GUATEMALA – ANTI-DUMPING INVESTIGATION REGARDING PORTLAND CEMENT FROM MEXICO AB-1998-6
Document: Report of the Appellate Body
Date: 2 November 1998
Document codes: WT/DS60/AB/R
Complainant: Mexico
Respondent: Guatemala
Third parties: Canada, El Salvador, Honduras, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. 7, Annex I  Anti-dumpingArt. VI  GATT 1994Art. 2, 3, 5, 6  Anti-dumping

GUATEMALA – ANTI-DUMPING INVESTIGATION
REGARDING PORTLAND CEMENT FROM MEXICO
AB-1998-6
Report of the Appellate Body

APPELLATE BODY
Guatemala – Anti-Dumping Investigation
Regarding Portland Cement from Mexico
Guatemala, Appellant
Mexico, Appellee
United States, Third Participant
AB-1998-6
Present:
Lacarte-Muró, Presiding Member
Beeby, Member
El-Naggar, Member
I. Introduction
1. Guatemala appeals from certain issues of law and legal interpretation developed in the Panel
Report, Guatemala – Anti-Dumping In vestigation Regarding Portland Cement from Mexico .1 T h a t
Panel was established by the Dispute Settlement Body (the "DSB") on 20 March 1997 with standard
terms of reference
2 based on Mexico's request for the establishment of a panel.3
2. The relevant facts are to be found in paragraphs 2.1 to 2.4 of the Panel Report.
3. The Panel considered claims made by Mexico concerning Guatemala's decision to initiate an
investigation into allegations of dumping of portland cement from Mexico, Guatemala's conduct of
that investigation by its authority leading to the preliminary determination, and its conduct of the final
stages of the investigation. The Panel Report was circulated to Members of the (the "WTO") on 19 June 1998. The Panel considered that its terms of reference entitled
it to examine "the matters referred to in Me xico's request for establishment of a panel".
4 The Panel

1
2, , 5 May 1997.
3, , 13 February 1997.
4Panel Report, para. 7.27.

made the following recommendations:
We ... recommend that the Dispute Settlement Body request Guatemala
to bring its action into conformity with its obligations under Article 5.5
of the ADP Agreement.
5
… we recommend that the Dispute Se ttlement Body request Guatemala
to bring its action into conformity with its obligations under Article 5.3
of the Agreement.6
It also suggested that:
… Guatemala revoke the existing anti-dumping measure on imports of
Mexican cement … . 7
4. On 4 August 1998, Guatemala notified the DSB 8 of its intention to appeal certain issues of
law covered in the Panel Report and legal interpretations developed by the Panel, pursuant to
paragraph 4 of Article 16 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes (the "DSU"), and filed a Notice of Appeal with the Appellate Body, pursuant to Rule 20 of
the Working Procedures for Appellate Review (the " Working Procedures "). On 14 August 1998,
Guatemala filed an appellant's submission drafted in Spanish. 9 On 31 August 1998, Mexico filed an
appellee's submission also drafted in Spanish. 10 In order to ensure that the third participant would
have time to prepare its submission after receiving an English version of the appellant's submission,
the Appellate Body granted the United States additional time to file its third participant's submission.
The United States filed that submission on 14 September 1998.
11 By our ruling of 31 August 1998,
we declined Mexico's request that its appellee's submission be withheld from Guatemala and the
United States until the end of the time-period allowed to the United States to file its third participant's
submission. The oral hearing, provided for in Rule 27 of the Working Procedures , was held on
2 October 1998. At the oral hearing, the participants and the third participant presented their
arguments and answered questions from the Division of the Appellate Body hearing the appeal.

5Panel Report, para. 8.4.
6Panel Report, para. 8.5.
7Panel Report, para. 8.6.
8WT/DS60/9, 4 August 1998.
9Pursuant to Rule 21(1) of the Working Procedures.
10Pursuant to Rule 22 of the Working Procedures.
11Pursuant to Rule 24 of the Working Procedures.

II Arguments of the Participants and Third Participant
A. Guatemala - Appellant
1. Whether the Dispute was Properly Before the Panel
5. Guatemala argues that the Panel erred in concluding that it could examine Mexico's claims
concerning the initiation of the anti-dumping investigation. In this respect, Guatemala asserts that the
Panel incorrectly interpreted the relationship between the dispute settlement procedures of the Anti-
Dumping Agreement and those of the DSU. It is clear from the wording of Article 1.2 of the DSU and
from the opening clause of Article 17.1 of the Anti-Dumping Agreement that the provisions of these
two covered agreements are to be applied together unless there is a difference between the special or
additional rules and procedures contained in Articles 17.4, 17.5, 17.6 and 17.7 of the Anti-Dumping
Agreement and the provisions of the DSU. Only in that event do the special or additional provisions
prevail. According to Guatemala, since Article 17.3 is not mentioned in Appendix 2 of the DSU as a
special or additional rule or procedure, it cannot prevail over the provisions of the DSU and must
always be read and applied consistently with the DSU, in particular Article 4.4. The Panel therefore
erred in disregarding the requirements of this provision. Article 4.4 requires the complaining Member
to identify the "measures" at issue.
6. Guatemala submits that the word "difference" in Article 1.2 of the DSU means
"contradiction" or "inconsistency". It is only if the special or additional rules contradict or are
inconsistent with the provisions of the DSU that th e special or additional rule must "prevail" over the
provisions of the DSU. If the special or additional rule simply does not include one of the specific
requirements of the provisions of the DSU, there is no conflict since it is possible to comply with both
sets of rules at once.
7. According to Guatemala, it therefore follows that the Panel erred in considering that
Articles 17.4 and 17.5 replace
12 the corresponding rules of the DSU, in particular Article 6.2, because
there is no contradiction or inconsistency between them. The Panel did not explain in what way the
provisions of the Anti-Dumping Agreement differ from Article 6.2 of the DSU. In Guatemala's view,
although Article 17.5 is silent regarding the need to identify the measure at issue, it is not in conflict
with Article 6.2 of the DSU. A better interpretation of Article 17.5 is that it is an additional rule that
requires the request for the establishment of a panel to include a statement regarding nullification or

12Panel Report, para. 7.16

impairment of benefits that is not required under Article 6.2 of the DSU. Given that there is no
conflict between the two provisions, the panel request must also satisfy the requirements of Article 6.2
of the DSU and must therefore identify the measure at issue and give a summary of the legal basis for
the claims made.
8. As regards the measures that may be contested in an anti-dumping dispute, Guatemala
contends that Article 17.4 of the Anti-Dumping Agreement is more than a "timing provision". Rather,
it limits the types of measure that may be challenged under the Anti-Dumping Agreement to the three
measures that are specifically identified in Article 17.4: the provisional anti-dumping duty, the final
anti-dumping duty and the acceptance of a price undertaking. Furthermore, a provisional measure can
only be challenged if the "significant impact" requirement is satisfied. Guatemala asserts that this
interpretation of Article 17.4 is borne out not only by its wording, but also by its context, object and
purpose and the drafting history of the Anti-Dumping Agreement.
9. Articles 1 and 18.3 of the Anti-Dumping Agreement , which form part of the context of
Article 17.4, draw a distinction between an "anti-dumping measure" and "investigations". Thus, an
investigation is not a measure. Furthermore, Articles 3.8, 15 and 17.6(ii) of the Anti-Dumping
Agreement refer to "measures" as distinct from procedural actions or decisions taken during an
investigation. Article 13 also limits the obligation to maintain a system of domestic judicial review to
review of the final determination and administrative acts related to it. Guatemala considers that the
importance of the word "measure" is further underlined by the fact that it appears in Articles 3.3, 3.7,
4.2, 4.4, 6.2, 10.4, 12.10, 19.1, 21.2, 21.8, 22.1, 22.2 and 22.8 of the DSU.
10. According to Guatemala, a broad interpretation of Article 17.4 of the Anti-Dumping
Agreement and of the word "measure" in this context would permit a Member to seek consultations
and the establishment of panels for alleged violations arising from the hundreds of acts or decisions
that are taken during the course of an anti-dumping investigation. This could lead to innumerable
proceedings concerning a single investigation, and the consequence would be a waste of resources and
a strain on the WTO dispute settlement system, while giving Members a way of utilizing that system
to exert influence on domestic anti-dumping investigations. Guatemala argues that the true object and
purpose of Article 17 is to provide a coherent set of rules for the settlement of anti-dumping disputes
that strikes an appropriate balance between the rights of Members to impose anti-dumping measures
and the rights of other Members to challenge those measures.

11. In Guatemala's view, the drafting history of the Anti-Dumping Agreement also bears out this
interpretation of Article 17.4. During the negotiations leading to the conclusion of the Agreement,
several countries proposed permitting a challenge to the decision to initiate itself. These proposals
were, however, rejected.
12. In addition, Guatemala believes that several Appellate Body Reports substantiate its argument
that anti-dumping disputes should be limited to one of the three measures enumerated in Article 17.4.
In Brazil - Measures Affecting Desiccated Coconut ("Brazil – Coconut")
13, the Appellate Body seems
to interpret a countervailing measure as some thing that results from an investigation. In United
States - Measure Affecting Imports of Wo ven Wool Shirts and Blouses from India ("United States –
Shirts and Blouses ")14, the Appellate Body considered that procedural actions resulting from a
measure are not in themselves "measures". Thus, steps in an investigation that either result from or
lead to a "measure" are not in themselves "measures".
13. Guatemala submits that a proper reading of Article 17.4 of the Anti-Dumping Agreement also
means that the Panel's broad reading of the word "measure"
15 is wrong since, in the context of the
Anti-Dumping Agreement, Article 17.4 defines the types of measure that may be challenged and there
is no room for such a broad reading.
14. Guatemala adds that although Article 17.4 of the Anti-Dumping Agreement limits the types of
"measure" that may be contested, there are no restrictions on the "claims" that may be made
concerning such a measure. The claims may, for instance, relate to the initiation and conduct of the
investigation. Guatemala considers that different considerations apply to disputes brought pursuant to
Article 18.4 of the Anti-Dumping Agreement since such disputes concern anti-dumping laws,
regulations or administrative procedures and not "anti-dumping measures" of the type covered by
Article 17.4 of that Agreement.
15. In conclusion, Guatemala submits that the Panel's interpretation of the dispute settlement
provisions in the DSU and the Anti-Dumping Agreement is wrong in two ways: (1) the Panel erred in
considering that it is not necessary for a Member to identify a specific anti-dumping measure in its
request for consultations and in its request for the establishment of a panel; and (2) the Panel erred in
concluding that the measure may be any of the hundreds of substantive decisions and procedural
actions taken during the course of an anti-dumping investigation.

13Adopted 20 March 1997, WT/DS22/AB/R.
14Adopted 23 May 1997, WT/DS33/AB/R.
15See Panel Report, para. 7.24.

16. As regards the Panel's terms of reference, Guatemala submits that the Panel could not take the
view that it had authority to examine claims relating to the final anti-dumping duty. First, as the Panel
found, the "matter" referred to the DSB and the "matter" which was the subject of consultations must
be the same "matter".
16 In this case, Mexico could not have identified the final measure in its request
for consultations since it had not been adopted at that time. The "matter" referred to the DSB could
not therefore include that "measure". Furthermore, according to Guatemala, the request for the
establishment of the Panel does not, in any event, identify the final anti-dumping duty as the measure.
17. Guatemala observes that the Panel declined to consider whether the provisional anti-dumping
duty was properly before it.
17 The Appellate Body should find, therefore, that the Panel did not have
jurisdiction to consider any of the claims made c oncerning the initiation of the investigation or the
notification of that initiation. Alternatively, Guatemala refers the Appellate Body to the arguments it
made to the Panel concerning "significant impact". It submits that Article 17.4 of the Anti-Dumping
Agreement requires the provisional measure to have a "significant impact" and this requirement must
be met before a complaining Member has the right to refer a provisional measure to the DSB.
Guatemala contends that Mexico did not claim, still less prove, that the provisional measure had a
significant impact on its trade interests or competitive position. The Panel did not therefore have any
authority to examine either the provisional measure or claims made in relation to it.
2. Interpretation of Article 19.1 of the DSU
18. Guatemala submits that the Panel erred in interpreting Article 19.1 of the DSU as permitting
it to recommend that Guatemala bring its "action" into conformity with its obligations under
Articles 5.3 and 5.5 of the Anti-Dumping Agreement. This Panel has broadened the powers of panels
by allowing recommendations to be made that refer not only to "measures" but also to any "action"
taken during the course of an anti-dumping investigation. The Panel, therefore, has acted contrary to
the rules of interpretation set forth in Article 31 of the Vienna Convention on the Law of Treaties (the
"Vienna Convention")
18, as it has imported a concept into Article 19.1 of the DSU that is not part of
that provision. In Guatemala's view this readin g also violates Article 19.2 of the DSU since panels
could make wide-ranging recommendations concerning a variety of procedural actions that were not
"measures", thereby limiting the rights of Members to conduct investigations.

16Panel Report, para. 7.15.
17Panel Report, footnote 219.
18Done at Vienna, 23 May 1969, 1155 U.N.T.S. 331; (1969), 8 International Legal Materials, 679.

19. Guatemala also argues that the Panel's suggestion concerning the implementation of its
recommendation on the violation of Article 5.3 of the Anti-Dumping Agreement violates Article 19.1
of the DSU. According to Guatemala, "suggestions" must refer to the same measure as the one which
is the subject of "recommendations". Since the final anti-dumping measure was outside its terms of
reference, the Panel could not, according to Guatemala, make any "recommendations" or
"suggestions" regarding it. Guatemala contends that the Panel's reading of Article 19.1 would give
panels discretion to refer to measures that bear no relation to the dispute, that have not been contested
and that lie outside their terms of reference.
3. Presumption of Nullification or Impairment
20. Guatemala believes that the Panel's reasoning on this issue starts from a mistaken premise.
The Panel considers that it is not necessary for the complaining Member to prove that the failure to
fulfil an obligation has particular adverse trade effects. This effectively denies Guatemala the
possibility of providing evidence to the contrary and converts the rebuttable presumption of
nullification or impairment that is set down in Article 3.8 of the DSU into an absolute one.
21. Guatemala considers that since it led evidence that Mexico's rights of defence were properly
safeguarded, despite the late notification under Article 5.5 of the Anti-Dumping Agreement, it was for
Mexico to prove any specific adverse effects or to show how its rights of defence were in fact
prejudiced. Guatemala asserts that a rebuttable presumption does not shift the burden of proof, but
rather it relieves the claimant of the burden of demonstrating a prima facie case in its favour. If the
other party leads evidence that casts doubt on what the presumption purports to show, then the
complaining party must lead further evidence in or der to satisfy the burden of proof. This is the
proper interpretation of Article 3.8 of the DSU. The defending party may rebut the presumption by
proving that the violation had no adverse impact. Guatemala submits that it did just that in this case.
22. First, the Anti-Dumping Agreement, unlike the Agreement on Subsidies and Countervailing
Measures (the "Subsidies Agreement"), does not impose any obligation to seek or hold consultations
before initiating an investigation, so the failure to give timely notification did not deprive Mexico of
any right to consult. Second, no evidence substant iates the argument that timely notification would
have given Mexico any opportunity to reach a compromise prior to initiation of the investigation since
Guatemala could have initiated the investigation immediately after notifying Mexico. Third,
Guatemala did not undertake any concrete steps in the investigation until Mexico had been notified

and it then gave Cruz Azul 19 a further period of two months to reply to the questionnaires. Fourth,
even if Mexico had wished to reach a compromise before initiation, it had neither the power, the right
nor the proper procedure for doing so, as anti-dumping cases cannot be the subject of transactions
between governments. Fifth, Mexico's "acquiescence" in the initiation of the investigation over a
period of six months shows that it did not have any interest in reaching a compromise.
23. Guatemala also asserts that the Panel's references to United States – Taxes on Petroleum and
Certain Imported Substances
20 and Japan – Taxes on Alcoholic Beverages 21 are irrelevant in this
context. These cases deal with substantive breaches that might have an effect on the levels of trade of
Members, whereas the present case deals with the breach of a procedural obligation that has nothing
to do with levels of trade. Guatemala argues that the Panel also erred in referring to Brazil -
Imposition of Provisional and Definitive Countervailing Duties on Milk Powder and Certain Types of
Milk from the European Economic Community
22 because this case does not concern nullification or
impairment, but rather the application of the concept of "harmless error", which is, in any event,
consistent with the normal rule on the burden of proof.
24. Guatemala therefore submits that the Panel erred in its interpretation of Article 3.8 of the
DSU.
4. Article 5.3 of the Anti-Dumping Agreement
25. As regards the obligations imposed by Article 5.3 of the Anti-Dumping Agreement, Guatemala
considers that if an investigating authority determines that an application made under Article 5.2 of
that Agreement complies with the requirements of that latter provision and if the authority examines
the "accuracy and adequacy" of the evidence accompanying the application, then the authority has
discretion to determine that there is "sufficient evidence" under Article 5.3. Furthermore, a panel may
not review the authority's determination on whether that evidence is sufficient. In terms of Article 5.3,
Guatemala believes that all that a panel may review is whether or not the authority actually examined
the "accuracy and adequacy" of the evidence.

19The Mexican company which is alleged to have dumped portland cement in Guatemala.
20Adopted 17 June 1987, BISD 34S/136.
21Adopted 1 November 1996, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R.
22Adopted 28 April 1994, BISD 41S/467, paras. 270 and 271.

26. Guatemala supports this interpretation by reference to the wording of Article 5.2 as well as its
context. Guatemala makes reference in that regard to Articles 5.6 and 5.8 of the Anti-Dumping
Agreement and to Article 11.2 of the Subsidies Agreement. It considers that its interpretation is also
consistent with the object and purpose of Article 5.3, as defined by the Panel. 23 Guatemala also
derives support for its view from the drafting history of that provision.
27. Guatemala considers that the Panel erred in concluding that Articles 2 and 3.7 of the Anti-
Dumping Agreement are applicable at the initiation stage of an investigation. Article 5.2 of that
Agreement lists the type of information that must be provided in an application and it does not
mention Article 2. If considerations were imported into Article 5.2 from Article 2, then the specific
requirements of Article 5.2 would be rendered re dundant. Likewise, although Article 5.2(iv) does
provide that paragraphs 2 and 4 of Article 3 are relevant at the stage of initiation, it does not mention
Article 3.7. Article 5.2 does not therefore oblige authorities to take account of the factors and indices
mentioned in Article 3.7.
28. The Panel also erred in imposing an obligation on investigating authorities that is not
contained in the Anti-Dumping Agreement . According to Guatemala, the Panel found that when
authorities formulate a recommendation or issue the notice of initiation, they must recognize: (1) that
during the course of the investigation, it will be necessary to make the adjustments provided for in
Article 2 in order to make a fair comparison, or (2) that an examination has been carried out that goes
beyond the evidence or information contained in the application. Guatemala contends that the Panel
has erred in reaching this conclusion because the Anti-Dumping Agreement does not oblige the
investigating authority either to acknowledge the n eed to make adjustments or to examine evidence
not included in the application. The requirement to make adjustments arises under Article 2 only
during the course of an investigation.
29. The fact that Articles 2 and 3.7 are not relevant at the stage of initiation is, in Guatemala's
view, borne out by Article 12 of the Anti-Dumping Agreement. According to this provision, it is only
in the case of preliminary and final determinations that the public notice must include information on
the comparison of prices and on the considerations relevant to the determination of injury. The notice
of initiation need only provide information concerning the basis of the allegations of dumping and
injury.

23Referring to the panel report in United States – Measures Affecting Softwood Lumber from Canada
("United States - Softwood Lumber"), adopted 27 October 1993, BISD 40S/358, the Panel considered that the
purpose of Article 5.3 was to establish a balance between the competing interests of the domestic industry in the
importing country and the interest of the exporting country in avoiding investigations (Panel Report, para. 7.52).

30. At footnote 242 of its Report the Panel declined to consider certain "additional evidence" that
Guatemala alleged was taken into account by the investigating authority when it decided to initiate the
investigation. The reason for the Panel's refusal was that it could find no trace of this evidence in any
part of the file relating to the decision to initiate. Guatemala submits that the Panel was wrong to
refuse to admit this evidence because the Anti-Dumping Agreement does not oblige the authority to
reveal what additional evidence it may have take n into consideration before taking the initiation
decision.
31. Guatemala submits that the Panel's interpretation of the word "evidence" in Article 5.3 of the
Anti-Dumping Agreement is also flawed. The Panel was wrong to find that "sufficient evidence"
means something whose accuracy and adequacy can be "objectively evaluated".
24 The Panel has, in
reality, added an obligation to Article 5.2 since, as well as being all that is "reasonably available",
information provided in an application must now also be capable of objective evaluation.
32. Guatemala maintains that this interpretation of Articles 5.2 and 5.3 of the Anti-Dumping
Agreement, which it argued before the Panel, was "permissible" and that the Panel, therefore, erred in
rejecting it because Article 17.6(ii) of the Anti-Dumping Agreement mandates that the Panel shall find
a measure to be consistent with the Agreement if it is adopted on the basis of one permissible
interpretation of a provision.
33. As regards the Panel's review of the facts, Guatemala submits that it erred in its interpretation
of Article 17.6(i) of the Anti-Dumping Agreement. According to Guatemala, that provision requires a
Panel to accept the authority's evaluation of the facts unless there is a finding, based on positive
evidence submitted by the defending party, of bias or subjectivity. Since there was no such finding in
the present case, the Panel should have accepted the Guatemalan authority's evaluation of the facts.
34. However, even if positive evidence of bias or subjectivity were not required, Guatemala
argues that the Panel improperly interpreted Article 17.6(i) as permitting it to carry out a de novo
evaluation of the facts. Furthermore, the Panel was wrong to rely on the panel report in
United States - Softwood Lumber
25, since that panel was concerned with the provisions of a different
agreement, namely the Agreement on Interpretation and Application of Articles VI, XVI and XXIII
(the "Tokyo Round Subsidies Agreement")26, which has no provision like Article 17.6(i).

24Panel Report, para. 7.71.
25Adopted 27 October 1993, BISD 40S/358.
26BISD 26S/56.

B. Mexico - Appellee
1. Whether the Dispute was Properly Before the Panel
35. Mexico endorses the Panel's finding that the term "measure" is not restricted to final anti-
dumping measures, provisional anti-dumping measures and acceptance of price undertakings. Since
neither the Anti-Dumping Agreement nor the DSU contains a definition or a special meaning for the
term "measure", it should be interpreted broadly and in accordance with its ordinary meaning.
According to Mexico, that meaning includes "any action or act carried out to achieve a particular
end". The text and context of the Anti-Dumping Agreement and the DSU show that Article 17 of the
Anti-Dumping Agreement does not support Guatemala's argument that the only measures which may
be contested are those enumerated in Article 17.4.
36. Mexico agrees with the Panel that Article 17.4 itself is simply a "timing provision".
27 Th e
provision does not include language that would limit disputes under the Anti-Dumping Agreement to
three types of measure. Indeed the English version of the provision does not mention final measures
at all, but refers only to whether "final action has been taken … to levy definitive anti-dumping duties
or to accept price undertakings … ". Article 17.3 also permits, as the Panel found
 28, consultations
about any "matter" without limit on the types of measure that may be contested. Likewise,
Article 17.5 does not specifically make reference to any of the three measures Guatemala cites. It
refers simply to the "matter". Mexico adds that it does not consider that the Panel found that
Article 17.3 is a special or additional rule. All the Panel stated was that "if Article 17.3 requires
something different from the corresponding Article 4 of the DSU, the provisions of Article 17.3 must
prevail, otherwise Article 17.4 would not be given full effect".
29
37. In Mexico's view, Articles 1 and 18.3 of the Anti-Dumping Agreement show, at most, that a
"measure" is different from an "investigation". But that does not mean that the only measures that
may be contested are those mentioned in Article 17.4. Other provisions of the Anti-Dumping
Agreement confirm the conclusion that, in that Agreement, the word "measure" means more than
final anti-dumping measures, provisional anti-dumping measures and acceptance of price
undertakings. Article 10.7 speaks of "such measures as the withholding of appraisement or
assessment as may be necessary to collect anti-dumping duties …" (emphasis added), and Article 13
refers to " medidas administrativas" (which in the English text appears as "administrative actions").

27Panel Report, para. 7.18.
28Panel Report, para. 7.14.
29Panel Report, para. 7.13.

Article 17.6(ii) also illustrates clearly that the term "measure" is related to compliance with any of the
provisions of the Anti-Dumping Agreement. Likewise, according to Mexico, Article 3.8 of the DSU
and Article XXIII of the GATT 1994 indicate that the infringement of any obligation constitutes a
"measure".
38. Mexico considers that Guatemala's view of the object and purpose of the word "measure" is
unrealistic. There is, as the Panel stated
30, no risk of multiple panels examining a single investigative
procedure since Article 17.4 of the Anti-Dumping Agreement means that a panel can only be
established after specific triggering events. Guatemala's position also provides a Member with a
strong incentive to initiate investigations in violation of the Anti-Dumping Agreement since, even
where the initiation of the investigation is manifestly unlawful, a Member must await a final
resolution before commencing dispute settlement proceedings. Mexico contends that it is precisely to
avoid this that Article 17.4 permits recourse to dispute settlement to challenge a provisional measure.
Guatemala's position would mean that it was, in reality, impossible to challenge a provisional measure
on the grounds of unlawful initiation, because the time required for a panel to report will always
exceed the maximum life of the provisional measure as set down in Article 7.4 of the Anti-Dumping
Agreement.
39. Mexico contends that any conclusion other than that reached by the Panel would, contrary to
the rules of the Vienna Convention, deprive many provisions of the Anti-Dumping Agreement of their
effect, including those on initiation and the special or additional rules and procedures on dispute
settlement. Mexico, therefore, proposes that the Appellate Body reject Guatemala's arguments that
the dispute was not properly before the Panel. The Appellate Body should also dismiss Guatemala's
arguments concerning the Panel's interpretation of Article 19.1 of the DSU.
2. Presumption of Nullification or Impairment
40. Mexico asserts that Guatemala has not demonstrated that its violation of Article 5.5 of the
Anti-Dumping Agreement did not have adverse effects for Mexico. First, the absence of obligations in
the Anti-Dumping Agreement regarding the need for consultations prior to the initiation of an
investigation does not mean that a Member no longer has the right to timely notification under

30Panel Report, footnote 212.

Article 5.5 of that Agreement, so as to be able to react in good time according to its best interests.
Second, if Guatemala had initiated the investigation immediately after notifying Mexico, the question
of adverse impact and the burden of proof would not have arisen. Third, the fact that Mexico had to
request an extension of time in itself constitutes an example of the adverse impact caused by the late
notification. Fourth, the fact that anti-dumping investigations are not the subject of transactions
between governments has nothing to do with whether Mexico suffered adverse effects in this case.
The possibility of a settlement between Guatemala and Mexico exists irrespective of when
notification takes place. Finally, Mexico did not acquiesce in the late notification. Moreover, Mexico
maintains that violation of Article 5.5 of the Anti-Dumping Agreement is not a harmless error because
the failure to comply with that provision denied Me xico time to defend its interests. Mexico submits
that Guatemala is also wrong to assert that the Panel has made the burden of proof impossible to fulfil.
Guatemala simply failed to prove what it had to prove.
3. Article 5.3 of the Anti-Dumping Agreement
41. In Mexico's view, contrary to what Guatemala claims, Article 5.3 of the Anti-Dumping
Agreement does not simply oblige an authority to examine the accuracy and adequacy of the evidence.
The wording of that Article clearly indicates that the object and purpose of the examination is "to
determine whether there is sufficient evidence to justify the initiation of an investigation". By
revealing that the evidence is accurate and adequate, the examination does not ensure that the
evidence is "sufficient", since these are different th ings. The authority must, therefore, examine the
accuracy, adequacy and the sufficiency of the evidence. Mexico contends that Guatemala's
interpretation would allow groundless investigations to be initiated and is, therefore, contrary to the
purpose of Article 5.3.
42. Mexico believes that Article 5.8 of the Anti-Dumping Agreement resolves all doubt that an
authority must have sufficient evidence to initiate an investigation. It states not only that an
investigation shall be terminated as soon as the au thorities are satisfied that there is not sufficient
evidence but also that "[a]n application … shall be rejected" if there is insufficient evidence.
(emphasis added)
43. As regards the relevance of Article 2 of the Anti-Dumping Agreement, Mexico asserts that
Guatemala is trying to confuse the issue by arguing that Article 2 conflicts with Article 5.2. There is,

however, no conflict and the provisions are complementary. Moreover, given the opening words of
Article 2.1 ("For the purpose of this Agreement … "), the definition provided in Article 2 of the term
"dumping" applies to all provisions of the Agreement and to all stages of an investigation. Mexico
maintains that, if this were not so, there would be no other way to define the term "dumping". Mexico
argues that the definition provided in Article 3.7 of the Anti-Dumping Agreement of "threat of
material injury" also applies throughout that Agreement and, therefore, at all stages of an
investigation.
31 Moreover, although Article 5.2 refers expressly to paragraphs 2 and 4 of Article 3, it
does so purely by way of illustration. Article 5.2 of the Anti-Dumping Agreement therefore envisages
that other factors, such as those listed in Article 3.7, may also be relevant under Article 5.2. Finally,
as regards Guatemala's argument on Article 12 of the Anti-Dumping Agreement, Mexico submits that
the Panel did not find that this Article required reference to be made in the public notice to the need to
make a "fair comparison" or to the factors mentioned in Article 3.7. Rather, the Panel concluded that
it could find no trace in the documentary file of the assertions Guatemala made in this respect.
44. With respect to the information referred to in footnote 242 of the Panel Report, Mexico states
that the Panel refused to take it into consideration not because, as Guatemala claims, it was not
mentioned in the public notice, but because the Panel could find no trace of this information anywhere
in the administrative record for the investigation. Guatemala's claim that it is not necessary for an
authority to reveal what additional evidence it may have taken into consideration amounts to a
flagrant violation of the principles of procedural transparency and legal security. Affected parties
would not have the slightest idea of the basis on which decisions were taken, and investigations could
be commenced groundlessly in the knowledge that errors and omissions could be rectified
subsequently.
45. According to Mexico, Guatemala's argument that information supplied in an application does
not need to be capable of objective evaluation is also flawed in several respects. Guatemala confuses
the word "evidence" used in the first sentence of Article 5.2 of the Anti-Dumping Agreement with the
word "information" that is used in the third sentence. In addition, the second sentence of Article 5.2
provides that "[s]imple assertion, unsubstantiated by relevant evidence" does not satisfy the
requirements of that paragraph. It would, in an y event, be absurd to deny that "evidence" is
something whose accuracy and adequacy can be objectively evaluated. In both the exact sciences and
in law, a piece of evidence that cannot be objectively evaluated is not "evidence".

31See footnote 9 and the chapeau to Article 5.2 of the Anti-Dumping Agreement.

46. Mexico does not agree that the Panel misinterpreted Article 17.6(i) in reviewing the
Guatemalan authority's evaluation of the evidence. The text of Article 17.6(i) does not require the
complaining Member to show bias or subjectivity. Rather, it requires a panel to determine whether
the investigating authority acted in an unbiased and objective manner. Mexico asserts that
Guatemala's subsidiary argument that the Panel carried out a de novo review of the facts questions the
impartiality of the Panel and is not substantiated by any evidence. Furthermore, no definition of the
expression "de novo review" is given by Guatemala, nor does the Anti-Dumping Agreement offer any
assistance. The Panel has, in any event, clearly explained the way in which Guatemala failed properly
to establish the facts and the reasons why an unbiased and objective authority could not have acted as
the Guatemalan authority did.
47. Mexico also believes that Guatemala has confused the standard of review a panel must apply
under Article 17.6(i) with the obligations of sufficiency of evidence that were addressed in United
States - Softwood Lumber and that are imposed on the investigating authority.
48. Finally, Mexico submits that the Panel's conclusion that Guatemala initiated an investigation
in violation of Article 5.3 of the Anti-Dumping Agreement is irrefutably correct because the
Guatemalan authority in this case acted on the basis of simple assertions by the applicant and not on
the basis of accurate, adequate and sufficient evidence.
C. United States – Third Participant
49. The United States considers that this is a "difficult" case. On the one hand, Guatemala has
violated its obligations under the Anti-Dumping Agreement by initiating the investigation without
sufficient evidence, while, on the other hand, Mexico has failed to comply with the provisions of the
DSU since it did not properly identify the measure challenged. The United States believes that the
Panel should have found that Mexico's request for the establishment of a panel was inconsistent with
Article 17.4 of the Anti-Dumping Agreement , and it should, therefore, have dismissed Mexico's
complaint, leaving Mexico free to file a new and proper request with the DSB.

1. Whether the Dispute was Properly Before the Panel
50. The United States submits that the Panel erred in concluding that the provisions of Article 17
of the Anti-Dumping Agreement "replace" the provisions of the DSU. 32 According to Article 1.2 of
the DSU, it is only in the event of a "difference" that the special or additional rules and procedures in
Appendix 2 prevail over the provisions of the DSU. If, as in the case of Articles 4 and 6 of the DSU
and Article 17 of the Anti-Dumping Agreement , a Member can comply with both the special or
additional rules and the provisions of the DSU, there is no "difference" between them and no need for
the former provisions to "prevail" over the latter. In such a situation, the special or additional
provisions supplement rather than supplant the provisions of the DSU. The United States argues that
the Panel also erred in according Article 17.3 of the Anti-Dumping Agreement the status of a special
or additional rule or procedure because that provisi on is not identified as such in Appendix 2 of the
DSU.
51. According to the United States, if the rules of the Vienna Convention are applied to Article 17
of the Anti-Dumping Agreement and to the DSU it is clear that the Panel's "replacement doctrine"
rests on an impermissible interpretation of the DSU and the Anti-Dumping Agreement. First, it is
inconsistent with the plain text of those agreements. Second, if applied to other covered agreements
(e.g., the Subsidies Agreement), it would fundamentally alter the rights and obligations under those
agreements. Third, it would frustrate the object a nd purpose of the dispute settlement provisions of
the DSU and the Anti-Dumping Agreement, thus undermining the ability of the DSU to serve as a
unifying force in WTO dispute settlement.
52. Furthermore, the United States believes that, contrary to the Panel's views, Article 17.4 of the
Anti-Dumping Agreement imposes a "jurisdictional requirement" on a panel such that one of the three
anti-dumping measures mentioned in Article 17.4 must be identified as part of the "matter" in dispute.
The United States emphasizes that Panels may, nonetheless, examine claims directed against those
measures that relate to the initiation and conduct of an anti-dumping investigation. In the view of the
United States, this jurisdictional requirement serves the purpose of ensuring that all the matters which
relate to a single anti-dumping measure will be heard by one panel.

32Panel Report, para. 7.16.

2. Article 5.3 of the Anti-Dumping Agreement
53. According to the United States, the Panel did not err in rejecting Guatemala's arguments on
the interpretation of Articles 5.2 and 5.3 of the Anti-Dumping Agreement. The Panel was also correct
in finding that the Guatemalan investigating author ity did not have before it sufficient evidence of
dumping, injury and causal link to justify initiation of the investigation. The United States wishes to
stress, however, that the Panel's determination on th ese points is stated narrowly. In particular,
according to the United States, the Panel did not attempt to define either a standard of sufficiency
under Article 5.3 or the precise relationship between that provision and Article 5.2 of the Anti-
Dumping Agreement. The United States maintains that the Appellate Body's findings on this issue
should be equally narrow.
54. Finally, with respect to footnote 242 of the Panel Report, the United States submits that the
Appellate Body should reject Guatemala's argument that Article 12.1.1 of the Anti-Dumping
Agreement does not oblige an investigating authority to indicate that a decision to initiate was based
on information which was not contained in the application filed pursuant to Article 5.2. Any other
reading of Article 12.1.1 would allow investigating authorities to conceal the grounds upon which
they decided to initiate an investigation. The Panel's refusal in footnote 242 to consider post hoc the
additional information offered by Guatemala is also consistent with the findings of the panels in
United States – Restrictions on Imports of Cotton and Man-Made Fibre Underwear
33 and United
States – Shirts and Blouses34, since in both of those disputes, the panels refused to consider evidence
that was not available at the time the importing Member made its determination to impose measures.

33Adopted 25 February 1997, WT/DS24/R.
34Adopted 23 May 1997, WT/DS33/R.

III. Issues Raised in this Appeal
55. The appellant, Guatemala, raises the following preliminary issue in this appeal:
Whether the Panel erred in law in finding that this dispute was properly before it, and, in
particular:
(a) whether the Panel erred in finding that Article 17 of the Anti-Dumping
Agreement "provides for a coherent set of rules for dispute settlement specific
to anti-dumping cases … that replaces the more general approach of the
DSU"; and
(b) whether the Panel erred in concluding that, in a dispute brought under the Anti-
Dumping Agreement, it was not limited to examining the consistency with the
Anti-Dumping Agreement of one of the three specific types of "measure"
identified in Article 17.4 of that Agreement (that is, a definitive anti-dumping
duty, the acceptance of a price undertaking, or a provisional measure).
56. In the alternative, if we should find that this dispute was properly before the Panel, Guatemala
raises the following issues:
(a) whether the Panel erred in making recommendations under Article 19.1 of the DSU
that concerned "actions" rather than specific anti-dumping measures;
(b) whether the Panel was entitled to make a suggestion under Article 19.1 of the DSU
concerning the final anti-dumping duty if that measure lay outside the Panel's terms of
reference, and given that the Panel's recommendation referred to "actions", not
"measures";
(c) whether the Panel correctly concluded that Guatemala had not successfully rebutted
the presumption of nullification or impairment under Article 3.8 of the DSU arising
from the Panel's finding that Guatemala had acted inconsistently with Article 5.5 of
the Anti-Dumping Agreement; and

(d) whether the Panel correctly interpreted and applied Article 5.3 of the Anti-Dumping
Agreement in determining that Guatemala had not initiated the anti-dumping
investigation consistently with its obligations under that provision.
IV. Whether This Dispute Was Properly Before the Panel
57. With respect to the question whether this dispute was properly before it, the Panel concluded
as follows:
In view of the above, we reject the argument that a panel may only
consider a specific identified "measure" in an anti-dumping dispute.
Thus, we conclude that a claim that a Member has acted in a manner
inconsistent with its obligations under the ADP Agreement may be
presented to a Panel for consideration, and therefore that the matters
referred to in Mexico's request for establishment of a panel are
properly before us.
35
58. The Panel reached this conclusion on the basis of two alternative lines of reasoning. Under
the first line of reasoning, it found the following:
This interpretation of the provisions of Article 17 provides for a
coherent set of rules for dispute settlement specific to anti-dumping
cases, taking account of the peculiarities of challenges to anti-
dumping investigations and determinations, that replaces the more
general approach of the DSU. … In anti-dumping cases, the matter in
dispute may not be the final measure in and of itself (or the
provisional measure or any price undertaking), but may rather be an
action taken, or not taken, during the course of the investigation. …
36
(emphasis added)
…
Thus, we read Article 17.4 as a timing provision, establishing when a
panel may be requested, rather than a provision setting forth the
appropriate subject of a request for establishment of a panel … 37

35Panel Report, para. 7.27.
36Panel Report, para. 7.16.
37Panel Report, para. 7.18.

59. In its alternative line of reasoning, the Panel assumed "that the dispute settlement provisions
of the ADP Agreement (Articles 17.3, 17.4, and 17.5 in particular) did not represent a coherent
dispute settlement scheme which replaces the more general provisions of the DSU".
38 Under this line
of reasoning, it found that:
The terms of the DSU and GATT 1994 itself, as well as past GATT
practice and evolving WTO practice, support the conclusion that the
DSU does not preclude a panel from examining whether a Member's
initiation and conduct of an anti-dumping investigation is consistent
with its WTO obligations.39
…
The question then is whether the references to the term "measure" in
various provisions of the DSU should be interpreted as narrowing the
rights and causes of action set forth in Article XXIII by limiting the
range of alleged violations of the GATT 1994 (and of other WTO
Agreements) that could be subject to dispute settlement to those based
on specified "measures". … [I]t seems more likely that the term
"measure" should be interpreted broadly in order to give effect to the
substantive provisions of the WTO Agreement. To read "measure"
narrowly would mean that a variety of violations of obligations which
do not involve specified or identifiable measures would be outside the
scope of the dispute settlement system. This is not an approach to be
taken lightly unless such an intention can be clearly ascertained from
the text of the DSU. In our view, no such intention can be drawn from
the text of the DSU.
40
…
It thus seems clear to us that the use of the term "measure" in the DSU
should be understood as a shorthand reference to the many and varied
situations in which obligations under the WTO Agreements might not
be fulfilled by a Member, giving rise to a dispute, for which a
resolution process is provided in the DSU.41

38Panel Report, para. 7.22.
39Ibid.
40Panel Report, para. 7.24.
41Panel Report, para. 7.26.

60. We now turn to the provisions of the DSU and the Anti-Dumping Agreement which pertain to
this issue. Article 1.1 of the DSU reads, in relevant part:
The rules and procedures of this Understanding shall apply to
disputes brought pursuant to the consultation and dispute settlement
provisions of the agreements listed in Appendix 1 to this Understanding
(referred to in this Understanding as the "covered agreements").
(emphasis added)
61. Article 1.2 of the DSU provides, in relevant part:
The rules and procedures of this Understanding shall apply
subject to such special or additional rules and procedures on dispute
settlement contained in the covered agreements as are identified in
Appendix 2 to this Understanding . To the extent that there is a
difference between the rules and procedures of this Understanding and
the special or additional rules and procedures set forth in Appendix 2,
the special or additional rules and procedures in Appendix 2 shall
prevail. (emphasis added)
62. Article 6.2 of the DSU reads, in relevant part:
The request for the establishment of a panel shall be made in
writing. It shall … identify the specific measures at issue and provide
a brief summary of the legal basis of the complaint sufficient to
present the problem clearly. (emphasis added)
63. Article 17 of the Anti-Dumping Agreement contains the consultation and dispute settlement
provisions of that Agreement. Paragraphs 4 through 7 of Article 17 are listed as special or additional
rules and procedures in Appendix 2 of the DSU; paragraphs 1 through 3 of Article 17 are not.
Article 17.4 reads as follows:
If the Member that requested co nsultations considers that the
consultations pursuant to paragraph 3 have failed to achieve a mutually
agreed solution, and if final action has been taken by the administering
authorities of the importing Member to levy definitive anti-dumping
duties or to accept price undertakings , it may refer the matter to the
Dispute Settlement Body ("DSB"). When a provisional measure has a
significant impact and the Member that requested consultations
considers that the measure was taken contrary to the provisions of
paragraph 1 of Article 7, that Member may also refer such matter to the
DSB. (emphasis added)

64. As to the Panel's interpretation of the relationship between Article 17 of the Anti-Dumping
Agreement and the rules and procedures of the DSU, Article 1.1 of the DSU establishes an integrated
dispute settlement system which applies to all of the agreements listed in Appendix 1 to the DSU (the
"covered agreements"). The DSU is a coherent system of rules and procedures for dispute settlement
which applies to "disputes brought pursuant to the consultation and dispute settlement provisions of"
the covered agreements.
42 The Anti-Dumping Agreement is a covered agreement listed in Appendix 1
of the DSU; the rules and procedures of the DSU, therefore, apply to disputes brought pursuant to the
consultation and dispute settlement provisions contained in Article 17 of that Agreement. Under
Article 17.3 of the Anti-Dumping Agreement, consultations may be requested by a Member, if that
Member "considers that any benefit accruing to it, directly or indirectly, under this Agreement is
being nullified or impaired, or that the achievement of any objective is being impeded, by another
Member or Members". Article 17.3 of the Anti-Dumping Agreement is not listed in Appendix 2 of the
DSU as a special or additional rule and procedure. It is not listed precisely because it provides the
legal basis for consultations to be requested by a complaining Member under the Anti-Dumping
Agreement. Indeed, it is the equivalent provision in the Anti-Dumping Agreement to Articles XXII
and XXIII of the GATT 1994, which serve as the basis for consultations and dispute settlement under
the GATT 1994, under most of the other agreements in Annex 1A of the Marrakesh Agreement
Establishing the World Trade Organization
43 (the " WTO Agreement"), and under the Agreement on
Trade-Related Aspects of Intellectual Property Rights (the "TRIPS Agreement").
65. Article 1.2 of the DSU provides that the "rules and procedures of this Understanding shall
apply subject to such special or additional rules and procedures on dispute settlement contained in
the covered agreements as are identified in Appendix 2 to this Understanding." (emphasis added) It
states, furthermore, that these special or additional rules and procedures "shall prevail" over the
provisions of the DSU "[t]o the extent that there is a difference between" the two sets of
provisions (emphasis added) Accordingly, if there is no "difference", then the rules and procedures
of the DSU apply together with the special or additional provisions of the covered agreement. In our
view, it is only where the provisions of the DSU and the special or additional rules and procedures of

42DSU, Article 1.1.
43Articles XXII and XXIII of the GATT 1994 are not expressly incorporated by reference into the Anti-
Dumping Agreement as they are into all of the other Annex 1A agreements, with the exception of the Agreement
on Textiles and Clothing and the Agreement on Implementation of Article VII of the GATT 1994 . As a result,
contrary to the Panel's assumptions in paras. 7.23 and 7.24 of the Panel Report, Article XXIII of the GATT 1994
does not apply to disputes brought under the Anti-Dumping Agreement. On the contrary, Articles 17.3 and 17.4
of the Anti-Dumping Agreement are the "consultation and dispute settlement provisions" pursuant to which
disputes may be brought under that covered agreement.

a covered agreement cannot be read as complementing each other that the special or additional
provisions are to prevail. A special or additional provision should only be found to prevail over a
provision of the DSU in a situation where adherence to the one provision will lead to a violation of the
other provision, that is, in the case of a conflict between them. An interpreter must, therefore, identify
an inconsistency or a difference between a provision of the DSU and a special or additional provision
of a covered agreement before concluding that the latter prevails and that the provision of the DSU
does not apply.
66. We see the special or additional rules and procedures of a particular covered agreement as
fitting together with the generally applicable rules and procedures of the DSU to form a
comprehensive, integrated dispute settlement system for the WTO Agreement . The special or
additional provisions listed in Appendix 2 of the DSU are designed to deal with the particularities of
dispute settlement relating to obligations arising under a specific covered agreement, while Article 1
of the DSU seeks to establish an integrated and comprehensive dispute settlement system for all of the
covered agreements of the WTO Agreement as a whole. It is, therefore, only in the specific
circumstance where a provision of the DSU and a special or additional provision of another covered
agreement are mutually inconsistent that the spec ial or additional provision may be read to prevail
over the provision of the DSU.
67. Clearly, the consultation and dispute settlement provisions of a covered agreement are not
meant to replace, as a coherent system of dispute settlement for that agreement, the rules and
procedures of the DSU. To read Article 17 of the Anti-Dumping Agreement as replacing the DSU
system as a whole is to deny the integrated nature of the WTO dispute settlement system established
by Article 1.1 of the DSU. To suggest, as the Panel has
44, that Article 17 of the Anti-Dumping
Agreement replaces the "more general approach of the DSU" is also to deny the application of the
often more detailed provisions of the DSU to anti-dumping disputes. The Panel's conclusion is
reminiscent of the fragmented dispute settlement mechanisms that characterized the previous
GATT 1947 and Tokyo Round agreements; it does not reflect the integrated dispute settlement
system established in the WTO.
68. For these reasons, we conclude that the Panel erred in finding that Article 17 of the Anti-
Dumping Agreement "provides for a coherent set of rules for dispute settlement specific to anti-
dumping cases … that replaces the more general approach of the DSU."
45

44Panel Report, para. 7.16.
45Ibid.

69. In its alternative line of reasoning, the Panel gave the term "measure" a broad reading. It
found that this term is a "shorthand reference to the many and varied situations in which obligations
under the WTO Agreements might not be fulfilled."
46 Given this statement and the reasoning in
paragraph 7.24 of the Panel Report, it appears to us that the Panel reads the term "measure" as
synonymous with allegations of violations of the GATT 1994 and the other covered agreements. As
a consequence, the Panel blurs the distinction between a "measure" 47 and "claims" of nullification or
impairment of benefits.48 However, Article 6.2 of the DSU requires that both the "measure at issue"
and the "legal basis for the complaint" (or the "claims") be identified in a request for the establishment
of a panel. As we understand the Panel, it would, in effect, suffice, under Article 6.2 of the DSU, for
a panel request to identify only the "legal basis for the complaint", without identifying the "specific
measure at issue". This is inconsistent with the plain language of Article 6.2 of the DSU. For these
reasons, we do not agree with the Panel's finding in the first sentence of paragraph 7.26 of the Panel
Report.
70. In view of the fact that we have reversed both of the Panel's findings that led it to conclude that
this dispute was properly before it, we must now address this question ourselves.
49 Article 17.4 of the
Anti-Dumping Agreement allows a Member to refer a "matter" to the DSB when certain specified
conditions are satisfied. The word "matter" also appears in paragraphs 2, 3, 5 and 6 of Article 17. It
is the key concept in defining the scope of a dispute that may be referred to the DSB under the Anti-
Dumping Agreement and, therefore, in identifying the parameters of a panel's terms of reference in an
anti-dumping dispute. According to the rules of interpretation set out in Article 31 of the
Vienna Convention, the meaning of a term is to be determined by reference to its ordinary meaning,
read in light of its context, and the object and purpose of the treaty.

46Panel Report, para. 7.26.
47In the practice established under the GATT 1947, a "measure" may be any act of a Member, whether
or not legally binding, and it can include even non-binding administrative guidance by a government (see
Japan – Trade in Semi-Conductors , adopted 4 May 1988, BISD 35S/116). A measure can also be an omission
or a failure to act on the part of a Member (see, for example, India – Patent Protection for Pharmaceutical
and Agricultural Chemical Products , complaint by the United States, WT/DS50/R and WT/DS50/AB/R,
adopted 16 January 1998, and also India – Patent Protection for Pharmaceutical and Agricultural
Chemical Products, complaint by the European Communities and its Member States, WT/DS79/R, adopted
22 September 1998).
48Infra, paras. 72 and 73.
49We note that since the Panel's terms of reference in this case referred exclusively to only one
document -- the request for the establishment of a panel submitted by Mexico to the DSB (WT/DS60/2,
G/ADP/D3/2, 13 February 1997) -- there is no need for us to address the request for consultations (WT/DS60/1,
G/ADP/D3/1, 24 October 1996) in this case.

71. The word "matter" has many ordinary meanings, the most appropriate of which in this context
is "substance" or "subject-matter". 50 Although the ordinary meaning is rather broad, it indicates that
the "matter" is the substance or subject-matter of the dispute.
72. The word "matter" appears in Article 7 of the DSU, which provides the standard terms of
reference for panels. Under this provision, the task of a panel is to examine "the matter referred to the
DSB". These words closely echo those of Article 17.4 of the Anti-Dumping Agreement and, in view
of the integrated nature of the dispute settlement system, form part of the context of that provision.
Article 7 of the DSU itself does not shed any further light on the meaning of the term "matter".
However, when that provision is read together with Article 6.2 of the DSU, the precise meaning of the
term "matter" becomes clear. Article 6.2 specifies the requirements under which a complaining
Member may refer a "matter" to the DSB: in orde r to establish a panel to hear its complaint, a
Member must make, in writing, a "request for the establishment of a panel" (a "panel request"). In
addition to being the document which enables the DSB to establish a panel, the panel request is also
usually identified in the panel's terms of reference as the document setting out "the matter referred to
the DSB". Thus, "the matter referred to the DSB" for the purposes of Article 7 of the DSU and
Article 17.4 of the Anti-Dumping Agreement must be the "matter" identified in the request for the
establishment of a panel under Article 6.2 of the DSU. That provision requires the complaining
Member, in a panel request, to "identify the specific measures at issue and provide a brief summary of
the legal basis of the complaint sufficient to present the problem clearly." (emphasis added) The
"matter referred to the DSB", therefore, consists of two elements: the specific measures at issue and
the legal basis of the complaint (or the claims).
73. In our Report in Brazil – Coconut , we agreed with previous panels established under the
GATT 1947, as well as under the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade
51, "that the 'matter' referred to a panel for consideration consists of
the specific claims stated by the parties to the dispute in the relevant documents specified in the terms
of reference." 52 Statements in two of the panel reports cited by us in that case clarify further the
relationship between the "matter", the "measures" at issue and the "claims". In United States –
Imposition of Anti-Dumping Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway 53,

50C.T. Onions (ed.), The Shorter Oxford English Dictionary, Vol. II, p. 1291 (Guild Publishing, 1983).
51BISD 26S/171.
52Adopted 20 March 1997, WT/DS22/AB/R, p. 22.
53Adopted 27 April 1994, BISD 41S/229, para. 342.

the panel found that "the 'matter' consisted of the specific claims stated by Norway … with respect to
the imposition of these duties".54 (emphasis added) A distinction is therefore to be drawn between the
"measure" and the "claims". Taken together, the "measure" and the "claims" made concerning that
measure constitute the "matter referred to the DSB", which forms the basis for a panel's terms of
reference.
74. Having said this, we are aware that the Panel found that Article 17.5 of the Anti-Dumping
Agreement does not specifically require a panel request in an anti-dumping dispute to "identify the
specific measures at issue".
55 The Panel concluded that Article 17.5 of the Anti-Dumping Agreement
prevails over Article 6.2 of the DSU. 56 We consider, however, that the Panel erred in reaching this
conclusion. Certainly, Article 17.5 does not expressly require the complaining Member's request for
the establishment of a panel to identify the "specific measures at issue" or "to provide a brief summary
of the legal basis of the complaint". Indeed, Article 17.5 contains none of the explicit, detailed
procedural requirements that Article 6.2 of the DSU imposes on a request for the establishment of a
panel. All that Article 17.5 requires is that a request by a complaining party contain:
(i) a written statement of the Member making the request
indicating how a benefit accruing to it, directly or indirectly,
under this Agreement has been nullified or impaired, or that the
achieving of the objectives of the Agreement is being impeded,
and
(ii) the facts made available in conformity with appropriate
domestic procedures to the authorities of the importing
Member.
75. The fact that Article 17.5 contains these additional requirements, which are not mentioned in
Article 6.2 of the DSU, does not nullify, or render inapplicable, the specific requirements of
Article 6.2 of the DSU in disputes brought under the Anti-Dumping Agreement. In our view, there is
no inconsistency between Article 17.5 of the Anti-Dumping Agreement and the provisions of
Article 6.2 of the DSU. On the contrary, they are complementary and should be applied together. A
panel request made concerning a dispute brought under the Anti-Dumping Agreement must therefore
comply with the relevant dispute settlement provis ions of both that Agreement and the DSU. Thus,

54United States – Imposition of Countervailing Duties on Imports of Fresh and Chilled Atlantic Salmon
from Norway, adopted 28 April 1994, BISD 41S/576, para. 212, contains an identical phrase.
55Panel Report, para. 7.15.
56Ibid.

when a "matter" is referred to the DSB by a complaining party under Article 17.4 of the Anti-
Dumping Agreement, the panel request must meet the requirements of Articles 17.4 and 17.5 of the
Anti-Dumping Agreement as well as Article 6.2 of the DSU.
76. The Panel was correct in saying that the term "matter" has the same meaning in paragraphs 3,
4 and 5 of Article 17 of the Anti-Dumping Agreement.57 What is more important, however, is that the
word "matter" has the same meaning in Article 17 of the Anti-Dumping Agreement a s i t h a s i n
Article 7 of the DSU. It consists of two elements: the specific "measure" and the "claims" relating to
it, both of which must be properly identified in a panel request as required by Article 6.2 of the DSU.
77. The Panel found that Article 17.4 of the Anti-Dumping Agreement is a " timing provision"
rather than "a provision setting forth the appropriate subject of a request for establishment of a
panel."
58 (emphasis added) We do not agree. Where a complaining Member wishes to make any
claims concerning an action taken, or not taken, in the course of an anti-dumping investigation under
the provisions of the Anti-Dumping Agreement, Article 6.2 of the DSU requires "the specific measures
at issue" to be identified in the panel request.
78. For disputes brought under the Anti-Dumping Agreement, we must consider the provisions of
that Agreement to determine what may constitute a "specific measure". We note, first of all, that
Article 1 of the Anti-Dumping Agreement makes a distinction between an "anti-dumping measure"
and "investigations". It provides, in part, that:
An anti-dumping measure shall be applied only under the
circumstances provided for in Article VI of the GATT 1994 and
pursuant to investigations initiated and conducted in accordance with
the provisions of this Agreement … (emphasis added)
79. Furthermore, Article 17.4 of the Anti-Dumping Agreement specifies the types of "measure"
which may be referred as part of a "matter" to the DSB. Three types of anti-dumping measure are
specified in Article 17.4: definitive anti-dumping duties, the acceptance of price undertakings, and
provisional measures. According to Article 17.4, a "matter" may be referred to the DSB only if one of
the relevant three anti-dumping measures is in place. This provision, when read together with
Article 6.2 of the DSU, requires a panel request in a dispute brought under the Anti-Dumping
Agreement to identify, as the specific measure at issue, either a definitive anti-dumping duty, the
acceptance of a price undertaking, or a provisional measure. This requirement to identify a specific
anti-dumping measure at issue in a panel request in no way limits the nature of the claims that may be

57Panel Report, para. 7.15.
58Panel Report, para. 7.18.

brought concerning alleged nullification or impairment of benefits or the impeding of the achievement
of any objective in a dispute under the Anti-Dumping Agreement. As we have observed earlier, there
is a difference between the specific measures at issue -- in the case of the Anti-Dumping Agreement,
one of the three types of anti-dumping measure described in Article 17.4 -- and the claims or the legal
basis of the complaint referred to the DSB relating to those specific measures. In coming to this
conclusion, we note that the language of Article 17.4 of the Anti-Dumping Agreement is unique to that
Agreement.
80. For all of these reasons, we conclude that the Panel erred in finding that Mexico did not need
to identify "specific measures at issue" in this dispute. We find that in disputes under the Anti-
Dumping Agreement relating to the initiation and conduct of anti-dumping investigations, a definitive
anti-dumping duty, the acceptance of a price undertaking or a provisional measure must be identified
as part of the matter referred to the DSB pursuant to the provisions of Article 17.4 of the Anti-
Dumping Agreement and Article 6.2 of the DSU.
V. The Panel's Terms of Reference
81. We now turn to consider whether the Panel's terms of reference did, in fact, entitle it to
consider the claims made by Mexico concerning the initiation and subsequent conduct of the
investigation by the Guatemalan authority. The Panel's terms of reference in this case
59 were defined
exclusively by reference to the request for establishment of a panel submitted by Mexico to the
DSB.
60 In light of what we have said above concerning the proper interpretation of Article 17 of the
Anti-Dumping Agreement, the Panel was entitled to examine Mexico's claims concerning the initiation
and conduct of the investigation in this case only if the panel request properly identified a relevant
anti-dumping measure as the "specific measure at issue" in accordance with Article 6.2 of the DSU.

59WT/DS60/3, G/ADP/D3/3, 5 May 1997.
60WT/DS60/2, G/ADP/D3/2, 13 February 1997.

82. The second and third paragraphs of Mexico's panel request state the following:
As the consultations did not produce a satisfactory solution to the
matter (as is shown by the fact that the Government of Guatemala not
only did not revoke the provisional anti-dumping duties but increased
them in the final resolution to a level of 89.54 per cent, well above the
amount claimed by the petitioner), and taking into account that the
time-period established for conducting consultations under Article 4
of the DSU has been amply exceeded, the Government of Mexico
requests that at the next meeting of the Dispute Settlement Body,
scheduled for 25 February 1997, a dispute settlement panel be
established to examine the consistency of the anti-dumping
investigation by the Government of Guatemala into Guatemalan
imports of portland cement from Mexico with Guatemala's obligations
under the WTO, in particular those contained in the Anti-Dumping
Agreement.
The Government of Mexico requests that the Panel examine, find and
rule that the anti-dumping investigation in question is incompatible
with Guatemala's obligations under the AD. Mexico considers that in
the anti-dumping investigation in question actions were taken that are
inconsistent with, at least, Articles VI of the General Agreement on
Tariffs and Trade 1994, and 2, 3, 5, 6 and 7 of the Anti-Dumping
Agreement and Annex I thereto. By way of example, the aspects of
the investigation presenting the main inconsistencies with the Anti-
Dumping Agreement are highlighted below.
83. The examples Mexico then gives of the "main inconsistencies" are claims of alleged
violations of certain provisions of the Anti-Dumping Agreement relating to the "initiation" of the
investigation, the "preliminary resolution", and the "final stage of the proceeding".
84. Although it is clear from its panel request that Mexico made legal claims relating to the three
previously-mentioned actions in the investigation by the Guatemalan authority, it is not immediately
apparent from the language of its panel request whether Mexico properly identified one of the three
types of measure specified in Article 17.4 of the Anti-Dumping Agreement as the specific measure at
issue in this dispute. In response to questions posed by us at the oral hearing on 2 October 1998,
Mexico stated that, when it referred to the "final resolution" in parenthesis in the second paragraph of
its panel request, it had in mind the final determination , and not the final anti-dumping duty .
However, Mexico clarified that it did not intend to challenge what was mentioned in that paragraph,
but that it was "just providing some information".
61 This is confirmed by the Panel's observation 62

61Response by Mexico to questioning at the oral hearing.
62Panel Report, para. 7.19.

that Mexico had indicated that, if it wanted to challenge the final determination, it would have
requested consultations and the establishment of a panel to examine that matter.63
85. Throughout the proceedings, both before the Panel and before us, Mexico insisted repeatedly
that actions taken in the course of an investigation could constitute either a measure or a matter for
the purposes of a dispute brought under the Anti-Dumping Agreement.64 It maintained consistently
that, in the context of an anti-dumping dispute, it is not necessary to identify one of the three types of
anti-dumping measure mentioned in Article 17.4 of that Agreement.
65 However, Mexico drew a
distinction between the three actions relating to the conduct of the investigation that it had challenged,
and what it had requested the Panel to recommend if its claims regarding those actions were
established.66 In this context, Mexico requested that the Panel recommend the revocation of the final
anti-dumping duty if Mexico's claims of violation were established. 67 Mexico argued that the final
anti-dumping duty would necessarily be vitiated if the initiation and conduct of the investigation was
found to be inconsistent with Guatemala's obligations under the Anti-Dumping Agreement. Mexico,
therefore, did not see any need to identify either the final, definitive anti-dumping duty or the
provisional measure as the "specific measure at issue" in its panel request.
86. In view of the terms of Mexico's panel request , read in light of Mexico's own explanation of
that document, we conclude that its panel request did not identify the final anti-dumping duty as the
"specific measure at issue", as is required by Article 6.2 of the DSU. Mexico's panel request refers
only to the three actions taken during the course of the investigation by the Guatemalan authority as
the "matters in issue", and does not specifically identify the final, definitive anti-dumping duty. The
fact that Mexico requested the Panel to revoke the final duty if its claims of violation were established
does not mean that the final duty was thereby identified as the "measure at issue" in terms of
Article 6.2 of the DSU. Mexico's request that the Panel recommend revocation of the final duty in the
event that it were to find that Mexico's claims of violation were properly established, does not, in our

63In addition, we note that Mexico stated, in a corrigendum to its second written submission to the
Panel, that it was not challenging the final determination in these proceedings. See Panel Report, footnote 1.
64Response by Mexico to questioning at the oral hearing; response by Mexico to questioning by the
Panel; second written submission of Mexico to the Panel; and, oral statement by Mexico at the second meeting
of the Panel with the parties.
65Ibid.
66Response by Mexico to questioning at the oral hearing; first written submission of Mexico to the
Panel; response by Mexico to questioning by the Panel; second written submission of Mexico to the Panel;
and, oral statement by Mexico at the second meeting of the Panel with the parties.
67Mexico explicitly requested revocation of the final duty for the first time in its first written
submission to the Panel.

view, overcome the fact that Mexico's panel request does not specifically identify the final anti-
dumping duty as the measure at issue.
87. After considering the terms of the panel request, and in light of Mexico's express statements
at the oral hearing68, we also conclude that the provisional measure was not properly identified as the
specific measure at issue in Mexico's panel request. Therefore, we find that the provisional measure
was not properly before the Panel.
88. Since this case does not involve the acceptance of a price undertaking, we must, therefore,
conclude that the Panel erred in finding that it was entitled to examine Mexico's claims concerning
Guatemala's three actions relating to the initiation and conduct of the anti-dumping investigation. In
view of its erroneous interpretation of Article 17.4 of the Anti-Dumping Agreement and of Article 6.2
of the DSU, the Panel did not consider whether Mexico had properly identified a relevant anti-
dumping measure in its panel request and, therefore, it erred in finding that this dispute was properly
before it.
89. Having found that this dispute was not properly before the Panel, we consider that the merits
of Mexico's claims in this case are not properly before us. Therefore, we cannot consider any of the
substantive issues raised in the alternative by Guatemala in this appeal. Accordingly, we have no
choice but to come to no conclusions as to whether the Panel was right or wrong in finding that
Guatemala had acted inconsistently with its obligations under Articles 5.3 and 5.5 of the Anti-
Dumping Agreement or in making its recommendations and suggestion under Article 19.1 of the
DSU. Our finding that the Panel was not entitled, under its terms of reference, to examine Mexico's
claims in this case in no way precludes Mexico from seeking consultations with Guatemala regarding
the latter's imposition of definitive anti-dumping duties on imports of portland cement from Mexico
and from pursuing another dispute settlement complaint under the provisions of Article 17 of the
Anti-Dumping Agreement and of the DSU.

68As noted above, Mexico stated, in response to questions at the oral hearing, that it was not
challenging what was mentioned in parenthesis in the second paragraph of its panel request.

VI. Findings and Conclusions
90. For the reasons set out in this Report, the Appellate Body:
(a) reverses the Panel's finding in paragraph 7.16 of the Panel Report that Article 17 of
the Anti-Dumping Agreement "provides for a coherent set of rules for dispute
settlement specific to anti-dumping cases … that replaces the more general approach
of the DSU";
(b) reverses the Panel's alternative finding in paragraph 7.26 of the Panel Report relating
to the term "measure"; and
(c) reverses the Panel's conclusion in paragraph 7.27 of the Panel Report that "the matters
referred to in Mexico's request for establishment of a panel" were properly before it.

Signed in the original at Geneva this 15th day of October 1998 by:
Julio Lacarte-Muró
Presiding Member
_________________________ _________________________
 Member Member