Findings and Conclusions

In document WORLD TRADE ORGANIZATION (Page 83-86)

B. Replacement of Sales to Affiliates by Downstream Sales

XI. Findings and Conclusions

conditioned upon our reversal of the Panel's findings regarding the use of facts available by USDOC.

As set forth above, however, we upheld the Panel's findings under Article 6.8 and Annex II of the Anti-Dumping Agreement regarding the use of facts available.179 In these circumstances, the conditions on which Japan's appeals are made are not satisfied, and we do not address them.

238. The remaining two appeals made by Japan are conditioned upon a reversal of the Panel's findings, under Article 2.1 of the Anti-Dumping Agreement, regarding, first, the application of the 99.5 percent test and, second, the replacement of sales excluded under that test with the downstream sales made by affiliates of an investigated exporter to independent buyers. As set forth above, we upheld the Panel's finding that the United States acted inconsistently with Article 2.1 of the Anti-Dumping Agreement as a result of the application of the 99.5 percent test, by USDOC, in this case.180 Accordingly, we do not need to examine Japan's appeal, conditioned upon a reversal of this finding, as the condition does not arise.

239. As regards the second of these conditional appeals, we reversed the Panel's finding that, under Article 2.1 of the Anti-Dumping Agreement, USDOC could not use downstream sales by affiliates to independent buyers to calculate normal value.181 In that part of our findings, we then went on to find that there is an insufficient factual record for us to complete the analysis by examining Japan's claim under Article 2.4 of the Anti-Dumping Agreement.182

XI. Findings and Conclusions

240. For the reasons set out in this Report, the Appellate Body:

(a) upholds the Panel's finding, in paragraph 8.1(a) of the Panel Report, that the United States acted inconsistently with Article 6.8 and Annex II of the Anti-Dumping Agreement in its application of "facts available" to Nippon Steel Corporation and NKK Corporation;

(b) upholds the Panel's finding, in paragraph 8.1(a) of the Panel Report, that the United States acted inconsistently with Article 6.8 and Annex II of the Anti-Dumping Agreement in its application of "facts available" to Kawasaki Steel Corporation;

179See, supra, paras. 90 and 110.

180See, supra, para. 158.

181See, supra, para. 174.

182See, supra, para. 180.

(c) upholds the Panel's findings, in paragraph 8.1(b) of the Panel Report, that section 735(c)(5)(A) of the United States Tariff Act of 1930, as amended, is, on its face, inconsistent with Article 9.4 of the Anti-Dumping Agreement; that, therefore, the United States acted inconsistently with its obligations under Article 18.4 of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement by failing to bring section 735(c)(5)(A) into conformity with the United States' obligations under the Anti-Dumping Agreement; and that the United States' application of section 735(c)(5)(A) of the United States Tariff Act of 1930, as amended, to determine the "all others" rate in this case, was also inconsistent with the United States' obligations under Article 9.4 of the Anti-Dumping Agreement;

(d) upholds the Panel's finding, in paragraph 8.1(c) of the Panel Report, that the United States acted inconsistently with Article 2.1 of the Anti-Dumping Agreement by excluding from the calculation of normal value, as outside "the ordinary course of trade", certain home market sales to parties affiliated with an investigated exporter, on the basis of the "99.5 percent" or "arm's length" test;

(e) reverses the Panel's finding, in paragraph 8.1(c) of the Panel Report, that the United States acted inconsistently with Article 2.1 of the Anti-Dumping Agreement by using, in its calculation of normal value, certain downstream sales made by an investigated exporter's affiliates to independent purchasers;

(f) finds that there is an insufficient factual record to allow completion of the analysis of Japan's claim, under Article 2.4 of the Anti-Dumping Agreement, that the United States did not make a "fair comparison" in its use of downstream sales when calculating normal value;

(g) upholds the Panel's finding, in paragraph 8.2(b) of the Panel Report, that section 771(7)(C)(iv) of the United States Tariff Act of 1930, as amended, the captive production provision, is not, on its face, inconsistent with Articles 3.1, 3.2, 3.4, 3.5, 3.6, and 4.1 of the Anti-Dumping Agreement; reverses the Panel's finding, in that same paragraph, that the United States did not act inconsistently with the Anti-Dumping Agreement in its application of the captive production provision in its determination of injury sustained by the United States' hot-rolled steel industry; and finds, instead, that the United States acted inconsistently with Articles 3.1 and 3.4 of the Anti-Dumping Agreement in the application of the captive production provision in this case;

(h) reverses the Panel's finding, in paragraph 8.2(c) of the Panel Report, that the USITC demonstrated the existence, under Article 3.5 of the Anti-Dumping Agreement, of a causal relationship between dumped imports and material injury to the United States' hot-rolled steel industry; but finds that there is an insufficient factual record to allow completion of the analysis of Japan's claim, under that provision, relating to causation;

(i) finds that the condition on which Japan's conditional appeal under Article 2.4 of the Anti-Dumping Agreement is made has been satisfied, as regards the United States' use of downstream sales by the affiliates of investigated exporters to independent purchasers; but finds, as stated in paragraph (f) above, that there is an insufficient factual record to allow completion of the analysis of Japan's claim under that provision; and

(j) finds that the conditions upon which Japan's remaining appeals under Articles 2.2, 2.3, 2.4, 6.1, 6.6, 6.8, 6.13 and 9.3, and Annex II of the Anti-Dumping Agreement are made have not been satisfied and, therefore, declines to rule on those conditional appeals.

241. The Appellate Body recommends that the DSB request that the United States bring its measures found in this Report, and in the Panel Report as modified by this Report, to be inconsistent with the Anti-Dumping Agreement and the WTO Agreement, into conformity with its obligations under those Agreements.

Signed in the original at Geneva this 2nd day of July 2001 by:

_________________________

Yasuhei Taniguchi Presiding Member

_________________________ _________________________

Florentino P. Feliciano Julio Lacarte-Muró

Member Member

In document WORLD TRADE ORGANIZATION (Page 83-86)

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