
Resistant Steel Sunset Review, the European Communities states that it does not agree with the United
States that the mandatory/discretionary rule exis ts. The European Communities suggests that the
Appellate Body "could confirm, once and for all, that there is, in truth, no such [rule]."
111 In the
European Communities' view, this is what the Appe llate Body "has effectively done by finding that
such a 'rule' is not to be mechanistically applied." 112 Alternatively, according to the European
Communities, the Appellate Body "may, in one suc cessive case after another, explain why the rule
does not avert an 'as such' finding of in consistency in the particular case." 113 For the European
Communities, "[w]hether it's a quick execution or a slow and painful death, the end result is the
same."
114
68. The European Communities also submits that th ere are several reasons "why the mechanistic
application of the mandatory/discretionary rule cannot avert a finding of inconsistency in this
particular case."115 The European Communities argues that a municipal measure need not "be framed
in the strongest 'compelling' language ... in order to be found [WTO] inconsistent."116 In any event, in
the European Communities' view, the measure at issue is mandatory because the Anti-Dumping
Manual directs the use of the computer progr ams, and the Standard Zeroing Procedures
"automatically and directly" 117 effect the zeroing methodology challenged by the European
Communities. The European Communities also sugg ests that the Standard Zeroing Procedures do
not, in any event, provide for the exercise of discre tion: "applied as they stand they will effect model
zeroing."118
69. In addition, in response to the United States' contention that the Panel relieved the European
Communities of its burden of proof, the European Communities submits that the Panel also did not
rely exclusively on evidence of past behaviour of the United States. The European Communities
further emphasizes that it set out with sufficient clarity and precision its arguments before the Panel.

111European Communities' appellee's submission, para. 76 (referring to Appellate Body Report, US –
Corrosion-Resistant Steel Sunset Review, para. 82).
112Ibid., para. 76.
113Ibid.
114Ibid.
115Ibid., para. 77.
116Ibid., para. 79.
117Ibid., para. 81.
118Ibid., para. 85.

E. Arguments of the Third Participants
1. Argentina
70. Pursuant to Rule 24(2) of the Working Procedures , Argentina chose not to submit a third
participant's submission. Argentina's statement at the oral hearing focused on Articles 9.3 and 2.4 of
the Anti-Dumping Agreement.
2. Brazil
71. Brazil argues that the Panel erred in finding that zeroing is permitted in the various
proceedings under the Anti-Dumping Agreement . According to Brazil, the principles established
previously by Appellate Body rulings 119 condemning zeroing in the context of original investigations
apply equally to administrative and new shipper reviews. Brazil, therefore, finds the Panel's view that
zeroing is permitted in these reviews "rather astounding", given that "this is when the full effect of the
duty is felt by the importer and the effect of zeroi ng is more pronounced than it is in an original
investigation."120 Brazil further argues that the Panel failed to "determine whether its interpretation of
Article 2.4.2 [of the Anti-Dumping Agreement] made sense in light of the context, object, and purpose
of the Agreement."121 The obligation to calculate a margin of dumping for the product as a whole and
the principle of "fair comparison" "are not specific to original investigations" 122 and, therefore, apply
also to administrative and new shipper reviews. The Panel's concerns over possible interference of
such a conclusion with variable/prospective normal value systems are, according to Brazil, also
groundless; according to Brazil, under United States law, duty assessment is determined "for all
product entered by an importer at the same average rate; there are no sale-specific duties assessed."123
Because the USDOC calculates margins for the "p roduct as a whole" in administrative and new
shipper reviews, the analysis of whether zeroing is permitted must be identical between these types of
reviews and original investigations.
72. Regarding changed circumstances and sunset revi ews, Brazil submits that the Panel did not
truly address the question of whether zeroing is permitted in changed circumstances and sunset
reviews because, instead of fully examining the vari ous issues associated with these types of reviews,

119See Brazil's third participant's submission, para s. 8-11 (referring to Appellate Body Report, US –
Softwood Lumber V, paras. 93, 98, and 101; and Appellate Body Report, EC – Bed Linen, paras. 53 and 55).
120Ibid., para. 13.
121Ibid.
122Ibid., para. 15.
123Ibid., para. 14.

the Panel "chose simply to cross reference its analysis"
124 made in the context of administrative
reviews. In doing so, the Panel misunderstood the purpose of these administrative reviews and
ignored existing jurisprudence on the subject. Brazil observes that the Appellate Body, in US –
Corrosion-Resistant Steel Sunset Review , "made statements making quite clear its view on the
applicability of various principles to sunset revi ews (and, by extension, changed circumstance[s]
reviews)"125, which effectively prohibit the practice of zeroing in these reviews.
73. Brazil further submits that the Appellate Body should uphold the Panel's finding that zeroing
in original investigations is inconsistent, as such, with the Anti-Dumping Agreement . The United
States' argument that the zeroing methodology is not a measure, but rather a mere "abstraction" 126,
is "disingenuous".127 Indeed, the Appellate Body should "go further" than the Panel and find that the
zeroing methodology applied "in any context" is, as such, inconsistent with the Anti-Dumping
Agreement.128
74. Regarding the issue of whether the zeroing methodology is challengeable, as such, Brazil
contends that the United States erroneously interpre ts previous Appellate Body findings as confining
challengeable practices to situations where a Member has explicitly c odified a practice, "separate and
apart from the case-specific decisions themselves".129 Brazil recalls that the Appellate Body stated, in
US – Corrosion-Resistant Steel Sunset Review , that "any act or omission attributable to a WTO
Member can be a measure of that Member fo r purposes of dispute settlement proceedings." 130
According to Brazil, the view that the zeroing me thodology is a measure is supported by Article 18.4
of the Anti-Dumping Agreement, which, according to the Appellate Body, covers "the entire body of
generally applicable rules, norms, and standards adopted by Members in connection with the conduct
of anti-dumping proceedings." 131 Further, Brazil submits that, in US – Hot-Rolled Steel and US –
Countervailing Measures on Certain EC Products , the Appellate Body "reach[ed] the conclusion that
a measure of general and prospective application— like the zeroing methodology—is inconsistent with

124Brazil's third participant's submission, para. 16.
125Ibid., para. 18 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
paras. 109, 126-127, 130, and 135).
127Ibid., para. 20.
128Ibid.
129Ibid., para. 21.
130Ibid. (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 81).
131Ibid. (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 87).

WTO obligations."132 The zeroing methodology, according to Brazil, is no different from the "arm's
length test or the 'same person' methodology"133, which were of concern in those two cases.
3. China
75. China argues that the Panel erred in finding that the word "investigation" in Article 2.4.2 of
the Anti-Dumping Agreement refers only to original investigations pursuant to Article 5, and that,
consequently, the disciplines contained in Article 2. 4.2 apply only to those investigations. China
submits that the meaning of the word "investigatio n" in Article 2.4.2 should be determined with
reference to the ordinary meaning of the word, wh ich suggests "systematic examination" or "careful
study of a particular subject". 134 Moreover, in China's view, the phrase "the existence of margins of
dumping during the investigation phase" in Article 2.4.2, when read as a whole, cannot limit the
application of Article 2.4.2 to original investiga tions. Absent any explicit "qualification or cross-
reference"
135, the word "investigation" in Article 2.4.2 s hould be read as referring to the entire anti-
dumping investigation, including reviews. China also disagrees that it is only in original
investigations that the investigating authority needs to determine the "existence of margins of
dumping". In administrative reviews, the United States assesses the final lia bility for payment of
anti-dumping duty amounts, but at the same time de termines the new cash-deposit rate. In such a
proceeding, the investigating authority must al so determine the existence and magnitude of
dumping margins. In China's view, the "existen ce" and "magnitude" of dumping are not "mutually
exclusive".136
76. China also argues that the term "margins of dumping" should be applied consistently
throughout the Anti-Dumping Agreement. Thus, the correct interpretation of Article 2.4.2 is that any
investigation with respect to margins of dumping should be subject to the rules of comparison set
forth in that provision. China further ar gues that the Appellate Body ruled, in US – Corrosion-
Resistant Steel Sunset Review 137, that an anti-dumping proceedin g relying upon dumping margins
must conform to the disciplines of Article 2.4.

132Brazil's third participant's submission, para . 23 (referring to Appellate Body Report, US –
Countervailing Measures on Certain EC Products , paras. 137, 147, and 151; and Appellate Body Report,
US – Hot-Rolled Steel, pars. 131, 148, and 158).
133Ibid., para. 25.
134China's third participant's submission, para. 8 (quoting dictionary definitions from The New Shorter
Oxford English Dictionary, L. Brown (ed.) (Clarendon Press, 1993)).
135Ibid., para. 9.
136Ibid., para. 11.
137See Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 127 (quoted in
China's third participant's submission, para. 13).

77. China submits that the cross-references contained in the texts of Articles 2 and 9.3 of the Anti-
Dumping Agreement demonstrate that the disciplines of Article 2 apply to Article 9.3 assessment
proceedings. Furthermore, the reference in Article 9.4(ii) of the Anti-Dumping Agreement to the
calculation of anti-dumping duties based on pros pective normal value does not exclude the
applicability of Article 2 to assessment proceedings under Article 9.3. The chapeau of Article 9.4
indicates that Article 9.4 is "a special provi sion applying in a particular situation"
138—that is, with
respect to sampling and prospective assessments—with respect to particular subject matters, namely,
imports from exporters or producers not included in the examination. Article 9.4(ii) should be
interpreted in the light of Article 2.4, which sets fo rth certain "general principles"; the "export prices
of exporters or producers not individually examin ed", referred to in Article 9.4(ii) should be
interpreted as referring to average export prices of su ch exporters or producers. China observes that,
"even if a provisional duty might be collected on the basis of [an] asymmetrical comparison under
Article 9.4(ii)"
139, final duty liability must be determined in accordance with the provisions of
Article 2 of the Anti-Dumping Agreement, including Article 2.4.2.
4. Hong Kong, China
78. Pursuant to Rule 24(2) of the Working Procedures, Hong Kong, China chose not to submit a
third participant's submission. Hong Kong, Ch ina's statement at the oral hearing focused on
Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement.
5. India
79. Pursuant to Rule 24(2) of the Working Procedures , India chose not to submit a third
participant's submission. India's statement at th e oral hearing focused on Article 2.4.2 of the Anti-
Dumping Agreement.
6. Japan
80. Japan submits that the Appellate Body should reverse the Panel's finding that the United
States did not act inconsistently with Articles 2.4, 9.3, and 18.4 of the Anti-Dumping Agreement and
Articles VI:1 and VI:2 of the GATT 1994 by a pplying the zeroing methodology in duty assessment
proceedings under Article 9.3 of the Anti-Dumping Agreement.
81. Japan asserts that zeroing methodology necessarily prevents a determination of the margin of
dumping for the product as a whole and, therefore, is inconsistent, as such, with Article 2.1 of the

138China's third participant's submission, para. 17.
139Ibid., para. 20.

Anti-Dumping Agreement and Article VI of the GATT 1994. Th e inclusion of solely positive results
means that the determination of the amount of "dumpi ng" is made for a sub-group of transactions that
comprises only a part of the product, and not for the product as a whole. In Japan's view, the
requirement that a margin of dumping be determined for the product as a whole applies to the entire
Anti-Dumping Agreement . Consequently, the zeroing methodology is inconsistent with Article 9.3
when applied in duty assessment pro ceedings; with Article 9.5 when applied in new shipper reviews;
with Article 11.2 when applied in changed circum stances reviews; and with Article 11.3 when
applied in sunset reviews.
82. Japan argues that the text, context, and the object and purpose of the Anti-Dumping
Agreement, as well as the Appellate Body's ruling in US – Softwood Lumber V , confirm that the
existence and amount of "dumping" are defined, in Article 2.1, for the product as a whole and not for
individual transactions or group of transactions.
83. Furthermore, according to Japan, the definition of dumping in Article 2.1 applies to all types
of reviews. The Panel failed to recognize that a uniform definition of dumping exists and governs the
determination of the existence a nd amount of dumping in all forms of reviews and, thus, erroneously
rejected the "product as a whole" definition for duty assessment proceedings. The Panel's finding that
zeroing is permissible in duty assessment proceedings w as based, to a large extent, on its finding that
the purpose of original investigations is differe nt from the purpose of duty assessment proceedings.
Japan submits that the purpose of a duty assessment proceeding is not to determine the amount of duty
on "particular import transactions" 140; rather, it is to determine "whether the amount of duties
initially imposed on the product is appropriate" 141 in the light of the amount of dumping for the
review period. Moreover, a dumping margin dete rmination in any anti-dumping proceeding involves
a determination whether dumping exists, even if the legal consequences of the determination in
original investigations and duty assessment proceedings may differ.
84. Japan also submits that the Panel incorrectly rejected an exporter-oriented approach. The
Panel did so on the basis of what Japan consider s to be the Panel's mistaken perception that
"dumping" is determined, and duties are imposed, on individual transactions and not on the product as
a whole. Contrary to the Panel, Japan does not c onsider that the rules in Article 9.4(ii) of the
Anti-Dumping Agreement on the imposition of variable anti-dumping duties demonstrate that margins
of dumping can be determined for individual transactions.

141Ibid., para. 89. (original emphasis)

85. Finally, Japan argues that the Panel was also wrong in rejecting the "product as a whole"
definition for new shipper reviews, changed circumst ances reviews, and sunset reviews. Even if the
Panel's findings regarding the purpose of duty assessme nt proceedings were correct, the Panel would
still be wrong in assuming that this purpose appli es to new shipper reviews, changed circumstances
reviews, and sunset reviews. In Japan's view, in a new shipper review, the investigating authority
determines whether a producer or exporter that was not shipping during the original investigations is
engaging in "dumping". If this is found to be the case, the investigating authority imposes duties
based on individually determined dumping margins. For the new shipper, this determination is
similar to the dumping determination made in th e original investigations for the individually
examined producers and exporters. The word "dumpi ng" also has the same meaning in Article 2.1
and Articles 11.2 and 11.3 of the Anti-Dumping Agreement —the provisions governing changed
circumstances reviews and sunset reviews.
86. Japan submits that the Appellate Body should reverse the Panel's finding that "zeroing is
consistent with Article 2.4 in all reviews".
142 In Japan's view, zeroing does not involve a "fair
comparison" within the meaning of Article 2.4.
87. In Japan's view, the Panel erred in finding th at the "fair comparison" requirement does not
create any obligations additional to the express requi rements of Article 2. According to Japan, the
ordinary meaning of the word "fair" requires the investigating authority to conduct an unbiased, even-
handed comparison that does not favour particular interests or outcomes, or otherwise distort the facts,
in particular, to the detriment of exporters or foreign producers. 143 In contrast, zeroing excludes all
negative multiple comparison results produced by hi gh-priced export transactions, thereby making an
affirmative dumping determination considerably more likely, as well as inflating the level of any such
determination. Japan points to several consequen ces of zeroing: it "may lead to an affirmative
determination of dumping" where no determination of dumping would have been made in the absence
of zeroing; it "inflates" any dumping margin because the excluded negative values would otherwise
reduce the amount of dumping; and it treats the e xport prices in excluded transactions as if they were
less than what they are in reality.144
88. Japan argues that, furthermore, the zeroing met hodology involves a form of adjustment to the
prices compared that is not permitted under the thir d sentence of Article 2.4. According to Japan,
zeroing is "unfair" when used in any kind of proceedings. Japan bases its assertion on the fact that the
Appellate Body has held that Article 2.4 a pplies to duty assessment proceedings and sunset

142Japan's third participant's submission, heading VI, p. 42.
143Ibid., para. 157.
144Ibid., para. 158.

reviews.145 Japan submits that the absence of a formal finding by the Appellate Body that zeroing is
not "fair" within the meaning of Article 2.4 is not du e to the "fairness" of zeroing; rather, in previous
disputes, particular circumstances prevented or obvi ated the need for the Appellate Body to make a
formal ruling under Article 2.4. Japan finally adds that, because the Panel incorrectly articulated the
purpose of duty assessment proceedings, it also erred in finding that zeroing is "fair" in the light of
that alleged purpose.
89. In Japan's view, contrary to the Panel's findi ng, the second sentence of Article 2.4.2 does not
permit an authority to engage in zeroing. The second sentence does not prescribe how the average-to-
transaction comparison should be structured; however , "the distinguishing features of the comparison
must be rooted in the particular conditions that justify its use." 146 That comparison methodology is
based on a targeted selection of the export transactions that constitute a particular pricing pattern.
Japan suggests that the use of such a comparison methodology does not prescribe the treatment of
transactions outside that pattern; nonetheless, zeroi ng is prohibited in those circumstances. Japan
maintains that, even if, arguendo, the second sentence allowed zeroing, such zeroing would be
permitted exclusively when the conditions in the sec ond sentence of Article 2.4.2 are satisfied. The
Panel failed to explain why it is appropriate to ex tend the alleged permissibility of zeroing from the
second sentence of Article 2.4.2 to all reviews under Articles 9 and 11.
90. Although, in Japan's view, the Appellate Body could decline to rule on whether zeroing is
permitted under the second sentence of Article 2.4.2, a finding that zeroing is not permitted under the
second sentence of Article 2.4.2 would, in its view , assist the parties in the implementation of the
DSB's recommendations and rulings in this dispute.
7. Korea
91. Korea agrees with the Panel th at the zeroing methodology is a measure inconsistent, as such,
with Article 2.4.2 of the Anti-Dumping Agreement . However, Korea disagrees with the Panel that
zeroing is permitted in administrative reviews. In Korea's view, the zeroing methodology must be
prohibited in all types of anti-dumping proceedings—i ncluding original investigations as well as
administrative reviews—because that methodology constitutes a violation of Articles 2.4 and 2.4.2 of
the Anti-Dumping Agreement , as held previously by the Appellate Body in EC – Bed Linen ,
US – Corrosion-Resistant Steel Sunset Review, and US – Softwood Lumber V.

145Japan's third participant's submission, para. 176 (referring to Appellate Body Report, US –
Corrosion-Resistant Steel Sunset Review, paras 127 and 135).
146Ibid., para. 191.

92. Korea submits that the amount of the anti-dum ping duty must never exceed the margin of
dumping. As a result, an investigating authority, in calculating a dumping margin, must consider the
entire set of data from the investigation period and must calculate a margin of dumping for the
"product as a whole". The investigating authorit y may compare only normal value and export price
adjusted for differences affecting price comparability. Korea argues that an investigating authority
must conform to these rules in all types of anti-dumping proceedings "in which a margin of dumping
is investigated or relied on, whether it is an original investigation or subsequent reviews."
147
Therefore, one cannot argue that the authority is exempt, in the course of an administrative review,
from the obligation to ensure that the amount of the anti-dumping duty does not exceed the margin of
dumping. Hence, the Panel erred in finding that differe nt sets of rules apply to original investigations
and to administrative reviews. Moreover, it "defies common sense" 148 to prohibit zeroing in original
investigations, but to permit it in administrative re views, when the latter "constitutes an extension of
the former".149 In Korea's view, applying what it considers to be "two different rules" in an original
investigation, on the one hand, and in an administ rative review, on the other hand, "would render the
key principle of the [Anti-Dumping] Agreement simply meaningless."150
93. Korea also submits that the "fair comparison" re quirement of Article 2.4 is an "overarching
and independent obligation" 151 that goes beyond the obligation to make "due allowances" described
in the other sentences of Article 2.4 and that applies to all dumping calculations. This is confirmed by
the negotiating history of the Anti-Dumping Agreement, and by the fact that the first sentence of the
corresponding provision of the Tokyo Round Anti-Dump ing Code read "in order to effect a fair
comparison"; it should not be presumed that the draf ters of the new agreement would have made this
change without a specific intent. As a result, the wording of Article 2.4 of the Anti-Dumping
Agreement, in contrast, contains "a separate and explicit command" 152 requiring a "fair comparison".
By virtue of zeroing, the investigating authority methodically fails to take into account all export
transactions for the product as a whole, which, ther efore, inevitably leads to an "unfair comparison",
contrary to Article 2.4. Korea further argues that, "[t]o the extent that a dumping margin is effectively
calculated"153, the "fair comparison" requirement is also applicable in administrative reviews.

147Korea's third participant's submission, para. 13.
148Ibid., para. 15.
149Ibid.
150Ibid., para. 14.
151Ibid., para. 17.
152Ibid., para. 20.
153Ibid., para. 24.

94. Finally, Korea submits that reviews under Artic le 9.3 are part of "the investigation phase"
referred to in Article 2.4.2. The ordinary meaning of the word "investigation" indicates "a systematic
examination or inquiry or a careful study or research into a particular subject" 154, rather than referring
to the original investigation. This is not a sp ecialized meaning of the word, as argued by the United
States. Korea also submits that several panel and Ap pellate Body reports have used the term "original
investigations"—as opposed to "investigations"—to re fer to Article 5.1 investigations, and that the
adjective "original" carries some specific meaning in all these instances. 155 Rather, it is the United
States itself, in Korea's view, that has failed to pr ove the more special meaning it seeks to ascribe to
this word. Moreover, in Korea's vi ew, the Appellate Body's findings in US – Corrosion-Resistant
Steel Sunset Review suggest that the term "investigation phase" in Article 2.4.2 refers to the portion
of any proceeding—original investigation or revi ew—in which an authority "investigates" whether
dumping has occurred.
8. Mexico
95. Mexico argues that the Panel failed to take proper account of the meaning of the terms
"dumping" and "margin of dumping" as used in Article VI of the GATT 1994 and in the Anti-
Dumping Agreement. Mexico notes that, in EC – Bed Linen 156 and US – Softwood Lumber V 157, the
Appellate Body held that dumping can be found only fo r the product "as a whole", and that the results
of intermediate comparisons are not actually "margins of dumping". At the same time, Mexico argues
that the Appellate Body's analysis in EC – Bed Linen is not limited to Article 2.4.2 of the Anti-
Dumping Agreement , or to any particular type of proceeding governed by that Agreement. The
United States' and the Panel's insistence that "mar gins" and "margins of dumping" may be determined
at the level of individual import transactions in administrative reviews are "totally unsupported" 158 in
the text and context of the Anti-Dumping Agreement . According to Mexico, the definitions of
"margins" and "margin of dumping" also apply in ad ministrative reviews. The Panel's contrary view
does not even reflect the real nature of the measur es applied by the United States, which, according to
Mexico, are not "import-specific", because, "for both assessment purposes and for purposes of

154Korea's third participant's submission, pa ra. 30 (citing dictionary definitions in The New Shorter
Oxford English Dictionary, L. Brown (ed.) (Clarendon Press, 1993)).
155Ibid., para. 31 (referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews
(54 instances); Panel Report, US – DRAMS , para. 2.3; and Panel Report, US – Countervailing Measures on
Certain EC Products, para. 7.114 and footnote 295).
156See Mexico's third participant's submission, paras. 11-12 (referring to Appellate Body Report,
EC – Bed Linen, paras. 51 and 53).
157See ibid., paras. 13-15 (referring to Appellate Body Report, US – Softwood Lumber V, paras. 93 and
96-103).
158Ibid., para. 18.

updating the [cash-deposit rate] for future entries"
159, the United States calcula tes an average margin
of dumping for the product as a whole.
96. Mexico further argues that the Appellate B ody has "clearly established that the 'fair
comparison' requirement of Article 2.4, which is e qually applicable in original investigations and
administrative reviews, is sufficient in itself to condemn zeroing." 160 Article 2.4 does not proscribe
asymmetrical methods of comparison as "unfair". Moreover, Article 2.4 also addresses zeroing,
because failure to take into account all transactions in calculating a "margin of dumping" is inherently
"unfair" within the meaning of that provision. Me xico argues that previous rulings of the Appellate
Body have recognized the "inherent bias" in the pr actice of zeroing and, thus, contrary to what the
Panel suggested, condemned zeroing not only under Article 2.4.2, but also under Article 2.4.
97. Mexico next argues that zeroing, as applied in administrative reviews, effectively constitutes
an adjustment to the export price that is not authorized under the second through fifth sentences of
Article 2.4 of the Anti-Dumping Agreement . Mexico also disagrees w ith the Panel that such
"elimination of zeroing from the average-to-transaction methodology 'would as a matter of
mathematics produce a result that was identical to that of the first, average-to-average,
methodology.'"
161 Such mathematical equivalence does not apply if the monthly weighted-average-
to-transaction methodology is employed—which, according to Mexico, is the case in the present
dispute.
98. Finally, Mexico agrees with the European Comm unities that the application of Article 2.4.2
of the Anti-Dumping Agreement is not restricted to original investigations but, rather, applies to all
types of anti-dumping proceedings. Mexico argues that a prohibition of zer oing in administrative
reviews is not contingent upon whether Article 2.4. 2 is found to be applicable to administrative
reviews. This is because the obligation not "to zer o" negative results in aggregating the results of
comparisons is derived from Article VI of the GATT 1994; Article 2.1 of the Anti-Dumping
Agreement; the requirement that margins of dumping be calculated for the product as a whole;
as well as from the "fair comparison" in Article 2.4 and the third through fifth sentences of Article 2.4
that permit adjustments only for differences af fecting price comparability—all independently of
Article 2.4.2. In any event, Mexico submits that the ordinary meaning, the grammatical construction

159Mexico's third participant's submission, para. 33.
160Ibid., para. 51 (referring to Appellate Body Reports in EC – Bed Linen ; US – Corrosion-Resistant
Steel Sunset Reviews; and US – Softwood Lumber V).

of "material terms", as well as the context of the phrase "during the investigation phase" suggest that
the scope of application of Article 2.4.2 is not restricted to original investigations.
9. Norway
99. Norway argues that Articles 2.1, 6.10, and 9.3 of the Anti-Dumping Agreement, Article VI of
the GATT 1994, as well as previous findings of the Appellate Body support its position that dumping
must be calculated for the product "as a whole" in all proceedings under the Anti-Dumping
Agreement, except for proceedings under the second and third method contemplated under
Article 2.4.2.162 Exceptions to this principle must be clearly provided for in the Anti-Dumping
Agreement or in Article VI of the GATT 1994. According to Norway, the only legal basis for
deviating from establishing dumping margins based on the product as a whole can be found in the
second sentence of Article 2.4.2 of the Anti-Dumping Agreement. In the absence of such exceptions,
"there is no basis for not calculating the dumping margin based on the product as a whole." 163
Furthermore, even where such exceptions apply, the calculations must fulfil the "fair comparison"
requirement in Article 2.4, which also prohibits the practice of zeroing.
100. The Appellate Body has previously found that model zeroing, used in the weighted-average-
to-weighted-average methodology, is prohibited. 164 According to Norway, the same approach should
be applied to other forms of zeroing, such as si mple zeroing, because this methodology results in
margins that are not based on the product "as a w hole". Norway further submits that zeroing is
contrary to the requirement of "fair comparison" in Article 2.4 of the Anti-Dumping Agreement. A
calculation of the dumping margin that is not b ased on the product as a whole, but, rather, based on
"fractions" of the product, is "inherently unfair in itself." 165 In this respect, Norway notes that the
Appellate Body has already stated on two occasions that there is an "inherent bias" in the zeroing
methodology, and that zeroing does not involve a "fair comparison". 166 Moreover, according to
Norway, Article 9.3.1 of the Anti-Dumping Agreement provides no textual basis for the Panel's
conclusions concerning specific asymmetrical methodologies, or for an assertion that an asymmetrical
methodology necessarily involves zeroing, or for an assertion that "Article 9.3.1 implies an importer

162See Norway's third participant's submission, paras. 16-17 (referring to Appellate Body Report,
EC – Bed Linen, para. 53; and Appellate Body Report, US – Softwood Lumber V, paras. 93 and 99).
163Ibid., para. 24.
164See ibid., paras. 26-27 (referring to Appellate Body Report, EC – Bed Linen , para. 55; Appellate
Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 135; and Appellate Body Report, US –
Softwood Lumber V, para. 98).
165Ibid., para. 32.
166See ibid., paras. 33-34 (referring to Appellate Body Report, EC – Bed Linen, para. 55; and Appellate
Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 135).

focus".
167 In any event, Norway submits, "Article 9.3.1 ... cannot be used to override the 'fair
comparison' requirement or lead to an interpretation that permits zeroing in assessment reviews."168
101. Furthermore, according to Norway, the Pa nel erred in permitting a methodology in
administrative reviews based on importer-focused and asymmetrical comparisons with zeroing.
Regardless of the particular point in time at which the relevant determination is made, all
determinations of dumping and all calculations of dumping margins must follow Article 2 of the Anti-
Dumping Agreement . In other words, according to Norw ay, "[d]umping margins can only be
established by applying the methodologies provided for in Article 2."
169 Calculating them differently
in administrative reviews, Norway argues, "is a clear violation of the chapeau of Article 9.3 [as well
as] the basic principle of 'security and predictability' in international trading relations".170
102. Norway disagrees with what it considers to be an implication of the Panel's finding, namely,
that "there are no specifics as to the methodologies to be applied in determining dumping margins in
reviews and [this] effectively abolish[es] ... the 'due process rights' for the exporter." 171 T h i s i s a
"manifestly absurd" 172 result, and is contrary to the object and purpose of the treaty. Norway also
notes that "[a]ll departures from Article 2 will be breaches of the [ Anti-Dumping Agreement] as also
specifically provided for in Article 18.1" 173 of that Agreement. Norway therefore disagrees with the
Panel's interpretation that the phrase "the existen ce of margins of dumping during the investigation
phase" limits the application of Article 2.4.2 to the original investigations and is not applicable to
reviews, including administrative reviews under Article 9.3 of the Anti-Dumping Agreement.
10. Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu
103. The Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu disagrees with the
Panel's finding that Article 2.4.2 of the Anti-Dumping Agreement applies exclusively to original
investigations, as opposed to the subsequent phases of duty assessment proceedings and reviews. The
word "investigation" in this Article must be in terpreted in the light of its "specific context". 174 The

167Norway's third participant's submission, para. 42 (referring to Panel Report, paras. 7.204-7.206).
168Ibid., para. 55.
169Ibid., para. 56.
170Ibid.
171Ibid., para. 63.
172Ibid.
173Ibid., para. 56.
174Third participant's submission of the Separate Customs Territory of Taiwan, Penghu, Kinmen, and
Matsu, para. 13.

term is used in a "large number" 175 of provisions of the Anti-Dumping Agreement, but does not have
the same meaning in all cases: in certain provisions it must be interpreted "narrowly" (as referring
only to original investigations); in other provi sions it should be read as having a broader meaning
(covering original investigations as well as duty asse ssment proceedings and reviews). The Separate
Customs Territory of Taiwan, Penghu, Kinmen, a nd Matsu observes that Article 2.1 of the Anti-
Dumping Agreement defines "dumping" "[f]or the purpose of this Agreement". Therefore, "the
purpose of Article 2 would be frustrated if Article 2, including Articles 2.4 and 2.4.2, is not generally
applicable."176
104. Moreover, the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu agrees
with the dissenting opinion of one Panel member that the term "investigation phase" should be
understood to mean "investigation period". This is supported by the fact that the existence of
dumping is established not only in the original inv estigation, but also in duty assessment proceedings
and reviews. Moreover, the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu
submits that administrative reviews are periodic reviews of the amount of the anti-dumping duty, in
which investigating authorities analyze past tran sactions that took place in a given period and
ascertain "whether there was actually dumping and the amount of such dumping."
177
105. The Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu disagrees with the
Panel's finding that Article 2.4.2 of the Anti-Dumping Agreement does not apply to duty assessment
proceedings pursuant to Article 9.3. Article 9.3 makes an explicit reference to Article 2 of the
Anti-Dumping Agreement . Cross-references in the Anti-Dumping Agreement , according to the
Separate Customs Territory of Ta iwan, Penghu, Kinmen, and Matsu, are "highly relevant and should
not be ignored". 178 Furthermore, prohibiting zeroing in original investigations, but not in duty
assessment proceedings, "would lead to absurd results" 179 and undermine the effectiveness of
Article 2.4.2. The investigating authority would be required to determine dumping margins without
using zeroing only in original investigations, but would be allowed to apply such zeroing in duty
assessment proceedings with respect to the same product in subsequent reviews. The Separate
Customs Territory of Taiwan, Penghu, Kinmen, and Matsu submits that the Appellate Body's ruling in
 US – Corrosion-Resistant Steel Sunset Review demonstrates that, "to the extent that investigating

175Third participant's submission of the Separate Customs Territory of Taiwan, Penghu, Kinmen, and
Matsu, para. 11.
176Ibid., para. 13.
177Ibid., [second] para. 16.
178Ibid., para. 19.
179Ibid., para. 22.

authorities rely on dumping margins, they must c onform to the disciplines of Article 2.4, including
Article 2.4.2."
180
106. The Separate Customs Territory of Taiw an, Penghu, Kinmen, and Matsu furthermore
disagrees that the obligation to make a "fair comparison" does not preclude zeroing in duty
assessment proceedings under Article 9.3. Article 2.4 of the Anti-Dumping Agreement embodies an
overarching and independent principle that "must be followed in any dumping determination". 181 The
"fair comparison" requirement "necessarily implies an unbiased comparison" 182, that is, a comparison
that takes into account all data related to nor mal value and to the export price for purposes of
calculating a margin of dumping for an exporter.

III. Issues Raised in This Appeal
107. The following issues are raised in this appeal:
(a) with respect to the administrative reviews at issue in this case:
(i) whether the Panel erred in finding that the United States did not act
inconsistently with Article 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994;
(ii) whether the Panel erred in finding that the United States did not act
inconsistently with the obligation in the first sentence of Article 2.4
of the Anti-Dumping Agreement to make a "fair comparison"
between the export price and the normal value;
(iii) whether the Panel erred in finding that zeroing is not an
impermissible allowance or adjustment under Article 2.4 of the Anti-
Dumping Agreement, third to fifth sentences;
(iv) whether the Panel erred in finding that the United States did not act
inconsistently with Article 2.4.2 of the Anti-Dumping Agreement
when, in the administrative review s at issue, it used a methodology
that involved asymmetrical comparisons between export prices and

180Third participant's submission of the Separate Customs Territory of Taiwan, Penghu, Kinmen, and
Matsu, para. 25.
181Ibid., para. 30.
182Ibid., para. 32.

normal value, and in which no account was taken of any amount by
which export prices exceeded normal value;
(v) whether the Panel erred in finding that zeroing, as applied in the
administrative reviews at issue, is not inconsistent with Articles 11.1
and 11.2 of the Anti-Dumping Agreement; and
(vi) whether the Panel erred in finding that the zeroing methodology,
as applied in the administrative reviews at issue, is not inconsistent
with Articles 1 and 18.4 of the Anti-Dumping Agreement and
Article XVI:4 of the WTO Agreement;
(b) whether, the Panel erred in finding that the zeroing methodology, as it relates to
original investigations, is a "norm" that is inconsistent, as such, with Article 2.4.2 of
the Anti-Dumping Agreement, specifically:
(i) whether the Panel erred in finding that the zeroing methodology can be
challenged, as such, in WTO dispute settlement;
(ii) whether the Panel failed to conduct an objective assessment of the matter
before it, including an objective assessment of the facts of the case, as
required by Article 11 of the DSU; and
(iii) whether the Panel erred in finding th at the European Communities had made
out a prima facie case with respect to the zeroing methodology;
(c) whether the Panel erred in finding that the zeroing methodology used by the United
States in administrative reviews is not inconsistent, as such, with Articles 1, 2.4,
2.4.2, 9.3, 11.1, 11.2, and 18.4 of the Anti-Dumping Agreement , Articles VI:1 and
VI:2 of the GATT 1994, and Article XVI:4 of the WTO Agreement;
(d) whether the Panel erred in finding that the United States' Standard Zeroing
Procedures are not inconsistent, as such, with Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1,
11.2, 11.3, and 18.4 of the Anti-Dumping Agreement , Articles VI:1 and VI:2 of the
GATT 1994, and Article XVI:4 of the WTO Agreement;
(e) whether the Panel erred in exercising judicial economy with respect to whether the
1997 edition of the Import Administration Antidumping Manual (the "Anti-Dumping
Manual") is a measure that is inconsistent, as such, with Articles 1, 2.4, 2.4.2, 5.8,

9.3, 9.5, 11.1, 11.2, 11.3, and 18.4 of the Anti-Dumping Agreement , Articles VI:1
and VI:2 of the GATT 1994, and Article XVI:4 of the WTO Agreement;
(f) whether the Panel erred in exercising judi cial economy concerning the consistency of
the United States' "practice" of zeroing;
(g) whether the Panel erred in finding that Section 351.414(c)(2) of the United States
Department of Commerce (the "USDOC") Re gulations, is not inconsistent, as such,
with Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4 of the Anti-Dumping
Agreement, Articles VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of the WTO
Agreement;
(h) whether the Panel erred in exercising judicial economy:
(i) with respect to whether administrative review proceedings, based on "model
zeroing"
183, are consistent with Article 9.3 of the Anti-Dumping Agreement;
and
(ii) with respect to whether zeroing, as applie d in the original investigations at
issue, is inconsistent with Article 2.4 of the Anti-Dumping Agreement; and
(i) whether the Panel acted inconsistently with Article 11 of the DSU by failing to make
an objective assessment of the matter before it, including an objective assessment of
the facts of the case.

IV. "As Applied" Claims Brought on Appeal by the European Communities
A. Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994
108. We examine, first, the issue of whether the Pa nel erred in finding that the United States did
not act inconsistently with the requirement, in Article 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994, that the amount of the anti-dumping duty "shall not exceed" or be
"greater in amount than" the margin of dumping. This issue relates to th e European Communities'
challenge of the zeroing methodology, as applied by the United States in the administrative reviews of
anti-dumping duty orders listed in Exhibits EC-16 through EC-31. This zeroing methodology is one
aspect of the assessment and collection of anti-dumping duties in the United States.

183See supra, footnote 8.

1. Assessment and Collection of Anti-dumping Duties in the United States
109. The assessment and collection of anti-dumping dut ies in the United States can be broadly
described in the following terms. 184 The United States system of duty assessment operates on a
retrospective basis. Under this system, the Unite d States collects security in the form of a cash
deposit at the time a product enters the United Stat es, and determines the amount of duty due on the
entry at a later date. Specifically, once a year (dur ing the anniversary month of the order) interested
parties may request an administrative review, that is to say, a review to determine the amount of
duties owed on entries made during the previous year.185 The amount of anti-dumping duties owed by
each individual importer is calculated on the basis of a comparison of the price of each individual
export transaction with a monthly average normal valu e. The results of these comparisons are then
aggregated and expressed as a percentage of each im porter's United States imports. This constitutes
the assessment rate that is then applied to the entries that occurred during the period reviewed. The
amount of dumping found on all imports from a given e xporter is also used to derive a cash-deposit
rate that will apply on future entries from that expor ter. If no administrative review is requested, the
cash deposits made on the entries during the previous year are automatically assessed as the final
duties and serve as the basis for the cash deposit fo r the following period. Final anti-dumping duty
liability for past entries and the new cash-deposit rate for future entries are calculated by the USDOC
and published in a Notice of Final Results of Antidumping Duty Administrative Reviews.
110. When assessing an importer's final liability fo r paying anti-dumping duties and any future
cash-deposit rate, the United States applies a methodology that the European Communities refers to as
"simple zeroing".
186 When comparing a weighted-average normal value with the price of an
individual export transaction, the amount by which the normal value exceeds the export price is
considered to be the "dumped" amount for that ex port transaction. If the export price exceeds normal
value, the result of that particular comparison is considered to be zero. The total amount of dumping
for each importer is calculated by aggregating the results of each comparison for which the average
normal value exceeds the export price. 187 For each importer, the assessment rate is expressed as a

184This description is based on the description contained in paragraphs 2.4-2.5 of the Panel Report.
185The period of time covered by the USDOC's dut y assessment proceedings is normally 12 months.
However, in the case of the first assessment proceedin g following the issuance of the Notice of Antidumping
Duty Order, the period of time may extend to a period of up to 18 months in order to cover all entries that may
have been subject to provisional anti-dumping measures.
186See supra, footnote 10.
187In other words, while the value of all export tran sactions is included in the denominator of the
fraction used to calculate an overall margin of dumping, the results of the comparisons for which export prices
exceed the average normal value are excluded from the numerator of that fraction.

percentage of the value of all of its imports. The importer is liable to pay the final anti-dumping duty
so assessed.
2. Panel Report

111. As the Panel noted, it is not disputed that ad ministrative reviews fall within the scope of
Article 9 of the Anti-Dumping Agreement ("Imposition and Collection of Anti-Dumping Duties")
and, in particular, Article 9.3. Article 9.3 provi des that "[t]he amount of the anti-dumping duty shall
not exceed the margin of dumping as established unde r Article 2." The Panel considered that "the
threshold legal question before [it] is whether the obligations contained in Article 2.4.2 apply to duty
assessment proceedings provided for in Article 9.3." 188 According to the Panel, finding a violation of
Article 9.3 presupposes that the zeroing methodology applied by the USDOC in the administrative
reviews at issue is inconsistent with Ar ticle 2.4 and/or Article 2.4.2 of the Anti-Dumping
Agreement.189 The Panel was of the view that the obligations contained in Article 2.4.2 do not apply
to duty assessment proceedings provided for in Article 9.3. 190 The Panel also found that, in the
administrative reviews at issue, the United States di d not act inconsistently with Article 2.4 of the
 Anti-Dumping Agreement .191 Accordingly, the Panel found that the USDOC did not act
inconsistently with the requirement set out in Article 9.3. On the basis of this reasoning, the Panel
came to the conclusion that the United States also did not act inconsistently with the requirement
contained in Article VI:2 of the GATT 1994, that an anti-dumping duty shall not be "greater in
amount than the margin of dumping".192
112. The Panel considered that the rules for determ ining the existence of margins of dumping are
distinct and separate from the rules for the impos ition and collection of anti-dumping duties, and that
the amount of duty to be assessed in a proceeding under Article 9.3 is the amount of duty payable on

188Panel Report, para. 7.145.
189Ibid., para. 7.287.
190Ibid., para. 7.220. In analyzing the issue of whether the obligations contained in Article 2.4.2 apply
to duty assessment proceedings provid ed for in Article 9.3, the Panel exam ined the phrase "the existence of
margins of dumping during the investigation phase sha ll normally be established on the basis of [certain
comparison methods]" in Article 2.4.2. For the Panel, th e term "investigation phase" in Article 2.4.2 is the key
term and should be read as referring to the concept of "investigation" as used in Article 5. The Panel also
reviewed the use of "investigation" and "investigations" in Articles 1, 3, 6, 7, 8, 10, and 12 of the Anti-Dumping
Agreement. From this review of the context, the Panel c oncluded that, where these words refer to a proceeding
or a phase of a proceeding, they ar e limited to investigations within the meaning of Article 5.1 of the Anti-
Dumping Agreement, and that the Anti-Dumping Agreement typically does not use the words "investigation" and
"investigations" in relation to proceedings that take place after an anti-dumping measure has been imposed. (See
also Section IX of the Panel Report for the dissenting opinion of one member of the Panel on the interpretation
of Article 2.4.2)
191Ibid., para. 7.284. For a summary of the Panel's reasoning, see infra, paras. 138-141 and 150.
192Panel Report, paras. 7.287-7.288.

imports of the product subject to the anti-dumping orde r (the "subject product"). For the Panel, the
three methods for establishing the existence of marg ins of dumping set out in Article 2.4.2 apply only
in the context of an investigation within the mean ing of Article 5, and this may be explained by
qualitative differences between the purpose of an i nvestigation under Article 5 and the purposes of
subsequent phases of anti-dumping proceedings.193 The Panel reasoned that considerations relevant to
an appropriate comparison methodology in investig ations to determine whether dumping exists "may
not apply with equal force to the design of a methodology for determining the final liability for
payment of anti-dumping duties." 194 According to the Panel, th e fact that, in an assessment
proceeding under Article 9.3, the margin of dumpi ng must be related to the liability incurred in
respect of particular import transactions, distingui shes Article 9.3 proceedings from investigations
within the meaning of Article 5. The Panel reasone d that, in an investigation within the meaning of
Article 5, the focus is on the overall pricing be haviour of exporters, because the objective is to
determine whether dumping exists in order to c onclude whether or not the imposition of an anti-
dumping measure is justified. The Panel consider ed that investigations carried out pursuant to
Article 5 must be contrasted with proceedings gov erned by Article 9.3, in which "the extent of
dumping found with respect to a particular exporter mu st be translated into an amount of liability for
payment of anti-dumping duties by importers in respect of specific import transactions."195
113. The Panel rejected the European Communities' argument that "Article 9.3 must be interpreted
in light of Article 2.4.2 and therefore prohi bits duty assessment on a transaction-specific and
importer-specific basis [and] that all export transacti ons that fall within the time period covered by a
review must be treated as a whole rather than being treated individually." 196 The Panel reasoned that
if this contention were accepted, an importer might incur liability for payment of anti-dumping duties
on an individual import transaction when the expor ter's average export price is below the average
normal value, regardless of the export price of that particular transaction.197 The Panel considered that
there is no textual support in Article 9.3 for the view that the Anti-Dumping Agreement requires an
exporter-oriented assessment of anti-dumping duties 198, and that, if that were the case, an importer
would be liable to pay anti-dumping duties on an import of the subject product when the export price
in that transaction exceeds the average normal value.
199

193Panel Report, para. 7.200.
194Ibid., para. 7.201.
195Ibid.
196Ibid., para. 7.203.
197Ibid.
198Ibid., para. 7.204.
199Ibid., para. 7.207.

3. Submissions of the Participants

114. On appeal, the European Communities challe nges the Panel's findings with respect to
Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994. For the European
Communities, the disagreement between the part ies flows, in essence, from their respective
interpretations of the terms "dumping" and "margin of dumping" in the Anti-Dumping Agreement ,
and whether these terms apply at the level of the pr oduct as a whole, or at the level of a comparison
between a weighted-average normal valu e and an individual export transaction. 200 The European
Communities contends that the terms "dumping" and "margin of dumping" are defined in relation to a
product as a whole, and that, accordingly, these terms cannot, in principle, apply only for a type,
model, or category of that product, including a "cat egory" of one or more relatively low-priced export
transactions.201
115. According to the European Communities, an investigating authority may undertake multiple
intermediate comparisons when establishing marg ins of dumping. However, the European
Communities argues that, because th e margins of dumping must be established for the product under
investigation as a whole, the investigating authority is required to aggregate the results of all of these
multiple intermediate comparisons. According to the European Communities, not taking into account
the full amounts by which the individual export price exceeds normal value in the aggregation process
is tantamount to disregarding these results. The European Communities maintains that, aside from the
exception for targeted dumping in the second sentence of Article 2.4.2, there is no basis in the Anti-
Dumping Agreement that would justify taking into account the results of some of the multiple
comparisons, while disregarding others.202
116. The European Communities contends that the Pa nel erred in concluding that the Appellate
Body's findings on zeroing in EC – Bed Linen and US – Softwood Lumber V were limited to the
issue of the use of model zeroing in original inv estigations when the margin of dumping is calculated
using the weighted-average-to-wei ghted-average methodology provided for in the first sentence of
Article 2.4.2.203 The European Communities submits that "dumping" and "margins of dumping" can
only be established for the product under investigation as a whole, and that this is in consonance with
the need for consistent treatment of a product in an anti-dumping proceeding. 204 For the European

201Ibid., paras. 59-61.
202Ibid., paras. 62-63.
203Ibid., paras. 64-65 (referring to Appellate Body Report, EC – Bed Linen , para. 53; and Appellate
Body Report, US – Softwood Lumber V, paras. 91-103).
204Ibid., para. 66.

Communities, it is clear that "the obligations and methodologies that apply when a margin of dumping
is investigated or relied upon are the same for the entire [ Anti-Dumping Agreement ], including
'administrative review' proceedings, and that the use of zeroing by the [United States] in the
[administrative reviews] at issue is thus inconsistent with the [Anti-Dumping Agreement]".205
117. The European Communities recalls that the United States' calculation of revised margins of
dumping in administrative reviews, for purposes of est ablishing the cash-deposit rates, is identical in
all relevant respects to the margin calculation perform ed in original investigations. For the European
Communities, there is no basis on which the United St ates can plausibly argue that zeroing, which is
prohibited in original investigations, somehow b ecomes permitted when the same calculation is
carried out in administrative reviews.206
118. According to the European Comm unities, the use of zeroing, in the computation of either the
margin of dumping for cash-deposit purposes, or the amount of duty in the final assessment, inflates
the amount of the anti-dumping duty, as compared to a computation without zeroing. 207 T h e
European Communities claims that, as a result of th e use of zeroing in the administrative reviews at
issue, the amount of the anti-dumping duty exceeds the margin of dumping for the product as a whole.
Therefore, the use of zeroing constitutes a violation of Article 9.3 of the Anti-Dumping Agreement
and Article VI:2 of the GATT 1994.208
119. The United States requests the Appellate Body to dismiss the European Communities' appeal
concerning Article 9.3 of the Anti-Dumping Agreement. The main issue, in the United States' view,
is whether, pursuant to Article 9.3, the United States was required to reduce the amount of dumping
duties levied on particular import transactions to account for other import transactions in which
merchandise was sold at more than norma l value. For the United States, the Anti-Dumping
Agreement does not require such an "offset" when asses sing anti-dumping duties. As a result, the
United States considers that it is permitted to determine such duties on an import-specific basis.209
120. The United States agrees with the Panel that "t he concept of 'margin of dumping' in GATT
Article VI is defined in terms of a price difference in a situation in which a product is introduced into
the commerce of another country at less than its normal value i.e. when the export price of the product

206Ibid., para. 69.
207Ibid., para. 68.
208Ibid., para. 70.

is less than the normal value of the product."
210 According to the United States, the "product" must
be the "product as a whole" when the "price" involves the average of "all comparable export
transactions". However, when a Member uses a comparison methodology other than the average-to-
average methodology, the "price" to which normal valu e is compared is the price of an individual
export transaction. More specifically, during the investigation phase, Article 2.4.2 authorizes the use
of transaction-to-transaction comparisons, or, in sp ecified circumstances, comparisons of individual
export transactions to weighted-avera ge normal values. In either case, the "price" is the price of an
individual export transaction. According to the Un ited States, in these circumstances, the "product"
being introduced into the commerce of the importing Member is the product involved in the particular
export transaction. Moreover, Article 2.4.2 does not require that the results of those multiple
comparisons be aggregated to represent what the European Communities would consider the "product
as a whole", or to be expressed as a percentage.
211
121. Regarding the findings of the Appellate Body in US – Softwood Lumber V, the United States
notes that the Appellate Body expressly recognized that the only issue before it was whether "offsets"
were required under the average-to-average comp arison method found in Article 2.4.2. For the
United States, the Appellate Body's findings in that case were limited to the use of the weighted-
average-to-weighted-average comparison methodology during the investigation phase.212
122. The United States argues that Article 2.4.2 is lim ited to the establishment of the existence of
margins of dumping during the investigation phase. For the United States, the Panel correctly
concluded that the reference to Article 2 in Article 9.3 does not override any limitation contained in
Article 2.4.2 itself. 213 The United States submits that, in contrast to investigations, Article 9.3
assessment proceedings are not investigations and ar e not concerned with the "existential question" of
whether injurious dumping exists. Instead, Article 9 assessment proceedings are concerned with the
measurement of dumping in order to establish the precise amount of an anti-dumping duty that an
importer must pay. 214 Given the different functions of an Article 5 investigation and an Article 9
assessment proceeding, obligations that apply with respect to an Article 5 investigation do not
necessarily apply to an Article 9 assessment proceeding. 215 For the United States, the European
Communities' approach to Article 9.3—namely, that the purpose of a dut y assessment proceeding

210Panel Report, para. 7.59 (quoted in United States' appellee's submission, para. 171). (original
emphasis)
211United States' appellee's submission, paras. 174 and 176.
212Ibid., para. 175.
213Ibid., paras. 47-50.
214Ibid., para. 73.
215Ibid., para. 75.

under Article 9.3.1 is simply "to update the temporal frame for the normal value" and that, therefore,
there is no reason to apply a different comp arison methodology in an assessment proceeding 216—
would improperly prohibit the assessment of anti- dumping duties on an importer- or import-specific
basis.217
4. Analysis
123. The claim brought by the European Communities raises the question whether the Panel erred
in finding that, in the administrative reviews at issu e, the United States did not act inconsistently with
the requirement in Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994
that the amount of the anti-dumping duty shall not exceed or be greater in amount than the margin of
dumping. These provisions provide, in relevant part:
Article 9 218
Imposition and Collection of Anti-Dumping Duties

9.3 The amount of the anti-dumping duty shall not exceed the
margin of dumping as established under Article 2.

216Panel Report, para. 7.199.
217United States' appellee's submission, paras. 91-93.
218Articles 9.3.1 and 9.3.2 of the Anti-Dumping Agreement provide:
9.3.1 When the amount of the anti-dumping duty is assessed on a
retrospective basis, the determination of the final liability for payment of
anti-dumping duties shall take place as soon as possible, normally within
12 months, and in no case more than 18 months, after the date on which a
request for a final assessment of the amount of the anti-dumping duty has
been made. Any refund shall be made promptly and normally in not more
than 90 days following the determination of final liability made pursuant to
this sub-paragraph. In any case, where a refund is not made within 90 days,
the authorities shall provide an explanation if so requested. (footnote
omitted)
9.3.2 When the amount of the anti-dumping duty is assessed on a
prospective basis, provision shall be made for a prompt refund, upon
request, of any duty paid in excess of the margin of dumping. A refund of
any such duty paid in excess of the actual margin of dumping shall normally
take place within 12 months, and in no ca se more than 18 months, after the
date on which a request for a refund, duly supported by evidence, has been
made by an importer of the product subject to the anti-dumping duty. The
refund authorized should normally be made within 90 days of the
above-noted decision.

Article VI
219
Anti-dumping and Countervailing Duties

2. In order to offset or prevent dumping, a Member may levy on
any dumped product an anti-dumping duty not greater in amount than
the margin of dumping in respect of such product. For the purposes
of this Article, the margin of dumping is the price difference
determined in accordance with the provisions of paragraph 1.
(footnote omitted)
124. We begin our analysis with an examination of the meaning of the term "margin of dumping"
in Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994. Article 9.3 refers
to the margin of dumping as established under Article 2. Article 2.1 of the Anti-Dumping Agreement,
which is part of the context of Article 9.3 of the Anti-Dumping Agreement, provides:
Determination of Dumping
2.1 For the purpose of this Agreement, 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 exported from one country to another is less than the
comparable price, in the ordinary course of trade, for the like product
when destined for consumption in the exporting country.

219Article VI:1 of the GATT 1994 reads:
Members recognize that dumping, by which products of one country are
introduced into the commerce of anothe r country at less than the normal
value of the products, is to be condemned if it causes or threatens material
injury to an established industry in the territory of a Member or materially
retards the establishment of a domestic industry. For the purposes of this
Article, a product is to be considered as being introduced into the commerce
of an importing country at less than its normal value, if the price of the
product exported from one country to another
(a) is less than the comparable pri ce, in the ordinary course of
trade, for the like product when destined for consumption
in the exporting country, or,
(b) in the absence of such domestic price, is less than either
(i) the highest comparable price for the like product
for export to any third country in the ordinary
course of trade, or
(ii) the cost of producti on of the product in the
country of origin plus a reasonable addition for
selling cost and profit.
Due allowance shall be made in each case for differences in conditions and
terms of sale, for differences in taxation, and for other differences affecting
price comparability. (footnote omitted)

125. The Appellate Body stated, in US – Softwood Lumber V , that "the opening phrase of
Article 2.1—'[f]or the purpose of this Agreemen t'—indicates that the definition of 'dumping' as
contained in Article 2.1 applies to the entire Agreement". 220 The Appellate Body also indicated that
"the term 'margin of dumping' refe rs to the magnitude of dumping". 221 F u r t h e r m o r e , w e n o t e t h a t
Article VI:1 of the GATT 1994 defines "dumping" as occurring where "products of one country are
introduced into the commerce of another country at less than the normal value of the products". This
definition of dumping in Article VI:1 of the GATT 199 4 is an element of the context of Article VI:2,
which refers to the "margin of dumping". In Article VI:2, the correspondence between "dumping"
and "margin of dumping" is clear because Article VI:2 provides that "[i]n order to offset or prevent
dumping, a Member may levy on any dumped product an anti-dumping duty not greater in amount
than the margin of dumping in respect of such product." (emphasis added)
126. In EC – Bed Linen and US – Softwood Lumber V, the Appellate Body indicated that, under
the Anti-Dumping Agreement and Article VI of the GATT 1994, "dumping" and "margins of
dumping" must be established for the product under investigation as a whole. In particular, in US –
Softwood Lumber V , the Appellate Body ruled on a claim re garding the calculation of a margin of
dumping in an original investigation based on the weighted-average -to-weighted-average
methodology as provided for in the first sentence of Article 2.4.2. 222 The Appellate Body confirmed
that the text of Article 2.1 of the Anti-Dumping Agreement, as well as the text of Article VI:1 of the
GATT 1994 (which, as we mentioned above, defines dumping as occurring where "products of one
country are introduced into the commerce of anothe r country at less than the normal value of the
products") indicate clearly that "dumping is defined in relation to a product as a whole". 223 T h e
Appellate Body specified that, while an inves tigating authority may choose to undertake multiple
comparisons or multiple averaging at an intermedia te stage to establish margins of dumping, "it is
only on the basis of aggregating all these 'intermediate values' that an investigating authority can
establish margins of dumping for the product under investigation as a whole." 224 The Appellate Body
added that, in the context of the weighted-avera ge-to-weighted-average methodology, there is no
justification for "taking into account the 'results' of only some multiple comparisons in the process of

220Appellate Body Report, US – Softwood Lumber V , para. 93. Similarly, the Appellate Body had
previously stated in US – Corrosion-Resistant Steel Sunset Review that, as a result of the opening words of
Article 2.1, the word "dumping", as used in Article 11.3 of the Anti-Dumping Agreement (a provision regarding
sunset reviews), has the meaning described in Article 2.1. (Appellate Body Report, US – Corrosion-Resistant
Steel Sunset Review, paras. 108-109 and 126-127)
221Appellate Body Report, US – Softwood Lumber V, para. 96.
222Ibid., paras. 63 and 76.
223Ibid., paras. 92-93.
224Ibid., para. 97. (original emphasis)

calculating margins of dumping, while disregarding other 'results'."
225 Thus,"[i]f an investigating
authority has chosen to undertake multiple compar isons, the investigating authority necessarily has to
take into account the results of all those comparisons in order to establish margins of dumping for
the product as a whole under Article 2.4.2." 226 Although, in US – Softwood Lumber V, the Appellate
Body dealt with a claim regarding the determina tion of a margin of dumping in an original
investigation when using the weighted-average-to- weighted-average methodology provided for in the
first sentence of Article 2.4.2, it stated unambi guously that "the terms 'dumping' and 'margins of
dumping' in Article VI of the GATT 1994 and the Anti-Dumping Agreement apply to the product
under investigation as a whole". 227 This finding was based not only on Article 2.4.2, first sentence,
but also on the context found in Article 2.1 of the Anti-Dumping Agreement.
127. We note that Article 9.3 refers to Article 2. It follows that, under Article 9.3 of the Anti-
Dumping Agreement and Article VI:2 of the GATT 1994, the amount of the assessed anti-dumping
duties shall not exceed the margin of dumping as established "for the product as a whole". 228
Therefore, if the investigating authority establis hes the margin of dumping on the basis of multiple
comparisons made at an intermediate stage, it is re quired to aggregate the results of all of the multiple
comparisons, including those where the export price exceeds the normal value. If the investigating
authority chooses to undertake multiple comparisons at an intermediate stage, it is not allowed to take
into account the results of only some multiple comp arisons, while disregarding others. We recall
however, that in US – Softwood Lumber V , the Appellate Body stated that the investigating authority
is required to take into account the results of all multiple comparisons in order to establish margins of
dumping for the product as a whole in the specific context of the weighted-average-to-weighted-
average methodology, and that it did not address the issue of zeroing in the context of the other
methodologies set out in Article 2.4.2.

225Appellate Body Report, US – Softwood Lumber V, para. 98.
226Ibid. (original emphasis)
227Ibid., para. 102.
228See also ibid., para. 99, where the Appellate Body stated:
Our view that "dumping" and "margins of dumping" can only be established
for the product under investigation as a whole is in consonance with the
need for consistent treatment of a product in an anti-dumping investigation.
Thus, having defined the product under investigation, the investigating
authority must treat that product as a whole for, inter alia, the following
purposes: determination of the volume of dumped imports, injury
determination, causal link between dumped imports and injury to domestic
industry, and calculation of the margin of dumping. Moreover, according to
Article VI:2 of the GATT 1994 and Article 9.2 of the Anti-Dumping
Agreement, an anti-dumping duty can be levied only on a dumped product.
For all these purposes, the product und er investigation is treated as a
whole[.] (original emphasis)

128. We move now to the Unites States' contention that, in duty assessment proceedings, the term
"margins of dumping" can be interpreted as applying on a transaction-specific basis. 229 We disagree
with this contention. Article 6.10 of the Anti-Dumping Agreement provides relevant context for the
interpretation of the term "margin of dumping" in Article 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994. Article 6.10, which is part of the context of Article 9.3, provides that
"[t]he authorities shall, as a rule, determine an individual margin of dumping for each known exporter
or producer concerned of the product under investig ation." Therefore, under the first sentence of
Article 6.10, margins of dumping for a product must be established for exporters or foreign producers.
The text of Article 6.10 does not limit the application of this rule to original investigations, and we see
no reason why this rule would not be relevant to duty assessment proceedings governed by Article 9.3
of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.
129. We note that in Mexico – Anti-Dumping Measures on Rice , the Appellate Body confirmed
that the term "margin of dumping" in the Anti-Dumping Agreement in general refers to the margins
of dumping for exporters or foreign producers.
230 The Appellate Body made that observation in
relation to the interpretation of the term "margin of dumping" in Article 5.8 of the Anti-Dumping
Agreement. The Appellate Body also re ferred to a previous report, US – Hot-Rolled Steel , where the
Appellate Body indicated, in the context of Article 2.4.2 of the Anti-Dumping Agreement , that the
term "margin of dumping" "mean s the individual margin of dumpi ng determined for each of the
investigated exporters and producers of the product under investigation, for that particular product."231
In US – Corrosion-Resistant Steel Sunset Review , the Appellate Body stated, in the context of sunset
reviews under Article 11.3 of the Anti-Dumping Agreement , that, "should investigating authorities
choose to rely upon dumping margins in making th eir ... determination, the calculation of these
margins must conform to the disciplines of Article 2.4." 232 The Appellate Body noted that there are
"no other provisions in the Anti-Dumping Agreement according to which Members may calculate
dumping margins".233 The Appellate Body made it clear in US – Hot-Rolled Steel , in the context of
Article 2.4.2, that the term "margin of dumping" refers to margins of dumping for exporters and
foreign producers. Therefore, the Appellate Body's findings in US – Corrosion-Resistant Steel
Sunset Review imply that the margins of dumping that might be established in a sunset review under
Article 11.3 are margins of dumping for exporters or foreign producers. Establishing margins of
dumping for exporters or foreign producers is co nsistent with the notion of dumping, which is

229United States' appellee's submission, paras. 171-178; United States' response to questioning at the
oral hearing.
230Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, paras. 208 and 217.
231Appellate Body Report, US – Hot-Rolled Steel, para. 118. (footnote omitted)
232Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 127.
233Ibid.

designed to counteract the foreign producer's or e xporter's pricing behaviour. Indeed, it is the
exporter, not the importer, that engages in practices that result in situations of dumping. For all of
these reasons, under Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994,
margins of dumping are established for foreign producers or exporters.
130. Thus, pursuant to Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the
GATT 1994, investigating authorities are required to ensure that the total amount of anti-dumping
duties collected on the entries of a product from a given exporter shall not exceed the margin of
dumping established for that exporter. In other words, the margin of dumping established for an
exporter or foreign producer operates as a ceiling for the total amount of anti-dumping duties that
can be levied on the entries of the subject product (from that exporter) covered by the duty assessment
proceeding.
131. Although Article 9.3 sets out a requirement regarding the amount of the assessed anti-
dumping duties, it does not prescribe a specific methodology according to which the duties should be
assessed. In particular, a reading of Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of
the GATT 1994 does not suggest that final anti-dumping duty liability cannot be assessed on a
transaction- or importer-specific basis, or that the investigating authorities may not use specific
methodologies that reflect the distinct nature and purpose of proceedings governed by these
provisions, for purposes of assessing final anti-dumping duty liability, provided that the total amount
of anti-dumping duties that are levied does not exceed the exporters' or foreign producers' margins of
dumping.
234
132. We move now to the question of whether the zeroing methodology applied by the USDOC in
the administrative reviews at issue is consistent with Article 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994. It follows from our analysis that, in order to make this determination,
it is necessary to compare the anti-dumping duties co llected on all entries of the subject product from
a given exporter or foreign producer with that expor ter's or foreign producer's margin of dumping for
the product as a whole. We recall that, if a margin of dumping is calculated on the basis of multiple
comparisons made at an intermediate stage, it is only on the basis of aggregating all these intermediate
results that an investigating authority can establis h margins of dumping for the product as a whole.
Therefore, the margins of dumping with which the assessed anti-dumping duties have to be compared

234We understand that, under the methodology currently applied by the USDOC to assess anti-dumping
duties, the aggregation of the results of the multiple comparisons performed at an intermediate stage might result
in a negative value, for a given importer, if zeroing is not allowed. Of course, this would not mean that the
authorities would be required under the Anti-Dumping Agreement or Article VI of the GATT 1994 to
compensate an importer for the amount of that negative value (that is, when export prices exceed normal value).
Nor does it mean that liability for payment of anti-dumping duties may not be based on a prospective normal
value as contemplated by Article 9.4(ii) of the Anti-Dumping Agreement.

under Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 are foreign
producers' or exporters' margins of dumping that refl ect the results of all of the multiple comparisons
carried out at an intermediate stage of the calculation.
133. Furthermore, we recall that, in the administra tive reviews at issue, the USDOC assessed the
anti-dumping duties according to a methodology in which, for each individual importer, comparisons
were carried out between the export price of each individual transaction made by the importer and a
contemporaneous average normal value. The resu lts of these multiple comparisons were then
aggregated to calculate the anti-dumping duties owed by each individual importer. If, for a given
individual transaction, the export price exceeded the contemporaneous average normal value, the
USDOC, at the aggregation stage, disregarded the result of this individual comparison. Because
results of this type were systematically disreg arded, the methodology applied by the USDOC in the
administrative reviews at issue re sulted in amounts of assessed anti- dumping duties that exceeded the
foreign producers' or exporters' margins of dum ping with which the anti-dumping duties had to be
compared under Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.
Accordingly, the zeroing methodology, as applied by the USDOC in the admi nistrative reviews at
issue, is inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the
GATT 1994.
134. In our analysis of whether the zeroing methodology, as applied by United States in the
administrative reviews at issue, is inconsistent with Article 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994, we have been mi ndful of the standard of review set out in
Article 17.6(ii) of the Anti-Dumping Agreement . Article 9.3 of the Anti-Dumping Agreement , and
Article VI:2 of the GATT 1994, when interpreted in accordance with customary rules of interpretation
of public international law, as required by Article 17.6(ii), do not, in our view, allow the use of the
methodology applied by the United States in the admini strative reviews at issue. This is so because,
as explained above, the methodology applied by the USDOC in the administrative reviews at issue
results in amounts of assessed anti-dumping duties th at exceed the foreign producers' or exporters'
margins of dumping. Yet, Article 9.3 clearly stipulates that "the amount of the anti-dumping duty
shall not exceed the margin of dumping as established under Article 2." Similarly, Article VI:2 of the
GATT 1994 provides that "[i]n order to offset or prevent dumping, a Member may levy on any
dumped product an anti-dumping duty not greater in amount than the margin of dumping in respect of
such product."
135. In the light of the above, we reverse the Panel's finding, in paragraphs 7.288 and 8.1(f) of the
Panel Report, that the United States did not act inconsistently with Article 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994 in the administrative reviews at issue, and find,

instead, that the United States acted inconsistently with those provisions. We note that the Panel
made a finding on Article VI:1 of the GATT 1994, a nd that this finding was consequential to its
finding on Article VI:2 of the GATT 1994. Accordingl y, we declare moot, and of no legal effect, the
Panel's finding, in paragraphs 7.2 88 and 8.1(f) of the Panel Report, that the United States did not act
inconsistently with Article VI:1 of the GATT 1994.
B. Article 2.4 of the Anti-Dumping Agreement
1. Fair Comparison

136. We turn now to the issue of whether the Pane l erred in finding that, in the administrative
reviews at issue, the USDOC did not act inconsiste ntly with the obligation in the first sentence of
Article 2.4 of the Anti-Dumping Agreement to make a "fair comparison" between the export price
and the normal value.
137. The first sentence of Article 2.4 of the Anti-Dumping Agreement provides:
A fair comparison shall be made between the export price and the
normal value.
138. The Panel found that the United States did not act inconsistently with the requirement set out
in the first sentence of Article 2.4 when, in the calculation of margins of dumping and anti-dumping
duties in the administrative reviews at issue, the USDOC compared, at an intermediate stage of the
calculation, the average monthly normal value with prices of individual expo rt transactions, and did
not include in the calculation any amounts by which export prices of individual transactions exceeded
the normal value.
139. The Panel was of the view that the "fair co mparison" language in the first sentence of
Article 2.4 creates an independent obligation with the implication that this "fair comparison"
requirement is not defined exhaustively by the specific requirements set out in the remainder of that
paragraph.
235 Relying on the Appellate Body's finding in EC – Bed Linen that the obligation to make
a fair comparison under the first sentence of Article 2. 4 is a "general obligation" that "informs all of
Article 2"236, the Panel considered that the scope of app lication of this "fair comparison" requirement
is not limited to the general subject matter expr essly addressed by paragraph 4 (how to ensure price
comparability by selecting comparable transactions or making appropriate adjustments). For the

235Panel Report, para. 7.253.
236Appellate Body Report, EC – Bed Linen, para. 59.

Panel, the scope of application of the "fair compar ison" requirement extends beyond paragraph 4; in
particular, it applies to the issue of the calculation of margins of dumping.237
140. Moving to the substantive meaning of the term "fair comparison" in the first sentence of
Article 2.4, the Panel noted that this sentence sets out a standard that, by its very nature, is "more
abstract and less determinate" than most other rules in the Anti-Dumping Agreement.238 According to
the Panel, "[t]he meaning of 'fair' in a legal rule must necessarily be determined having regard to the
particular context within which that rule operates." 239 In the light of these considerations, the Panel
was of the view that, in order to determine what is "fair" under the Anti-Dumping Agreement in
relation to the calculation of margins of dumping, the analysis must take into account Article 2.4.2 of
that Agreement, which specifically addresses the s ubject of methods of determining margins of
dumping, as well as the relevant rules and conc epts in Article 9 regarding the imposition and
collection of anti-dumping duties.240
141. The Panel noted that the second sentence of Ar ticle 2.4.2 expressly permits the use of an
asymmetrical average-to-transaction method of comparing export price and normal value as an
exception to the symmetrical comparison methods in the first sentence of Article 2.4.2. The Panel
also recalled its previous finding that the app lication of Article 2.4. 2 does not extend beyond
investigations within the meaning of Article 5 of the Anti-Dumping Agreement . On that basis, the
Panel reasoned that, although zeroing effectivel y is prohibited under the average-to-average
methodology in the first sentence of Article 2.4.2, "the non-application of Article 2.4.2 outside 'the
investigation phase' shows that zeroing was not treated as a practice to be banned in all
circumstances."241 The Panel noted that "Article 9 of the [ Anti-Dumping] Agreement clearly permits
the use of an asymmetrical method of comparing normal value and individual export prices in the
context of a system of variable anti-dumping duties, which necessarily involves zeroing."
242 In the
light of these considerations, the Panel expressed the view that the "fair comparison" requirement in
Article 2.4 cannot be interpreted to entail a prohib ition of asymmetry and zeroing. The Panel added
that, given its previous finding that Article 2.4.2 is limited in its application to investigations within
the meaning of Article 5 of the Anti-Dumping Agreement by virtue of the phrase "the existence of
margins of dumping during the investigation ph ase", "[t]o interpret Article 2.4 as prohibiting
asymmetry and zeroing not only in investigations with in the meaning of Article 5 but also in duty

237Panel Report, para. 7.255.
238Ibid., para. 7.260.
239Ibid.
240Ibid., para. 7.262.
241Ibid., para. 7.263.
242Ibid., para. 7.264.

assessment proceedings under Article 9 ..., would render ineffective the language in Article 2.4.2 that
limits its scope of application to investigations."
243
142. On appeal, the European Communities challenges the Panel's finding that the United States
did not act inconsistently with the fi rst sentence of Article 2.4 of the Anti-Dumping Agreement. The
European Communities indicates that it agrees with the Panel that Article 2.4 establishes an
overarching and independent obliga tion to make a fair comparison between normal value and export
price. Also, the European Communities does not take issue with the Panel's view that the
"fair comparison" obligation is not limited to para graph 4 of Article 2. However, the European
Communities contends that the Panel erred because, "absent targeted dumping, a comparison between
normal value and export price that does not fully take into account all export transactions does not
result in the calculation of a margin of dumping for the product as a whole, and is therefore not a fair
comparison within the meaning of Article 2.4, first sentence." 244 Furthermore, the European
Communities argues that the USDOC did not make fair comparisons because the methodology it used
was performed at the transaction level, which is inconsistent with the logic resulting from the
"temporal parameters" the USDOC itself fixed in defining the investigation period for the
administrative reviews at issue.
245
143. The European Communities contends that the methodology employed by the USDOC in the
administrative reviews at issue is inconsistent with the first sentence of Article 2.4 because it inflates
the margin of dumping and, therefore, is inhere ntly biased. For the European Communities, an
inherent bias is built into the methodology used by the USDOC because, "when an exporter makes
some sales above normal value and some sales belo w normal value, the use of zeroing will inevitably
result in a margin higher than would otherwise be calculated, including in the original proceeding." 246
The European Communities adds that the methodolog y at issue is also unfair because it introduces
"unjustified ... discrimination" be tween exporters or producers that are assessed at the rate resulting
from the original proceedings and those that are assess ed at a rate calculated in administrative reviews
on the basis of the methodology at issue. 247 The European Communities refers to the Appellate
Body's statement in EC – Bed Linen that "the practice of 'zeroing' at issue in this dispute ... is not a
'fair comparison' between export price and norma l value, as required by Article 2.4 and by

243Panel Report, para. 7.267.
244European Communities' appellant's submission, para. 75. (footnote omitted)
245Ibid., para. 80.
246Ibid., para. 86.
247Ibid., para. 92.

Article 2.4.2."248 In the European Communities' view, findings of the Appellate Body in US –
Corrosion-Resistant Steel Sunset Review 249 and US – Softwood Lumber V 250 also confirm that the
methodology used by the USDOC in this case is unfai r and, therefore, inconsistent with the first
sentence of Article 2.4 of the Anti-Dumping Agreement.
144. The United States requests the Appellate Body to reject the European Communities'
appeal concerning Article 2.4. For the United States, the simple fact that one methodology results in a
higher dumping margin than another is an insufficien t basis to conclude that the first methodology is
"unfair" within the meaning of Article 2.4. Rather , the term "fair" must be interpreted in a manner
consistent with other obligations in the Anti-Dumping Agreement.251 The United States submits that
the text of Article 2.4 does not require the calculation of a margin of dumping with respect to the
"product as a whole", because such a requirement cannot be read into the concept of "fair
comparison", and the obligation to calculate margin s of dumping for the product as a whole is limited
to the use of the average-to-average compar ison methodology during the investigation phase under
Article 2.4.2. If the fair comparison requireme nt were interpreted so as to impose the same
obligation, the United States argues, the first sentence of Article 2.4.2 would be redundant.
252
145. For the United States, the comparison method in the second sentence of Article 2.4.2 is an
exception to the methods in the first sentence, but it is not an exception to the "fair comparison"
requirement in Article 2.4. If Article 2.4 requires "offsets", as the United States contends, then
"offsets" must be made under the targeted dumping provision of the second sentence of Article 2.4.2.
However, according to the United States, applyi ng the average-to-transaction comparison method
with "offsets" will yield mathematically the sa me result as the average-to-average comparison
method. Thus, the European Communities' interpretative approach to Article 2.4 would, in the United
States' view, nullify the second sentence of Article 2.4.2.
253
146. We recall that the Panel found, first, that the "fair comparison" language in the first sentence
of Article 2.4 creates an independent obligation, and, secondly, that the scope of this obligation is not
exhausted by the general subject ma tter expressly addressed by paragraph 4 (that is to say, the price

248Appellate Body Report, EC – Bed Linen , para. 55 (quoted in European Communities' appellant's
submission, para. 95). (original emphasis)
249Appellate Body Report, US – Corrosion Resistant-Steel Sunset Review, paras. 127-128, 130, and 135
(referred to in European Communities' appellant's submission, paras. 96-97).
250Appellate Body Report, US – Softwood Lumber V , paras. 93, 96-97, 99, and 101 (referred to in
European Communities' appellant's submission, para. 99).
252Ibid., paras. 135-136.
253Ibid., paras. 143-150.

comparability). The European Co mmunities agrees with these two Pa nel findings and, accordingly,
does not challenge them on appeal. For our part, we see nothing incorrect in the Panel's reasoning
with respect to these two specific findings.
254 On the substantive meaning of the term "fair
comparison", we also agree with the Panel that the le gal rule set out in the first sentence of Article 2.4
is expressed in terms of a general and abstract st andard. One implication of this is that this
requirement is also applicable to proceedings governed by Article 9.3.
147. We have already found that zeroing, as app lied by the USDOC in the administrative reviews
at issue, is inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the
GATT 1994. Therefore, an additional finding that the use of the same methodology in the
administrative reviews at issue is inconsistent with the "fair comparison" requirement contained in the
first sentence of Article 2.4 of the Anti-Dumping Agreement does not appear to us necessary for
solving this dispute. Accepting the European Comm unities' claim with respect to Article 2.4, first
sentence, would lead to the same result that we have reached after examining zeroing, as applied by
the USDOC in the administrative reviews at i ssue, in the light of Article 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994. Theref ore, we decline to rule on whether the Panel
erred in finding that zeroing, as applied by the USDOC in the administrative reviews at issue, is not
inconsistent with the "fair comparison" requirement contained in the first sentence of Article 2.4 of
the Anti-Dumping Agreement. Moreover, the Panel's reasoning with respect to the first sentence of
Article 2.4 depends to a large extent on it s findings on Article 2.4.2 and Article 9.3.
255 We recall that
we reversed the Panel's finding on Article 9.3. In these circumstances, we declare moot, and of no
legal effect, the finding of the Panel, in paragraphs 7.284 and 8.1(e) of the Panel Report, that zeroing,
as applied by the USDOC in the administrative review s at issue, is not inconsistent with the first
sentence of Article 2.4 of the Anti-Dumping Agreement.
2. Whether Zeroing is an Impermissi ble Allowance or Adjustment under
Article 2.4
148. We turn now to the issue of whether the United States acted inconsistently with Article 2.4,
third to fifth sentences, of the Anti-Dumping Agreement in the administrative reviews at issue. On
appeal, the European Communities ar gues that the Panel erred in rejecting its argument that, in
attributing a value of zero to results of compar isons for which the export price exceeds the normal
value, the USDOC makes an allowance or adju stment for a difference not affecting price
comparability and, therefore, acts inconsistently with Article 2.4, third to fifth sentences, of the Anti-
Dumping Agreement.

254The Panel's reasoning is set out in paragraphs 7.253-7.258 of the Panel Report.
255Panel Report, para. 7.275.

149. The appeal of the European Comm unities with respect to this issue refers to Article 2.4, third
to fifth sentences, which read as follows:
Due allowance shall be made in each case, on its merits, for
differences which affect price comparability, including differences in
conditions and terms of sale, taxati on, levels of trade, quantities,
physical characteristics, and any other differences which are also
demonstrated to affect price comparability. In the cases referred to in
paragraph 3, allowances for co sts, including duties and taxes,
incurred between importation and resale, and for profits accruing,
should also be made. If in these cases price comparability has been
affected, the authorities shall establish the normal value at a level of
trade equivalent to the level of trade of the constructed export price,
or shall make due allowance as warranted under this paragraph.
(footnote omitted)
150. The Panel rejected the argument of the Europ ean Communities that zeroing is inconsistent
with Article 2.4 of the Anti-Dumping Agreement because it is an allowanc e or adjustment for a
difference other than a difference affecting price comparability. The Panel was of the view that
differences in price comparability in Article 2.4 ar e differences between the product as sold in the
export market and the product as sold in the domestic ma rket with respect to f actors such as level of
trade, taxation, or quantities
256, and that zeroing is conceptually different from the allowances or
adjustments falling within the scope of the third to fi fth sentences of Article 2.4. For the Panel, "the
argument that zeroing is an impermissible allowance or adjustment for a difference not affecting price
comparability cannot be reconciled with the fact th at Article 2.4.2 specifically does not deal with
zeroing other than in the context of original investigations and that the second sentence of
Article 2.4.2 specifically permits an asymmetri cal comparison method that would be without any
useful effect if zeroing were prohibited." 257 If zeroing is characterized as an impermissible allowance
or adjustment, the Panel reasoned, "there is no rational basis to explain why an allowance or
adjustment that is prohibite d because it does not correspond to a difference affecting price
comparability is no longer prohibited in the context of the asymmetrical comparison method provided
for in the second sentence of Article 2.4.2 or in the context of a duty assessment proceeding under
Article 9."258
151. The European Communities appeals the Panel's fi nding that zeroing is not an impermissible
allowance or adjustment for a difference other than a difference affecting price comparability. For the
European Communities, the third to fifth sentences of Article 2.4 do not only impose obligations on

256Panel Report, para. 7.279.
257Ibid., para. 7.277.
258Ibid.

Members to make an adjustment for a difference that affects price comparability, they also impose an
obligation not to make an adjustment when there is no such difference.
259 The European
Communities adds that, if Article 2.4, third to fifth sentences, refer to certain differences for which an
adjustment is to be made, the list is illustrative, w ith the implication that th e types of differences and
adjustments referred to in the third to fifth sentences are not exhaustive.260 According to the European
Communities, zeroing should be construed as an adju stment or allowance falling within the scope of
the third sentence of Article 2.4, because the effect of the zeroing adjustment is to reduce the price at
which particular export transactions were in fact made. 261 The European Communities adds that it is
"clear that the simple zeroing adjustment ... is not made for a 'difference affecting price
comparability'."
262 For the European Commun ities, the Panel erred because, irrespective of whether
the simple zeroing adjustment is conceptually diffe rent from the elements of the illustrative list of
Article 2.4, third to fifth sentences, it is an adju stment not made for a "difference affecting price
comparability" and, therefore, it is inconsistent with Article 2.4, third to fifth sentences.263
152. The European Communities submits that "[t]he sco pe of the obligations contained in the third
to fifth sentences of Article 2.4 is not limited acco rding to the point in time, or the stage of the
calculation, at which the adjustment or allowance is introduced into the calculation of the margin of
dumping."264 Furthermore, the European Communities argu es that the Panel erred when it stated that
the European Communities' argument cannot be re conciled with Article 2.4.2, because the Panel
failed to take into account the opening words of th at provision: "Subject to the provisions governing
fair comparison in paragraph 4". For the Eur opean Communities, these opening words imply that,
assuming there is a conflict between, on the one hand, Article 2.4.2 and, on the other hand, the third to
fifth sentences of Article 2.4 (a conflict that th e European Communities assumes but of which it does
not recognize the existence), this c onflict should be settled in favour of the third to fifth sentences of
Article 2.4.265 Also, the European Communities submits that the second sentence of Article 2.4.2,
relating to targeted dumping, does not support the Pa nel's finding that zeroing is not an impermissible
allowance or adjustment for a difference other than a difference affecting price comparability.266

260Ibid., para. 125.
261Ibid., para. 128.
262Ibid., para. 134.
263Ibid., para. 132.
 264Ibid., para. 129.
265Ibid., paras. 136-137.
266Ibid., paras. 141-142.

153. The United States contends that the denial of "offsets" is not an undue price adjustment
pursuant to Article 2.4, third to fifth sentences. If it were, it would be an undue adjustment for all
three comparison methods described in Article 2.4.2. However, such an approach would have the
effect of nullifying the second sentence of Article 2.4.2. 267 For the United States, Article 2.4, third to
fifth sentences, should be interpreted narrowly "t o address pre-comparison price adjustments that
affect the comparability of prices between markets."268 The United States contends that an adjustment
is an addition or subtraction made to a specific price due to some characteristic of the sale in order to
make the price comparable to some other price.269
154. The United States argues that, in the assessment proceedings at issue, no price adjustments
were made to account for the extent to which an export price was greater than normal value. The
United States adds that the USDOC could not have known if a particular export transaction was sold
at a price greater than normal value until it had co mpared that price with another price, after
adjustments had been made for conditions affecti ng price comparability. For the United States, the
USDOC was simply determining which export transacti ons were sold at less than normal value, and
thus, which export transactions gave rise to anti- dumping duties for which the importer was liable.
Not reducing that duty because other sales were made at greater than normal value, the United States
argues, is not a price adjustment.270
155. The European Communities' challenge is based mainly on the third sentence of Article 2.4,
according to which "[d]ue allowance shall be made ... for differences which affect price
comparability". (emphasis added) Although the Europ ean Communities refers also to the fourth and
fifth sentences of Article 2.4, these sentences constitute specific variants of the principle set out in the
third sentence. Accordingly, we will focus in our analysis on the third sentence of Article 2.4.
156. We begin our analysis with the question whether the third sentence of Article 2.4 implies that
due allowance should not be made for differences that do not affect price comparability. In our view,
if allowances could be made for differences not affecting price comparability, the purpose of the
requirement of the third sentence of Article 2.4 woul d be undermined. Therefore, we are of the view
that the third sentence of Article 2.4 also applies a contrario: this sentence implies that allowances
should not be made for differences that do not affect price comparability. Having said that, the
principle set out in the third sentence of Article 2.4, including its a contrario application, does not

267United States' appellee's submission, paras. 143-150 and 154.
268Ibid., para. 156.
269Ibid., para. 157.
270Ibid., para. 158.

cover all adjustments, but only adjustments made fo r those differences that fall within the scope of
that principle.
157. The illustrative list in the third sentence of Article 2.4 provides indications as to the nature of
the differences covered by the principle set out in that sentence, which refers to differences that
include "differences in conditions and terms of sale, taxa tion, levels of trade, quantities, physical
characteristics". The elements of this list are all features, or characteristics, of the transactions that are
compared. Although the list is illustrative and not e xhaustive, it suggests that the adjustments, or
allowances, covered by the third sen tence are those that are made to take into account the differences
relating to characteristics of the compared transactions (export transactions and domestic
transactions). Article 2.4 specifies that the diffe rences for which due allowance shall be made are
those "which affect price comparability". In our view , this refers to differenc es in characteristics of
the compared transactions that have an impact, or are likely to have an impact, on the price of the
transaction. Likewise, the a contrario application of this principle prohibits only those adjustments
made in relation to differences in characteristics of the compared transactions that do not affect price
comparability. These are differences that do not have an impact, or are unlikely to have an impact, on
the price of the transaction. Therefore, adju stments or allowances made in relation to differences in
price between export transactions and domestic transactions—such as zeroing—cannot be
adjustments or allowances covered by the third sentence of Article 2.4, including its a contrario
application. Indeed, whether or not a factor affects the price comparability between export and
domestic transactions should be determined before this comparison is made, and not after.
158. We recall that, in assessing anti-dumping duties, the USDOC compares the export price of
individual transactions with the normal value, and aggregates the results of these comparisons. In the
aggregation process, the USDOC disregards the results when the export price exceeds the normal
value. The European Communities contends that in doing so, the USDOC makes an allowance or an
adjustment for a difference that does not affect pri ce comparability and, therefore, acts inconsistently
with the third sentence of Article 2.4. We disagr ee with this argument of the European Communities.
In our view, disregarding a result when the export price exceeds the normal value (zeroing) cannot be
characterized as an allowance or an adjustment cove red by the third sentence of Article 2.4, including
its a contrario application. Indeed, this is not undertaken to adjust to a difference relating to a
characteristic of the export transaction in comparison with a domestic transaction. Accordingly, we
agree with the Panel that, conceptually, zeroing is not an adjustment or an allowance falling within the
scope of Article 2.4, third to fifth sentences.

159. In the light of the above, we uphold the Panel's finding, in paragraph 7.280 of the Panel
Report, that zeroing is not an impermissible allowance or adjustment under Article 2.4, third to fifth
sentences.
C. Article 2.4.2 of the Anti-Dumping Agreement
160. We turn now to the issue of whether the Pane l erred in finding that the United States did not
act inconsistently with Article 2.4.2 of the Anti-Dumping Agreement in the administrative reviews at
issue.
161. This appeal of the European Communities is c onditional. In the event that we reverse the
Panel's conclusions either on Article 9.3 of the Anti-Dumping Agreement (as well as Article VI:2 of
the GATT 1994), or on Article 2.4 of the Anti-Dumping Agreement, the European Communities does
not appeal the Panel's findings on Article 2.4.2 of the Anti-Dumping Agreement.
162. We recall that we reversed the Panel's finding that the United States did not act inconsistently
with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994. Thus, the
condition on which the European Co mmunities' conditional appeal is predicated is not fulfilled.
Accordingly, the issue raised by the European Communities' conditional appeal under Article 2.4.2 of
the Anti-Dumping Agreement is not before us.
163. Having so concluded, we note that, before th e Panel, the parties argued at length on the
applicability of Article 2.4.2 to administrative review s under Article 9.3. We also note that the Panel
made findings on this issue and that there was also a dissenting opinion on the interpretation of
Article 2.4.2.
164. We recognize that the issue of the applicability of Article 2.4.2 to administrative reviews is an
important issue, but we consider that the central focu s of this appeal is the issue of zeroing, both as it
relates to original investigations and administrativ e reviews. As our reasoning shows, we did not find
it necessary to resolve the issue of zeroing in the ad ministrative reviews at issue in this case through
an examination of Article 2.4.2. We wish to em phasize that we are not expressing any view in this
appeal as to whether Article 2.4.2 is applicable or not to administrative reviews under Article 9.3.
Thus, the Panel's findings, in paragraphs 7.223 a nd 8.1(d) of the Panel Report, should not be
considered to have been endorsed by the Appellate Body.

D. Articles 11.1 and 11.2 of the Anti-Dumping Agreement
165. Before the Panel, the European Communities ar gued that, in the administrative reviews at
issue, the USDOC acted inconsistently with Articles 11.1 and 11.2 of the Anti-Dumping Agreement
"as a consequence of the unlawful zeroing method used" in the calculation of margins of dumping.
271
The Panel concluded from this that the European Communities' claims under Articles 11.1 and 11.2
"are dependent in that they presuppose that th e zeroing method used by [the] USDOC in these
administrative reviews is inconsistent with Article[] 2.4 and/or Article 2.4.2 of the [ Anti-Dumping]
Agreement."272 Having found no violation of those provisions 273, the Panel rejected the European
Communities' claims under Articles 11.1 and 11.2 of the Anti-Dumping Agreement without further
analysis.274
166. The European Communities challenges the Pane l's finding on appeal. According to the
European Communities, its claims under Articles 11.1 and 11.2 do not "presuppose" that zeroing, as
applied by the USDOC in the administrative reviews at issue, was inconsistent with Article 2.4 and/or
Article 2.4.2 of the Anti-Dumping Agreement.275 The European Communities submits that "[t]he re-
investigation of the cash deposit rate, which is ca rried out in conjunction with the retrospective
assessment proceeding"276, must be consistent with the obligati ons set out in Articles 11.1 and 11.2.
On these grounds, the European Communities contends th at the Panel erred in concluding that, in the
administrative reviews at issue, the USDOC did not act inconsistently with Articles 11.1 and 11.2 of
the Anti-Dumping Agreement.
167. The United States rejects the European Commun ities' contention that the Panel erred in
concluding that, in the administrative reviews at i ssue, the USDOC did not act inconsistently with
Articles 11.1 and 11.2 of the Anti-Dumping Agreement . According to the United States, the
European Communities does not explain what it pe rceives to be the obligations set forth in
Articles 11.1 and 11.2 and how these obligations re late to Article 9.3 assessment proceedings.
Furthermore, the European Comm unities "never reconciled" its claims under Articles 11.1 and 11.2

271European Communities' first written submission to the Panel, paras. 183-210.
272Panel Report, para. 7.287.
273Ibid., paras. 7.223 and 7.284.
274Ibid., para. 7.288.
275European Communities' appellant's submission, para. 368. For instance, before the Panel, the
European Communities argued th at the United States "periodic reviews" of the amount of anti-dumping duties
fall under Article 9.3 of the Anti-Dumping Agreement. The European Communities argued that "in relation to
these matters, the United States was obliged to comply, in particular, with the provisions of Articles 2 and 9 of
the Anti-Dumping Agreement." (European Communities' first written s ubmission to the Panel, paras. 183-186
and 204-210)

with its own recognition that the duty assessment proceedings conducted by the United States
"correspond to and fit within" Article 9.3 of the Anti-Dumping Agreement.277
168. The European Communities has not, in our view, established that Articles 11.1 and 11.2 of
the Anti-Dumping Agreement apply to the reassessment of the cash-deposit rate in the context of
administrative reviews.278 In particular, we fail to see how the reassessment of a cash-deposit rate to
be applied to future entries coul d constitute a review of whether the continued imposition of the anti-
dumping duty is necessary to counteract dumping that is causing injury.
169. In the light of the above, we uphold the Panel's finding, in paragraphs 7.288 and 8.1(f) of the
Panel Report, that zeroing, as applied by the USDOC in the administrative reviews at issue, is not
inconsistent with Articles 11.1 and 11.2 of the Anti-Dumping Agreement.
E. Articles 1 and 18.4 of the Anti-Dumping Agreement and Article XVI:4 of the WTO
Agreement
170. Before the Panel, the European Communities ar gued that, in the administrative reviews at
issue, the USDOC acted inconsistently with Articles 1 and 18.4 of the Anti-Dumping Agreement and
Article XVI:4 of the WTO Agreement "as a consequence of the unlawful zeroing method used in the
calculation of margins of dumping." 279 The Panel concluded from this that the European
Communities' claims under those provisions "are depe ndant in that they presuppose that the zeroing
method used by [the] USDOC in these administrative re views is inconsistent with Article[] 2.4 and/or
Article 2.4.2" of the Anti-Dumping Agreement .280 Having found no violation of Article 2.4
or Article 2.4.2281, the Panel concluded that the United States had also not violated Articles 1 and 18.4
of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement.282

277United States' appellee's submissi on, para. 219 (referring to European Communities' first written
278We note that, in any event, the European Communities argued before the Panel that administrative
reviews are not subject to the provisions of Article 11.2 of the Anti-Dumping Agreement . Instead, they
"correspond to and fit within" Article 9.3 of the Anti-Dumping Agreement. The European Communities further
emphasized that, in referring to Articles 11.1 and 11.2, it was "[a]ssuming, only for th e sake of argument, that
part of the measure (the decision to apply a revised estimated anti-dumping duty deposit rate for the future)
... was a 'review' within the meaning of Article 11.2 of the Anti-Dumping Agreement ." (See European
Communities' first written submission to the Panel, paras. 183, 185 and 187)
279Ibid., paras. 183-210.
280Panel Report, para. 7.287.
281Ibid., paras. 7.223 and 7.284.
282Ibid., para. 7.288.

171. The European Communities challenges the Pane l's finding on appeal. According to the
European Communities, the Panel erred in statin g that the European Communities' claims under
Articles 1 and 18.4 of the Anti-Dumping Agreement
 and Article XVI:4 of the WTO Agreement were
"dependent" on a finding of violation of Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement .283
Instead, according to the European Communities, it argued before the Panel that the United States'
zeroing methodology "results, simultaneously, in the vi olation of several different obligations" in the
covered agreements, including Articles 2.4, 2.4.2, and 9.3 of the Anti-Dumping Agreement , and
Articles VI:1 and VI:2 of the GATT 1994.284
172. Given that we have found that the zeroing methodology, as applied by the USDOC in the
administrative reviews at issue, is in consistent with Article 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994, it is not necessary, for purposes of resolving this dispute, for us to
rule on whether the zeroing methodology, as applied in the administrative reviews at issue, is also
inconsistent with Articles 1 and 18.4 of the Anti-Dumping Agreement and Article XVI:4 of the WTO
Agreement.

V. Consistency of Zeroing "As Such"
A. The Panel's Consideration of the Standar d Zeroing Procedures, the Anti-Dumping
Manual, and the "Practice or Methodology" of Zeroing
173. Before the Panel, the European Communities ch allenged, as being inconsistent, as such, with
Articles 1, 2.4, 2.4.2, 5.8, 9.3, and 18.4 of the Anti-Dumping Agreement, Articles VI:1 and VI:2 of
the GATT 1994, and Article XVI:4 of the WTO Agreement, a measure "consisting of or including" 285
the Standard Zeroing Procedures 286, the United States' "practice or methodology" of zeroing, and the
Anti-Dumping Manual.

284Ibid.; European Communities' first written submission to the Panel, paras. 204-210.
285European Communities' first written submission to the Panel, para. 125.
286We briefly describe the "Standard Zeroing Proced ures" as identified by the European Communities
in this case. Standard programming used by the USDOC to calculate margins of dumping contains the
following line of computer code: "WHERE EMARGIN GT 0". The European Communities explains that this
line contains the instruction to select only the results of intermediate comparisons that are positive, and to ignore
those that are negative. The European Communities furt her explains that this is "the key feature of the
architecture that the [European Communities] refers to as 'zeroing'." (European Communities' appellee's
submission, para. 14) The European Communities describe s this line of computer code, along with the lines
surrounding it as the "Standard Zeroing Procedures". (Panel Report, paras. 7.70 and 7.91; European
Communities' first written submission to the Panel, paras. 16, 21-22, 37-38; European Communities' response
to Question 51 posed by the Panel; and European Communities' second written submission to the Panel,
para. 69) The Panel noted that the term "Standard Zeroing Procedures" is not used in United States anti-
dumping laws and regulations. (Panel Report, para. 7.71)

174. The Panel began its analysis by reviewing the findings of the Appellate Body in US –
Corrosion-Resistant Steel Sunset Review . The Panel recalled that the Appellate Body has found that
"the entire body of generally applicable rules, norms and standards adopted by Members in
connection with the conduct of anti-dumping pro ceedings" can be challenged, as such, that is,
independently from their application in specific cases. 287 The Panel further noted that the Appellate
Body has found that:
... there is no basis either in the practice of the GATT and the WTO
generally or in the provisions of the Anti-Dumping Agreement , for
finding that only certain types of measures can, as such, be
challenged in dispute settlement proceedings under the Anti-Dumping
Agreement.
288
175. Next, the Panel noted that the Appellate Body had confirmed, in US — Oil Country Tubular
Goods Sunset Reviews , that the USDOC's Sunset Policy Bulletin (the "SPB") is a measure that can be
challenged, as such.289 For the Panel, it follows from the Appellate Body's reasoning in that case that
a measure can be challenged as an "act" or "instrumen t", even where the measure in question is not "a
legal instrument" under the law of the responding party and does not bind the relevant authorities. 290
On this basis, the Panel stated that:
... to characterize the "Standard Ze roing Procedures" as an act or
instrument that sets forth rules or norms intended to have general and
prospective application is somewhat difficult to reconcile with the
fact that the "Standard Zeroing Procedures" are only applicable in a
particular anti-dumping proceeding as a result of their inclusion in
the computer program[] used in that particular proceeding.
The need to incorporate these lines of computer code into each
individual program[] indicates that it is not the "Standard Zeroing
Procedures" per se that set forth rules or norms of general and
prospective application. For this reason, we also question whether
these "Standard Zeroing Procedures" are "administrative procedures"
within the ordinary meaning of that term as used in Article 18.4 of
the [Anti-Dumping] Agreement. The "Standard Zeroing Procedures"
by themselves do not create anything and are simply a reflection of
something else.
291

287Panel Report, para. 7.93 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset
Review, para. 87).
288Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 88.
289Panel Report, paras. 7.94-7.96 (referring to Appellate Body Report, US – Oil Country Tubular
Goods Sunset Reviews, para. 187).
290Ibid., para. 7.96.
291Ibid., para. 7.97.

176. Although the Panel did not focus on the Standard Zeroing Procedures as a measure per se, it
considered that "they can be relevant evidence to ascertain the existence of a methodology."
292
177. The Panel then turned to consider the Eur opean Communities' claim regarding the United
States' "practice or methodology" of zeroing. In doing so, the Panel proceeded, first, to consider
whether there exists what the European Co mmunities terms "methodology", and whether this
methodology can be found to be WTO-inconsistent. 293 According to the Panel, if a non-binding
policy instrument, such as the SPB, "is a measure that can be challenged as such, it must logically also
be possible to challenge as a measure a norm that is not expressed in the particular form of an official
written statement but the existence of which is made manifest on the basis of other evidence." 294 For
the Panel, the objective of protecting the security a nd predictability of the multilateral trading system
could be frustrated "if well-established norms that systematically and predictably lead to WTO-
inconsistent actions cannot be cha llenged or if they can be challenged only if they are embodied in a
particular type of instrument."295
178. Based on these considerations, the Panel went on to determine whether "what is challenged
by the European Communities as methodology cons titutes a norm that is WTO-inconsistent as
such."296 The Panel underscored that "a finding that a norm is as such WTO-inconsistent must rest on
solid evidence that enables a panel to determine th e precise content of that norm and the conduct to
which that norm will necessarily give rise in [the] future."297 According to the Panel, "[i]n the case of
the SPB, the necessary precision and predictability resu lted from the availability of an official policy
statement that set out with a considerable degr ee of detail the methodology the USDOC intended to
apply in certain situations."298 The Panel added, however, that ther e are also "other types of evidence
that can be used to establish with the necessary degree of precision the content of a norm and the
future conduct it will generate."299
179. Turning to the evidence that was before it, the Panel found that "the instruction not to include
comparison results with negative margins in the num erator of the dumping margin is reflected in
certain lines of computer code that are always included in the computer program[s] used by [the]

292Panel Report, para. 7.102. (footnote omitted)
293Ibid., para. 7.98.
294Ibid., para. 7.99.
295Ibid., para. 7.100 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset
Review, para. 82).
296Ibid., para. 7.101.
297Ibid., para. 7.102.
298Ibid.
299Ibid.

USDOC in anti-dumping proceedings." 300 The Panel also noted that "the United States does not
contest that the lines of computer code identified by the European Communities as 'Standard Zeroing
Procedures' are a constant feature of the computer program[s] used by [the] USDOC to perform
dumping margin calculations."301 On this basis, the Panel stated that the evidence before it "indicates
that this exclusion of comparison results with ne gative margins has been invariably performed by
[the] USDOC for an extended period of time." 302 The Panel added that the United States had been
"unable to identify any instance where [the] USDOC had given a credit for non-dumped sales" 303 and
that the United States "ha[d] not contested in this proceeding that [the] USDOC's zeroing
methodology reflects a deliberate policy."304
180. Based on this analysis, the Panel concluded th at "the zeroing methodology manifested in the
'Standard Zeroing Procedures' represents a well-est ablished and well-defined norm followed by [the]
USDOC and that it is possible based on this evidence to identify with precision the specific content of
that norm and the future conduct that it will entail."305 For the Panel, the situation was "the same as in
the case of the [SPB], except that the zero ing methodology is not expressed in writing." 306 Against
this background, and recalling its pr evious finding that the use of model zeroing in the original
investigations at issue is inconsis tent with Article 2.4.2 of the Anti-Dumping Agreement, the Panel
found that the United States' zeroing methodology, as it relates to original investigations, is a "norm"
that is inconsistent, as such, with Article 2.4.2 of the Anti-Dumping Agreement.307
181. Having reached this conclusion, the Panel dec lined to rule on the European Communities'
claim that the Anti-Dumping Manual is WTO-inconsistent "as such". 308 In doing so, the Panel
explained that the Anti-Dumping Manual "ha[d] b een referred to by th e European Communities
principally as evidence to confirm the 'standard' character of the 'Standard Zeroing Procedures'."309

300Panel Report, para. 7.103. (emphasis added)
301Ibid. (emphasis added)
302Ibid.
303Ibid.
304Ibid.
305Ibid., para. 7.104. (footnote omitted)
306Ibid.
307Ibid., para. 7.106.
308The parties agreed before the Panel that the Anti-Dumping Manual is a measure. (European
Communities' appellant's submission, para. 342 and footnote 340 thereto (referring to United States' first written
submission to the Panel, para. 83)) In the words of the United States, "[f]or purposes of this dispute, the United
States does not contest the [European Communities'] asse rtion that the [Anti-Dumping] Manual is a 'measure'
for purposes of a WTO dispute." (United States' first written submission to the Panel, para. 83)
309Panel Report, para. 7.107. We examine the European Communities' appeal regarding the Panel's
decision not to rule on the WTO-consistency of the Anti-Dumping Manual infra, in paragraphs 223-225.

182. We turn next to address the claims raised by the United States in its other appeal.
B. The Zeroing Methodology "As Such" – Other Appeal by the United States
183. The United States requests the Appellate Body to reverse the Panel's finding that the United
States' zeroing methodology, as it relates to original i nvestigations, is a "norm" that is inconsistent, as
such, with Article 2.4.2 of the Anti-Dumping Agreement. The United States points to several alleged
errors in the Panel's reasoning.
310 It argues, in particular, that:
(i) the Panel erred in finding that the zeroi ng methodology is a measure that can be
challenged, as such, in dispute settlement proceedings;
(ii) the Panel failed to make an objective assessment of the matter before it (including an
objective assessment of the facts of the case) as required by Article 11 of the DSU;
and
(iii) the Panel erred in allocating the burden of proof regarding this claim and in finding
that the European Communities had established a prima facie case.
184. We examine each of these allegations in turn below. We start by examining the issue of
whether the zeroing methodology, as put forth by the European Communities in this dispute, can be
challenged, as such, in dispute settlement proceedings.
1. Whether the Zeroing Methodology Can be Challenged, As Such, in Dispute
Settlement Proceedings
185. The United States claims that the Panel erred in finding that the zeroing methodology is a
measure that can be challenged, as such, in disput e settlement proceedings. According to the United
States, the Panel's conclusion is not supported by th e text of the DSU or by previous rulings by the
Appellate Body regarding the types of measures that can be challenged, as such, in dispute settlement
proceedings.311 In particular, the Panel erred in finding that the zeroing methodology is a "norm" and,
thus, a "measure" even though it "did not identify an y act or instrument of the United States setting
forth or creating that rule or norm." 312 The United States further submits that the Panel applied an
improper standard in assessing the types of measur es that can be subject to dispute settlement

310We note that the United States has not appealed the Panel's finding that "model zeroing", as applied
in the original investigations listed in Exhibits EC-1 th rough EC-15, is inconsistent with Article 2.4.2 of the
 Anti-Dumping Agreement. Therefore, in this appeal, we are not required to, and we do not address that issue.
311United States' other appellant's submission, paras. 11-12 (referring to Article 3.3 of the DSU and to
Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, paras. 81-82).
312Ibid., para. 33.

proceedings, such that its analysis was not of th e kind required by the Appellate Body in previous
disputes. According to the United States, the evidence relied upon by the Panel to reach that
conclusion was "historical" 313 and "did not suggest anything other than that the decision-makers in
past cases simply considered zeroing to be an appropriate response to the facts."314
186. In contrast, the European Communities underscor es that the Appellate Body has previously
stated that there are no limitations on the types of measures that may, as such, be subject to WTO
dispute settlement.315 The European Communities also contest s the United States' assertion that the
Panel relied exclusively on evidence of past beha viour to support its conclusion that the zeroing
methodology is inconsistent, as such , with Article 2.4.2 of the Anti-Dumping Agreement . The
European Communities emphasizes that the eviden ce before the Panel included the Anti-Dumping
Manual, the standard programs used by the US DOC to calculate margins of dumping, and the
Standard Zeroing Procedures. In addition, the European Communities points out that the Panel had
before it other "supporting and corroborating" evidence, including the expert opinions 316, and the "as
applied" documents 317, "which themselves systematically refe r to the [United States'] consistent
methodology or practice".318
187. We begin our analysis by examining the con cept of "measure". Article 3.3 of the DSU
provides that the dispute settlement system exists to deal with "situations in which a Member
considers that any benefits accruing to it directly or indirectly under the covered agreements are being
impaired by measures taken by another Member". (emphasis added) As the United States correctly
points out, the Appellate Body has previously stated that "[t]his phrase identifies the relevant nexus,
for purposes of dispute settlement proceedings, between the 'measure' and a 'Member'."319
188. In previous cases, the Appellate Body has addressed, in the context of the Anti-Dumping
Agreement, the scope of "measures" that may, as such, be the subject of WTO dispute settlement. In
US – Corrosion-Resistant Steel Sunset Review , the Appellate Body indicated that, "[i]n principle,
 any act or omission attributable to a WTO Member can be a measure of that Member for purposes of
dispute settlement proceedings."320 The Appellate Body also noted that measures that can be subject

313United States' other appellant's submission, para. 36.
314Ibid., para. 37.
315European Communities' appellee's submission, para . 26 (referring to Appellate Body Report, US –
Corrosion-Resistant Steel Sunset Review, para. 86).
316Exhibits EC-44 and EC-46 submitted by the European Communities to the Panel.
317Exhibits EC-1 through EC-31 submitted by the European Communities to the Panel.
318European Communities' appellee's submission, para. 11. (original emphasis and footnote omitted)
319Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 81.
320Ibid. (emphasis added; footnote omitted)

to WTO dispute settlement can include, not only acts a pplying a law in a specific situation, but also
"acts setting forth rules or norms that are intende d to have general and pr ospective application."
321
Moreover, "instruments of a Member containi ng rules or norms could constitute a 'measure',
irrespective of how or whether those rules or norms are applied in a particular instance."322
189. In US – Oil Country Tubular Goods Sunset Reviews , the Appellate Body emphasized the
seriousness of "as such" claims:
"[A]s such" challenges against a Member's measures in WTO dispute
settlement proceedings are serious ch allenges. By definition, an "as
such" claim challenges laws, regulations, or other instruments of a
Member that have general and pros pective application, asserting that
a Member's conduct—not only in a particular instance that has
occurred, but in future situations as well—will necessarily be
inconsistent with that Member's WTO obligations. In essence,
complaining parties bringing "as such" challenges seek to prevent
Members ex ante from engaging in certain conduct. The implications
of such challenges are obviously more far-reaching than "as applied"
claims.
323
In the same case, the Appellate Body further confir med its finding that "'acts setting forth rules or
norms that are intended to have general and prospective applicati on' are measures subject to WTO
dispute settlement".324 Applying this standard explicitly to th e issue of whether the SPB is a measure
that can be challenged, as such, the Appellate Body found that:
... the SPB has normative value, as it provides administrative
guidance and creates expectations among the public and among
private actors. It is intended to have general application, as it is to
apply to all the sunset reviews conduc ted in the United States. It is
also intended to have prospective application, as it is intended to
apply to sunset reviews taking place after its issuance. Thus, … the
SPB, as such, is subject to WTO dispute settlement.
325 (footnote
omitted)
190. Having recalled the previous findings of the A ppellate Body regarding the types of measures
that can be subject to an "as such" challenge , we now turn to examine whether the zeroing
methodology, as framed by the European Communities in this dispute, constitutes such a measure. In

321Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 82. (footnote omitted)
322Ibid., para. 82.
323Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 172.
324Ibid., para. 187 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
para. 82).
325Ibid., para. 187.

particular, we consider whether the zeroing met hodology, which, as the Panel said, "is not expressed
in writing"326, can be subject to dispute settlement under the Anti-Dumping Agreement.
191. In the context of the Anti-Dumping Agreement , the Appellate Body has said that
Article 17.3327 "underlines that a measure attributable to a Member may be submitted to dispute
settlement provided only that another Member has taken the view, in good faith, that the measure
nullifies or impairs benefits accruing to it under the Anti-Dumping Agreement ."328 In other words,
"[t]here is no threshold requirement, in Article 17. 3, that the measure in question be of a certain
type."329
192. Article 18.4 of the Anti-Dumping Agreement is also relevant to the question of the type of
measures that can, as such, be submitt ed to dispute settlement under the Anti-Dumping Agreement .
That provision contains an explicit obligation for Me mbers to ensure that their "laws, regulations and
administrative procedures" are in conformity with th e obligations set forth in that Agreement. The
phrase "laws, regulations and administrative proce dures" encompasses, in our view, "the entire body
of generally applicable rules, norms and sta ndards adopted by Members in connection with the
conduct of anti-dumping proceedings." 330 As the Appellate Body has previously explained, the
determination of the scope of "law s, regulations and administrative procedures" must be based on the
"content and substance" of the alleged measure, and "not merely on its form." 331 Accordingly, the
mere fact that a "rule or norm" is not expressed in the form of a written instrument, is not, in our view,
determinative of the issue of whether it can be cha llenged, as such, in dispute settlement proceedings.
Rather, as the Appellate Body has stated, "there is no basis, either in the practice of the GATT and the
WTO generally or in the provisions of the Anti-Dumping Agreement , for finding that only certain
types of measure[s] can, as such, be challenge d in dispute settlement proceedings under the Anti-

326Panel Report, para. 7.104.
327Article 17.3 of the Anti-Dumping Agreement provides, in relevant part:
If any Member considers that any benefit accruing to it, directly or
indirectly, under this Agreement is be ing nullified or impaired, or that the
achievement of any objective is being impeded, by another Member or
Members, it may, with a view to reaching a mutually satisfactory resolution
of the matter, request in writing consu ltations with the Member or Members
in question. (emphasis added)
328Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 86. (emphasis added)
329Ibid.
330Ibid., para. 87 and footnote 87 thereto.
331Ibid.

Dumping Agreement."
332 This is, moreover, consistent with th e comprehensive nature of the right of
Members to resort to dispute settlement to "preserve [their] rights and obligations ... under the covered
agreements, and to clarify the existing provisions of those agreements" as provided for in Article 3.2
of the DSU.
193. For all these reasons, and based on our review of the DSU and the Anti-Dumping Agreement,
we see no basis to conclude that "rules or norms" can be challenged, as such, only if they are
expressed in the form of a written instrument.
194. We note that the participants in this case agree that an "as su ch" challenge can, in principle,
be brought against a measure that is not expressed in the form of a written document. 333 Thus,
according to the European Communities, there is nothing in the covered agreements or in WTO
jurisprudence to suggest that a measure must be in written form. 334 The European Communities
further argues that there are measures that can be ju st as effective, normative, and as much a rule that
are not transposed into writing. 335 In the present case, the European Communities insists that, before
the Panel, it had not relied merely on "repeat actio n" as evidence of the exis tence of an "as such"
measure.336 Instead, referring, inter alia, to the standard programs u sed by the USDOC to calculate
margins of dumping and the Standard Zeroing Pr ocedures, the European Communities suggests that,
in this case, there is "overwhelming" evidence of the existence of the zeroing methodology as a
"norm".337
195. Although the United States agrees with the Eu ropean Communities that an unwritten measure
can, in principle, be challenged, as such, it emph asizes that, to hold a WTO Member accountable for
such a measure requires much more evidence and analysis than that in which the Panel engaged in this
case.338 The United States takes issue with the standa rd adopted by the Panel arguing that it would
mean that "abstractions can be measures".339 Moreover, the Panel's approach would mean that when a
Member does something in a particular instance, the Member's action results in a separate measure
that may be subject to an "as such" challenge, at least if the Member repeats the action with some

332Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 88. We note that
Article XXVIII(a) of the General Agreement on Trade in Services defines a "measure", for the purposes of that
Agreement, to be "any measure by a Member, whether in the form of a law, regulation, rule, procedure,
decision, administrative action, or any other form".
333United States' and European Communities' responses to questioning at the oral hearing.
334European Communities' response to questioning at the oral hearing.
335Ibid.
336Ibid.
337Ibid.
338United States' response to questioning at the oral hearing.
339United States' other appellant's submission, paras. 4 and 8.

indeterminate frequency. 340 According to the United States, th is approach "would start the WTO
dispute settlement system down the path of legi slating 'norms' rather than resolving disputes
concerning measures." 341
196. We agree with the United States that a panel mu st not lightly assume the existence of a "rule
or norm" constituting a measure of general and pros pective application, especially when it is not
expressed in the form of a written document. If a panel were to do so, it would act inconsistently
with its obligations under Article 11 of the DSU to "make an objective asse ssment of the matter"
before it.
197. When an "as such" challenge is brought against a "rule or norm" that is expressed in the form
of a written document—such as a law or regulation—th ere would, in most cases, be no uncertainty as
to the existence or content of th e measure that has been challenged. The situation is different,
however, when a challenge is brought against a "rule or norm" that is not expressed in the form of a
written document. In such cases, the very exis tence of the challenged "rule or norm" may be
uncertain.
198. In our view, when bringing a challenge agains t such a "rule or norm" that constitutes a
measure of general and prospective application, a complaining party must clearly establish, through
arguments and supporting evidence, at least that th e alleged "rule or norm" is attributable to the
responding Member; its precise content; and ind eed, that it does have general and prospective
application. It is only if the complaining party meets this high threshold, and puts forward sufficient
evidence with respect to each of these elements, th at a panel would be in a position to find that the
"rule or norm" may be challenged, as such. This evidence may include proof of the systematic
application of the challenged "rule or norm". Part icular rigour is required on the part of a panel to
support a conclusion as to the existence of a "rule or norm" that is not expressed in the form of a
written document. A panel must carefully examine the concrete instrument alities that evidence the
existence of the purported "rule or norm" in order to conclude that such "rule or norm" can be
challenged, as such.342
199. Turning to the specifics of this appeal, the Pa nel noted that the Standard Zeroing Procedures
"can be relevant evidence to ascert ain the existence of a methodology." 343 The Panel found that "the
instruction not to include comparison results with negative margins in the numerator of the dumping

340United States' opening statement at the oral hearing.
341United States' other appellant's submission, para. 4.
342This does not mean that a mere abstract principle would qualify as a "rule or norm" that can be
challenged, as such.
343Panel Report, para. 7.102. (footnote omitted)

margin is reflected in certain lin es of computer code that are always included in the computer
program[s] used by [the] USDOC in anti-dumping proceedings."
344 Furthermore, the Panel noted that
"the United States [did] not contest that the lines of computer code identified by the European
Communities as 'Standard Zeroing Procedures' [were] a constant feature of the computer program[s]
used by [the] USDOC to perform dumping margin calculations." 345 On this basis, the Panel stated
that the evidence before it "indicates that this excl usion of comparison results with negative margins
has been invariably performed by [the] USDOC for an extended period of time." 346 The Panel
added that the United States had been "unable to identify any instance where [the] USDOC had given
a credit for non-dumped sales"
347, and that the United States "ha[d] not contested in this proceeding
that [the] USDOC's zeroing methodology reflects a deliberate policy."348
200. Based on its assessment of this evidence, the Panel concluded that "the zeroing methodology
manifested in the 'Standard Zero ing Procedures' represents a well-established and well-defined norm
followed by [the] USDOC and that it is possible b ased on this evidence to identify with precision the
specific content of that norm and the future conduct that it will entail."349
201. Based on our review, we observe that the evidence before the Panel consisted of the USDOC
determinations in the "as applied" cases challenged by the European Communities 350, as well as the
standard programs used by the USDOC to calculate margins of dumping. 351 Furthermore, the Panel
had before it expert opinions regarding the use and the content of the zeroing methodology. 352 I n
addition, we note that the Panel had before it the Un ited States' recognition that it had been "unable to
identify any instance where [the] USDOC had given a credit for non-dumped sales". 353 The Panel
noted that the United States "ha[d] not contested in this proceeding that [the] USDOC's zeroing
methodology reflects a deliberate policy." 354 Furthermore, the United States indicated in its opening
statement at the oral hearing that it will soon be publicly announcing that it no longer will engage in

344Panel Report, para. 7.103. (emphasis added)
345Ibid. (emphasis added)
346Ibid. (emphasis added)
347Ibid. (footnote omitted)
348Ibid., para. 7.103.
349Ibid., para. 7.104. (footnote omitted)
350Exhibits EC-1 through EC-15 submitted by the European Communities to the Panel.
351Exhibits EC-43 and EC-46 submitted by the European Communities to the Panel.
352Exhibits EC-44 and EC-46 submitted by the European Communities to the Panel.
353Panel Report, para. 7.103. (footnote omitted)
354Ibid., para. 7.103.

zeroing when using the weighted-average-to- weighted-average methodology for purposes of
calculating margins of dumping in original investigations.
202. The Anti-Dumping Manual has also been refe rred to by the European Communities as
evidence of "the 'standard' character of the 'Standard Zeroing Procedures'". 355 The United States did
not contest, before the Panel or on appeal, that the Anti-Dumping Manual characterizes the programs
used by the USDOC to calculate anti-dumping margin s as "standard", and explains that the USDOC's
"calculation methodology" is "built into these programs". 356 The Anti-Dumping Manual further states
that "[c]alculation consistency occurs when ev ery program uses the same standard calculation
methodology" and that "[c]onsistenc y is achieved by insuring that the standard programs conform
with current AD calculation methodology."357
203. Reviewing the Panel's reasoning, it is evident that there are sev eral features of the Panel's
analysis that differ from our own. First, the Pane l did not articulate the criteria for bringing an "as
such" challenge in the same way as we have above. 358 Moreover, the Panel did not, in its analysis,
clearly distinguish between the issue of ascertaining the existence of the challenged measure, which is
especially important when unwritten measures are at issue, and the separate examination of its
consistency with the relevant prov isions of the covered agreements. 359 We are also of the view that
the Panel did not articulate its ultimate conclu sion regarding the consistency of the "zeroing
methodology" with Article 2.4.2 with sufficient precision.360 We wish to clarify, however, that we are
not making any finding here with respect to the consistency of the zeroing methodology, as such, with
the second or third methodology set forth in Article 2.4.2 for establishing the existence of margins of
dumping.361

355Panel Report, para. 7.107.
356Anti-Dumping Manual, chapter 9, p. 10.
357Ibid., p. 8.
358See supra, para. 198.
359We note that the Panel referred to the Report of the Appellate Body in US – Oil Country Tubular
Goods Sunset Reviews, expressing the view that if "a non-legally binding policy instrument such as the SPB is a
measure that can be challenged as such , it must logically also be possible to challenge as a measure a norm that
is not expressed in the particular form of an official written statement but the existence of which is made
manifest on the basis of other evidence." (Panel Report, para. 7.99) The Appellate Body's analysis of the SPB
does not, in our view, answer the question whether an unwritten "norm" can be challenged, as such.
360In particular, we note that the Panel's finding, on its face, is not clearly limited to a finding regarding
the consistency of the zeroing methodology, as it relates to original investigations in which the weighted-
average-to-weighted-average methodology contemplated in the first sentence of Article 2.4.2 is used to establish
margins of dumping. Nevertheless, this is what we understand the Panel to have meant. (See Panel Report,
para. 7.105)
361We note that the United States has not app ealed the Panel's finding that "model zeroing" as applied
in the original investigations listed in Exhibits EC-1 through EC-15 is inconsistent with Article 2.4.2 of the
 Anti-Dumping Agreement. Therefore, in this appeal, we are not required to, and we do not address that issue.

204. Notwithstanding these shortcomings in the Panel' s reasoning, we believe that, in the specific
circumstances of this case, the evidence before th e Panel was sufficient to identify the precise content
of the zeroing methodology; that the zeroing methodology is attributable to the United States, and
that it does have general and prospective application. This evidence consisted of considerably more
than a string of cases, or repeat action, based on which the Panel would have simply divined the
existence of a measure in the abstract. We ther efore cannot agree with the United States that the
Panel's approach, in this case, would mean that when a Member does something in a particular
instance, the Member's action results in a separat e measure that may be subject to an "as such"
challenge, at least if the Member repeats the action with some indeterminate frequency.
362
205. In the light of these considerations, we conc lude, albeit for reasons different from those
set out by the Panel, that the zeroing methodology, as it relates to original investigations in which the
weighted-average-to-weighted-average comparison me thod is used to calculate margins of dumping,
can be challenged, as such, in WTO dispute settlement.
2. Article 11 of the DSU
206. We turn next to consider the United States' cl aim that the Panel acted inconsistently with
Article 11 of the DSU in finding that the zeroing me thodology, as it relates to original investigations
in which the weighted-average-to-weighted-average comparison method is used to calculate margins
of dumping, is inconsistent, as such, with Article 2.4.2 of the Anti-Dumping Agreement.
207. The United States submits that, even assuming, arguendo, that the zeroing methodology could
constitute a "measure", the Panel failed to make an objective assessment of the matter as required
under Article 11 of the DSU. The United States advances two sets of arguments to support its claim.
208. First, the United States argues that, "[i]n orde r to conclude that a measure, as such, is
inconsistent with a WTO obligation, that measure must mandate a breach of that obligation." 363 The
United States contends, moreover, that "[t]he st andard for determining whether a measure as such
breaches a WTO obligation is that the measure eith er mandates WTO-inconsistent action or precludes
WTO-consistent action."364

362United States' opening statement at the oral hearing.
363United States' other appellant's submission, para. 43.
364Ibid., para. 44.

209. Secondly, the United States argues that "in order to determine whether a measure is 'as such'
inconsistent, reliance solely on statistics or aggregate results is not enough." 365 Instead, "it has to be
established that the measure causes the results." 366 The United States finds support for its position in
the Appellate Body Report in US – Anti-Dumping Measures on Oil Country Tubular Goods , where
the Appellate Body held, in the context of the SPB , that it had to be "demonstrate[d] that the SPB
 instructs the USDOC to treat dumping margins and import volumes as conclusive" and that the
USDOC "made a final ... determination ... due to the SPB". 367 The United States argues that the
Panel engaged in no comparable analysis with resp ect to the zeroing methodology in the present case.
The United States also highlights the serious nature of an "as such" challenge, and the particular
rigour required in assessing such a challenge. The Un ited States submits that the Panel failed to reach
the requisite level of rigour and thus acted inconsistently with Article 11 of the DSU.
210. The European Communities contests the Unite d States' claim that the Panel acted
inconsistently with Article 11 of the DSU in its anal ysis. Referring to findings of the Appellate Body
in US – Corrosion-Resistant Steel Sunset Review , the European Communities argues that the
mandatory/discretionary distinction has not been rec ognized in Appellate Body jurisprudence. In any
event, according to the European Communities, there are several reasons why "the mechanistic
application of the mandatory/discretionary rule cannot avert a finding of inconsistency in this
particular case." 368 The European Communities argues in this respect that a measure need not "be
framed in the strongest 'compelling' language ... in order to be f ound [WTO-]inconsistent". 369
Moreover, in the European Communities' view, the measure at issue in this case is mandatory because
the Anti-Dumping Manual directs the use of the computer programs and the Standard Zeroing
Procedures "automatically and directly" effect the zeroing challenged by the European
Communities.
370 In addition, according to the European Communities, the Panel's findings in this
case were supported by uncontested facts and eviden ce, including the Standard Zeroing Procedures
and other "supporting and corroborating evidence". 371 The European Communities adds that the

365United States' other appellant's submission, para. 50 (referring to Appellate Body Report, US – Oil
Country Tubular Goods Sunset Reviews, para. 215; and Appellate Body Report, US – Anti-Dumping Measures
on Oil Country Tubular Goods, para. 202).
366Ibid., para. 50.
367Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods , para. 206.
(emphasis added)
369Ibid., para. 79.
370Ibid., para. 81.
371Ibid., para. 11.

United States is, in fact, requesting the Appellate Body to reassess the evidence "and take a different
view from that taken by the Panel".
372
211. The Appellate Body explained in US – Corrosion-Resistant Steel Sunset Review that it had
not, as yet, "pronounce[d] generally upon the continuing relevance or significance of the
mandatory/discretionary distinction."373 The Appellate Body went on to observe that:
... as with any such analytical tool, the import of the
'mandatory/discretionary distinction' may vary from case to case. For
this reason, we also wish to caution against the application of this
distinction in a mechanistic fashion.
374
212. Based on our review of the Panel's analysis , we do not believe that the Panel acted
inconsistently with its obligati ons under Article 11 of the DSU. As the Appellate Body had said
previously:
... Article 11 requires panels to take account of the evidence put
before them and forbids them to wilfully disregard or distort such
evidence. Nor may panels make affirmative findings that lack a basis
in the evidence contained in the panel record.
375
213. It seems to us that the Panel took into account all of the evidence placed before it and sought
verification of its accuracy. Moreover, the Panel set out sufficiently the basis for its conclusions on
the evidence.376 We disagree with the United States that the Panel did not assess objectively the issue
of whether the zeroing methodology, as it relates to original investigations in which the weighted-
average-to-weighted-average comparison method is used to calculate margins of dumping, is
inconsistent, as such, with Article 2.4.2. We al so disagree with the United States that the Panel's
analysis "relie[d] on nothing more than the fact th at the USDOC has engaged in zeroing in the past
using computers."
377 Instead, as discussed above 378, the Panel had before it evidence including
standard computer programs used by the USDOC to calculate margins of dumping, the Anti-Dumping
Manual, expert opinions, and the Standard Zeroing Procedures. We therefore cannot agree with the

373Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 93.
374Ibid.
375Appellate Body Report, US – Carbon Steel, para. 142. (footnote omitted)
376Although we have noted that there are areas in which the Panel's legal reasoning could have been
more precise, we are not persuaded that the Panel failed to objectively assess the matter before it, as required
under Article 11 of the DSU.
377United States' other appellant's submission, para. 52.
378See supra, para. 199.

United States that the Panel analysis "relie[d] on nothing more than the fact that the USDOC has
engaged in zeroing in the past using computers."379
214. We, therefore, do not agree with the United States that the Panel erred simply because it did
not apply the mandatory/discretionary distinction in analyzing and finding a violation of Article 2.4.2
of the Anti-Dumping Agreement .380 As the Appellate Body has said, "the import of the
'mandatory/discretionary distinc tion' may vary from case to case." 381 In the light of the above, we
conclude that the Panel did not act inconsistently with its obligations under Article 11 of the DSU.
3. Prima Facie Case
215. The United States contends that the Panel erre d in allocating the burden of proof regarding
this claim and in finding that the Eu ropean Communities had established a prima facie case. The
Panel stated that it would consider "whether th ere exists what the European Communities terms
methodology and whether this methodology can be found to be WTO-inconsistent", even though the
Panel did not explain what the European Commun ities "meant by 'methodology'". The Panel, in the
United States' view, could not do so, because the European Communities never explained properly
how methodology could be considered a measure. 382 The Panel effectively relieved the European
Communities from its burden to demonstrate, as part of its prima facie case, an act or instrument that
required the USDOC to "zero" in anti-dumping investigations.383
216. In contrast, the European Communities emphasiz es that it set out with sufficient clarity and
precision its arguments before the Panel and that the Panel did not rely exclusively on evidence of
past behaviour of the United States.
217. The Appellate Body has made clear that "a prima facie case is one which, in the absence of
effective refutation by the defending party, requires a panel, as a matter of law, to rule in favour of the
complaining party presenting the prima facie case." 384 Therefore, in determining whether the
European Communities established a prima facie case that the zeroing methodology, as it relates to
original investigations, is inconsistent , as such, with Article 2.4.2 of the Anti-Dumping Agreement ,
we need to examine the evidence and arguments that the European Communities submitted to the

379United States' other appellant's submission, para. 52.
380Ibid., para. 47.
381Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 93.
382United States' other appellant's submission, paras. 54-55 (referring to Panel Report, para. 7.98).
383Ibid., para. 61.
384Appellate Body Report, EC – Hormones, para. 104. (footnote omitted)

Panel in relation to this claim.
385 At a minimum, the European Communities' evidence and arguments
must have been sufficient "to identify the cha llenged measure and its basic import, identify the
relevant WTO provision and obligation contained th erein, and explain the basis for the claimed
inconsistency of the measure with that provision."386
218. The United States does not dispute that the Eu ropean Communities' ev idence and arguments
were sufficient to "identify the relevant WT O provision and obligation contained therein". 387 Instead,
the United States emphasizes that the European Communities did not explain what it meant by
"methodology", nor did it explain how a methodology could constitute an act or instrument, and
properly be considered a measure.
219. In its submissions to the Panel, the European Communities set out the main elements of the
zeroing methodology used by the USDOC in both original investigations and periodic reviews. 388 In
addition, for both original investigations and pe riodic reviews, the European Communities described,
in detail, "the method of comparing normal value and export price; the zeroing method; and the
process of imposition and assessment." 389 We therefore do not agree w ith the United States' assertion
that the European Communities failed to explain what it meant by "zeroing methodology".
220. Turning to the Panel's assessment of the evid ence and arguments, we note that both the
European Communities and the United States presen ted arguments, before the Panel, regarding
whether the zeroing methodology can be challenge d, as such, in dispute settlement proceedings. 390 In
the present dispute, the Panel rightly conducted its own assessment of the evidence and arguments,
rather than simply accepting the assertions of either party. 391 In doing so, the Panel took into account
and carefully examined the evidence and argumen ts presented by the European Communities and the
United States.

385See Appellate Body Report, US – Wool Shirts and Blouses , p. 16, DSR 1997:I, 323, at 338;
Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US II) , para. 66; Appellate Body
Report, US – Gambling, para. 141.
386Appellate Body Report, US – Gambling , para. 141. See also Appellate Body Report, US – Oil
Country Tubular Goods Sunset Reviews, paras. 263-264.
388Panel Report, paras. 2.1-2.12.
389European Communities' first written submission to the Panel, paras. 12, 21-24, and 37. See also
Exhibit EC-42 submitted by the European Communities to the Panel.
390See Panel Report, paras. 7.73-7.83.
391See Appellate Body Report, Japan – Apples , para. 166; and Appellate Body Report, Dominican
Republic – Import and Sale of Cigarettes, para. 82.

221. Under these circumstances, we do not agree with the United States' contention that the Panel
erred in allocating the burden of proof regardin g this claim and in finding that the European
Communities had established a prima facie case.
4. Conclusion
222. In the light of the above, we uphold the Panel's conclusion, in paragraphs 7.106 and 8.1(c) of
the Panel Report, albeit for reasons different from those set out by the Panel, that the zeroing
methodology, as it relates to original investigati ons in which the weighted-average-to-weighted-
average comparison method is used to calculate marg ins of dumping, is inconsistent, as such, with
Article 2.4.2 of the Anti-Dumping Agreement.
C. The Anti-Dumping Manual – Appeal by the European Communities
223. We turn next to the European Communities' contention that the Panel erred in exercising
judicial economy with regard to whether the Anti-Du mping Manual is a measure that is inconsistent,
as such, with certain provisions of the Anti-Dumping Agreement , the GATT 1994, and the WTO
Agreement.
224. The Panel found that the Anti-Dumping Manual "ha[d] been referred to by the European
Communities principally as evidence to confirm th e 'standard' character of the 'Standard Zeroing
Procedures'."
392 On this basis, the Panel concluded th at it was not necessary to make a finding on
whether the Anti-Dumping Manual is WTO-inconsistent as such. 393 The European Communities
challenges this conclusion on appeal.
225. We see no error in the approach taken by the Pa nel. We note, moreover, that the European
Communities has not provided specific arguments to support its claim that the Anti-Dumping Manual
is inconsistent with Articles 1, 2.4, 2.4.2, 5.8, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4 of the Anti-Dumping
Agreement, Articles VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of the WTO Agreement .
Nor has the European Communities explained why additional findings regarding the Anti-Dumping
Manual are necessary to resolve this dispute. We also note that we have upheld here the Panel's
finding that the zeroing methodology, as it relates to original investigations in which the weighted-
average-to-weighted-average comparison method is used to calculate margins of dumping, is
inconsistent, as such, with Article 2.4.2 of the Anti-Dumping Agreement. In these circumstances, we

392Panel Report, para. 7.107.
393Ibid.

find that the Panel did not err in exercising judici al economy by not making findings with regard to
the European Communities' claims concerning the Anti-Dumping Manual.
D. Other Claims by the European Communities Regarding the Zeroing Methodology
226. We now move to the issue of whether the Panel erred in finding that the zeroing methodology
used by the United States in administrative reviews is not inconsistent, as such, with Articles 1, 2.4,
2.4.2, 9.3, 11.1, 11.2, and 18.4 of the Anti-Dumping Agreement , Articles VI:1 and VI:2 of the
GATT 1994, and Article XVI:4 of the WTO Agreement.
227. These findings were consequential to the Panel fi nding that Article 2.4 and/or Article 2.4.2 of
the Anti-Dumping Agreement do not prohibit zeroing in administrative reviews.
394 We recall that we
reversed the Panel's findings on Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the
GATT 1994.395 We also declared moot, and of no legal effect, the Panel's finding that zeroing is not
inconsistent with the first sentence of Article 2.4 of the Anti-Dumping Agreement 396, and we declined
to rule on the European Communities' conditional a ppeal under Article 2.4.2. In the light of the
above, we declare moot, and of no legal effect, the Panel's finding, in paragr aph 8.1(g) of the Panel
Report, that the zeroing methodology used by the United States in administrative reviews is not
inconsistent, as such, with Articles 1, 2.4, 2.4.2, 9.3, 11.1, 11.2, and 18.4 of the Anti-Dumping
Agreement, Articles VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of the WTO Agreement.
228. This brings us to the question whether we can complete the analysis and determine whether
the zeroing methodology, as it relates to administrative reviews, is a measure that is inconsistent, as
such, with the provisions of Anti-Dumping Agreement , the GATT 1994, and the WTO Agreement
referred to by the European Communities. We emphasized above that, to bring an "as such" challenge
against a "rule or norm" that is not expressed in the form of a written document, a complaining party
must clearly establish, through arguments and suppor ting evidence, at least that the alleged "rule or
norm" is attributable to the responding Member, its precise content, and that it does have general and
prospective application. 397 As indicated above 398, it is only if the complaining party puts forward
sufficient evidence with re spect to each of these elements, that a panel would be in a position to find
that the "rule or norm" may be challenged, as such . Furthermore, we concluded that the zeroing
methodology, as it relates to original investigati ons, can be challenged, as such, in WTO dispute

394Panel Report, para. 7.290.
395See supra, para. 135.
396See supra, para. 147.
397See supra, para. 198.
398See supra, para. 198.

settlement.399 However, as we see it, the Panel's analys is and findings in paragraphs 7.91 to 7.106 of
the Panel Report relate only to the existence a nd the consistency of the zeroing methodology, as it
relates to original investigations in which th e weighted-average-to-weighted-average comparison
method is used to calculate margins of dumping. In these circumstances, and in the absence of factual
findings by the Panel or undisputed facts in the Panel record regarding whether the zeroing
methodology, as it relates to administrative reviews, is a measure that can be challenged, as such, we
are unable to complete the analysis to determine whether the zeroing methodology, as it relates to
administrative reviews, is inconsistent, as such, with Articles 1, 2.4, 2.4.2, 9.3, 11.1, 11.2, and 18.4 of
the Anti-Dumping Agreement , Articles VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of the
WTO Agreement.
E. Conditional Appeal by the European Communities
229. The European Communities has brought conditiona l claims with respect to: (1) the
"Standard Zeroing Procedures"; and (2) the US DOC's "practice" of zeroing. We examine these
conditional claims below.
1. The Standard Zeroing Procedures

230. The European Communities appeals the Panel's conc lusions or the Panel's exercise of judicial
economy regarding the Standard Zeroing Procedures 400 and requests the Appellate Body "to complete
the analysis" by finding first, that the Standard Zeroing Procedures are a "measure" that can be
challenged, as such, and secondly, that the Standa rd Zeroing Procedures are inconsistent, as such,
with Articles 1, 2.4, 2.4.2, 5.8, 9.3, and 18.4 of the Anti-Dumping Agreement, Articles VI:1 and VI:2
of the GATT 1994, and Article XVI:4 of the WTO Agreement .401 The European Communities'
request is conditioned on the Appellate Body re versing the Panel's finding that the zeroing
methodology is inconsistent, as such, with Article 2.4.2. According to the European Communities, its
request is also be triggered if we consider that the Standard Zeroing Procedures are not "condemned"
as a result of the Panel's finding regarding the zeroi ng methodology in the sense that "compliance [by
the United States] would necessitate modifica tion of the Standard Zeroing Procedures". 402 T h e
European Communities also appeals the Panel's findi ng that the Standard Zeroing Procedures, as used
in new shipper reviews, changed circumstances review s, and sunset reviews, are not inconsistent with

399See supra, para. 205.
400Panel Report, para. 7.97. See also supra, footnote 286.
401European Communities' appellant's submission, paras. 374 and 376.
402Ibid., para. 372.

Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4 of the Anti-Dumping Agreement ,
Articles VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of the WTO Agreement.
403
231. The Panel found that "to characterize the 'S tandard Zeroing Procedures' as an act or
instrument that sets forth rules or norms intended to have general and pros pective application is
somewhat difficult to reconcile with the fact that the 'Standard Zeroing Procedures' are only
applicable in a particular anti-dumping proceeding as a result of their inclusion in the computer
program[] used in that particular proceeding." 404 According to the Panel, "the need to incorporate
these lines of computer code into each individual program[] indicates that it is not the 'Standard
Zeroing Procedures' per se that set forth rules or norms of general and prospective application." 405
We agree with the Panel. Therefore, we find that the Standard Zeroing Procedures are not a measure
that can be challenged, as such, in WTO dispute settlement.
232. Because the Standard Zeroing Procedures are not a measure that can be challenged, as such, it
follows that they cannot be found to be either cons istent or inconsistent with a Member's obligations
under the covered agreements. Accordingly, we d eclare moot, and of no legal effect, the Panel's
findings, in paragraphs 7.291, 7.294, 8.1(g), and 8.1(h) of the Panel Report, that the Standard Zeroing
Procedures are not inconsistent, as such, with the provisions of the Anti-Dumping Agreement , the
GATT 1994, and the WTO Agreement, referred to by the European Communities.
2. The "Practice" of Zeroing "As Such"

233. We move next to the European Communities' conditional appeal regarding the Panel's
decision to exercise judicial economy with respect to what it refers to as the United States' "practice"
of zeroing, as such. 406 This appeal is triggered if the European Communities does not prevail on
appeal with respect to either its claim regardi ng the zeroing methodology, or its claim regarding the
Standard Zeroing Procedures.

403We note that, in paragraph 348 of its appellant's submission, the European Communities refers to the
"Standard Zeroing Methodology". Because the Panel did not make any findings on the "Standard Zeroing
Methodology", and because the references that the European Communities makes to paragraphs 7.292, 7.294,
and 8.1(h) of the Panel Report—all of which speak of the "Standard Zeroing Pro cedures"—we understand the
European Communities' appeal to relate to the latter.
404Panel Report, 7.97.
405Ibid.
406The European Communities' argument is simply that the Anti-Dumping Manual "directs the use of
the 'Standard Zeroing Procedures', Methodology and Practice [and] provides a link between the relevant
provisions of the Tariff Act and the Regulations, and the 'Standard Zeroing Procedures', Methodology and
Practice." (European Communities' appellant's submission, para. 343)

234. We have upheld the Panel's finding that the zeroing methodology, as it relates to original
investigations, is inconsistent, as such, with Article 2.4.2 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994. We have also d eclared moot, and of no legal effect, the Panel's
finding that the zeroing methodology, as it relates to ad ministrative reviews, is not inconsistent, as
such, with Articles 1, 2.4, 2.4.2, 9.3, 11.1, 11.2, and 18.4 of the Anti-Dumping Agreement ,
Articles VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of the WTO Agreement.407 We note,
moreover, that the European Communities did not set out any specific arguments to support this
aspect of its appeal. In these circumstances, we decline to rule on the European Communities'
conditional appeal regarding the United States' "practice" of zeroing, as such.

VI. Other Claims
A. Section 351.414(c)(2) of the USDOC Regulations
235. We turn now to the issue of whether the Panel erred in finding that Section 351.414(c)(2) of
the USDOC Regulations ("Section 351.414(c)(2)") 408 is not inconsistent, as such, with Articles 1, 2.4,
2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4 of the Anti-Dumping Agreement, Articles VI:1 and VI:2 of
the GATT 1994, and Article XVI:4 of the WTO Agreement.
236. Section 351.414(c)(2) provides:
In a review, the Secretary will normally use the average-to-
transaction method.
237. Section 351.414(b)(3) specifies that the average-to-transaction method:
... involves a comparison of the weighted average of the normal
values to the export prices (or constructed export prices) of individual
transactions for comparable merchandise.
238. The Panel found that Section 351.414(c)(2) is not inconsistent, as such, with Articles 1, 2.4,
2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4 of the Anti-Dumping Agreement, Articles VI:1 and VI:2 of
the GATT 1994, and Article XVI:4 of the WTO Agreement .409 The Panel considered that the

407In addition, we declared moot the Panel's findin g that the Standard Zeroing Procedures are not
inconsistent, as such, with the provisions of the Anti-Dumping Agreement , the GATT 1994, and the WTO
Agreement, referred to by the European Communities.
408Section 351.414(c)(2) is found in United States Federal Register , Vol. 62, No. 96 (19 May 1997),
Rules and Regulations, p. 27415 (Exhibit EC-35.3 su bmitted by the European Communities to the Panel),
codified in United States Code of Federal Regulations, Title 19, Section 351.414(c)(2).
409Panel Report, paras. 7.291, 7.294, 8.1(g), and 8.1(h).

European Communities' claim regarding Section 35 1.414(c)(2) was dependent upon a violation of
Article 2.4 and/or Article 2.4.2, and that the claim of a violation of Article 2.4 and/or Article 2.4.2
was based on an interpretation of these provisi ons as prohibiting zeroing and the use of an
asymmetrical comparison of export price and normal value in reviews. The Panel rejected that
interpretation and found that Section 351.414(c)(2) was WTO-consistent.
410
239. On appeal, the European Communities challenges the Panel's finding that
Section 351.414(c)(2) is not inconsistent, as such, with Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3,
and 18.4 of the Anti-Dumping Agreement , Articles VI:1 and VI:2 of the GATT 1994, and
Article XVI:4 of the WTO Agreement . For the European Commun ities, the "fair comparison"
requirement in Article 2.4 precludes a measure providing that the average-to-transaction method is the
"norm". The European Communities also considers that Section 351.414(c)(2) is inconsistent with
Article 2.4.2 because "it permits the use of an asymmetrical method without any of the cumulative
conditions set out in Article 2.4.2 having been met" , and because "it provides th at the normal rule is
asymmetry, when Article 2.4.2 provides that the normal rule is symmetry."411
240. For the United States, because the claims regarding Section 351.414(c)(2) are dependent upon
a finding of a violation of Article 2.4 and/or Ar ticle 2.4.2, and because the Panel properly found that
Article 2.4 and/or Article 2.4.2 neither require offsets nor prohibit the use of an average-to-transaction
comparison method once an anti-dumping duty has been imposed, the Appellate Body should reject
the European Communities' claims regarding Section 351.414(c)(2). 412 The United States adds that
the completion of the legal analysis would be pa rticularly inappropriate because the European
Communities failed to establish its prima facie case in the course of its submissions to the Panel. 413
In particular, the United States argues, the Eu ropean Communities failed to demonstrate that
Section 351.414(c)(2) mandates asymmetry or precludes symmetry, and, therefore, the European
Communities' evidence and arguments were insufficien t to explain the claimed inconsistency of the
regulation with particular WTO provisions and obligations.
414
241. We begin our analysis by noting that Sec tion 351.414(c)(2) does not concern the "zeroing"
aspect of the zeroing methodology. Section 351.414(c)(2) provides that the export price of an
individual transaction should normally be compared with a normal value calculated on the basis of a
contemporaneous weighted average of domestic prices. It does not set out any rule that would require

410Panel Report, paras. 7.290 and 7.293.
413Ibid., para. 202.
414Ibid., para. 203.

the authorities to disregard the results of intermed iate comparisons when the export price exceeds the
normal value.
242. In essence, the Panel's finding concerning Secti on 351.414(c)(2) is consequential to its view
that Article 2.4.2 does not apply to administ rative reviews, new shipper reviews, changed
circumstances reviews, and sunset reviews. Th e Panel reasoned that, because Article 2.4.2 does not
apply to such reviews, comparisons between the export price of an individual transaction and a
normal value calculated on the basis of a contemporaneous weighted average of domestic prices are
not prohibited and, therefore, Section 351.414(c)(2) is WTO-consistent. We recall that we declined to
rule on the European Communities' conditi onal appeal under Article 2.4.2 of the Anti-Dumping
Agreement.415 Therefore, we declare moot, and of no legal effect, the Panel's finding, in paragraphs
7.291, 7.294, 8.1(g), and 8.1(h) of the Panel Report, that Section 351.414(c)(2) is not inconsistent, as
such, with Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4 of the Anti-Dumping Agreement,
Articles VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of the WTO Agreement.
243. This brings us to the question whether it is a ppropriate for us to complete the analysis, and
assess whether Section 351.414(c)(2) is inc onsistent with the provisions of the Anti-Dumping
Agreement, the GATT 1994, and the WTO Agreement referred to by the European Communities. As
we understand it, the European Communities' argume nt is based on the assumption that Article 2.4.2
applies to all types of proceedings under the Anti-Dumping Agreement. We recall that we did not
examine the issue of whether the scope of appli cation of Article 2.4.2 is limited to original
investigations. Furthermore, the European Communities' appeal in relation to this issue is conditional,
and the condition on which the appeal is predicated w as not fulfilled. Therefore, we considered that
the issue was not before us. The Appellate Body has previously emphasized that "as such" challenges
against a Member's measures in WTO dispute settlement proceedings are particularly "serious
challenges" that seek to prevent a Member ex ante from engaging in a certain conduct.
416
The European Communities has submitted only lim ited arguments and evidence relating to the
meaning of Section 351.414(c)(2), its scope of app lication, and its alleged inconsistency with the
covered agreements. We also note that the Pane l Report does not contain factual findings regarding
the meaning of Section 351.414(c)(2). In these circum stances, we decline to co mplete the analysis to
determine whether Section 351.414(c)(2) is inconsistent, as such, with Articles 1, 2.4, 2.4.2, 9.3, 9.5,
11.1, 11.2, 11.3, and 18.4 of the Anti-Dumping Agreement , Articles VI:1 and VI:2 of the
GATT 1994, and Article XVI:4 of the WTO Agreement.

415Supra, para. 162.
416Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 172.

B. Judicial Economy
244. The European Communities argues that the Panel erred in exercising judicial economy with
respect to the question of whether administrative review proceedings based on model zeroing are
inconsistent with Article 9.3 of the Anti-Dumping Agreement . The European Communities also
appeals the Panel's exercise of judicial economy w ith respect to whether zeroing "as applied" in the
original investigations at issue is inconsistent with Article 2.4 of the Anti-Dumping Agreement.
245. The United States contends that the Panel properly exercised judicial economy with respect to
the consistency of model zeroing with Article 9.3 of the Anti-Dumping Agreement. The United States
takes issue with the European Communities' argument that a finding on this issue was necessary "in
order to effectively resolve the dispute between the parties"
417, because, when the European
Communities requests the United States to bring th e measure at issue into conformity with
Article 2.4.2, the United States "will respond that the measure at issue is already in conformity with
Article 9.3."418 According to the United States, "[t]his argument simply invites speculation as to how
the United States might implement the recommendations and rulings of the ... DSB" 419; the European
Communities has not explained or demonstrated why a finding on this point is necessary to resolve
the dispute.
246. Concerning the Panel's exercise of judici al economy with respect to the European
Communities' claim that model zeroing is inconsistent with Article 2.4, the United States rejects the
European Communities' contention that further findings on this matter are necessary because the
United States might implement by "switching" 420 to a different comparison methodology, thereby
potentially introducing an adjustment that is inconsiste nt with Article 2.4. In the United States' view,
the Appellate Body should not opine on how "any potentially changed measure" 421 could be WTO-
inconsistent.
247. With respect to the European Communities' claim that "model zeroing" applied in the original
investigations at issue is inconsistent with Article 9.3 of the Anti-Dumping Agreement , the Panel
stated that deciding that claim "would provide no ad ditional guidance as to the steps to be undertaken
by the United States in order to implement [the Panel's] recommendation regarding the violation on
which it is dependent."422 In other words, having found that "model zeroing" as applied by the United

418Ibid., para. 355.
421Ibid., para. 214.
422Panel Report, para. 7.34. (footnote omitted)

States is inconsistent with Article 2.4.2 of the Anti-Dumping Agreement, the Panel took the view that
an additional finding with respect to whether "model zeroing" is inconsistent with Article 9.3 of the
Anti-Dumping Agreement is not necessary to resolve the dispute.
248. In challenging this finding on appeal, the Eu ropean Communities emphasizes that, in cases in
which there is no request for an administrative revi ew, the USDOC issues assessment instructions to
US Customs to collect final anti-dumping duties at the ca sh-deposit rate, that is at the rate that was set
in the original investigation using "model zeroing". The European Communities contends that, in
such cases, the application of "model zeroing" in an assessment review, will necessarily be
inconsistent with Article 9.3 of the Anti-Dumping Agreement. The European Communities refers, in
particular, to the first sample case presented by the European Communities to the Panel regarding
anti-dumping duties on stainless steel from Italy. 423 According to the European Communities, the
final anti-dumping duties in that case were assesse d, in part, on the basis of a margin of dumping
established by using model zeroing.
249. With respect to the European Communities' cl aim that zeroing as applied in the original
investigations at issue, is inconsistent with Article 2.4 of the Anti-Dumping Agreement , the Panel
found that it was not necessary to address that claim given that it had found that the United States'
zeroing methodology, as applied in the original inv estigations at issue, is inconsistent with
Article 2.4.2 of the Anti-Dumping Agreement.
250. We fail to see why additional findings on the European Communities' claims under Articles
2.4 and 9.3 of the Anti-Dumping Agreement would be necessary to secure a "positive solution" 424 to
the dispute or a "satisfactory settlement of the matter". 425 In our view, the Panel did not commit an
error of law in deciding to exercise judicial econo my with regard to those claims, as it had already
found that zeroing as applied by the United States in th e original investigations at issue is inconsistent
with Article 2.4.2 of the Anti-Dumping Agreement. Thus, in our view, the Panel had made sufficient
findings to resolve the dispute once it had made this finding under Article 2.4.2.426

423See Panel Report, para. 2.9.
424Article 3.7 of the DSU.
425Article 3.4 of the DSU.
426We note that the United States has not app ealed the Panel's finding that "model zeroing" as applied
in the original investigations listed in Exhibits EC-1 through EC-15 is inconsistent with Article 2.4.2 of the
 Anti-Dumping Agreement.

C. Article 11 of the DSU
251. The European Communities argues that the Panel acted inconsistently with Article 11 of the
DSU by "demonstrat[ing] insufficien t reasoning, or internal inconsis tency, or the making of a case"
for the United States.
427 In the alternative, the European Comm unities submits that, to the extent that
the Panel's findings can be considered findings of f act, the Panel acted inconsistently with Article 11
of the DSU in that it did not make an objective assessment of the facts.
252. The United States requests the Appellate Body to reject the European Communities' claim
under Article 11 of the DSU. According to the Un ited States, the European Communities' claim was
not properly notified and did not provide the re quisite notice to the United States, the third
participants, and the Appellate Body. Secondly, the European Communities' appellant's submission is
"devoid" of any arguments in support of its claim. 428 Thirdly, the European Communities does not
reference "a single Panel finding that evinces the asse rted flaws", and has therefore not substantiated
its claim that the Panel failed to act consistently with Article 11 of the DSU.429
253. The Appellate Body has previously underscored that a claim under Article 11 of the DSU is a
"very serious allegation"430 and that:
[a] challenge under Article 11 of the DSU must not be vague or
ambiguous. On the contrary, such a challenge must be clearly
articulated and substantiated with specific arguments. An Article 11
claim is not to be made lightly, or merely as a subsidiary argument or
claim in support of a claim of a panel's failure to construe or apply
correctly a particular provision of a covered agreement.
431
254. We consider this finding apt and instructive in th is case. We do not believe that the European
Communities has "substantiated its claim" that the Pa nel acted inconsistently with Article 11. Its
allusion to "insufficient reasoning" by the Panel, or "internal inconsistency", is vague and mentioned
only in passing in its appellant's submission. The same applies to th e European Communities'
"alternative" argument regarding th e alleged failure of the Panel to make "an objective assessment …

427European Communities' appellant's submission, para. 370 and footnote 360 thereto (referring to
European Communities' response to Question 1 posed by th e Panel at the first Panel meeting; and European
Communities' second written submission to the Panel, para 18).
429Ibid., para. 230.
431Appellate Body Report, US – Steel Safeguards, para. 498.

of the facts of the case." 432 Moreover, "not every failure by the Panel in the appreciation of the
evidence before it can be characterized as failure to make an objective assessment of the facts".433
255. We turn next to the European Communities' allegation that the Panel "made a case" for the
United States. To understand the specifics of this claim, we look at the European Communities'
rebuttal submission to the Panel and its response to th e first set of questions posed by the Panel, to
which the European Communities refers in paragraph 370 of its appellant's submission.
256. In its rebuttal submission, the European Communitie s argued that "the role of the Panel is not
to make the case for either party, and that the Pa nel may pose questions only in order to clarify and
distil the legal argument." 434 According to the Eu ropean Communities, "[w]ith regard to certain
questions (for example, questions 1 and 2) posed to the United States, it is not precisely clear to the
European Communities what United States argument th e Panel was seeking to clarify or distil, and in
relation to these matters the European Co mmunities fully reserves its legal position."
435 A s w e
understand it, the European Communities appears to suggest that the Panel "made the case" for the
United States by asking these questions of the United States.436
257. The Appellate Body observed, in Thailand – H-Beams , that "panels are entitled to ask
questions of the parties that they deem relevant to the consideration of the issues before them."437 The

433Appellate Body Report, Japan – Agricultural Products II, para. 141.
434European Communities' second written submission to the Panel, para. 18 (referring to Appellate
Body Report, Thailand – H-Beams , para. 136). As a "preliminary remark", in its responses to the first set of
questions posed by the Panel the European Communities st ated, in essence, the same thing as it did in its
rebuttal submission. (See European Communities' response to Question 1 posed by the Panel)
435European Communities' second written submission to the Panel, para. 18 (referring to Appellate
Body Report, Thailand – H-Beams, para. 136).
436The questions posed by the Panel to the United States, to which the European Communities refers,
read as follows:
- Does the [United States] have any specific observ ations on the factual accuracy of the [European
Communities'] description of [the United States'] anti-dumping laws and regulations and of the cases
at issue in this dispute?
- If, in the view of the [United States], the rules on the establishment of dumping margins in
Article 2.4.2 do not apply to phases of an anti- dumping proceeding other than the investigation
phase, what rules do apply? What is the relevance of Article 9.3 and its reference to "margin of
dumping established under Article 2"? What is the relevance of the fact that identical language to
that in Article 9.3 appeared in Article 8.3 of the Tokyo Round Anti-Dumping Code, which had no
provision comparable to current Article 2.4.2?
437Appellate Body Report, Thailand – H-Beams, para. 135.

Appellate Body also noted that the panel in that cas e "did not err to the extent that it asked questions
of the parties that it deemed necessary 'in order to clarify and distill the legal arguments'."
438
258. In the present case, the Europ ean Communities has not explained why the questions posed by
the Panel would have been inappropriate for pur poses of "clarify[ing] and distil[ing] the legal
arguments" advanced by the parties in this dispute.
259. Moreover, we note that the Appellate Body stated in US – Shrimp that:
... the DSU accords to a panel established by the DSB, and engaged
in a dispute settlement proceeding, ample and extensive authority to
undertake and to control the process by which it informs itself both
of the relevant facts of the dispute and of the legal norms and
principles applicable to such facts. That authority, and the breadth
thereof, is indispensably necessary to enable a panel to discharge its
duty imposed by Article 11 of the DSU to "make an objective
assessment of the matter before it, including an objective assessment
of the facts of the case and the applicability of and conformity with
the relevant covered agreements ...".
439
260. Although the Appellate Body made these observatio ns in the context of examining the rights
of panels under Articles 12 and 13 of the DSU, we be lieve that they are also relevant to the situation
here. The "ample and extensive" nature of a pa nel's authority "to undertake and control the process"
by which it informs itself of the relevant facts of the dispute and of the legal norms and principles
applicable to a case, would appear to suggest that a panel also has broad authority to pose such
questions to the parties as it deems relevant for pur poses of considering the issues that are before it.
The asking of questions is, after all, part and parcel of the investigative function and duty of panels.
261. We note, moreover, that, when referring, in Japan – Agricultural Products II, to "making the
case" for the complaining party, the Appellate Body was speaking to a situation in which a panel
makes a ruling "in favour of a complaining party which has not established a prima facie case of
inconsistency based on specific legal claims asserted by it." 440 In contrast, asking questions to clarify
the meaning of an argument does not, in our view, amount to "making the case".
262. For these reasons, we do not agree with the European Communities that the Panel acted
inconsistently with its obligations under Article 11 of the DSU.

438Appellate Body Report, Thailand – H-Beams , para. 136 (referring to Panel Report, Thailand – H-
Beams, para. 7.50).
440Appellate Body Report, Japan – Agricultural Products II, paras. 129-130.

VII. Findings and Conclusions
263. For the reasons set forth in this Report, the Appellate Body:
(a) with respect to the administra tive reviews at issue in this case:
(i) reverses the Panel's finding, in paragra phs 7.288 and 8.1(f) of the Panel
Report, that the United States did not act inconsistently with Article 9.3 of the
Anti-Dumping Agreement and Article VI:2 of the GATT 1994, and finds

instead, that the United States acted inconsistently with those provisions;
(ii) finds it unnecessary, for purposes of resolving this dispute, to rule on whether
the United States acted inconsistently with the obligation contained in the
first sentence of Article 2.4 of the Anti-Dumping Agreement to make a "fair
comparison" between the export price and normal value;
(iii) upholds the Panel's finding, in paragraph 7.280 of the Panel Report, that
zeroing is not an impermissible allowan ce or adjustment under Article 2.4 of
the Anti-Dumping Agreement, third to fifth sentences;
(iv) declines to rule on the European Co mmunities' conditional appeal under
Article 2.4.2 of the Anti-Dumping Agreement;
(v) upholds the Panel's finding, in paragra phs 7.288 and 8.1(f) of the Panel
Report, that the United States did not act inconsistently with Articles 11.1
and 11.2 of the Anti-Dumping Agreement;
(vi) finds it unnecessary, for purposes of resolving this dispute, to rule on whether
the zeroing methodology, as applied in the administrative reviews at issue, is
inconsistent with Articles 1 and 18 of the Anti-Dumping Agreement and
Article XVI:4 of the WTO Agreement; and
(vii) declares moot the Panel's finding, in paragra phs 7.288 and 8.1(f) of the Panel
Report, that the United States did not act inconsistently with Article VI:1 of
the GATT 1994; and the Panel's finding, in paragraphs 7.284 and 8.1(e) of
the Panel Report, that the United States did not act inconsistently with the
first sentence of Article 2.4 of the Anti-Dumping Agreement;

(b) finds
, albeit for reasons different from those set out by the Panel, that the zeroing
methodology, as it relates to original investigations in which the weighted-average-to-
weighted-average comparison method is used to calculate margins of dumping, can
be challenged, as such, in WTO dispute settlement; and upholds the Panel's
conclusion, in paragraphs 7.106 and 8.1(c) of the Panel Report, that this methodology
is inconsistent, as such, with Article 2.4.2 of the Anti-Dumping Agreement;
(c) with respect to the zeroing methodology, as it relates to administrative reviews:
(i) declares moot the Panel's finding, in paragra ph 8.1(g) of the Panel Report,
that the zeroing methodology, as it relates to administrative reviews is not
inconsistent, as such, with Articles 1, 2.4, 2.4.2, 9.3, 11.1, 11.2, and 18.4 of
the Anti-Dumping Agreement, Articles VI:1 and VI:2 of the GATT 1994 and
Article XVI:4 of the WTO Agreement; and
(ii) finds
 that it is unable to complete the analysis to determine whether the
zeroing methodology, as it relates to admi nistrative reviews, is inconsistent,
as such, with Articles 1, 2.4, 2.4.2, 9.3, 11.1 and 11.2, and 18.4 of the Anti-
Dumping Agreement , Articles VI:1 and VI:2 of the GATT 1994, and
Article XVI:4 of the WTO Agreement;
(d) finds that the Standard Zeroing Procedures ar e not a measure than can be challenged,
as such, and, accordingly, declares moot the Panel's finding, in paragraphs 7.291,
7.294, 8.1(g), and 8.1(h) of the Panel Repor t, that the Standard Zeroing Procedures
are not inconsistent, as such, with Articles 1, 2.4, 2.4.2, 9.3, 11.1, 11.2, and 18.4 of
the Anti-Dumping Agreement , Articles VI:1 and VI:2 of the GATT 1994 and
Article XVI:4 of the WTO Agreement;
(e) finds
 that the Panel did not err in exercising judicial economy by not making findings
with regard to whether the Anti-Dumping Manua l is a measure that is inconsistent, as
such, with Articles 1, 2.4, 2.4.2, 5.8, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4 of the Anti-
Dumping Agreement, Articles VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of
the WTO Agreement;
(f) declines to rule on the European Communities' conditional appeal regarding the
United States' "practice" of zeroing;

(g) with respect to Section 351.414(c)(2):
(i) declares moot the Panel's finding, in paragraphs 7.291, 7.294, 8.1(g), and
8.1(h) of the Panel Report, that Sec tion 351.414(c)(2) is not inconsistent, as
such, with Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4 of the
Anti-Dumping Agreement , Articles VI:1 and VI:2 of the GATT 1994, and
Article XVI:4 of the WTO Agreement;
(ii) declines to complete the analysis to decide whether Section 351.414(c)(2) is
inconsistent, as such, with Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3
and 18.4 of the Anti-Dumping Agreement , Articles VI:1 and VI:2 of the
GATT 1994, and Article XVI:4 of the WTO Agreement; and
(h) finds that the Panel did not err in exercising judicial economy by not making findings
on whether administrative review proceedings based on model zeroing are
inconsistent with Article 9.3 of the Anti-Dumping Agreement;
(i) finds that the Panel did not err in exercising judicial economy by not making findings
on whether zeroing "as applied" in the original investigations at issue is inconsistent
with Article 2.4 of the Anti-Dumping Agreement; and
(j) rejects the European Communities' claim that th e Panel acted inconsistently with its
obligations under Article 11 of the DSU by failing to make an objective assessment
of the matter before it, including an objective assessment of the facts of the case.
264. The Appellate Body recommends that the DSB request the United States to bring its
measures, which have been found in this Report, an d in the Panel Report as modified by this Report,
to be inconsistent with the Anti-Dumping Agreement and with the GATT 1994, into conformity with
its obligations under those Agreements.

Signed in the original in Geneva this 31st day of March 2006 by:

Giorgio Sacerdoti
Presiding Member

 _________________________ _________________________
 Merit E. Janow Yasuhei Taniguchi
 Member Member

ANNEX I

17 January 2006
 (06-0246)
 Original: English

Notification of an Appeal by the European Communities

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

 The following notification, dated 17 January 2006, from the Delegation of the European
Commission, is being circulated to Members.

Pursuant to Article 16.4 and Article 17 of the DSU the European Communities hereby notifies
to the Dispute Settlement Body its decision to app eal to the Appellate Body certain issues of law
covered in the Panel report and cer tain legal interpretations devel oped by the Panel in the dispute

(WT/DS294/R). Pursuant to Rule 20(1) of the Working Procedures for Appellate Review , the
European Communities simultaneous files this Notice of Appeal with the Appellate Body Secretariat.
The European Communities considers that the Pa nel has failed to correctly apply customary
rules of interpretation of public international la w, as required by Article 3.2 of the DSU and
Article 17.6(ii) of the Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994 ( Anti-Dumping Agreement ), particularly as reflected in Articles 31 and 32 of the
Vienna Convention on the Law of the Treaties.
For the reasons set out in its submissions to the Panel, and for the reasons to be further
elaborated in its submissions to the Appellate B ody, the European Communities appeals, and requests
the Appellate Body to modify or reverse the legal findings and conclusions of the Panel, with respect
to the following errors :
(a) the Panel erred when it found that the Un ited States did not act inconsistently with
Articles 9.3 and 2.4 of the Anti-Dumping Agreement and Articles VI:1 and VI:2 of the
GATT 1994, despite the fact that the United States did not ensure, in the measures at
issue described in the third sen tence of para 2.6 of the Panel Report, in the context of
the "administrative review" proceedings liste d in Exhibits EC-16 to EC-31, that the
rate and amount of anti-du mping duty did not exceed the true margin of dumping
established in accordance with Article 2, b ecause the United States did not calculate a
margin of dumping for the product as whole
 (Panel Report, paras 8.1(f) and (e),
and 7.288, 7.284 and 7.248 to 7.285);

(b) the Panel erred when it found that the Un ited States did not act inconsistently with the
obligation to make a fair comparison contai ned in the first sentence of Article 2.4
 of
the Anti-Dumping Agreement when, in the measures at is sue described in the third
sentence of para 2.6 of the Panel Report, in the context of the "administrative review"
proceedings listed in Exhibits EC-16 to EC -31, the United States used a methodology
that, absent targeted dumping, involved asymmetrical comparison between "normal
value" and "export price", in which, at an intermediate stage in the calculation of the
margins of dumping, the prices at which export transactions above "normal value"
were made were effectively adjusted downwards ("zeroing" any negative intermediate
results) (Panel Report, paras 8.1(e), 7.284, 7.248 to 7.275, 7.281 to 7.283 and 7.285);
(c) the Panel erred when it found that the Un ited States did not act inconsistently with the
third to fifth sentences of Article 2.4
 of the Anti-Dumping Agreement when, in the
measures at issue described in the third sentence of para 2.6 of the Panel Report, in
the context of the "administrative review" proceedings listed in Exhibits EC-16 to
EC-31, the United States used a methodology that involved, at an intermediate stage
in the calculation of the margins of dumping, a zeroing adjustment not demonstrated
to have been made for a difference affec ting price comparability (Panel Report,
paras 8.1(e), 7.284, 7.276 to 7.283 and 7.285);
(d) the Panel erred when it found that the Un ited States did not act inconsistently with
Article 2.4.2 of the Anti-Dumping Agreement when, in the measures at issue described
in the third sentence of para 2.6 of th e Panel Report, in the context of the
"administrative review" proceedings listed in Exhibits EC-16 to EC-31, the United
States used a methodology that involved asymmetrical comparison between "normal
value" and "export price", and in which, at an intermediate stage in the calculation of
the margins of dumping, the prices at whic h export transactions above "normal value"
were made were effectively adjusted downwards ("zeroing" any negative intermediate
amounts), without complying with the cond itions and obligations set out in that
provision (Panel Report, paras 8.1(d), 7.223, 7.142 to 7.222 and 7.285);
(e) the Panel erred when it found that the Standard Zeroing Methodology used by the
United States in "administrative review" proceedings is not inconsistent with Articles
2.4, 2.4.2, 9.3, 11.1, 11.2, 1 and 18.4 of the Anti-Dumping Agreement; Articles VI:1
and VI:2 of the GATT 1994; and Article XVI:4 of the WTO Agreement (Panel Report,
paras 8.1(g) and 7.289 to 7.291);
(f) the Panel erred when it exercised judicial economy on the question of whether the
Manual is a measure inconsistent with Articles 2.4, 2.4.2, 5.8, 9.3, 9.5, 11.1, 11.2,
11.3, 1 and 18.4 of the Anti-Dumping Agreement; Articles VI:1 and VI:2 of the GATT
1994; and Article XVI:4 of the WTO Agreement (Panel Report, paras 7.107 and 7.289
to 7.294);
(g) the Panel erred when it found, in the c ontext of "administrative review" proceedings ,
that Section 351.414(c)(2) of the Regulations is not as such inconsistent with Articles
2.4, 2.4.2, 9.3, 11.1, 11.2, 1 and 18.4 of the Anti-Dumping Agreement; Articles VI:1
and VI:2 of the GATT 1994; and Article XVI:4 of the WTO Agreement (Panel Report,
paras 8.1(g) and 7.289 to 7.291);
(h) the Panel erred when it found, with r espect to new shipper proceedings, changed
circumstances proceedings, and sunset proceedings , that the Standard Zeroing
Methodology and Section 351.414(c)(2) of the Regulations are not as such
inconsistent with Articles 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, 1 and 18.4 of the Anti-

Dumping Agreement; Articles VI:1 and VI:2 of the GATT 1994; and Article XVI:4 of
the WTO Agreement (Panel Report, paras 8.1(h) and 7.292 to 7.294);
(i) the Panel erred when it exercised judicial economy on the question of whether or not
"administrative review" proceedings based on model zeroing are consistent with
Article 9.3 of the Anti-Dumping Agreement (Panel Report, paras 6.4 to 6.6 and 7.34);
(j) the Panel erred when it exercised judicial economy on the question of whether or not
model zeroing is consistent with Article 2.4 of the Anti-Dumping Agreement (Panel
Report, paras 8.2, 7.33 and 7.108);
(k) the Panel erred when it dismissed the EC's claims under Articles 11.1 and 11.2 of the
Anti-Dumping Agreement (Panel Report, paras 8.1(f), 7.143 and 7.286 to 7.288);
(l) the Panel erred when it dismissed other of the EC's claims, considered by the Panel to
be "dependent" (Panel Report, paras 8.1(f), 8.2, 7.34, 7.109 and 7.286 to 7.288); and
(m) the Panel failed to make an objective assessment of the matter before it, including (as
appropriate) an objective assessment of the facts of the case and the applicability of
and conformity with the relevant covered agreements, as required by Article 11 of the
DSU.
 The EC had also claimed before the Panel that the Standard Zeroing Procedures
 used by
the United States are a measure or part of a measure and are inconsistent with Articles 2.4, 2.4.2, 5.8,
9.3, 1 and 18.4 of the Anti-Dumping Agreement, Articles VI:1 and VI:2 of the GATT 1994 and
Article XVI:4 of the WTO Agreement. It appears to the EC that th e Panel has considered these
Standard Zeroing Procedures to be part of or a reflection of the methodology that it held to be as such
inconsistent with the obligations of the US in the case of original proceedings (and consistent with the
obligations of the US in the case of "administrat ive review" proceedings). However, this is not
expressly stated by the Panel and if the Appellate Body should consider this not to be the case (and
that bringing the methodology into conformity with the WTO obligations of the US would not
necessarily require bringing the Procedures into co nformity), the EC conditionally appeals and asks
the Appellate Body to find that the Standard Zeroing Procedures
 are as such inconsistent with the
obligations of the US in the case of original pr oceedings, "administrative review" proceedings, new
shipper proceedings, changed circumstances proceed ings and sunset proceedings. (Panel Report,
paras 8.1(c), 7.106 and 7.96 to 7.97; Panel Report, paras 8.1(g) and 7.289 to 7.291; and Panel Report,
paras 8.1(h) and 7.292 to 7.294).
 With regard to Practice , the EC appeals the exercise of judicial economy by the Panel with
respect to the US Practice of zeroing in original proceedings, "administra tive review" proceedings,
new shipper proceedings, changed circumstances proceedings and sunset proceedings.
 The EC also requests the Appellate Body to complete the analysis of the Panel where it
reverses or modifies findings of the Panel and comp letion of the analysis is necessary to resolve this
dispute.

ANNEX II

1 February 2006
 (06-0441)
 Original: English

Notification of an Other Appeal by the United States

under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU)
and Rule 23(1) of the Working Procedures for Appellate Review

 The following notification, dated 30 January 20 06, from the Delegation of the United States,
is being circulated to Members.

 Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 23(1) of the Working Procedures for Appellate Review , the
United States hereby notifies its decision to appeal to the Appellate Body certain issues of law
covered in the Report of the Panel in (WT/DS294/R) ("Panel Report") and certain legal
interpretations developed by the Panel in this dispute.

 The United States seeks review of the Panel's legal conclusion that the United States
maintains a "zeroing methodology" that, as it relates to original investigations, is a norm which, as
such, is inconsistent with Article 2.4.2 of the Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 ("AD Agreement").
1 This conclusion is in error and is
based on erroneous findings on issues of law and related legal interpretations, including the following:

1. The standard used by the Panel to identi fy "zeroing methodology" as a purported measure for
purposes of determining whether there was a bre ach of Article 2.4.2 of the AD Agreement is
erroneous as a matter of law.2

2. The Panel's finding that "zeroing methodolog y" constituted a "measure" because it is a norm
is erroneous, as is its subsequent finding that this "measure" breaches Article 2.4.2 of the AD
Agreement.3

1The Panel's conclusion and the articulation of the reasons therefore are set forth in Panel Report,
paragraphs 7.91-7.106 and 8.1(c).
2The standard used by the Panel is set forth largely in Panel Report, paragraphs 7.98-7.100.
3The Panel's finding is set forth largely in Panel Report, paragraphs 7.101-7.104.

3. The Panel failed to apply a correct analysis in finding that a measure allegedly taken by the
United States – the so-called "zeroing methodology" – is "as such" inconsistent with Article 2.4.2 of
the AD Agreement, and, in any event, failed to make an objective assessment under Article 11 of the
DSU.
4

4. The Panel relieved the European Communities of its burden of proving the existence of a
measure that is inconsistent with Article 2.4.2 of the AD Agreement.5

4The Panel's "as such" analysis appears to be set forth in Panel Report, paragraphs 7.104-7.105.
5This error is reflected in the Panel's overall analysis set forth in Panel Report, paragraphs 7.91-7.106.