WORLD TRADE
ORGANIZATIONWT/DS241/3
26 February 2002
(02-0989)
Original:  English
ARGENTINA – DEFINITIVE ANTI-DUMPING DUTIES
ON POULTRY FROM BRAZIL
Request for the Establishment of a Panel by Brazil
The following communication, dated 25 February 2002, from the Permanent Mission of
Brazil to the Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the
DSU.
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On 7 November 2001, Brazil requested consultations with Argentina pursuant to Article 4 of
the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU),
Article XXII of the General Agreement on Tariffs and Trade 1994 (GATT 1994), Article 17 of theAgreement on Implementation of Article VI of GATT 1994 (Anti-Dumping Agreement) and
Article 19 of the Agreement on Implementation of Article VII of GATT 1994 (Agreement on
Customs Valuation) concerning the definitive anti-dumping measures on imports of poultry from
Brazil, imposed by Argentina in Resolution No. 574 of 21 July 2000, and published in the Official
Gazette on 24 July 2000.
That request was circulated to the WTO Members on 12 November 2001 as document
WT/DS241/1, "Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil".  Consultations
were held in Geneva on 10 December 2001.  Even though consultations have allowed a better
understanding of the issue, they have not led to a mutually agreed solution.  Pursuant to Article XXII
of the GATT 1994, Article 6 of the DSU and Article 17 of the Anti-Dumping Agreement, Brazil
hereby respectfully requests that a panel be established at the next meeting of the DSB.
Brazil requests that the panel consider and find that the above-mentioned measures are
inconsistent with several provisions of the Anti-Dumping Agreement and, as a result, nullify and
impair the benefits accruing to Brazil under that Agreement.  Specifically, Brazil's claims of violation
of the Anti-Dumping Agreement incurred by Argentina may be summarized as follows:
A. The application submitted by Central de Empr esas Procesadoras Avicolas (CEPA) and the
subsequent initiation of the investigation by the Argentine authorities did not comply with the
requirements set forth in Article  5 of the Anti-Dumping Agreement.
1. The application submitted by CEPA did not include sufficient evidence of dumping,
threat of injury and causal link between the two, in accordance with Articles 2 and 3
of the Anti-Dumping Agreement.  The Argentine investigating authorities, the
Dirección de Competencia Desleal (DCD) and the Comisión Nacional de Comercio
Exterior (CNCE), failed to examine the accuracy and adequacy of the evidence
provided in the application and to reject the application, in view of the lack ofWT/DS241/3
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sufficient evidence of dumping and injury needed to justify the initiation of an
application, thereby violating Articles 5.2, 5.3 and 5.8 .
2. The Argentine authorities failed to simultaneously consider the evidence of both
dumping and threat of injury in deciding whether or not to initiate the investigation,thereby violating Article 5.7 .
3. The Argentine authorities failed to reject the application submitted by CEPA and
promptly terminate the investigation, as soon as the CNCE determined that there was
insufficient evidence of injury or threat of injury to justify the initiation of the
investigation, thereby violating Article 5.8 .
B. Once the investigation was initiated, the Argentine authorities did not comply with the public
notice and evidentiary requirements set forth in Articles 12, 6  and Annex II  of the
Anti-Dumping Agreement.
1. The Argentine authorities failed to notify seven Brazilian exporters, interested parties
in the investigation, when it was satisfied that there was sufficient evidence to justify
the initiation of the investigation, thereby violating Article 12.1 .
2. The CNCE acted inconsistently with Article 12.2.2 , inter alia , by failing to explain in
the final injury determination why it examin ed the relevant economic factors listed in
Article 3.4 based on different periods, and by failing to evaluate and consider in the
final injury determination all the relevant economic factors and indices listed in
Article 3.4.
3. The Argentine authorities failed to provide in the determination to impose definitive
anti-dumping duties how the "minimum export price" was established, thereby
violating Article 12.2.2.
4. The DCD failed to give the legally required time for some of the exporters to respond
to the questionnaires. The DCD also failed to promptly make available to these
Brazilian exporters, evidence presented in writing by other interested parties.  By not
giving these exporters sufficient time to respond to the questionnaires and by notpromptly making available the evidence presented by other interested parties, the
DCD did not give these exporters full opportunity to defend their interests in this
investigation, thereby violating Articles 6.1.1, 6.1.2 and 6.2 .
5. The Argentine authorities failed to provide the text of the written application to the
Brazilian exporters and to the Government of Brazil as soon as the investigation was
initiated, thereby violating Article 6.1.3 .
6. The DCD disregarded the responses submitted by Brazilian exporters on normal
value and export price, and used instead normal value and export price data presentedby petitioner and the Argentine agency the Dirección de Ganaderia, Secretaria de
Agricultura, Ganaderia y Pesca (Ganaderia).  The DCD's application of adverse facts
available was inconsistent with Article 6.8 and Annex II, in particular, paragraphs 3,
5, 6 and 7.
7. The DCD did not explain in the final determination why the data on normal value and
export price submitted by Brazilian exporters was not accepted, and why it chose to
use instead normal value and export price information provided by petitioner and theWT/DS241/3
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Ganaderia.  By not accepting that information without offering any valid justification
in the public notice of conclusion, the DCD acted inconsistently with Article 12.2.2
8. The DCD failed to inform the Brazilian exporters of the essential facts under
consideration which formed the basis for the decision whether to apply definitivemeasures, thereby preventing the Brazilian exporters from adequately defending their
interests, contrary to the requirement set out in Article 6.9 .
9. The DCD failed to calculate an indivi dual margin of dumping for two Brazilian
exporters even though these two companies provided normal value and export price
data, thereby violating Article 6.10 .
C. Many actions taken by the Argentine authorities throughout the investigation, as well as the
final affirmative determination on dumping, injury and causal relationship did not comply
with the requirements set forth in Articles 2, 3 and 4  of the Anti-Dumping Agreement.
1. The DCD acted inconsistently with Article 2.4  when it failed to make a fair
comparison between export price and normal value in a number of ways, such as : by
failing to make due allowance for differences in freight when it established the
normal value for two Brazilian exporters; by failing to make due allowance for
differences in taxation, freight and financial cost, when it established normal value
for all other exporters; by incorrectly making due allowances for alleged physicalcharacteristic differences in the product sold to Brazil and to Argentina; and, by
imposing an unreasonable burden of proof on Brazilian exporters by requesting that
they provide normal value and export price data for years outside the dumping period
of investigation.
2. The DCD failed to make the correct fair comparison between export price and normal
value, when it established the dumping margin for two Brazilian exporters, thereby
violating Article 2.4.2 .
3. The CNCE used different periods for evaluating the relevant economic factors and
indices set forth in Article 3.4 of the Anti-Dumping Agreement.  By using different
periods in the injury analysis, the CNCE failed to make an injury determination basedon positive evidence and involving an objective examination, thereby violating
Article 3.1 .
4. In the final injury determination, the CNCE  did not exclude imports of two Brazilian
exporters, whose imports were not considered as "dumped imports".  By notexcluding these imports from the volume of the "dumped imports", the CNCE failed
to properly consider the volume of the "dumped imports", the effect of the "dumped
imports" on prices in the domestic market, and the impact of the "dumped imports"
on domestic producers, thereby violating Articles 3.1, 3.2 and 3.4 .
5. The Subsecretaria de Indústria, Comercio y Minería (SICM) did not properly
demonstrate the causal link between the "dumped imports" and the injury to the
domestic industry, thereby violating Article 3.5 .  For instance, by not excluding the
two Brazilian exporters, whose imports were not considered as "dumped imports", the
injury and the causal link analyses were flawed.
6. The CNCE failed to evaluate all the relevant economic factors and indices listed in
Article 3.4 in the examination of the impact of the dumped imports on the domestic
industry, thereby violating Articles 3.1 and 3.4.WT/DS241/3
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7. In the final injury determination, the CN CE incorrectly considered that 46.2 per cent
of the total domestic production of poultry in Argentina was sufficient to constitute
the major proportion of the total domestic production needed to define the domestic
industry, thereby violating Article 4.1 .
D. The Argentine authorities imposed and collected anti-dumping duties, as a result of the
investigation, that did not comply with the requirements set forth in Article 9  of the Anti-
Dumping Agreement.
1. The Argentine authorities imposed anti-dumping duties to be collected as the absolute
difference between the FOB price invoiced in any one shipment and the designated"minimum export price" fixed in FOB terms.  Brazil submits that the variable anti-
dumping duty established in the final determination violates Articles 9.2 and 9.3.
In view of the claims set forth above, Brazil considers that Argentina has acted inconsistently
with Article VI of the GATT 1994 and Article 1 of the Anti-Dumping Agreement, which only permitanti-dumping measures to be applied under the circumstances provided for in Article VI and pursuant
to investigations initiated and conducted in acco rdance with the Anti-Dumping Agreement.  Because
the claims set forth under letters A through D of this request indicate the violation of various
provisions under the Anti-Dumping Agreement, Ar ticle VI of the GATT 1994 and Article 1 of the
Anti-Dumping Agreement are consequently violated.
Brazil requests that the panel be established with the standard terms of reference as provided
for in Article 7 of the DSU.  To this effect, Brazil also requests the inclusion of the corresponding
item on the agenda of the next meeting of the Dispute Settlement Body, scheduled for 8 March 2002.
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