  
  
WT/DS 591/ARB25 
 
21 December  2022 
(22-9602) Page: 1/39 
  Original: English  
 
 
COLOMBIA – ANTI -DUMPING DUTIES ON FROZEN FRIES  
FROM BELGIUM, GERMANY AND THE NETHERLANDS  
ARBITRATION UNDER ARTICLE  25 OF THE DSU  
AWARD OF THE ARBITRATORS  
 
 
  
 
 
 
 
  WT/DS591 /ARB25  
 
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  TABLE OF CONTENTS  
 
 
 
1  INTRODUCTION  ................................ ................................ ................................ ..........  7 
2  ARGUMENTS OF THE PARTIES  ................................ ................................ ...................  11 
3  ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ ........  11 
4  ANALYSIS OF THE ARBITRATORS  ................................ ................................ ..............  12 
4.1  Issues on appeal  ................................ ................................ ................................ ..... 12 
4.2  Claim under Articles  5.2(iii) and 5.3 of the Anti -Dumping Agreement  ..............................  12 
4.2.1  Introduction and Panel findings  ................................ ................................ ...............  12 
4.2.2  Reviewing Colombia's claim in light of Article  17.6 of the Anti -Dumping Agreement  ........  14 
4.2.3  Whether it is permissible to interpret the phrase "where appropriate" in Article  5.2(iii)  
of the Anti -Dumping Agreement as granting "free choice" in the use of third -country sales  
prices as a basis for normal value  ................................ ................................ .....................  16 
4.2.4  Whether the Panel erred under Articles  5.2(iii) and 5.3 of the Anti -Dumping Agreement  
by requiring an explanation as to why domestic sales prices were not used as a basis for  
normal value  ................................ ................................ ................................ .................  18 
4.2.5  Conclusion  ................................ ................................ ................................ ...........  19 
4.3  Claim under Article  6.5 of the An ti-Dumping Agreement  ................................ ................  20 
4.3.1  Introduction and Panel findings  ................................ ................................ ...............  20 
4.3.2  Whether the Panel erred in finding that MINCIT acted inconsistently with Article  6.5  
of the Anti -Dumping Agreement by granting confidential treatment to redacted information 
without a showing of "good cause"  ................................ ................................ ...................  21 
4.3.3  Conclusion  ................................ ................................ ................................ ...........  23 
4.4  Claim under Article  6.2 of the DSU  ................................ ................................ .............  24 
4.4.1  Introduction and Panel findings  ................................ ................................ ...............  24 
4.4.2  Whether the Panel erred in finding that the European  Union's  "packaging cost -related 
claim" under Article  2.4 of the Anti -Dumping Agreement was within the Panel's  terms of  
reference pursuant to Article  6.2 of the DSU  ................................ ................................ ...... 26 
4.4.3  Conclusion  ................................ ................................ ................................ ...........  30 
4.5  Claim under Articles  3.1, 3.2, 3.4, and 3.5 of the Anti -Dumping Agreement  .....................  30 
4.5.1  Introduct ion and Panel findings  ................................ ................................ ...............  30 
4.5.2  Whether it is permissible to interpret the term "dumped imports" in Articles  3.1, 3.2,  
3.4, and 3.5 of the Anti -Dumping Agreement to include imports of exporters determined  
to have final de minimis  margins of dumping  ................................ ................................ ..... 32 
4.5.3  Conclusion  ................................ ................................ ................................ ...........  38 
4.6  Award findings  ................................ ................................ ................................ ........  38 
 
 
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  LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURES FOR THE ARBITRATION  
Contents  
Annex  A-1 Agreed Procedures for Arbitration under Article  25 of the DSU, notified by the parties to the 
Dispute Settlement Body on 20 April 2021 (WT/DS591/3/Rev.1)  
Annex  A-2 Additional Procedures for Arbitration under Article  25 of the DSU, adopted by the Arbitrators 
on 19  October 2022  
Annex  A-3 Additional Procedures for BCI  protection and partial public viewing of the hearing, adopted 
by the Arbitrators on 1  November  2022 
ANNEX B  
NOTIFICATION  OF AN APPEAL  BY COLOMBIA  
Contents  
Annex  B-1 Notification  of an Appeal by Colombia under Article  25 of the DSU , paragraph 5 of the Agreed 
Procedures, and Rule 20 of the Working Procedures for Appellate Review  
ANNEX C  
ARGUMENTS OF THE PARTIES  
Contents  
Annex  C-1 Executive summary of Colombia 's written submission  
Annex  C-2 Executive summary of the European  Union 's written submission  
ANNEX D  
ARGUMENTS OF THE THIRD PARTIES  
Contents  
Annex  D-1 Executive summary of Brazil 's third party 's written submission  
Annex  D-2 Executive summary of Japan 's third party 's written submission  
Annex  D-3 Executive summary of the United  States ' third party 's written submission  
 
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  ABBREVIATIONS USED IN THIS AWARD  
Abbreviation  Description  
Agreed Procedures  Agreed Procedures for Arbitration under Article  25 of the DSU, notified by 
the parties to the Dispute Settlement Body on 20  April 2021 
(WT/DS591/3/Rev.1)  
Anti-Dumping Agreement  Agreement on the Implementation of Article  VI of the General Agreement 
on Tariffs and Trade 1994  
BCI business confidential information  
Customs Valuation Agreement  Agreement on Implementation of Article  VII of the General Agreement on 
Tariffs and Trade 1994  
DIAN National Directorate for Taxes and Customs  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes  
FEDEPAPA  Colombian Federation of Potato Producers  
GATT  1994 General  Agreement on Tariffs and Trade 1994  
MINCIT  Colombia 's Ministry of Trade, Industry and Tourism  
MPIA Multi-Party Interim Appeal  Arbitration Arrangement  
Panel  Report  Final Panel  Report as circulated to Members on 10  October  2022 in 
Colombia – Anti-Dumping Duties on Frozen Fries from Belgium, Germany 
and the Netherlands , attached to  the Notification of an Appeal by Colombia  
under Article  25 of the DSU, paragraph 5 of the Agreed Procedures, and 
Rule 20 of the Working Procedures for Appellate Review  (WT/DS591/7 and 
WT/DS591/7/Add.1)  
Vienna  Convention  Vienna  Convention  on the Law of Treaties, done at Vienna, 23  May 1969, 
UN Treaty Series, Vol. 1155, p. 331 
WTO World Trade Organization  
 
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  CASES CITED IN THIS AWARD  
Short title  Full case title and citation  
Argentina – Poultry Anti -
Dumping Duties  Panel  Report , Argentina – Definitive Anti -Dumping Duties on Poultry from 
Brazil , WT/DS241/R , adopted 19  May 2003, DSR 2003:V, p. 1727 
Canada – Welded Pipe  Panel  Report , Canada – Anti-Dumping Measures on Imports of Certain 
Carbon Steel Welded Pipe from the Separate Customs Territory of Taiw an, 
Penghu, Kinmen and Matsu , WT/DS482/R  and Add.1, adopted 
25 January  2017, DSR 2017:I, p. 7 
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  Appellate  Body Reports,  China – Measures Imposing Anti -Dumping Duties 
on High -Performance Stainless Steel Seamless Tubes ("HP -SSST") from 
Japan / China – Measures Imposing Anti -Dumping Duties on High -
Performance Stainless Steel Seamless Tubes ("HP -SSST") from the 
European  Union , WT/DS454/AB/R  and Add.1 / WT/DS460/AB/R  and 
Add.1, adopted 28  October  2015, DSR 2015:IX, p. 4573 
China – Raw Materials  Appellate  Body Reports, China – Measures Related to the Exportation of 
Various Raw Materials , WT/DS394/AB/R  / WT/DS395/AB/R  / 
WT/DS398/AB/R , adopted 22  February  2012, DSR 2012:VII, p. 3295 
Colombia – Anti-Dumping 
Duties on Frozen Fries from 
Belgium, Germ any and the 
Netherlands  Final Panel  Report as circulated to Members on 10  October  2022 in 
Colombia – Anti-Dumping Duties on Frozen Fries from Belgium, Germany 
and the Netherlands , attached to  the Notification of an Appeal by 
Colombia  under Article  25 of th e DSU, paragraph 5 of the Agreed 
Procedures, and Rule 20 of the Working Procedures for Appellate Review  
(WT/DS591/7  and WT/DS591/7/Add.1 ) 
Costa  Rica – Avocados  
(Mexico)  Panel  Report , Costa  Rica – Measures Concerning the Importation of Fresh 
Avocados from Mexico , WT/DS524/R  and Add.1, adopted 31  May 2022 
EC – Bed Linen  Panel  Report , Europ ean Communities – Anti-Dumping Duties on Imports 
of Cotton -Type Bed Linen from India , WT/DS141/R , adopted 
12 March  2001, as modified by Appellate  Body Report WT/DS141/AB/R, 
DSR 2001:VI, p. 2077 
EC – Fasteners (China)  Appellate  Body Report, European  Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/AB/R , 
adopted 28  July 2011, DSR 2011:VII, p. 3995 
EC – Fasteners (China) 
(Article  21.5 – China)  Appellate  Body Report, European  Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China – Recourse to 
Article  21.5 of the DSU by China , WT/DS397/AB/RW  and Add.1 , adopted 
12 February  2016, DSR 2016:I, p. 7 
EC – Salmon (Norway)  Panel  Report , European  Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R , adopted 15  January  2008, and 
Corr.1, DSR 2008:I, p.  3 
EC – Selec ted Customs Matter  Appellate  Body Report, European  Communities – Selected Customs 
Matters , WT/DS315/AB/R , adopted 11  December  2006, DSR 2006:IX, 
p. 3791 
EC – Tube or  Pipe Fittings  Panel  Report , European  Communities – Anti-Dumping Duties on Malleable 
Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/R , adopted 
18 August  2003, as modified by Appellate  Body Report WT/DS219/AB/R, 
DSR 2003:VII, p.  2701 
EU – Biodiesel (Argentina)  Panel  Report , European  Union – Anti-Dumping Measures on Biodiesel from 
Argentina , WT/DS473/R  and Add.1, adopted 26  October  2016, as  modified 
by Appellate  Body Report WT/DS473/AB/R, DSR 2016:VI, p.  3077 
EU – Fatty Alcohols 
(Indonesia)  Appellate  Body Report, European  Union – Anti-Dumping Measures on 
Imports of Certain Fatty Alcohols from Indonesia , WT/DS442/AB/R  and 
Add.1, adopted 29  September  2017, DSR 2017:VI, p. 2613 
Guatemala – Cement II  Panel  Report , Guatemala – Definitive Anti -Dumping Measures on Grey 
Portland Cement from Mexico , WT/DS156/R , adopted 17  November  2000, 
DSR 2000:XI, p.  5295 
Korea – Dairy  Appellate  Body Report, Korea – Definitive Safeguard Measure on Imports 
of Certain Dairy Products , WT/DS98/AB/R , adopted 12  January  2000, DSR 
2000:I, p.  3 
Korea – Pneumatic Valves 
(Japan)  Appellate  Body Report, Korea – Anti-Dumping Duties on Pneumatic Valves 
from Japan , WT/DS504/AB/R  and Add.1, adopted 30  September  2019, 
DSR 2019:XI, p. 5637 WT/DS591 /ARB25  
 
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  Short title  Full case title and citation  
Korea – Pneumatic Valves 
(Japan)  Panel  Report , Korea – Anti-Dumping Duties on Pneumatic Valves from 
Japan , WT/DS504/R  and Add.1, adopted 30  September  2019, as modified 
by Appellate  Body Report WT/DS504/AB/R, DSR 2019:XI, p. 5935 
Mexico – Anti-Dumping 
Measures on Rice  Appellate  Body Report, Mexico – Definitive Anti -Dumping Measures on 
Beef and Rice, Complaint with Respect to Rice , WT/DS295/AB/R , adopted 
20 December  2005, DSR 2005:XXII, p.  10853  
Mexico – Anti-Dumping 
Measures on Rice  Panel  Report , Mexico – Definitive Anti -Dumping Measures on Beef and 
Rice, Complaint with Respect to Rice , WT/DS295/R , adopted 
20 December  2005, as modified by Appellate  Body Report 
WT/DS295/AB/R, DSR 2005:XXIII, p.  11007  
Mexico – Steel Pipes and 
Tubes  Panel  Report , Mexico – Anti-Dumping Duti es on Steel Pipes and Tubes 
from Guatemala , WT/DS331/R , adopted 24  July 2007, DSR 2007:IV, 
p. 1207 
Morocco – Definitive AD 
Measures on Exercise Books 
(Tunisia)  Panel  Report , Morocco – Definitive Anti -Dumping Measures on School 
Exercise Books from Tunisia , WT/DS578/R  and Add.1 , circulated to WTO 
Members 27  July 2021, appealed on 28  July 2021 
US – Oil Country Tubular 
Goods Sunset Reviews  Appellate  Body Report, United  States – Sunset Reviews of Anti -Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R , 
adopted 17  December  2004, DSR 2004:VII, p.  3257 
US – Shrimp II (Viet  Nam)  Panel  Report , United  States – Anti-Dumping Measures on Certain Shrimp 
from Viet  Nam, WT/DS429/R  and Add.1, adopted 22  April 2015, upheld by 
Appellate  Body Report WT/DS429/AB/R, DSR 2015:III, p.  1341 
US – Softwood Lumber  V Panel  Report , United  States – Final Dumping Determination on Softwood 
Lumber from Canada , WT/DS264/R , adopted 31  August  2004, as modified 
by Appellate  Body Report WT/DS264/AB/R, DSR 2004:V, p.  1937 
 
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Parties:  
 
Colombia  
European  Union  
 Arbitrators:  
José Alfredo Graça Lima, Chairperson  
Alejandro Jara  
Joost Pauwelyn  
Third Parties:  
 
Brazil  Japan  
China  Russian  Federation  
Honduras  Türkiye  
India United  States   
 
1  INTRODUCTION  
1.1.  This Arbitration concerns  certain  issues of law and legal interpretation s developed in the 
Panel  Report , Colombia – Anti-Dumping Duties on Frozen Fries from Belgium, Germany and the 
Netherlands .1 These issues of law and legal interpretations relate to the Panel 's findings regarding 
the consistency with the Agree ment on the Implementation of Article  VI of the General Agreement 
on Tariffs and Trade 1994 (Anti -Dumping Agreement) of  the anti-dumping duties imposed by 
Colombia on certain frozen potato products originating in Belgium, Germany, and the Netherlands.  
1.2.  The Panel was established on 29  June 2020 to consider a complaint by the European  Union  
that, in imposing the above -mentioned duties,  Colombia acted inconsistently with Articles  1, 2.1, 
2.4, 2.4.1, 2.6, 3.1, 3.2, 3.4, 3.5, 3.6, 3.7, 3.8, 5.3, 5.8, 6.1.2, 6.2, 6.5, 6.5.1, 6.8, 6.9, 9.1, 9.2, 
9.3, 11.1, 12.2, 12.2.2, and 18.1, and paragraphs  3 and 6 of Annex  II to the Anti -Dumping 
Agreement , Article  10 of the Agreement on Implementation of Article  VII of the General Agreement 
on Tariffs and Trade 1994 ( Customs Valuation Agreement ), and Article  VI of the General Agreement 
on Tariffs and Trade 1994 ( GATT  1994).2 
1.3.  On 13  July 2020, the European  Union  and Colombia informed the  Dispute Settlement Body  
(DSB) that they had agreed to procedures for arbitration under Article  25 of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes ( DSU) in this dispute.3 These procedures 
were subsequently revised on 20  April 2021 (Agreed Procedures),  and were entered into by the 
parties "to give effect to communication JOB/DSB/1/Add.12 ", i.e. the Multi -Party Interim Appeal 
Arbitration Arrangement (MPIA) pursuant to Article  25 of the DSU , and "to decide any appeal from 
any final panel report as issued to th e parties in [this] dispute ".4 
1.4.  On 29 August  2022, the Panel issued the final Panel  Report in English to the parties .5 Following 
a communication from Colombia requesting the Panel to suspend its work in order to facilitate 
arbitration under the Agreed Procedures6, the Panel , on 13  September  2022, instructed the Dispute 
Settlement Registry to "transmit immediately the original English language version of the final 
Panel  Report  … to the pool of [MPIA] arbitrators "7, pursuant to the Additional Working Procedures of 
the Panel to facilitate arbitration under Article  25 of the DSU (the Panel 's Additional Working 
Procedures) .8 On 16  September  2022, the Panel transmitted the final Panel  Report  in the  
 
1 In accordance with paragraph  5 of the Agreed Procedures for Arbitration under Article  25 of the DSU 
(Agreed Procedures), the Panel  Report  in the three working languages of the WTO was attached to  the 
Notification of an Appeal  by Colombia  under  Article  25 of the DSU, paragraph  5 of the Agreed Procedures, and 
Rule 20 of the Working Procedures for Appellate  Review circulated to Members when  Colombia  initiated these 
Arbitration proceedings. (WT/DS591/7 and WT/DS591/7/Add.1)  (See para. 1.7 and infra fns 16 and 17)  
2 Request for the establishment of a panel by the Eur opean  Union , WT/DS591/2 (European  Union 's 
panel request).  
3 WT/DS591/3.  
4 WT/DS591/3/Rev.1 , para. 1 . (fn omitted) (See Annex  A-1 of the Addendum to this Award  
(WT/DS591/ARB25/Add.1) ) 
5 See Communication from the Panel, WT/DS591/6 , p. 1. 
6 WT/DS591/6, p.  2. The Panel noted in its communication that " [a]ccording to paragraph  4 of the 
Agreed Arbitration Procedures 'such request by any party is deemed to constitute a joint request by the parties 
for suspension of the panel proceedings for 12 months pursuant to Article  12.12 of the DSU '." (Ibid.)  
7 WT/DS591/6, p.  2. 
8 Additional Working Procedures of the Panel to facilitate arbitration under Article  25 of the DSU, 
WT/DS591/7/Add.1, Annex  A-5. WT/DS591 /ARB25  
 
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  three  working languages of the WTO to the parties, third parties , and the pool of MPIA arbitrators , 
pursuant to the Panel 's Additional Working Procedures. On the same day, the Panel  inform ed the 
DSB of its decision to grant the request to suspend the panel proceedings .9 
1.5.  In its Report , the Panel  found that:  
a. with respect to the European  Union 's claims concerning the decision  of Colombia 's 
Ministry of Trade, Industry and Tourism ( MINCIT) to initiate the underlying 
investigation:  
i. the European  Union ha d not established that Colombia acted inconsistently with 
Article  5.3 of the Anti -Dumping Agreement because MINCIT failed to verify that 
there was "sufficient " evidence to initiate the investigation with respect to the full 
range of products covered by tariff subheading 2004.10.00.00;  
ii. the European  Union ha d not established that Colombia acted inconsistently with 
its obligations under Article  5.3 because MINCIT did not have "sufficient " evidence 
demonstrating that the Colombian Federation of Potato Producers ( FEDEPAPA ) 
represented the domestic producers of the "like" product so as to justify initiating 
the underlying investigation;  
iii. the European  Union ha d established that Colombia acted inconsistently with 
Article  5.3 of the Anti -Dumping Agreement because, by failing to examine 
whether the use of third -country sales pr ices, instead of domestic sales prices, 
was "appropriate " in the specific facts and circumstances of the investigation at 
issue, MINCIT did not examine the "adequacy " of the evidence in the application 
to determine whether there is "sufficient " evidence to  justify the initiation of the 
underlying investigation;  
iv. the European  Union ha d not established that Colombia acted inconsistently with 
its obligations under Article  5.3 because the evidence of injury examined and 
relied upon by MINCIT was insufficient to justify the initiation of the underlying 
investigation;  
v. the European  Union ha d not established that Colombia acted inconsistently with 
its obligations under Article  5.3 because the evidence of causal link examined and 
relied upon by MINCIT was insufficient  to justify the initiation of the underlying 
investigation; and  
vi. having found that Colombia acted inconsistently with its obligations under 
Article  5.3, the Panel d id not consider it necessary to make additional findings 
concerning the European  Union 's clai m under Article  5.8 of the Anti -Dumping 
Agreement in order to provide a positive resolution to the present dispute.10 
b. With respect to the European  Union 's claims concerning the confidential treatment of 
certain information by MINCIT:  
i. the European  Union ha d established that Colombia acted inconsistently with its 
obligations under Article  6.5 of the Anti -Dumping Agreement with respect to the 
redacted information in section  d(i) of FEDEPAPA 's revised application because 
MINCIT granted confide ntial treatment to this information without a showing of 
"good cause " by the applicant. Given this finding of inconsistency, the Panel d id 
not consider it necessary to make further findings on the European  Union 's claim 
under Article  6.5.1 concerning the i nformation in section d(i) of the revised 
application in order to provide a positive resolution to the present dispute;  
ii. the European  Union ha d not established that Colombia acted inconsistently with 
its obligations under Article  6.5 in respect of the infor mation contained in 
 
9 WT/DS591/6, p.  2. 
10 Panel  Repor t, para.  8.1.a.  WT/DS591 /ARB25  
 
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  Annex 10 of the revised application because the European  Union ha d not 
demonstrated:  (a) that the applicant failed to show the necessary "good cause " 
for the confidential treatment requested; and (b)  MINCIT did not objectively 
assess th e showing of "good cause " as the basis of granting confidential 
treatment; and  
iii. the European  Union ha d established that Colombia acted inconsistently with its 
obligations under Article  6.5.1 of the Anti -Dumping Agreement with respect to 
the information cont ained in Annex 10 of FEDEPAPA 's revised application because 
MINCIT did not "require " the applicant to "furnish " non-confidential summaries of 
the confidential information contained in Annex 10; and, to the extent that this 
information was not susceptible of summary, a statement of the reasons as to 
why summarization was not possible was not provided.11 
c. With respect to the European  Union 's claims concerning the alleged use of "facts 
available " by MINCIT:  
i. the European  Union ha d established that C olombia acted inconsistently with its 
obligations under Article  6.8 of the Anti -Dumping Agreement because MINCIT 
disregarded the export prices that the exporters had provided in their 
questionnaire responses and, instead, elected to use export prices extra cted from 
the National Directorate for Taxes and Customs ( DIAN) database to make its 
dumping determination; and  
ii. having found that Colombia acted inconsistently with its obligations under 
Article  6.8, the Panel d id not consider it necessary to make addition al findings as 
to whether Colombia also acted inconsistently with its obligations under 
paragraphs  3 and 6 of Annex  II and Article  2.1 in order to provide a positive 
resolution to the present dispute.12 
d. With respect to the European  Union 's claims concernin g MINCIT 's assessment of the 
exporters ' requests for adjustments:  
i. the European  Union ha d established that Colombia acted inconsistently with its 
obligation to make a "fair comparison " under Article  2.4 of the Anti -Dumping 
Agreement because MINCIT denied th e product mix -related adjustments 
requested by Agrarfrost, Aviko, and Mydibel;  
ii. the European  Union 's claim under Article  2.4 of the Anti -Dumping Agreement 
concerning Mydibel 's packaging cost -related adjustment request f ell within the 
Panel 's terms of refere nce; 
iii. the European  Union ha d established that Colombia acted inconsistently with its 
obligation to make a "fair comparison " under Article  2.4 of the Anti -Dumping 
Agreement because MINCIT denied Mydibel 's packaging cost -related adjustment 
request;  
iv. the Europe an Union ha d established that Colombia acted inconsistently with its 
obligation to make a "fair comparison " under Article  2.4 of the Anti -Dumping 
Agreement because MINCIT denied Agrarfrost 's oil cost -related adjustment 
request; and  
v. having found that Colomb ia acted inconsistently with its obligation to make a "fair 
comparison " under Article  2.4, the Panel d id not consider it necessary to make 
additional findings as to whether Colombia also acted inconsistently with its 
 
11 Panel  Report , para.  8.1.b.  
12 Panel  Report , para.  8.1.c.  WT/DS591 /ARB25  
 
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  obligations under the last sentence of Article  2.4 in order to provide a positive 
resolution to the present dispute.13 
e. With respect to the Euro pean Union 's claims concerning MINCIT 's injury and causation 
determinations:  
i. the European  Union ha d established that Colombia acted inconsistently with its 
obligations under Articles  3.1, 3.2, 3.4, and 3.5 of the Anti -Dumping Agreement 
because MINCIT inclu ded in its injury and causation determinations imports from 
the exporters that were determined to have:  (a) final de minimis  margins of 
dumping (Clarebout (Belgium), Agristo (Belgium), and Other Companies 
(Belgium)); and (b)  final negative  margins of dumpi ng (Ecofrost (Belgium)  and 
Farm Frites (the Netherlands)); and  
ii. having found that Colombia acted inconsistently with its obligations under 
Articles  3.1, 3.2, 3.4, and 3.5, the Panel was not called upon to make further 
findings with respect to the other grou nds presented by the European  Union in 
support of its claims challenging MINCIT 's analysis of the "price effects " under 
Articles  3.2 and 3.1; the impact on domestic industry under Articles  3.4 and 3.1; 
and the causal link under Articles  3.5 and 3.1.14 
1.6.  The Panel, pursuant to Article  19.1 of the DSU, recommended that Colombia bring its measures 
into conformity with its obligations under the GATT  1994 and the Anti -Dumping Agreement.15 
1.7.  On 6 October  2022, Colombia notified  the DSB of its decision to initiate an arbitration under 
Article  25 of the DSU  through a "Notification of an Appeal " pursuant to  Article  25 of the DSU, 
paragraph  5 of the Agreed Procedures , and Rule 20 of the Working Procedures for 
Appellate  Review .16 On the same day, Colombia filed its written submission. Colombia 's Notice of 
Appeal , together with t he Panel  Report , was circulated to Members on 10 October  2022.17 
1.8.  Pursuant to paragraph  7 of the Agreed Procedures, we were selected to be the Arbitrators in 
these arbitration proceedings  and we elected Mr José Alfredo Graça Lima as the Chairperson in this 
Arbitration .18 On 12  October  2022, Members were informed of our appointment as Arbitrators  and 
the election of the Chairperson .19 
1.9.  Following consultation with the parties at an organizational meeting held on 18  October  2022, 
and pursuant to paragraph  12 of the Agreed Procedures, we adopted , on 19 October 2022,  the 
Additional Procedure s for Arbitration under Article  25 of the DSU (A dditional Procedures  for 
Arbitration ), including the Working Schedule.20 In addition, i n response to the parties ' requests at 
the organizational meeting  with regard to the treatment and handling of business confidential 
information (BCI) and public viewing of the hearing , and after requesting and receiving comments 
from the parties and third parties, we adopted , on 1  November  2022,  the Additional Procedur es for 
BCI Protection and Partial Public Viewing of the Hearing.21 
1.10.  In accordance with the Working Schedule  contained in the Additional Procedures for 
Arbitration , the European  Union  filed its written submission  on 24 October  2022. On 27  October 
 
13 Panel  Report , para.  8.1.d.  
14 Panel  Report , para.  8.1.e.  
15 Panel  Report , para.  8.2. 
16 Hereafter referred to as "Colombia's Notice of Appeal".  
17 WT/DS591/7 and WT/DS591/7/Add.1 . 
18 Paragraph  7 of the Agreed Procedures provides, inter alia, that  "[t]he arbitrators shall be 
three  persons selected from the pool of 10 standing appeal arbitrators composed in accordance with 
paragraph  4 of communication JOB/DSB/1/Add.12" , that the selection "will be done on the basis of the same 
principles and methods that apply to form a division of t he Appellate  Body under Article  17.1 of the DSU and 
Rule 6(2) of the Working Procedures for Appellate Review, including the principle of rotation ", and that "[t]he 
arbitrators shall elect a Chairperson."  
19 WT/DS591/8 . 
20 Annex  A-2 of the Addendum to this Aw ard (WT/DS591/ARB25/Add.1 ). 
21 Annex  A-3 of the Addendum to this Award (WT/DS591/ARB25/Add.1) . WT/DS591 /ARB25  
 
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  2022, Brazil, Japan , and the United  States  each filed a third party 's written submission.  On the same 
day, China and the Russia n Federation  each notified its intention to appear at the hearing.22 
1.11.  By letter of 2 November  2022, we invited the parties and third par ties to a virtual pre-hearing 
conference to assist us in identifying the issues to be addressed at the hearing, and to avoid issues 
that were not within our mandate, were not necessary for the resolution of this dispute, or were not  
contested between the parties . In particular, we indicated our interest in discussing what  specific  
issues  of law and legal interpretations  were to be addressed with respect to particular claims , and 
to explore which  issues were necessary for the resolution of the dispute.  In comments provided on 
7 November 2022,  Colombia expressed its concern that the proposed topics for the pre -hearing 
conference went beyond what was envisaged in paragraphs  12 and 13 of the Agreed Procedures, 
and requested that , also for reasons of due process,  such issues be reserved for discussion  only at 
the hearing . 
1.12.  At the virtual pre-hearing conference held on 9  November  2022, we clarified that the purpose 
of the conference was not to replace the hearing, but to signal to the parties what we would like to 
explore or focus on at the hearing, and to allow the parties an opportunity to limit their submission s 
should they so wish. Accordingly , we informed the parties and third parties of the sequence of 
questioning expected  at the hearing , highlighted the topics referenced in our 2 November  2022 letter 
on which we sought clarification from the parties at the hearing , and provided certain logistical and 
practical information  in relation to the partial public viewing . On 10  November  2022, a letter  was 
sent to the parties and third parties containing the  information conveyed at the virtual conference  
and certain  logistical  information regarding the hearing.  
1.13.  The hearing was held in person on 15  November  2022 at the premises of the WTO . The parties 
and six third parties ( Brazil, China, Japan, the Russian  Federation , Türkiye, and the United  States ) 
attended the hearing. The parties and five third parties23 made oral statements and /or responded 
to questions.  Pursuant to the Additional Procedures for BCI Protection and Partial Public Viewing of 
the Hearing, the opening statements  of the European  Union , the Russian  Federation , and  the 
United  States were  video r ecorded and subsequently posted for viewing by registered viewers on 
the WTO website.24 On 16  November  2022, we held a discussion with the other members of the pool 
of MPIA arbitrators pursuant to paragraph  5 of the MPIA and paragraph  8 of the Agreed Procedures.25 
1.14.  Pursuant to the Additional Procedures  for BCI Protection and Partial Public Viewing of the 
Hearing, a copy of the Award intended for issuance was provided in advance to the parties on 
13 December  2022 to ensure that no BCI was included inadve rtently . The final Award was issued to 
the parties in English on 19 December  2022 and notified  to the DSB , the Council for Trade in Goods,  
and the Committee on Anti -Dumping Practices  in the three working languages of the WTO on 
21 December  2022, both within 90 days of the commencement of the Arbitration . 
2  ARGUMENTS OF THE PARTIES  
2.1.  The claims and arguments  of the parties are reflected in the executive summaries of their 
written submissions. Colombia 's Notice of Appeal  and the executive summaries of the pa rties' written 
submissions  are contained in Annexes B and  C of the Addendum to this Award, 
WT/DS5 91/ARB25/Add.1.  
3  ARGUMENTS OF THE THIRD PARTIES  
3.1.  The arguments of the third parties that filed a written submission ( Brazil, Japan, and the 
United  States ) are reflected in the executive summaries of their written submissions, and are 
contained in Annex  D of the Addendum to this Award, WT/DS5 91/ARB25/Add.1.  
 
22 See Working Schedule, Additional Procedures for Arbitration. See also paragraphs  11 and  16 of the 
Agreed Procedures . 
23 These third parties were Brazil, China, Japan, the Russian  Federation , and the United  States . 
24 The video recording is available at 
https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds591_e.htm . 
25 JOB/DSB/1/Add.12 and WT/DS591/3/Rev.1, respectively.  WT/DS591 /ARB25  
 
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  4  ANALYSIS OF THE ARBITRATORS  
4.1  Issues on appeal  
4.1.  We address the following issues on the basis of claims raised on appeal by Colombia26: 
a. Whether it is permissible to interpret the phrase "where appropriate " in Article  5.2(iii)  of 
the Anti-Dumping Agreement as granting "free choice " in the use of third -country sales 
prices as a basis for normal value; a nd whether the Panel erred under Articles  5.2(iii) and 
5.3 of the Anti-Dumping  Agreement by requiring an explanation as to why domestic sales 
prices were not used;  
b. Whether  the Panel erred in finding that MINCIT  acted inconsistently with Article  6.5 of the 
Anti-Dumping Agreement by granting confidential treatment to redacted information 
without a showing of "good cause "; 
c. Whether the Panel erred in finding that the European  Union 's claim under Article  2.4 of 
the A nti-Dumping Agreement concerning an exporter 's packaging cost s fell within the 
Panel 's terms of reference ; and  
d. Whether  it is permissible to interpret the term "dumped imports " in Articles  3.1, 3.2, 3.4, 
and 3.5 of the Anti -Dumping Agreement to include impo rts of exporters determined to 
have de minimis  margins of dumping.  
4.2.  The Arbitrators take due note of paragraph  12 of the Agreed Procedures, which mandates that 
the Award in this Arbitration be issued within 90 days of the filing of the Notice of Appeal, and  which 
permits the Arbitrators to "take appropriate organizational measures to streamline the proceedings ". 
Paragraph  13 of the Agreed Procedures further provides that "the arbitrators may also propose 
substantive measures to the parties, such as an exclus ion of claims based on the alleged lack of an 
objective assessment of the facts pursuant to Article  11 of the DSU ". In a pre -appeal  letter sent to 
the parties on 19  September  2022, we provided  guidelines on , inter alia, the length of written 
submissions  and hearings and the language of proceedings, and  the parties were encouraged to be 
selective in the number of claims they submitted on appeal and to refrain from making claims under 
Article  11 of the DSU.27 During these proceedings, Colombia agreed to conduct proceedings in 
English and explained to us that it had deliberately limited the claims on appeal and brought no 
claims under Article  11 of the DSU. The Arbitrators wish to acknowledge Colombia 's efforts in this 
Arbitration in a manner facilitating the issuance of the Award in a timely manner.  
4.2  Claim under Articles  5.2(iii) and 5.3 of the Anti -Dumping Agreement  
4.2.1   Introduction and Panel findings  
4.3.  Colombia challenges the Panel 's finding that Colombia acted inconsistently wit h Article  5.3 of 
the Anti -Dumping Agreement because MINCIT initiated the investigation at issue without examining 
whether the applicant 's use of third -country sales prices, instead of domestic sales prices, as a basis 
for normal value, was "appropriate ".28 Colombia focuses its appeal on the Panel 's understanding of 
the phrase "where appropriate " in Article  5.2(iii)29 and the Panel 's disreg ard for the alleged "free 
choice " an applicant has in the selection of pricing information used as a basis for normal value at 
the initiation stage of an anti -dumping proceeding.  
 
26 Colombia's Notice of Appeal, Annex  B-1.  
27 See Additional Procedures for Arbitration , Annex  2 (Annex  A-2 of the Addendum to this Awa rd 
(WT/DS591/ARB25/Add.1)).  
28 See Colombia's Notice of Appeal , para. 1  (referring to Panel  Report , paras.  7.75, 7.78, 7.79, and 
8.1.a.iii).  
29 Unless otherwise specified, all stand -alone references to provisions in this Award refer to Articles  of 
the Anti -Dumping Agreement.  WT/DS591 /ARB25  
 
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  4.4.  Articles  5.2(iii) and 5.3 of the Anti -Dumping Agreement provide:  
Article  5 
Initiation and Subsequent Investigation  
5.2 An application under paragraph  1 shall include evidence of (a) dumping, (b) injury within 
the meaning of Article  VI of GATT  1994 as interpreted by this Agreement and (c) a causal link 
between the dumped imports and the alleged injury.  Simple assertion, unsubstantiated by 
relevant evidence, cannot be considered sufficient to meet t he requirements of this paragraph. 
The application shall contain such information as is reasonably available to the applicant on the 
following:  
… 
(iii) information on prices at which the product in question is sold when destined for 
consumption in the dome stic markets of the country or countries of origin or export (or, 
where appropriate , information on the prices at which the product is sold from the country 
or countries of origin or export to a third country or countries, or on the constructed value 
of the product) and information on export prices or, where appropriate, on the prices at 
which the product is first resold to an independent buyer in the territory of the importing 
Member;  
… 
5.3 The authorities shall examine the accuracy and adequacy of the e vidence provided in the 
application to determine whether there is sufficient evidence to justify the initiation of an 
investigation.  
 
(underlining added)  
 
4.5.  The Panel found "an explicit connection or link " between Articles  5.2(iii) and 5.3.30 The Panel 
noted that, under Article  5.2(iii), the possibility of providing third -country sales prices and 
constructed value was, "unlike the case of domestic sales prices , textually limited to 'where ' this is 
'appropriate ' and forms part of a parenthetica l text".31 For the purposes of an authority 's examination 
under Article  5.3, the Panel found that the use of the phrase "where appropriate " implies, "at a 
minimum, the exercise of judgment as to the fitness, suitability, or 'appropriateness ', of using 
third-country sales prices, instead of domestic sales prices , in light of the specific situation at 
hand".32 The Panel therefore disagreed with Colombia 's interpretation that the phrase "where 
appropriate " indicates "that an applicant enjoys complete 'free choice ' to submit any information 
that it desires for calculating normal value ", noting that it would deny any effect to the meaning or 
placement of "where appropriate ", contrary to the principle of effective treaty interpretation.33 
4.6.  The Panel then examined the facts of the underlying investigation. The Panel noted that the 
Colombian Federation of Potato Producers (FEDEPAPA) "did not address why it elected to provide 
third-country sales prices rather than domestic sal es prices as the basis for the normal value 
calculation ", but simply stated that export prices to the United  Kingdom  from Belgium, France, 
Germany, and the Netherlands were used.34 The Panel noted that FEDEPAPA further explained its 
specific choice of the United  Kingdom for the third -country sales prices on the basis that it was a 
major producer, importer, and consumer of frozen precooked potatoes (perhaps the largest market 
in Europe), and that it formed part of the European  Union , which would make export prices very 
close to those in the domestic markets of the countries covered by the application.35 The Panel 
further noted that MINCIT simply recited the reasons provided by FEDEPAPA for choosing 
third-country sales prices to the United  Kingdom. For the Pan el, the record thus indicated 
"a complete absence of any explanation by FEDEPAPA or examination thereof by MINCIT as to why 
 
30 Panel  Report , para.  7.63.  
31 Panel  Report , para.  7.65. (emphasis original)  
32 Panel  Report , para.  7.69. (emphasis original)  
33 Panel  Report , para.  7.70.  
34 Panel  Report , para.  7.73.  
35 Panel  Report , para.  7.73.  WT/DS591 /ARB25  
 
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  domestic sales prices were not contained in the application and could not be used for purposes of 
initiation in the specific situati on at hand ".36 
4.7.  The Panel concluded that MINCIT had acted inconsistently with Article  5.3 because it did not 
examine whether the use of third -country sales prices, instead of domestic sales prices, was 
"appropriate ", and therefore did not examine the "adequ acy" of the evidence contained in the 
application to determine whether there was "sufficient evidence " to justify initiation.37 
4.2.2   Reviewing Colombia 's claim in light of Article  17.6 of the Anti -Dumping Agreement  
4.8.  The parties agree that our assessment of whether the Panel 's specific findings under 
Articles  5.2(iii) and 5.3 constitute a legal error must be guided by Article  17.6.38 This is the case 
even though Colombia did not file a separate claim on appeal under Article  17.6. Article  17.6 is  
relevant and applies to any interpretation of the Anti -Dumping Agreement, including ours under 
Articles  5.2(iii) and 5.3.  
Article  17 
Consultation and Dispute Settlement  
17.6 In examining the matter referred to in paragraph  5: 
(i) in its assessment of the facts of the matter, the panel shall determine whether the 
authorities ' establishment of the facts was proper and whether their evaluation of those 
facts was unbiased and objective. If the establishment of the facts was proper and the 
evaluation was unbias ed and objective, even though the panel might have reached a 
different conclusion, the evaluation shall not be overturned;  
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with 
customary rules of interpretation of publi c international law. Where the panel finds that a 
relevant provision of the Agreement admits of more than one permissible interpretation, 
the panel shall find the authorities ' measure to be in conformity with the Agreement if it 
rests upon one of those per missible interpretations.   
 
4.9.  Article  17.6(i) concerns the assessment of the facts of the matter. It charges panels with 
determining whether an investigating authority 's establishment of the facts was "proper ", and the 
evaluation of those facts was "unbiased and objective ". So long as those elements are met, the 
evaluation shall not be overturned, "even though the panel might have reached a different 
conclusion ". As the Panel in this case put it, this means tha t "a panel examining an investigating 
authority 's determination should not conduct a de novo  review of the evidence, nor substitute its 
own judgment for that of the investigating authority ."39 In this light, the Panel stated that the 
"applicable standard o f review " for examining th e European  Union 's claim under Articles  5.2(iii) and 
5.3 is "to consider whether an unbiased and objective investigating authority could have determined 
that the application and the revised application that FEDEPAPA submitted to M INCIT contained 
'sufficient ' evidence – based upon an examination of the 'accuracy ' and 'adequacy ' of the evidence  – 
to justify the initiation of an anti -dumping investigation into imports of frozen fries from Belgium, 
Germany, and the Netherlands ".40 We agree with the Panel in this respect.  
 
36 Panel  Report , para.  7.75 (emphasis added by the Panel). Colombia argued that MINCIT relied upon 
third-country sales prices in the same way as in an anti -dumping proceeding relating to imports of the same 
product to Brazil wherein the Brazilian authority had also provided reas ons why the applicant in that 
investigation unsuccessfully attempted to obtain domestic sales prices. The Panel, however, rejected 
Colombia's argument, noting that there was nothing on the record, as there had been in the Brazilian 
investigation, indicatin g that FEDEPAPA attempted to obtain, or otherwise faced difficulties in obtaining, 
domestic sales prices. (Panel  Report , para.  7.77)  
37 Panel  Report , para.  7.78.  
38 Parties' responses to questioning at the hearing.  
39 Panel  Report , para.  7.4. 
40 Panel  Report , para. 7.14 (referring to Panel  Report s, Argentina – Poultry Anti -Dumping Duties , 
para. 7.60; Mexico – Steel Pipes and Tubes , paras.  7.26 and 7.32; US – Softwood Lumber V , para.  7.79; and 
Guatemala  – Cement II , para.  8.31).  WT/DS591 /ARB25  
 
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  4.10.  Article  17.6(ii), in turn, concerns matters of legal interpretation. The first sentence requires 
that panels "shall interpret the relevant provisions of the  Agreement in accordance with customary 
rules of interpretation of public international law ". The sec ond sentence  provides that, where a panel 
finds that a relevant provision admits of more than one permissible interpretation , it must find the 
authority 's measure to be in conformity with the Agree ment "if it rests upon one of those permissible 
interpretations ". 
4.11.  The Panel stated that whether a provision admits of more than one "permissible"  
interpretation (under the second sentence) depends on whether more than one such interpretation 
emerges after the Panel has examined the relevant provision under customary rules of interpretation 
of public international law (under the first  sentence). Accordingly, the Panel stated that the "starting 
point" of its interpretative analysis required an interpretation of the relevant provision under treaty 
interpretation rules, including Articles  31 and 32 of the Vienna  Convention  on the Law of Treaties 
(Vienna  Convention ).41 
4.12.  Our approach to the interpretation c laims in this appeal differs. We do not begin the 
interpretative exercise by focusing solely on the first sentence of Article  17.6(ii), as this in our view 
pays insufficient regard to the immediate context of this sentence, namely Article  17.6(i) and the 
second sentence of Article  17.6(ii). Each of these provisions must be understood in a manner 
granting special deference to investigating authorities under the Anti -Dumping Agreement.42 The 
second sentence of Article  17.6(ii) mandates panels to defer to and accept an authority 's measure 
as soon as it "rests upon " a "permissible " interpretation. As we have noted, Article  17.6(i) prevents 
a panel from conducting a de novo  assessment of the facts on record; an authority 's establishment 
and evaluation of facts mu st be allowed to stand so long as it is "proper " and "unbiased and 
objective ", and this is the case "even though the panel might have reached a different conclusion ". 
4.13.  Reading these provisions together, we aim to integrate the elements of interpretation und er 
Article  17.6(ii). As a result, we will begin by asking ourselves whether Colombia 's proposed 
interpretation of the phrase "where appropriate " in Article  5.2(iii)  – reflected in MINCIT 's decision to 
initiate its investigation, in part, on the basis of third -country sales prices – is a "permissible " one. 
As a yardstick for "permissibility ", the first sentence of Article  17.6(ii) refers us to the customary 
rules of treaty interpretation. Ho wever, we will not engage in our own, de novo  interpretation of the 
terms "where appropriate " so as to arrive at what we consider to be the "final" or "correct " 
application of Articles  31 and 32 of the Vienna  Convention . Instead, we will ask whether a trea ty 
interpreter, using the method for treaty interpretation set out in the Vienna  Convention  – that is, an 
interpretation "in good faith in accordance with the ordinary meaning to be given to the terms of the 
treaty in their context and in the light of its object and purpose " and, where appropriate, 
"supplementary means of interpretation " – could have reached Colombia 's interpretation . And this 
even though we, as de novo  treaty interpreters, might have reached a different conclusion.  
4.14.  Our approach assumes, as the second sentence does, that different treaty interpreters 
applying the same tools of the Vienna  Convention  may, in good faith and with solid arguments in 
support, reach different conclusions on the "correct " interpretation of a treaty provision.43 This may 
 
41 Panel  Report, para.  7.286.  
42 To do otherwise would correspond to a standard interpretative exercise applicable to any 
WTO Agreement  and would fail to give effect to the unique character of Article  17.6 as it applies to the 
Anti-Dumping Agreement. Had the drafters considered that Articl e 17.6 was simply reflective of a conventional 
approach to Vienna  Convention  treaty interpretation, it is hard to see why they would have added the provision 
and why, in a separate decision , they  mandated that the " standard of review in paragraph  6 of Article  17 … 
shall be reviewed after a period of three years with a view to considering the question of whether it is capable 
of general application." (Decision on Review of Article  17.6 of the Agreement on Implementati on of Article  VI of 
the General Agreement on Tariffs and Trade 1994)  
43 See Ian Sinclair, The Vienna  Convention  on the Law of Treaties , 2nd edn (Manchester Press, 1984), 
p. 153 ("review of recent international case law on treaty interpretation reveals only too clearly that widely 
differing results can still be achieved even if a conscious effort is being made to apply the Convention rules"); 
and D. McRae, "Treaty Interpretation b y the WTO Appellate  Body: The Conundrum of Article  17(6) of the 
Anti-Dumping Agreement", in E. Cannizzaro (ed.),  The Law of Treaties Beyond the Vienna  Convention  (Oxford 
University Press, 2011), Chapter 10, p. 179 ("the Vienna  Convention  rules are not prim ary rules of obligation; 
they are secondary rules telling states and adjudicators how to go about the process of interpretation. They do 
contain obligations within them, for example, not to resort to preparatory work unless the result is ambiguous 
or manif estly absurd. They do not, however, dictate any particular result. They are facilitative not disciplinary 
and do not 'instruct the treaty interpreter to find a single meaning of the treaty' as a former Appellate  Body 
 WT/DS591 /ARB25  
 
- 16 - 
 
  be particularly true for the Anti -Dumping Agreement, which was drafted with the understanding that 
investigating authorities employ different methodologies and ap proaches. Treaty interpretation is 
not an exact science and applying the Vienna  Convention 's method does not magically and inevitably 
lead to a single result. In most cases, treaty interpretation involves weighing, balancing, and choice.  
4.15.  Thus, the ultimate  question for us when testing a proposed interpretation is to draw a line 
beyond which an interpretation is no longer "permissible " under the Vienna  Convention  method for 
treaty interpretation. D ictionary meanings support the idea that the search for "permissible " 
interpretations differs from an attempt to find one 's own – "final" and "correct " – interpretation.44 
Rather, t he question is whether  someone else 's interpretation is "permitted ", "allowable ", 
"acceptable ", or "admissible " as an outcome resulting from a proper application of the interpretative 
process called for under the Vienna  Convention . Obviously, not just any interpretation put forward 
by an authority can be accepted as "permissible ". The interpretative process under t he 
Vienna  Convention  sets out an outer range beyond which meanings cannot be accepted. Just as 
permissible interpretations cannot be limited to a single "final" and "correct " answer as determined 
by a given tribunal, not all interpretations have the required degree of solidness or analytical support 
for them to be given deference as "permissible " within the bounds of the Vienna  Convention  method 
for treaty interpretation.  
4.2.3   Whet her it is permissible to interpret the phrase "where appropriate " in 
Article  5.2(iii)  of the Anti -Dumping Agreement as granting "free choice " in the use of 
third -country sales prices as a basis for normal value  
4.16.  Colombia maintains that the "core legal issue  in this appeal is the meaning of the phrase 
'where appropriate '" in Article  5.2(iii) of the Anti -Dumping Agreement.45 Colombia considers that the 
Panel erred in its interpretation of this phrase by denying discretion to the applicant in the "free 
choice "46 of what pricing information to include in its application, and by requiring an explanation by 
the applicant and just ification by the investigating authority of the reasons for not using domestic 
sales prices as a source for normal value.47 Colombia further alleges that the Panel erred in its 
contextual consideration of Article  2.2 – which refers to third -country sales p rices and constructed 
normal value as conditional alternatives to domestic sales prices in a dumping 
determination  – leading the Panel  to import a strict hierarchy from that provision into the selection 
of pricing information at the initiation stage under Article  5.2(iii).48 
4.17.  The European  Union  maintains that the core legal issue is not the interpretation of the phrase 
"where appropriate " in Article  5.2(iii), but rather whether the investigating authority, in accordance 
with Article  5.3, examined the evidence provided in the application to determine if it was adequate 
and sufficient to justify the initiation of the investigation.49 For the European  Union , the Panel 
correctly applied interpretative rules50, and did not disregard or misinterpret the requ irements under 
 
member has written … Under this view, a n interpretation is authoritative not because of the application of the 
Vienna  Convention , but rather because of the authority of the tribunal that made the choice amongst the 
various possible interpretations. In this light, the existence of one or more permissible interpretations in any 
interpretative exercise is the norm rather than the exception. It is based on the view that the core of 
interpretation is choice."). ( fns omitted)  
44 According to the Oxford English Dictionary online, 
https://www.oed.com/view/Entry/141213?redirectedFrom=permissible - eid, "permissible" means "[t]hat can 
or ought to be permitted; allowable". The French version of the Anti -Dumping A greement uses the term 
"interprétation admissible"; in the Dictionnaires Le Robert  online, 
https://dictionnaire.lerobert.com/definition/admissible , "admissible" means " [q]u'on peut adm ettre". The 
Spanish version of the Anti -Dumping Agreement uses the term "interpretaciones admisibles"; in the Diccionario 
de la lengua española, Real Academia Española online, https://dle.rae.es/admisible ?m=form , "admisible" 
means "[q]ue puede admitirse". In the Oxford French to English Dictionary online, 
https://premium.oxforddictionaries.com/translate/french -englis h/admissible , "admissible" means "acceptable" 
and "admissible". Similarly, in the Oxford Spanish to English Dictionary online, 
https://premium.oxforddictionaries.com /translate/spanish -english/admisible , "admisible" means "acceptable" 
(all definitions accessed on 2  December  2022) . 
45 Colombia's written submission, para.  4.23.  
46 Colombia's written submission, para.  4.42. See also ibid., para.  4.19 (stating that "[t]he applicant 
may thus freely decide whether to rely on domestic sales price, third -country sales prices, or constructed 
normal value.").  
47 Colombia's written submission, paras.  4.18-4.19 and 4.24.  
48 Colombia's written submission, paras.  4.19, 4.43-4.44, and 4.70 -4.77. 
49 European  Union 's written  submission, para.  30. 
50 European  Union 's written  submission, paras.  36 and 40.  WT/DS591 /ARB25  
 
- 17 - 
 
  Articles  5.2(iii) and 5.3.51 The European  Union  also disagreed with Colombia that the Panel 's 
interpretation leads to empty formalism or an unworkable substantive test.52 
4.18.  The reading of Article  5.2(iii) advanced by Colombia poses an immediat e interpretative 
difficulty as it seeks to minimize the significance of the meaning and placement of the phrase "where 
appropriate ". Article  5.2(iii)  specifies three types of product prices for normal value: (i)  domestic 
sales; (ii)  third-country sales; and (iii) constructed normal value. The structure of the sentence, 
however, does not place these three sources of prices on equal footing. Rather than simply listing 
the three in sequence, third -country sales prices and constructed normal value, but not dome stic 
sales prices, are qualified by the phrase "where appropriate ". 
4.19.  Article  5.3, in turn, provides the lens through which this pricing information is to be examined 
at the initiation stage of an anti -dumping investigation. Specifically, Article  5.3 provide s that 
investigating authorities "shall examine the accuracy and adequacy of the evidence provided in the 
application to determine whether there is sufficient evidence to justify the initiation of an 
investigation ". As Colombia and certain third parties su bmit in this case, examining the sufficiency 
of evidence for initiation does not require the same quantity and quality of evidence as that required 
under Article  2.2, which sets out more explicit and detailed requirements when determining normal 
value duri ng the investigation phase.53 Moreover, Article  5.3 does not require an explanation as to 
how an authority 's examination is carried out.54 Article  5.2, which provides that "[s]imple  assertion, 
unsubstantiated by relevant evidence, cannot be considered sufficient " and limits what must be 
contained in an application to "information as is reasonably available to the applicant ", confirms this 
relatively low evidentiary threshold at the i nitiation stage.  
4.20.  When we read Articles  5.2(iii) and 5.3 together, in accordance with the Vienna  Convention  
method for treaty interpretation, we cannot accept Colombia 's interpretation as a "permissible " one. 
First, the fact that the phrase "where appropria te" only applies to third -country sales prices and 
constructed normal value signifies that only these prices require an authority to "examine " their 
"appropriateness " to initiate an investigation. We note that, with regard to such an assessment, 
Colombia d oes not take issue with the Panel 's proposed definitions of "where appropriate " as "[i]n a 
or the case in which, in the circumstances in which ", or "[s]pecially fitted or suitable ".55 Colombia 
also agrees that Article  5.3 requires an investigating authorit y to examine an application to 
determine that there is sufficient evidence to initiate an investigation, albeit limited to assessing 
whether the evidence is "accurate " and "adequate " as a matter of substance.56 
4.21.  Second, the fact that the phrase "where appropriate " attaches to third -country sales prices 
and constructed normal value indicates to us that, as a general matter, domestic sales prices are to 
be accorded greater evidentiary value since an assessment as to  "appropriateness " with regard to 
such prices is not required.57 Colombia argues that the fact that the language in Article  5.2(iii) 
"stands in stark contrast " to the detailed language in Article  2.2 "strongly suggests " that the drafters 
did not intend the  "strict hierarchy " in Article  2.2 to apply in the context of Article  5.2.58 We agree. 
However, recognizing the evidentiary value of domestic sales prices does not amount to importing 
the requirements or a "strict hierarchy" from Article  2.2 into Article  5.2(iii). As noted, in the context 
of initiation of an investigation under Article  5.3, all that is required is that the evidence in the 
 
51 European  Union 's written  submission, paras.  43-48. 
52 European  Union 's written  submission, paras.  49-50 (referring to Colombia's written submission, 
paras. 4.84 -4.87) . 
53 Colombia's written submission, paras.  4.19 and 4.43 -4.44; Brazil's third party 's written submission, 
paras.  3-6; Japan's third party 's written submission, para.  21; United  States ' third party 's written submission, 
paras.  6 and 8. See also Panel  Report , Guatemala – Cement  II, para.  8.35.  
54 Panel  Report , EC – Bed Linen , para.  6.198.  
55 Colombia's  written submission, para.  4.23 (quoting Panel  Report , para.  7.69). Colombia maintains the 
same meaning is conveyed by the French phrase "le cas échéant " and the Spanish phrase "cuando proceda". 
(Ibid.)  
56 Colombia's written submission, paras.  4.20, 4.52, and 4.79.  
57 Similarly, the appearance in Article  5.2(iii) of the phrase "where appropriate" before the reference to 
"prices at which the product is first resold to an independent buyer" in the importing Member suggests that 
greater evidentiary value attaches to "information on export prices". Although, l ike Colombia, we see no reason 
to import the strict hierarchy from Article  2 into the selection of pricing information at the initiation stage under 
Article  5.2(iii), we disagree with Colombia that Article  2.3 grants the authority discretion in its use of 
constructed export price s, since such reliance is conditioned on there being no export price or an export price 
that is unreliable. (Colombia's written submission, para.  4.48)  
58 Colombia's written submission, paras.  4.43-4.44. WT/DS591 /ARB25  
 
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  application must be sufficient . Indeed, as Brazil argued before us, Article  5.2 does not demand the 
submission of the best information available, but only that information which is reasonably available  
to the applicant.59 Thus, when MINCIT was faced with an application that advanced third -country 
sales prices, Articles  5.2(iii) and 5.3, when read together, required an exami nation of the 
"appropriateness " of that evidence, bearing in mind that the use of domestic sales prices would not 
have attracted such an assessment.  
4.22.  Accordingly, we do not see how a treaty interpreter, using the method for treaty interpretation 
set out in the Vienna  Convention , could ha ve reached Colombia 's understanding of the phrase 
"where appropriate ". We agree with the Panel that Colombia 's interpretation of "where appropriate " 
as granting an applicant "free choice " in the selection of normal value prices "would deny any effect 
to th e meaning or placement of the term 'where appropriate ', contrary to the principle of 
effectiveness in treaty interpretation ".60 At the hearing, Colombia indicated that the phrase is not 
redundant because it is meant precisely to signal that the strict hier archy set out in Article  2.2 is not 
to be imported into the selection of pricing information under Article  5.2(iii). However, this would 
seemingly have been accomplished had the phrase "where appropriate " simply not featured in the 
provision. While we agre e with Colombia and third parties when they argue that the strict hierarchy 
in Article  2.2 cannot be imported into Articles  5.2(iii) and 5.3 given that Article  2.2 requires a  more 
stringent evidentiary standard for the investigation phase of an anti -dumpin g proceeding, the 
meaning and placement of the phrase "where appropriate " can only be given effect if it indicates, as 
we have suggested, some duty on MINCIT to examine the sufficiency of third -country sales prices 
in light of an evidentiary preference for  domestic sales prices.  
4.23.  We also find unavailing Colombia 's other arguments regarding the level of discretion it reads 
into Article  5.2(iii).  For instance, Colombia points to provisions in several WTO agreements where 
the phrase "where appropriate " appears in order to support its view that the phrase denotes a 
discretionary choice.61 Given the very different agreements and circumstances in which the phrase 
appears, in relation to different decision makers in different settings, we are unable to discern that 
they support a generalized understanding of the phrase to grant "free choice " in the selection  of 
pricing information under Articles  5.2(iii) and 5.3, as argued by Colombia.  
4.24.  Accordingly, we see no reason to disturb the Panel 's view that an authority 's examination of 
the sufficiency of evidence under Article  5.3 "requires, at the very least, an exercise of judgment as 
to the suitability or appropriateness of using third -country sales prices, instead of domestic sales 
prices, in the specific s ituation before it ".62 
4.2.4   Whether the Panel erred under Articles  5.2(iii) and 5.3 of the Anti -Dumping 
Agreement by requiring an explanation as to why domestic sales prices were not used as 
a basis for normal value  
4.25.  Colombia further contends that the Panel erred under Articles  5.2(iii) and 5.3 of the 
Anti-Dumping Agreement by requiring FEDEPAPA to explain why it did not use domestic sales 
prices.63 For Colombia, this constitutes legal error because the relevant provis ions do not mandate 
such an explanation, and lead s to empty formalism or an unworkable substantive test.64 
4.26.  The European  Union  maintains that the Panel was correct not to require an explanation by 
the applicant as a matter of interpretation under Article  5.3, but rather noted that there was no 
explanation from FEDEPAPA on the record as to why domestic sales prices were not provided.65 
4.27.  We observe from the Panel 's consideration of this issue that MINCIT requested FEDEPAPA  to 
submit information on "[a] definition of the normal value selected for the purpose of determining 
the dumping margin … that is to say, the price of the product under consideration set by Belgium ".66 
 
59 Brazil's third  party 's written submission, para.  7. See also Japan's third  party 's written submission, 
para. 19; and United  States ' third  party 's written submission, paras.  6-7. 
60 Panel  Report , para.  7.70.  
61 Colombia's written submission, paras.  4.45-4.46. 
62 Panel  Report , para.  7.70.  
63 Colombia's written submission, paras.  4.18-4.19 and 4.24.  
64 Colombia's written submission, paras.  4.50-4.65 and 4.84-4.89. 
65 European  Union 's written  submission, paras.  24-28. 
66 Panel  Report , para.  7.72 (quoting  MINCIT's deficiency letter to FEDEPA PA (Panel Exhibit EU -9a)). WT/DS591 /ARB25  
 
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  In its revised application, FEDEPAPA indicated that i t was using export prices to the United  Kingdom  
as a basis for normal value, adding that the United  Kingdom  (like the countries covered by the 
application) was a member of the European  Union and subscribed to the free movement of goods 
within a common mark et. This, FEDEPAPA explained, "would make the prices of exports from these 
countries to the British market very close to those in the domestic market of the country that is the 
subject of this application ".67 Finally, we know that MINCIT repeated in its no tice of initiation 
FEDEPAPA 's rationale for the use of export prices to the United  Kingdom .68 The Panel concluded from 
this that the record indicates "a complete absence of any explanation by FEDEPAPA or examination 
thereof by MINCIT as to why domestic sal es prices were not contained in the application and could 
not be used for purposes of initiation in the specific situation at hand ".69 
4.28.  The Panel 's analysis represents, in our view, an overly stringent application of the legal 
standard. As the Panel itself acknowledged, the task is to consider whether an unbiased and objective 
investigating authority, based on an examination of the "accuracy " and "adequacy " of the evidence, 
could have determined that the application contained "sufficient evidence " to initiate the 
investigation.70 To satisfy Articles  5.2(iii) and 5.3 in the present case, MINCIT  was required to 
examine the "appropriateness " and "sufficiency " of the United  Kingdom  export prices in light of the 
evidentiary value of domestic sales prices. Given that the authority had asked the applicant to define 
the normal value selected with reference to domestic sales prices for Belgium, and that the applicant 
then explained that it was relying on export prices to the United  Kingdom , which formed part of a 
common market with the relevant countries (like Belgium) and therefore represented prices that 
were "very close " to domestic sales prices, we consider that fa ctual findings by the Panel 
demonstrate that there was a proper basis in the application for MINCIT to have examined the 
"appropriateness " and "sufficiency " of those export prices because the information was framed in 
terms of their evidentiary value vis -à-vis domestic sales prices.71 We recall that, for the purpose of 
initiating an investigation under Article  5.3, the quantity and quality of evidence needed is 
necessarily lower than what is  required to impose anti -dumping measures.72 The information need 
not be the best evidence, only that which is sufficient  to initiate an investigation. Moreover, as 
Colombia noted, MINCIT  ultimately relied on domestic sales prices as the basis for normal value in 
its final determination.73 
4.29.  We also take note of the Panel 's recognition that FEDEPAPA had included as an annex in its 
application a Brazilian investigating authority 's initiation decision in its anti -dumping investigation 
on frozen potatoes, in which it was explained that the Brazilian applicant was unable to obtain the 
internal price within the relevant European  Union member States, and that, because the 
United  Kingdom was part of  the European  Union 's single market, its prices were an appropriate basis 
for normal value.74 This provides an additional indicator of what was contained in the application 
before MINCIT that could have informed its examination of the "appropriateness " and "sufficiency " 
of using export prices to the United  Kingdom  in relation to domestic sales prices.  
4.2.5   Conclusion  
4.30.  Taking due account of the special standards set out in Article  17.6 of the Anti -Dumping 
Agreement, we conclude that Colombia 's interpretation of th e phrase "where appropriate " in 
Article  5.2(iii) is not a permissible one; that is, one that a  treaty interpreter, using the 
Vienna  Convention  method for treaty interpretation, could have reached. Accordingly, we see no 
basis to disturb the Panel 's articul ation of the legal standard that an authority 's examination of the 
 
67 Panel  Report , para.  7.73 (quoting revised application (Panel Exhibit EU -10)). 
68 Panel  Report , para.  7.74 ( referring to  notice of initiation (Panel Exhibit EU -1a)). 
69 Panel  Report , para.  7.75. (emphasis original)  
70 See Panel  Report , para.  7.14 (referring to Panel  Report s, Argentina – Poultry Anti -Dumping Duties , 
para. 7.60; Mexico – Steel Pipes and Tubes , paras.  7.26 and 7.32; US – Softwood Lumber V , para.  7.79; and 
Guatemala  – Cement II , para.  8.31).  
71 Arguably, sales to the United  Kingdom  did not, at the time, constitute sales to a distinct market since 
the United  Kingdom  was part of the customs union of the European  Union . The Anti -Dumping Agreement does 
not clarify how the concept of a "thir d country" is to be understood where multiple countr ies comprise a 
customs territory or single market. In any event, this interpretative question is not before us.  
72 See paras.  4.19-4.21 above ; and Panel  Report , Morocco – Definitive AD Measures on Exercise Books 
(Tunisia) , para.  7.353 ("[A] number of panels have recognized that the quantity and quality of evidence 
provided at  the complaint stage would necessarily be lower than the evidence required to impose anti -dumping 
measures.").  See also Colombia's written submission, paras.  4.66-4.69 and 4.78 -4.80.  
73 Colombia's written submission, para.  4.8. 
74 Panel  Report , fn 176 to par a. 7.76.  WT/DS591 /ARB25  
 
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  sufficiency of evidence under Article  5.3 "requires, at the very least, an exercise of judgment as to 
the suitability or appropriateness of using third -country sales prices, instead of dome stic sales prices, 
in the specific situation before it ".75 
4.31.  At the same time, we find that the Panel applied this standard in an overly stringent manner 
to MINCIT 's examination of the evidence in the circumstances before it. Given that Article  5.3 
requires that an investigating authority must find "sufficient evidence " in the application to initiate 
an investigation, we consider that relevant factual findings by the Panel show that the application, 
which MINCIT examined, reflected information on  the use of third -country sales prices that was 
framed in terms of their evidentiary value vis -à-vis domestic sales prices, and we therefore do not 
see that an assessment of "appropriateness " required that an additional explanation  be provided or 
examined as to why domestic sales prices were not used. We therefore disagree with the Panel that 
an unbiased and objective authority could not have found that the evidence in FEDEPAPA 's 
application was "sufficient " to initiate the investigation.  
4.32.  On the basis of th e above, we reverse  the Panel 's findings in paragraphs  7.75, 7.78, 7.79, 
and 8.1.a.iii of its Report, and find that relevant factual findings by the Panel demonstrate that 
MINCIT satisfied its duty under Articles  5.2(iii) and 5.3 of the Anti -Dumping Agreem ent, for the 
purpose of initiating an investigation, by examining the "appropriateness " of third -country sales 
prices consisting of export prices to the United  Kingdom , including, in particular, their sufficiency 
vis-à-vis domestic sales prices. Accordingl y, we find that the European  Union  has not established 
that Colombia acted inconsistently with Article  5.3 of the Anti -Dumping Agreement.  
4.3  Claim under Article  6.5 of the Anti -Dumping Agreement  
4.3.1   Introduction and Panel findings  
4.33.  Colombia challenges the Panel 's finding that Colombia acted inconsistently with its obligations 
under Article  6.5 of the Anti -Dumping Agreement with respect to certain redacted information in 
section d(i) of FEDEPAPA 's revised application because MINCIT  granted confidential treatment to this 
information without a showing of "good cause ".76 In Colombia 's view, because FEDEPAPA  never 
submitted a request for confidential treatment of the information at issue, and MINCIT never granted 
confidentiality to that information, the requirement under Article  6.5 to treat the information as 
confidential upon a showing of good cause was not  triggered. Colombia further argues that the 
information at issue was in any event disclosed in other documents on the public record.  
4.34.  Article  6.5 of the Anti -Dumping Agreement provides:  
Article  6 
Evidence  
6.5 Any information which is by nature confidential  (for example, because its disclosure would be 
of significant competitive advantage to a competitor or because its disclosure would have a 
significantly adverse effect upon a person supplying the information or upon a person from whom 
that person acquired the information), or which is provided on a confidential basis by parties to an 
investigation shall, upon good cause shown, be treated as such by the authorities. Such information 
shall not be disclosed without specific permission of the party submitting i t.  
 
4.35.  The Panel noted that Article  6.5 addresses confidential treatment by investigating authorities 
of two categories of information: that which is by nature confidential, and  that which is submitted 
on a confidential basis by parties to an investigation.  The Panel further noted that a showing of "good 
cause " is a "condition precedent for according confidential treatment to information submitted to an 
 
75 Panel  Report , para.  7.70.  
76 See Colombia's Notice of Appeal , para. 2  (referring  to Panel  Report , paras.  7.126, 7.152.a, and 
8.1.b.i).  WT/DS591 /ARB25  
 
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  authority "77 and applies to both categories of information.78 The Panel added that authorities are 
required to objectively assess the alleged "good cause " offered as the basis of the request for 
confidential treatment.79 
4.36.  The Panel then noted that the information at issue – contained in section d(i) of the revised 
application – concerned the injury alleged by FEDEPAPA with respect to the Colombian 
potato -processing industry.80 As the Panel further observed, that section contained certain 
information that was redacted by the applicant81, but for which no showing of "good cause " had been 
offered by the applicant or requested by MINCIT.82 Nonetheless, the Panel considered it "apparent 
that MINCIT  treated this information as confidential, even in the absence of a showing of 'good 
cause ' by the applicant ".83 The Panel rejected Colombia 's argument that, given that the applicant 
never requested that the redacted information be treated as confidential,  MINCIT did not grant such 
confidential treatment , and therefore Article  6.5 does not apply. The Panel instead found that "the 
fact that the applicant submitted information on a redacted basis without a showing of 'good cause ' –
coupled with the fact that M INCIT treated this information confidentially  – demonstrates a lack of 
compliance with Article  6.5."84 
4.37.  The Panel further rejected Colombia 's argument that the availability of the redacted 
information elsewhere on the record discharged MINCIT from complying  with the obligations under 
Article  6.5. According to the Panel, there was no clear indication that the content of the redacted 
information was made available elsewhere on the record. In addition, the Panel rejected Colombia 's 
assertion that the fact that the relevant tables , one of which was in the original application  and 
non-redacted , share the same title, structure, and source of information was enough to show that 
the information in the original and revised applications were the same. The Panel therefo re 
"disagree[d] with Colombia 's argument that a joint reading of both applications 'clearly shows ', and 
enables a reader to 'easily infer ', that the redacted information in the revised application was, 'in 
reality ', the same  as the relevant information con tained in the original application ".85 
4.3.2   Whether  the Panel erred in finding that MINCIT acted inconsistently with Article  6.5 
of the Anti -Dumping Agreement by granting confidential treatment to redacted 
information without a showing of "good cause " 
4.38.  The core premise of Colombia 's claim on appeal is that a "request " for confidentiality was 
required to trigger the obligations in  Article  6.5.86 Colombia argues that, since there was not an 
explicit request to treat certain redacted information in the revised application as confidential, 
MINCIT can neither be found to have accorded confidential treatment to the information nor to ha ve 
failed to require a showing of good cause under Article  6.5.87 In addition, Colombia maintains that 
the redacted information at issue was not treated as confidential as it was available in a non -redacted 
form elsewhere on the public record (i.e. the ori ginal application).88 
4.39.  The European  Union  responds that  the Panel correctly found that, despite the absence of an 
explicit request, MINCIT did grant confidential treatment to the information in section d( i) of the 
revised application, and that other interes ted parties were prevented from viewing the information 
redacted from the revised application.89 
 
77 Panel  Report , para.  7.115 (quoting Appellate  Body Report, EC – Fasteners  (China)  (Article  21.5 – 
China) , para.  5.38).  
78 Panel  Report , para.  7.115 (referring to Appellate  Body Report, EC – Fasteners  (China) , para.  537; and 
Panel  Report , Guatemala  – Cement II , para.  8.219).  
79 Panel  Report , para.  7.117 (referring to Appellate  Body Report, EC – Fasteners  (China)  (Article  21.5 – 
China) , paras.  5.39-5.40; and Panel  Report , Korea – Pneumatic Valves (Japan) , paras.  7.427 and 7.440).  
80 Panel  Report , para.  7.120.  
81 Panel  Report , para.  7.120.  
82 Panel  Report , para.  7.122.  
83 Panel  Report , para.  7.122.  
84 Panel  Report , para.  7.126.  
85 Panel  Report , para.  7.125 . (emphasis original)  
86 Colombia's written submission, paras.  5.12-5.13. 
87 Colombia's written submission, paras.  5.16-5.23. 
88 Colombia's written subm ission, paras.  5.26-5.28. 
89 European  Union 's written  submission, paras.  61-63. WT/DS591 /ARB25  
 
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  4.40.  We do not understand Colombia  to challenge the Panel 's articulation of the legal standard 
with respect to Article  6.5 per se . As Colombia clarified at the hear ing, it does not maintain that an 
explicit request for confidential treatment is always  required to trigger the obligations under 
Article  6.5, but rather that, in the circumstances of this case, where the redacted information at 
issue, unlike other informa tion provided, was not subject to such a n explicit  request, MINCIT could 
not be found to have acted inconsistently with Article  6.5.90 We note that Article  6.5 does not itself 
refer to a "request ", but rather provides that, when information "is provided on a confidential basis " 
by a party to an investigation, it shall be "treated as such " by the investigating authority upon a 
showing of "good cause ". 
4.41.  The underlying facts set out by the Panel are as  follows. After FEDEPAPA filed its original 
application in this dispute, MINCIT sent a letter requesting, inter alia, "[t]he identification and 
justification of confidential documents and a summary or non -confidential version of these 
documents ".91 FEDEPAP A, in its revised application, stated that "[t]he specific names of the domestic 
industry companies, all their financial information, and in general numerical, and any data that is 
classified as a trade secret, are confidential. "92 FEDEPAPA then submitted an annex of its revised 
application as confidential information ( Annex 10) and redacted certain information in a separate 
section of the revised application (section d(i)), entitled "injury  for the potato -processing industry ".93 
MINCIT thereafter granted c onfidential treatment to "anything related to financial information or 
data considered to be part of trade secrets ", but stated that the specific names of the companies in 
the domestic industry cannot be considered confidential.94 Only t he revised applicat ion with the 
redactions to section d(i) was on the public record.95 
4.42.  As we understand it, FEDEPAPA submitted both redacted and non -redacted versions of its 
revised application.96 The redacted version contained redactions to two portions of the revised 
application: (i)  section d(i) , which concerned the alleged injury to the Colombia potato -processing 
industry; and (ii)  Annex 10, which contained information on the three domestic com panies on whose 
behalf FEDEPAPA filed its application.97 However, as Colombia confirmed before the Panel, 
FEDEPAPA 's explicit request for confidential treatment concerned Annex 10 only, and did not relate 
to section d(i).98 Subsequently, however, the redac tions to section d(i) of the revised application 
remained on the public record without any further action, including any showing of "good cause ", 
being undertaken by FEDEPAPA or MINCIT.99 Moreover, a non -redacted version of section d(i) of the 
revised appl ication was never put on the public record.100 
4.43.  Article  6.5 states that a showing  of good cause  is required as soon as information was 
"provided on a confidential basis " by a party to an investigation, and that it was "treated as such " 
by the investigating a uthority.  As we see it, the act of submitting information in both redacted and 
non-redacted forms indicates that such information was, in the language of Article  6.5, "provided on 
a confidential basis ". Likewise, the fact that MINCIT allowed section d(i) o f the revised application 
to remain on the public record in that redacted form indicates that such information was, in the 
language of Article  6.5, "treated " as confidential by MINCIT. Because there was no showing of "good 
 
90 Colombia's responses to questions at the hearing.  
91 Panel  Report , para.  7.110 (quoting MINCIT's deficiency letter to FEDEPAPA  (Panel Exhibit  EU-9a), 
numeral  5). 
92 Panel  Report , para.  7.110 (quoting revised application ( Panel Exhibit  EU-10), section 11).  
93 Panel  Report , para.  7.110 and fn 241 thereto (referring to Colombia's  response to Panel question 
No. 1.1, para.  3; and quoting revised application ( Panel Exhibit  EU-10), section  10 d(i) ).  
94 Panel  Report , para.  7.110 (quoting notice of initiation ( Panel Exhibit  EU-1a), section  1.5). 
95 Panel  Report , paras.  7.122 and 7.126. See also Panel  Report , fn 261 to para.  7.120 (referring to the 
redacted and non -redacted versions of the revised application in Panel Exhibits EU -10 and COL -67). 
96 Panel Exhibits EU -10 and COL -67, respectively.  
97 Panel  Repor t, para . 7.110 and fn 241 thereto. The Panel explained that, although the confidential 
information of the domestic companies was set out in Annexes 10 -12 of the revised application, it would refer 
to these three annexes as " Annex 10" for ease of reference.  (Ibid. , fn 241 to para.  7.110)  
98 Panel  Report , paras.  7.120 and 7.122 and fn 267 thereto (referring to Colombia's response to Panel 
question No.  13.2, para.  67). 
99 Panel  Report , para.  7.122 ( stating that "[t]he parties thus do not dispute that the applicant did not 
attempt to show 'good cause' for the confidential treatment of this information.") . 
100 The European  Union  noted at the hearing that the first time it was able to see the information that 
had been redacted was when the non -redacted version had been provided to the Panel in these proceedings. 
(European  Union 's responses to questions at the hearing; see also Panel  Report , fn 261 to para.  7.120 
(referring to  section d( i) of the redacted and non -redacted versions of the revised application in Pa nel Exhibits 
EU-10 and COL -67)) WT/DS591 /ARB25  
 
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  cause " for the information to be treated as confidential, MINCIT has acted in a manner inconsistent 
with Article  6.5.101 
4.44.  Colombia further contends that the redacted information in section d(i) cannot be found to 
have been treated as confidential as it was availab le in a non -redacted form elsewhere on the record. 
As Colombia puts it, "any interested party seeking the information otherwise redacted in the revised 
application could have found it in the equivalent table in the original application, which was placed 
on the public record. "102 In support, Colombia points to the Panel 's statement that the "'relevant 
tables ' in both applications 'share the same title, structure, and source of information '".103 
4.45.  The Panel stated that such similarities were "not enough to demons trate that the information 
at issue was the same ".104 Specifically, the Panel found that the similarities did not by themselves 
"demonstrate (or make it easy to 'infer') that the specific 'values ' or 'trends ' redacted in one table  are 
the same  as the 'value s' or 'trends ' allegedly available in another table ".105 Accordingly, the Panel 
rejected Colombia 's argument that a reading of both applications "clearly shows ", or enabled a 
reader to "easily infer ", that the redacted information in section d(i) of the revised application was 
the same as the relevant information contained in the original application.106 
4.46.  That the same information redacted in one document is available and disclosed in another 
document may mean that the applicant no longer considers that the  information is truly kept 
"confidential ". However, for the exporter and other interested parties, that is not necessarily the 
case. Interested parties must not only search and identify the exact place in the other document 
where the information can be fou nd. In addition, they cannot be certain if the information provided 
in one document and that withheld in another is really the same. The applicant may know for certain; 
the exporter cannot be sure. On the contrary, the fact that the information was redacte d in a later 
document could lead an interested party to believe  that there must have been a change to that 
information justifying the difference in treatment from non -redacted to redacted.  
4.47.  In light of the Panel 's factual finding that a joint reading of bot h applications did not clearly 
show, or enable a reader to easily infer, that the redacted information in section d(i) was the same 
as the information contained in the original application, we see no basis to disturb the Panel 's 
understanding that such inf ormation was properly regarded as having been granted confidential 
treatment by MINCIT.107 
4.3.3   Conclusion  
4.48.   On the basis of the above, we uphold  the Panel 's finding, in paragraphs  7.126, 7.152.a, and 
8.1.b.i of its Report, that the European  Union  had established  that Colombia acted inconsistently 
with its obligations under Article  6.5 of the Anti -Dumping Agreement with respect to the redacted 
information in section d(i) of FEDEPAPA 's revised application because MINCIT granted confidential 
treatment to this inform ation without a showing of "good cause " by the applicant.  
 
101 For this reason, our consideration of this matter is not coloured by Colombia's contention that the 
European  Union  should have instead brought a claim under Article  6.4 of the Anti -Dumping Agreement, which 
relates to the r equirement of an authority to provide timely opportunities to interested parties to see 
non-confidential information relevant to the presentation of their cases. (Colombia's responses to questions at 
the hearing; see also Colombia's written submission, par a. 5.23 and fn 86 thereto) Because we deem that 
information in section d(i) of the revised application was accorded confidential treatment by MINCIT, Article  6.4 
is not applicable to that information.  
102 Colombia's written submission, para . 5.27.  
103 Colombia's written submission, para.  5.26 (quoting Panel  Report , para.  7.125).  
104 Panel  Report , para.  7.125. (emphasis original)  
105 Panel  Report , para.  7.125. (emphasis original)  
106 Panel  Report , para.  7.125.  
107 Colombia argues that the information in footnote 3 to section d(i) of the revised application was not 
treated as confidential because it was ultimately disclosed by MINCIT in its notice of initiation. (Colombia's 
written submission, paras.  5.24-5.25) Howe ver, we do not see that this alters the Panel's and our 
consideration that the information contained in the main text of section d(i), which remained on the public 
record in its redacted form, was  properly regarded as having been granted confidential treat ment by MINCIT.  WT/DS591 /ARB25  
 
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  4.4  Claim under Article  6.2 of the DSU  
4.4.1   Introduction and Panel findings  
4.49.  Colombia appeals the Panel 's finding that the  European  Union 's panel request satisfied the 
requirement of Article  6.2 of the DSU with respect to the European  Union 's "packaging cost -related 
claim " under Article  2.4 of the Anti -Dumping Agreement and that, therefore, such claim fell within 
the Panel 's terms of reference.108 The "packaging cost -related claim " at issue con cerned the 
European  Union 's allegation before the Panel that "Colombia acted inconsistently with the 
requirement under Article  2.4 to make a fair comparison because MINCIT did not grant [Belgium 
exporter] Mydibel 's adjustment request and, instead, elected to exclude certain packaging costs 
from the export price but retained packaging costs on the normal value side ."109 According to 
Colombia, while the first part of this allegation, on the failure to grant an adjustment request, was 
contained in the panel req uest, the second part, regarding the exclusion of certain packaging costs 
from the export price side alone, was a separate claim raised only during the panel proceedings and 
hence fell outside the Panel 's terms of reference.110 
4.50.  Article  6.2 of the DSU provides, in relevant part:  
Article  6 
Establishment of Panels  
2. The request for the establishment of a panel shall be made in writing.  It shall indicate whether 
consultations were held, identify the specific measures at issue and provide a brief summary of the 
legal basis of the complaint sufficient to present the problem clearly .  
4.51.  The relevant part of the European  Union 's panel request , including its paragraph 5,  reads as 
follows:  
The measures at issue described above [in the pan el request] appear to be inconsistent 
with Colombia 's obligations under the following provisions of the covered agreements:  
5. Article  2.4 of the Anti -Dumping Agreement because Colombia did not make a fair 
comparison between the export price and the normal  value. In particular , Colombia did 
not make due allowances  for differences which  affect price comparability , including for 
differences in physical characteristics and/or any other differences between the products 
sold on the domestic markets in Belgium, G ermany and the Netherlands, and the 
products under investigation sold on the export market, which were demonstrated to 
affect price comparability. Inter alia , Colombia disregarded  the differences between the 
types of products, the different proportions of high and low value products exported to 
Colombia, as compared to domestic sales in Belgium, Germany and the Netherlands, as 
well as differences in packaging  and differences resulting from the use of different types 
of oils.111 
4.52.  In addition, Article  2.4 of th e Anti -Dumping Agreement provides, in relevant part:  
 
108 See Colombia's Notice of Appeal , para. 3  (referring to Panel  Report , paras.  7.232 -7.233, 7.244, and 
8.1.d.ii).  
109 Panel  Report , para.  7.218.  (fn omitted)  
110 Colombia's written submission, para.  6.1. See also Panel  Report , paras.  7.219 and 7 .223. Colombia 
requests that we declare "moot and of no legal effect" the Panel's substantive finding under Article 2.4 should 
we accept Colombia's appeal under Article 6.2 of the DSU. (Colombia's written submission, paras. 6.35 and 
6.38)  
111 WT/DS591/2, pp.  2-3. (emphasis added)  WT/DS591 /ARB25  
 
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  Article  2 
Determination of Dumping  
2.4 A fair comparison shall be made between the export price and the normal value.  … Due 
allowance shall be made in each case, on its merits, for differences which affect price 
comparability, including differences in conditions and terms of sale, taxation, levels of trade, 
quantities, physical characteristics, and any other differences whi ch are also demonstrated 
to affect price comparability.  
4.53.  By way of background, the European  Union 's "packaging cost -related claim " at issue arose 
from the following facts that transpired before MINCIT.112 In its questionnaire response during the 
investigat ion, Mydibel stated that, while it used the same packaging materials in all of its sales, the 
costs of these common components differed between products made for export and those made for 
domestic sales, due to differences in product types and customer spe cifications.113 In particular, 
customers in its domestic market requested packaging material that incurred higher costs.114 To 
account for this difference, Mydibel requested an adjustment115 by listing the cost of "packaging 
material " as one of the elements of the cost of manufacture, and identifying the amount incurred 
for packaging for each product type.116 
4.54.  MINCIT did not make the adjustment requested by Mydibel.117 Instead, MINCIT deducted 
certain packaging costs from the export price118, without making any corresponding adjustment to 
the normal value119, resulting in a so -called "asymmetrical deduction ".120 In its comments on 
MINCIT 's essential facts disclosure, Mydibel  stated explicitly that its exports did not incur any 
additional  export packaging costs distinct from those incurred in its domestic sales.121 
Notwithstanding Mydibel 's comment, MINCIT maintained that it deducted costs for "export  packaging 
material " from t he export price alone (thereby increasing any margin of dumping), and that it did 
not make any normal value adjustment for packaging costs (which would have decreased the margin 
of dumping) because, in its view, "packaging  costs … are part of the productio n … costs ."122 
4.55.  During the panel proceedings, the European  Union  submitted that Colombia acted 
inconsistently with the requirement under Article  2.4 to make a fair comparison, because MINCIT 
"erred in declining " Mydibel 's adjustment request "for differences in the cost of the common 
packaging components ", and then "compounded the error " by making the "asymmetrical 
deduction ".123 Colombia challenged the sufficiency of the panel request under Article  6.2 of the DSU, 
 
112 Our brief description of these facts is based on the Panel's factual findings not subject to appeal.  
113 Panel  Report , paras.  7.217 and 7.234 (referring to Mydibel's  questionnaire response ( Panel 
Exhibit  EU-30a (BCI)), section  5; Myd ibel's comments on the essential facts technical report ( Panel 
Exhibit  COL-1 (BCI)), pp.  10-11 and 21).  
114 Panel  Report , para.  7.234 (referring to Mydibel's comments on the essential facts technical report 
(Panel Exhibit  COL-1 (BCI)), p.  21). 
115 Panel  Report , para.  7.217 (referring to European  Union's  first written submission  to the Panel , 
paras.  182-183; Mydibel's  questionnaire response ( Panel Exhibit  EU-30a (BCI)), section  5). 
116 Panel  Report , para.  7.238 (referring to Mydibel's  questionnaire response ( Panel  Exhibit  EU-30a 
(BCI)), section  5; Mydibel's questionnaire response, Annex 3.2.1.2, 3rd workbook "costes de manufactura" 
(Panel Exhibit  EU-30.1 (BCI)).  
117 Panel  Report , para.  7.217.  
118 See Panel  Report , fn 468 to para.  7.242 (referring to European  Union 's second written submission  to 
the Panel , para.  74 (arguing  that "the amount that MINCIT deducted from the export price … corresponds to 
what Mydibel indicated as regular full packaging costs" and "is roughly the same amount as what was included 
as full packaging costs on the normal value side")). The Panel noted that "Colombia neither substantiated its 
assertions concerning the existence of export … packaging costs, nor attempted to rebut the 
European  Union's  arguments to the contrary ." (Ibid., para . 7.242)  
119 Panel  Report , para.  7.217 (referring to MINCIT's responses to comments on essential facts ( Panel 
Exhibit  EU-17a), section  7). 
120 See e.g. Colombia's written submission, para.  6.4.  
121 Panel  Report , para.  7.238 (referring to Mydibel's comments on t he essential facts technical report 
(Panel Exhibit  COL-1 (BCI)), pp.  14 and 17).  
122 Panel  Report , para.  7.239 (quoting MINCIT 's responses to comments on essential facts ( Panel 
Exhibit  EU-17a), section  7) (emphasis  added by the Panel); European  Union 's respo nse to questioning at the 
hearing.  
123 Panel  Report , para.  7.235 (referring to European  Union's  first written submission  to the Panel , 
para. 183). See also Panel  Report , para.  7.218.  WT/DS591 /ARB25  
 
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  arguing that, whereas the panel request referred to MINCIT 's alleged "disregard " of packaging costs 
differences, the allegation against the "asymmetrical deduction " developed in the European  Union 's 
first written submission was "substantively different " from that which was in the panel request.124 
In the alternative, Colombia also challenged the merits of the European  Union 's above allegation.125 
4.56.  The Panel, having examined the panel request and how the European  Union  developed its 
claim during the panel proce edings, found that "the European  Union 's panel request did not need to 
engage in detail with all the factual aspects of the calculation that led to Colombia 's alleged failure 
to perform a fair comparison ."126 "In particular ", the Panel stated, "it was not n ecessary for the panel 
request to outline which specific adjustment was allegedly not – or incorrectly – made and why ."127 
The Panel therefore concluded that Article  6.2 of the DSU does not require the European  Union to 
include its argument regarding the "asymmetrical deduction " in the panel request in order to provide 
a brief summary of the legal basis of its "fair comparison " complaint.128 These findings are subject 
to Colombia 's appeal.  
4.57.  In examining the merits of the European  Union 's claim under Article  2.4, the Panel observed 
a "disconnect " between the parties ' arguments as they addressed "different types of packaging costs 
and, hence, distinct and unrelated types of adjustments ".129 Specifically, the European  Union 's 
arguments referred to Mydibel 's request for an adjustment "to account for alleged cost differences " 
due to "differences in product types and customer specifications ", while Colombia 's rebuttal 
arguments related to an adjustment made by MINCIT "to account  for the fact that Mydibel 's export 
sales allegedly incurred additional – and different – packaging costs than its domestic sales ".130 
Having examined the relevant facts underlying these arguments131, the Panel considered that, 
because MINCIT 's actual consid eration of packaging costs "did not respond to  the substance " of the 
requested adjustment, MINCIT "failed to provide a proper basis to deny " Mydibel 's request.132 The 
Panel also considered that "MINCIT had no proper basis … to deduct certain other packaging  costs 
from the export price " alone.133 Both considerations served as the basis for the Panel 's ultimate 
conclusion that Colombia had acted inconsistently  with Article  2.4 for its failure to make a fair 
comparison. These findings are not subject to , but pro vide relevant background for assessing , 
Colombia 's appeal under Article  6.2 of the DSU.  
4.4.2   Whether the Panel erred in finding that the European  Union 's "packaging 
cost-related claim " under Article  2.4 of the Anti -Dumping Agreement was within the 
Panel 's terms of reference pursuant to Article  6.2 of the DSU  
4.58.  Pursuant to Article  6.2 of the DSU, the "specific measures at issue " and "a brief summary of 
the legal basis of the complaint " identified  in a panel request constitute the "matter referred to the 
DSB" which, pursuant to Article  7.1 of the DSU, forms the basis of a Panel 's terms of reference. The 
term "legal basis of the complaint " in Article  6.2 has been understood to mean the "claim" brought 
by a complainant in a dispute, such as an allegation that th e responding party has acted 
inconsistently with an identified provision of a particular agreement.134 To fulfil the requirement to 
provide a "brief summary " of the claim sufficient to "present the problem clearly ", findings in prior 
disputes suggest that t he complaining party must plainly connect the challenged measure(s) with 
the provision(s) of the covered agreements claimed to have been infringed .135 Furthermore, w hile 
the failure to set out a claim in the panel request excludes such claim from the panel 's terms of 
reference, the same is not true for arguments. In contrast to claims, "arguments " are the reasons 
put forth by a complaining party to demonstrate that the responding party 's measure does indeed 
 
124 Panel  Report , paras.  7.219 and 7.223 (referring to Colombia's  first written submission  to the Panel , 
paras.  10.10, 10.12, and 10.14).  
125 Panel  Report , para.  7.219 (referring to Colombia's  first written submission  to the Panel , paras.  10.24 
and 10.26 -10.27; responses to Panel questions No.  5.5(a), paras.  184-186, and No.  5.6, para.  190). 
126 Panel  Report , para.  7.231.  
127 Panel  Report , para.  7.231.  
128 See Panel  Report , para.  7.232.  
129 Panel  Report , para.  7.237  
130 Panel  Report , para.  7.237.  
131 See Panel  Report , paras.  7.238 -7.242.  
132 Panel  Report , para.  7.243. (emphas is added)  
133 Panel  Report , para.  7.244.  
134 See e.g. Appellate  Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU ), para. 5.14 
(quoting Appellate  Body Report, Korea – Dairy , para.  139).  
135 See e.g. Appellate  Body Reports, Korea – Pneumatic Valves (Japan) , para.  5.6; China – Raw 
Materials , para.  220. WT/DS591 /ARB25  
 
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  infringe upon the identified treaty provision.136 As such, they are not part of "a brief summary of the 
legal basis of the complaint " and need not be included in the panel request.137 We understand that 
the parties, in principle, agree with the applicable legal standard under Article  6.2 as set out 
above.138 
4.59.  On appeal, Colombia contends that the Panel 's findings under Article  6.2 of the DSU do not 
correctly reflect the distinction between "claims " and "arguments ".139 According to Colombia, the 
European  Union 's panel request only lists a claim regarding  packaging cost adjustments , and does 
not cover calculation -related and similar errors such as, in Colombia 's view, the European  Union 's 
asymmetrical deduction "claim ". Colombia considers that the two "claims " are "distinct, involve 
two different sets of f acts and two separate, independent decisions by an investigating authority ".140 
The European  Union  responds that "Colombia attempts to create an impression of two distinct claims 
where there is, in fact, only one: MINCIT disregarded its obligations under Article  2.4 … by carrying 
out an unfair comparison between normal value and export price, because various due 
allowances/adjustments were not done properly (which includes due allowances/adjustments for 
packaging costs) ."141 
4.60.  The European  Union 's claim related to packaging costs is set out in paragraph  5 of its panel 
request and incorporates language from the first and t hird sentences of Article  2.4 of the 
Anti-Dumping Agreement. Reading paragraph  5 of the panel request in light of Article  2.4, both 
quoted above142, we agree with the Panel 's description of the relevant claim set out in paragraph  5: 
[T]he European  Union describes the elements of its Article  2.4 complaint as 
being:  (a) the alleged failure to "make a fair comparison between the export price and 
the normal value "; (b) "[i]n part icular ", the alleged failure to "make due allowances for 
differences … affect[ing] price comparability "; and (c)  as an example ( "inter alia"), 
Colombia 's alleged disregard for "differences in packaging ".143 
4.61.  Therefore, the European  Union 's panel request plai nly connects (i)  the relevant aspect of the 
measure, i.e. MINCIT 's treatment of differences affecting price comparability, including its alleged 
disregard of packaging differences, with (ii)  the relevant provision of the covered agreements, 
namely, the req uirement to make "due allowance " for differences affecting price comparability and 
a "fair comparison " under Article  2.4.144 As the Panel also noted, the alleged disregard for differences 
in packaging is listed as an "example ". As such, it helps to illustra te the claim, but the fact that the 
European  Union  chose to elaborate by providing examples should not be taken as narrowing the 
scope of the claim.145 
4.62.  The requirement to make "[d]ue allowance " in Article  2.4 has been understood to mean that 
"additions or deductions  in appropriate amounts to the export price or normal value may be required 
to account for 'differences ' … affect [ing] price comparability, thereby ensuring the 'fairness ' of the 
comparison ".146 It has also been noted that "Article  2.4 prohibits investigating authorities from 
making adjustments … when [differences in characteristics] have no impact on price comparability ", 
and that "making allowances that are not warranted will render the compariso n unfair ".147 The text 
of Article  2.4 and its interpretation thus indicate that not only a lack of due allowance (e.g.  MINCIT's 
refusal of Mydibel 's request to make due allowance for higher packaging costs for domestic sales), 
but also an adjustment that is  unwarranted (e.g.  MINCIT 's asymmetrical deduction of packaging 
 
136 See e.g. Appellate  Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU ), para. 5.14 
(referring to  Appellate  Body Report, Korea – Dairy , para.  139). The United  States  similarly noted at the hearing 
that the standard Working Procedures in Appendix  3 of the DSU clarify that "facts" and "arguments" are to be 
presented in a party's written submission. (United  States ' third party's opening statement at the hearing)  
137 See e. g. Panel  Report , Costa  Rica – Avocados  (Mexico) , para.  3.8 of Annex  D; Appellate  Body Report, 
Korea – Pneumatic Valves  (Japan) , paras.  5.6 and 5.31.  
138 Parties' response s to questioning at the hearing.  
139 Colombia's written submission, para.  6.9. 
140 Colombia's written submission, para.  6.3. See also para.  4.49 above.  
141 European  Union 's written  submission, para.  66. 
142 See paras.  4.51-4.52 above . 
143 Panel  Report , para.  7.227.  
144 See also European  Union 's written  submission, paras.  70-73. 
145 See Appellate  Body Report, EC – Selected Customs Matter , para.  153.  
146 Panel  Report , EU – Biodiesel (Argentina) , para.  7.294. (emphasis added)  
147 Appellate  Body Report, EU – Fatty Alcohols (Indonesia) , para.  5.22. (fn omitted)  WT/DS591 /ARB25  
 
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  costs only on the export price side), could lead to a violation of the principle of "fair comparison ".148 
Both types of conduct on the part of an authority concern differences affecting price c omparability 
that could have a bearing on the ability to ensure a fair comparison.  
4.63.  In light of the applicable legal standard under Article  2.4, therefore, we fail to see a basis in 
Article  2.4 to support Colombia 's restricted reading of "allowance " as pert aining only to 
"[a]djustments  … requested  by investigated parties " and involving "the treatment of particular 
expenses incurred by the exporter ".149 Neither do we see a distinction between "due allowances " 
and "issues such as calculation -related or similar errors ", the latter of which are not, according to 
Colombia, listed in paragraph  5 of the panel request.150 Rather, in our view, paragraph  5 of the panel 
request potentially covers errors made by the authority that allegedly r endered an "allowance " it 
made "undue " or "unfair ". 
4.64.  Similarly, we do not find that paragraph  6 of the panel request lend s support to Colombia 's 
position.151 Paragraph  6 states as follows:  
[The measures at issue described above appear to be inconsistent with  Colombia 's 
obligations under] Article  2.4 of the Anti -Dumping Agreement because Colombia did not 
make a fair comparison between the export price and the normal value by deducting  
certain sea freight and insurance costs twice from the export price of a com pany, 
thereby unduly lowering the export price.152 
4.65.  Both paragraphs  5 and 6 concern a failure to make a "fair comparison " under Article  2.4, 
although each has its own focus. The fact that paragraph  6 appears to be directed at certain 
duplicative deductions d oes not preclude the possibility that the claim raised under paragraph  5 
covers other errors in MINCIT 's determination on "due allowance ". We therefore do not read 
paragraph  6 as diminishing or altering the scope of the claim set out in paragraph  5 regarding a 
failure to make "due allowance ". 
4.66.  Turning to the European  Union 's allegations during the panel proceedings153, we recall that 
both MINCIT 's disregard of the requested adjustment and its asymmetrical deduction occurred within 
the same context an d investigative step, i.e. as part of MINCIT 's treatment of packaging costs for 
the purpose of conducting the price comparison  with respect to Mydibel .154 To elaborate on its claim 
under Article  2.4 during the panel proceedings, the European  Union  relied on  both MINCIT 's alleged 
error in declining the requested adjustment, as well as the asymmetrical deduction which, in its 
view, "compounded " that error.155 We therefore share the Panel 's view that both allegations concern 
"detail[s] " in the "factual aspects o f the calculation that led to Colombia 's alleged failure to perform 
a fair comparison ".156 As the Panel rightly found, the panel request need not engage in these details 
or outline "which specific adjustment was allegedly not – or incorrectly – made and why ".157 
4.67.  Colombia nonetheless submits that the European  Union 's allegations regarding these 
two aspects of MINCIT 's conduct "involve two factually and legally 'distinct and unrelated ' issues " 
and are "two different claims ".158 As a linchpin of this argument, Colombia submits that "[t]he Panel 
itself described these two issues as 'of a different type and of a different nature ' and as 'different 
types of packaging costs and, hence, distinct and unrelated types of adjustments '."159 
 
148 See also European  Union 's written  submission, para.  69. 
149 Colombia's written submission, para.  6.22. (emphasis added) Colombia refers to paragraph  5 as 
listing "a range of adjustments". In light of the language used in paragraph  5, we understand Colombia uses 
the word "adjustments" to refer to "allowance". (Ibid.)  
150 Colombia's written submission, pa ra. 6.22.  
151 Colombia's written submission, para.  6.23.  
152 WT/DS591/2, p. 3. (emphasis added)  
153 Panel  Report , para.  7.228.  
154 See factual background contained in paras.  4.53-4.54 above.  
155 Panel  Report , para.  7.235. See also ibid., para.  7.228.  
156 Panel  Report , para.  7.231.  
157 Panel  Report , para.  7.231.  
158 Colombia's written submission, para s. 6.3 and 6.28 . (emphasis omit ted) 
159 Colombia's written submission, para.  6.29 (quoting Panel  Report , paras.  7.237 and 7.243) . 
(emphasis omitted)  WT/DS591 /ARB25  
 
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  4.68.  The statements quoted by Colombia were made by the Panel when describing a certain 
"disconnect " between the parties ' arguments and the facts underlying these arguments.160 Read in 
context, these statements reflect the Panel 's appreciation of the fact that,  in addressing the issue of 
packaging costs, what MINCIT was requested to do  and what it actually did  were different. As noted 
above, having examined how this mismatch transpired in MINCIT 's treatment of packaging cost 
adjustments161, the Panel came to the view that MINCIT "failed to provide a proper basis to deny " 
Mydibel 's request because what MINCIT actually did (i.e. the asymmetrical deduction) "did not 
respond to  the substance of [the requested ] adjustment ".162 The mismatch between the two  factual 
aspect s at issue was thus one of the reasons supporting the Panel 's conclusion that MINCIT 's 
treatment of packaging costs was inconsistent with Article  2.4.163 This does not turn these two 
factual aspects, as Colombia argues, into two separate "claims " that are "legally independent of each 
other ", let alone claims that are somehow not covered by the European  Union 's panel request.164 
4.69.  Furthermore, Colombia highlig hts the due process objective of a panel request, including to 
enable the respondent to know what case it has to answer and begin preparing its defence.165 
However, apart from a general reference to the number of claims contained in  the European  Union 's 
panel request, of which the European  Union  pursued only a "subset "166, Colombia 's arguments do 
not indicate how its due process rights were breached due to the alleged lack of clarity of the 
European  Union 's panel request. On the contrary, given that the two f actual elements underlying 
the European  Union 's allegations related to the same investigative step  regarding  Mydibel's 
packaging cost s167, we see no grounds to consider that Colombia received insufficient notice as to 
the scope of the European  Union 's claim  listed in paragraph  5 of the panel request.  
4.70.  Finally, Colombia argues that Article  6.2 of the DSU and Article  17.5(ii) of the Anti -Dumping 
Agreement, read together, "require [] the complainant … to identify [in the panel request] the 
discrete set of 'facts made available ' to the investigating authority during the investigation ".168 This 
means that, for purposes of a claim under Article  2.4 of the Anti -Dumping Agreement, a complainant 
must identify "the particular element of the determination ", such as adjustments, the construction 
of the export price, or the mechanics of the comparison, so that the respondent can "know what 
case it has t o answer ".169 We note that Article  17.5(ii) governs the scope of evidence a panel is 
allowed to review in disputes involving anti -dumping measures.170 The "facts" referred to in 
Article  17.5(ii) are what a panel may examine during the panel proceedings, not what a complainant 
must spell out in the panel request. We therefore fail to see how Article  17.5(ii) of the Anti -Dumping 
Agreement is relevant for assessing the sufficiency of a panel request.171 Instead, we consider that 
 
160 See relevant summary of panel findings in para. 4.57 above. See also Panel  Report , paras.  7.237 and 
7.243. Given the Panel's description of the parties' arguments before it, we are not convinced by Colombia's 
assertion that "[t]he EU never rais ed Mydibel's adjustment request before the Panel" and that "[t]he entirety of 
the EU's case, from the first written submission all the way to its responses to the Panel's questions, revolves 
around the alleged asymmetrical deduction ." (Colombia's written submission, para.  6.29) (emphasis omitted)  
See also Panel  Report , para.  7.228 (quoting the European  Union 's first written submission  to the Panel , 
para. 183 (in turn , referring to both MINCIT's denial of adjustment request and its asymmetrical deduction)).  
161 See Panel  Report , paras.  7.238 -7.242.  
162 Panel  Report , para.  7.243. (emphasis added)  
163 Panel  Report , para.  7.244. See also Panel  Report , paras.  7.242 -7.243.  
164 Colombia's written submission, para.  6.29. (emphasis omitted) Given the facts of the case, we do not 
find it pertinent to address the hypothetical  scenarios raised by Colombia that "[t]he asymmetrical deduction 
problem could have arisen even if Mydibel had made no adjustment request for packaging costs ." (Ibid., 
para. 6.29) Neither do we find it relevant to consider, for purposes of resolving Colombia's appeal, how a 
respondent could bring itself into compliance in "a hypothetical instance where both allegations are accepted 
by a panel". (Ibid.)  
165 Colombia's written submission, paras.  6.13-6.16. 
166 Colombia's written submission, para.  6.16.  
167 MINCIT discussed its asymmetrical deduction, and its reason for not making any packaging cost 
adjustments to the normal value, in the same section of its response to comments on the essential facts 
disclosure. (See MINCIT's responses to comments on essential facts ( Panel Exhibit EU -17a), section  7 (referred 
to in Panel  Report , fns 464 and 465), pp.  28-30) 
168 Colombia's written submission, para.  6.18.  
169 Colombia's written submiss ion, para.  6.19 (quoting Appellate  Body Report, US – Oil Country Tubular 
Goods Sunset Reviews , para.  162). 
170 See e.g. Panel  Report s, EC – Salmon (Norway) , paras.  7.835 -7.843;  US – Shrimp II (Viet  Nam), 
paras. 7.7-7.8; US – Softwood Lumber V , paras.  7.31-7.43; and  EC – Tube or Pipe Fittings , paras.  7.42-7.47.  
171 As the European  Union  submits, Article  17.5(ii) "has nothing to do with the panel request". 
(European  Union 's written  submission, para.  67) As the United  States  similarly notes, Article  17.5(ii) delineates 
 WT/DS591 /ARB25  
 
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  a granular description of the fact s, as Colombia suggests, is not required in a panel request under 
Article  6.2 of the DSU.  
4.4.3   Conclusion  
4.71.  On the basis of the above, we uphold  the Panel 's finding, in paragraphs  7.232, 7.233, 7.244, 
and 8.1.d.ii of its Report, that the European  Union 's claim un der Article  2.4 of the Anti -Dumping 
Agreement concerning Mydibel 's packaging cost -related adjustment request fell within the 
Panel 's terms of reference. For these reasons, we also decline  Colombia 's request to "declare moot 
and of no legal effect " the Pane l's substantive findings under Article  2.4. 
4.5  Claim under Articles  3.1, 3.2, 3.4, and 3.5 of the Anti -Dumping Agreement  
4.5.1   Introduction and Panel findings  
4.72.  Colombia appeals the Panel 's finding that MINCIT acted inconsistently with Articles  3.1, 3.2, 
3.4, and 3.5  by including in its final injury and causation determinations imports from exporters that 
were determined to have final de minimis  dumping margins.172 According to Colombia, interpreting 
the term "dumped imports " in Articles  3.1, 3.2, 3.4, and 3.5 to include imports with final de minimis  
dumping margins, as MINCIT did, "is correct or, at the very least, a 'permissible ' interpretation within 
the meaning of Article  17.6(ii) of the Anti -Dumping Agreement ".173 
4.73.  Article  3 of the Anti -Dumping Agreement, entitled "Determination of Injury ", elaborates on 
the requirement of injury. Article  3.1 provides:  
Article  3 
Determination of Injury  
3.1 A determination of injury for purposes of Article  VI of GATT  1994 shall be based on positive 
evidence and involve an objective examination of both (a)  the volume of the dumped imports  and 
the effect of the dumped imports  on prices in the domestic market fo r like products, and (b)  the 
consequent impact of these imports  on domestic producers of such products . (underlining added)  
4.74.  Articles  3.2, 3.4 , and 3.5 similarly refer to "dumped imports " without explicitly addressing 
whether this includes or excludes impo rts with de minimis  dumping margins.  
 
the scope of a panel's evidentiary review of the investigating authority's evaluation of the facts before it, and 
does not address, nor concern itself with, the identification of the specific measures at issue a nd of the legal 
basis of the complaint under Article  6.2 of the DSU. (United  States ' third party's opening statement at the 
hearing)  
172 See Colombia's Notice of Appeal , para. 4  (referring to Panel  Report , paras.  7.303, 7.307, and 
8.1.e.i ). See also Colombia's written submission, para.  7.1. Colombia does not appeal the Panel's finding, in 
paragraph  7.305, that MINCIT acted inconsistently with the same provisions by including in its injury and 
causation analysis imports from exporters found to have neg ative dumping margins. ( Ibid., fn 116 to 
para. 7.1) 
173 Colombia's written submission, para.  7.10.  WT/DS591 /ARB25  
 
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  4.75.  In addition to the above provisions at issue under Article  3, the parties and the Panel also 
referred to, inter alia, Article  2.1 and Article  5.8 as pertinent context. Article  2 contains rules on the 
determination of dumping, and its first paragraph provides:  
Article  2 
Determination of Dumping  
2.1 For the purpose of this Agreement, a product is to be considered as being dumped, 
i.e. introduced into the commerce of another country at less than its norma l value, if the export 
price of the product exported from one country to another is less than the comparable price, in the 
ordinary course of trade, for the like product when destined for consumption in the exporting 
country.  
 
4.76.  Article  5, in turn, entitled "Initiation and Subsequent Investigation ", sets out rules and more 
precise steps for specific anti -dumping applications and investigations. Article  5.8 provides:  
Article  5 
Initiation and Subsequent Investigation  
5.8 An application unde r paragraph  1 shall be rejected and an investigation shall be terminated 
promptly as soon as the authorities concerned are satisfied that there is not sufficient evidence of 
either dumping or of injury to justify proceeding with the case.  There shall be im mediate 
termination in cases where the authorities determine that the margin of dumping is  de minimis , or 
that the volume of dumped imports, actual or potential, or the injury, is negligible.  The margin of 
dumping shall be considered to be de minimis  if this margin is less than 2  per cent, expressed as 
a percentage of the export price. (underlining added)  
4.77.  The Panel observed that, while the term "dumped imports " carries the same meaning across 
Articles  3.1, 3.2, 3.4, and 3.5, it is not defined in Article  3.174 The Panel noted that the parties 
identified different textual and contextual elements in support of their positions.175 To the Panel, the 
principle of effectiveness, which flows from Article  31 of the Vienna  Convention , meant that it may 
not ad opt an interpretation that would result in reducing the provisions of the Anti -Dumping 
Agreement to redundancy or inutility.176 
4.78.  The Panel considered that, "[i]n this case ", Article  5.8 of the Anti -Dumping Agreement 
"provides important context for the interp retation of the term 'dumped imports '" because, in addition 
to Article  2.1, provisions of Article  5 are applicable to and regulate the entire anti -dumping 
investigation to determine the existence, degree, and effect of any alleged dumping.177 Article  5.8 
requires an authority to end its investigation as soon as it determines that the margin of dumping is 
de minimis . Furthermore, an injury determination under Article  3 follows and takes into account the 
determination of the margin of dumping. Read together, t hese provisions indicate that, once a 
producer or exporter has been assigned a de minimis  margin of dumping, the continued treatment 
of any imports from that producer or exporter as "dumped imports ", in any subsequent injury and 
causation analyses under Ar ticle 3, would render ineffective the requirement to "immediate[ly] 
terminate " the investigation.178 
4.79.  Colombia argued before the Panel that Articles  3.3 and 9.4 (which do explicitly exclude 
de minimis margin s of dumping) demonstrate the absence of a link bet ween Article  5.8 and 
Articles  3.1, 3.2, 3.4, and 3.5 because, when drafters decided to qualify the dumping margins as 
those above the de minimis  threshold, they did so expressly.179 In the Panel 's view, however, given 
the "considerably different " scope of these provisions, the fact that Articles  3.3 and 9.4 explicitly 
make Article  5.8 operational in the specific  situations contemplated under those provisions 
 
174 Panel  Report , paras.  7.287 -7.289.  
175 Panel  Report , paras.  7.289 -7.291.  
176 Panel  Report , para.  7.291.  
177 Panel  Report , para.  7.292.  
178 Panel  Report , para.  7.294.  (fn omitted)  
179 Panel  Report , para.  7.295 ( referring to  Colombia's response to Panel question No.  6.3, para.  204; 
second  written submission to the Panel, para.  9.23).  WT/DS591 /ARB25  
 
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  highlighted the contextual relevance of Article  5.8 for the general  injury and causation 
determinations under Article  3.180 In addition, the Panel rejected Colombia 's reliance on the panel 's 
finding in Canada  – Welded Pipe , where the panel found that the notion of "dumping " does not have 
a de minimis  component , because that finding concerns the interpretation of "dumping " in 
Article  7.1(ii), which is limited to the application of provisional  anti-dumping measures not at issue 
in this dispute.181 The Panel highlighted, instead, the same panel 's statement that imports from an 
exporter with a final de minimis  margin of dumping "should not be treated as 'dumped ' for the 
purpose of the analysis and final determinations of injury and causation ", because "Article  5.8 
effectively means that there is no legally cognizable dumping " by that exporter.182 
4.80.  Finally, the Panel disagreed with Colombia that, under its legal system, in which final 
determinations of dumping, injury, and causation occur at the same time, "the only way to terminate 
immediately an investigation, in respect of pro ducers or exporters for which a de minimis  margin of 
dumping is determined, is to exclude them from the scope of the order ."183 The Panel found that 
authorities ' freedom to structure their investigations cannot be used as a justification for 
non-compliance with the unambiguous requirement under Article  5.8 to terminate immediately an 
investigation in cases where the authorities determine that the margin of dumping is de minimis .184 
In conclusion, the Panel found that Colombia 's interpretation of the term "dumped imports " as 
including de minimis  margin imports is not "permissible " within the meaning of the second sentence 
of Article  17.6(ii)  of the Anti -Dumping  Agreement.185 
4.81.  In paragraphs  4.8 to 4.15 above, we set out our approach to addressing the interpretative 
issues before us under Articles  5.2(iii) and 5.3 (especially, the phrase "where appropriate ") in light 
of Article  17.6(ii). We follow the same approach below in examining Colombia 's appeal  under 
Articles  3.1, 3.2, 3.4, and 3.5 regarding the term  "dumped imports ". In doing so, our task is not to 
search for a single interpretation that we consider to be "final" or "correct ". Rather,  we will test 
Colombia 's interpretation of the term "dumped imports " and ask whether a treaty interpreter, using 
the Vienna  Convention  method for treaty interpretation, could have reached Colombia 's 
interpretation . In other words, we will examine whether Colombia 's interpretation has the required 
degree of solidness or analytical support for it to be given deference as "permissible " within the 
bounds of the Vienna  Convention method for treaty interpretation . 
4.5.2   Whether  it is permissible to interpret the term "dumped imports " in Articles  3.1, 
3.2, 3.4, and 3.5 of the Anti -Dumping Agreement to include imports of exporters 
determined to have final de minimis  margins of dumping  
4.82.  On appeal, Colombia contends that the Panel ig nored the ordinary meaning of the term 
"dumped imports " in light of the definition of "dumping " in Article  2.1 of the Anti -Dumping 
Agreement186, and instead focused on one contextual provision, i.e.  Article  5.8, at the expense of 
the context provided by oth er provisions such as Articles  3.3, 3.5 , and 9.4.187 Colombia further 
argues that the Panel 's reliance on Article  5.8 is premised on the erroneous understanding that an 
authority must definitely determine the existence of dumping before  assessing the existence of injury 
and causation, even though such a sequential decision -making process is not required by the 
Anti-Dumping Agreement.188 Colombia also seeks to support its view with supplementary means of 
treaty interpretation, including pr eparatory work for the Kennedy Round Anti -Dumping Code.189 
4.83.  The European  Union  maintains  that the "ordinary meaning " of the term "dumped imports " in 
Article  3 refers to those imports attributable to producers or exporters for which, at the end of an 
investig ation, a margin of dumping greater than de minimis  has been calculated.190 To the 
European  Union , such a reading comports with the "terms and objectives " of the Anti -Dumping 
 
180 Panel  Report , para.  7.298. See also Panel  Report , paras.  7.296 -7.297.  
181 Panel  Report , para.  7.299 (referring to Panel  Report , Canada – Welded Pipe , paras.  7.59 and 7.64) . 
182 Panel  Report , para.  7.299 (quoting Panel  Report , Canada  – Welded  Pipe, para.  7.83) . 
183 Panel  Report , para.  7.300 (quoting Colombia's response to Panel question N o. 6.3, para.  210 
(in turn, quoting Appellate  Body Report, Mexico  – Anti-Dumping  Measures  on Rice, para.  219)) . 
184 Panel  Report , paras.  7.301 -7.302.  
185 Panel  Report , para.  7.303.  
186 Colombia's written submission, paras.  7.16-7.26.  
187 Colombia's written submission, paras.  7.27-7.36. 
188 Colombia's written submission, paras.  7.37-7.57. 
189 Colombia's written submission, paras.  7.21-7.24 and 7.58 -7.60. 
190 European  Union 's written  submission, para.  105. WT/DS591 /ARB25  
 
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  Agreement as a whole191, ensures the effectiveness of all relevant provisions includ ing Articles  5 
and 6 of the Agreement192, and is supported by findings in previous disputes.193 In reaching its 
finding, therefore, the Panel gave due consideration to the ordinary meaning of the term "dumped 
imports " in its context194, and did not err in its  reliance on Article  5.8 or in its rejection of Colombia 's 
arguments on the basis of context and preparatory work.195 
4.84.  At the outset, we note that MINCIT based its final injury and causation determinations in this 
case on all investigated imports, i.e. those  from exporters for whom it determined final margins of 
dumping that were (i)  above the de minimis  threshold (2 % or greater) ; (ii) below the de minimis  
threshold (less than 2 %); and (iii) negative.196 The question raised by Colombia 's appeal is whether, 
by including imports from exporters for whom final de minimis  margins of dumping were determined, 
MINCIT 's injury and causation determinations rest upon a "permissible " interpretation of the term 
"dumpe d imports " in Articles  3.1, 3.2, 3.4 , and 3.5. The Spanish and French versions of the same 
term are, respectively, "importaciones objeto de dumping " and "importations faisant l 'objet d 'un 
dumping ". The text of these provisions does not define the term "dumped imports " and, on its face, 
is silent as to whether the term is limited to imports with margins of dumping above  a particular 
threshold.  
4.5.2.1   Context provided by Article  2.1 and relevant provisions of Article  5 
4.85.  Colombia 's interpretation relies principally on  the fact that, under the definition of "dumping " 
in Article  2.1, dumping exists when the dumping margin is above 0%. To Colombia, absent an 
express indication to the contrary, every time there is a reference to "dumping " anywhere in the 
Anti-Dumping Agreement, the definition in Article  2.1 must apply. Thus, the term "dumped imports " 
refers to "any imports for which an authority calculates a positive dumping margin regardless of the 
magnitude of the margin ".197 
4.86.  Article  2.1, entitled "Determination of Dumping ", outlines provisions relevant to determining 
whether a "product " can be "considered as being dumped " and does so "[f]or the purpose of " the 
Anti-Dumping Agreement. Article  3, however, refers specifically to "dumped imports"198 in the 
context of injury determinations, rather than the generic concept of "dumping " in isolation, as 
Article  2.1 does. While the definition in Article  2.1 is relevant for interpreting the term "dumped 
imports ", it is not the only relevant context for assessing the ordinary meaning of this term under 
Article  3. This is because, unlike the considerations in Article  2.1 relating to a determination of 
"dumping " (or "dumped "), the term "dumped imports " in Article  3 refers to a specific group of 
imports subject to an authority 's injury determination in the context of a specific anti -dumping 
investigation which, in turn, may lead to the application of duties. This is supported by Article  1 of 
the Anti -Dumping Agreement, which states that an anti -dumping me asure may be "applied only 
under the circumstances provided for in Article  VI of GATT  1994 and pursuant to investigations 
initiated and conducted  in accordance with the provisions of this Agreement ".199 Thus, in addition to 
Article  2.1, other provisions of the Anti -Dumping Agreement regarding the initiation and conduct of 
investigations are also instructive as to the meaning and scope of the term "dumped imports ". 
4.87.  The "provisions " referred to in Article  1 begin with the "Determination of Dumping " in 
Article  2, proceed to the "Determination of Injury " in Article  3, and continue with the "Definition of 
Domestic Industry " in Article  4. Each provision, separately, addresses one of the substantive 
components o f an anti -dumping investigation, including by defining the relevant concepts. Article  5, 
in turn, links these components together by regulating an investigating authority 's "Initiation and 
Subsequent Investigation " to determine the "existence, degree and e ffect of any alleged 
dumping ".200 Read in its totality, the disciplines imposed by Article  5 are intended to cover all stages 
 
191 European  Union 's written  submission, paras.  106.a and 108 -110. 
192 European  Union 's written  submission, paras.  106.b and 1 11-124. 
193 European  Union 's written  submission, paras.  125-132. 
194 European  Union 's written  submission, paras.  146-155. 
195 European  Union 's written  submission, paras.  156-224. 
196 See Panel  Report , para.  7.282.  
197 Colombia's written submission, para.  7.16. (emphasis added)  
198 Emphasis added.  
199 Emphasis added ; fn omitted . 
200 Anti-Dumping Agreement , Article  5.1. (emphasis added)  WT/DS591 /ARB25  
 
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  of an investigating authority 's investigation, including the analysis leading to the injury 
determination.201 
4.88.  We recall Colombia 's argument that the reference to dumping "anywhere " in the 
Agreement202, including in Articles  5.1 and 5.7, must mean "the difference between a higher normal 
value and a lower export price regardless of the magnitude ".203 This reading, however, is 
contradicted by Article  5.1, which refers to "an investigation to determine the existence, degree  and 
effect of any alleged dumping " and indicates that not only the existence of dumping, but also its 
degree , are pertinent for the  conduct of an anti -dumping investigation. Under the Anti -Dumping 
Agreement, the degree of dumping is expressed in terms of the margin of dumping. Where an 
authority determines the margin of dumping to be de minimis , Article  5.8 requires that there must 
be "immediate termination " of the investigation. Thus, notwithstanding the existence  of dumping in 
the meaning of Article  2.1, if the degree  of the dumping is determined to be de minimis  for an 
exporter, it ends the investigation with regard to that exporter . This also means that, in the scenarios 
triggering "immediate termination " under Article  5.8 (i.e. de minimis  dumping margins, negligible  
volumes of dumped imports, or negligible  injury), dumping is not "to be condemned " within the 
meaning of Article  VI:1 of the GATT  1994204, and hence cannot be the subject of an anti -dumping 
measure. Immediate termination, as noted by panels in prior disputes, indicates that there is no 
longer "legally cognizable dumping ".205 
4.89.  The term "dumped imports " in Article  3 and the r eference to "the magnitude of the margin of 
dumping " in Article  3.4 indicate that a determination regarding the injurious effect of dumping  under 
Article  3 cannot be disconnected from the existence and degree of such dumping . In view of this 
connection, where an authority determines final de minimis  margins for an exporter206, the fact that 
dumping is no longer "legally cognizable " means that imports by that exporter may no longer form 
part of "dumped imports " for purposes of the final injury determination required for the imposition 
of duties on imports with dumping margins above de minimis .207 In this sense, we agree with the 
Panel that "the determination of injury follows – and takes into account – the determination of the 
existence and degree of any alleged dumping (i.e. the determination of the margin of dumping). "208 
Rather than imposing a "sequential " decision -making process on an investigating authority209, the 
Panel 's statement rightly reflects the interconnected nature of  an authority 's final dumping and injury 
determinations as two prerequisites for imposing a definitive anti -dumping measure.210 Reading all 
of these provisions holistically, we find, as the Panel found, that inclusion in the injury determination 
of imports by exporters with final de minimis  margins would "render ineffective the requirement  … to 
'immediate[ly] terminate ' the investigation " under Article  5.8.211 
 
201 See European  Union 's written submission, para.  117. 
202 Colombia's written submission, para.  7.16.  
203 Colombia's written submission, para.  7.41. (emphasis added) See also ibid., para.  7.42.  
204 Article  VI:1 of the GATT  1994 provides in relevant part that "dumping … is to be condemned if it 
causes or threatens material injury to an established industry … or materially retards the establishment of a 
domestic industry". (emphasis added) The requirement regarding "material" inju ry also aligns with  the notion 
of "negligibility" underlying the scenarios triggering "immediate termination" in Article  5.8.  
205 See e.g. Panel  Report s, EC – Salmon  (Norway) , para.  7.625; Canada – Welded Pipe , para.  7.83.  
206 Thus, we are not addressing a s cenario in which "an investigating authority calculates a positive 
dumping margin below 2% ( de minimis ) at a particular point in time during the investigation ", i.e. before its 
final dumping determination. (Colombia's written submission, para.  7.45 (emphas is added)) We therefore do 
not find it pertinent to address Colombia's reliance on the panel's finding in Canada  – Welded Pipe  as those 
findings relate to provisional measures. (See ibid., paras.  7.17-7.18 (referring to Panel  Report , Canada  – 
Welded  Pipe, para.  7.59); Panel  Report , para.  7.299) Furthermore, the significance Colombia attaches to that 
panel's finding is premised on Colombia's assumption that the ordinary meaning of the term "dumped imports" 
flows directly  from the definition of "dumping " in Article  2.1. (See e.g. ibid., paras.  7.16 and 7.26) Our analysis 
above addresses and disagrees with such an assumption.  
207 As Japan similarly notes, in light of the first sentence of Article  VI:1 of GATT  1994, "dumped imports 
should not be condemned  (i.e., should not be offset by anti -dumping duties) for material injury that is not 
attributable to those dumped imports ." (Japan's third party's written submission, para.  48 (emphasis added))  
208 Panel  Report , para.  7.293.  
209 Colombia's written submission, par a. 7.49.  
210 Similarly, we do not view the Panel's statement as contradictory to the requirement in Article  5.7 
that "[t]he evidence of both dumping and injury … be considered simultaneously" . (See Colombia's written 
submission, para. 7.41) The word "simultaneously", instead of imposing a strict temporal structure, highlights 
that an investigating authority should not consider the evidence regarding dumping and injury "in silos". 
(European  Union 's written submission, para.  187. See also ibid., paras.  189-190.) 
211 Panel  Report , para.  7.302.  WT/DS591 /ARB25  
 
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  4.90.  Colombia disagrees with the view that interpreting "dumped imports " as including those with 
a de min imis dumping margin would render Article  5.8 ineffective.212 To Colombia, the final 
"determination " in Article  5.8, upon which the "immediate termination " is required, refers to "a 
definitive determination that admits of no further modification " at the end of the investigation.213 
Given that, under Colombia's legal system, authorities make the final determinations of dumping 
and injury at the same time , Colombia maintains that the only legal consequence of the "immediate 
termination " of the invest igation is to exclude the exporters with final de minimis  margins from the 
scope of the anti -dumping duties.214 
4.91.  We recall that, according to Colombia, the term "dumped imports " refers to "any imports for 
which an authority calculates a positive  dumping marg in regardless of the magnitude of the 
margin ".215 Yet, as Colombia acknowledges, under its interpretation, imports of those exporters 
assigned a negative  margin of dumping may not form part of the "dumped imports " for purposes of 
injury and causation analys es.216 Thus, regardless of how the various steps of an investigation are 
structured, Colombia 's authority, acting consistently with its own interpretation, must ensure that 
imports of exporters determined to have final negative  dumping margins are excluded from "dumped 
imports " in its final injury determination.217 In other words, the authority must first make a final 
determination on dumping (albeit not necessarily in a separate, formal decision), next delete certain 
imports for the purpose of analysing injury and, finally, conduct an injury and causation analysis to 
determine appropriate duties (to be applied only to imports with dumping margins above 
de minimis ). Following this logic, we fail to see why Colombia 's investigating authority is prevented 
from giving effect to the "immediate termination " requirement by  excluding imports not only with 
final negative dumping margins but also with final de minimis  margins from "dumped imports " for 
the final injury determination.218 Colombia 's reference to its anti -dumping practice therefore does 
not support its view that th e only legal consequence of the "immediate termination" of the 
investigation under  Article  5.8 is to exclud e exporters with de minimis  margins from the application  
of duties.219 
4.92.  Similarly, we do not consider that the Appellate  Body's findings under Article  5.8 in Mexico – 
Anti-Dumping Measures on Rice  lend support to Colombia 's view.220 The findings in that dispute, 
including the statement that "the only way to terminate immediately  [with respect to those exporters 
with 0% dumping margins] is to exclude them from the scope of the order ", flow from the 
Appellate  Body's application of Article  5.8 to the particular factual scenario of that dispute, namely, 
where Mexico did apply duties to imports with 0% dumping margins.221 Those findings do not 
exhaustively define the way in which an investigation is to be "terminated " under Article  5.8 in case 
of a final determination of  a de minimis  margin of dumping.222 
 
212 Colombia's written submission, para.  7.55.  
213 Colombia's written submission, para.  7.49.  
214 Colombia's written submission, paras.  7.49, 7.56, 7.57, and 7.59; response to questioning at the 
hearing.  
215 Colombia's written submission, para.  7.16. (emphasis added)  
216 Colombia's response to questioning at the hearing.   
217 Brazil's response to questioning at the hearing.  
218 See European  Union 's written  submission, para.  198 (noting that "the practical difficulties Colombia 
invoked … are illusory"). See also Japan's third party's written submission, para.  56 (noting that " it is 
undisputable that at least imports from exporters with zero dumping margins should not be includ ed in the 
dumped imports under Article  3" and that, "regardless of the precise timing of each determination, it is obvious 
that the determination, finding or analysis of injury and causation follows and takes into account those of 
dumping margin, as a 'log ical' sequence") . 
219 See also Panel  Report , para.  7.300.  
220 Colombia's written submission, paras.  7.56, 7.57, and 7.59.  
221 Appellate  Body Report, Mexico  – Anti-Dumping  Measures  on Rice, para.  219. (emphasis original) The 
Appellate  Body made this statement after noting that, "[i]n the present case, the order  establishing 
anti-dumping duties came after the final determination  of a margin of dumping of zero per cent was made for 
[the exporters at issue], but the order nevertheless covered these exporters." ( Ibid., para. 219 (emphasis 
added)) As Japan also notes, " the focus in Mexico – Anti-Dumping Measures on Rice  was the final treatment of 
exporters with de minimis  dumping margins themselves, and not their role in the injury determination ." 
(Japan's third party's written submission, para.  57) 
222 We emphasize that our analysis is framed by the question put before us, namely, whether it is 
permissible to interpret the term "dumped imports" to include imports of exporters who are "determined" t o 
have final de minimis  dumping margins. For greater clarity, we are not asked to, and we do not, address the 
implication of a preliminary determination of  a de minimis  margin in an authority's investigation prior to the 
final dumping determination.  WT/DS591 /ARB25  
 
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  4.5.2.2   Context provided by Articles  3.3, 3.5, and 9.4  
4.93.  In addition to the definit ion of "dumping " in Article  2.1, Colombia relies on several other 
contextual elements to highlight the "absence of a link " between Article  5.8 and Articles  3.1, 3 .2, 
3.4, and 3.5. To Colombia, "nothing in the Anti -Dumping Agreement explicitly states that t he legal 
consequence (or purpose) of immediately terminating an investigation in Article  5.8 is to exclude 
the imports with de minimis  dumping margins from the injury and causation analysis in Article  3"223, 
and this is confirmed by Articles  3.3, 9.4, and 3.5.  
4.94.  Beginning with Article  3.5, this provision prohibits an authority from attributing to the 
"dumped imports " those injuries caused by "any known factors other than the dumped imports ", 
including , "inter alia, the volume and prices of imports not sold at dumping prices ."224 "Evidently ", 
Colombia argues, "imports with de minimis  dumping margins fall outside  of the category of imports 
not sold at dump[ing] prices " and, "therefore ", such de minimis  margin imports "form part of the 
'dumped imports '".225 This argument assumes that all imports that are "sold at dumping prices " 
must necessarily  belong to the group of "dumped imports ". However, whether this assumption is 
correct depends on the answer to the very question  of what is meant by "dumped imports ". Relying 
on this non -attribution factor to interpret "dumped imports " is thus "self-referential "226 and 
unavailing.  
4.95.   Colombia nonetheless considers that the contextual relevance of Article  3.5 becomes even 
more apparent  when that provision is juxtaposed with Articles  3.3 and 9.4. Colombia notes that the  
fourth sentence of Article  3.5 (i.e. the illustrative list of non -attribution factors) was added during 
the Uruguay Round at the same time as Articles  3.3 and 9.4. To Col ombia, the absence of any 
reference to de minimis  dumping margins in Article  3.5, and the express references to such margins 
in Articles  3.3 and 9.4, supports its view that, had the drafters wished to limit the "dumped imports " 
in Articles  3.1, 3.2, 3.4 , and 3.5 to dumped imports above de minimis  margins, they could have 
done so explicitly.227 
4.96.  Under Article  3.3, investigating authorities may  cumulatively assess the effects of imports 
from more than one country only if they determine, inter alia, that "the margin of dumping 
established in relation to the imports from each country  is more than de minimis  as defined in 
paragraph  8 of Article  5."228 The reference to "the margin of dumping established in relation to the 
imports from each country " departs from the general rule229 that "[t]he authorities shall … determine 
an individual margin of dumping for each known exporter or producer  concerned ."230 Similarly, 
Article  9.4 "also has a different scope than Articles  3.1, 3.2, 3.4, and 3.5 "231, as it "focuses on the 
determination of the so -called 'all others ' rate, i.e.  the anti -dumping duty that is applied to imports 
from exporters or producers that are not examined  by an investigating authority ", requiring an 
authority to "disregard  … any zero and de minimis  margins " in calculating the "all others " rate.232 In 
contrast, Articles  3.1, 3 .2, 3.4 , and 3.5, at issue in this dispute, "concern an investigating 
authority 's determination of injury caused by 'dumped imports ' from producers and exporters that 
are examined  by an investigating authority ".233 
4.97.  In Articles  3.3 and 9.4, therefore, the cross -reference to the de minimis  threshold as defined 
in Article  5.8, which generally relates to the dumping margin determined for an exporter or producer 
individually234, makes this threshold "operational "235 for the specific situations under these 
provisions. Thus, the fact that the de minimis  threshold is made operational in specific situations 
 
223 Colombia's written submission, para.  7.55.  
224 Emphasis added.  
225 Colombia's written submission, para.  7.30. (emphasis added)  
226 European  Union 's written  submission, para.  166. 
227 Colombia's  written  submission, para.  7.32.  
228 Emphasis added.  
229 See Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , para.  220. See also 
Panel  Report , fns 551 and 552 to paras.  7.296 and 7.298, respectively.   
230 Anti-Dumping Agreement , Article  6.10. (emphasis added)  
231 Panel  Report , para.  7.297.   
232 Panel  Report , para.  7.297. (emphasis original)  
233 Panel  Report , para.  7.297. (emphasis original)  
234 See e.g. Panel  Report s, Canada – Welded Pipe , para s. 7.21 and 7.26; Mexico – Anti-Dumping 
Measures on Rice , para.  7.140; Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice, para.  216. 
235 Panel  Report , para.  7.298.  WT/DS591 /ARB25  
 
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  under Articles  3.3 and 9.4 reinforces, rather than refutes236, the link between Article  5.8 and Article  3 
generally.  Given this link, there was no need for the drafters, each time they mentioned "dumped 
imports ", to cross -reference Article  5.8 in the context of Articles  3.1, 3.2, 3.4 , and 3.5. In those 
provisions, the relevance of the de minimis  threshold is implied fro m a holistic reading of these 
provisions. We share, in this respect, the European  Union 's view that, as a matter of treaty drafting, 
a generally applicable rule need not be repeated in every instance where it is relevant.237 Rather, as 
the Panel stated, "the fact that Articles  9.4 and 3.3 refer to Article  5.8 and 'de minimis margins ', 
and make Article  5.8 operational in the specific  situations contemplated under these provisions 
highlights … the contextual relevance of Article  5.8 for purposes of the general  injury and causation 
determinations under Article  3."238 
4.5.2.3   Supplementary  means of interpretation relied upon by Colombia  
4.98.   Colombia submitted to the Panel certain documents regarding the negotiating history related 
to Article  5.8 of the Anti -Dumping Agreement . This included records of discussion on a provision of 
the Kennedy Round Anti -Dumping Code that is "almost identical to … Article  5.8 of the Anti -Dumping 
Agreement ".239 The Panel did not address Colombia 's arguments concerning negotiating history, 
finding, instead, that doing so was unnecessary given its "unambiguous conclusion resulting from 
the interpretative exercise under Article 31 of the Vienna  Convention ".240 
4.99.  On appeal, Colombia similarly contends th at the negotiating history demonstrates that the 
GATT Contracting Parties explicitly rejected a proposal to limit the definition of "dumping " to margins 
above a de minimis  level.241 Certain documents cited by Colombia may indeed suggest that the 
negotiators  of the Kennedy Round Anti -Dumping Code chose not to limit the definition  of dumping  
to instances in which the price difference between normal value and export price was above a certain 
minimal percentage.242 The significance ascribed by Colombia to such ma terials, however, is 
premised on its view that the definition of "dumping ", alone, is sufficient for deriving the "ordinary 
meaning " of the term "dumped imports ". In the preceding analysis, we have found that such a 
reading runs counter to the overall cont ext of the provisions under the Anti -Dumping Agreement 
regarding the initiation and conduct of investigations. Thus, what the negotiating history may have 
revealed about the discussions underlying the definition of "dumping " does not elevate Colombia 's 
interpretation as one that is "permissible ". 
4.100.   Furthermore, even if documents cited by Colombia243 could be read to indicate that 
the de minimis  rule "concern[s] the imposition or the right to take anti -dumping measures "244, this 
alone does not preclude that the de minimis  rule may also be relevant for demarcating the scope of 
"dumped imports " for the purpose s of the injury determination. As the European  Union  notes, the 
fact that the de minimis  rule is of relevance to the imposition of an anti -dumping measure does not 
mean that this is the only way in which such rule is relevant.245 Finally, Colombia contends that "the 
 
236 See Colombia's written submission, para . 7.35.  
237 European  Union 's response to questioning at the hearing.  
238 Panel  Report , para.  7.298.  (emphasis original)  
239 Colombia's written submission, para.  7.24.  
240 Panel  Report , fn 565 to para.  7.303.  
241 Colombia's written submission, para.  7.24.  
242 Colombia's written submission, paras.  7.21-7.24 (quoting Anti-Dumping Checklist , Addendum, 
Comments by the United  States  on Items I -V, 30 June 1966, TN.64/NTB/W/12/Add.5 ( Panel Exhibit COL -19), 
p. 4; Possible Elements to be Considered for Inclusion in an Anti -Dumping Code: Note by the Secretariat, 
TN.64/NTB/W/13, 23  August  1966 ( Panel Exhibit COL -20), p. 9; and referring to Possible Elements to be 
Considered for Inclusion in an Anti -Dumping Code: Note by the Secretariat (Revised List), TN.64/NTB/W/14, 
9 December  1966 ( Panel Exhibit COL -21)). 
243 Colombia's written submission, para.  7.58 (quoting Anti-Dumping Checklist , Addendum , Comments 
by the United  States  on Items I -V, TN.64/NTB/W/12/Add.5, 30  June 1966 ( Panel Exhibit COL -19), p. 5; 
Anti-Dumping Checklist , Comments by Norway on Items I -V and IX -XIII, TN.64/NTB/W/12/Add.1, 
23 June 1966 ( Panel Exhibit COL -51), at 3; Anti-Dumping Checklist , Comme nts by the European Economic 
Community on Items I -V and IX - XIII, TN.64/NTB/W/12/Add.2, 24  June 1966 ( Panel Exhibit COL -52), p. 3; 
Anti-Dumping Checklist , Comments by Denmark on Items I -V and IX -XIII, TN.64/NTB/W/12/Add.7 
30 June 1966 ( Panel Exhibit COL -54), pp. 1-2; Anti-Dumping Checklist , Addendum , Comments by Sweden on 
Items I -V and IX -XIII, TN.64/NTB/W/12/Add.8, 7  July 1966 ( Panel Exhibit COL -55), p. 3; and referring to 
Anti-Dumping Checklist , Addendum , Comments by the Government of Canada on Items I -V and IX -XI, and XIII 
TN.64/NTB/W/12/Add.3, 30  June 1966 ( Panel Exhibit COL -53), p. 3)). 
244 Colombia's written submission, para.  7.59.  
245 European  Union 's written  submission, paras.  218-219. WT/DS591 /ARB25  
 
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  negotiators conceived of the 'percentage limit ' rule as applying even if … imp orts, including those 
with de minimis dumping margins , have been assessed and found to cause injury within the meaning 
of Article  VI."246 However, a review of the materials cited does not show that the relevance of 
de minimis  margins vis -à-vis the injury de termination was discussed by the negotiators.247 The 
reference to "imports, including those with de minimis  dumping margins ", which is not discernible 
from the materials, is dependent on  Colombia's  view that the term "dumped imports " includes de 
minimis  margin imports.248 In sum, the supplementary means of interpretation relied on by Colombia 
do not lend credence to its interpretation of "dumped imports " as a "permissible " one. 
4.5.3   Conclusion  
4.101.   Our analysis of the textual and contextual arguments advanced by Colomb ia indicates that 
its interpretation of the term "dumped imports " as including imports of exporters determined to have 
final de minimis  dumping margins does not comport with a holistic reading of relevant provisions of 
the Anti -Dumping Agreement, and rende rs the requirement of "immediate termination " under 
Article  5.8 ineffective. Having tested Colombia 's interpretation in light of Articles  31 and 32 of the 
Vienna  Convention , we do not consider that a treaty interpreter, using the Vienna  Convention  
method for treaty interpretation, could have reached Colombia 's interpretation . This interpretation 
does not have the required degree of solidness or analytical support for it to be given deference as 
"permissible " within the bounds of the Vien na Convention  method for treaty interpretation.  
4.102.   On the basis of the above, we uphold  the Panel 's finding, in paragraphs  7.303, 7.307, and 
8.1.e.i of its Report, that the European  Union  had established that Colombia acted inconsistently 
with its obligations  under Articles  3.1, 3.2, 3.4, and 3.5 of the Anti -Dumping Agreement because 
MINCIT included in its final injury and causation determinations imports from the exporters that 
were determined to have final de minimis  margins of dumping.  
4.6  Award findings  
4.103.   In thi s Award, we have reached the following findings:  
a. we reverse  the Panel 's finding in paragraphs  7.75, 7.78, 7.79, and 8.1.a.iii of its Report, 
and find that relevant factual findings by the Panel demonstrate that MINCIT satisfied its 
duty under Articles  5.2(iii) and 5.3 of the Anti -Dumping Agreement, for the purpose  of 
initiating an investigation, by examining the "appropriateness " of third -country sales  prices 
consisting of export prices to the United  Kingdom , including, in particular, their sufficiency 
vis-à-vis domestic sales prices; accordingly, we find that the European  Union  has not 
established that Colombia acted inconsistently with Article  5.3 of the Anti -Dumping 
Agreement;  
b. we uphold  the Panel 's finding, in paragraphs  7.126, 7.152.a, and 8.1.b.i of its Report, that 
the European  Union  had established that Colombia acted inconsistently with its obligations 
under Article  6.5 of the Anti -Dumping Agreem ent with respect to the redacted information 
in section d(i) of FEDEPAPA 's revised application because MINCIT granted confidential 
treatment to this information without a showing of "good cause " by the applicant;  
c. we uphold  the Panel 's finding, in paragraph s 7.232, 7.233, 7.244, and 8.1.d.ii of its 
Report, that the European  Union 's claim under Article  2.4 of the Anti -Dumping Agreement 
concerning Mydibel 's packaging cost -related adjustment request fell within the 
 
246 Colombia's writte n submission, para.  7.60. (emphasis added)  
247 See Colombia's written submission, para.  7.58. See also Japan's third party's written submission, 
para. 58 (noting that " the negotiators' comments cited by Colombia was made in a different context where the 
issue was whether anti -dumping duties should be imposed to imports with de minimis  dumping margins, not in 
the context of whether imports with de minimis  dumping margins should be included in the injury and 
causation analysis").  
248 See Colombia's written submission, para.  7.60 (noting that "the negotiators conceived of the 
'percentage limit' rule as applying even if the conditions of Article  VI of the GATT 1947 were met"; that "[o]ne 
of these conditions … is the determination of injury and causation"; and that " [i]n other words , the 'percentage 
limit' rule would apply even if, and therefore when , imports, including those with de minimis dumping margins , 
have been asse ssed and found to cause injury within the meaning of Article  VI" (underlining original; emphasis 
added)).  WT/DS591 /ARB25  
 
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  Panel 's terms of reference; we also decline  Colombia 's request to "declare moot and of no 
legal effect " the Panel 's substantive findings under Article  2.4; and  
d. we uphold  the Panel 's finding, in paragraphs  7.303, 7.307, and 8.1.e.i of its Report, that 
the European  Union  had established that Colombia ac ted inconsistently with its obligations 
under Articles  3.1, 3.2, 3.4, and 3.5 of the Anti -Dumping Agreement because MINCIT 
included in its final injury and causation determinations imports from the exporters that 
were determined to have final de minimis  margins of dumping.  
4.104.   Paragraph 9 of the Agreed Procedures provides that the findings of the Panel that have not 
been appealed in this Arbitration shall be deemed to form an integral part of this Award together 
with our own findings, and that the Award shall  include recommendations where applicable. 
Accordingly, we recommend  that Colombia bring into conformity with the Anti -Dumping Agreement  
those  measures found  in this Award , and in the Panel  Report as modified by this Award , to be 
inconsistent with that Agr eement.  
 
 
 
      
______________  ____________________  ______________  
 Alejandro JARA   José Alfredo GRAÇA LIMA  Joost PAUWELYN  
 Arbitrator   Chairperson  Arbitrator  