In Guatemala. Cement II, the Panel found that the subject anti-dumping duty order of Guatemala was inconsistent with several articles of the Anti-Dumping Agreement, among them Article 5. The Panel then opined that Mexico's claims under other articles of the Anti-Dumping Agreement, among them Article 1, were "dependent claims, in the sense that they depend entirely on findings that Guatemala has violated other provisions of the AD Agreement."92 For this reason the Panel considered it not necessary to address these claims.
In Guatemala. Cement II, Mexico argued that because the application contained no evidence on injury, there was no evidence of dumping and injury for the investigating authority to consider at the time of initiation, and therefore there was a violation of Article 5.7; that is, the initiation of an investigation in the absence of sufficient evidence to justify initiation (contrary to Article 5.3) necessarily constitutes a violation of Article 5.7. Guatemala argued that its investigating authority had reviewed the available evidence on dumping and injury. The Panel held that Mexico had failed to present a prima facie case under Article 5.7, and held:
In Guatemala. Cement II, the Panel agreed that "statements of conclusion unsubstantiated by facts do not constitute evidence of the type … which allows an objective examination of its adequacy and accuracy by an investigating authority as provided in Article 5.3."48
In Guatemala. Cement II, the Panel rejected the argument that Article 5.8 applies only after an investigation is initiated, stating: "[I]f the drafters intended that Article 5.8 apply only after initiation, the reference to promptly terminating an investigation would have sufficed. By referring to the rejection of an application Article 5.8 addresses the situation where an application has been received but an investigation has not yet been initiated. That the text of Article 5.8 continues after the quoted section to describe situations in which an initiated investigation should be terminated, does not support Guatemala's argument that the whole of Article 5.8 applies only after the investigation has been initiated."75 procedural grounds as dispute not properly before the Panel; report adopted as reversed, WT/DSB/M/51, section 9(a)). 70 Panel Report, Guatemala – Cement II, para. 8.67. 71 Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.119. 72 Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.118. 73 Panel Report, Mexico – Corn Syrup, para. 7.99. 74 Panel Report, Mexico –Steel Pipes and Tubes, para. 7.25. 75 Panel Report, Guatemala – Cement II, para. 8.72 (same conclusions reached in Panel Report, Guatemala – Cement I, para. 7.59; report reversed by Appellate Body on procedural grounds as dispute not properly before the Panel; report adopted as reversed, WT/DSB/M/51, section 9(a)).
In Guatemala. Cement II, the Panel agreed with Mexico that Guatemala's authority had acted inconsistently with Articles 3.1 and 3.2 by not taking into account imports other than those from the supplier under investigation. See paragraph 72 above.124
In Guatemala. Cement II, the Panel also rejected Mexico's argument that Guatemala's authority conducted the examination of the price effect of dumped imports at the regional level only and not also at the national level and therefore acted inconsistently with Article 3.2. Rather, the Panel found that Guatemala had not limited its analysis to a particular region. The Panel also added that there was only one cement producer in Guatemala, and thus, even if the negative effect of the dumped imports on the prices of the domestic like product was only evidenced in one particular region (where that producer was located), this could still be viewed as causing injury to that producer.133
In Guatemala. Cement II, the Panel rejected Guatemala's argument that the alleged violations of Articles 5.5, 12.1.1 and 6.1.3, even if found to be violations, had not affected the course of the investigation, and thus: (a) the alleged violations were not harmful according to the principle of harmless error; (b) Mexico "convalidated" the alleged violations by not objecting immediately after their occurrence; and (c) the alleged violations did not cause nullification or impairment of benefits accruing to Mexico under the Anti-Dumping Agreement. See the Sections on Articles 5 and 6 of the Anti-Dumping Agreement.
In Guatemala. Cement II, the Panel found that "[i]t is clear on the face of these documents that the invoices reflecting prices in Mexico are for sales occurring at the very end of the commercialisation chain and the import certificates reflect prices at the point of importation which is the beginning of the commercialisation chain for Mexican cement in Guatemala".60 The Panel subsequently found, applying the standard of review set forth in Article 17.6(i): "[T]he fact that the sales in the Mexican and Guatemalan markets were at different levels of trade was apparent from the application itself, and an unbiased and objective investigating authority should have recognized this fact without the need for it to be pointed out. Nor do we consider that an investigating authority can completely ignore obvious differences that could affect the comparability of the prices cited in an application on the ground that the foreign exporter has not demonstrated that they have affected price comparability. Moreover, at the point where the investigating authority is considering whether there is sufficient evidence to initiate an investigation, potentially affected exporters have not even been notified of the existence of an application, much less been provided a copy thereof. Thus, the logical implication of Guatemala's argument is that an investigating authority need never take into account issues of price comparability when considering whether there is sufficient evidence of dumping to initiate an investigation. We cannot agree with such an interpretation of the AD Agreement, particularly in light of the criteria set out in para. 8.36 above. After a thorough review of all the actions by the Ministry leading up to the initiation of the investigation, we find that no attempt was made to take into account glaring differences in the levels of trade and sales quantities and their possible effects on price comparability. Under these circumstances, an unbiased and objective investigating authority could not in our view have concluded that there was sufficient evidence of dumping to justify the initiation of an anti-dumping investigation."61
In Guatemala. Cement II. See paragraphs 35-36 above.
