DOC

Annex B - World Trade Organization - Home page

By Jonathan Payne,2014-03-22 19:14
9 views 0
That is the apparent assumption by the investigating authority that at a stage of the market cycle where global prices are relatively depressed,

     WT/DS268/RW

     Page B-1

    ANNEX B

    WRITTEN SUBMISSIONS OF THIRD PARTIES

    Contents Page Annex B-1 Third Party Written Submission of China, People's Republic of B-2 Annex B-2 Third Party Written Submission of the European Communities B-10 Annex B-3 Third Party Written Submission of Japan B-16 Annex B-4 Third Party Written Submission of Korea, Republic of B-23 Annex B-5 Third Party Written Submission of Mexico B-30

WT/DS268/RW

    Page B-2

    ANNEX B-1

    THIRD PARTY WRITTEN SUBMISSION OF THE

    PEOPLES REPUBLIC OF CHINA

    26 April 2006

    Page

I. INTRODUCTION ............................................................................................................ 2

    II. CHINA’S VIEWS ON ARTICLE 11.3 OF THE AD AGREEMENT .............................. 3

    III. COLLECTING NEW INFORMATION IN A REVISED SUNSET REVIEW .............. 3 IV. THE LIKELIHOOD DETERMINATION IN THE SECTION 129

    DETERMINATION.......................................................................................................... 5

    A. THE USDOC’S REASONING IN THE SECTION 129 DETERMINATION ................................... 5 B. THE USDOC’S FINDING OF LIKELY DUMPING ........................................................................ 5 C. THE USDOC’S FINDING OF DECLINING OCTG IMPORT VOLUMES ...................................... 6 D. THE USDOC’S CONSIDERATION OF THE FACTUAL FACTORS AND

    CONCLUSION ON LIKELIHOOD OF DUMPING ........................................................................ 7 V. CONCLUSION ................................................................................................................. 9

I. INTRODUCTION

    1. China welcomes the opportunity to present its views in these proceedings on the dispute between Argentina and the United States ("US") with respect to the implementation by the US of the recommendations and rulings of the Dispute Settlement Body ("DSB") on United States Sunset

    Reviews of Anti-Dumping Measures on Oil Country Tubular Goods From Argentina.

    2. In this submission, China will focus on the following four questions:

     (1) Whether the US Department of Commerce ("USDOC") is permitted by Article 11.3

    of the Agreement on Implementation of Article VI of the General Agreement on

    Tariffs and Trade 1994 ("AD Agreement") to rely on the facts newly developed in its

    2005 Section 129 proceeding and covering the original sunset review period;

     (2) Whether the finding in the Section 129 Determination that Acindar likely was

    dumping during the sunset review period was properly made in line with the

    requirement of Article 11.3 of the AD Agreement;

     (3) Whether the finding in the Section 129 Determination that declining import volumes

    were apparently resulted from the imposition of an anti-dumping dumping order

    constitutes a reasoned and adequate conclusion as required by Article 11.3 of the

    AD Agreement;

     WT/DS268/RW

     Page B-3

     (4) Whether the USDOCs consideration of the factual findings and conclusion of

    likelihood of dumping were made in a reasoned way as required by Article 11.3 of

    the AD Agreement.

3. In Chinas view, these issues are closely related to this Panels assessment on whether the US

    has implemented the DSB recommendations and rulings and therefore deserve the attention by the Panel.

II. CHINA’S VIEWS ON ARTICLE 11.3 OF THE AD AGREEMENT

4. As the issues discussed in this submission mainly relate to Article 11.3 of the AD Agreement,

    China would like to firstly present its understanding of the obligations imposed on investigating authorities in sunset reviews on the basis of the said provision and WTO jurisprudence.

    5. First, the structure of Article 11.3 indicates that generally the definitive anti-dumping duty shall be terminated no later than five years. The only exception to this general rule is the case where the authorities, by means of sunset review, determine that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury. As observed by the Appellate Body in US Corrosion-Resistant Steel Sunset Review, Article 11.3 imposes a temporal limitation on the 1maintenance of anti-dumping duties and lays down a mandatory rule with an exception.

6. Second, in a sunset review, the authorities shall play an active rather than a passive decision-

    making role with appropriate degree of diligence to arrive at a reasoned conclusion that dumping 2would be probable if the duty were terminated. In other words, the investigating authorities must

    have a sufficient factual basis to allow it to draw reasoned and adequate conclusions concerning the 3likelihood of continuation or recurrence of dumping.

    7. Third, in sunset reviews, the evidence is essential for an affirmative determination though the nature and extent of the evidence required for the proof of likelihood of continuation or recurrence of 4dumping and injury will vary with the facts and circumstances of the case under review.

III. COLLECTING NEW INFORMATION IN A REVISED SUNSET REVIEW

    8. Argentina argues that in the 2005 Section 129 Determination, the USDOC acted inconsistently with Articles 11.3 and 11.4 of the AD Agreement by developing new factual

    information to support its 2001 Sunset Review Determination. According to Argentina, information on two of the key factual findings were developed in the 2005 Section 129 proceeding rather than in the review initiated "at that time" before the expiration of the original anti-dumping measure. In Argentinas view, in relying on new information developed in 2005, the USDOC did not render a 5decision that brings the US into compliance with its obligations under Article 11.3 and 11.4.

    9. With respect to this issue, China submits the following views for the consideration of this Panel.

     1 Appellate Body Report, United States Sunset Review of Anti-Dumping Duties on

    Corrosion - Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R, para. 104 (adopted

    9 January 2004)

    ("US ;- Corrosion-Resistant Steel Sunset Review (AB)"). 2 Ibid, para. 111. 3 Ibid, para. 114. 4 Appellate Body Report, United States Anti-Dumping Measures on Oil Country Tubular Goods

    (OCTG) from Mexico, WT/DS282/AB/R, adopted 28 November 2005, para. 123 ("US OCTG from Mexico"). 5 Argentina First Submission, para. 57.

WT/DS268/RW

    Page B-4

10. First, China notes that neither Article 11.3 of the AD Agreement by itself nor the DSU

    prohibits the investigating authorities from collecting new factual information in the proceedings intended to bring its WTO-inconsistent measure into conformity with the DSB recommendations and rulings.

11. Second, China notes that the panel in US Countervailing Measures on Certain EC Products

    (21.5EC) made a relevant observation in this respect. In that dispute, the USDOC, in a Section 129 ;

    proceeding, refused to consider the additional evidence submitted by the respondents in the 6proceeding. The panel noted that "an investigating authority has the obligation to consider all

    evidence placed on the record in making a likelihood of continuation or recurrence of subsidization re-determination. Without so doing, the investigating authority could not ensure that the new measure, that is, the likelihood-of-subsidization re-determination set out in the Section 129 determination, is based on a sufficient factual record and therefore satisfies the requirements of 7Article 21.3 of the SCM Agreement". The panel concluded that, with respect to "evidence provided

    for the first time by the interested parties during the Section 129 proceedings. . . . Article 21.3 of the SCM Agreement imposes an obligation on the investigating authority during sunset review or revised

    sunset review proceedings to take into account all the evidence placed on its record in making its 8determination of likelihood of continuation or recurrence of subsidization".

12. Therefore, the panel finds that the refusal to consider new evidence presented during the 9Section 129 proceedings is inconsistent with the requirement of Article 21.3 of the SCM Agreement.

13. China submits that the above panels ruling in respect of Article 21.3 of the SCM Agreement

    also applies to Article 11.3 of the AD Agreement in this case. The Appellate Body in US Corrosion-

    Resistant Steel Sunset Review has noted that Article 11.3 of the AD Agreement is textually identical to

    Article 21.3 of the SCM Agreement, except that, in Article 21.3, the word "countervailing" is used in place of the word "anti-dumping" and the word "subsidization" is used in place of the word 10"dumping". Consequently, Article 11.3 of the AD Agreement also imposes an obligation on the

    investigating authority during revised sunset review proceedings to take into account all the evidence in record, including newly submitted evidence, in making its determination of likelihood of continuation or recurrence of dumping.

    14.