WT/DS189/R
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World Trade
Organization
WT/DS189/R
28 September 2001
(01-4470)
Original: English

ARGENTINA – DEFINITIVE ANTI-DUmPING

MEASURES on imports of ceramic
floor tiles from Italy

Report of the Panel

The report of the Panel on Argentina - Definitive Anti-Dumping Measures on Imports of Ceramic Floor Tiles from Italy is being circulated to all Members, pursuant to the DSU. The report is being circulated as an unrestricted document from 28 September 2001 pursuant to the Procedures for the Circulation and Derestriction of WTO Documents (WT/L/160/Rev.1). Members are reminded that in accordance with the DSU only parties to the dispute may appeal a panel report. An appeal shall be limited to issues of law covered in the Panel report and legal interpretations developed by the Panel. There shall be no exparte communications with the Panel or Appellate Body concerning matters under consideration by the Panel or Appellate Body.

Note by the Secretariat: This Panel Report shall be adopted by the Dispute Settlement Body (DSB) within 60 days after the date of its circulation unless a party to the dispute decides to appeal or the DSB decides by consensus not to adopt the report. If the Panel Report is appealed to the Appellate Body, it shall not be considered for adoption by the DSB until after the completion of the appeal. Information on the current status of the Panel Report is available from the WTO Secretariat.

WT/DS189/R
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TABLE OF CONTENTS

Page

I. introduction 1

II. FACTUAL ASPECTS 1

III. parties’ requests for findings and recommendations 3

A. The European Communities 3

B. Argentina 3

IV. ARGUMENTS OF THE PARTIES and third parties 4

A. Claim under Article 6.8 of the AD Agreement 4

1. The EC 4

(a) Arguments of the EC in its first written submission in support of its claim under Article 6.8 of the AD Agreement 4

(b) Arguments of the EC in its first oral statement in support of its claim under Article 6.8 of the AD Agreement 10

(c) Replies of the EC to the first set of questions by the Panel relating to the EC’s claim under Article6.8 of the AD Agreement 16

(d) Replies of the EC to the questions made by Argentina, following the first meeting of the Panel with the parties, that relate to the EC’s claim under Article 6.8 of the AD Agreement 23

(e) Arguments of the EC in its second written submission in support of its claim under Article6.8 of the AD Agreement 24

(f) Arguments of the EC in its second oral statement in support of its claim under Article 6.8 of the AD Agreement 32

(g) Replies of the EC to the second set of questions by the Panel relating to the EC’s claim under Article6.8 of the AD Agreement 35

2. Argentina 38

(a) Arguments of Argentina in its first written submission relating to the EC’s claim under Article 6.8 of the AD Agreement 38

(b) Arguments of Argentina in its first oral statement relating to the EC’s claim under Article6.8 of the AD Agreement 48

(c) Arguments of Argentina in its oral statement at the third-party session of the first meeting of the Panel with the parties, relating to the EC’s claim under Article 6.8 of the AD Agreement 53

(d) Replies of Argentina to the first set of questions by the Panel relating to the EC’s claim under Article 6.8 of the AD Agreement 54

(e) Arguments of Argentina in its second written submission relating to the EC’s claim under Article 6.8 of the AD Agreement 59

(f) Arguments of Argentina in its second oral statement relating to the EC’s claim under Article 6.8 of the AD Agreement 64

(g) Replies of Argentina to the second set of questions by the Panel relating to the EC’s claim under Article6.8 of the AD Agreement 68

3. Third Parties: Japan 73

(a) Arguments of Japan in its written submission relating to the EC’s claim under Article 6.8 of the AD Agreement 73

(b) Arguments of Japan in its oral statement relating to the EC’s claim under Article 6.8 of the ADAgreement 75

4. Third Parties: Turkey 79

(a) Arguments of Turkey in its written submission relating to the EC’s claim under Article 6.8 of the AD Agreement 79

(b) Arguments of Turkey in its oral statement relating to the EC’s claim under Article 6.8 of the AD Agreement 80

5. Third Parties: The United States 82

(a) Arguments of the United States in its written submission relating to the EC’s claim under Article 6.8 of the AD Agreement 82

B. Claim under Article 6.10 of the AD Agreement 83

1. The EC 83

(a) Arguments of the EC in its first written submission in support of its claim under Article 6.10 of the AD Agreement 83

(b) Arguments of the EC in its first oral statement in support of its claim under Article6.10 of the AD Agreement 84

(c) Replies of the EC to the first set of questions by the Panel relating to the EC’s claim under Article 6.10 of the AD Agreement 85

(d) Replies of the EC to the questions made by Argentina, following the first meeting of the Panel with the parties, that relate to the EC’s claim under Article 6.10 of the AD Agreement 86

(e) Arguments of the EC in its second written submission in support of its claim under Article6.10 of the AD Agreement 87

2. Argentina 88

(a) Arguments of Argentina in its first written submission relating to the EC’s claim under Article 6.10 of the AD Agreement 88

(b) Arguments of Argentina in its first oral statement relating to the EC’s claim under Article 6.10 of the AD Agreement 90

(c) Arguments of Argentina in its oral statement at the third-party session of the first meeting of the Panel with the parties, relating to the EC’s claim under Article 6.10 of the AD Agreement 91

(d) Replies of Argentina to the first set of questions by the Panel relating to the EC’s claim under Article 6.10 of the AD Agreement 91

(e) Arguments of Argentina in its second written submission relating to the EC’s claim under Article6.10 of the AD Agreement 93

(f) Arguments of Argentina in its second oral statement relating to the EC’s claim under Article6.10 of the AD Agreement 94

3. Third Parties: Japan 96

(a) Arguments of Japan in its written submission relating to the EC’s claim under Article 6.10 of the AD Agreement 96

4. Third Parties: Turkey 98

5. Third Parties: The United States 99

C. Claim under Article 2.4 of the AD Agreement 100

1. The EC 100

(a) Arguments of the EC in its first written submission in support of its claim under Article 2.4 of the AD Agreement 100

(b) Arguments in the EC’s first oral statement in support of its claim under Article 2.4 of the AD Agreement 101

(c) Replies of the EC to the first set of questions by the Panel relating to the EC’s claim under Article 2.4 of the AD Agreement 102

(d) Replies of the EC to the questions made by Argentina, following the first meeting of the Panel with the parties, that relate to the EC’s claim under Article 2.4 of the AD Agreement 105

(e) Arguments of the EC in its second written submission in support of its claim under Article 2.4 of the AD Agreement 105

(f) Arguments of the EC in its second oral statement in support of its claim under Article 2.4 of the AD Agreement 107

(g) Replies of the EC to the second set of questions by the Panel relating to the EC’s claim under Article 2.4 of the AD Agreement 108

2. Argentina 113

(a) Arguments of Argentina in its first written submission relating to the EC’s claim under Article2.4 of the AD Agreement 113

(b) Arguments of Argentina in its first oral statement relating to the EC’s claim under Article 2.4 of the AD Agreement 117

(c) Replies of Argentina to the first set of questions by the Panel relating to the EC’s claim under Article 2.4 of the AD Agreement 119

(d) Arguments of Argentina in its second written submission relating to the EC’s claim under Article 2.4 of the AD Agreement 122

(e) Arguments of Argentina in its second oral statement relating to the EC’s claim under Article2.4 of the AD Agreement 123

(f) Replies of Argentina to the second set of questions by the Panel relating to the EC’s claim under Article 2.4 of the AD Agreement 124

3. Third Parties: Japan 129

4. Third Parties: Turkey 130

5. Third Parties: The United States 131

(a) Arguments of the United States in its written submission relating to the EC’s claim under Article 2.4 of the AD Agreement 131

D. Claim under Article 6.9 of the AD Agreement 132

1. The EC 132

(a) Arguments by the EC in its first written submission in support of its claim under Article 6.9 of the AD Agreement 132

(b) Arguments in the EC’s first oral statement in support of its claim under Article 6.9 of the ADAgreement 133

(c) Replies of the EC to the first set of questions by the Panel relating to the EC’s claim under Article 6.9 of the AD Agreement 134

(d) Arguments in the EC’s second written submission in support of its claim under Article 6.9 of the AD Agreement 135

2. Argentina 138

(a) Arguments in Argentina’s first written submission relating to the EC’s claim under Article 6.9 of the AD Agreement 138

(b) Arguments of Argentina in its first oral statement relating to the EC’s claim under Article 6.9 of the AD Agreement 140

(c) Arguments of Argentina in its oral statement at the third-party session of the first meeting of the Panel with the parties, relating to the EC’s claim under Article 6.9 of the AD Agreement 141

(d) Replies of Argentina to the first set of questions by the Panel relating to the EC’s claim under Article 6.9 of the AD Agreement 141

(e) Arguments of Argentina in its second written submission relating to the EC’s claim under Article 6.9 of the AD Agreement 143

(f) Arguments of Argentina in its second oral statement relating to the EC’s claim under Article6.9 of the AD Agreement 145

3. Third Parties: Japan 147

(a) Arguments of Japan in its written submission relating to the EC’s claim under Article 6.9 of the AD Agreement 147

(b) Arguments of Japan in its oral statement relating to the EC’s claim under Article 6.9 of the AD Agreement 147

4. Third Parties: Turkey 150

(a) Arguments by Turkey in its written submission relating to the EC’s claim under Article 6.9 of the AD Agreement 150

(b) Arguments of Turkey in its oral statement relating to the EC’s claim under Article 6.9 of the AD Agreement 150

5. Third Parties: The United States 152

(a) Arguments of the United States in its written submission relating to the EC’s claim under Article 6.9 of the AD Agreement 152

(b) Arguments of the United States in its oral statement relating to the EC’s claim under Article6.9 of the AD Agreement 156

V. interim review 160

VI. FINDINGS 161

A. standard of review 161

B. Burden of proof 162

C. factual introduction 162

D. Claim 1: facts Available under Article 6.8 And Annex II of the AD Agreement 164

1. Arguments of the parties 164

2. Analysis by the Panel 166

(a) Confidentiality of the information submitted and the failure to provide non-confidential summaries 170

(b) Lack of documentary evidence 176

(c) Failure to comply with formal requirements of the questionnaire 181

(d) Late submission of the information 182

3. Conclusion 183

E. Claim 2: Article 6.10: requirement to calculate individual margins of dumping for all exporters included in the sample 184

1. Arguments of the parties 184

2. Analysis by the Panel 185

3. Conclusion 189

F. Claim 3: Article 2.4: the need to make adjustments for differences in physical characteristics 191

1. Arguments of the parties 191

2. Analysis by the Panel 192

3. Conclusion 193

G. Claim 4: Article 6.9: Failure to inform the exporters of the “essential facts” on which the decision is based 194

1. Arguments of the parties 194

2. Analysis by the Panel 195

3. Conclusion 196

VII. conclusions and recommendation 197

WT/DS189/R
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I.  introduction

1.1  On 26 January 2000, the European Communities (the “EC”) requested consultations with Argentina regarding the definitive anti-dumping measures on imports of ceramic floor tiles from Italy imposed by Argentina on 12 November 1999.[1] The EC made its request pursuant to Article4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (“DSU”) and Article 17.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the “AD Agreement”). The EC and Argentina held consultations on 1March 2000, but failed to reach a mutually satisfactory solution.

1.2  On 7 November 2000, the EC requested the establishment of a panel with the standard terms of reference set out in Article 7 of the DSU.[2] The EC made its request pursuant to Article 6 of the DSU and Article 17 of the AD Agreement. In that request, the EC identified the measures at issue as the definitive anti-dumping measures on imports of ceramic floor tiles (“porcellanato”) from Italy imposed by Argentina on 12November 1999.

1.3  At its meeting on 17 November 2000, the Dispute Settlement Body (“DSB”) established a Panel pursuant to the above request.[3] At that meeting, the parties to the dispute agreed that the Panel should have standard terms of reference. The terms of reference were:

To examine, in the light of the relevant provisions of the covered agreements cited by the European Communities in document WT/DS189/3 the matter referred to the DSB by the European Communities in that document, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements.