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ARGENTINA - DEFINITIVE ANTI-DUMPING
(Continuation)
6.19 In considering this issue, we first note that Article 6.8 of the AD
Agreement governs the use by an investigating authority in an anti-dumping
investigation of the �facts available�. That article provides as follows:
"In case any interested party refuses access to, or otherwise does not provide,
necessary information within a reasonable period or significantly impedes the
investigation, preliminary and final determinations, affirmative or negative,
may be made on the basis of facts available. The provisions of Annex II shall be
observed in the application of this paragraph".
6.20 It is clear to us, and both parties agree, that an investigating authority
may disregard the primary source information and resort to the facts available
only under the specific conditions of Article 6.8 and Annex II of the AD
Agreement.41 Thus, an investigating authority may resort to the facts available
only where a party: (i) refuses access to necessary information; (ii) otherwise
fails to provide necessary information within a reasonable period; or (iii)
significantly impedes the investigation.
6.21 We recall that Article 6.8 provides that �the provisions of Annex II shall
be observed in the application of this paragraph�. Paragraph 6 of Annex II is
highly relevant to the case before us. It provides as follows:
"6. If evidence or information is not accepted, the supplying party should be
informed forthwith of the reasons therefor, and should have an opportunity to
provide further explanations within a reasonable period, due account being taken
of the time-limits of the investigation. If the explanations are considered by
the authorities as not being satisfactory, the reasons for the rejection of such
evidence or information should be given in any published determinations".
Accordingly, Article 6.8, read in conjunction with paragraph 6 of Annex II,
requires an investigating authority to inform the party supplying information of
the reasons why evidence or information is not accepted, to provide an
opportunity to provide further explanations within a reasonable period, and to
give, in any published determinations, the reasons for the rejection of evidence
or information.
6.22 Argentina advances four bases for its decision to disregard certain
information submitted by the exporters and to resort to the use of facts
available. First, Argentina asserts that the exporters failed to provide
complete non-confidential summaries of confidential information submitted by
them, as required by Article 6.5.1 of the AD Agreement. Second, Argentina
contends that the exporters failed to provide sufficient documentation in
support of the information provided in their questionnaire responses. Third,
Argentina contends that the exporters failed to comply with the formal
requirements of the questionnaire, such as requirements to translate materials
into Spanish and to express value in US$. Finally, Argentina contends that the
exporters failed to provide requested information within a reasonable period.
6.23 The EC notes that the arguments presented by Argentina to justify the DCD�s
decision not to rely exclusively on information concerning normal value and
export price provided by the exporters, are ex post justifications which are
nowhere to be found in the DCD�s Final Determination or in any other documents
on the record. Argentina disagrees and asserts that all the arguments it is
presenting are present in the DCD�s determinations or other documents on the
record.
6.24 Under the applicable standard of review of Article 17.6 of the AD
Agreement, we are to examine whether the investigating authority properly
established the facts and whether its evaluation of those facts was unbiased and
objective. Our review of the measure is based on all the facts on the record,
and we examined both the Final Determination42 as well as other documents on the
record in order to determine whether the evaluation of the DCD was unbiased and
objective. Upon careful examination, we find that neither in the Final
Determination nor in any other document on the record does the investigating
authority explain its evaluation of the information that apparently led it to
the conclusion that it was allowed to disregard the exporters� information and
resort to the use of facts available. While it is true that the Final
Determination contains a discussion of the use of confidential information as an
insufficient basis for the public determination, and the subsequent request for
additional non-confidential summaries, the report does not draw any conclusions
from these or other considerations. With regard to normal value, the report also
mentions certain factual considerations concerning supporting documentation, or
problems relating to the reliability of the information provided. But again, the
DCD does not draw any conclusions from these factual considerations in its
report or in any other document on the record. It does not explain anywhere how
it evaluated these facts and what weight it accorded to each of these factual
considerations. The DCD merely states that: �subject to the qualifications
mentioned in each item with respect to the merits of the evidence submitted in
general and in particular the evidence set forth in the item on normal value in
Italy, it is possible to establish the following percentage margins of dumping�
6.25 We are mindful of the Appellate Body�s findings in the case of Thailand �
Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel
and H-Beams from Poland (�Thailand � H-Beams�) that the procedural and due
process provisions of Articles 12 and 6 should not be mistaken for the
substantive provisions of the Agreement. However, it is important to recall that
the legal issue before the Appellate Body was:
"whether the terms �positive evidence� and �objective examination� in Article
3.1 require that �the reasoning supporting the determination be �formally or
explicitly stated� in documents in the record of the investigation to which
interested parties (and/or their legal counsel) have access at least from the
time of the final determination�, and, further, that �the factual basis relied
upon by the authorities must be discernible from those documents"". (footnotes
omitted)44
6.26 We further note that the Appellate Body stated that:
"[�] The �facts� referred to in Articles 17.5(ii) and 17.6(i) thus embrace �all
facts confidential and non-confidential�, made available to the authorities of
the importing Member in conformity with the domestic procedures of that Member.
Article 17.6(i) places a limitation on the panel in the circumstances defined by
the Article. The aim of Article 17.6(i) is to prevent a panel from
�second-guessing� a determination of a national authority when the establishment
of the facts is proper and the evaluation of those facts is unbiased and
objective. Whether evidence or reasoning is disclosed or made discernible to
interested parties by the final determination is a matter of procedure and due
process. These matters are very important, but they are comprehensively dealt
with in other provisions, notably Articles 6 and 12 of the Anti-Dumping
Agreement.
118. Articles 17.5 and 17.6(i) require a panel to examine the facts made
available to the investigating authority of the importing Member. These
provisions do not prevent a panel from examining facts that were not disclosed
to, or discernible by, the interested parties at the time of the final
determination".45 (emphasis added)
6.27 The question before us, however, is not whether the evaluation of the
authority is provided in a public document or not, but rather whether any such
reasoning has been provided in any document on the record.46 Under Article 17.6 of
the AD Agreement we are to determine whether the DCD established the facts
properly and whether the evaluation performed by the DCD was unbiased and
objective. In other words, we are asked to review the evaluation of the DCD made
at the time of the determination as set forth in a public notice or in any other
document of a public or confidential nature. We do not believe that, as a panel
reviewing the evaluation of the investigating authority, we are to take into
consideration any arguments and reasons that did not form part of the evaluation
process of the investigating authority, but instead are ex post facto
justifications which were not provided at the time the determination was made.
6.28 We find that the DCD failed to provide any evaluation of the facts on the
record that could have formed the basis for its apparent decision to disregard
in large part the information provided by the exporters. We consider that on
this basis alone we could have reached the conclusion that the DCD failed to
perform an objective and unbiased evaluation of the facts. Nevertheless, for the
sake of completeness, we will continue our analysis and discuss the arguments
presented by Argentina in its submissions to the Panel in defence of the DCD�s
decision to disregard the exporters� information.47
(a) Confidentiality of the information submitted and the failure to provide
non-confidential summaries
6.29 Argentina argues that in order to reach objective and valid conclusions, an
investigating authority may base its determination on confidential information
only if a sufficiently detailed summary of this information is provided in
accordance with Article 6.5.1 of the AD Agreement.48 According to Argentina, the
exporters failed to provide complete non-confidential summaries. Argentina
submits that the summaries provided for certain annexes of the questionnaire
relating to normal value and export price information (Annexes VII-XI) were not
sufficiently detailed so as to permit a reasonable understanding of the
substance of the information, and could therefore not be used by the DCD as a
basis for its final determination.49 Moreover, Argentina asserts, even after the
declassification of the information concerning product codes and cost of
production, substantial information to determine normal value and export price
remained confidential. Further, Argentina argues that the exporters failed to
provide sufficiently detailed public summaries with regard to certain other
essential questionnaire annexes (Annexes IV, V and VI).50 According to Argentina,
by failing to provide sufficiently detailed non-confidential summaries, the
exporters withheld necessary information and significantly impeded the
investigation, and the DCD was therefore allowed under Article 6.8 to resort to
facts available.
6.30 The EC considers that the exporters fully cooperated with the investigating
authority and, instead of merely providing a detailed non-confidential summary,
even disclosed all of the relevant confidential information. The EC also takes
issue with Argentina�s argument that in the absence of a detailed
non-confidential summary the authorities are not to rely on the confidential
information submitted. In sum, the EC argues, the DCD was not entitled to resort
to facts available for reasons relating to the confidentiality of the
information supplied.
6.31 We note that, in effect, Argentina argues that an investigating authority
may not base its determination on confidentially submitted exporter information.
Argentina contends that unless a non-confidential summary is provided that is
sufficiently detailed to permit the calculation of normal value, export price
and the margin of dumping51 confidential information may not form the basis for
the authority�s determination.52 Therefore, Argentina argues, the failure to
provide such a detailed non-confidential summary amounts to a refusal to provide
access to information that is necessary for the authority in the determination
of a dumping margin determination.
6.32 In considering this question, we first look to the text of Article 6.5 of
the AD Agreement, which is the key provision with regard to the protection of
confidential information. Article 6.5 provides as follows:
"6.5 Any information which is by nature confidential (for example, because its
disclosure would be of significant competitive advantage to a competitor or
because its disclosure would have a significantly adverse effect upon a person
supplying the information or upon a person from whom that person acquired the
information), or which is provided on a confidential basis by parties to an
investigation shall, upon good cause shown, be treated as such by the
authorities. Such information shall not be disclosed without specific permission
of the party submitting it.17
6.5.1 The authorities shall require interested parties providing confidential
information to furnish non-confidential summaries thereof. These summaries shall
be in sufficient detail to permit a reasonable understanding of the substance of
the information submitted in confidence. In exceptional circumstances, such
parties may indicate that such information is not susceptible of summary. In
such exceptional circumstances, a statement of the reasons why summarization is
not possible must be provided.
6.5.2 If the authorities find that a request for confidentiality is not
warranted and if the supplier of the information is either unwilling to make the
information public or to authorize its disclosure in generalized or summary
form, the authorities may disregard such information unless it can be
demonstrated to their satisfaction from appropriate sources that the information
is correct".18
17Members are aware that in the territory of certain Members disclosure pursuant
to a narrowly drawn protective order may be required.
18Members agree that requests for confidentiality should not be arbitrarily
rejected.
6.33 Article 6.5 of the AD Agreement thus requires an investigating authority to
treat information which is by nature confidential or which is provided on a
confidential basis as confidential information and prescribes that such
information shall not be disclosed without specific permission of the party
submitting it.
6.34 In our view, the presence in the AD Agreement of a requirement to protect
confidential information indicates that investigating authorities might need to
rely on such information in making the determinations required under the AD
Agreement. The AD Agreement therefore contains a mechanism that allows parties
to provide investigating authorities with such information for the purposes of
making their determinations, while ensuring that the information is not used for
other purposes. In accordance with the accepted principles of treaty
interpretation, we are to give meaning to all the terms of the Agreement.53 It
would be contradictory to suggest that the AD Agreement creates a mechanism for
the protection of confidential information, but precludes investigating
authorities from relying on such information in making its determinations. If
that were the case, then there would be no reason for the investigating
authority to seek such information in the first place.
6.35 We find confirmation for this conclusion in Article 12 of the AD Agreement,
which sets forth requirements regarding the contents of public notices:
"12.2.1 A public notice of the imposition of provisional measures shall set
forth, or otherwise make available through a separate report, sufficiently
detailed explanations for the preliminary determinations on dumping and injury
and shall refer to the matters of fact and law which have led to arguments being
accepted or rejected. Such a notice or report shall, due regard being paid to
the requirement for the protection of confidential information, contain in
particular:
(i) the names of the suppliers, or when this is impracticable, the supplying
countries involved;
(ii) a description of the product which is sufficient for customs purposes;
(iii) the margins of dumping established and a full explanation of the reasons
for the methodology used in the establishment and comparison of the export price
and the normal value under Article 2;
(iv) considerations relevant to the injury determination as set out in Article
3;
(v) the main reasons leading to the determination.
12.2.2 A public notice of conclusion or suspension of an investigation in the
case of an affirmative determination providing for the imposition of a
definitive duty or the acceptance of a price undertaking shall contain, or
otherwise make available through a separate report, all relevant information on
the matters of fact and law and reasons which have led to the imposition of
final measures or the acceptance of a price undertaking, due regard being paid
to the requirement for the protection of confidential information. In
particular, the notice or report shall contain the information described in
subparagraph 2.1, as well as the reasons for the acceptance or rejection of
relevant arguments or claims made by the exporters and importers, and the basis
for any decision made under subparagraph 10.2 of Article 6". (emphasis added)
6.36 Thus, the transparency requirement which obligates the authority to explain
its determination in a public notice is subject to the need to have regard to
the requirement for the protection of confidential information of Article 6.5 of
the AD Agreement. Confidentiality of the information submitted therefore limits
the manner in which the authority explains its decision and supports its
determination in a public notice. In sum, Article 12 implies, to our mind, that
an investigating authority may rely on confidential information in making
determinations while respecting its obligation to protect the confidentiality of
that information.
6.37 We find support for our view in a recent Appellate Body Report on Thailand
� Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel
and H-Beams from Poland (�Thailand � H-Beams�) which addressed the question of
the use of confidential information by the investigating authority as a basis
for its final determination. The Appellate Body stated that:
"An anti-dumping investigation involves the commercial behaviour of firms, and,
under the provisions of the Anti-Dumping Agreement, involves the collection and
assessment of both confidential and non-confidential information. An injury
determination conducted pursuant to the provisions of Article 3 of the
Anti-Dumping Agreement must be based on the totality of that evidence. We see
nothing in Article 3.1 which limits an investigating authority to base an injury
determination only upon non-confidential information".54
41 Argentina�s answers to questions from the Panel at the first meeting,
question 1, p. 1; EC�s first written submission, para. 47.
"7.140 The final determination reflects no meaningful analysis of a number of
the Article 3.4 factors: the Mexican sugar industry's profits, output,
productivity, utilization of capacity, employment, wages, growth, or ability
to raise capital.610 Moreover, there is no analysis of the condition of the
Mexican sugar industry during the period of investigation, or projected for
the near future. It is therefore not possible, by reading the final
determination, to understand the overall condition of the domestic industry
with respect to the Article 3.4 factors. Yet without an understanding of the
condition of the industry, it is not possible, in our view, for SECOFI to
have come to a reasoned conclusion, based on an objective evaluation of the
facts, concerning the likely impact of dumped imports. Such a conclusion
must, in our view, reflect the projected impact of further imports on the
particular domestic industry, in light of its condition. In order to conclude
that there is a threat of material injury to a domestic industry that is
apparently not currently injured, despite the effects of dumped imports
during the period of investigation, it is necessary to have an understanding
of the current condition of the industry as a background".
47
We note that our view is similar to that of the Panel in the case of
Guatemala � Cement (II) which stated as follows:
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