Document: WT/DS397/R Page D-1 ANNEX D ORAL STATEMENTS OF THIRD PARTIES OR EXECUTIVE SUMMARIES THEREOF Contents Page Annex D-1 Third Party Oral Statement of Chile D-2 Annex D-2 Third Party Oral Statement of Colombia D-4 Annex D-3 Third Party Oral Statement of India D-7
Document codes: WT/DS397/R
Complainant: China
Respondent: EU
Third parties: Brazil, Canada, Chile, Colombia, India, Japan, Norway, Taiwan, Thailand, Turkey, U.S.
Dispute stage: Implementation & Compliance
Agreements cited: Art. 6, 9, 5, 2, 3, 4  Anti-dumpingArt. I, X:3(a), VI:1  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

ANNEX D

ORAL STATEMENTS OF THIRD PARTIES OR
EXECUTIVE SUMMARIES THEREOF

Contents Page
Annex D-1 Third Party Oral Statement of Chile D-2
Annex D-2 Third Party Oral Statement of Colombia D-4
Annex D-3 Third Party Oral Statement of India D-7
Annex D-4 Executive Summary of the Third Party Oral Statement of Japan D-10
Annex D-5 Third Party Oral Statement of Norway D-13
Annex D-6 Third Party Oral Statement of the Separate Customs Territory of
Taiwan, Penghu, Kinmen and Matsu
D-17
Annex D-7 Third Party Oral Statement of Turkey D-20
Annex D-8 Executive Summary of the Third Party Oral Statement of the
United States
D-22

ANNEX D-1

THIRD PARTY ORAL STATEMENT OF CHILE

1. Mr Chairman, distinguished members of the Pane l, the delegation of Chile, as third party in
this dispute, would like to than k the Panel for the opportunity to present its views on certain systemic
aspects of this case.
2. Chile does not propose to evaluate the substan ce of the dispute, nor will it question whether
the procedure used by the European Union to de termine whether or not the granting of Market
Economy Treatment or Individual Treatment to Chinese producers is contrary to the rules of the
GATT 1994 or the Anti-Dumping (AD) Agreement.
3. The first systemic issue that we would like to address is the determination of the domestic
industry. Regarding the criteria used to exclude certain categories of domestic producers, it is my
delegation's view that investigating authorities are not entitled to choose, at their own discretion, the
producers to be excluded from the concept of domestic industry.
4. Articles 3 and 4.1 of the AD Agreement clearly stipulate that the investigating authority must
carry out an objective examination of the totality of the domestic industry. The application of criteria
that deviate from this principle means that the au thority is "choosing" the producers that perform less
well within that industry as part of the investigation.
5. Similarly, the determination, without the n ecessary evidence, of a given percentage of
domestic production as constituting a major proportion of the total domestic production is, in our
view, at odds with Article 4.1 of the AD Agreement.
6. A second issue that we consider important is the determination of the volume of dumped
imports. A correct reading of Article 3.2 and 3.5 of the AD Agreement precludes the inclusion of the
imports that are not being dumped in the volume of dumped imports.
7. This is particularly important when it comes to assessing the in jury and the causal
relationship. We think that it is wrong to extr apolate the results of surveys directed at all
non-examined exporters, thereby including them in the volume of dumped imports.
8. Thirdly, with respect to the comparison of the normal price with the export price, Article 2.1
and 2.6 of the AD Agreement preclude the comparison of the price of products that are not identical
without first separating them into categories. I ndeed, the AD Agreement re quires the investigating
authority to conduct a thorough analysis of the ch aracteristics of the product in question before
making the comparison between the normal price and the export price.
9. At the same time, we consider the determinati on of injury to the domestic industry made by
the European Union to be inconsistent with Artic le 3.1 and 3.4 of the AD Agreement. Indeed, the
European Union considered that the displacement of domestic sales of one segment of the product
("special fasteners") w as a result of the increase of imports from another segment of the product
("standard fasteners"). This analysis is very mu ch at variance with the b asic principles that should
guide any investigating authority when determining injury.
10. The fourth and last issue of importance to us is the application of Article 6.5 of the
AD Agreement, which requires the investigating author ity to safeguard the confidential nature of the
information provided. The mentioned article distinguishes between two types of confidential
information: (a) information which is by nature confidential, and (b) information which is provided

on a confidential basis by parties to an anti-dumping investigation. Nevertheless, the treatment of
information as confidential will be contingent upon there being good cause for treating the
information in question as such.
11. Chile considers that for this provision to be correctly applied, the reasons justifying the
disclosure of the information provided must be kno wn to those who provided the information. If in
the course of the investigation the authority sees no good cause for maintaining the confidentiality of
the information, the authority must expressly so state. It is not something that can be done
subsequently, still less once the dispute settlement proceedings have begun, in the first written
submission. The disclosure of information considered by the authority to be non-confidential must be
properly substantiated and must be expressly authorized by the part y that supplied the information. If
this were not the case, the position of the investigated party would be undermined and the rules of due
process violated.

ANNEX D-2

THIRD PARTY ORAL STATEMENT OF COLOMBIA

I. INTRODUCTION

1. Mr. Chairman, distinguished Members of th e panel, on behalf of the Government of
Colombia, I thank you for giving us this opportunity to express our views on this important matter.

2. Our participation as a third party in this di spute is based on our systemic interest in the
interpretation of the Antidumping Agreement. In our written submission, Colombia commented on a
number of legal aspects pertaining to this disput e and we do not intend to repeat those comments
today. Rather this intervention will focus in two i ssues: first, the relation between articles 3.1, 4.1
and 5.4 when identifying the domestic industry in an antidumping proceeding; and, second, the
conditions in which a fair pri ce comparison should be undertaken for the purposes of the dumping
determination.

II. DOMESTIC INDUSTRY DETERMINATION IN LIGHT OF ARTICLES 3.1, 4.1
AND 5.4 OF THE ANTIDUMPING AGREEMENT

3. We consider that in the discussion of the de termination of the domest ic industry, the Panel
has an interesting opportunity to clarify the relation between articles 3.1, 4.1 and 5.4 of the
Antidumping Agreement.

4. Article 4.1 establishes how Members have to define the concept of domestic industry. This
general definition affects both the application of articles 5.4 and 3.1 of the Antidumping Agreement.

5. Article 5.4 establishes a gene ral obligation of Members to assess, before the initiation of an
anti-dumping investigation, if the request is being made by or on behalf of the domestic industry.

6. Article 3.1, read in conjunction with article 4, contains the conditions that have to be met in
order to identify the domestic industry, for the purpose of determining the injury caused by the
dumped products.

7. The threshold set in article 5.4 does not have to be reviewed throughout the development of
the investigation. Indeed, the panel in Mexico – Steel Pipes and Tubes , affirmed that there is no
obligation arising from article 5.4 that would imply an assessment of the support of the request of the
investigation at any different time than its initiation. Nonetheless, it is important to clarify that the
requirements of article 5.4 set a threshold that has to be met in order for an authority to commence an
antidumping investigation.

8. On the other hand, the evaluation of injury caused to domestic industry pursuant to the
conditions set out in article 3.1 has to be rendered in light of the investigation as a whole, considering
all positive evidence provided during th e proceedings, and not just those submitted at the initiation of
the investigation; hence in this case the notion of domestic industry, as presented by article 4.1,
should be taken into account during all the stages of the investigation.

9. In light of the above, the analysis of the co mpliance of the requirements of articles 3.1 and 4.1
of the Antidumping Agreement for the purpose of in jury determination is independent from the
standing requirement as established in article 5.4.

10. Moreover, the obligation of article 5.4 is diffe rent from that of articles 3.1 and 4.1. National
authorities should make an appropriate identification of the domestic industry before the investigation
commences. At a later stage of the investigation, the concept of domestic industry, meeting the
standards set in articles 3.1 and 4.1 of the Anti dumping Agreement, could change without breaching
the Agreement.

11. While not taking a final position on the facts of this case, it is our view that the Members of
the Panel should assess whether the European Union's authorities followed this procedure, and as such
complied with their obligations under the Antidumping Agreement.

III. FAIR PRICE COMPARISON

12. At this point we will like to draw your atten tion to the debate between the parties, as to the
conditions in which a fair price comparison should be undertaken.

13. On this issue, China claims that the Europ ean Union failed to make a fair price comparison
between normal value and export price, in accordance with article 2.4 of the Antidumping Agreement,
due to the fact that the European Union did no t take into consideration the full Product Control
Number used for the investigation, and that it did not adjust the prices taking due allowance of certain
conditions that might affect price comparability, such as the different physical characteristics, terms of
sale, taxation, levels of trade and quantities.

14. In response, the European Union holds that China failed to make a prima facie case with
respect to the alleged unfair price comparison, since it did not take into account relevant recitals of the
measure at issue, which are evidence of the compliance with article 2.4 of the Antidumping
Agreement. Additionally, the European Union clai ms that not using all the criteria of the Product
Control Number does not per se constitute a breach of the mentioned provision.

15. We consider that this part of the dispute brings forth the discussion of how the due allowance
of conditions that affect price comparability should be undertaken in an antidumping investigation.

16. When doing a price comparison, the national authority is bound to make a due allowance of
the differences and their merits that may affect the price comparability of the products. This
obligation has a two – fold burden, one on the inve stigating authority and the other on the producers
of the products under investigation. The first burden is on the authority to request the necessary
information to make a fair price comparison. As a response, the producers have to provide evidence
of which are the differences in the products that a ffect their price comparability. Faced with that
evidence, the authority is bound to make an assessment of the merits of that difference, in order to
adjust the prices for the purposes of making a fair price comparison.

17. The panel in Argentina – Ceramic Tiles clarified that although the decision with respect to the
adjustment of the prices due to specific conditions th at affect the price comparability has to be based
in the evidence provided by the representatives of the producers, it still has a minimum burden to
make an evaluation of, at least, the physical di fferences of the products according to the best
information available. Based on such minimum evaluation, the authority should make the appropriate
price adjustments to ensure a fair price comparison.

18. Once again, while not taking a final position on th e facts of this case, it is Colombia's opinion,
that in as much as the European Union's authorities can demonstrat e that they duly evaluated the
physical differences and all others mentioned by the producers in order to adjust the prices for the
purposes of a fair price comparison, their action may be considered by the Members of the Panel, to
be in accordance with the requirements of article 2.4 of the Antidumping Agreement. If the Panel

concludes that the European Union did not satisfy this burden, then a breach of article 2.4 of the
Antidumping Agreement would have to be acknowledged.

19. Mr. Chairman, distinguished Members of the Panel, with these comments, Colombia expects
to have contributed to the legal debate of the par ties of this case, and would like to express again its
appreciation for this opportunity to share its points of view on this relevant debate of the interpretation
of the Antidumping Agreement. We thank you for your kind attention and remain at your disposal for
any question you may have.

ANNEX D-3

THIRD PARTY ORAL STATEMENT OF INDIA

1. India welcomes this opportunity to present its vi ews as a third party in this dispute brought by
the Peoples Republic of China (China) regarding the consistency of European Union's definitive anti
dumping measures on iron or steel fasteners from China with certain provisions of Anti Dumping
Agreement, GATT 1994. India understands that importa nt systemic issues were raised in this dispute
which merits careful consideration by the Panel. While not taking any particular position on the facts
of the case presented by the Parties, India would like to express its systemic views in the proper legal
interpretation of certain provisions of the Anti Dumping Agreement, GATT 1994 and China's
Protocol of Accession to the WTO.

2. India would like to address two important systemic issues which have been raised in the
dispute:

(i) China's challenge of Article 9 (5) of European Union's basic AD Regulation on the
ground that whether the European Union's determination of anti dumping duty in
respect of exporters not granted Individual treatment was consistent with Article 6.10
of AD Agreement. Related to this issue are the consequential alleged violation of
Article 9.2, 9.3 and 9.4.

(ii) Whether the European Union's injury determination based on sample of domestic
producers representing 17.5 per cent of domes tic production was in accordance with
Article 4.1 and Article 3.1 of AD Agreement.

3. First on the issue of China's challenge of Ar ticle 9 (5) of the EU' s basic AD Regulation and
the alleged inconsistency with Artic le 6.10 of AD Agreement, India c onsiders that this allegation of
inconsistency can be scrutinized in the light of the pertinent Articles of the Anti-Dumping Agreement,
and of China's Protocol of Accession. Article 6.10 of the Anti-Dumping Agreement requires, as a
general rule, for the Investigating Authority (IA) to determine an individual margin of dumping for
each known exporter or producer concerned. As per the second sentence of Article 6.10, the
authorities may limit their examination (i.e. resort to sampling) where the number of exporters,
producers is so large as to make such an individu al determination impracticable. However, it is
India's understanding or would like to seek more clarification on our understanding from the Panel,
that there is a possibility of other exceptions, besi des the above provision of sampling, to the general
rule of determining individual margin of dumpi ng. Article 2.7 of ADA gives reference to the
Supplementary provisions to Article VI.1 of GATT 1994 (Ad Article VI 2) as under:

"It is recognized that, in the case of imports from a country which has a complete or
substantially complete monopoly of its trade and where all domestic prices are fixed
by the State, special difficulties may exist in determining price comparability for the
purposes of paragraph 1, and in such cases importing contracting parties may find
it necessary to take into account the po ssibility that a strict comparison with
domestic prices in such a country may not always be appropriate. (emphasis
added)"

4. In this regard it is our view that Paragra ph 15 (a) of China's Prot ocol of Accession may be
relevant, which inter-alia provides that:

(i) If the producers under investigation can clearly show that market economy
conditions prevail in the industry produc ing the like product with regard to the
manufacture, production and sale of that product, the importing WTO Member
shall use Chinese prices or costs fo r the industry under investigation in
determining price comparability;

(ii) The importing WTO Member may use a methodology that is not based on a
strict comparison with domestic prices or costs in China if the producers under
investigation cannot clearly show that market economy conditions prevail in the
industry producing the like product with regard to manufacture, production and
sale of that product.

5. The question that arises is whether the word "sale" used in the above provisions of the
Protocol covers domestic sales and export sales or only the domestic sales. Both the above provisions
in paragraph 15 (i) of the Protocol refer to market economy conditions pr evailing in the industry
producing the like product with regard to manufacture, production and sale of that product. Costs for
the industry are normally associated with the determination of normal value in the exporting country.
However under sub para (ii) above a WTO Member may use a methodology that is not based on a
strict comparison with domestic prices in China. In India's view Whether the words "domestic prices
"
referred here cover prices of domestic sales as well as prices of export sales is not amply clear. The
Panel may be required to interpret the meaning of domestic prices in the above provisions of the
Protocol. In case the word "domestic prices" includ es prices of goods sold in home market as well as
export prices, then this may support the view that there is another exception to the requirement to
determine an individual dumping margin under Article 6.10 of AD Agreement.

 The other systemic issue on which India would like to express its views is with respect to
the question, whether the European Union's in jury determination based on the sample of
domestic producers representing 17.5 per cent of domestic production was in accordance with
Article 4.1 and Article 3.1 of AD Agreement.

6. China has alleged that EU's injury determ ination is flawed and violates, amongst others,
obligations under Article 3.1 and 4.1 of the Anti-Du mping Agreement. The EU conducted the injury
determination on the basis of a sample of producers accounting for 17.5 per cent of total EU
production of the like product. European Union conte nds that the "Community industry" consisted of
those domestic producers whose collective output cons tituted 27 per cent of domestic production is "a
major proportion" of domestic production and ther efore EU's definition of domestic industry is
consistent with Article 4.1. The European Union also contends that Article 4.1 does not refer to
sampling. Further, it does not impose any obliga tions on the representativeness of sample producers
in terms of the percentage of the production that they should cover. A sample is a representative
subset of something. It is thus essentially less than the total. The domestic industry was defined
by EU as consisting of those producers representing a major proportion of total production. They
form the "Community industry". It is in respect of this Community industry's total production that
one should examine the representativeness of the sample . In other words EU argues that the sampled
domestic producers accounting for 17.5 per cent of total production need not necessarily represent a
major proportion of total domestic production . Instead the sampled domestic producers are
representative of the Community industry.

7. In India's view, this argument by the Eur opean Union raises an important issue whether the
EU's determination on injury was cons istent with the requirement of " objective examination" .
Article 3.1 requires determination of injury based on positive evidence and involve an objective
examination of the effect of the dumped imports on the domestic producers. Further, Article 3.4
requires the examination of the impact of the dumped imports on the domestic industry concerned .
Article 3.4 does not envisage sampling. Nor does Article 4.1 speak about sampling. Article 4.1

defines domestic industry. India considers, for an objective examination of injury under Article 3, the
domestic industry has to be interpreted as referring to the domestic producers as a whole of the like
products or those whose collective output of the product constitutes a major proportion of the total
domestic production. Even if an investigating authority resorts to sampling of domestic
producers, the obligation of Article 4.1 regarding the definition of domestic industry must
prevail for injury examination under Article 3.

8. India appreciates the opportunity to express its views and hopes the view points furthered in
these submissions may assist the panel in examining the matter before it.

ANNEX D-4

EXECUTIVE SUMMARY OF THE THIRD PARTY ORAL
STATEMENT OF JAPAN

I. INTRODUCTION

1. Not re-stating its written submission, Japan will draw the Panel's attention to five points.

II. ARTICLE 15(A)(II) OF CHINA'S ACCESSION PROTOCOL

2. First, with respect to the scope of the application of Article 15(a)(ii) of China's Accession
Protocol, two questions arise in the context of the present dispute:

 (i) whether items (a)-(e) provided in Article 9(5) of the Basic AD Regulation may be
used to show that "market economy conditions prevail in the industry"; and

 (ii) whether the calculation of a count ry-wide dumping margin and AD duty based on a
comparison between the normal value established for an analogue country with the
average export price of the cooperating exporting producers in the country concerned
may be considered to be "a methodology that is not based on a strict comparison with
domestic prices or costs in China".

3. Several third parties to this dispute suggest in their submissions that, in determining the
dumping margin of Chinese exporters, investiga ting authorities may apply a methodology different
than the one provided in the AD Agreement unless an individual exporter can demonstrate its
independence from the State. The methodology is calculating a country-wide dumping margin and
AD duty by comparing the normal value established fo r an analogue country with the average export
price of the cooperating exporting producers in China. The earlier mentioned questions are
particularly relevant in determining the discretion of investigating authorities in that regard.

4. Japan respectfully asks the Panel to pa y due regard to the relationship between
Article 15(a)(ii) of the China Accession Protocol and both Article 9(5) of the Basic AD Regulation
and Definitive Regulation, and to clar ify the scope of application of the Article 15(a)(ii) to the extent
necessary to secure a positive solution to this dispute.

III. ARTICLE 6.10 OF THE ADA: TREATMENT OF MULTIPLE LEGAL ENTITIES AS
A SINGLE EXPORTER OR PRODUCER

5. Second, the AD Agreement allows investigating authorities to calculate a single dumping
margin for legally distinct but related entities to the extent that they can be considered a single
"exporter" or "producer" in the sense of the first sentence of Article 6.10.
1

6. Nevertheless, the treatment of legally dis tinct entities as a single exporter or producer is
allowed only in the case where "the structural and commercial relationship between the companies in
questions is sufficiently close to be considered as a single exporter or producer".2

1 See Panel Report, Korea – Certain Paper, para. 7.161.
2 See Panel Report, Korea – Certain Paper, para. 7.162.

7. A broader interpretation would undermine th e rule set forth in Article 6.10 of the
AD Agreement that an individual dumping margin must be established for each exporter or producer
concerned, with only one exception to that rule, namely sampling. Granting investigating authorities
overly broad discretion in treating separate legal en tities as a single exporter or producer would allow
investigating authorities to circumvent this rule, whic h would be inconsistent with the Article 6.10 of
the AD Agreement.

IV. ARTICLES 4.1 AND 3.1 OF THE ADA: DEFINITION OF THE DOMESTIC
INDUSTRY

8. Third point, the concept of "domestic i ndustry" as provided in Article 4.1 of the
AD Agreement is " critical to an injury determination, as it defines the framework for data collection
and analysis".
3 Article 3.1 of the AD Agreement, which requires that investigating authorities base
their injury determination on "positive evidence" and on an "objective examination", is an "overarching
provision that sets forth a Member's fundamental, s ubstantive obligation" w ith respect to injury
determination.4 Logically, it is only possible to conduct an "objective examination" of injury if the
outcome of the examination is not predetermined by the manner in which the investigating authority
defines the domestic industry.

9. Therefore, the definition of the domestic industry must capture the whole domestic industry
5
and not just part of the domestic industry. An y other interpretation could allow investigating
authorities to define the domestic industry in a results-oriented way, which would be inconsistent with
the obligation of Article 3.1 of the AD Agreement.

10. In a similar vein, the injury examination "must focus on the totality of the 'domestic industry'
and not simply on one part, sector or segment of the domestic industry".
6

V. ARTICLE 2.6 OF THE ADA: DETERMINATION OF THE SCOPE OF THE
"PRODUCT UNDER CONSIDERATION"

11. The fourth point is that there is no requireme nt that the "product under consideration" include
only "like" products, and that there is no require ment that each individual item within the "like
product" be "like" each individual item within the "product under consideration".

12. The first step in determining the scope of pr oducts subject to an anti-dumping investigation is
to identify the allegedly dumped product, i.e. to define the product under consideration.

13. The AD Agreement does not provide any guidance as to how the "product under
consideration" shoul d be determined.
7 Similarly, the AD Agreement does not impose an obligation
that all items included in the product under consider ation must be "like" each other in the sense of
Article 2.6 of the AD Agreement.8

3 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.321 (emphasis added).
4 Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 114, referring to Appellate Body
Report, US – Hot Rolled Steel, para. 192, quoting, Thailand – Anti-Dumping Duties on Angles, Shapes and
Sections of Iron or Non-Alloy Steel and H-Beams from Poland , WT/DS122/AB/R, adopted 5 April 2001,
para. 106.
5 See Panel Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products ,
WT/DS98/R, adopted 12 January 2000, para. 7.54 (interpreting "producers as a whole," a phrase in
Article 4.1(c) of Safeguard Agreement identical to Article 4.1 of the Anti-Dumping Agreement).
6 Appellate Body Report, US – Hot Rolled Steel, para. 190. For a more detailed discussion, see Japan's
Third Party Submission at paras. 29 and 30.
7 Panel Report, US – Softwood Lumber (V), para. 7.153.
8 Panel Report, US – Softwood Lumber (V), para. 7.157.

14. The second step in determining the scope of pr oducts subject to an anti-dumping investigation
is to identify those products that are "like" the product under consideration. Article 2.6 of the
AD Agreement defines what constitutes a "like product".

15. There is no requirement that each individual item within the "like product" must be "like"
each individual item within the product under consideration.
9 Rather, what is required is a
comparison of the overall scope of the product under consideration with the overall scope of the "like
product".

VI. ARTICLE 3.1 OF THE ADA: DETERMINATION OF THE VOLUME OF DUMPED
IMPORTS

16. The fifth and final point is that Japan disagrees with the view, when assessing the "volume of
dumped imports" in the context of an inju ry determination under Article 3.1 of the AD Agreement,
that information from non-sampled but individually examined producers must per se be taken into
account when extrapolating findings to non-sampled producers.

17. In particular, there is no requirement in the AD Agreement for investigating authorities to
follow a specific methodology when applying sampling, other than being required to conduct the
investigation on the basis of "positive evidence" and to ensure that the injury determination results
from an "objective examination".
10 An "objective examination" requires that the investigation be
conducted in an unbiased manner, without favoring the interests of any interested party , or group of
interested parties, in the investigation.11

18. Extrapolating the findings of the sample to a ll companies that were not individually examined
is "unbiased" and does not "favor the interests" of an y interested party in the investigation. Given
that, a sample must be selected on the basis of its representativeness of the domestic industry as a
whole, the approach does not in any way prejudge the outcome of the investigation.
12 Indeed, the
purpose of sampling is to make an assessment fo r non examined companies based on findings relating
to a representative, albeit limited, group of companies.

9 Panel Report, US – Softwood Lumber (V), para. 7.157.
10 See Appellate Body Report, EC – Bed Linen (Article 21.5 – India), paras. 113, 114 and 117.
11 See Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 114.
12 Panel Report, EC – Salmon (Norway), para. 7.130.

ANNEX D-5

THIRD PARTY ORAL STATEMENT OF NORWAY

A. Introduction

1. Norway would like to thank you for this opportunity to make a brief statement at this meeting.

2. In its written submission, Norway addressed a nu mber of interpretative issues raised by China
and the EU in this case. Norway focused on the determination of the domestic industry, the product
scope, the impact of dumped imports in the injury determination, the volume of dumped imports and
the fulfilment of certain procedural requirements. The arguments in respect of these issues are
explained in our written submission and I shall here only refer you to the arguments presented therein.

3. Today, Norway would like to address two additional
 issues raised by China and the EU in
their written submissions:

• First, Norway would like to offer its views on Chin a's claim that the EU violated Article 5.4
of the Anti-Dumping Agreement by initiating the investigation without ensuring that the
application was supported by producers accounti ng for at least 25 per cent of the total
production of the like product produced by the domestic industry.

• Second, Norway would like to address certain in terpretative aspects related to China's claim
that the EU violated Articles 3.1 and 3.5 of the Anti-Dumping Agreement in concluding that
the alleged dumped imports caused material injury, without properly assessing the injurious
effects of other known factors.

B. The threshold for initiation

4. As to the first question, China claims that the EU failed to properly examine whether the
industry support thresholds were met before initiatin g the investigation, as required by Article 5.4 of
the Anti-Dumping Agreement.
1

5. To recall; Article 5.4 requires that the investigating authorities "determine
" whether an
application for the initiation of an investigation ha s been "made by or on behalf of the domestic
industry". Support for the initiation of an investiga tion is measured by reference to the collective
volume of production of the supporters, seen in relation to the "total production of the like product"
by domestic producers.

6. Simply put; to initiate an examination the EU needs to determine the relationship between
two production volumes: the volume of its total domestic production and the collective volume of
production of the companies that supports initiation of the investigation. And this determination
needs to be made, objectively and based on an ex amination of positive evidence, at the time of
initiation.

7. Article 5.4 expressly sets out that this ex amination and determination has to take place no
later than at the time of initiation of the investigation. Reference is made to the wording "an
investigation shall not be initiated" and "no investigation shall be initia ted". It follows from this that

1 First Written Submission of China, paras. 198-224.

the investigating authority cannot put forward facts received or revealed after the initiation of the
investigation as evidence for the ex istence of the requisite industry support at that earlier point in
time. Consequently, lack of the requisite support at the time of initiation cannot be repaired by
adding new supporters later on in the investigation.

8. Furthermore, this determinati on is subject to scrutiny by Pane ls and the Appellate Body. It
must, thus, be set out in the relevant notices and repor ts with sufficient clarity for interested parties to
become acquainted with its basis and be able to cont est it. Determinations that are mere statements,
without proper explanation, do not suffice.

9. Now, China claims that the EU:

 (i) for total domestic production, simply relied on the figure of 1.430 KT given by the
complainants, without further investigation
2; and

 (ii) for the collective volume of production of the supporters included volumes not just
from the complainants and supporters as the situation stood at the date of initiation,
but also the production volumes of those domestic producers that made themselves
known after the initiation.3

10. Norway leaves aside the question of whether this issue is properly before this Panel,
something that is contested by the EU, or the appropriateness of relying on Eurostat data.

11. Norway simply wishes to highlight a few fact ual points raised by China in its First Written
Submission, and that do not seem to be contested by the EU.

12. Norway notes that the contested Notice of Initiation
4 simply states that the complainants
(alone) represent more than 25 per cent of total co mmunity (EU) production. No figures are given for
either total domestic production or for the collective production volume of the complainants.

13. Furthermore, the identity of the complaining companies was not disclosed to China or to the
exporters or producers.
5 China thus had no possibility to double-check the reliability of the
declaratory statement regarding the sufficient support figure given in the notice of initiation.

14. China also states, with reference to a letter sent by the European Commission to certain Chinese
exporters, that the EU included 46 new companies as supporters of initiation after the determination
referred to in the Notice of Initiation was made.
6

15. And, finally, the Definitive Regulation provid es that the collective production of all domestic
producers supporting the investigation – including those that came forward after initiation –
represented 27 per cent of total community production.7

4 Notice of initiation of an anti-dumping proceeding concerning imports of certain iron or
steel fasteners originating in the People's Republic of China; Official Journal of the European Union
(2007/C 267/11).
5 China, First Written Submission, paras. 527 – 528.
7 China, First Written Submission para. 216, with reference to Recital 114 of the Definitive Regulation
(Exhibit CHN-4).

16. It seems credible, as argued by China 8, that the determination of the standing threshold at the
time of initiation was flawed, in light of the later addition of these companies and their production
volumes.

17. The Panel will have to assess, however, whether these points, together with other evidence and
arguments presented by China, represents a prima facie case of a breach of Article 5.4. And,
furthermore, whether the EU has been able to rebut.

C. Causation

18. Norway would next like to address the second issue previously identified: whether the EU
violated Articles 3.1 and 3.5 of the Anti-Dumping Agreement in concluding that the alleged dumped
imports caused material injury, without properl y assessing the injurious effects of other known
factors. In particular, China argues that the EU fa iled to properly assess the effects of the increase in
raw material prices, as well as the EU industry's exports to third countries.
9 Norway does not take a
position on the issue of whether the EU has fulfille d its obligations according to Articles 3.1 and 3.5
in this case. Norway will only highlight certain arguments that may be of importance to the Panel
when interpreting and applying the requirements of Articles 3.1 and 3.5.

19. According to Article 3.1 of the Anti-Dumping Agreement, the injury determination must be
based on "positive evidence" and an "objective ex amination". Article 3.5 further requires a
demonstration that "the dumped imports are, through the effects of dumping, ... causing injury". The
investigating authority must "examine any known f actors other than the dumped imports which at the
same time are injuring the domestic industry" and must not attribute "the injuries caused by these
other factors" to the dumped imports.

20. Both Parties recognise
10 the investigating authorities' obligation, as established by the
Appellate Body, to "separate and distinguish" the injurious effect of the dumped imports from the
injurious effects of other known factors.
11 The Appellate Body has furthermore found this process to
require "a satisfactory explanation of the nature and extent of the injurious effects of the other factors,
as distinguished from the injurious effects of the dumped imports".12

21. Norway attaches great importance to these principles, as they represent an important
mechanism to ensure that the inju ry from dumped imports is isolated from the injurious effects of
other factors, thus fulfilling the objective of Article 3.5. If not adhered to, an injury determination
becomes more likely and the requirement of an "obj ective examination" in the words of Article 3.1
would not be fulfilled. Norway therefore respectfu lly asks the Panel to carefully review whether the
EU in this case fulfilled its obligation to "separate and distinguish" the effects of the dumped imports
from the injurious effects of the increase in raw ma terial prices and exports to third countries by the
EU industry, and, furthermore, whether the EU ensured that any injurious consequences from such
other factors were not attributed to the dumped imports.

9 First Written Submission of China, paras. 478-493.
10 First Written Submission of China, para. 480 an d First Written Submission of the EU, paras. 647
and 650.
11 Appellate Body Report, US – Hot Rolled Steel, para. 226.
12 Appellate Body Report, US – Hot Rolled Steel, para. 226.

 Mr. Chairman, distinguished Members of the Panel,

22. This concludes Norway's statement here today. Thank you for your attention.

ANNEX D-6

THIRD PARTY ORAL STATEMENT OF THE SEPARATE CUSTOMS
TERRITORY OF TAIWAN, PENGHU,
KINMEN AND MATSU

I. INTRODUCTION

1. The Separate Customs Territory of Taiwan , Penghu, Kinmen and Matsu ("TPKM"), as a third
party in this dispute, would like to thank the pane l for this opportunity to present its views in this
proceeding brought by the People's Republic of Ch ina ("China") over the consistency with the
Agreement on Implementation of Article VI of the GATT (the "AD Agreement") of European Union's
("EU's") measures imposing a definitive anti-dum ping duty on imports of certain iron or steel
fasteners originating in China.

2. TPKM has systemic interests in ensuring fair and objective interpretation and application of
the AD Agreement. While there are several issues that deserve more thorough treatment,
TPKM would only pick one issue to express its view s in the hope that Panel would benefit from its
observations. Without taking a final position on the merits of this dispute, TPKM would like to
comment on the issue regarding interpretation of the term "like product" and the concept of "products
under consideration" in Articles 2.1 and 2.6 of the AD Agreement.

II. THE INTERTWINED ISSUES INVO LVING THE CONCEPTS OF "LIKE
PRODUCT" AND THE "PRODUCT UNDER CONSIDERATION" IN ARTICLES 2.1
AND 2.6 OF THE AD AGREEMENT

3. China argued in this dispute that the EU e rred in concluding that "standard" fasteners and
"special" fasteners are "like" products.
1 China asserted that Chinese producers essentially produce
standard products designed for the tradesmen, building, maintenance, Do-it-Yourself markets and
supermarkets, whereas EU producers generally produ ce special fasteners that focus on the high-end
aeronautic, automotive, auto assembly and other safety-critical markets. 2 Those special fasteners
require extra features that go beyond what is described in the relevant ISO/DIN standards. 3 C h i n a
further argued that such differences in the physi cal and technical characteristics, interchangeabilities,
end-uses and prices of the standard and special fast eners that are manufactured in China and the EU
respectively are so significant that renders Chinese and EU-made fasteners not comparable, and thus,
not "like products" under the AD Agreement.4

4. Rebutting China's assertions, the EU argued th at as long as items are u sed to mechanically
join two or more elements in construction, engi neering, and … etc., they can be identified as
fasteners. Based on their basic physical and techni cal characteristics and end uses, all fasteners are
considered to constitute a single product for the purpose of the proceeding in a wide variety of
industrial sectors, as well as by consumers. Therefor e, the investigating authority does not need to
differentiate markets such as industrial use or dail y use and it also has nothing to do with prices or
purposes. Moreover, the EU asserted that "fasteners (standard or special) are like fasteners (standard

1 First Written Submission of China, paras. 297-356.
2 First Written Submission of China, para. 143.
3 First Written Submission of China, para. 143.
4 First Written Submission of China, paras. 340-356.

or special)".
5 In other words, the EU considered that "f asteners (standard or special) produced by the
domestic industry, fasteners (standard or special) pr oduced and sold in China, fasteners (standard or
special) produced in the analogue country, and fast eners (standard or special) produced in China and
sold in the European Union are all alike."6

5. While not taking any final position on the factua l arguments presented by both Parties to this
dispute, TPKM found it not in a position to fully agr ee with the EU's framing of the issue as merely
one regarding the "selection of product concerned" or with the associated string of arguments
asserting that Articles 2.1 and 2.6 are neither applicable nor having any bearing in this regard.7

6. Distinguished Members of the Panel, one of the most significant issues before you today is
whether the EU has properly determined that fasteners produced in China for both China and
EU markets, the fasteners produced in analogue c ountry such as India, and fasteners produced by
EU domestic industries, either standard or special, are all like products according to the
AD Agreement, or whether the EU has properly determin ed which fasteners, standard or special, shall
be products under consideration.

7. To answer this question, we urge the Panel to look closely at both Articles 2.1 and 2.6 of the
AD Agreement. Article 2.1 of the AD Agreement provides rules on how dumping is determined and
the roles of the "product exported", i.e., "produ ct concerned" as well as "like product" in such
determination. Article 2.1 of AD Agreement provides that:

For the purpose of this Agreement, a produc t 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.

8. According to Article 2.1 of the AD Agreemen t, before a Member's investigating authority
decides whether certain "product exported" constitu tes dumping or not, the investigating authority
will first need to determine the scope of the "product exported", i.e., the "product concerned" so that it
can conduct the rest of the anti-dumping inv estigation process including making the necessary
comparisons on "likeness". Determining the scope of the products concerned is therefore one of the
most important decisions to be taken in the entire AD investigation proceedings as it set forth the
perimeter of the pivotal steps in those proceedings.

9. It is of fundamental importance that an investigating authority determines the scope of
products concerned and the like product according to th e relevant provisions of the AD Agreement, in
particular, Article 2.6. Article 2.6 of the AD Agre ement defines "like product" as "a product which is
identical, i.e. alike in all respects to the product u nder consideration", or, in the absence, and only in
the absence of such an identical product, a product that "has characteristics closely resembling those
of the product under consideration". According to such definition agreed by all WTO Members, "like
product" shall first be interpreted to mean an iden tical product, and if such is not the case, then it
could be interpreted to cover pr oducts with characteristics closely resembling those of the product
concerned. In interpreting the term "like product" under Article 2.1 and 2.6 of the AD Agreement,
TPKM believes that even though two products may sh are the same functions, such as being used to
mechanically join two or more elements in constr uction, engineering and so on, or fall within the
same HS Code, there might still be significant di fferences between them that prevent these products
from being considered like products.

5 First Written Submission of the EU, para. 441.
6 First Written Submission of the EU, para. 441.
7 First Written Submission of the EU, paras. 424-442.

10. The Appellate Body and panels in various prior disputes have already laid down grounds for
interpretation of the term "like products" albeit not in the context of the AD Agreement. While we are
not going to repeat all those jurisprudence here , TPKM reckons that the panel's approach in
interpreting the term "like product" in the dispute Indonesia – Autos 8 may be helpful for the Panel's
consideration in the present dispute. Although Indonesia – Autos was a dispute in the context of the
Agreement on Subsidies and Countervailing Measur es ("SCM Agreement"), the wordings of the
relevant provision9 on "like product" are exactly identical in the SCM Agreement and Article 2.6 of
the AD Agreement. What we would like to point out today is that while EU has shaped its argument
based on an issue it framed over the selection of pr oducts concerned, one of the core issues to be
determined in the dispute between China and the EU remains how like products shall be determined
and how the scope of the produc t under consideration shall be delineated according to the
AD Agreement, and in particular, Articles 2.1 and 2.6.

11. The EU's written submission rebuts China's cl aim that EU has allegedly considered its
domestically produced fasteners, Chinese fasten ers for both EU and Chinese markets and Indian
fasteners, either standard or special, are all like products. Questions and uncertainties remain. Are
these fasteners identical? Probably not. Do they all have characteristics closely resembling each
other? It seems that the EU sees no need to furthe r elaborate whether the characteristics of all those
types of fasteners closely resemble each othe r or not. TPKM considers that the intertwined
relationship between the issue how the scope of th e products concerned be determined and the issue
whether the like product definition as provided in Article 2.6 of the AD Agreement is somehow
connected to that determination, which may need to be further clarified by the Panel. Thus, we would
respectfully urge the Panel to look into how the EU evaluates the characteristics and other relevant
aspects among domestic fasteners, Chinese fasteners and Indian fasteners, either standard or special.

12. Furthermore, how an investigating author ity determines the scope of the term "product
concerned" or "product under consideration" a nd how much latitude the AD Agreement allows the
investigating authority in this regard would be a nother significant question that the Panel may need to
tackle. While TPKM is not providing a clear-cut suggestion on how the Panel should approach these
difficult questions, it would like to respectfully remind the Panel that it is of utmost importance to
preserve a sophisticatedly-struck balance between the respective interests of exporting Members in
enjoying the benefit of market access and the interests of importing Members in protecting its industry
from injury caused by dumping. Any alleged "la titude" or "flexibilities" that the investigating
authorities may enjoy while delineating the scope of the products under consideration would need to
be carefully restrained so as to maintain such carefully designed balance under the AD Agreement.

13. In light of the systemic implications of this dispute, TPKM respectfully requests the Panel to
consider its views in examining the facts and argu ments presented by the parties to ensure fair and
objective interpretation of the relevant provisions of the AD Agreement. We appreciate this
opportunity to express our views in this proceeding and would be glad to respond to any question the
Panel may have.

8 Panel Report, Indonesia-Autos, paras. 14.173-14.177.
9 Footnote 46 to Article 15.1 of the SCM Agreement.

ANNEX D-7

THIRD PARTY ORAL STATEMENT OF TURKEY

I. Introduction

1. Turkey takes no position as to the defense and allegations presented by the parties. Turkey
wishes to contribute by focusing on two major issues, namely Market Economy Treatment and
Individual Treatment Assessments within the framework of dumping margin calculation.

II. Market Economy Treatment (MET)/Individua l Treatment (IT) Assessments within the
Framework of Dumping Margin Calculation

2. According to Article 2.1 of the Anti-Dumping Agreement , an investigating authority has to
work on two data groups (normal va lue and export price) to determine whether dumping is present.
Accordingly, the investigating authority is legally obliged to make a fair comparison based on the
rules and standards stipulated in Article 2.4 of the Anti-Dumping Agreement between normal value
and export price.

3. Furthermore, GATT 1994 Article VI, Ad Artic le VI.2 and Articles 2.2 and 2.3 of the
Anti Dumping Agreement point out certain sources whic h the investigating aut hority shall take into
consideration if either the normal value or the export price can not be determined from the data
provided by the producer/exporter due to the reason that the internal sales do not permit a proper
comparison or because of the absence or unreliable nature of export prices.

4. In Turkey's view, Ad Article VI.2 of GATT 1994 and Anti Dumping Agreement Article 2.2
permits the investigating authority to rely on an unbiased calculation method in order to determine the
normal value in the event of exports from a country in which the prices are not set by dynamics of a
free-market economy.

5. In addressing the IT assessment, it is underst ood that Article 9.5 of the EU Basic Regulation
envisages the use of the export price of the prod ucer/exporter itself if it can fulfill the criteria
stipulated in the Article. If the exporter/producer fails, however, the EU investigating authority has
the option to employ weighted average export pr ice of cooperating producer/exporter companies for
comparison.
1

6. Therefore, the IT assessment is not solely an evaluation whether the producer/exporter has
properly proved that it is fulfilling the criteria of Artic le 9.5, but a legal instrument directly affecting
the calculation of the dumping margin by determining data group to be used as the export price which
has been argued to be an indispensable component of the dumping margin calculation pursuant to the
GATT 1994 Article VI and Article 2.2 of the ADA.

7. In this regard, both the MET and IT assessment are instruments that directly relate to the
calculation of the dumping margin which provides the investigating authority with alternative routes
on the question of which group of data will be used to determine the normal value and export price.

III. Setting a Threshold In Order To Provide for Individual Treatment

8. It can be clearly understood from Article 6. 10 of the Anti Dumping Agreement that individual
treatment, i.e. calculation of individual dumping margin for each known exporter/producer is a
general rule. However there are always exceptions to general rules when the conditions prevail. The
PRC rightly mentions that the second sentence of the Article 6.10, i.e. sampling, provides an
exception to the general rule of individual treatment.

9. The legal question here is whether sampling is the sole exception to the general rule of IT, or
Members can require in their domestic legislation some conditions to have met in order to provide IT.
Turkey is of the view that this may not be the sole exception.

10. The Anti Dumping Agreement provides rules for economies operating in market economy
conditions. There are no specific rules or excep tions for economies that are not operating under
market economy conditions. It is not reasonabl e to look for a non-market economy exception in
Article 6.10 itself.

11. Furthermore, Ad Article VI.2 of GATT 1994 provides a special provision for the calculation
of prices regarding countries that do not opera te under full market economy conditions. This
provision mentions that, in the case of imports from a country which has a complete or substantially
complete monopoly of its trade and where all domestic prices are fixed by the State, special
difficulties may exist in determining price comp arability and in such cases importing contracting
parties may find it necessary to take into account the possibility that a strict comparison with domestic
prices in such a country may not always be appropriate.

12. When the object and purpose of Ad Article VI.2 of GATT 1994 and paragraph 150 of PRC's
Working Party Report (WT/ACC/CHN/49) are consider ed; it is understood that these paragraphs are
included as an exception to the general rule of "s trict comparison with domestic prices" for counties
that are not operating in full market economy conditions.

13. Moreover, taking into account the AB Report in the US – Corrosion Resistant Steel , and
Panel Report in the Korea – Certain Paper cases, Turkey understands that treating several distinct
legal entities as a single entity, in the event where the conditions require to do so, is approved by case-
law and sampling is not the only exception to the general rule of IT.

IV. Conclusion

14. Turkey reserves its rights to make further comments at the third party session of the first
substantive meeting of the Panel. Turkey thanks the Panel for the opportunity to present its views in
this proceeding and welcomes any questions that Panel may have.

ANNEX D-8

EXECUTIVE SUMMARY OF THE THIRD PARTY ORAL STATEMENT
OF THE UNITED STATES

1. The US oral statement will focus on the follo wing three issues: (1) the identification of the
relevant "producers" or "exporters" under Article 6.10 of the AD Agreement; (2) the identification of
the"like product" as defined in Article 2.6 of the AD Agreement; and (3) the identification of the
"domestic industry" under Article 4.1 of the AD Agreement.

"Producers" and "Exporters" Entitled to an Individual Margin of Dumping

2. One of China's principal claims is that Artic le 9(5) of the EU's Basic AD Regulation violates
the covered agreements by requiring the investiga ting authority to apply a single dumping margin to
multiple firms unless certain conditions are met. According to China, Article 6.10 of the AD
Agreement permits application of a single dumpi ng margin to multiple exporters or producers only
where the number of producers and exporters makes impracticable the application of individual
dumping margins for specific exporters or producers. China argues that because Article 9(5) does not
fit into this narrow exception, it is inconsistent with Article 6.10.

3. The EU responds that China's argument fa ils because limiting the exporters or producers
examined due to their large number is not the only exception to the general requirement of an
individual margin contained in the first sentence of Article 6.10. According to the EU, Article 6.10
permits application of a single margin of dum ping to multiple firms depending on the economic
realities of those firms.

4. The United States agrees that the economic realities of the firm s included in the investigation
are key to implementing the obligations in Article 6.10. However, these economic realities do not
provide an additional exception to Article 6.10. Instead, evaluation of the economic realities of the
firms is part of the investigating authority's task in determining the "exporters" and "producers" for
which it must generally determine an individual margin.

5. We begin with the text of Article 6.10, which states 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 investigation". The provision then provides one exception to this rule when the number
of exporter or producers is so large as to make such a determination impracticable. As this provision
makes clear, investigating authorities are generally required to determine an individual margin of
dumping for each known exporter or producer. Thus , a fundamental question an investigating
authority must answer when fulfilling this requi rement is what "exporters" or "producers" are
included in the investigation. Put differently, Artic le 6.10 establishes that the identification of the
specific producers or exporters in an investigation is a condition precedent to calculating a dumping
margin.

6. The United States recalls that the AD Agreemen t does not define an "exporter" or "producer",
nor does it establish criteria for an investigating authority to evaluate when making this determination.
As other Members have recognized, one particularly meaningful criterion in this inquiry is the
economic realities of the firms included in the inves tigation, including their structure and operations
in the particular economy at issue. For example, if a firm included in the investigation has a parent
company that controls fundamental business decisions such as those related to production and pricing

for the firm included in the investigation, then it may be appropriate to consider that firm and its
parent company as a single exporter or producer.

7. Under such circumstances, it would not make sense to assign the firm and its parent company
separate margins of dumping because, as the EU poin ts out, such a close relationship would permit
the related exporters or producers to channel expo rts through an affiliate with a lower dumping
margin, thereby significantly undermining the eff ectiveness of antidumping measures. Nothing in
Article 6.10 of the AD Agreement requires such a result.

8. The panel's reasoning in Korea – Paper fully supports this understanding of Article 6.10:

Article 6.10 does not necessarily preclude treating distinct legal entities as a single
exporter or producer for purposes of dum ping determinations in anti-dumping
investigations. Whether or not the circumstances of a given investigation justify
such treatment must be determined on the b asis of the record of that investigation.
In our view, in order to properly treat multiple companies as a single exporter or
producer in the context of its dumping determin ations in an investigation, the IA has
to determine that these companies are in a relationship close enough to support that
treatment.

9. The United States respectfully submits that, cons istent with this reasoning, this Panel should
find that nothing in Article 6.10 prohibits an in vestigating authority from treating multiple firms as
one exporter or producer if the facts demonstrate that the firms are suffici ently close that such
treatment is appropriate. To the extent that Article 9(5) of the EU Basic AD Regulation is a
mechanism for the investigating authority to examin e such a close relationship between firms, that
mechanism would not appear to be inconsistent w ith Article 6.10. Rather, such a mechanism would
be critical to assist the investigating authority in co mplying with the general rule in Article 6.10 to
calculate a single margin of dumping for every known exporter or producer.

10. The United States would also like to address China's assertion that Article 9(5) unfairly
singles out firms from non-market economies for further analysis before these firms can qualify for an
individual margin. There is nothing unfair or WT O-inconsistent in an investigating authority
analyzing the independence of the firms included in the investigation. As we have just described,
Article 6.10 of the AD Agreement does not prohibit an investigating authority from considering the
economic realities of a firm when deciding whethe r the firm on its own qualifies as a "producer" or
"exporter" and should therefore receive an indi vidual margin. These economic realities necessarily
include the kind of economy in which the firm operates.

11. Among the distinguishing features of a non-market economy is that the role of the
government distorts the functioning of market princi ples. As the EU has pointed out, there is no
shortage of evidence of the Chinese government intervening in the Chinese economy. Indeed, the fact
that WTO Members have recognized the pervasive ness of government interference in the Chinese
economy is reflected in both China's Protocol of Accession and Working Party Report.

12. Such interference can result in the government exerting influence over companies, including
decisions related to production and pricing. As we have discussed, a l ack of independence in
production or pricing decisions is an important fact or in determining whether a firm constitutes an
"exporter" or "producer" for which an individual ma rgin of dumping must be calculated pursuant to
Article 6.10. Thus, firms in non-market econom ies operate under economic realities that make it
particularly important for an investigating authorit y to analyze closely the particular structures and
operations of these firms to evaluate their independence.

13. China is also incorrect in suggesting that companies from non-market economies face a heavy
burden to demonstrate that they qualify for individua l margin results. This so-called burden could be
easily discharged, for example, by providing the in vestigating authority with evidence of a firm's
structure and operations that would demonstrate that it functions as an exporter or producer separate
from the government. Permitting firms to demonstr ate independence also allows investigating
authorities to make such evaluations on the basis of the facts in a given investigation and thereby
respond to economic changes that occur over time in these non-market economies. Indeed, the
investigation at issue in this dispute appears to refl ect precisely that type of flexible response to such
changes in the Chinese economy, given that all the cooperating Chinese companies that requested
individual margins received them.

"Like Product"

14. China argues that "standard" fasteners and "s pecial" fasteners are significantly different from
each other. In its view, most fasteners from China were of the "standard" variety, whereas the EU had
included "special" fasteners within the scope of the "l ike product". According to China, this failure of
the EU to appreciate the distinction between "s tandard" fasteners and "special" fasteners when
identifying the "like product" in this investigation was inconsistent with Articles 2.1 and 2.6 of the
AD Agreement. This argument, however, fundament ally misunderstands the nature of the "like
product" determination.

15. First, China appears to consider that the mere fact that both "standard" and "special" fasteners
were included within the EU's "like product" ev idences a violation of Article 2.6 because these two
types of fasteners are themselves not "like" each other. In its third party submission, Norway
similarly argues that Article 2.6 "requires that any given category of the 'like product' must be 'like'
each and every category of the product under consideration".

16. This is an incorrect understanding of Article 2.6. That provision defines a "like product" to be
"a product which is identical, i.e. alike in all respects to the product under consideration, or in the
absence of such a product, another product which, although not alike in all respects, has
characteristics closely resembling those of the product under consideration". (Emphasis added) The
requirement of "likeness" is therefore determined at the level of the product, by comparing the
specific product under consideration with another pro duct. Nothing in the AD Agreement requires an
investigating authority to make a determination at a more micro level, namely, by examining the
"likeness" of models or categories within that particular product.

17. To the contrary, Article 2.4 specifically contemplates that meaningful "differences which
affect price comparability" may exist among models with in a single product definition. It is in this
respect that the EU appears to have recognized the differences between "standard" and "special"
fasteners.

18. Ultimately, what China appears to be complain ing about is that the EU considered "fasteners"
– including "standard" and "special" fasteners – to be the "pr oduct under consideration" or, in the
words of Article 2.1, "the product exported". By ch aracterizing this action as a failure to identify the
"like product" properly, China confuses the "produ ct under consideration" with the "like product".
These two concepts, however, are distinct under the AD Agreement. Article 2.6 of the AD
Agreement provides a definition of "like product", which contemplates that an investigating authority
will evaluate the "likeness" of a given product by re ference to the "product under consideration" that
has already been identified. In contrast, as multiple panels have recognized, the AD Agreement
imposes no definition or specific obligation in respect of the identification of the "product under
consideration". The AD Agreement therefore provi des no textual basis for China's complaint about
the EU's selection of the "product under consideration".

"Domestic Industry"

19. China claims that the EU violated Articles 3.1 and 4.1 of the AD Agreement by excluding
from the definition of the domestic industry all companies that did not make themselves known within
15 days of the date of publication of the notice of initiation, as well as those companies that did not
support the investigation. Although the United St ates takes no position on the merits of China's
factual allegations, the United States explained in its written submission why it agreed with China that
a biased exclusion of certain producers from the inju ry examination would violate Article 3.1. That
is, by fashioning an investigation so as to exclude a ll companies that did not support the investigation,
an investigating authority fails to undertake an "objective examination" of the impact of dumped
imports on the domestic industry as required by Article 3.1. The United States will focus now on how
the deliberate exclusion of such producers from the "domestic industry" is also inconsistent with
Article 4.1.

20. A proper definition of the domestic industry in accordance with Article 4.1 is essential to
ensure that the investigating authority's examin ation under Articles 3.2, 3.4, and 3.5 addresses the
impact of dumped imports on the appropriate set of domestic producers. Indeed, if an investigating
authority fails to define the domestic industry consis tently with Article 4.1, its consideration under
Article 3.4 of the relevant economic factors ha ving a bearing on the "domestic industry", and its
examination under Article 3.5 of a causal link betw een dumped imports and injury to the "domestic
industry", will be fatally flawed from the outset.

21. Article 4.1 obliges an investigating authority to define the domestic industry as "the domestic
producers as a whole of the like products or ... those of them whose collective output of the products
constitutes a major proportion of the total domestic pr oduction of those products". This provision is
subject to two exceptions that do not apply here, bu t, as we will discuss, these exceptions illustrate
why it is inconsistent with this provision to sel ectively exclude a group of domestic producers from
the "domestic industry".

22. The EU appears to argue that, by virtue of the "major proportion" language, an investigating
authority has virtually unfettered discretion to ex clude whichever producers it wishes, as long as the
remaining producers represent a "major proportion" of the industry's production. The EU's unduly
narrow reading is not supported by the text.

23. First, the United States notes that the term "major proportion" is not simply a quantitative
criterion indicating that an investigatin g authority need only include a certain number of producers in
its "domestic industry". As the panel in Argentina – Poultry recognized, the word "major" as used in
Article 4.1 is not a fixed percentage benchmark, but instead refers to producers of "an important,
serious or significant" proportion of total domestic pr oduction. The text of Article 4.1 indicates that
the "importance" of this proportion could be examin ed not only by reference to quantity of output.
For example, Article 4.1(i) allows for an ex ception from the "major proportion" requirement in
situations where "related" producers have been excluded. By focusing on the nature of the
relationship between producers, this sub-paragraph indicates a qualitative element that may be
considered when evaluating whether a "major proportion" of the industry has been included.

24. Second, one of the relevant qualitative factor s is the extent to which the firms that an
investigating authority seeks to exclude from th e "major proportion" are themselves a distinct
category of producers. As already noted above, Artic le 4.1(i) explicitly authorizes the exclusion of
"related" producers from the "domestic industry". Similarly, Article 4.1(ii) sets out the only
circumstances where an investigating authority may focus its definition of "domestic industry" on the
extent to which a certain defined group of producers is uniquely injured, which is by virtue of the
geographic concentration of imports and of domestic shipments. Th e language of Article 4.1 thus
reveals that the only categories of producers that may be entirely excluded from the domestic industry

as a category are "related" producers and those falli ng under the regional industry exception. As the
EC – Salmon panel noted, "[N]othing in the text of Artic le 4.1 gives any support to the notion that
there is any other circumstance in which the domestic industry can be interpreted, from the outset, as
not including certain categories of producers of th e like product, other than those set out in that
provision."

25. By spelling out the narrow exceptions in sub-pa ragraphs (i) and (ii), Article 4.1 ensures the
inclusion of domestic producers from various segments and sectors of the industry in an unbiased
manner. An approach to interpreting "major propor tion" that allows an investigating authority to
exclude from the "domestic industry" a defined group of producers that does not meet the conditions
in sub-paragraph (i) or (ii), would appear to be inconsistent with th e limited exceptions spelled out in
Article 4.1.

26. The United States submits that, when viewed in this light, a domestic industry definition that
is framed to exclude all or virtually all non-petitioning and non-supporting producers does not
represent an important, significant, or serious proportion of domestic production.