WT/DS241/R
Page C-1
ANNEX C
Third Parties
Contents Page
Annex C-1 Third Party Submission of Canada C-2
Annex C-2 Third Party Submission of the European Communities C-5
Annex C-3 Third Party Submission of Guatemala C-17
Annex C-4 Third Party Submission of Paraguay C-21
Annex C-5 Third Party Submission of the United States C-23
Annex C-6 Third Party Oral Statement of Paraguay C-28
Annex C-7 Third Party Oral Statement of Chile C-30
Annex C-8 Third Party Oral Statement of the United States C-31
Annex C-9 Third Party Oral Statement of Canada C-33
Annex C-10 Third Party Oral Statement of the European Communities C-34
Annex C-11 Replies of the European Communities to Questions of the Panel C-37
Annex C-12 Replies of the United States to Questions of the Panel C-39WT/DS241/R
Page C-2
ANNEX C-1
THIRD PARTY SUBMISSION OF CANADA
(5 September 2002)
I. INTRODUCTION
1. In letter dated April 24, 2002 to H.E. Carlos Pérez del Castillo, Chairman of the Dispute
Settlement Body, Canada expressed its wish to participate as a third party in Argentina – Definitive
Anti-Dumping Duties on Poultry from Brazil (WT/DS241).  Canada makes this submission in
accordance with Article 10.2 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes  (DSU).  At this point, Canada restricts its comments to the interpretation of
Article 9.3 of the Agreement on the Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994  (Anti-dumping Agreement).  However, Canada may make additional submissions on
this and other legal issues at the Substantive Meeting of the Panel with the Third Parties.
II. LEGAL ARGUMENT
A. BRAZIL’S ARGUMENTS
2. In its claims 28 and 29, as set out and developed in its First Written Submission, Brazil argues
that the imposition by Argentina of a “variable anti- dumping duty” violates Articles 9.2 and 9.3 of the
Anti-dumping Agreement.
3. According to Brazil, the variable duty at issu e is an anti-dumping duty that is equal to the
“absolute different between the f.o.b. price invoiced in any one shipment and a designated ‘minimum
export price’ also fixed in f.o.b. terms ...”.  Because the amount of the duty is variable, the result can
be the imposition of duties on each shipment that “can exceed the margin of dumping established in
the final determination”.  In its First Written Submission, Brazil does not adequately set out a legalanalysis of the relevant provisions of the Anti-dum ping Agreement.  It only asserts that Argentina’s
anti-dumping duties are not collected in “an appropriate amount” as required by Article 9.2 and are, in
addition, in violation of Article 9.3 because they exceed the margin of dumping “established in the
final determination”.
B. CANADA’S SUBMISSION
1. The Scope of this Submission
4. Canada is interested in ensuring that the Panel arrives at the correct legal interpretation of
Articles 9.2 and 9.3.  This is because if the Panel accepts Brazil's assertions, the consequence would
be a serious dilution of the rights of WTO Members under the Anti-dumping Agreement.
5. Canada does not express any views on the application of the provisions at issue on the
specific facts of this case.WT/DS241/R
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2. An appropriate amount:  Article 9.2 of the Anti-Dumping Agreement
6. Brazil purports to argue that with respect to the amount of an anti-dumping duty, there are
two obligations on WTO Members: Article 9.2, which requires the collection of “an appropriate
amount”, and Article 9.3, which restricts the “amount ” of an anti-dumping duty to the “margin of
dumping as established under Article 2”.
7. Brazil does not explain what would constitute an “appropriate” amount for the purposes of
Article 9.2.  The context of Article 9 as a whole is cogent evidence, however, that the appropriateness
of an amount under the second paragraph of that Article is to be determined in accordance with the
criteria set out in the third.  Simply put, it is inconceivable that an “amount” arrived at following the
detailed instructions of Article 9.3 (in conjunction with Article 2) would be considered not
“appropriate” for the purposes of Article 9.2.  Accordingly, as a starting point, unless Brazil can
demonstrate otherwise, the Panel should consider that an amount permitted under Article 9.3 is“appropriate” under Article 9.2.
3. Margin of dumping:  Article 9.3 of the Anti-Dumping Agreement
8. Article 9.3 provides that the “amount of an anti-dumping duty” must not exceed the “margin
of dumping as established under Article 2.”  Re lying on Article 2.4.2 of the Anti-dumping Agreement,
Brazil argues that, “the dumping margin as established under Article 2 of the Anti-dumping
Agreement is that established during the investigation phase .” [emphasis added]  Accordingly, Brazil
seems to argue, even if Brazilian exporters export poultry at prices that result in dumping that is more
egregious  than during the investigation phase, Argentina may impose anti-dumping duties only if they
do not exceed the original margin of dumping
.
9. Article 9.3 has no such requirement.  Indeed, the very fact situation set out by Brazil in its
submission underlines the illogic of Brazil’s proposed interpretation.
10. In determining the “margin of dumping” for the purposes of Article 9.3, the Panel should
examine Article 2 in its entirety.  Article 2 provides that under normal market conditions, the margin
of dumping is simply the difference between the export price and the “comparable price ... in theexporting country” as set out in Article 2.1.  The prices must be comparable  in the sense of
Article 2.4; the comparison must be made at the same level of trade and around the same time .
Nothing in Article 2 limits the margin of dumping to a static amount found during the period of
investigation.  Indeed, any such reading appears to directly contradict the fair comparison requirement
in Article 2.4.
11. Brazil quotes Article 2.4.2 in support of its position that the “margin of dumping” is fixed in
time.  However, Article 2.4.2 deals with the situation where a weighted average dumping margin
needs to be established during the period of investigation .  Nowhere does it fix the “margin of
dumping” to that found in the period of investig ation.  Article 2.4.2 does not appear immediately
relevant to this case.
12. Finally, Brazil’s interpretation is fundamentally at odds with the object and purpose of
Article VI of the GATT 1994 and the Anti-dumping Agreement.
13. Article VI:1 provides that:
The contracting parties recognize that dumping, by which products of one country are
introduced into the commerce of another country at less than the normal value of theWT/DS241/R
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products, is to be condemned  if it causes or threatens material injury .... [emphasis
added]
14. The object and purpose of the Anti-dumping Agreement, as can be seen in Article VI:1 and
also in the terms of the Anti-dumping Agreement, is to provide a mechanism to address unfair tradesituations where products are sold at prices below their “normal value” in the export market.  This can
be achieved through the imposition of anti-dumping  duties equal to the difference between the two
prices (the margin of dumping), or through price undertakings.  If it were to prevail, Brazil’s
interpretation would result in the perverse outcome that an exporter will be able to undermine anti-
dumping duties legitimately imposed by an importing country, through dumping at even larger
margins than those found during the investigation period.  Nothing in the Anti-dumping Agreement
prevents a Member from imposing anti-dumping duties equivalent to the actual margin of dumping to
prevent precisely such an outcome.
15. The “margin of dumping” under Article 9.3 is the price difference set out in Article 2, and in
this case, Article 2.1.  Such a margin by definition varies in accordance with the pricing strategy of an
exporter found to have engaged in dumping.  An export price that equals or exceeds the normal value
does not attract an anti-dumping duty.  At the same time, an export price below the normal value will
attract an amount equal to the difference between the normal value and export price of those goods
(that is, the actual margin of dumping).  Whil e Members may choose, for their own reasons, 
to apply a
rate of duty equal to the margin of dumping found in the original investigation, nothing in Article 9.3
compels them to do so.
III. CONCLUSION
16. Brazil’s interpretation of Articles 9.2 and 9.3 of the Anti-dumping Agreement is flawed and
should be rejected because:
- the “appropriate amount” in Article 9.2 is the same as the amount found under
Article 9.3 and Article 9.2 does not impose an additional calculation obligation on
Members;
- read in context, the “margin of dumping” in Article 9.3 is not limited to the margin
found during the period of investigation; and
- Brazil’s interpretation seriously vitiates the right of Members to ensure that anti-
dumping measures address the actual margin of dumping.
17. Making a determination of dumping in accordance with Article 2 is one of the requisite
elements for the imposition of anti-dumping measur es.  The margin of dumping found in the course of
the original investigation does not, however, cap the amount of anti-dumping duties that may be
imposed when future imports take place.  When such future imports are dumped at a margin higher
than that determined to exist at  the time of the final determination, the importing Member may impose
anti-dumping measures equal to that margin.
18. Canada stresses that it does not have any views on the application of the provisions of the
Anti-dumping Agreement to the specific facts of this case.  Canada may make additional remarks on
this and other aspects of this dispute at the Substantive Meeting of the Panel with the Third Parties.WT/DS241/R
Page C-5
ANNEX C-2
THIRD PARTY SUBMISSION OF THE
EUROPEAN COMMUNITIES
(9 September 2002)
I. INTRODUCTION
1. The European Communities (the “EC”) interven e in this dispute because of their systemic
interest in the correct interpretation of the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994  (the “ Anti-Dumping Agreement ”).
2. Many of the claims submitted by Brazil raise factual issues on which the EC is not in a
position to comment.  Accordingly, in this submissi on the EC will limit itself to provide its views with
respect to a number of issues of legal interpretation to which it attaches particular importance.  More
specifically, the EC will argue in this submission that:
• in so far as the issue arises in connection with Claim 21, the Panel should confirm the
interpretation of Article 6.9 made by the panel in Guatemala – Cement II  to the effect
that the disclosure obligation imposed by that provision cannot be satisfied simply by
allowing access to the file;
• Article 2.4 does not address the issue raised by Brazil under Claim 24;
• contrary to Brazil’s Claims 28 and 29, the imposition of variable duties equal to the
difference between the normal value established during the investigation and the
export prices of the shipments made after the imposition of the duties is not
inconsistent with Articles 9.2 and 9.3;
• the term “dumped imports”, as used in Article 3, may be interpreted as referring to all
imports from the country concerned, contrary to  Brazil’s Claims 32, 33, 34, 35 and
36; and
• contrary to Brazil’s Claim 41,  the term “major proportion” used in Article 4.1 does
not mean at least 50 per cent of the domestic production, but rather an important
proportion thereof, which may be less than 50 per cent.
3. Before addressing the above issues, the EC will comment on the preliminary objection raised
by Argentina on the basis of the existence of a ruling issued by an Ad Hoc Arbitral Tribunal
established under the MERCOSUR Agreement in connection with the same measure.WT/DS241/R
Page C-6
II. PRELIMINARY OBJECTION
A. RELEVANCE OF THE RULING BY THE MERCOSUR AD HOC ARBITRAL
TRIBUNAL WITH RESPECT TO THE SAME MEASURE
4. The anti-dumping measure in dispute in this case has already been the subject of another
dispute before an Ad Hoc Arbitral Tribunal (“Tribunal Arbitral Ad Hoc”) established at the request of
Brazil under Article 7 of the Protocol of Brasilia1 to the Treaty of Asunción establishing the
MERCOSUR2, which issued a ruling (“laudo arbitral”) rejecting Brazil’s complaint on 21 May 2001.3
5. Citing the existence of the above mentioned arbitration ruling, Argentina has requested thePanel to dismiss Brazil’s complaint.  The grounds for that request are, nevertheless, somewhat
unclear.  In essence, Argentina appears to be arguing the following:
• the dispute has already been “debated and resolved”.
4  This suggests that Argentina
takes the view that the arbitration ruling has the effect of res iudicata  between the
parties.  Nevertheless, Argentina does not invoke expressly that notion;
• the arbitration ruling is part of the relevant “normative framework”5 and must be
“taken into account”6 by the Panel in accordance with the last part of the second
sentence of Article 3.2 of the DSU (which provides that the dispute settlement
mechanism serves to “clarify the existing provisions of those agreements in
accordance with customary rules of interpretation of public international law”)7;
• by bringing this dispute, Brazil has abused its rights under the WTO Agreement8;
• given Brazil’s earlier decision to bring the same dispute before a MERCOSUR Ad
Hoc Arbitral Tribunal, as well as Brazil’s previous practice of resorting exclusively tothe MERCOSUR dispute settlement mechanism,  Brazil is estopped  from bringing
this case before a WTO Panel.
9
(a) Res iudicata
6. The applicability of the principle of res iudicata  to the disputes arising under the WTO
Agreement  has been examined by the panel in India – Autos10, which nevertheless did not consider it
necessary to rule on that issue.  Likewise, this Pa nel need not reach this issue because it is plain that,
                                                     
1 Protocol of Brasilia on the Settlement of Disputes of 17 December 1991 (the “Protocol of Brasilia”).
2 Tratado para la Constitución de un Mercado Común between the Republic of Argentina, the
Federative Republic of Brazil, the Republic of Paraguay and the Oriental Republic of Uruguay of
26 March 1991 (the “MERCOSUR Treaty”).
3 Laudo del Tribunal Ad Hoc del MERCOSUR constituido para decidir sobre Controversia entre la
República Federativa de Brasil y la República Argentin a sobre “Applicación de Me didas Antidumping contra la
exportación de pollos enteros provenientes de Brasil (Res. 574/2000) del Ministerio de Economía de la
Republica Argentina” de 31 de Mayo de 2001.
4 Argentina’s Submission, paras. 23 and 17.
5 Argentina’s Submission, para. 22.  See also para. 18.
6 Ibid.
7 Ibid., para. 18.
8 Ibid., paras. 17 and 23
9 Ibid., paras. 22 and 24.
10 Panel Report, India – Measures Affecting the Automotive Sector, WT/DS146/R, WT/DS175/R
(“India – Autos”).WT/DS241/R
Page C-7
in any event, the requirements for the existence of res iudicata  are not met.  As noted by the panel in
India – Autos ,  
for res iudicata  to have any possible role in WTO dispute settlement, there should, at
the very least, be in essence identity between the matter previously ruled on and that
submitted to the subsequent panel.  This requires identity between both the measures
and the claims pertaining to them.11
7. The measure before this Panel is the same as the measure in dispute before the MERCOSURAd Hoc Arbitral Tribunal.  But the claims are different because they involve a different legal basis.The claims raised by Brazil before this Panel are based on the Anti-Dumping Agreement .  On the other
hand, the claims ruled upon by the MERCOSUR Ad Hoc Arbitral Tribunal were based on
MERCOSUR law.
8. Indeed, the jurisdiction of the dispute settlement mechanism established by the Protocol of
Brasilia  is limited to disputes concerning the application and interpretation of MERCOSUR law.
Article 1 of the Protocol of Brasilia  states in this regard that
Las controversias que surjan entre los Estados Partes sobre la interpretación,
aplicación o incumplimiento de las disposiciones contenidas en el Tratado deAsunción, de los acuerdos celebrados en el marco del mismo, así como de las
Decisiones del Consejo del mercado Común y de las Resoluciones del Grupo del
Mercado Común, serán sometidas a los procedimientos de solución establecidos en el
presente protocolo.
9. Brazil argued before the Ad Hoc Arbitral Tribunal that since all the Party States of Mercosur
were parties to the WTO Agreement , the Anti-Dumping Agreement  was part of the relevant
MERCOSUR law.
12  This view, however, was rejected by the Ad Hoc Arbitral Tribunal, which
declined to rule on the consistency of the measure in dispute with the Anti-Dumping Agreement.13
(b) Article 3.2 of the DSU
10. The relevance of Article 3.2 of the DSU  to Argentina’s request is difficult to understand.  The
language of Article 3.2 relied upon by Argentina is concerned exclusively with the interpretation of
the WTO Agreement , and not with the sources of WTO law.   Yet, Argentina’s position appears to be,
not that the ruling of the Ad Hoc Arbitral Tribunal is a relevant element for the interpretation of the
Anti-Dumping Agreement  to be made by this Panel, but rather that the existence of such ruling would
preclude this Panel from making such interpretation.
11. In any event, it is difficult to see how the interpretation of the provisions of MERCOSUR law
made by the Ad Hoc Arbitral Tribunal could become relevant, in accordance with the rules laid down
in Articles 31 and 32 of the Vienna Convention , for the interpretation of the provisions of the Anti-
Dumping Agreement  at issue in this dispute.
(c) Abuse of rights and estoppel12. Although Argentina has made these two arguments separately, they  raise essentially the same
issues.  Therefore, the EC will consider them together.
                                                     
11 Ibid., Para.7.66
12 Arbitration ruling, para. 30.
13 Ibid., paras. 127-130.WT/DS241/R
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13. As recalled by Argentina, Article 3.10 of the DSU  provides that
if a dispute arises, all Members will engage in these procedures in good faith in an
effort to resolve the dispute…
14. In United States – FSC , the Appellate Body relied upon Article 3.10 in order to conclude that
the United States was precluded from raising at the appellate stage a defence which it had failed to
invoke in a timely manner during the panel proceedings.14  This case shows that Article 3.10 of the
DSU  is more than a mere exhortation.  Members are under a positive duty to exercise their procedural
rights under the DSU  in good faith and may forfeit those rights if they fail to do so.
15. The EC does not consider it necessary to take a position on the issue of whether a Member
would abuse its right to a panel under the DSU  and, hence, act inconsistently with Article 3.10 if it
were to request the establishment of a panel in violation of the principle of estoppel.15  Indeed, this
Panel need not reach this issue because, in any event, Brazil’s conduct is not contrary to that principle.
16. As noted by the panel in EC - Bananas  I ,  estoppel  can only “result from the express, or in
exceptional cases implied consent of the complaining parties”.16  The same panel noted that, in
particular,
The decision of a contracting party not to invoke a right vis-à-vis another contracting
party at a particular point in time can, therefore, by itself, not reasonably be assumed
to be a decision to release that other contracting party from its obligations under the
General Agreement.17
17. The facts alleged by Argentina are not sufficient to conclude that Brazil has “consented”,
whether explicitly or implicitly, not to bring this dispute before the WTO.  The Protocol of Brasilia
contains no provision which limits in any manner the right of the parties to request a panel under the
WTO Agreement  with respect to a measure that has already been the subject of a dispute under that
Protocol.18  Thus, the mere fact that Brazil requested first the establishment of an Ad Hoc Arbitral
                                                     
14 Appellate Body Report, United States – Tax Treatment for “Foreign Sales Corporation”,
WT/DS108/AB/R, para. 166.
15 The panel in India – Autos  (at footnote 364) suggested that a Member may be est opped from
requesting the establishment of a panel with respect to a matter which has been the subject of a mutually agreedsolution.
16 Panel Report, EEC – Member States’ Import Regimes for Bananas, DS32/R (“EC – Bananas I”)
(unadopted), para 361.  See also Panel Report, Guatemala – Definitive Anti-Dumping measures on Grey
Portland Cement from Mexico, WT/DS156/R, footnote 791, (“it is clear that not any silence can be considered
to constitute consent”).
17 Panel Report, EC – Bananas I, para.362.
18  Unlike the more recent Protocol of Olivos on Dispute Settlement , which provides in its Article 1.2
that
Las controversias comprendidas en el ámbito  de aplicación del presente Protocolo que puedan también
ser sometidas al sistema de solucián de controversias de la Organización Mundial de Comercio o de otros
esquemas preferenciales de comercio de que sean parte individualmente los Estados Partes del Mercosur, podránsometerse a uno u otro foro a elección de la parte demandan te. Sin perjuicio de ello, las partes en la controversia
podrán, de común acuerdo, convenir el foro.
Una vez iniciado un procedimiento de solución de controversias de acuerdo al párrafo anterior, ninguna
de las partes podrá recurrir a los mecanismos establ ecidos en los otros foros respecto del mismo objeto …
The Protocol of Olivos was signed on 18 February 2002 and has not entered into force yet.  The
question might be raised whether the request for the establishment of the panel made by Brazil on25 February 2002, i.e. after the signature of the Protocol of Olivos, was consistent with Brazil’s obligation underArticle 18 of the Vienna Convention not to defeat the object and purpose of a signed treaty prior to its entry intoWT/DS241/R
Page C-9
Tribunal under the Protocol of Brasilia  does not amount to a renunciation by Brazil to bring a  dispute
settlement action under the WTO Agreement .
18. Similarly, the mere fact that Brazil did not consider it necessary to take dispute settlement
action under the WTO Agreement  following the arbitration rulings issued in a number of other cases
cited by Argentina cannot be construed as an implicit renunciation by Brazil to its right under the
WTO Agreement  to take such action in this case.
III. CLAIMS
A. CLAIM  21: ARTICLE 6.9
19. Brazil alleges that the report issued by the DCD prior to the Final Determination (the so-
called “ Relevamiento de lo Actuado con Anterior idad al Cierre de la Etapa probatoria ”) did not
provide sufficient information with respect to certain facts that Brazil considers to be essential facts
which formed the basis for the decision whether to apply definitive measures.19  Brazil claims that, by
failing to provide such information to the exporters, Argentina violated Article 6.9.
20. The EC does not wish to express any views w ith respect to the largely factual issues of
whether Argentina provided the information in question and of whether the omitted information, if
any, constituted “essential facts” within the meaning of Article 6.9.
21. The EC would like, nevertheless, to restate it s well known position with respect to the scope
of the disclosure obligation imposed by Article 6.9.  Brazil has relied20 on the panel report in
Argentina - Ceramic Tiles.21  The EC considers that the interpretation of Article 6.9 made in that
report is incorrect in so far as the panel found that the disclosure requirements imposed by that
provision could be met
through the inclusion in the record of documents  - such as verification reports, a
preliminary determination, or correspondence exchanged between the investigating
authorities and individual exporters – which actually disclose to the interested partiesthe essential facts which, being under consideration, are anticipated by the authorities
as being those which will form the basis for the decision whether to apply a
definitive measure.
22
22. The EC agrees with the panel in Argentina – Ceramic Tiles  that Article 6.9 “does not
prescribe the precise manner in which the authority is to comply with its disclosure obligation”.23
Thus, for example, the authorities may provide disclosure by sending a disclosure document to the
exporters, or by holding a disclosure hearing, or by placing a disclosure document in the file.
23. The EC considers, nevertheless, that Article 6.9 requires that, regardless of the form of the
disclosure, the authorities take active steps in orde r to identify and point to the exporters the relevant
“essential facts”.  Accordingly, merely giving acce ss to the file is not sufficient to satisfy the
                                                                                                                                                                    
force.  However, Article 50 of the Protocol of Olivos appears to suggest that it does not apply to disputes
already decided in accordance with the Protocol of  Brasilia.
19 Brazil’s Submission, para. 342.
20 Brazil’s Submission, paras. 346-347.
21 Panel Report, Argentina – Definitive Measures on Imports of Ceramic Floor Tiles from Italy,
WT/DS189/R (“Argentina – Ceramic Tiles”)
22 Ibid., para. 6.125.
23 Ibid.WT/DS241/R
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requirements of Article 6.9, unless the file contains a disclosure document specifically prepared by the
authorities which clearly identifies the “essential facts”.
24. For the above reasons, the EC considers that a more correct interpretation of Article 6.9 is to
be found in the panel report on Guatemala – Cement – II.24  In particular, the EC agrees with the
following views expressed by that panel  and would urge this Panel to endorse them :
We now turn to Guatemala's argument that the Ministry disclosed the "essential facts"
by making copies of the file available to interested parties.  We note that aninvestigating authority's file is likely to contain vast amounts of information, some of
which may not be relied on by the investigating authority in making its decision
whether to apply definitive measures.  For example, the file may contain information
submitted by an interested party that was subsequently shown to be inaccurate upon
verification.  Although that information will remain in the file, it would not form thebasis of the investigating authority's decision whether to apply definitive measures.
The difficulty for an interested party with access to the file, however, is that it will
not know whether particular information in the file forms the basis of the authority's
final determination.  One purpose of Article 6.9 is to resolve this difficulty for
interested parties.  This has been acknowledged by Guatemala, which has itselfasserted that "[t]he object and purpose of Article 6.9 is to allow exporters a fair
opportunity to comment on the important issues  in an investigation after the record is
closed to new facts".  An interested party will not know whether a particular fact is
"important" or not unless the investigating authority has explicitly identified it as one
of the "essential facts" which form the basis of the authority's decision whether toimpose definitive measures.
Furthermore, if the disclosure of "essential facts" under Article 6.9 could be
undertaken simply by providing access to all information in the file, there would be
little, if any, practical difference between Article 6.9 and Article 6.4.  Guatemala is
effectively arguing that it complied with Article 6.9 by complying with Article 6.4,
i.e., by providing "timely opportunities for interested parties to see all information
that is relevant to the presentation of their cases … and that is used by the authorities…".  We do not accept an interpretation of Article 6.9 that would effectively reduce
its substantive requirements to those of Article 6.4.  In our view, an investigating
authority must do more than simply provide "timely opportunities for interested
parties to see all information that is releva nt to the presentation of their cases … and
that is used by the authorities …" in orde r to "inform all interested parties of the
essential facts under consideration which form the basis for the decision whether to
apply definitive measures".  In light of these considerations, we do not consider that
the Ministry could comply with the requir ement to "inform all interested parties of
the essential facts under consideration which form the basis for the decision whether
to apply definitive measures" simply by offering to provide interested parties withcopies of all information in the file.
25. The EC notes that in its First Submission Argentina appears to argue that it disclosed the
“essential facts” by issuing to the exporters the above mentioned “ Relevamiento de lo Actuado con
Anterioridad al Cierre de la Etapa probatoria ”.
25  Thus, unlike in Argentina – Ceramic Tiles ,
Argentina does not seem to take the position that merely giving access to the file can be sufficient tocomply with Article 6.9.  If confirmed, the Panel would not need to address the issue discussed in the
                                                     
24 Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from
Mexico, WT/DS156R/, paras. 8.229-8.230.
25 Argentina’s Submission, para. 185.WT/DS241/R
Page C-11
above paragraphs.  The above comments, therefore, are submitted in the event that, in subsequent
submissions, Argentina were to take the view that, in examining Brazil’s claim, the Panel should take
into account not only the “ Relevamiento de lo Actuado con Anterioridad al Cierre de la Etapa
probatoria ” but also any other facts “disclosed” in other documents contained in the file.
B. CLAIM 26: ARTICLE 2.426. Brazil alleges that the DCD did not establish the data collection period for the dumping
investigation until nine months after the investigation was initiated.
26  Brazil argues that, by doing so,
Argentina acted inconsistently with Article 2.4, which provides that the authorities “shall indicate to
the parties in question what information is necessary to ensure a fair comparison and shall not impose
an unreasonable burden of proof”.
27. The EC is of the view that Article 2.4 does not address the issue raised by Brazil.  As recently
recalled by the panel report in Egypt – Steel Rebar27, Article 2.4 is concerned exclusively with the
comparison between the normal value and the export price.  It does not to apply to the determination
of the normal value and the export price.
28. The EC would suggest that the relevant provis ions to examine the issue raised by Brazil are
Article 6.1, which states that
All interested parties in an anti-dumping investigation shall be given notice of the
information which the authorities require …
 and the first paragraph of Annex II, which provides that
As soon as possible after the initiation of the investigation, the investigating
authorities should specify in detail the info rmation required from any interested party,
and the manner in which that information should be structured by the interested party
in its response.
C. CLAIMS 28 AND 29:  ARTICLES 9.2 AND 9.3
29. The Argentinean authorities have imposed anti-dumping duties in the form a specific duty
equal to the difference between the FOB price invoiced in any one shipment and a designated
“minimum export price”, also fixed in FOB terms.
30. Brazil claims that the duties imposed by Argentina are inconsistent with Articles 9.2 and 9.3
of the Anti-Dumping Agreement  because they may lead to the collection of duties in excess of the
dumping margin (expressed as a percentage of the export price) established for the investigation
period.
31. The EC considers that Brazil’s claim under Article 9.3 (and, consequently, also its claim
under Article 9.2, which appears to be entirely dependent upon a violation of Article 9.3) is based on a
misinterpretation of that provision.  Article 9.3 pr ovides that “the amount of the anti-dumping duty
shall not exceed the margin of dumping established under Article 2”.  It does not provide that such
margin must be the margin established for the investigation period.  Nor is this required by Article 2.
                                                     
26 Brazil’s Submission, para. 407.
27 Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar from Turkey, WT/DS211/
para. 7.335 (not adopted yet).WT/DS241/R
Page C-12
32. Brazil suggests that the “dumping margin” referred to in Article 9.3  is the margin established
for the investigation period because Article 2.4.2 applies in order to determine “the existence of
margins of dumping during the investigation phase”.  This is an obvious non-sequitur .  From the fact
that Article 2.4.2 applies to the investigation phase, it does not follow that the application of all the
other provisions of Article 2 is also restricted to the investigation phase.  Nor does Article 2.4.2 imply
that dumping margins can be calculated only for the investigation period.
33. Brazil’s interpretation is contradicted by the immediate context of Article 9.3.  Article 9.3.1
envisages the possibility to collect duties on a retrospective basis, which, by definition,  presupposesthe possibility to calculate the dumping margins on the basis of data for individual shipments or for
time-periods outside the investigation period.  Similarly, Article 9.3.2 provides that, where duties are
assessed prospectively, the authorities shall refund the duties “paid in excess of the dumping margin”.
That “dumping margin” is not the margin established for the investigation period, but rather the
margin established for individual shipments or time-periods after the imposition of the duties.
34. Furthermore, Brazil’s claim would seem to imply that the application of variable anti-
dumping duties, or indeed the application of any kind of specific duties, is contrary per se  to
Articles 9.2.  The EC strongly disagrees with that proposition.  The Anti-Dumping Agreement does
not require to express the margin of dumping as a percentage of the export price (except for thepurpose of establishing whether it is de minimis
28).  Nor does it prescribe any particular type of duties.
35. The collection of variable duties equal to the difference between the normal value established
for the investigation period and the export prices of the shipments made after the imposition of the
duties is expressly contemplated in Article 9.4 of the Anti-dumping Agreement , which provides in
pertinent part that
When the authorities have limited their examination in accordance with the second
sentence of paragraph 10 of Article 6, any anti-dumping duty applied to imports from
exporters or producers not included in the examination shall not exceed:
[…]
(ii) where the liability for payment of anti-dumping duties is calculated on the basis
of a prospective normal value, the difference between the weighted average normal
value of the selected exporters or producers and the export prices of producers or
exporters not individually examined.
36. Article 9.4 (ii) lays down rules to calculate the “all-others” rate where the duties applied to the
exporters included in the sample are calculated on the basis of prospective normal values.  Itpresupposes, therefore, that the use of such prospective normal values is not inconsistent per se  with
the Anti-Dumping Agreement , including with Articles 9.2 and 9.3.
37. The precise method followed by the Argentinean authorities in order to calculate the so-called
“minimum export prices” is unclear to the EC.  In particular, it is unclear whether, and if so how,
those “minimum export prices” relate to the normal values established during the investigation.  The
EC would observe, nevertheless, that the “minimum export prices” set out in the table included at
pages 112 and 113 of Brazil’s Submission appear to be lower than the corresponding normal values
shown in the table at page 111.  In the EC’s view , if it were confirmed that the “minimum export
prices” applied by Argentina are equal to, or lower than the relevant normal values established duringthe investigation, the collection of a variable duty equal to the difference between those “minimum
                                                     
28 Cf. Article 5.8 of the Anti-Dumping Agreement .WT/DS241/R
Page C-13
export price” and the export prices of the shipments made after the imposition of the duties would not
be inconsistent with Articles 9.2 and 9.3 of the Anti-Dumping Agreement .
D. CLAIMS 34, 35, 36 AND 37: ARTICLES 3.1, 3.2, 3.4 AND 3.538. The DCD found that imports from two exporters (Nicolini and Seara) were not dumped.
29
Brazil argues that the CNCE did not exclude those imports from the “dumped imports” analysed in
the injury determination.30  Brazil claims that, by failing to do so, Argentina violated Articles 3.1, 3.2,
3.4 and 3.5 of the Anti-Dumping Agreement .
39. Argentina appears to argue that, in fact, it did exclude imports from Nicolini and Seara from
the injury determination.31  The comments below are submitted in the event that the Panel were to find
that, contrary to Argentina’s contention, imports from those exporters were included in the injury
analysis.
40. For the reasons explained below, the EC considers that Argentina was entitled to treat all
imports from Brazil as “dumped imports” for the purposes of the injury determination and, therefore,
did not act inconsistently with the provisions invoked by Brazil.
41. The Anti-Dumping Agreement  is concerned with dumping between countries.  This is
reflected in the definition of dumping contained in Article VI:1 of the GATT  and in Article 2.1 of the
Anti-Dumping Agreement , as well as in the following basic features of the anti-dumping
investigations:
• investigations are opened with respect to countries and not with respect to individual
exporters.  This is evident from Article 12.1, which provides that the notice of
initiation shall contain “the name of the exporting country or countries";
• once the investigation is open, all exports of the product from the named country
must be examined in order to determine dumping and injury, subject to the possibility
to resort to sampling in accordance with Article 6.10;
• although Article 6.10 provides that, as a rule , an individual dumping margin must be
established for each exporter ( inter alia  to ensure that the measures are effective),
there is normally always a general duty (the “residual” or “all others” duty) applicableto all unnamed exporters on a country-by-country basis.  This practice is comforted
by Article 9.2 which provides that, where duties are imposed, if it is impracticable to
name all the suppliers from one country, the authorities may name the supplying
country.
42. The wording of Article 3.3 confirms that the notion of “dumped imports”, as used in
Article 3, refers to all the imports of the product under consideration from each country concerned.  It
provides that
Where imports of a product from more than one country are simultaneously subject to
anti-dumping investigations, the investigating authorities may cumulatively assess the
effects of such imports only if they determine that (a) the margin of dumping
established in relation to the imports from each country is more than de minimis as
                                                     
29 Brazil’s Submission, para. 445
30 Brazil’s Submission, paras. 450-451.
31 Argentina’s Submission, paras. 266-273.WT/DS241/R
Page C-14
defined in paragraph 8 of Article 5 and the volume of imports from each country is
not negligible and (b) a cumulative assessment of the effects of the imports is
appropriate in light of the conditions of competition between the imported products
and the conditions of competition between the imported products and the likeproduct.
43. There are no corresponding rules to address the cumulation of imports from several exporters,
although this would be just as necessary if the term “dumped imports” were taken to require separate
consideration of the imports from different exporters.
44. Additional support is provided by Article 5.7 of the Anti-Dumping Agreement , which
provides that dumping and injury must be examined simultaneously during the course of the
investigation.  Since injury has to be investigated before it is established which exporters are
dumping, it is clear that the term “dumped imports” used in connection with the injury provisions of
Article 3 must be referring to all imports of the product under investigation (although the finding ofinjury is, of course, conditional upon dumping being found).
32
E. CLAIM 41: ARTICLE 4.1
45. Brazil alleges that the assessment of the impact of the dumped imports upon the domestic
industry was based on the data supplied by ten domestic producers that responded to the CNCE’s
questionnaires, out of the thirteen producers that had supported the application.33 According to Brazil,
those ten producers accounted for 46 per cent of the total domestic production in 1998.34
46. Brazil claims that 46 per cent of the total domestic production does not constitute a “majorproportion” of the total domestic production within the meaning of Article 4.1 of the Anti-Dumping
Agreement .  According to Brazil,  “a major proportion” means at least 50 per cent of the total
production.
35
47. As explained below, the EC disagrees with Brazil’s interpretation of the terms “a major
proportion”.  In the EC’s view, “a major proportion” does not mean the majority of the domestic
production, but rather an important part thereof, which may be less than 50 per cent.  In any event,assuming that “a major proportion” meant at least 50 per cent of the domestic production, this would
not imply that the determination of injury must be based necessarily on data pertaining to domestic
producers representing that proportion.
                                                     
32 In addition, the EC would like to point out that its interpretation is also warranted in view of the fact
that a joint injury analysis is possible or even wa rranted when anti-dumping and anti-subsidy proceedings
concerning the same country run in parallel.  The salmon Panel has recognized that the injury analysis can becarried out jointly for both such proceedings (see paras 572 and 573 of the Panel Report on United States -
Imposition of Anti-Dumping Duties on Imports of Fresh Atlantic Salmon from Norway , ADP/87, adopted on 27
April 1994).  Indeed, since the starting point for such analysis is the volume and the prices of the importsconcerned (and not the level of dumping or subsidization), it does not seem appropriate to distinguish atcompany level.  If the EC’s interpretation were not accepted, two different injury examinations would have to becarried out if a company is found to be dumping but not to be subsidized or vice versa .  This makes injury
examinations often unworkable and that cannot have been the intention of the drafters of the Anti-Dumping
Agreement .
33 Brazil’s Submission, para. 509.
34 Ibid., para. 510.
35 Ibid., paras 512-519.WT/DS241/R
Page C-15
(a) The meaning of “a major proportion”
48. Brazil asserts that the ordinary meaning of the term “major proportion” is “the majority”.36
That is indeed one of the ordinary meanings of “major”, but not the only one.  The New Shorter
Oxford Dictionary  gives another meaning of “major”:  “unusually important, serious or significant”.37
Similarly, Le Petit Robert  defines the word “majeur” as “très grand, très important”.38
49. The EC submits that in the context of Article 4.1 the phrase “a major proportion” does not
mean “the majority”, but rather an important part.  Article 4.1 alludes to “ a major proportion”, rather
than “ the major proportion”.  The use of the indefinite article “a” indicates that there may be more
than one “major proportion” and, therefore, that it is not necessary that “a major proportion”
represents “the majority” of domestic production.  Confirmation of this is provided by the Spanish
version of the Anti-Dumping Agreement , where the term “major” has been rendered as “importante”.
50. The EC’s interpretation is supported by Article 5.4, which provides that an investigation shall
not be initiated unless the authorities determine that the application has been made “by or on behalf of
the domestic industry”.  Article 5.4  goes on to state that
The application shall be considered to have been made “by or on behalf of the
domestic industry” if it is supported by those domestic producers whose collective
output constitutes more than 50 per cent of the total production of the like product
produced by that portion of the domestic industry expressing either support for or
opposition to the application.  However, no investigation shall be initiated when
domestic producers expressly supporting the application account for less than 25 percent of the total production of the like product produced by the domestic industry.
51. Thus, in accordance with Article 5.4, an application may be considered to have been made
“on behalf of the domestic industry” even if the producers which support it represent less than 50 per
cent of the domestic production.  The term “domestic industry” has the same meaning throughout the
Anti-Dumping Agreement.
39   If a number of producers which accounts for less than 50 per cent of the
domestic production may, in certain circumstances, be considered to constitute “a major proportion”
of the domestic production for the purposes of Article 5.4, then the same should be true also for thepurposes of the other provisions of the Anti-Dumping Agreement .
52. Moreover, it would be illogical to allow the opening of an investigation on the basis of an
application filed by producers which represent less than 50 per cent of the domestic production only
to conclude subsequently that the injury suffered by those producers does not, by reason of thepercentage of the domestic production accounted by those producers, amount to injury to the
“domestic industry”.
(b) Must the injury determination be based on data for producers representing a “major
proportion” of domestic production ?
53. Brazil assumes that if the term “a major proportion” means at least 50 per cent  of the
domestic production, then the fact of basing the injury analysis on data for producers which represent
less than that percentage amounts necessarily to a violation of Article 4.1.
                                                     
36 Brazil’s Submission, para. 514.
37 The New Shorter Oxford Dictionary, Clarendon Press Oxford, 1993.
38 Le Petit Robert, 1976.
39 Cf. The introductory clause of Article 4.1 (“For the purposes of this agreement…).WT/DS241/R
Page C-16
54. As explained above, the EC disagrees with the premise of Brazil’s claim, i.e. that “major
proportion” means at least 50 per cent.  In any event, the EC takes issue also with the consequence
attached by Brazil to that premise.  The EC submits that, even if “a major proportion” meant at least
50 per cent of the domestic production, there are circumstances in which the authorities could base aninjury finding on data pertaining to producers accounting for less than that percentage.
55. In the first place, if a domestic producer which is part of the domestic industry fails to
cooperate in the investigation, as indeed happened in the case under consideration, the authorities
may, in accordance with the provisions of Article 6.8 and Annex II, resort to “facts available” in orderto establish whether such producer has been injured.  For that purpose, the relevant “facts available”
may include the data collected from other producers which have co-operated in the investigation.
56. Second, when assessing the state of the domestic industry, the authorities may resort to
sampling techniques.  In other words, the investig ating authorities may consider that data for some
domestic producers are representative of the state of the whole of the domestic industry.  The
possibility to use sampling techniques is expressly envisaged in Article 6.10 with respect to the
dumping determination.  There is no reason why similar sampling techniques should not be allowed
also for the purposes of the injury determination, subject to the general requirement of Article 3.1 that
the determination of injury must be based on “positive evidence” and involve an “objectiveexamination” of the relevant facts.WT/DS241/R
Page C-17
ANNEX C-3
THIRD PARTY SUBMISSION OF GUATEMALA
(9 September 2002)
INTRODUCTION
1. Guatemala presents this third-party submission because of its systemic interest in the correct
interpretation of the Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994 (hereinafter "the Anti-Dumping Agreement").
2. The Government of Guatemala understands that most of the procedural errors arising in the
course of anti-dumping investigations are due to the very complexity of the procedure, with whichMembers that are only sporadically involved in its application are not usually familiar.  However,
Guatemala holds the view that, in implementing such measures, the Members must fully guarantee
observance of the rules of the WTO Agreements governing such mechanisms.
3. Many of the issues in this dispute refer to factual points on which Guatemala is not in a
position to comment.  Guatemala will therefor e limit itself to addressing a matter of legal
interpretation stemming from its interest.  In any case, it reserves the right to amplify the views putforward in this submission.
ARTICLE 4.1 OF THE ANTI- DUMPING AGREEMENT
4. The Spanish version of Article 4.1 establishes that:
"A los efectos del presente Acuerdo, la expresión “rama de producción nacional” se
entenderá en el sentido de abarcar el conjunto de los productores nacionales de los
productos similares, o aquellos de entre ellos cuya producción conjunta constituya
una proporción importante de la producción nacional total de dichos productos."
5. The English version of Article 4.1 establishes that:
"For the purposes of this Agreement, the term “domestic industry” shall be
interpreted as referring to the domestic producers as a whole of the like products or to
those of them whose collective output of the products constitutes a major proportionof the total domestic production of those products."
ARGUMENTS OF BRAZIL
6. In its first written submission, Brazil notes that Article 4.1 defines the term "domestic
industry" as the domestic producers as a whole of the like products or those of them whose collectiveoutput of the products constitutes a major proportion of the total domestic production of those
products.
1
                                                     
1 Paragraph 511 of Brazil's first written submission.WT/DS241/R
Page C-18
7. Brazil also notes that the issue before the Panel is whether 46 per cent of the total domestic
production of poultry in Argentina constitutes a major proportion of the total domestic production of
that product.2
8. Brazil then suggests that, in order to examine the issue, the Panel must interpret the meaning
of the term "major proportion" in Article 4.1 of the Agreement.3
9. In paragraph 514 of its first written submission, Brazil notes that:
"According to ordinary meaning inte rpretation, the term "major part" 4 is defined as
"the majority" 5.  "Majority" is understood to mean "the greater number or part" 6.
From these definitions, the phrase "major proportion" can be understood as the
greater part in relation to the whole.  If the whole in question is 100 per cent of the
total domestic production of the like product, 46 per cent cannot be considered as thegreater part in relation to the whole."
10. In the light of the foregoing, Brazil notes that Article 4.1 provides that the domestic industry
can be represented by 100 per cent of the domestic pr oducers of the like products or by those of them
whose production, jointly considered, constitutes more than half of the domestic production.  If the
collective output of those whose domestic production, jointly considered, is less than 50 per cent ofthe total domestic production, the domestic producers do not comply with the definition of Article 4.1
of the Agreement.
11. Consequently, Brazil argues that the CNCE’s determination that 46 per cent of the collective
output of those whose production, jointly considered, of the like product constitutes a majorproportion of the collective output of the domestic producers is inconsistent with Article 4.1 of the
Agreement.
 7
ARGUMENTS OF ARGENTINA
12. In paragraphs 302 to 304 of its first written submission, Argentina notes that:
"302.  The definition of 'domestic industry' was consistent with the WTO rules
because Argentina considers that 46 per cent of total production is "a major
proportion".  Brazil's contention that "a major proportion" can only represent at
least 50 per cent of the domestic industry is a subjective opinion and is not based on
Article 4 of the Anti-Dumping Agreement.
303.  According to Record No. 576, the firms concerned represented 46.2 per cent of
the domestic industry in 1998, so the CNCE considered that it had complied with the
requirement in Article 4.1 of the Anti-Dumping Agreement.
304.  For the Argentine Republic, as for other WTO Members (in accordance with
previous, consistent decisions in this respect), 46 per cent represents a major
                                                     
2 Paragraph 512 of Brazil's first written submission.
3 Paragraph 513 of Brazil's first written submission.
4 The terms "proportion" and "part" are viewed and used as synonyms.  Concise Oxford Dictionary –
Ninth Edition, Oxford University Press, 1995, pages 995 and 1098.
5 Concise Oxford Dictionary – Ninth Edition, Oxford University Press, 1995, page 822.
6 Concise Oxford Dictionary – Ninth Edition, Oxford University Press, 1995, page 822.
7 Paragraph 519 of Brazil's first written submission.WT/DS241/R
Page C-19
proportion because it is not by accident that the Anti-Dumping Agreement did not
establish a fixed percentage in order to s how what is meant by 'major proportion'."
GUATEMALA'S SUBMISSION
13. Guatemala concurs with paragraph 517 of Brazil's first written submission, stating that the
establishment of the domestic industry is important, particularly with respect to the injury analysis.
Because the injury examination takes into account the impact of the dumped imports on the domestic
industry, if the domestic industry is not properly constituted, the impact examination in the injuryanalysis may be flawed.
14. Guatemala also holds the view that the requirement to make a determination of injury to the
domestic industry read in the light of the definition of the domestic industry of Article 4.1 implies that
the injury must be analysed with regard to the domestic producers as a whole or to those of themwhose collective output constitutes a major proportion of the total domestic production of those
products.
15. The injury test being one of the prerequisites for the adoption of anti-dumping measures, the
taking of such measures must logically encompass the producers that are, or deem themselves to be,injured by dumping practices, hence the importance of Article 4.1 in defining what is meant by
"domestic industry".
16. There is a difference between the Spanish and the English version of paragraph 1 of Article 4.
Indeed, the words "proporción importante" in the Spanish version are translated as "major proportion"in the English version.
17. According to Brazil's interpretation, the term "m ajor proportion" is defined as "the majority",
which is understood to mean "the greater number or part".
18. According to that interpretation, the phrase is  understood to mean the greater part in relation
to a "whole".  Brazil suggests that the "whole" in question is 100 per cent of the total domesticproduction of the like products.
19. In other words, Brazil understands Article 4.1 to provide that the domestic industry can be
represented by 100 per cent of the domestic producers of the like products or by those of them whose
production, jointly considered, constitutes more than half of the domestic production.  Thus, if thecollective output of those whose domestic production, jointly considered, is less than 50 per cent of
the total domestic production, the domestic producers do not comply with the definition of Article 4.1
of the Anti-Dumping Agreement.
20. Guatemala understands the term "major" to mean "muy importante, serio, a fondo"
8 (very
important, serious, thorough).  Likewise, it understands the term "importante" to mean "la cualidad de
lo importante, de lo que es muy conveniente o interesante, o de mucha entidad o consecuencia"9 (the
quality of that which is important, very appropriate or interesting, or of considerable importance or
consequence)."
21. In view of the above, Guatemala acknowledges that the term "major" used in the English
version could involve a more exacting criterion than that implied by the term "importante" used in the
Spanish version.  However, it is of the opinion that the term "importante" in the Spanish version of
                                                     
8 Oxford Spanish Dictionary, Oxford University Press, 2001, page 1293.
9 Diccionario de la Lengua Española. Real Academia Española, XXII Edición, 2001, page 1255.WT/DS241/R
Page C-20
Article 4.1 could on no account be defined as representing more than half of a "whole", as Brazil
suggests.
22. Guatemala considers that this difference should not be interpreted as Brazil has suggested,
because this would have significant practical implications.
23. Attempts to find a solution should in any event be based on the recognition that the Article in
question does not expressly establish any percentage indicative of a "proporción importante" or a
"major proportion."
24. For the Argentine Republic, as for other WTO Members (in accordance with previous,
consistent decisions in this respect), 46 per cent represents a major proportion ("proporción
importante").  In this respect, Guatemala considers that the practice of the Members does not, in and
of itself, guarantee the consistency of a measure with a WTO Agreement.
25. Guatemala understands that the aforementioned provision leaves the authority some room for
discretion in determining, with regard to the facts and in the light of the circumstances specific to each
industry, what is meant by the expression "domestic industry".  We thus consider that this expression
encompasses a great deal more than the definition of a percentage.
26. Moreover, the Report of the Group of Experts that examined anti-dumping and countervailing
duties states the following:
"The Group then discussed the term "industry" in relation to the concept of injury and agreed that,
even though individual cases would obviously give rise to particular problems, as a general guiding
principle judgements of material injury should be related to total national output of the likecommodity concerned or a significant part thereof."
10  (Emphasis added).
27. It seems to us that Article 4.1 allows the investigating authority to determine, depending on
the complexity of the case, what is meant by the phrase " those of them whose collective output of the
products constitutes a major proportion of the total domestic production of those products ."  The
investigating authority's discretionary power is no t unlimited, however, since it would not be able to
invoke this phrase alone.
28. Likewise, our understanding is that this provision is not intended to give the investigating
authority unlimited discretion in the determination of the domestic industry and that such adetermination must necessarily be examined in relation to the notion of injury, without prejudice to
the other assumptions to be gathered and verified prior to the final determination of injury.
29. Guatemala thus urges the Panel to refrain from implying, in any context whatsoever, that the
reference to "a major proportion" in Article 4.1 requires reaching the percentage of 50 per cent.
30. In any event, and pursuant to the examination rule in Article 17.6 of the Anti-Dumping
Agreement, the Panel can assess the grounds for th e Argentine authority's decision according to the
decision's degree of consistency with that which an  unbiased and impartial authority would have made
in this case.
                                                     
10  L/978, adopted on 13 May 1959, 8S/145, paragraph 18.WT/DS241/R
Page C-21
ANNEX C-4
THIRD PARTY SUBMISSION
OF PARAGUAY
(9 September 2002)
Background
1. At its meeting on 17 April 2002, the DSB established a panel in accordance with Article 6 of
the DSU to examine the matter referred to the DSB by Brazil (WT/DS241/3).
2. At that meeting, the parties to the dispute also agreed that the Panel should have standard
terms of reference. The terms of reference are, therefore, the following:
"To examine, in the light of the relevant provisions of the covered agreements cited by Brazil
in document WT/DS241/3, the matter referred by Brazil to the DSB in that document, and to
make such findings as will assist the DSB in making the recommendations or in giving therulings provided for in those agreements."
3. At that meeting, Paraguay reserved the right under Article 10 of the DSU to participate as a
third party in the procedure.
4. In this submission, Paraguay wishes to convey its preliminary views on the case, without
prejudice to any other oral or written submission it may make at the substantive meeting of the Panel
with the third parties.
Rules and principles of public international law relevant to and applicable in this case
5. Paraguay considers that, in accordance with the general principles of public international law,
this case is "res judicata" because it has already been brought under the dispute settlement procedure
established within the framework of MERCOSUR, and under the Brasilia Protocol in particular.
6. In this regard, Article 21
1 of the Brasilia Protocol clearly establishes the unappealable and
binding nature of awards rendered by the Ad Hoc Arbitral Tribunal, which are deemed to be "resjudicata" – a principle that should prevail in addressing this case.
7. As noted in paragraph 20 of Argentina's written  submission, the fact that the States party to
MERCOSUR resorted to the Protocol of Brasilia mechanism demonstrates their full acceptance of
that mechanism as a part of the MERCOSUR legal framework and as a dispute settlement procedure
in totum , which is why it should be considered that the Award rendered by the MERCOSUR Ad Hoc
Arbitral Tribunal
2 gives res judicata effect to this case.
                                                     
1 Article 21
   1. The decisions of the Arbitral Tribunal cannot be appealed, and are binding on the State Parties
to the controversies from the moment the respective notification is received and will bedeemed by them to have the effect of res judicata.
   2. The decisions should be complied with within a time-limit of fifteen (15) days, unless the
Arbitral Tribunal fixes a different time-limit.
2 Award of the MERCOSUR Ad Hoc Arbitral Tribunal constituted to rule on the dispute between the
Federative Republic of Brazil and the Argentine Republic regarding the imposition of anti-dumping measuresWT/DS241/R
Page C-22
8. In Paraguay's view, it is also relevant to mention the signing of the Olivos Protocol for the
settlement of disputes within MERCOSUR among the four States party to MERCOSUR.  Although
not yet in force, the Protocol provides in Article 1.2 that:  " … Disputes within the scope of this
Protocol that can also be addressed under the dispute settlement system of the World Trade
Organization or those of other preferential trade arrangements entered into by the States Parties to
MERCOSUR on an individual basis may be brought before any one of those forums, at the
complainant's discretion.  Without prejudice to the foregoing, the parties to the dispute may jointly
agree on the forum.
Once a dispute settlement procedure has been initiated pursuant to the preceding paragraph,
none of the parties may resort to the mechanisms established in the other forums in respect of the
same subject-matter ."3
This instrument, negotiated and signed by the States Parties to MERCOSUR, allows them to
choose the forum in which they wish disputes to be settled, with the restriction constituted by the
exclusion clause, which stipulates that once a procedure has been initiated in one forum, this
precludes resorting to any of the other forums provided for in the Protocol.
9. Paraguay also wishes to draw the Panel's attention to a rule of public international law in
force, namely Article 18 of the Vienna Convention on the Law of Treaties of 1969, which reads as
follows:
A State is obliged to refrain4 from acts which would defeat the object and purpose of a treaty
when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to
ratification, acceptance or approval, until it shall have made its intention clear not to
become a party to the treaty;  or
(b) … ".
10. In view of the foregoing, Paraguay considers this case as having been subject to a prior
dispute settlement procedure, as recognized by both parties and resolved by a ruling that is binding on
and mandatory for those parties.  Hence this case should not be addressed by this Panel, for if it were,
this would constitute a violation of the principles and rules of public international law and failure toabide by decisions handed down by MERCOSUR institu tions, in this instance the award of an Ad Hoc
Arbitral Tribunal constituted under the Brasilia Protocol.
                                                                                                                                                                    
on exports of whole poultry from Brazil (Res. 574/2000) of the Ministry of the Economy of the Argentine
Republic.  Date:  21 May 2001.
3 Emphasis added.
4 Emphasis added.WT/DS241/R
Page C-23
ANNEX C-5
THIRD PARTY SUBMISSION OF THE UNITED STATES
(9 September 2002)
TABLE OF CONTENTS
Page
I. Introduction................................................................................................................. ..... C-24
II. Article 5.7 of the AD Agreement Does Not Require Members Deciding Whether
to Initiate an Anti-Dumping Investigat ion to Evaluate Dumping and Injury Data
from "Simultaneous" Time Periods............................................................................... C-24
III. The Term "A Major Proportion" In the Definition of the Domestic Industry in
Article 4.1 of the Agreement Does Not Mean "The Majority".................................... C-25
IV. A Member's Decision to Evaluate Certain Factors under Article 3.4 Using a Time
Period Different than That Used for Other Factors Would Not per se  Breach
Article 3.1.................................................................................................................... ...... C-26
V. An Investigating Authority's Failure to Discuss a Particular Article 3.4 Factor
Does Not Necessarily Breach Article 12.2.2................................................................... C-26
VI. The Panel Should Decline to Provide Views on the Proper Interpretation of
Article 18.2 of the DSU .................................................................................................... C-27
VII. Conclusion ................................................................................................................. ....... C-27WT/DS241/R
Page C-24
I. Introduction
1. The United States welcomes the opportunity to present its views in this proceeding on
Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil  (DS241).  The United States is
limiting its comments to certain issues relating to the proper legal interpretation of various articles of
the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
(the “AD Agreement”).1
II. Article 5.7 of the AD Agreement Does Not Require Members Deciding Whether to
Initiate an Anti-Dumping Investigation to Evaluate Dumping and Injury Data from
"Simultaneous" Time Periods
2. Brazil claims that Argentina breached Article 5.7 of the AD Agreement because its
investigating authorities evaluated dumping and injury data that covered non-identical time periods
when it determined whether to initiate the challenged investigation.2  Brazil’s argument is based on a
misinterpretation of the term “simultaneously” as that term is used in Article 5.7.
3. Article 5.7 states that in deciding whether to initiate an investigation, the “evidence of both
dumping and injury shall be considered simultaneously. . . .”  Brazil appears to believe that this
language obligates a Member to ensure that its investigating authorities consider dumping and injury
information from simultaneous ( i.e., identical) time periods.  Viewed in context, however, the term
“simultaneously” is linked to the term “considered,” not the term “evidence.”  Thus, the obligation in
Article 5.7 is to consider  the evidence of dumping and injury simultaneously (for example, in
concurrent investigations), not to consider evidence  of dumping and injury collected from
simultaneous (or identical) time periods.
4. As the Committee on Anti-Dumping Practices has recognized, the AD Agreement “does not
establish any period of investigation” or establish guidelines for determining an appropriate period ofinvestigation “for the examination of either dumping or injury."
3  The Committee has adopted a
non-binding recommendation, however, which calls for a twelve-month period of investigation for
analyses of dumping, and a three-year period of investigation for analyses of injury.4  On its face, the
Committee’s recommendation indicates the lack of any basis for requiring Members to examine
dumping and injury information from “simultaneous” time periods.  The lack of congruity in the
recommended time periods reflects the inherent differences in the nature of the analyses that
administering authorities conduct for determining the existence of dumping, on the one hand, andinjury, on the other.
5. For example, a Member’s determination of dumping normally need not consider trends over
time.  An injury determination, by contrast, will no rmally require an investig ating authority to gather
information covering more than one year in order to evaluate volume and price changes.  An
importing Member’s consideration of whether there is  sufficient evidence relating to injury, such as
whether there have been significant absolute or relative increases in the volume of dumped imports,
                                                     
1 The United States has not had an opportunity to review fully Argentina’s written submission in this
dispute and is therefore limiting itself to addressing Brazil’s written submission at this time.  The United Stateswill address Argentina’s written submission, as appropriate, at the first Panel meeting.
2 See, e.g.,  Brazil’s first written submission at para. 168.
3 Committee on Anti-Dumping Practices, Recommendation Concerning the Periods of Data Collection
for Anti-Dumping Investigations , G/ADP/6, adopted by the Committee on 5 May 2000.
4 Id.WT/DS241/R
Page C-25
must be made in the context of an appropriate time frame, which will almost always extend longer
than the period of investigation for making a dumping calculation.5
6. The US views on this issue are not meant to suggest, however, that an investigating authority
is free to examine dumping and injury information from entirely unrelated time periods.  Article 3.5
of the AD Agreement clearly requires a Member to  demonstrate a causal relationship between the
dumped imports and injury to the domestic industry.6  It is entirely possible that the particular time
periods that a Member chooses to examine in a particular investigation could call into questionwhether the Member has demonstrated such a causal link.  Article 5.7 of the AD Agreement,
however, does not bear on this matter.
III. The Term "A Major Proportion" In the Definition of the Domestic Industry in
Article 4.1 of the Agreement Does Not Mean "The Majority"
7. Article 4.1 of the AD Agreement defines the term “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
production of those products . . . .
(emphasis added).  Brazil claims that the term “major proportion” is synonymous with “majority,”
and that Argentina breached Article 4.1 because its investigating authority examined data for 46 per
cent of the domestic industry, which is less than a majority.
7  The United States respectfully submits
that Brazil's argument is based upon a misinterpretation of Article 4.1.
8. As an initial matter, Article 4.1 is just a definition.  As a definition, it does not impose an
independent obligation on WTO Members.8  For this reason alone, there is no basis for Brazil's claim
that Argentina's injury analysis breached Article 4.1.
9. Even if this were not the case, however, Br azil's claim would find no support in the text of
Article 4.1.  First, the AD Agreement does not define the term “major,” and the ordinary meaning of
the term is “[d]esignating the greater or relatively greater  of . . . two things” – the opposite of
“minor."9  It can also mean “unusually important, serious, or significant."10  None of these meanings
necessarily connotes “the majority.”
10. Second, Brazil's argument that “major proportion” actually means “majority” directly
conflicts with the fact that the drafters were quite explicit, elsewhere in the Agreement, when they
intended to impose a majority requirement for a particular obligation.  Specifically, Article 5.4 of the
                                                     
5  Indeed, the effects of import volume increases or price undercutting often take longer than a year to
reach the level where they would be significant, and the impact of those effects on the domestic industry’scondition may take even longer to become apparent.  Furthermore, the fact that execution of sales in someindustries can take as long as a year, and that in some industries sales are made pursuant to annual contracts,further demonstrates the appropriateness of examining a multi-year period in injury investigations.
6  Similarly, Article 5.2 of the AD Agreement requires an application for an investigation to include
evidence of dumping, injury, and causal link.
7  Brazil’s first written submission, paras. 511-519.
8  See Appellate Body Report on United States – Tax Treatment for “Foreign Sales Corporations”,
Recourse to Article 21.5 of the DSU by the European Communities , WT/DS108/AB/RW, adopted
29 January 2002, para. 85 (stating that the definition of the term “subsidy” in Article 1.1 of the Agreement on
Subsidies and Countervailing Measures  “does not impose any obligation on Members with respect to the
subsidies it defines.”).
9  The New Shorter Oxford English Dictionary , vol. 1 at 1670 (1993) (emphasis added).
10  Id.WT/DS241/R
Page C-26
Agreement provides that an application is made “by or on behalf of the domestic industry” if it is
supported by those domestic producers whose collective output constitutes “more than 50 per cent” of
the total production of the specified portion of the industry.  Unlike Article 4.1, Article 5.4 clearly
imposes a majority requirement.  Article 4.1 establishes a different standard: “a major proportion.”
11. Viewing the term in context also provides s upport for the conclusion that “major proportion”
was not meant to establish a “majority” requirement.  The term appears in Article 4.1 as an alternative
to the industry “as a whole.”  The definition reflects the reality in many anti-dumping investigations
that it will not be possible to obtain the requested information from all domestic producers of the likeproduct, and confirms that an injury determination would not be rendered inadequate simply because
an investigating authority was unable to obtain information from all such producers.  The AD
Agreement does not establish a numerical benchmark for what constitutes a “major” proportion of a
domestic industry.  It will vary from case to case.
IV. A Member's Decision to Evaluate Certain Factors under Article 3.4 Using a Time
Period Different than That Used for Other Factors Would Not per se  Breach Article 3.1
12. Brazil claims that Argentina committed a per se  breach of Article 3.1 by evaluating certain
Article 3.4 factors over the period January 1996 thr ough June 1999, and other factors over the period
January 1996 through December 1998.
11  The United States takes no position on the question whether
Argentina's decision to base its analysis on two different time periods breached its obligations in the
particular case at issue.  The United States disagrees, however, with Brazil's contention that an
analysis of differing time periods cannot  be objective, and thus per se  breaches Article 3.1.
13. The panel report in United States – Hot Rolled Steel is instructive in this regard.12  In that
investigation, the United States gathered information on all factors over the entire three year period of
investigation, and it evaluated the various factors, at various instances, over the three year period.13
With regard to certain factors pertaining to impact, however, the United States compared data for1998 with data for 1997, without explicitly discussing the data for 1996.
14  The Panel concluded that
the United States’ failure to explicitly address the data for 1996 did not “undermine the adequacy of
the [United States’] evaluation of the relevant economic factors, in light of its analysis andexplanations, so as to render its examination of the impact of dumped imports on the domestic
industry inconsistent with the AD Agreement."
15   The Panel’s finding is consistent with the US view
that the use of differing time periods to evaluate injury does not per se mean the investigating
authority failed to carry out an objective examination.
V. An Investigating Authority's Failure to Discuss a Particular Article 3.4 Factor Does Not
Necessarily Breach Article 12.2.2
14. Brazil asserts (claims 38-40) that Argentina failed to evaluate or refer to several of the factors
set out in Article 3.4, and that Argentina's failure to do so breached Articles 3.1, 3.4, and 12.2.2 of theAgreement.
16  The United States agrees with Brazil that the AD Agreement requires an investigating
authority to evaluate each of the Article 3.4 factors, and we take no position on the issue whether
Argentina did, in fact, evaluate each of the factors in the challenged investigation.
                                                     
11  See Brazil’s first written submission, paras. 425-430.
12  Panel Report on United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from
Japan, WT/DS184/R, adopted 23 August 2001 (“ United States – Hot Rolled Steel” ).
13  Id. at para. 7.227.
14  Id. at para. 7.228.
15  Id. at para. 7.234.
16  Brazil's first written submission, paras. 475-507.WT/DS241/R
Page C-27
15. The United States does not agree, however, that a failure to refer to a particular factor in the
published determination necessarily breaches Article 12.2.2.  Article 12.2 requires only that the
authorities set forth “in sufficient detail the findings and conclusions reached on all issues of fact and
law considered material by the investigating authorities."17  While all enumerated factors must be
evaluated, not all are necessarily material in any particular case.
16. Given the requirement to evaluate all of the Article 3.4 factors, however, it should be
discernible from the published determination that the authorities have done so.  This obligation may
be achieved when a determination, through its demonstration of why the authorities relied on thespecific factors they found to be material in the case, thereby discloses why other factors on which
they did not make specific findings were accorded little weight or were deemed not relevant at all.
“[A]s long as the lack of relevance or materiality of the factors not central to the decision is at least
implicitly apparent from the final determinati on, the Agreement’s requirements are satisfied." 
18
VI. The Panel Should Decline to Provide Views on the Proper Interpretation of Article 18.2
of the DSU
17. In a letter dated 8 August 2002, Brazil submitted a letter to the Panel stating its intention to
release to the public a non-confidential version of its first written submission.  On 15 August 2002,
Argentina submitted a letter expressing its view that Brazil’s proposed action would be inconsistent
with Article 18.2 of the DSU.  On 21 and 23 August 2002, Brazil and Canada, respectively, submitted
letters opposing Argentina’s views.  Finally, on 27 August 2002, Argentina submitted a second letter
supporting the “spirit of transparency” and requesting the Panel’s views on the proper interpretationof Article 18.2.
18. The United States agrees with Brazil and Canada that nothing in Article 18.2 of the DSU
would prevent a Member from releasing its own WTO submissions to the public.  We have long done
so as a matter of course, and we would welcome a decision by Argentina to do the same.  Argentinadoes not need permission to make its own submissions available to the public.  The United States is
concerned, however, that Argentina’s request for th e Panel’s views on this matter is, in essence, a
request for an advisory opinion since there is no measure before the Panel. Furthermore, Article 18.2
is not within the Panel’s terms of reference.  The United States notes that to the extent that Argentina
is asking the Panel to interpret Article 18.2, that would be incompatible with the exclusive authority
of the Ministerial Conference and General Council under Article IX:2 of the Marrakesh Agreement
Establishing the World Trade Organization to interpret the WTO agreement.  We respectfully request
the Panel to decline Argentina’s request for views on the proper interpretation of Article 18.2.
VII. Conclusion
19. The United States thanks the Panel for providing an opportunity to comment on the issues at
stake in this proceeding, and hopes that its comments will prove to be useful.
                                                     
17  See Article 12.2 (emphasis added).
18 Panel Report on European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed
Linen from India, WT/DS141/R, adopted 12 March 2001, para. 6.163.WT/DS241/R
Page C-28
ANNEX C-6
THIRD PARTY ORAL STATEMENT OF PARAGUAY
(26 September 2002)
Mr Chairman,
As one of the four States party to MERCOSUR, Paraguay wishes to convey its views on this
case and defend the integration institutions created under the Treaty of Asunción of 1991, as
mentioned in our third party submission a few weeks ago.
Paraguay considers that, in accordance with the general principles of public international law,
this case is "res judicata" because it has already been brought under the dispute settlement procedure
established within the framework of MERCOSUR, and under the Brasilia Protocol in particular.
In this regard, Article 21 of the Brasilia Protocol clearly establishes the unappealable and
binding nature of awards rendered by the Ad Hoc Arbitral Tribunal, which are deemed to be "res
judicata" – a principle which my delegation considers should prevail in addressing this case.
As noted in paragraph 20 of Argentina's written  submission, the fact that the States party to
MERCOSUR resorted to the Protocol of Brasilia mechanism demonstrates their full acceptance of
that mechanism as a part of the MERCOSUR legal framework and as a dispute settlement procedure
in totum , which is why it should be considered that the Award rendered by the MERCOSUR Ad Hoc
Arbitral Tribunal gives res judicata effect to this case.
In Paraguay's view, it is also relevant to mention the signing of the Olivos Protocol for the
settlement of disputes within MERCOSUR among the four States party to MERCOSUR.  Although
not yet in force, the Protocol provides in Article 1.2 that:  " … Disputes within the scope of this
Protocol that can also be addressed under the dispute settlement system of the World Trade
Organization or those of other preferential trade arrangements entered into by the StatesParties to MERCOSUR on an individual basis m ay be brought before any one of those forums,
at the complainant's discretion.  Without prejud ice to the foregoing, the parties to the dispute
may jointly agree on the forum.
Once a dispute settlement procedure has b een initiated pursuant to the preceding
paragraph, none of the parties may resort to the mechanisms established in the other
forums in respect of the same subject-matter, … "
This instrument, negotiated and signed by the States Parties to MERCOSUR, allows them to
choose the forum in which they wish disputes to be settled, with the restriction constituted by the
exclusion clause, which stipulates that once a procedure has been initiated in one forum, thisprecludes resorting to any of the other forums provided for in the Protocol.
Paraguay also wishes to draw the Panel's attention to a rule of public international law in
force, on which my delegation bases the arguments set forth in this statement, namely Article 18 of
the Vienna Convention on the Law of Treaties of 1969, which reads as follows:WT/DS241/R
Page C-29
"A State is obliged to refrain from acts which would defeat the object and purpose of a
treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty
subject to ratification, acceptance or approval, until it shall have made its
intention clear not to become a party to the treaty; …"
In view of the foregoing, Paraguay considers this case as having been subject to a prior
dispute settlement procedure, as recognized by both parties and resolved by a ruling that is binding on
and mandatory for those parties.  Hence this case should not be addressed by this Panel, for if it were,
this would constitute a violation of the principles and rules of public international law and failure to
abide by decisions handed down by MERCOSUR inst itutions, in this instance the Award of an Ad
Hoc Arbitral Tribunal constituted under the Brasilia Protocol.
Lastly, Paraguay trusts that this Panel will rule on the arguments put forward both by my
delegation and by that of the Republic of Argentina, for my country's government accords vital
importance to the institutions created under the international agreements and treaties to which it is
party, and in this case in particular, to the MERCOSUR institutions.  Compliance with andrecognition of these institutions strengthens, and a ssures predictability and security for, the Members
in general and the multilateral trading system in particular.
Thank you.WT/DS241/R
Page C-30
ANNEX C-7
THIRD PARTY ORAL STATEMENT OF CHILE
(26 September 2002)
Thank you, Mr Chairman.
1. Chile thanks the Panel for the opportunity to present its views in this dispute.  We are making
use of the right provided for in Article 10 of the Dispute Settlement Understanding, on account of our
systemic interest in the correct application of Article VI of the GATT 1994 and the Anti-Dumping
Agreement in order to avoid abusive use of anti-dumping measures as protectionist barriers to trade.
2. We do not wish at this stage to take any view on Brazil's numerous complaints, most of which
concern procedural aspects that would require us to undertake a more careful study of the
investigation conducted by the Argentine authorities.
3. Instead, Chile would like to refer to one of the preliminary arguments put forward by
Argentina in its first written submission, which is that an international tribunal has ruled on this same
case, which would disqualify this Panel from hearing Brazil's complaint.
4. Without knowing the details of the arbitral procedure followed by the parties in dispute under
the MERCOSUR dispute settlement rules, Chile understands, on the one hand, that the Arbitral
Tribunal ruled against Brazil because no anti-dumping disciplines exist in the MERCOSUR
framework and, on the other, that there is no precedent of Brazil having renounced its rights before
the WTO, and specifically that to invoke the WTO dispute settlement mechanism, as might have been
the case if the Olivos Protocol, which contains a forum exclusion clause ( cláusula sobre opción
excluyente de foro ), had been in force.
5. On that understanding, and in the absence of legal identity, Brazil legitimately brought its
subsequent complaint before the forum in which anti-dumping disciplines impose obligations on
Argentina and Brazil, and the rest of the WTO Members.
6. What has been invoked in this dispute is the violation or failure to abide by the rules of the
WTO, which is a distinct regulatory system that imposes its own rights and obligations on its
Members, and these are different from the rights and obligations imposed by a bilateral agreement.
7. Consequently, Chile considers that Argentina's preliminary claim is unfounded since Brazil
has invoked, before the WTO and this Panel in particular, the violation of obligations undertaken byArgentina within the framework of the WTO Agreements – and the Anti-Dumping Agreement and the
GATT 1994 in particular – and not of obligations  entered into in th e MERCOSUR framework.
Accordingly, this Panel is the forum with jurisdic tion to hear the complaint lodged by Brazil in its
request for the establishment of a panel and in its first written submission.WT/DS241/R
Page C-31
ANNEX C-8
THIRD PARTY ORAL STATEMENT OF
THE UNITED STATES
(26 September 2002)
Mr Chairman, members of the Panel,
1. It is my honour to appear before you to present the views of the United States as a third party
in this proceeding.  As the Panel will recall, the United States has already filed a third-partysubmission in this dispute.  Today, my comments will be limited to Argentina’s preliminary request
that the Panel not address any of Brazil’s claims.  We would be happy to receive any questions the
Panel may have on either our written submission or our statement today.
Preliminary Objection
2. Mr. Chairman, in Argentina’s first written submission, Argentina argues that the Panel should
refuse to make findings on the claims that Brazil has raised in this dispute.  In the view of the
United States, there is no basis in the DSU for the Panel to grant Argentina’s request.
3. Argentina argues that the Panel should refuse to make findings on Brazil’s claims because
Brazil previously challenged the Argentine meas ure under MERCOSUR dispute settlement rules.  In
Argentina’s view, the Panel must take account of those rules and consider the consequences of
Brazil’s decision to use them.  Alternatively, Argentina argues that the Panel should apply the
principle of estoppel because Brazil has, in the past, accepted the scope of those rules.  Mr. Chairman,
neither argument provides a basis for the Panel to refuse to make findings on Brazil’s claims.
4. Turning first to Argentina’s initial point, th e United States respectfully submits that the
MERCOSUR dispute settlement rules are not within th e Panel’s terms of reference.  Article 7.1 of the
DSU makes quite clear that a Panel’s role in a dispute is to make findings in light of the relevant
provisions of the “covered agreements” at issue.  The Protocol of Brasilia  is not a covered agreement,
and Argentina has not claimed that Brazil’s actions with respect to the Protocol  breach any provision
of a covered agreement.  Rather, Argentina’s claim appears to be that Brazil’s actions could be
considered to be inconsistent with the terms of the Protocol .  A claim of a breach of the Protocol  is
not within this Panel’s terms of reference, and there are no grounds for the Panel to consider this
matter.  Argentina may, however, be able to  pursue that claim under the MERCOSUR dispute
settlement system.
5. Turning to Argentina’s second point, its request for a finding of estoppel against Brazil, the
United States first notes that this alternative claim again appears to relate to Brazil’s obligations under
MERCOSUR rather than to any provision of the DSU or the other covered agreements.  As a result,
the matter is not within the Panel’s terms of reference and the Panel has no basis for making the
requested finding.  The United States also disagrees with Argentina that the Panel may apply what
Argentina calls the principle of estoppel.  The fact that Argentina cites to no textual basis for itsrequest reflects the fact that Members have not consented to provide for the application of any suchWT/DS241/R
Page C-32
principle of estoppel in WTO dispute settlement.  The term estoppel appears nowhere in the text nor
does Argentina cite to any provision which in substance provides Argentina the type of defense it
asserts.
6. The United States also notes that the lack of any textual basis is reflected in the fact that no
panel to date has applied a principle of estoppel.  Moreover, there is no basis for attempting to import
into WTO dispute settlement proceedings legal concepts with no grounding in the DSU.  The lack of
any textual basis is further emphasized by the lack of consistent description of the concept when
panels have had occasion to discuss estoppel in the past.  In Bananas I ,  for example, the panel stated
that estoppel can only “result from the express, or in exceptional cases implied, consent of the
complaining parties.”1  In Asbestos and Guatemala Cement , by contrast, the panels stated that
estoppel is relevant when a party “reasonably relies” on the assurances of another party, and then
suffers negative consequences resulting from a change in the other party’s position.2  T h e s e
inconsistencies illustrate the dangers of seeking to identify purportedly agreed-upon legal concepts
beyond the only source all Members have agreed to – the text of the DSU itself.
7. Finally, Argentina’s citation of Article 3.2 of the DSU in support of its position is misplaced.
By its plain terms, Article 3.2 is limited to the rules of interpretation  used to clarify the existing
provisions of the WTO Agreement .  Argentina’s request that the Panel refuse to consider Brazil’s
claims does not present an issue of the proper interpretation of a provision of the WTO Agreement .
8. For the foregoing reasons, the United States respectfully urges the Panel to reject Argentina’s
request that it not consider Brazil’s claims.
Conclusion
9. This concludes my presentation.  Thank you again for this opportunity to express our views.
                                                     
1 See Third Party Submission of the European Communities , citing Report of the Panel on EEC –
Member States’ Import Regimes for Bananas , DS32/R, unadopted, para. 361.
2 See Report of the Panel on European Communities – Measures A ffecting Asbestos and Asbestos-
Containing Products , WT/DS135/R, adopted April 5, 2001, para. 8.60 (citations omitted); Panel Report on
Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico , WT/DS156/R,
adopted 17 November 2000, para. 8.23-24.  One could also argue that these panels are describing the concept of“detrimental reliance.”WT/DS241/R
Page C-33
ANNEX C-9
THIRD PARTY ORAL STATEMENT OF CANADA
(26 September 2002)
Thank you Mr. Chairman.
In starting, I would like to express Canada’s appreciation and thank the Members of the Panel
for having accepted to take on the responsibility of aiding the Parties in resolving this dispute.
Canada made a written Third Party submission in this matter on 5 September 2002.  In that
submission, Canada limited its arguments to the interpretation of Articles 9.2 and 9.3 of the
Antidumping Agreement.
Also, 23 August, Canada submitted a letter to the Chairman, outlining Canada’s position with
respect to the procedural issue that arose between the Parties pertaining to the public release of a
Party’s own written submissions.
As you may recall, in its written Third Party submission Canada indicated that it may wish to
raise further substantive points at a later time.  However, Canada has decided to limit its Third Partysubmissions in this matter to what is contained in its two previous written communications to the
Panel.
Nonetheless, although Canada does not wish to raise any further substantive points at this
time, I would be pleased to receive from the Panel or the Parties any questions regarding Canada’spositions.
Thank you Mr. Chairman.WT/DS241/R
Page C-34
ANNEX C-10
THIRD PARTY ORAL STATEMENT OF
THE EUROPEAN COMMUNITIES
(26 September 2002)
I. INTRODUCTION
1. The European Communities (the “EC”) thanks th e Panel for this opportunity to submits its
views orally in this dispute.
2. In its written submission, the EC has limited its comments to certain issues of legal
interpretation. Specifically, the EC has argued that:
• the Panel should dismiss Argentina’s preliminary objection based on the existence of
an arbitration award issued by a MERCOSUR Ad Hoc Arbitration Tribunal with
respect to the same anti-dumping measure;
• in so far as the issue arises in connection with Claim 21 , the Panel should confirm the
interpretation of Article 6.9 made by the panel in Guatemala – Cement  II  to the
effect that the disclosure obligation imposed by that provision cannot be satisfied
simply by allowing access to the file;
• Article 2.4 does not address the issue raised by Brazil under Claim 24 ;
• contrary to Brazil’s  Claims 28 and 29 , the imposition of a variable duty equal to the
difference between the normal value established during the investigation and theexport prices of the shipments made after the imposition of the duties is not
inconsistent with Articles 9.2 and 9.3;
• the term “dumped imports”, as used in Article 3, may be interpreted as referring to all
imports from the country concerned, contrary to  Brazil’s Claims 32, 33, 34, 35 and
36; and  
• contrary to Brazil’s  Claim 41 ,  the term “major proportion” used in Article 4.1 does
not mean at least 50 per cent of the domestic production, but rather an important
proportion thereof, which may be less than 50 per cent.
3. In our statement of this morning we will not repeat the comments already made in our written
submission. Instead, we will comment briefly on some of the arguments submitted by the other third
parties to this dispute.WT/DS241/R
Page C-35
II. ARGUMENT
A. ARTICLE 18.2 DSU
4. The EC agrees with Canada1 and with the United States2 that Article 18.2 of the DSU  does not
prevent Brazil from making its written submissions available to the public.
5. The EC would recall, nevertheless, that the ri ght of a Member to disclose its own submissions
to the public is subject to the third sentence of Article 18.2, which provides that “Members shall treatas confidential information submitted by another Member to the panel … which that Member has
designated as confidential”. Therefore, to the extent that a Member’s submission incorporates or
refers to confidential information provided to the panel by another party to the dispute, such
information should be omitted from the version disclosed to the public or replaced by a non-
confidential summary requested from the party concerned in accordance with the fourth sentence ofArticle 18.2. We understand, however, that this issue does not arise here, as Argentina’s complaint
concerned Brazil’s first submission to the panel.
6. Also, to the extent that Brazil’s submission contained information received by the Brazilian
Government on a confidential basis from the Argentinean investigating authorities during theunderlying investigation, the Brazilian Government  would be bound to comply with any applicable
provisions of Argentinean law which protect such confidentiality. However, again, we understand that
this issue does not arise in this dispute. In any event, it would be beyond the Panel’s jurisdiction to
enforce the provisions of Argentinean law on confidentiality.
7. Finally, the EC also agrees with the United States
3 that the Panel should reject Argentina’s
request that the Panel gives its “opinion” on the correct interpretation of Article 18.2 of the DSU.4  As
noted by the United States5, it would be beyond the Panel’s terms of reference to give such an
advisory opinion.
B. RES IUDICATA AND ARTICLE 18 OF THE VIENNA CONVENTION
8. Paraguay has argued that, since under the Protocol of Brasilia  the award issued by an Ad Hoc
Arbitration Tribunal is binding upon the parties to the arbitration, it has the effect of res iudicata
between them, with the consequence that Brazil would be barred from bringing this dispute.6
9. As explained in our written submission, the EC  disagrees with that view. The existence of res
iudicata  requires identity between the claims. While the measure at issue in this dispute is the same as
the measure before the Ad Hoc Arbitration Tribunal in the case cited by Argentina and Paraguay, the
claims are different because they involve different legal bases. The claims before this Panel are based
on the WTO Agreement . In contrast, the claims ruled upon by the Ad Hoc Arbitration Tribunal were
based on MERCOSUR law.
10. Furthermore, the EC would recall that Article 23.1 of the DSU provides that:
When Members seek the redress of a violation of obligations or other nullification or
impairment of benefits under the covered agreements or an impediment to the
                                                     
1 Canada’s Letter to the Panel of 23 August 2002.
2 US Submission, para. 18.
3 Ibid.
4 Argentina’s Letter to the Panel of 27 August 2002.
5 US Submission, para. 18.
6 Paraguay’s Submission, para. 7.WT/DS241/R
Page C-36
attainment of any objective of the covered agreements, they shall have recourse to,
and abide by, the rules and procedures of this Understanding.
11. This suggests that the Members of the WTO are not free to refer the adjudication of a dispute
concerning their rights and obligations under the WTO Agreement  to a body outside the WTO. Thus,
although Article 25 of the DSU  allows Members to resort to arbitration as an alternative means of
dispute settlement, it envisages that such arbitration will take place “within” the WTO.
12. Paraguay further suggests that, by bringing this dispute, Brazil would have acted in violation
of Article 18 of the Vienna Convention on the Law of the Treaties , because the Protocol of Olivos
(which in its Article 1.2 requires the complainant to make a choice between bringing the dispute
before a WTO panel or a MERCOSUR Arbitration Tribunal) had already been signed before Brazil
brought this dispute, even if it has not entered into force yet.7  However, as noted in our written
submission, it seems that even if the Protocol of Olivos  had already entered into force, it would not
apply to the facts at issue. Article 50 of that protocol provides that:
Las controversias en trámite iniciadas de acuerdo con el régimen del Protocolo de
Brasilia se regirán exclusivamente por el mismo hasta su total conclusión.
13. It seems that, by the same logic, and indeed a fortiori , the Protocol of Olivos  cannot be
applied to disputes which have already been adjudicated under the Protocol of Brasilia  as of the date
of entry into force of the Protocol of Olivos . If the Protocol of Olivos , including its Article 1.2, was
not meant to apply to the current dispute, it is clear that, by bringing it before this Panel, Brazil cannot
defeat the object and purpose of that protocol.  The EC considers that, in view of that, this Panel need
not reach the issue of whether, by bringing a dispute in violation of Article 18 of the Vienna
Convention , a Member would act inconsistently with Article 3.10 of the DSU .
C. Article 5.7 of the Anti-Dumping Agreement
14. The EC agrees with the United States that the mere fact that the reference period used for the
purposes of the injury determination does not coincide with that used for the dumping determination
does not amount per se  to a violation of Article 5.7 of the Anti-Dumping Agreement.8  That provision
is concerned exclusively with the timing of the ex amination of dumping and injury and not with the
scope of  such examination.
Thank you for your attention.
                                                     
7 Ibid., para. 9.
8 US Submission, paras. 2-6.WT/DS241/R
Page C-37
ANNEX C-11
REPLIES OF THE EUROPEAN COMMUNITIES
TO QUESTIONS OF THE PANEL
(3 October 2002)
Question 1
Please comment on the distinction apparently made between the terms “written
submissions” and “statements of [a member’s] own positions” in the first two sentences ofArticle 18.2 of the DSU.
Reply
The DSU  does not limit in any manner the form, content or length of the “statements” referred
to in the second sentence of Article 18.2. Accordingly, a Member is free to make a “statement” of its
positions by disclosing its written submissions to the Panel.
Question 2
Please explain how your investigating authorities treat imports for the purpose of
investigating injury. In particular, does your investigating authority presume from the outset
that all imports are dumped?  Is so, what is the basis for such presumption, and is the
presumption rebuttable under any circumstances?  For example, is that presumption rebutted if
the investigating authority finds that imports from a given exporter are not dumped?
If your investigating authority does not pres ume from the outset that all imports are
dumped, how does your investigating authority distinguish between dumped and non-dumped
imports during its injury investigation?
If your investigating authority determines that imports from a given exporter are not
dumped, are imports from that exporter excl uded for the purpose of the Article 3 injury
determination.
Reply
In accordance with Article 5.7 of the Anti-Dumping Agreement , the EC authorities examine
simultaneously the existence of both dumping and injury.  The examination of injury must, of
necessity, be based on the assumption that all the imports under investigation are dumped.  If the
authorities did not make that assumption, it would be impossible to examine the existence of injury
simultaneously with the examination of dumping.  Inst ead, the authorities would have to wait until the
examination of dumping has been completed and a final determination has been reached with respect
to the existence of dumping  before starting the injury examination.
If, as a result of the dumping examination, the EC authorities reach a negative determination
of dumping for a country, the investigation will be terminated with respect to that country and theWT/DS241/R
Page C-38
imports from that country “decumulated” from the imports of the other countries under investigation
for the purposes of the injury determination.
As explained in paragraphs 41 to 44 of the EC’s first submission, the EC considers that the
determination of dumping is made with respect to countries and, therefore, that the authorities are
entitled to treat all imports from a given country as “dumped” for the purposes of Article 3, even if
one or more exporters from that country are found not to be dumping.
The exclusion from the injury examination of the imports from the exporters that have been
found not to be dumping would often require a substantial re-examination of the injury, contrary to
the requirement imposed by Article 5.7. This is an additional reason for considering that, as submitted
by the EC, the terms “dumped imports” in Article 3 must be interpreted as including all the imports
from a country.
Question 3
Is it possible to exclude non-dumped imports for the purposes of an injury
determination while still complying with the Arti cle 5.7 obligation to consider the evidence of
dumping and injury “simultaneously”.  Please explain.  Does the word “simultaneously” in
Article 5.7 mean that the determination of dump ing and injury must be made at exactly the
same point in time?  Please explain.
Reply
See above the answer to Question 2.WT/DS241/R
Page C-39
ANNEX C-12
REPLIES OF THE UNITED STATES TO
QUESTIONS OF THE PANEL
(17 October 2002)
Q1. Please comment on the distinction apparently made between the terms “written
submissions” and “statements of [a Member’s] own positions” in the first two sentences of
Article 18.2 of the DSU.
1. The second sentence of Article 18.2 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes  (“DSU”) recognizes that Members are entitled to release
“statements” of their own positions to the public.  The provision places no limitations on the form or
manner in which a Member may choose to do so, including by making its “submissions” available to
the public in their entirety.  Public disclosure of submissions contributes to better public
understanding of – and support for – the WTO dispute settlement system.
2. The ordinary meaning of the term “statement” supports the US interpretation.  The New
Shorter Oxford English Dictionary  defines the term in pertinent part as “A formal written or oral
account, setting down facts, an argument, a demand, etc.; esp. an account of events made to the police
or in a court of law.1   This is, in essence, what a Member does when it prepares a submission in a
WTO dispute:  It creates a formal written account  setting down arguments in support of its position.
That these “statements” also constitute “submissions” when Members provide them to panels does notmean they are no longer “statements” which may be disclosed to the public.
3. Finally, it is worth noting that panels routinely attach parties’ written submissions (or detailed
summaries of the same) to the final versions of their written reports before releasing the reports to the
public.  If Argentina’s interpretation of Article 18.2 were correct, panels have been breachingArticle 18.2 of the DSU whenever they have done so.
Q2. Please explain how your investigating authorities treat imports for the purpose of
investigating injury.  In particular, does your investigating authority presume from the outset
that all imports are dumped?  If so, what is  the basis for such presumption, and is that
presumption rebuttable under any circumstances?  For example, is that presumption rebutted if
the investigating authority finds that imports from a given exporter are not dumped?
If your investigating authority does not pres ume from the outset that all imports are
dumped, how does your investigating authority distinguish between dumped and non-dumpedimports during its injury investigation?
If your investigating authority determines that imports from a given exporter are not
dumped, are imports from that exporter excl uded for the purpose of the Article 3 injury
determination?
                                                     
1 The New Shorter Oxford English Dictionary 3037 (1993).WT/DS241/R
Page C-40
4. The investigating authority of the United States makes no presumption regarding whether
imports are dumped (or subsidized) at the outset of the investigation.  In the preliminary injury
determination, the US investigating authority makes a determination regarding the imports alleged  to
be dumped without presuming that the imports are dumped in fact.  In the final injury determination,the US investigating authority excludes from the volume of dumped imports merchandise that is
determined to have a zero or de minimis  rate of dumping.
Q3: Is it possible to exclude non-dumped import s for the purpose of an injury investigation
while still complying with the Article 5.7 obligat ion to consider the evidence of dumping and
injury “simultaneously”.  Please explain.  Does the word “simultaneously” in Article 5.7 mean
that the determinations of dumping and injury must be made at exactly the same point in time?
Please explain.
5. Article 5.7 of the Antidumping Agreement provides that:
The evidence of both dumping and injury shall be considered simultaneously ( a) in
the decision whether or not to initiate an investigation, and ( b) thereafter, during the
course of the investigation, starting on a date not later than the earliest date on which
in accordance with the provisions of this Agreement provisional measures may beapplied.
6. Addressing the Panel’s second question first, the use of the term “simultaneously” in
Article 5.7 does not mean that a Member must make its determinations of dumping and injury at the
same time.  The obligation in Article 5.7 is to simultaneously “consider” the evidence of dumping and
injury, not to make simultaneous “determinations” of dumping and injury.  The term “determination”is not even present in Article 5.7.  Moreover, the obligation to simultaneously consider both dumping
and injury is limited to the decision whether to initiate an investigation and then arises again only after
the date on which provisional measures may be applied.
7. With respect to the Panel’s first question, it is possible to exclude non-dumped imports for the
purpose of an injury determination while still co mplying with the Article 5.7 obligation to consider
the evidence of dumping and injury “simultaneously.”  Inherent to the exclusion of non-dumpedimports for purposes of an injury determination is that the final determination of dumping be made
before the final determination of injury.  However, the fact that determinations  are made at different
times does not prevent the simultaneous consideration  of evidence of dumping and injury “during the
course of the investigation.”  If a Member’s investigating authorities simultaneously consider the
evidence of dumping and injury “during the course of the investigation,” the authorities satisfy therequirement of Article 5.7.  As noted in response to question 2, there is no additional obligation to
make the determinations of dumping and injury simultaneously.
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