The Panel in Mexico. Steel Pipes and Tubes looked at the relationship between Article 5.3 and Article 5.8. See paragraph 75 below.
The Panel in Mexico. Steel Pipes and Tubes considered Guatemala's complaint regarding the sufficiency of evidence of alleged dumping pertaining to normal value. Guatemala did not raise any complaint concerning the evidence on export prices. Guatemala argued that because of the deficiencies in the normal value evidence, that evidence could not be compared on a "fair" basis with the export price evidence.26 In considering the evidence relating to normal value the Panel, in looking at the evidence on normal value as a whole, identified a number of inter-related concerns in respect of "the sufficiency of the nexus with producer/exporter pricing in the Guatemalan home market for the product under investigation;the isolated nature of the information in terms of temporal coverage, volume, and product coverage; and, as a result, the comparability of this evidence with that on export pricing."27 One of the main concerns was that none of the normal value evidence pertained to Tubac, "the only identified exporter, which accounted for almost all production and exports of the investigated product."28 The Panel went on to say: 21 Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.67. 22 Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.78. 23 Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.80. 24 Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.84 (also stating that Article 5.3, read in light of Article 2.4, cannot be interpreted to require that data on normal value and export price cover identical periods of time).
The Panel in Mexico. Steel Pipes and Tubes found that the investigating authority in Mexico had failed to properly determine that there was sufficient evidence of injury to justify the initiation of an anti-dumping investigation: "We disagree with Mexico's argument that requiring, at the initiation stage, some corroboration of the import volume at the tariff line level that related to the product under investigation is tantamount to imposing a requirement that initiation evidence 32 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.43. 33 Panel Report, Guatemala – Cement II, para. 8.45. 34 Panel Report, Guatemala – Cement II, para. 8.52. (same conclusion reached in Panel Report, Guatemala – Cement I, paras. 7.75-7.77 on which specific elements of dumping need to be supported by sufficient evidence under Article 5.3; Panel Report reversed in total by Appellate Body on procedural grounds as dispute not properly before the Panel; Panel Report adopted as reversed, WT/DSB/M/51, section 9(a)).
The Panel in Mexico. Steel Pipes and Xxxxx noted that while the Anti-Dumping Agreement did not set forth any express requirements regarding the choice of the period of investigation for the purpose of conducting an injury analysis, it considered that the Article 3.1 requirement to base a determination of injury on "positive evidence" and pursuant to an "objective examination" nevertheless imposed certain limitations on the discretion of an investigating authority. In this case the investigating authority had relied on temporal subsets within a period without providing sufficient explanation as to the reason why – something the Panel referred to as a "truncated temporal approach."48 The Panel also focussed on the "non-comprehensiveness and unreliability of the factual basis"49 used by the investigating authority. Finally, the Panel noted that simply because none of the interested parties questioned the selection of the period of investigation did not excuse the investigating authority from meeting its obligations under Article 3.1.50 The Panel 44 Appellate Body Report, Thailand – H-Beams, para. 114. 45 Appellate Body Report, Thailand – H-Beams, para. 118. 46 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 167. 47 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 171. 48 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.252. 49 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.260. 50 Panel Report, Mexico – Steel Pipes and Tubes, para. 7.259. thus concluded that the investigating authority was not able to "make an objective examination of positive evidence in reaching its affirmative injury determination."51 37. See also the material on "objective examination" below.
The Panel in Mexico. Steel Pipes and Tubes considered Guatemala's complaint regarding the sufficiency of evidence of alleged dumping pertaining to normal value. Guatemala did not raise any complaint concerning the evidence on export prices. Guatemala argued that because of the deficiencies in the normal value evidence, that evidence could not be compared on a "fair" basis with the export price evidence.32 In considering the evidence relating to normal value the Panel, in looking at the evidence on normal value as a whole, identified a number of inter-related concerns in respect of "the sufficiency of the nexus with producer/exporter pricing in the Guatemalan home market for the product under investigation;the isolated nature of the information in terms of temporal coverage, volume, and product coverage; and, as a result, the comparability of this evidence with that on export pricing."33 One of the main concerns was that none of the normal value evidence pertained to Tubac, "the only identified exporter, which accounted for almost all production and exports of the investigated product."34 The Panel went on to say: "We do not here mean to imply that, at the stage of initiation, an investigating authority must have pricing documentation from every domestic producer or exporter, or even any domestic producer or exporter … Nevertheless, dumping is a company- specific practice, and this is reflected in the Agreement's provisions concerning the determination of dumping in respect of particular producers or exporters … Where, as is the case here, it is obvious on its face that the normal value evidence before the authority at the time of initiation does not pertain to a producer or exporter and indeed pertains to a different level of trade, and may not even reflect products produced in the exporting country, the authority should make its best endeavours to verify that that evidence reflects the prevailing home market pricing at the level of producers and/or exporters."35
The Panel in Mexico. Corn Syrup noted that "a notice of preliminary or final determination must set forth explanations for all material elements of the determination. A notice of initiation, on the other hand, pursuant to Article 12.1, must set forth specific information regarding certain factors, but need not contain explanations of, or reasons for, the resolution of all questions of fact underlying the determination that there is sufficient evidence to justify initiation."7
