“Specifically, Members are required to terminate an antidumping duty within five years of its imposition ?i>unless?the following conditions are satisfied: first, that a review be initiated before the expiry of five years from the date of the imposition of the duty; second, that in the review the authorities determine that the expiry of the duty would be likely to lead to continuation or recurrence of dumping; and third, that in the review the authorities determine that the expiry of the duty would be likely to lead to continuation or recurrence of injury. If any one of these conditions is not satisfied, the duty must be terminated.⁽¹⁰³¹⁾?sup id="fntext-1032">(1032)

756.   The Appellate Body in US ?Oil Country Tubular Goods Sunset Reviews also viewed the continuation of an anti-dumping duty as “an exception to the otherwise mandated expiry of the duty after five years?⁽¹⁰³³⁾

(ii) Difference between original investigation and sunset reviews

757.   With respect to the determination of a likelihood of recurrence or continuation of dumping and injury, the Appellate Body in US ? Corrosion-Resistant Steel Sunset Review noted that, as this likelihood determination is a prospective determination: “the authorities must undertake a forward-looking analysis and seek to resolve the issue of what would be likely to occur if the duty were terminated?⁽¹⁰³⁴⁾ In this respect, the Appellate Body pointed to the important difference between original investigations and sunset reviews:

“In an original anti-dumping investigation, investigating authorities must determine whether dumping exists during the period of investigation. In contrast, in a sunset review of an anti-dumping duty, investigating authorities must determine whether the expiry of the duty that was imposed at the conclusion of an original investigation would be likely to lead to continuation or recurrence of dumping.?sup id="fntext-1035">(1035)

(iii) Active role of investigating authorities

758.   Based on an analysis of the various terms used in Article 11.3, the Appellate Body in US ?Corrosion-Resistant Steel Sunset Review then reached the following general conclusions:

“This language in Article 11.3 makes clear that it envisages a process combining both investigatory and adjudicatory aspects. In other words, Article 11.3 assigns an active rather than a passive decision-making role to the authorities. The words ‘review?and ‘determine? in Article 11.3 suggest that authorities conducting a sunset review must act with an appropriate degree of diligence and arrive at a reasoned conclusion on the basis of information gathered as part of a process of reconsideration and examination. In view of the use of the word ‘likely? in Article 11.3, an affirmative likelihood determination may be made only if the evidence demonstrates that dumping would be probable if the duty were terminated ?and not simply if the evidence suggests that such a result might be possible or plausible.?sup id="fntext-1036">(1036)

759.   The Panel in US ?Corrosion-Resistant Steel Sunset Review also underlined the importance of the need for sufficient positive evidence on which to base the likelihood determination:

“The requirement to make a ‘determination?concerning likelihood therefore precludes an investigating authority from simply assuming that likelihood exists. In order to continue the imposition of the measure after the expiry of the five-year application period, it is clear that the investigating authority has to determine, on the basis of positive evidence, that termination of the duty is likely to lead to continuation or recurrence of dumping and injury. An investigating authority must have a sufficient factual basis to allow it to draw reasoned and adequate conclusions concerning the likelihood of such continuation or recurrence.?sup id="fntext-1037">(1037)

(iv) Positive evidence

760.   The Panel in US ?Corrosion-Resistant Steel Sunset Review expressed its view on the use of historical data as a basis for the inherently prospective likelihood determination of Article 11.3:

“Future ‘facts?do not exist. The only type of facts that exist and that may be established with certainty and precision relate to the past and, to the extent they may be accurately recorded and evaluated, to the present. We recall that one of the fundamental goals of the Anti-Dumping Agreement as a whole is to ensure that objective determinations are made, based, to the extent possible, on facts.⁽¹⁰³⁸⁾ Thus, to the extent that it will rest upon a factual foundation, the prospective likelihood determination will inevitably rest on a factual foundation relating to the past and present. The investigating authority must evaluate this factual foundation and come to a reasoned conclusion about likely future developments.?sup id="fntext-1039">(1039)

761.   The Appellate Body in US ?Oil Country Tubular Goods Sunset Reviews adopted a similar approach to the need to base a prospective likelihood determination on “positive evidence?

“The requirements of ‘positive evidence?must, however, be seen in the context that the determinations to be made under Article 11.3 are prospective in nature and that they involve a ‘forward-looking analysis?⁽¹⁰⁴⁰⁾ Such an analysis may inevitably entail assumptions about or projections into the future. Unavoidably, therefore, the inferences drawn from the evidence in the record will be, to a certain extent, speculative. In our view, that some of the inferences drawn from the evidence on record are projections into the future does not necessarily suggest that such inferences are not based on ‘positive evidence??sup id="fntext-1041">(1041)

(b) No specific methodology

762.   The Panel in US ?Corrosion-Resistant Steel Sunset Review considered that Article 11.3 does not expressly prescribe any specific methodology for investigating authorities to use in making a likelihood determination in a sunset review:

“Similarly, we observe that Article 11.3 is silent as to how an authority should or must establish that dumping is likely to continue or recur in a sunset review. That provision itself prescribes no parameters as to any methodological requirements that must be fulfilled by a Member’s investigating authority in making such a ‘likelihood?determination.?sup id="fntext-1042">(1042)

763.   This view was confirmed by the Appellate Body in US ? Corrosion-Resistant Steel Sunset Review. It thus considered that “no obligation is imposed on investigating authorities to calculate or rely on dumping margins in a sunset review.?sup id="fntext-1043">(1043) According to the Appellate Body, “in a sunset review, dumping margins may well be relevant to, but they will not necessarily be conclusive of, whether the expiry of the duty would be likely to lead to continuation or recurrence of dumping?⁽¹⁰⁴⁴⁾

764.   However, the Appellate Body in US ?Corrosion-Resistant Steel Sunset Review added, should investigating authorities choose to rely upon dumping margins in making their likelihood determination, the calculation of these margins must conform to the disciplines of Article 2 in general and Article 2.4 in particular: “If these margins were legally flawed because they were calculated in a manner inconsistent with Article 2.4, this could give rise to an inconsistency not only with Article 2.4, but also with Article 11.3 of the Anti-Dumping Agreement.?sup id="fntext-1045">(1045) In such circumstances, “the likelihood[-of-dumping] determination could not constitute a proper foundation for the continuation of antidumping duties under Article 11.3.?sup id="fntext-1046">(1046)

765.   The Panel in US ?Oil Country Tubular Goods Sunset Reviews came to a similar conclusion with respect to the likelihood of injury determination. According to the Panel, obligations contained in the various paragraphs of Article 3 do not “normally?apply to sunset reviews:

“Just as the Appellate Body stated that an investigating authority is not required to make a dumping determination in a sunset review, we consider that an investigating authority is not required to make an injury determination in a sunset review. It follows, then, that the obligations set out in Article 3 do not normally apply to sunset reviews?sup id="fntext-1047">(1047)

766.   However, the Panel was of the view that, to the extent that an investigating authority relies on a determination of injury when conducting a sunset review, the obligations of Article 3 would apply to that determination:

“If, however, an investigating authority decides to conduct an injury determination in a sunset review, or if it uses a past injury determination as part of its sunset determination, it is under the obligation to make sure that its injury determination or the past injury determination it is using conforms to the relevant provisions of Article 3.⁽¹⁰⁴⁸⁾ For instance, Article 11.3 does not mention whether an investigating authority is required to calculate the price effect of future dumped imports on the prices of the domestic industry. In our view, this means that an investigating authority is not necessarily required to carry out that calculation in a sunset review. However, if the investigating authority decides to do such a calculation, then it would be bound by the relevant provisions of Article 3 of the Agreement. Similarly, if, in its sunset injury determinations, an investigating authority uses a price effect calculation made in the original investigation or in the intervening reviews, it has to assure the consistency of that calculation with the existing provisions of Article 3.?sup id="fntext-1049">(1049)

767.   The Appellate Body in US ?Oil Country Tubular Goods Sunset Reviews agreed with this approach by the Panel. The Appellate Body considered that “when Article 11.3 requires a determination as to the likelihood of continuation or recurrence of ‘injury? the investigating authority must consider the continuation or recurrence of ‘injury?as defined in footnote 9.?sup id="fntext-1050">(1050) According to the Appellate Body, “it does not follow, however, from this single definition of ‘injury? that all of the provisions of Article 3 are applicable in their entirety to sunset review determinations under Article 11.3?sup id="fntext-1051">(1051):

“In our view, however, the Anti-Dumping Agreement distinguishes between ‘determination[s] of injury? addressed in Article 3, and determinations of likelihood of ‘continuation or recurrence ?of injury? addressed in Article 11.3. In addition, Article 11.3 does not contain any cross-reference to Article 3 to the effect that, in making the likelihood-of-injury determination, all the provisions of Article 3 ?or any particular provisions of Article 3 ?must be followed by investigating authorities. Nor does any provision of Article 3 indicate that, wherever the term ‘injury?appears in the Anti-Dumping Agreement, a determination of injury must be made following the provisions of Article 3.?sup id="fntext-1052">(1052)

768.   The Appellate Body in US ?Oil Country Tubular Goods Sunset Reviews concluded that “investigating authorities are not mandated to follow the provisions of Article 3 when making a likelihood-of-injury determination?⁽¹⁰⁵³⁾ However, the Appellate Body added, this does not imply that in a sunset review determination, an investigating authority is never required to examine any of the factors listed in the paragraphs of Article 3:

“Certain of the analyses mandated by Article 3 and necessarily relevant in an original investigation may prove to be probative, or possibly even required, in order for an investigating authority in a sunset review to arrive at a ‘reasoned conclusion? In this respect, we are of the view that the fundamental requirement of Article 3.1 that an injury determination be based on ‘positive evidence?and an ‘objective examination?would be equally relevant to likelihood determinations under Article 11.3. It seems to us that factors such as the volume, price effects, and the impact on the domestic industry of dumped imports, taking into account the conditions of competition, may be relevant to varying degrees in a given likelihood-of-injury determination. An investigating authority may also, in its own judgement, consider other factors contained in Article 3 when making a likelihood-of-injury determination. But the necessity of conducting such an analysis in a given case results from the requirement imposed by Article 11.3 ?not Article 3 ?that a likelihood-of-injury determination rest on a ‘sufficient factual basis?that allows the agency to draw ‘reasoned and adequate conclusions??sup id="fntext-1054">(1054)

769.   The Panel in US ?Oil Country Tubular Goods Sunset Reviews (Article 21.5 ?Argentina) articulated further the freedom of an investigating authority to choose its own methodology to determine the likelihood of continuation or recurrence of dumping, cautioning that the investigating authority would nevertheless need to act with an appropriate degree of diligence:

?a href="#article11A3">Article 11.3 requires investigating authorities to terminate an anti-dumping duty not later than five years from its imposition unless they determine in a review initiated before then that dumping and injury are likely to continue or recur should the duty be revoked Article 11.3 does not, however, set out a specific methodology for making such determinations. In principle, therefore, investigating authorities are not restricted in the choice of methodology they will follow in making their sunset determinations. In their choice of methodology, however, the investigating authorities should have regard to both ‘investigatory and adjudicatory aspects?of sunset reviews and make forward-looking determinations on the basis of evidence relating to the past. They must arrive at reasoned conclusions on the basis of positive evidence. In so doing, the investigating authorities may not remain passive. Rather, the authorities have to act with an ‘appropriate degree of diligence??sup id="fntext-1055">(1055)

770.   In US ?Zeroing (Japan), the Panel determined that in making two sunset review determinations at issue, the US Department of Commerce relied on margins of dumping established in prior proceedings when making its likelihood-of-dumping calculations; The Appellate Body held that because zeroing in periodic reviews is inconsistent as such with Articles 2.4 and 9.3, the likelihood-of-dumping determinations were inconsistent with Article 11.3 because they relied on margins calculated inconsistently with the Agreement.⁽¹⁰⁵⁶⁾

771.   The Panel in US ?Continued Zeroing found that to the extent that a sunset review determination is based on previous margins obtained through a methodology that is inconsistent with the covered agreements, the resulting sunset review determinations would also be inconsistent with the covered agreements; it found that eight sunset review determinations were inconsistent with Article 11.3 because they relied on margins obtained through model zeroing in prior investigations.⁽¹⁰⁵⁷⁾ The Appellate Body upheld this finding, and concluded that

“the application and continued application of antidumping duties is inconsistent with Article 11.3 of the Anti-Dumping Agreement to the extent that reliance is placed upon a margin of dumping calculated through the use of the zeroing methodology in making sunset review determinations.?sup id="fntext-1058">(1058)

(c) Use of presumptions in a likelihood determination

772.   The Appellate Body in US ?Corrosion-Resistant Steel Sunset Review clearly stated that the use of presumptions may be inconsistent with an obligation to make a particular determination in each case using positive evidence. It considered “that a firm evidentiary foundation is required in each case for a proper determination under Article 11.3 of the likelihood of continuation or recurrence of dumping. Such a determination cannot be based solely on the mechanistic application of presumptions.?sup id="fntext-1059">(1059)

773.   The Appellate Body in US ?Corrosion-Resistant Steel Sunset Review saw no problem in investigating authorities being instructed to examine, in every sunset review, dumping margin and import volumes.⁽¹⁰⁶⁰⁾ However, it noted that the significance and probative value of the two factors for a likelihood determination in a sunset review will necessarily vary from case to case. It stated that it “would have difficulty accepting that dumping margins and import volumes are always ‘highly probative?in a sunset review by the United States Department of Commerce if this means that either or both of these factors are presumed, by themselves, to constitute sufficient evidence that the expiry of the duty would be likely to lead to continuation or recurrence of dumping?sup id="fntext-1061">(1061) The Appellate Body thus concluded that the consistency of the provisions of a measure with Article 11.3 hinges upon whether those provisions instruct the investigating authority to treat “dumping margins and/or import volumes as determinative or conclusive, on the one hand, or merely indicative or probative, on the other hand, of the likelihood of future dumping.?sup id="fntext-1062">(1062)

774.   The Panel in US ?Oil Country Tubular Goods Sunset Reviews considered that a scheme that attributes a “determinative?/ “conclusive? value to certain factors in sunset determinations ?as opposed to only an indicative value ?is likely to violate Article 11.3 of the Anti-Dumping Agreement.⁽¹⁰⁶³⁾ On appeal, the Appellate Body considered that the Panel had correctly articulated the standard for determining whether a measure was inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement.⁽¹⁰⁶⁴⁾

775.   The Panel in US ?Oil Country Tubular Goods Sunset Reviews considered that both the so called deemed waiver and affirmative waiver provisions of United States law were inconsistent with Article 11.3 because they required an authority to make an affirmative determination of likelihood of continuation or recurrence of dumping, without taking into consideration the facts submitted by the exporter filing an incomplete submission, or without any further inquiry in the event where the exporter filed no submission or declared its intention not to participate in the review.⁽¹⁰⁶⁵⁾ On appeal, the Appellate Body agreed with the Panel’s analysis:

“Because the waiver provisions require the USDOC to arrive at affirmative company-specific determinations without regard to any evidence on record, these determinations are merely assumptions made by the agency, rather than findings supported by evidence. The United States contends that respondents waiving the right to participate in a sunset review do so ‘intentionally? with full knowledge that, as a result of their failure to submit evidence, the evidence placed on the record by the domestic industry is likely to result in an unfavourable determination on an order-wide basis. In these circumstances, we see no fault in making an unfavourable order-wide determination by taking into account evidence provided by the domestic industry in support thereof. However, the USDOC also takes into account, in such circumstances, statutorily-mandated assumptions. Thus, even assuming that the USDOC takes into account the totality of record evidence in making its order-wide determination, it is clear that, as a result of the operation of the waiver provisions, certain order-wide likelihood determinations made by the USDOC will be based, at least in part, on statutorily-mandated assumptions about a company’s likelihood of dumping. In our view, this result is inconsistent with the obligation of an investigating authority under Article 11.3 to ‘arrive at a reasoned conclusion?on the basis of ‘positive evidence??sup id="fntext-1066">(1066)

(d) Determination regarding likelihood or continuation or recurrence of dumping

776.   In US ?Oil Country Tubular Goods Sunset Reviews (Article 21.5 ?Argentina), the section 129 determination (i.e. the sunset review determination by the USDOC) was based on two findings: (1) likely past dumping, and (2) the United States Department of Commerce’s volume analysis from the original sunset review.⁽¹⁰⁶⁷⁾ In relation to the first claim, Argentina argued that reliance on past dumping was inconsistent with Article 11.3. In relation to the volume analysis, Argentina claimed that: (a) it was part of the US Department of Commerce’s measure taken to comply; and (b) that Argentine exporters had tried to explain that the decline in volume was due to other factors, which were not addressed by the USDOC.

(i) Likely past dumping

777.   The Panel in US ?Oil Country Tubular Goods Sunset Reviews (Article 21.5 ?Argentina) quickly dismissed Argentina’s first claim, citing an insufficient factual basis by the USDOC in its analysis of likely past dumping. This was based on the United States Department of Commerce’s failure to seek information about home market prices:

“The parties?arguments raise two important issues. The first issue is whether the USDOC’s finding of likely past dumping was a determination of dumping. The second issue is whether the USDOC’s reliance upon a finding of likely past dumping as one of the bases of its determination of the likelihood of continuation or recurrence of dumping was consistent with Article 11.3 of the Agreement. In our view, however, a definitive resolution of these questions regarding the USDOC’s Section 129 Determination is not necessary to our assessment of Argentina’s claim. This flows from our view that even if this was not a determination of dumping as the United States asserts, and even if relying on likely past dumping was appropriate ?issues which we do not here address ?the USDOC’s analysis of likely past dumping lacked a sufficient factual basis.⁽¹⁰⁶⁸⁾

…the concept of dumping is, in the first instance, a comparison of home market and export prices. Only in the circumstances set forth in Article 2.2 may an investigating authority look to alternative bases to home market prices, such as costs, when determining normal value.⁽¹⁰⁶⁹⁾

In the sunset review at issue, the USDOC did not even ask Acindar to provide information regarding its normal value and export price. Rather, it restricted itself to asking for certain cost information and, when that cost information was not provided, compared Acindar’s export prices to the United States, obtained from the US customs authorities, with the prevailing prices in the US market. The failure to seek information about Acindar’s home market prices means that the USDOC made a finding of likely dumping without making any effort to obtain information that is essential to the core principle of dumping as a price-to-price comparison. We do not see how a finding of likely past dumping could have a sufficient factual basis if it did not take into account at a bare minimum these elementary aspects of the concept of dumping as that term is used in the Anti-Dumping Agreement.?sup id="fntext-1070">(1070)

(ii) Volume analysis

778.   The Panel in US ?Oil Country Tubular Goods Sunset Reviews (Article 21.5 ?Argentina) found that the volume analysis from the original sunset review was part of the “measure taken to comply? as claimed by Argentina:

“According to the United States, since the volume analysis was incorporated by reference, without any change, and the original panel made no findings with respect to this analysis, it is not part of the measure taken to comply. We recall that the function of a compliance panel under Article 21.5 of the DSU is to assess the existence or WTO-consistency of measures taken by a Member to comply with the DSB recommendations and rulings. Thus, as a compliance panel, we base our assessment on the measure taken to comply with the DSB recommendations and rulings. The United States describes the measure taken to comply with the recommendations and rulings of the DSB in a certain manner. We do not consider, however, that we are bound by such description. In compliance proceedings under Article 21.5 of the DSU, it is for the Panel, and not the parties to the dispute, to determine what constitutes the measure taken to comply. As the United States itself acknowledges, the text of the Section 129 Determination at issue makes it clear that one of the two main underpinnings of the USDOC’s order-wide likelihood determination was the volume analysis carried over from the original sunset review. The USDOC based its order-wide determination on its finding regarding likely past dumping as well as the volume analysis from the original sunset review. As such, we consider the volume analysis from the original sunset review to have become an integral part of the Section 129 Determination. In our view, therefore, the volume analysis from the original sunset review is part of the measure taken to comply by the United States and hence is properly before us in these proceedings.?sup id="fntext-1071">(1071)

779.   In support of its defence that the volume analysis was not part of the “measure taken to comply? the United States argued before the Panel in US ?Oil Country Tubular Goods Sunset Reviews (Article 21.5 ?Argentina), that the Appellate Body decision in EC ?Bed Linen (Article 21.5) supported its position. The Panel found the facts of EC ?Bed Linen (Article 21.5) to be sufficiently “distinguishable from the case before us?and confirmed, given its previous findings, that the volume analysis did form part of the measure taken to comply.⁽¹⁰⁷²⁾

780.   The Panel in US ?Oil Country Tubular Goods Sunset Reviews (Article 21.5 ?Argentina) next considered whether the USDOC’s analysis was consistent with Article 11.3 of the Anti-Dumping Agreement given Argentina’s claim that other factors having an impact on the volume of imports had not been taken into account. In the Panel’s view, the USDOC’s finding regarding the decline in the volume of imports “was not based on a thorough evaluation of the possible causes of such decline?⁽¹⁰⁷³⁾

“In our view, the USDOC’s finding regarding the decline in the volume of imports was not based on a thorough evaluation of the possible causes of such decline. The decline could have resulted from a variety of other factors, which could theoretically indicate no likelihood of continuation or recurrence of dumping. In other words, it is possible that despite a decline in the volume of imports, there may not be likelihood of continuation or recurrence of dumping. In fact, Siderca, in its response to the USDOC’s questionnaire, attempted to explain why the decline in the volume of Siderca’s exports to the United States following the imposition of the measure at issue did not necessarily mean that Siderca could not export with the measure in place. The United States contends that Siderca’s comments were weakly supported and did not explain why Siderca stopped shipping to the United States. The United States may or may not be correct in its proposition. We are by no means suggesting that Siderca’s arguments should have been accepted by the USDOC. The fact remains, however, that the Section 129 Determination fails to examine potential reasons, other than a likelihood of continuation or recurrence of dumping, that could have triggered the decline in the volume of imports. This is not, in our view, the kind of determination that would be made by an unbiased and objective investigating authority. The USDOC’s determination regarding the decline in the volume of imports lacks a sufficient factual basis.?sup id="fntext-1074">(1074)

781.   The Panel in US ?Oil Country Tubular Goods Sunset Reviews (Article 21.5 ?Argentina) concluded that the USDOC’s order-wide determination was inconsistent with Article 11.3 of the Anti-Dumping Agreement. This finding was appealed by the United States.

782.   The Appellate Body in US ?Oil Country Tubular Goods Sunset Reviews (Article 21.5 ?Argentina) upheld the Panel’s finding that the USDOC’s finding on import volumes was part of the “measure taken to comply? Accordingly, the Panel’s findings regarding the decline in the volume of imports were also upheld:

“The USDOC’s reasoning in the Section 129 Determination indicates that the two factual premises operated together to support the determination of likelihood of dumping. The affirmative determination of likelihood of dumping follows consideration of both the finding of likely dumping during the time the anti-dumping duty order was in place and the finding that the volume of imports declined after the imposition of the order. Because the likelihood-of-dumping determination in the Section 129 Determination is premised on both bases, which together support the affirmative likelihood determination, we consider that the USDOC’s finding that the volume of imports declined after imposition of the anti-dumping duty order is an integral part of the ‘measure taken to comply?in this case.?/p>

We further note that the Appellate Body considered in US ? Softwood Lumber IV (Article 21.5 ?Canada) that ‘[s]ome measures with a particularly close relationship to the declared “measure taken to comply? and to the recommendations and rulings of the DSB, may also be susceptible to review by a panel acting under Article 21.5.? The Appellate Body noted that this ‘requires an Article 21.5 panel to examine the factual and legal background against which a declared “measure taken to comply?is adopted?because ‘[o]nly then is a panel in a position to take a view as to whether there are sufficiently close links for it to characterize such an other measure as one “taken to comply? and, consequently, to assess its consistency with the covered agreements in an Article 21.5 proceeding.?If a measure that is formally separate from, but closely linked to, a declared ‘measure taken to comply? can fall within the scope of an Article 21.5 proceeding, this would suggest a fortiori that, when both factual bases are relied upon for a likelihood-of-dumping determination, they can be considered by an Article 21.5 panel when assessing the consistency of that determination with Article 11.3.

?/p>

Furthermore, we recall that the aim of Article 21.5 of the DSU is to promote the prompt compliance with DSB recommendations and rulings and the consistency of ‘measures taken to comply?with the covered agreements by making it unnecessary for a complainant to begin new proceedings and by making efficient use of the original panellists and their relevant experience. These considerations support the Panel’s finding that the volume analysis was properly before it. Requiring Argentina to initiate new WTO proceedings against the United States in order to challenge the USDOC’s finding on import volumes would entail a significant delay. Moreover, it would be difficult to reconcile this with the objective that Article 21.5 panels ‘examine fully the “consistency with a covered agreement of the measures taken to comply? as required by [that provision]? Finally, it seems difficult to conceive how the two factual bases could each be examined by separate panels (one of which is operating pursuant to Article 21.5), considering that both factual premises together support the USDOC’s likelihood-of-dumping determination.?sup id="fntext-1075">(1075)

(e) Order-wide basis of a likelihood determination

783.   In its report on US ?Corrosion-Resistant Steel Sunset Review, the Appellate Body addressed the question whether authorities must make a separate determination, for each individual exporter or producer, on whether the expiry of the duty would be likely to lead to continuation or recurrence of dumping by that exporter or producer or whether it would be possible to make a single order-wide determination on whether revocation of a particular anti-dumping duty order would be likely to lead to continuation or recurrence of dumping. The Appellate Body considered that, on its face, Article 11.3 does not oblige investigating authorities in a sunset review to make “company-specific? likelihood determinations:

“We reiterate that Article 11.3 does not prescribe any particular methodology to be used by investigating authorities in making a likelihood determination in a sunset review. In particular, Article 11.3 does not expressly state that investigating authorities must determine that the expiry of the duty would be likely to lead to dumping by each known exporter or producer concerned. In fact, Article 11.3 contains no express reference to individual exporters, producers, or interested parties. This contrasts with Article 11.2, which does refer to ‘any interested party?and ‘[i]nterested parties? We also note that Article 11.3 does not contain the word ‘margins? which might implicitly refer to individual exporters or producers. On its face, Article 11.3 therefore does not oblige investigating authorities in a sunset review to make ‘company-specific?likelihood determinations in the manner suggested by Japan.?sup id="fntext-1076">(1076)

784.   In the compliance proceeding, the Panel in US ?Oil Country Tubular Goods Sunset Reviews (Article 21.5 ?Argentina) noted that following the regulatory amendments in the United States, the waiver provisions only required the USDOC to find likelihood of continuation or recurrence of dumping with respect to exporters who affirmatively waived their right to participate. However, the US law also required the USDOC to make its sunset determinations on an order-wide basis. Therefore, the question for the Panel was what impact, if any, a company-specific determination of likelihood might have on the USDOC’s order-wide determination:⁽¹⁰⁷⁷⁾

“We find it difficult to understand how the USDOC would find no likelihood of continuation or recurrence of dumping on an order-wide basis in a sunset review where it may have made an affirmative likelihood determination for some exporters pursuant to Section 751(c)(4)(B) of the Tariff Act. Given that Section 751(c)(4)(B) requires the USDOC to make an affirmative likelihood determination for individual exporters who waive their right to participate, it seems to us that such company-specific determinations would necessarily have a significant impact on, or even determine, the outcome of the USDOC’s order-wide determination. Hence, we can reasonably conclude that in every sunset review involving multiple exporters the USDOC will have to find likelihood on an order-wide basis if one exporter waives its right to participate, because otherwise the USDOC would have found no likelihood with respect to the exporters who waive their right to participate.

Making an affirmative finding of likelihood of continuation or recurrence of dumping from a country without considering the information that may have been submitted by exporters who do not waive their right to participate in the sunset review would not, in our view, be a reasoned determination premised on an adequate factual basis. As we noted above, the investigating authorities are expected to be sufficiently active in sunset reviews in developing the necessary factual premise for their determinations. The provisions of Section 751(c)(4)(B) of the Tariff Act, however, would preclude the USDOC from taking into consideration evidence submitted by cooperating exporters or evidence otherwise collected by the USDOC in sunset reviews where there is at least one other exporter who waives its right to participate. In such cases, the USDOC’s order-wide determination would be based on the assumption that because one exporter waived its right to participate and acknowledged to be likely to continue or resume dumping, other exporters are also likely to continue or resume dumping. The USDOC would thus be ignoring the information which is relevant to its sunset determination and which is readily available to it and would fail to observe the obligation of the investigating authorities to make reasoned determinations of likelihood of continuation or recurrence of dumping based on a sufficient factual premise in accordance with Article 11.3 of the Agreement.?sup id="fntext-1078">(1078)

785.   The Panel in US ?Oil Country Tubular Goods Sunset Reviews (Article 21.5 ?Argentina) found that Section 751(c)4(B) of the Tariff Act, operating in conjunction with Section 751(c)(4)(A) of the Tariff Act and Section 351.218(d)(2) of the Regulations, was inconsistent with Article 11.3 of the Anti-Dumping Agreement. The Appellate Body in US ?Oil Country Tubular Goods Sunset Reviews (Article 21.5 ?Argentina) however disagreed with the Panel’s analysis “for several reasons? and reversed the Panel’s finding:

“First, the Panel did not fully appreciate the consequences that flow from the fact that, under the amended waiver provisions, the company-specific findings are now based on positive evidence taking the form of an admission. Secondly ?Argentina did not set out to demonstrate that the company-specific findings determine the outcome of the order-wide determination. Rather, Argentina sought to prove that ‘the order-wide determination will be based, at least in part, on statutorily-mandated findings? which Argentina claims is sufficient to establish a violation of Article 11.3 of the Anti-Dumping Agreement.

In addition, we note that the Panel concluded that the amended waiver provisions ‘would preclude the USDOC from taking into consideration evidence submitted by cooperating exporters or evidence otherwise collected by the USDOC in sunset reviews where there is at least one other exporter who waives its right to participate? The Panel also concluded that ‘company-specific determinations would necessarily have a significant impact on, or even determine, the outcome of the USDOC’s order-wide determination.?However, the United States emphasized before the Panel that, ‘[i]n making its order-wide determination, [the USDOC] must consider all information and argument on the record of the sunset proceeding.?Furthermore, the United States pointed out that ‘the relevance of ?a company-specific finding to the ultimate likelihood determination always would depend on the facts on the administrative record in that sunset review.?/p>

We observe that a respondent’s explanation of the basis on which its investigating authority will make a determination will have more weight if it is confirmed by the text of the applicable laws or regulations. But the United States?statements that the USDOC must consider all information and arguments on the record, and that the relevance of a company-specific finding to the order-wide likelihood determination would always depend on the facts of each case, cannot be rejected merely because there is no legal instrument that expressly requires the USDOC to act in this way. This is insufficient to support properly a finding of inconsistency as such. Thus, the Panel’s reasoning seems speculative, and this is reflected in the language used in the Panel Report.

In sum, on the basis of the evidence on the Panel record, we are not persuaded that the amended waiver provisions preclude the USDOC from making a reasoned determination with a sufficient factual basis, as required by Article 11.3 of the Anti-Dumping Agreement. Under the amended waiver provisions, a company-specific finding is not based on an assumption but, rather, on a statement by the waiving exporter indicating that it is likely to dump if the order were revoked or the investigation terminated. Moreover, the amended waiver provisions do not preclude the USDOC from considering other evidence on the record of the sunset review. Indeed, under Article 11.3 of the Anti-Dumping Agreement, the USDOC would have to consider any other evidence on the record, and assess the statement of waiver in the light of that other evidence, before making the order-wide determination. If it failed to do so, it would not exercise the degree of diligence required of investigating authorities, nor could it make a reasoned determination with a sufficient factual basis, as required by Article 11.3 of the Anti-Dumping Agreement.?sup id="fntext-1079">(1079)

(f) No prescribed time-frame for likelihood of continuation or recurrence of injury

786.   The Panel in US ?Oil Country Tubular Goods Sunset Reviews noted that Article 11.3 of the Anti-Dumping Agreement does not prescribe any timeframe for likelihood of continuation or recurrence of injury; nor does it require investigating authorities to specify the time-frame on which their likelihood determination is based:

“As we already stated, Article 11.3 does not impose a particular time-frame on which the investigating authority has to base its likelihood determination. Further, in our view, the investigating authority does not have to base its likelihood determination on a uniform time-frame with respect to each injury factor that it takes into consideration. The time-frame regarding different injury factors may be different from one another depending on the circumstances of each sunset review. For instance, in a case where the exporters have excessive inventories, the investigating authority’s evaluation of likely volume of dumped imports can be based on a relatively short timeframe. On the other hand, an analysis regarding the cash flows or productivity of the domestic industry may necessarily have to be based on a longer time-frame.?sup id="fntext-1080">(1080)

787.   The Appellate Body in US ?Oil Country Tubular Goods Sunset Reviews agreed with the Panel that “an assessment regarding whether injury is likely to recur that focuses ‘too far in the future would be highly speculative?sup id="fntext-1081">(1081), and that it might be very difficult to justify such an assessment. However, like the Panel, we have no reason to believe that the standard of a ‘reasonably foreseeable time?set out in the United States statute is inconsistent with the requirements of Article 11.3.?sup id="fntext-1082">(1082) The Appellate Body rejected the argument that the requirement set out in Article 3.7 that the threat of material injury be “imminent?is to be imported into Article 11.3 in the form of a temporal limitation on the time-frame within which “injury?must be determined to continue or recur. The Appellate Body considered that “sunset reviews are not subject to the detailed disciplines of Article 3, which include the specific requirement of Article 3.7?⁽¹⁰⁸³⁾

788.   In addition, the Appellate Body in US ?Oil Country Tubular Goods Sunset Reviews rejected the argument that an authority would be required to specify the relevant time-frame for injury to continue or recur for the authority’s determination to be a “properly reasoned and supported determination?

“As we have noted above, the text of Article 11.3 does not establish any requirement for the investigating authority to specify the time-frame on which it bases its determination regarding injury. Thus, the mere fact that the time-frame of the injury analysis is not presented in a sunset review determination is not sufficient to undermine that determination. Article 11.3 requires that a determination of likelihood of continuation or recurrence of injury rest on a sufficient factual basis to allow the investigating authority to draw reasoned and adequate conclusions. A determination of injury can be properly reasoned and rest on a sufficient factual basis even though the time-frame for the injury determination is not explicitly mentioned.?sup id="fntext-1084">(1084)

(g) Applicability of procedural obligations

(i) Evidentiary standards for initiation

789.   The Panel in US ?Corrosion-Resistant Steel Sunset Review rejected the argument that the same evidentiary standards that apply to the self-initiation of original investigations under Article 5.6 also apply to the self-initiation of sunset reviews under Article 11.3. The Panel based itself on the text of Article 11.3:

“As Japan concedes, Article 11.3, on its face, does not mention, either explicitly or by way of reference, any evidentiary standard that should or must apply to the self-initiation of sunset reviews. Article 11.3 contemplates initiation of a sunset review in two alternative ways, as is evident through the use of the word ‘or? Either the authorities make their determination in a review initiated ‘on their own initiative? or they make their determination in a review initiated ‘upon a duly substantiated request made by or on behalf of the domestic industry? Although Article 11.3 provides for a certain qualification regarding initiations based on complaints lodged by the domestic industry ?that such requests be ‘duly substantiated?? the text clearly indicates that this qualification is germane only to that specific situation and does not apply to self-initiations. Consequently, since the drafters did not set forth any evidentiary requirements for the self-initiation of sunset reviews in the text of Article 11.3 itself, at first blush, it seems to us that they intended not to impose any evidentiary standards in respect of the self-initiation of a sunset review.?sup id="fntext-1085">(1085)

790.   The Panel in US ?Corrosion-Resistant Steel Sunset Review found further support for its conclusion in the absence of any cross-referencing in Article 11 to the evidentiary standards concerning original investigations in Article 5.6:

“Although paragraphs 4 and 5 of Article 11 contain several cross-references to other articles in the Anti-Dumping Agreement, no such cross-reference has been made in the text of Article 11 to Article 5.6. These cross-references (as well as other cross-references in the Anti-Dumping Agreement, such as, for example, in Article 12.3) indicate that, when the drafters intended to make a particular provision also applicable in a different context, they did so explicitly. Therefore, their failure to include a cross-reference in the text of Article 11.3, or, for that matter, in any other paragraph of Article 11, to Article 5.6 (or vice versa) demonstrates that they did not intend to make the evidentiary standards of Article 5.6 applicable to sunset reviews.?sup id="fntext-1086">(1086)

(ii) New factual basis

791.   The Panel in US ?Oil Country Tubular Goods Sunset Reviews (Article 21.5 ?Argentina) rejected Argentina’s claim that the US Department of Commerce acted inconsistently with Articles 11.3 and 11.4 by developing a new factual basis pertaining to the original review period for the purposes of a sunset review. The Panel drew on Mexico ?Corn Syrup, Australia ?Salmon, and Japan ?Apples for support in concluding that “WTO Members may need to collect new information supplementary to that on the record of their original determinations in making subsequent determinations in the context of implementing the DSB recommendations and rulings.?sup id="fntext-1087">(1087) Argentina appealed this finding, but was unsuccessful.

792.   In the appeal on US ?Oil Country Tubular Goods Sunset Reviews (Article 21.5 ?Argentina) Argentina made an argument that rested on a distinction between clarifying or explaining the original sunset determination, which would, in Argentina’s view, be possible; and developing a new evidentiary basis for a redetermination because an investigating authority had not “developed an adequate evidentiary foundation for its original sunset determination? which Argentina submitted would not be possible under Articles 11.3 and 11.4.⁽¹⁰⁸⁸⁾ Argentina also argued that allowing an investigating authority to develop a new evidentiary basis would “reduce to inutility the temporal limitations set out in Articles 11.3 and 11.4? The Appellate Body was not convinced by Argentina’s arguments:

?a href="#article11A3">Articles 11.3 and 11.4 [do not] provide a basis for drawing a distinction between allowing an investigating authority to clarify information, or provide further explanations, on the one hand, and to develop a new factual basis, on the other hand. At the oral hearing, Argentina itself recognized that an investigating authority clarifying information, or providing further explanations, would be allowed to gather additional information and develop some new facts relating to the original sunset review period. This illustrates the difficulty of drawing the distinction relied upon by Argentina, where collection of some facts is allowed to clarify information or provide further explanations, but not to develop a new factual basis.

Article 11.3 of the Anti-Dumping Agreement does not refer to the steps that an investigating authority may take to implement DSB recommendations and rulings or to the collection of evidence at that stage. Article 11.4 states that the provisions of Article 6 of the Anti-Dumping Agreement regarding evidence and procedure are applicable to sunset reviews. Article 6 contains several provisions relating to the collection of evidence, including several time periods. However, like Articles 11.3 and 11.4, Article 6 does not specifically refer to the collection of evidence for purposes of implementing DSB recommendations and rulings. Therefore, we do not consider that Articles 11.3 and 11.4 address the specific question of whether an investigating authority can develop a new evidentiary basis when implementing DSB recommendations and rulings.

?/p>

Argentina argues, furthermore, that allowing an investigating authority to develop a new evidentiary basis would reduce to inutility the temporal limitations set out in Articles 11.3 and 11.4 of the Anti-Dumping Agreement. We do not share this view. As explained above, Argentina’s claim that the USDOC was precluded from developing a new evidentiary basis is premised on the qualitative shortcomings of the fact-finding in the original review. It does not implicate the temporal requirements of Article 11.3, which remain valid even if an investigating authority is allowed to collect additional facts relating to the original review period when making a re-determination of the likelihood of dumping for the purpose of implementing recommendations and rulings of the DSB. Moreover, an investigating authority seeking to comply with an adverse WTO ruling by conducting a sunset re-determination would have to comply with all of the substantive obligations set out in Articles 11.3 and 11.4. This means that any additional factual information relating to the initial review period that is collected for purposes of the redetermination would have to be ‘sufficient? and the conclusion reached on the basis of those facts would have to be ‘reasoned? It also means that the anti-dumping duties could not remain in place unless the investigating authority concluded in the re-determination that dumping and injury were likely to continue or recur. Furthermore, the due process and evidentiary obligations established in Article 11.4, by virtue of its reference to Article 6, would apply also to the process leading to the re-determination.?sup id="fntext-1089">(1089)

(iii) De minimis standard in sunset reviews

793.   The Panel in US ?Corrosion-Resistant Steel Sunset Review rejected the argument that the Anti-Dumping Agreement requires that the same de minimis standard that applies to investigating authorities under Article 5.8 also applies to sunset reviews under Article 11.3:

“On its face, Article 11.3 does not provide, either explicitly or by way of reference, for any de minimis standard in making the likelihood of continuation or recurrence of dumping determinations in sunset reviews. Therefore, Article 11.3 itself is silent as to whether the de minimis standard of Article 5.8 (or any other de minimis standard) is applicable to sunset reviews. However, ‘[s]uch silence does not exclude the possibility that the requirement was intended to be included by implication.?/p>

We therefore look to the context of Article 11.3. The immediate context of Article 11.3 does not, however, yield a different result. Article 11.1 sets out the general rule that an anti-dumping duty can remain in force only as long as and to the extent necessary to counteract injurious dumping. Articles 11.2 and 11.3 reflect the application of that general rule under different circumstances. Article 11.4 contains a cross-reference to Article 6, which sets forth rules relating to evidence and procedure applicable to investigations. Given that, similar to Article 6, Article 5 also contains rules applicable to original investigations, we consider the absence in Article 11.4 of a similar cross-reference to Article 5 to indicate that the drafters did not intend to have the obligations in Article 5 apply also to sunset reviews.?sup id="fntext-1090">(1090)

794.   In the view of the Panel in US ?Corrosion-Resistant Steel Sunset Review, it was clear that Article 5.8 did not suggest that the de minimis standard set out for investigations also applied to sunset reviews:

“In particular, the text of paragraph 8 of Article 5 refers expressly to the termination of an investigation in the event of de minimis dumping margins. There is, therefore, no textual indication in Article 5.8 that would suggest or require that the obligation in Article 5.8 also applies to sunset reviews. Nor is there any such suggestion or requirement in the other provisions of Article 5.?sup id="fntext-1091">(1091)

795.   On the basis of this textual analysis of the relevant provisions of the Anti-Dumping Agreement, the Panel in US ?Corrosion-Resistant Steel Sunset Review concluded that the 2 per cent de minimis standard of Article 5.8 does not apply in the context of sunset reviews.⁽¹⁰⁹²⁾

(iv) Cumulation

Whether cumulation is permissible in sunset reviews

796.   The Appellate Body in US ?Oil Country Tubular Goods Sunset Reviews examined the question whether cumulation is permissible in sunset reviews. It found that, while Articles 3.3 and 11.3 are silent on this issue, this silence “cannot be understood to imply that cumulation is prohibited in sunset reviews?⁽¹⁰⁹³⁾ The Appellate Body, recalling the apparent rationale behind the practice of cumulation in injury investigations as discussed by the Appellate Body in EC ?Tube or Pipe Fittings⁽¹⁰⁹⁴⁾ considered that this rationale is equally applicable to likelihood-of-injury determinations in sunset reviews. The Appellate Body thus concluded that cumulation in sunset reviews is permissible:

“Therefore, notwithstanding the differences between original investigations and sunset reviews, cumulation remains a useful tool for investigating authorities in both inquiries to ensure that all sources of injury and their cumulative impact on the domestic industry are taken into account in an investigating authority’s determination as to whether to impose ?or continue to impose ?anti-dumping duties on products from those sources. Given the rationale for cumulation ?a rationale that we consider applies to original investigations as well as to sunset reviews ?we are of the view that it would be anomalous for Members to have limited authorization for cumulation in the Anti-Dumping Agreement to original investigations?⁽¹⁰⁹⁵⁾

797.   The Panel in US ?Corrosion-Resistant Steel Sunset Review considered that the negligibility standards under Article 5.8 for the purposes of a cumulative injury assessment under Article 3.3 in original investigations, do not apply to sunset reviews under Article 11.3:

?a href="#article11A3">Article 11.3 speaks of a review to determine, inter alia, the likelihood of continuation or recurrence of injury. On its face, Article 11.3 does not mention, either explicitly or by way of reference, any negligibility standard that applies to the likelihood of continuation or recurrence of injury determinations in sunset reviews. Nor does the immediate context of Article 11.3 yield a different result. Article 11.1 sets out the general rule that an antidumping duty can remain in force only as long as and to the extent necessary to counteract injurious dumping. Article 11.2 and 11.3 reflect the application of that general rule under different circumstances. Although paragraphs 4 and 5 of Article 11 contain several cross-references to other articles of the Anti-Dumping Agreement, no such cross-reference has been made to Articles 3.3 or 5.8.?sup id="fntext-1096">(1096)

798.   The Panel in US ?Corrosion-Resistant Steel Sunset Review considered that ?a href="anti_dumping_02_e.htm#article3A3">Article 3.3, by its own terms, is limited in application to investigations and does not apply to sunset reviews. It follows that the cross-reference in Article 3.3 to the negligibility standard in Article 5.8 does not apply to sunset reviews?sup id="fntext-1097">(1097)

799.   The Panel in US ?Oil Country Tubular Goods Sunset Reviews similarly found that cumulation, when used in sunset reviews, does not need to satisfy the conditions of Article 3.3 because “by its own terms Article 3.3 limits its scope of application to investigations?⁽¹⁰⁹⁸⁾ The Appellate Body agreed with the Panel “that the conditions of Article 3.3 do not apply to likelihood-of-injury determinations in sunset reviews?⁽¹⁰⁹⁹⁾

(h) “likely?/p>

800.   The US ?DRAMS Panel interpreted the term “likely? in Article 11.2 with reference to Article 11.3. See paragraph 749 above.

801.   The Appellate Body in US ?Oil Country Tubular Goods Sunset Reviews considered “that the ‘likely?standard of Article 11.3 applies to the overall determinations regarding dumping and injury; it need not necessarily apply to each factor considered in rendering the overall determinations on dumping and injury?⁽¹¹⁰⁰⁾

(i) Relationship with other paragraphs of Article 11

802.   The relationship between Article 11.3 and Article 11.2 was addressed in US ?DRAMS. See paragraphs 742 and 749 above.

803.   The Panel in US ?DRAMS also referred to footnote 22 to Article 11.3 in interpreting Article 11.2. See paragraph 743 above.

(j) Relationship with the standard of review in Article 11 of the DSU

804.   The Appellate Body in US ?Oil Country Tubular Goods Sunset Reviews (Article 21.5 ?Argentina) rejected Argentina’s claim that the Panel had not made an objective assessment of the matter before it, as required by Article 11 of the DSU.

“We note that Argentina considers that the Panel failed to fulfil properly its duties under Article 11 of the DSU by ‘subordinat[ing] the actual treaty text of Articles 11.3 and 11.4, and the disposition of Argentina’s claims under these provisions, to broader, “systemic? considerations of the WTO dispute settlement system? We have found that Articles 11.3 and 11.4 do not address specifically whether an investigating authority may collect additional facts relating to the initial review period when making a re-determination of likelihood of dumping. Therefore, the Panel did not subordinate the text of these provisions to broader systemic considerations of the WTO dispute settlement system when it found that the USDOC could develop a new evidentiary basis.?sup id="fntext-1101">(1101)

(k) Existence of a causation requirement in sunset reviews

805.   In US ?Anti-Dumping Measures on Oil Country Tubular Goods, Mexico challenged the Panel’s interpretation of Article 11.3 and “its failure to address the ‘inherent?causation requirements under that Article.?sup id="fntext-1102">(1102) In particular, Mexico contested the Panel’s finding that the obligations set out in Article 3 are not directly applicable in sunset reviews. The Appellate Body in US ?Anti-Dumping Measures on Oil Country Tubular Goods considered that:

“On its face, Article 11.3 does not require investigating authorities to establish the existence of a ‘causal link?between likely dumping and likely injury. Instead, by its terms, Article 11.3 requires investigating authorities to determine whether the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury. Thus, in order to continue the duty, there must be a nexus between the ‘expiry of the duty? on the one hand, and ‘continuation or recurrence of dumping and injury? on the other hand, such that the former ‘would be likely to lead to?the latter. This nexus must be clearly demonstrated.⁽¹¹⁰³⁾ In this respect, we further note that, under Article 11.3 of the Anti-Dumping Agreement, the termination of the anti-dumping duty at the end of five years is the rule and its continuation beyond that period is the ‘exception??sup id="fntext-1104">(1104)

806.   The Appellate Body in US ?Anti-Dumping Measures on Oil Country Tubular Goods observed that while Article 11.3 is “silent? on the issue of a “causal link? there could be a requirement to establish a causal link between likely dumping and likely injury in a sunset review under Article 11.3 flowing from other provisions of the Anti-Dumping Agreement and Article VI of GATT 1994.⁽¹¹⁰⁵⁾ The Appellate Body then opined:

“It is clear from Article VI of the GATT 1994 and the above-mentioned provisions of the Anti-Dumping Agreement, and indeed from the design and structure of that Agreement as a whole, that the Anti-Dumping Agreement deals with counteracting injurious dumping and that an anti-dumping duty can be imposed and maintained only if the dumping (as properly established) causes injury to the domestic industry. Absent injury to the domestic industry, the rationale for either imposing the duty in the first place, or maintaining it at any time after its imposition, does not exist.⁽¹¹⁰⁶⁾ A causal link between dumping and injury to the domestic industry is thus fundamental to the imposition and maintenance of an anti-dumping duty under the Anti-Dumping Agreement.

?However, this does not mean that a causal link between dumping and injury is required to be established anew in a ‘review? conducted under Article 11.3 of the Anti-Dumping Agreement. This is because the ‘review?contemplated in Article 11.3 is a ‘distinct? process with a ‘different?purpose from the original investigation.⁽¹¹⁰⁷⁾?sup id="fntext-1108">(1108)

807.   The Appellate Body in US ?Anti-Dumping Measures on Oil Country Tubular Goods observed that for an affirmative determination under Article 11.3 what is essential is “proof of likelihood of continuation or recurrence of dumping and injury, if the duty expires?sup id="fntext-1109">(1109):

“[W]hen a ‘review?takes place under Article 11.3, and it is determined that the ‘expiry of the duty?would ‘likely ?lead to continuation or recurrence of dumping and injury? it is reasonable to assume that, where dumping and injury continues or recurs, the causal link between dumping and injury, established in the original investigation, would exist and need not be established anew.?⁽¹¹¹⁰⁾

“The nexus to be demonstrated is between ‘the expiry of the duty? on the one hand, and the likelihood of ‘continuation or recurrence of dumping and injury?on the other hand …”⁽¹¹¹¹⁾

808.   The Appellate Body in US ?Anti-Dumping Measures on Oil Country Tubular Goods said that its conclusion that the establishment of a causal link between likely dumping and likely injury is not required in a sunset review determination does not imply that the causal link between dumping and injury envisaged by Article VI of the GATT 1994 and the Anti-Dumping Agreement is severed in a sunset review and that “it only means that re-establishing such a link is not required, as a matter of legal obligation, in a sunset review.?sup id="fntext-1112">(1112)

809.   The Appellate Body in US ?Anti-Dumping Measures on Oil Country Tubular Goods stated that where the likelihood-of-dumping determination is flawed, “it does not follow that the likelihood-of-injury determination is ipso facto flawed as well.? However, it added that “if a likelihood-of-injury determination rests upon a likelihood-of-dumping determination that is later found to be flawed, the former determination may also be found to be WTO-inconsistent, after a proper examination of the facts of that determination.?sup id="fntext-1113">(1113)

810.   The Appellate Body in US ?Anti-Dumping Measures on Oil Country Tubular Goods rejected Mexico’s argument that the text of Article 11.3 does not establish a requirement for an investigating authority to specify the time-frame within which the “simultaneous presence?of subject imports and the corresponding likely injury would occur. The Appellate Body noted that “as long as a likelihood-of injury determination rests on a sufficient factual basis, the mere fact that an investigating authority does not specify the time-frame within which the ‘simultaneous presence?of subject imports and the corresponding injury would be likely to occur, does not, in our view, undermine that determination.?sup id="fntext-1114">(1114)

(l) Cumulation in sunset reviews

811.   In US ?Anti-Dumping Duties on Oil Country Tubular Goods, Mexico argued that the ITC was under a separate obligation to “ensure that cumulation was appropriate in light of the conditions of competition,?and to do so it was “required?to make “a threshold finding that the subject imports would be simultaneously present in the U.S. market.?The Appellate Body in US ?Anti-Dumping Duties on Oil Country Tubular Goods said there was no textual basis in Article 11.3 for requiring such a finding, noting that:

“[I]n order to arrive at a reasoned and adequate conclusion, an examination of whether imports are in the market together and competing against each other may, in certain cases, be needed in a likelihood-of-injury determination where an investigating authority chooses to cumulate the imports from several countries. But the need for such an examination flows from the particular facts and circumstances of a given case and not from a legal requirement under Article 11.3.?sup id="fntext-1115">(1115)

812.   The Appellate Body in US ?Anti-Dumping Measures on Oil Country Tubular Goods, rejecting Mexico’s argument, noted that an investigating authority is not required, under Article 11.3 of the Anti-Dumping Agreement, to make a separate threshold finding regarding simultaneous presence of imports. Furthermore, it disagreed with Mexico that the ITC’s approach did not reflect a prospective analysis, based on positive evidence, of whether imports from the five cumulated countries were likely to be simultaneously present in the market in the event of termination of the anti-dumping duty order, noting in particular that the information collected by the ITC related to current market conditions “is relevant as a basis to draw reasoned conclusions regarding likely future market conditions?⁽¹¹¹⁶⁾

813.   The Appellate Body in US ?Anti-Dumping Measures on Oil Country Tubular Goods recalled its holding in US ?Oil Country Tubular Goods Sunset Reviews that:

“‘the “likely?standard of Article 11.3 applies to the overall determinations regarding dumping and injury??‘it need not necessarily apply to each factor considered in rendering the overall determinations on dumping and injury.?sup id="fntext-1117">(1117) Even assuming, arguendo, that it might apply to the USITC’s ‘assessment of likelihood of simultaneity,?we do not agree with Mexico that the USITC used a standard that is inconsistent with Article 11.3 ‘[b]y requiring a demonstration that the imports “would not?be simultaneously in the market.?sup id="fntext-1118">(1118) Although the USITC made reference to the fact that nothing in the Panel record indicates that the products would not be simultaneously present, it cited other reasons as well.?sup id="fntext-1119">(1119)

814.   In US ?Anti-Dumping Measures on Oil Country Tubular Goods, Mexico argued that, having decided to cumulate Mexican imports with imports from the other four countries that were cumulated in the original investigation, the ITC was required to do so consistently with the requirements of Article 3.3, regardless of whether that provision applies directly to sunset reviews. The Appellate Body again recalled its findings in US ?Anti-Dumping Measures on Oil Country Tubular Goods that:

“[T]he ‘text of Article 3.3 plainly limits its applicability to original investigations?sup id="fntext-1120">(1120) and ?‘the conditions of Article 3.3 do not apply to likelihood-of-injury determinations in sunset reviews.?⁽¹¹²¹⁾ The fact that an investigating authority has not undertaken all the analyses detailed in Article 3.3 is not, by itself, sufficient to undermine a determination under Article 11.3.?sup id="fntext-1122">(1122)

815.   The Appellate Body in US ?Anti-Dumping Measures on Oil Country Tubular Goods emphasized:

“We do not, however, suggest, that when an authority chooses to cumulate imports in a likelihood-of-injury determination under Article 11.3, it is never necessary for it to determine whether such a cumulative assessment is appropriate in the light of the conditions of competition in the marketplace. In particular cases, a cumulative assessment of the effects of the imports may be found to be inappropriate and, therefore, inconsistent with the fundamental requirement that a determination rest on a sufficient factual basis and reasoned and adequate conclusions.⁽¹¹²³⁾?sup id="fntext-1124">(1124)

(m) Qualitative assessment of determinations under Article 11.3

816.   The Appellate Body in US ?Anti-Dumping Measures on Oil Country Tubular Goods reversed the Panel’s finding that Section II.A.3 of the Sunset Policy Bulletin (SPB), as such, was inconsistent with Article 11.3. because it found that in assessing the consistency of the SPB, as such, with Article 11.3, the Panel failed to make an objective assessment of the matter, including an objective assessment of the facts of the case, as required by Article 11 of the DSU.⁽¹¹²⁵⁾ Criticizing the Panel’s “qualitative assessment?of the DOC determinations, the Appellate Body concluded that:

“[T]he Panel’s analysis does not reveal that the affirmative determinations, in the 21 specific cases reviewed by it⁽¹¹²⁶⁾, were based exclusively on the scenarios to the disregard of other factors. Nor does the Panel’s review of these cases reveal that the USDOC’s affirmative determinations were based solely on the SPB scenarios, when the probative value of other factors might have outweighed that of the identified scenarios. Accordingly we conclude that the Panel did not conduct a ‘qualitative assessment?of the USDOC’s determination such that the Panel could properly conclude that the SPB requires the USDOC to treat the factual scenarios of Section II.A.3 of the SPB as determinative or conclusive.?sup id="fntext-1127">(1127)

817.   In relation to the “qualitative assessment?of individual determinations to be carried out by a panel, the Appellate Body in US ?Anti-Dumping Measures on Oil Country Tubular Goods noted that the relevance and probative value of other factors is crucial.⁽¹¹²⁸⁾

818.   The Appellate Body in US ?Anti-Dumping Measures on Oil Country Tubular Goods noted that the responding parties have a responsibility to submit information and evidence in their favour, particularly about their pricing behaviour, import volumes, and dumping margins, while the investigating authority “has a duty to seek out information on relevant factors and evaluate their probative value in order to ensure that its determination is based not on presumptions, but on a sufficient factual basis.?sup id="fntext-1129">(1129)

4. Article 11.4

819. The Panel and Appellate Body in US ?Oil Country Tubular Goods Sunset Reviews ?Article 21.5 (Argentina) rejected Argentina’s claim that the US Department of Commerce acted inconsistently with Articles 11.3 and 11.4 by developing a new factual basis pertaining to the original review period for the purposes of a sunset review. See paragraphs 791?a href="#792">792 above.

5. Relationship with other Articles

(a) Article 3

820.   The Panel in US ?DRAMS discussed the relationship between footnote 9 to Article 3 and Article 11.2. See paragraph 751 above.

821.   The Panel in US ?DRAMS also discussed the relationship between Articles 3.5 and 11.2. See paragraph 751 above.