WT/DS206/R
Page B-1
ANNEX B
Third Parties' Submissions
Contents Page
Annex B-1 Third Party Submission of Japan B-2
Annex B-2 Third Party Submission of the European Communities B-5WT/DS206/R
Page B-2
ANNEX B-1
THIRD PARTY SUBMISSION OF JAPAN
(17 December 2001)
1. India claims that the US Investigating Authority should not have used “total facts available”
when it could have used “partial facts available” and respondent’s actual data on its US sales.1  This
claim is governed by Article 6.8 of the Agreement on Implementation of Article VI of GATT 1947(the “Agreement”), which establishes the exclusive conditions in which an investigating authority
may use “facts available.”  The Panel in Argentina – Ceramic Tiles from Italy  noted the exclusive
nature of Article 6.8:
[A]n investigating authority may disregard the primary source information and resort
to the facts available only under the specific conditions of Article 6.8 and Annex II of
the AD Agreement.  Thus, an investigating au thority may resort to the facts available
only where a party:  (i) refuses access to necessary information; (ii) otherwise fails to
provide necessary information within a reasonable period; or (iii) significantly
impedes the investigation.
2
Pursuant to Article 6.8, Annex II of the Agreem ent elaborates on the circumstances in which an
investigating authority may use facts available.
2. Japan takes no position on the ultimate conclusion whether the Investigating Authority’s use
of facts available, in the specific circumstances of this case, is consistent with the Agreement.  Japannotes, however, that in the course of defending its anti-dumping measures the United States has raised
several troubling legal arguments.  In the interests of the sound interpretation of the Agreement, Japan
respectfully submits the following comments about the construction of Annex II of the Agreement.
A. INVESTIGATING AUTHORITIES MUST CONSIDER DATA SUBMITTED BY A
RESPONDENT WHENEVER SUCH DATA CONFORMS WITH ANNEX II,
PARAGRAPH 3
3. Paragraph 3 of Annex II provides that “[a]ll information” that meets four conditions “should
be taken into account.”  The United States argues this paragraph is not mandatory.  According to the
United States, an investigating authority is free to disregard actual data submitted by a respondent in
favour of allegations made in the petition or other “facts available,” even when the data submittedmeets all four conditions of Paragraph 3.
3  Japan respectfully submits that this view is incorrect for
several reasons.
4. First,  this view assumes that the word “should” is hortatory, not mandatory.  However, the
word “should” is often used in a mandatory sense.  For example, the Appellate Body found the word
                                                     
1 See Indian Submission, para. 1.
2 Argentina – Definitive Anti-Dumping Measures on Imports of Ceramic Floor Tiles from Italy , Report
of the Panel, WT/DS189/R , at para. 6.20 (emphasis added; internal footnote omitted).
3 See US Submission, paras. 103-07.WT/DS206/R
Page B-3
“should” in Article 13.1 of the Dispute Settlement Understanding to be “used in a normative, rather
than a merely exhortative, sense” such that it creates “a duty and an obligation” on Members.4
5. Second,  this view disregards the context of Annex II, Paragraph 3.  The Annex arises out of
Article 6.8, which provides in relevant part, “The provisions of Annex II shall  be observed in the
application of this paragraph.”  The mandatory language in Article 6.8 supports a mandatory
construction of Annex II, Paragraph 3.  Indeed, based on this reasoning, another Panel concluded that
the use of the word “shall” in Article 6.7 of the Agreement warranted a mandatory construction of the
word “should” in Annex I.5
6. Finally,  this view is inconsistent with the decision of the Appellate Body in United States –
Hot-Rolled Steel from Japan .  The Appellate Body emphasized that investigating authorities are
“directed” to use data submitted by a respondent that satisfies Paragraph 3 of Annex II:  “In our view,
it follows that if these conditions are met, investigating authorities are not entitled to reject
information submitted, when making a determination.”6  Thus, the Appellate Body has considered the
exact provision at issue and found it to be mandatory.
B. INVESTIGATING AUTHORITIES ARE PROHIBITED FROM DISREGARDING
INFORMATION SUBMITTED BY A RESPONDENT THAT IS COOPERATING TO THE
BEST OF ITS ABILITY
7. Paragraph 5 of Annex II provides, “Even though the information provided may not be ideal in
all respects, this should not justify the authorities from disregarding it, provided the interested party
has acted to the best of its ability.”  Once again, the United States claims that the word “should” in
this context is not mandatory.7  That is, the United States asserts that investigating authorities may
disregard information submitted even when the respondent “has acted to the best of its ability.”
8. However, as mentioned, contrary to the US view, the word “should” may be mandatory and
often is mandatory as used in Annex II of the Agreement.  The US view is also inconsistent with the
statement of the Appellate Body that “paragraph 5 of Annex II prohibits  investigating authorities from
                                                     
4 Canada – Measures Affecting th e Export of Civilian Aircraft , Report of the Appellate Body,
WT/DS70/AB/R, AB-1999-2, para. 187; accord United States – Tax Treatment for Foreign Sales Corporations ,
Report of the Appellate Body, WT/DS108/AB/R, AB-1999-9, para. 111 n. 124 (“In our view, many bindinglegal texts employ the word ‘should’ and, depending on the context, the word may imply either an exhortationor express an obligation.”).
5 See Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico II ,
Report of the Panel, WT/DS156/R, para. 8.196 n. 854.  The Panel stated:
Paragraph 2 of Annex I provides that exporting Members "should" be informed of the inclusion of non-
governmental experts in a verification team.  It does not provide that exporting Members "shall" be soinformed.  Although the word "should" is often used colloquially to imply an exhortation, it can also beused "to express a duty [or] obligation" (See The Co ncise Oxford English Dictionary, Clarendon Press,
1995, page 1283).  Since Article 6.7 provides in relevant part that the provisions of Annex I "shall"
apply, we see no reason why Annex I (2) should not be interpreted in the mandatory sense.  In ourview, a hortatory interpretation of the provisions of Annex I would be inconsistent with Article 6.7.Furthermore, Guatemala has not argued that paragraph 2 of Annex I is merely hortatory.  Accordingly,we proceed on the basis that paragraph 2 of Annex I should be interpreted in a mandatory sense.
See also Ceramic Tiles , at 6.21, 6.50, 6.74, 6.79 (concluding, without specific analysis of the word “should,”
that Argentina violated Annex II, Paragraph 6 of the Anti-Dumping Agreement).
6 United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan , Report of
the Appellate Body, WT/DS184/AB/R, AB-2001-2, para. 81 (emphasis in original).
7 See US Submission, paras. 104-11.WT/DS206/R
Page B-4
discarding information that is ‘not ideal in all respects’ if the interested party that supplied the
information has, nevertheless, acted ‘to the best of its ability’.”  The use of the word “prohibits”
indicates that the Appellate Body clearly regards paragraph 5 as establishing a mandatory legal duty.8
CONCLUSION
9. Japan respectfully urges the Panel to analyze the issues raised by India in light of the legal
reasoning set forth above.  Specifically, India’s claim concerning the use of facts available should be
examined under the strict rule that facts available can only be used where the conditions of Article 6.8
and Annex II are fully satisfied.
                                                     
8 Hot-Rolled Steel from Japan , para. 100.WT/DS206/R
Page B-5
ANNEX B-2
THIRD PARTY SUBMISSION OF THE EUROPEAN COMMUNITIES
(17 December 2001)
1. INTRODUCTION
1. The European Communities welcomes this opportunity to present its views in this proceeding
brought by India against the United States’ impos ition of anti-dumping and countervailing measures
on Steel Plate from India.  India argues that in imposing such measures, the United States has acted
inconsistently with the Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade  (hereinafter the “ Anti-Dumping Agreement ”).
2. India has alleged that the United States has acted inconsistently with inter alia  Article 6.8 and
Annex II of the Anti-Dumping Agreement .  While the European Communities is not in a position to
asses the factual circumstances surrounding the imposition of measures in the present dispute, it does
have a systemic concern in the interpretation of the Anti-Dumping Agreement .  Accordingly, the
European Communities will concentrate its submission on the interpretation of Article 6.8 andAnnex II of the Anti-Dumping Agreement .  It shall also briefly address the interpretation of Article 15
of the Anti-Dumping Agreement .
2. APPLICATION OF “FACTS AVAILABLE”
3. India challenges the United State’s practice of refusing to take account of all data supplied by
an exporter where part of the data supplied is rejected as being inadequate.  India challenges the
United States’ application of this practice in its anti-dumping measures on steel plate from India, and
the relevant sections of the US Tariff Act of 1930 which allegedly make provision for the rejection
complained of. India alleges that the specific actions of the United States and its legislation areinconsistent with Article 6.8 of the Anti-Dumping Agreement and Annex II thereof.
4. While the European Communities will not comment upon the application of Article 6.8 and
Annex II to the particular circumstances of this dispute, the question of whether these provisions
permit an investigating authority to refuse to take account of all data where part of the data has been
rejected as inadequate raises important systemic issues.
5. The Anti-Dumping Agreement  establishes a balance between the right of importing WTO
Members to apply anti-dumping measures and the interests of exporting WTO Members not to have
measures applied in an arbitrary or unreasonable manner in any particular case.  The Anti-Dumping
Agreement aims at ensuring that anti-dumping measures are based on as accurate information as
possible.  The Appellate Body has recently had occasion to underline the importance of this
equilibrium, specifically in the context of Article 6.8 and Annex II:
We, therefore, see paragraphs 2 and 5 of Annex II of the Anti-Dumping Agreement as
reflecting a careful balance between the interests of investigating authorities and
exporters.  In order to complete their investigations, investigating authorities are
entitled to expect a very significant 
degree of effort – to the "best of their abilities"
– from investigated exporters. At the same time, however, the investigatingWT/DS206/R
Page B-6
authorities are not entitled to insist upon absolute standards or impose
unreasonable burdens upon those exporters.1
6. The Anti-Dumping Agreement  therefore, in aiming to ensure determinations are based upon as
accurate information as possible, attempts to prevent investigating authorities unreasonably refusing
to use data from the respondent firms but at the same time, is not designed to be manipulated by
exporters (or other interested parties) in order to arrive at the best possible result.  The obligation ofco-operation and good faith flows in both directions.
7. The European Communities consider that neither of the interpretations posited by the main
parties reflect this equilibrium. In other words, Article 6.8 and Annex II do not allow an investigating
authority to establish a practice whereby all information provided can be automatically disregarded
where some of the information supplied is inadequate, but neither, on the other hand, do they
necessarily permit an exporter to have all data supplied taken into account
2, when some of the data
supplied is inadequate.
8. Paragraph 3 of Annex II sets out a number of conditions which, as interpreted by the
Appellate Body, when fulfilled, obligate the investig ating authority to take data into account.  The
Appellate Body has thus stated:
[A]ccording to paragraph 3 of Annex II, investigating authorities are directed to use
information if three, and, in some circumstances, four, conditions are satisfied.  In our
view, it follows that if these conditions are met, investigating authorities are not
entitled to reject information submitted, when making a determination.3
9. The use of the word “all” in paragraph 3 of Annex II, implies that any information which does
meet the conditions set out therein should be taken into account.  The Appellate Body’s interpretation
confirms that an investigating authority’s ability to reject data supplied is circumscribed.
10. However, the data requested in an anti-dumping investigation, and which is necessary for a
determination, cannot be seen as isolated pieces of information.  Much of the data supplied is vital for
determining the treatment of other information supp lied and consequently the ultimate determination.
Thus, for instance, it cannot be determined whether sales on the domestic market are “in the ordinary
course of trade” in the sense of Article 2.2 without data on cost of production and administrative,
selling and general costs.4  It cannot be contemplated that a Member is required to take into account
domestic sales data, when it is unable to verify that such sales have been made in the ordinary course
of trade.  Moreover, the duty of co-operation on the part of exporters cannot be atomised, or broken
down into individual categories of information.  Otherwise, an exporter might submit only the
information which was favourable to its interests, an d refuse to co-operate with respect to data which
was unfavourable.5  In such a situation, the final sentence of paragraph 7 of Annex II contemplates
that non-co-operation, which leads to “relevant in formation” being withheld, can result in a
determination which is less favourable than had co-operation occurred.  Were an exporter able to
                                                     
1 Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel
Products from Japan , WT/DS184/AB/R, adopted 23 August 2001, para.102.
2 Which meets the requirements of paragraph 3 of Annex II
3 Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel
Products from Japan , WT/DS184/AB/R, adopted 23 August 2001, para. 81.
4 The United States make the same point, see, First Submission of the United States,
10 December 2001, para. 77.
5 This scenario is also contemplated by the United States see First Submission of the United States,
10 December 2001, para. 75 and 76.WT/DS206/R
Page B-7
select the information provided, and an investigat ing authority obliged to accept only such selected
information, this provision would be rendered a nullity.
11. The Anti-Dumping Agreement  establishes this balance between the need for accurate and
complete information and encouraging co-operation in both Article 6.8 and paragraph 3 of Annex II.Paragraph 3 provides that information must be accepted which can be used without “undue
difficulties”.  Investigating authorities might find it “unduly difficult” to use data when other related
sets of data have not also been provided, making it necessary to reject data which would otherwise be
acceptable according to paragraph 3.  Article 6.8, read in conjunction with the final sentence of
paragraph 7 of Annex II, provide the means by which a Member may apply facts available where
there has been no, or only limited, cooperation.
3. INTERPRETATION OF ARTICLE 15 OF THE ANTI-DUMPING AGREEMENT
12. India argues that the United States should have explored constructive remedies with it as a
developing country.
6  While the European Communities is not in a position to comment on the
particular facts in dispute, it would like to recall that one of the conditions of the application ofArticle 15 is that anti-dumping duties “affect the essential interests of developing country Members”.
India does not explain, in its submission, which essential interests were at issue, and the manner in
which they were raised with the US authorities.  Absent such an explanation, Article 15 cannot apply.
4. CONCLUSION
13. The European Communities thus consider that Article 6.8 and paragraph 3 of Annex II, when
read together, do not provide authority for a Member to automatically reject all data where some of
the data provided by that exporter has been rejected.  On the other hand, it might be questionable
depending on the circumstances of the case and taking into account the specific character of therelevant information, whether all the conditions of paragraph 3 have been met where an exporter
provides some information, but not related information.  Where co-operation has been insufficient,
Article 6.8 allows the use of facts available.  Finally, Article 15 only applies where the developing
country Member demonstrates that its “essential interests” are at issue.
                                                     
6 First Submission of India, 19 November 2001, para. 175.