Dispute Settlement Reports 2002 : Volume 7, Pages 2579-3042

United States Section 129(c)(1) of the Uruguay Round Agreements Act (WT/DS221) Report of the Panel 2581(3) I. PROCEDURAL BACKGROUND 2584(2) II. FACTUAL ASPECTS 2586(4) A. Section 129 of the URAA 2586(3) B. The Retrospective Duty Assessment System of the United States 2589(1) III. MAIN ARGUMENTS OF THE PARTIES 2590(29) A. Canada 2590(14) 1. Introduction 2590(1) 2. Description of Section 129(c)(1) of the URAA 2590(2) 3. Section 129(c)(1) is Inconsistent with the United States' Obligations Under the AD Agreement, the SCM Agreement, Article VI of the GATT 1994 and Article XVI:4 of the WTO Agreement 2592(3) (a) Antidumping Cases 2593(1) (b) Subsidy Cases 2594(1) 4. Section 129(c)(1) Mandates a Violation of the WTO Obligations of the United States 2595(4) 5. The Principle of Prospective Compliance 2599(3) 6. Differences Between Prospective and Retrospective Duty Assessment Systems 2602(1) 7. Date of Definitive Duty Determination and not Date of Entry of Imports is the Operative Date for Determining Compliance 2603(1) 8. Conclusion 2604(1) B. United States 2604(15) 1. Introduction 2604(1) 2. Description of Section 129(c)(1) of the URAA 2605(1) 3. Canada Has Failed to Establish that Section 129(c)(1) Mandates Action Inconsistent with WTO Rules 2606(3) (a) Canada Must Establish that Section 129(c)(1) Mandates Action that is Inconsistent with the United States' WTO Obligations 2606(1) (b) The Meaning of Section 129(c)(1) Is a Factual Question That Must Be Answered by Applying US Principles of Statutory Interpretation 2606(1) (c) Canada Misinterprets what Section 129(c)(1) Actually Requires 2607(2) (d) Conclusion 2609(1) 4. Section 129(c)(1) Is Consistent with the DSU, which Requires Prospective Remedies when a Measure is Found Inconsistent with WTO Obligations 2609(10) (a) The Principle of Prospective Remedies in the Dispute Settlement Process 2609(3) (i) Textual Analysis of the DSU 2609(2) (ii) Panel and Appellate Body Clarification of the DSU 2611(1) (b) The Date of Entry is the Operative Date for Determining whether Relief is "Prospective" or "Retroactive" 2612(3) (i) Using the Date of Entry as the Basis for Implementation is Consistent with the AD and SCM Agreements 2612(2) (ii) Using the Date of Definitive Duty Determination as the Basis for Implementation Could Lead to Unexpected Results 2614(1) (c) There Should be no Distinction between Members with Retrospective Duty Assessment Systems and Members with Prospective Duty Assessment Systems 2615(3) (i) Canada's Position is Based on Artificial Distinctions Between Retrospective Duty Systems and Prospective Duty Systems 2615(1) (ii) The WTO Obligations that Apply to Members with Retrospective and Prospective Systems are the Same 2616(1) (iii) Canada is Seeking to Create an Obligation for Members with Retrospective Systems to Provide a Retroactive Remedy in Cases Involving Antidumping and Countervailing Duty Measures 2617(1) (d) Conclusion 2618(1) 5. Conclusion 2619(1) IV. MAIN ARGUMENTS OF THE THIRD PARTIES 2619(5) A. European Communities 2619(2) 1. The Principle of Prospective Compliance 2619(1) 2. The Temporal Scope of the Principle of Prospective Compliance 2620(1) B. Japan 2621(3) V. INTERIM REVIEW 2624(3) A. Background 2624(1) B. Comments by Canada 2624(3) 1. Terms of Reference 2624(2) 2. Burden of Proof 2626(1) C. Comments by the United States 2627(1) VI. FINDINGS 2627(39) A. Measure at Issue 2627(1) B. Claims and Arguments of the Parties and Analytical Approach of the Panel 2628(5) 1. Arguments of the Parties 2628(3) 2. Evaluation by the Panel 2631(2) C. Canada's Principal Claims 2633(32) 1. Actions Identified by Canada as Required and/or Precluded by Section 129(c)(1) 2634(2) 2. Meaning and Scope of Section 129(c)(1) 2636(6) (a) Examination of the URAA 2636(1) (b) Examination of Section 129(c)(1) as Interpreted by the SAA 2637(5) (i) Arguments of the Parties 2638(1) (ii) Evaluation by the Panel 2639(3) 3. Whether Section 129(c)(1) Requires and/or Precludes any of the Actions Identified by Canada 2642(1) 4. Whether Section 129(c)(1) has the Effect of Requiring and/or Precluding any of the Actions Identified by Canada 2642(21) (a) Section 129(c)(1) as Enacted 2643(12) (i) Arguments of the Parties 2643(3) (ii) Evaluation by the Panel 2646(1) Methodology Cases 2646(1) Revocation Cases 2651(1) Conclusion 2655(1) (b) Statement of Administrative Action 2655(6) (i) Arguments of the Parties 2656(1) (ii) Evaluation by the Panel 2657(4) (c) Application of Section 129(c)(1) to Date 2661(1) (i) Arguments of the Parties 2661(1) (ii) Evaluation by the Panel 2662(1) (d) Conclusion 2662(1) 5. Whether Section 129(c)(1) Mandates the United States to Take any of the Actions and/or not to Take any of the Actions Identified by Canada 2663(1) 6. Whether the Actions Identified by Canada, if Taken or not Taken, would Infringe the WTO Provisions that it has Invoked 2664(1) 7. Overall Conclusion with Respect to Canada's Principal Claims 2664(1) D. Canada's Consequential Claims 2665(1) VII. CONCLUSION 2666(1) Egypt Definitive Anti-Dumping Measures on Steel Rebar from Turkey (WT/DS211) Report of the Panel 2667(4) I. INTRODUCTION 2671(1) A. Complaint of Turkey 2671(1) B. Establishment and Composition of the Panel 2671(1) C. Panel Proceedings 2672(1) II. FACTUAL ASPECTS 2672(1) III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS 2673(1) A. Turkey 2673(1) B. Egypt 2673(1) IV. ARGUMENTS OF THE PARTIES 2673(1) V. ARGUMENTS OF THE THIRD PARTIES 2673(1) VI. INTERIM REVIEW 2673(2) A. Request of Turkey 2674(1) 1. Claim under Annex II, Paragraph 7 2674(1) 2. Claim under Article 2.4 2674(1) 3. Claim under Articles 2.2.1.1 and 2.2.2 2674(2) Request of Egypt 2674(1) VII. FINDINGS 2675(128) A. Introduction 2675(1) B. Preliminary Objections 2676(9) 1. Alleged Failure of Turkey to Present a prima facie Case 2676(1) 2. Alleged Request by Turkey for a de novo Review 2677(1) 3. Introduction of Evidence that was not before the Investigating Authority 2678(3) 4. Request for Dismissal of Certain Claims 2681(4) C. Claims Relating to Injury and Causation 2685(30) 1. Claims under Article 3.4 of the AD Agreement 2685(11) (a) Alleged Failure to Examine Factors Specifically Listed in Article 3.4 2685(8) (b) Alleged Failure to Examine "all relevant economic factors and indices having a bearing on the state of the industry" 2693(3) 2. Claim under Articles 3.1 and 3.2 - Alleged Failure to Base the Finding of Price Undercutting on Positive Evidence 2696(3) 3. Claim under Articles 6.1 and 6.2 - Alleged Violation Due to "change" in the "scope" of the Injury Investigation from Threat to Present Material Injury 2699(6) 4. Claim under Articles 3.5 and 3.1 - Alleged Failure to Develop Specific Evidence Linking Imports to Adverse Volume and Price Effects upon the Domestic Industry, and Consequent Failure to Base the Finding of a Causal Link on Positive Evidence 2705(2) 5. Claim under Article 3.5 - Alleged Failure to Take Account of, and Attribution to Dumped Imports of, the Effects of other "known factors" Injuring the Domestic Industry 2707(7) 6. Claim under Articles 3.5 and 3.1 - Alleged Failure to Demonstrate that the Imports Caused Injury "through the Effects of Dumping" 2714(1) D. Claims Relating to the Dumping Investigation - "facts available" 2715(53) 1. Factual Background 2715(1) 2. Claim under Article 17.6(1) 2716(3) 3. Claim under Article 6.8 and Annex II, Paragraphs 5 and 6 - Resort to "facts available" 2719(37) (a) Article 6.8 and Annex II 2720(21) (b) Was the Cost Information Requested by the IA on 19 August and 23 September 1999 "necessary information"? 2741(6) (c) Did the Respondents "refuse access to" or "otherwise fail to provide" "necessary information" ? 2747(9) 4. Claim under Article 2.2.1.1, 2.2.2 and 2.4 Due to Alleged Unjustified Resort to Facts Available 2756(1) 5. Claim under Article 6.1.1, Annex II, Paragraph 6, and Article 6.2 - Dead-Line for Response to 19 August 1999 Request 2757(3) (a) Claim under Article 6.1.1 2758(1) (b) Alternative Claim under Annex II, Paragraph 6 and Article 6.2 2759(1) 6. Claim under Article 6.1.1, Annex II, Paragraph 6, and Article 6.2 - Deadline for the Responses of Habas, Diler and Colakoglu to the 23 September Letter of the IA 2760(3) 7. Claim under Annex II, Paragraph 7 Due to the Addition of 5 per cent for Inflation to Habas' Highest Reported Monthly Costs 2763(3) 8. Claim under Annex II, Paragraphs 3 and 7 Due to Failure to Use Icdas' September - October 1998 Scrap Costs 2766(1) 9. Claim under Annex II, Paragraphs 3 and 7 Due to Calculation of the Highest Monthly Interest Cost for IDC 2767(1) E. Other Claims Relating to the Dumping Investigation 2768(35) 1. Claim under Annex II, Paragraph 1; Annex II, Paragraph 6; and Article 6.7, Annex I, Paragraph 7-Alleged Failure to Verify the Cost Data During the "on-the-spot" Verification, and Conduct of "mail order" Verification Instead 2768(2) 2. Claim under Article 2.4 - Request for Detailed Cost Information Late in the Investigation Allegedly Imposed an Unreasonable Burden of Proof on the Respondents 2770(3) 3. Claim under Article 6.2 and Annex II, Paragraph 6-Alleged Denial of Requests for Meetings 2773(3) 4. Claim under Article 2.4 - Alleged Failure to Make an Adjustment to Normal Value for Differences in Terms of Sale 2776(15) (a) Factual Background 2778(9) (b) Assessment by the Panel 2787(4) 5. Claim under of Articles 2.2.1.1 and 2.2.2 - Interest Income Offset 2791(12) (a) Factual Background 2793(7) (b) Assessment by the Panel 2800(3) F. Claim under Article X:3 of GATT 1994 2803(1) VIII. CONCLUSIONS 2803(3) IX. RECOMMENDATION 2806(229) LIST OF ANNEXES Annex 1 First written submissions of Turkey and Egypt - Executive summaries Annex 2 First oral statements of Turkey and Egypt - Executive summaries Annex 3 Restatement by Turkey of its claims in response to a request from the Panel Annex 4 Turkey's and Egypt's responses to questions posed in the con-text of the first substantive meeting of the Panel Annex 5 Rebuttal submissions of Turkey and Egypt -Executive summaries Annex 6 Second oral statements of Egypt and Turkey - Executive summaries Annex 7 Concluding oral remarks of Turkey and Egypt Annex 8 Turkey's and Egypt's responses to questions posed in the con-text of the second substantive meeting of the Panel Annex 9 Third party oral statement of Chile Annex 10 Third party written submission, oral statement and responses to questions of the European Communities Annex 11 Third party written submission and responses to questions of Japan Annex 12 Third party written submission, oral statement and responses to questions of the United States Annex 13 Supplemental working procedures of the Panel concerning certain business confidential information Cumulative Index of Published Disputes 3035