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WT/DS479/AB/R
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22 March 2018
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(18-1740)
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Page: /
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Original: English
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Russia – Anti-Dumping Duties on light commercial vehicles
from Germany and italy
AB-2017-3
Report of the Appellate Body
Table of Contents
1 Introduction 11
2 Arguments of the Participants 17
3 Arguments of the Third Participants 17
4 Issues Raised in This Appeal 17
1. Analysis of the Appellate Body 19
1.1 Definition of domestic industry 19
1.1.1 Introduction 19
1.1.2 Panel's findings 19
1.1.3 Article 4.1 of the Anti-Dumping Agreement 21
1.1.4 Whether the Panel erred in its interpretation and application of Articles 3.1 and 4.1 of the Anti‑Dumping Agreement 22
1.1.5 Conclusions 29
1.1 Price suppression 29
1.1.1 The 2009 rate of return used to construct the target domestic price 29
4.1.1.2 Introduction 29
4.1.1.3 Panel's findings 30
4.1.1.4 Articles 3.1 and 3.2 of the Anti-Dumping Agreement 31
4.1.1.5 Whether the Panel erred in its interpretation and application of Articles 3.1 and 3.2 of the Anti-Dumping Agreement in connection with the financial crisis 33
1.1.1 Article 11 of the DSU 36
4.1.1.6 Introduction 36
4.1.1.7 Panel's findings 36
4.1.1.8 Whether the Panel findings are internally incoherent and inconsistent 38
1.1.2 The ability of the market to absorb further price increases 41
4.1.1.9 Introduction 41
4.1.1.10 Panel's findings 42
4.1.1.11 Whether the Panel erred in its interpretation and application of Articles 3.1 and 3.2 of the Anti-Dumping Agreement in connection with further price increases 43
1.1.3 Conclusions 48
4.2 Confidential investigation report 51
4.2.1 Introduction 51
4.2.2 Panel's findings 51
4.2.3 Whether the Panel acted inconsistently with Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement 52
4.2.4 Conclusions 59
1.2 Related dealer 62
1.1.1 Introduction 62
1.1.2 Panel's findings 62
1.1.3 Whether the Panel erred in its interpretation of Articles 3.1 and 3.4 of the Anti-Dumping Agreement 63
1.1.4 Whether the Panel erred in its application of Articles 3.1 and 3.4 of the Anti-Dumping Agreement 66
1.1.5 Conclusions 68
1.3 Essential facts 68
1.3.1 Introduction 68
1.3.2 Panel's findings 69
1.3.3 Article 6.9 of the Anti-Dumping Agreement 70
1.3.4 Whether the Panel erred in allegedly finding that an inconsistency with Article 6.5 automatically entails an inconsistency with Article 6.9 73
1.3.5 Whether the Panel erred in its finding relating to the customs electronic database 75
1.3.6 Completion of the analysis 78
1.3.7 Whether the Panel erred in its interpretation and application of Article 6.9 of the Anti-Dumping Agreement in relation to sources of information 80
1.3.8 Completion of the analysis 84
1.3.9 Conclusions 85
2. Findings and conclusions 86
1.1 Definition of domestic industry 86
4.3 Price suppression 87
4.4 Confidential investigation report 88
4.5 Related dealer 89
4.6 Essential facts 90
4.7 Recommendation 91
ABBREVIATIONS USED IN THIS REPORT
Abbreviation
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Description
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Anti-Dumping Agreement
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Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
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BCI
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business confidential information
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confidential investigation report
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Eurasian Economic Commission, DIMD, Findings from the anti‑dumping investigation relating to light commercial vehicles originating in Germany, Italy, Poland and Turkey and imported into the common customs territory of the Customs Union (Confidential version) (Moscow, 2013) (Panel Exhibit RUS-14 (BCI))
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Customs Union
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Customs Union between the Republic of Belarus, the Republic of Kazakhstan, and the Russian Federation
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Customs Union Commission
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Customs Union Commission
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DIMD
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Department for Internal Market Defence of the EEC
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draft investigation report
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Eurasian Economic Commission, DIMD, Report on the findings of the anti-dumping investigation on imports of light commercial vehicles from Germany, Italy, Poland, and Turkey (Non-confidential version) (Draft report, 28 March 2013) (Panel Exhibits EU-16 and RUS-10)
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DSB
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Dispute Settlement Body
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DSU
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Understanding on Rules and Procedures Governing the Settlement of Disputes
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EAEU
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Eurasian Economic Union
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EEC
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Eurasian Economic Commission
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electronic customs database
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Electronic customs database of national customs authorities of the Customs Union between the Republic of Belarus, the Republic of Kazakhstan, and the Russian Federation
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Fiat
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Fabbrica Italiana Automobili Torino
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GATT 1994
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General Agreement on Tariffs and Trade 1994
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GAZ
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Gorkovsky Avtomobilny Zavod
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LCVs
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light commercial vehicles
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MIT
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Ministry of Industry and Trade of the Russian Federation
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non-confidential investigation report
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Eurasian Economic Commission, DIMD, Findings from the anti‑dumping investigation relating to light commercial vehicles originating in Germany, Italy, Poland, and Turkey and imported into the common customs territory of the Customs Union (Moscow,2013) (Non-confidential version) (Panel Exhibits EU-21 and RUS-12)
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Panel Interim Report
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Interim Report of the Panel issued to the parties on 26 August 2016
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Panel Report
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Panel Report, Russia – Anti-Dumping Duties on Light Commercial Vehicles from Germany and Italy, WT/DS479/R and Add.1
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PCA
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Peugeot Citroen Automobiles SA
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PCR
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Peugeot Citroën Russia
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period of injury assessment
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1 January 2008 to 31 December 2011
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period of investigation
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1 July 2010 to 30 June 2011
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RUB
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Russian roubles
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Sollers
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Sollers-Elabuga LLC
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USD
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US dollars
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Vienna Convention
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Vienna Convention on the Law of Treaties, done at Vienna, 23 May 1969, UN Treaty Series, Vol. 1155, p. 331
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Working Procedures
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Working Procedures for Appellate Review, WT/AB/WP/6, 16 August 2010
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WTO
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World Trade Organization
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PANEL EXHIBITS CITED IN THIS REPORT
Panel Exhibit
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Short title
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Description
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EU-4
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Sollers' updated questionnaire response of 31 January 2013
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Response dated 31 January 2013 by Sollers-Elabuga LLC to the EEC's "Questionnaire to Determine Material Injury to an Industry in the Member States of the Customs Union for Manufacturers"
(Non-confidential version)
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EU-6
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Turin Auto's updated questionnaire response of 31 January 2013
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Response dated 31 January 2013 by Turin Auto to the EEC's "Questionnaire for Trading Houses" (Non‑confidential version)
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EU-8
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Daimler's and Mercedes' comments of 16 March 2012 on the public hearing
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Letter dated 16 March 2012 from Daimler AG and CJSC Mercedes-Benz RUS to the MIT, concerning "Information to be presented … during the public hearings scheduled for 22 March 2012 in respect of the anti-dumping investigation concerning light commercial vehicles conducted by the Ministry for Industry and Trade of the Russian Federation under the claim of OOO Sollers-Elabuga" (including Annexes 1‑9)
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EU-11
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Volkswagen's comments of 6 April 2012 on the public hearing
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Letter dated 6 April 2012 from Volkswagen AG to the MIT, concerning the public consultation of 22 March 2012 (anti-dumping investigation on light commercial vehicles from Germany, Italy, Poland and Turkey)
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EU-12
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Annex 2 to Volkswagen's comments of 6 April 2012
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Republic of Tartastan Business Center, Press article, "Ford Sollers Elabuga plant delivered first 1200 cars to dealers", 1 March 2012
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EU-16
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draft investigation report
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Eurasian Economic Commission, DIMD, Results of the anti-dumping investigation with regard to light commercial vehicles originating in Germany, Italy, Poland and Turkey imported into the common customs area of the Customs Union (Non-confidential version) (Draft report, 28 March 2013)
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EU-19
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Daimler's and Mercedes' comments of 11 April 2013 on the draft investigation report
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Letter dated 11 April 2013 from Daimler AG and ZAO Mercedes-Benz RUS, concerning "Comments presented on the Report of 28 March 2013, prepared by the Department of Protection of Internal Market of the Eurasian Economic Commission on the preliminary findings of the anti-dumping investigation in respect of light commercial vehicles originating in Germany, Italy, Poland and Turkey and imported into the common customs territory of the Customs Union of Russia, Belarus and Kazakhstan"
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EU-20
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PCA's and PCR's comments of 11 April 2013 on the draft investigation report
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Letter dated 11 April 2013 from Peugeot Citroën Automobiles SA (PCA) and Peugeot Citroën Russia (PCR), concerning "the report on the results of the anti-dumping investigation in respect of light commercial motor vehicles originated from Federal republic of Germany, Italian republic, Polish Republic and Republic of Turkey and imported into the common customs territory of the Customs Union"
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EU-21
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non-confidential investigation report
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Eurasian Economic Commission, DIMD, Findings from the anti-dumping investigation relating to light commercial vehicles originating in Germany, Italy, Poland, and Turkey and imported into the common customs territory of the Customs Union (Non-confidential version) (Moscow, 2013)
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EU-22
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EEC Decision No. 113
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Eurasian Economic Commission, Board Decision No. 113 of 14 May 2013, "Regarding the application of an anti-dumping measure by introducing an anti‑dumping duty on light commercial vehicles originating from the Federal Republic of Germany, the Italian Republic and the Republic of Turkey, and imported into the common customs territory of the Customs Union"
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EU-31
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Comments of the Association of Turkish exporters from the automotive industry of 11 February 2012
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Letter dated 11 February 2012 (No. 14/02-11) from the Association of Turkish exporters from the automotive industry, concerning the dumped import [and its conditions], the possible injury to the domestic industry, the causal link between the two and the national interest factor in the investigation
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RUS-2
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Notice of Initiation
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Ministry of Industry and Trade of the Russian Federation, Order No. 1587 (15 November 2011), Notice "On Initiation of Anti-dumping Investigation related to Light Commercial Vehicles Originating from German, Italy, Poland and Turkey and Imported into the Single Customs Territory of the Customs Union"
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RUS-10
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draft investigation report
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Eurasian Economic Commission, DIMD, Findings from the anti-dumping investigation relating to light commercial vehicles originating from Germany, Italy, Poland and Turkey and imported into the single customs territory of the Customs Union (Non‑confidential version) (Draft report, 28 March 2013)
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RUS-12
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non-confidential investigation report
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Eurasian Economic Commission, DIMD, Findings from the anti-dumping investigation relating to light commercial vehicles originating in Germany, Italy, Poland, and Turkey and imported into the common customs territory of the Customs Union of the Department for Internal Market Defence of the Eurasian Economic Commission (Non-confidential version) (Moscow, 2013)
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RUS-14 (BCI)
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Confidential investigation report
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Eurasian Economic Commission, DIMD, Findings from the anti-dumping investigation relating to light commercial vehicles originating in Germany, Italy, Poland and Turkey and imported into the common customs territory of the Customs Union (Confidential version) (Moscow, 2013)
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RUS-18
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EEC Letter No. 14-176
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Letter No. 14-176 dated 11 April 2013 from the Eurasian Economic Commission to ZAO Mercedes-Benz RUS and OOO Volkswagen Group RUS
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CASES CITED IN THIS REPORT
Short Title
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Full Case Title and Citation
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Argentina – Footwear (EC)
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Appellate Body Report, Argentina – Safeguard Measures on Imports of Footwear, WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, p. 515
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Australia – Salmon
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Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, p. 3327
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Australia – Salmon
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Panel Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/R and Corr.1, adopted 6 November 1998, as modified by Appellate Body Report WT/DS18/AB/R, DSR 1998:VIII, p. 3407
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Canada – Renewable Energy / Canada – Feed-in Tariff Program
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Appellate Body Reports, Canada – Certain Measures Affecting the Renewable Energy Generation Sector / Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/AB/R / WT/DS426/AB/R, adopted 24 May 2013, DSR 2013:I, p. 7
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China – Broiler Products
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Panel Report, China Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, WT/DS427/R and Add.1, adopted 25 September 2013, DSR 2013:IV, p. 1041
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China – GOES
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Appellate Body Report, China – Countervailing and Anti-Dumping Duties on Grain Oriented Flat-Rolled Electrical Steel from the United States, WT/DS414/AB/R, adopted 16 November 2012, DSR 2012:XII, p. 6251
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China – GOES
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Panel Report, China – Countervailing and Anti-Dumping Duties on Grain Oriented Flat-Rolled Electrical Steel from the United States, WT/DS414/R and Add.1, adopted 16 November 2012, upheld by Appellate Body Report WT/DS414/AB/R, DSR 2012:XII, p. 6369
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China – HP-SSST (Japan) / China – HP-SSST (EU)
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Appellate Body Reports, China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan / China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from the European Union, WT/DS454/AB/R and Add.1 / WT/DS460/AB/R and Add.1, adopted 28 October 2015
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China – HP-SSST (Japan) / China – HP-SSST (EU)
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Panel Reports, China – Measures Imposing Anti‑Dumping Duties on High-Performance Stainless Steel Seamless Tubes ("HP‑SSST") from Japan / China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel Seamless Tubes ("HP‑SSST") from the European Union, WT/DS454/R and Add.1 / WT/DS460/R, Add.1 and Corr.1, adopted 28 October 2015, as modified by Appellate Body Reports WT/DS454/AB/R / WT/DS460/AB/R
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Colombia – Textiles
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Appellate Body Report, Colombia – Measures Relating to the Importation of Textiles, Apparel and Footwear, WT/DS461/AB/R and Add.1, adopted 22 June 2016
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EC – Asbestos
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Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 3243
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EC – Countervailing Measures on DRAM Chips
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Panel Report, European Communities – Countervailing Measures on Dynamic Random Access Memory Chips from Korea, WT/DS299/R, adopted 3 August 2005, DSR 2005:XVIII, p. 8671
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EC – Fasteners (China)
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Appellate Body Report, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R, adopted 28 July 2011, DSR 2011:VII, p. 3995
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EC – Fasteners (China)
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Panel Report, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS397/R and Corr.1, adopted 28 July 2011, as modified by Appellate Body Report WT/DS397/AB/R, DSR 2011:VIII, p. 4289
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EC – Fasteners (China) (Article 21.5 – China)
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Appellate Body Report, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China – Recourse to Article 21.5 of the DSU by China, WT/DS397/AB/RW and Add.1, adopted 12 February 2016
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EC – Salmon (Norway)
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Panel Report, European Communities – Anti-Dumping Measure on Farmed Salmon from Norway, WT/DS337/R, adopted 15 January 2008, and Corr.1, DSR 2008:I, p. 3
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EC – Seal Products
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Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R / WT/DS401/AB/R, adopted 18 June 2014, DSR 2014:I, p. 7
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EC – Selected Customs Matters
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Appellate Body Report, European Communities – Selected Customs Matters, WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791
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EC – Tube or Pipe Fittings
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Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/AB/R, adopted 18 August 2003, DSR 2003:VI, p. 2613
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EC – Tube or Pipe Fittings
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Panel Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/R, adopted 18 August 2003, as modified by Appellate Body Report WT/DS219/AB/R, DSR 2003:VII, p. 2701
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EC and certain member States – Large Civil Aircraft
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Appellate Body Report, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted 1 June 2011, DSR 2011:I, p. 7
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Egypt – Steel Rebar
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Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar from Turkey, WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, p. 2667
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India – Solar Cells
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Appellate Body Report, India – Certain Measures Relating to Solar Cells and Solar Modules, WT/DS456/AB/R and Add.1, adopted 14 October 2016
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Korea – Dairy
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Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, p. 3
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Mexico – Anti-Dumping Measures on Rice
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Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on Beef and Rice, Complaint with Respect to Rice, WT/DS295/AB/R, adopted 20 December 2005, DSR 2005:XXII, p. 10853
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Mexico – Olive Oil
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Panel Report, Mexico – Definitive Countervailing Measures on Olive Oil from the European Communities, WT/DS341/R, adopted 21 October 2008, DSR 2008:IX, p. 3179
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Russia – Commercial Vehicles
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Panel Report, Russia – Anti-Dumping Duties on Light Commercial Vehicles from Germany and Italy, WT/DS479/R and Add.1, circulated to WTO Members 27 January 2017
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Thailand – H-Beams
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Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland, WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 2701
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US – Hot-Rolled Steel
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Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS184/AB/R, adopted 23 August 2001, DSR 2001:X, p. 4697
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US – Anti-Dumping and Countervailing Duties (China)
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Appellate Body Report, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS379/AB/R, adopted 25 March 2011, DSR 2011:V, p. 2869
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US – Anti-Dumping Methodologies (China)
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Appellate Body Report, United States – Certain Methodologies and Their Application to Anti-Dumping Proceedings Involving China, WT/DS471/AB/R and Add.1, adopted 22 May 2017
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US – Anti-Dumping Methodologies (China)
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Panel Report, United States – Certain Methodologies and Their Application to Anti-Dumping Proceedings Involving China, WT/DS471/R and Add.1, adopted 22 May 2017, as modified by Appellate Body Report WT/DS471/AB/R
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US – Carbon Steel
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Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 3779
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US – Continued Zeroing
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Appellate Body Report, United States – Continued Existence and Application of Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009, DSR 2009:III, p. 1291
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US – Countervailing Duty Investigation on DRAMS
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Panel Report, United States – Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea, WT/DS296/R, adopted 20 July 2005, as modified by Appellate Body Report WT/DS296/AB/R, DSR 2005:XVII, p. 8243
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US – Gambling
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Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005, DSR 2005:XII, p. 5663 (and Corr.1, DSR 2006:XII, p. 5475)
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US – Hot-Rolled Steel
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Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS184/AB/R, adopted 23 August 2001, DSR 2001:X, p. 4697
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US – Large Civil Aircraft (2nd complaint)
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Appellate Body Report, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS353/AB/R, adopted 23 March 2012, DSR 2012:I, p. 7
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US – Section 211 Appropriations Act
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Appellate Body Report, United States – Section 211 Omnibus Appropriations Act of 1998, WT/DS176/AB/R, adopted 1 February 2002, DSR 2002:II, p. 589
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US – Softwood Lumber VI (Article 21.5 – Canada)
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Appellate Body Report, United States – Investigation of the International Trade Commission in Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada, WT/DS277/AB/RW, adopted 9 May 2006, and Corr.1, DSR 2006:XI, p. 4865
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US – Steel Safeguards
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Appellate Body Report, United States – Definitive Safeguard Measures on Imports of Certain Steel Products, WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003, DSR 2003:VII, p. 3117
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US – Upland Cotton (Article 21.5 – Brazil)
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Appellate Body Report, United States – Subsidies on Upland Cotton – Recourse to Article 21.5 of the DSU by Brazil, WT/DS267/AB/RW, adopted 20 June 2008, DSR 2008:III, p. 809
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US – Washing Machines
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Appellate Body Report, United States – Anti-Dumping and Countervailing Measures on Large Residential Washers from Korea, WT/DS464/AB/R and Add.1, adopted 26 September 2016
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World Trade Organization
Appellate Body
Russia – Anti-Dumping Duties on Light Commercial Vehicles from Germany and Italy
Russian Federation, Appellant/Appellee
European Union, Other Appellant/Appellee
Brazil, Third Participant
China, Third Participant
Japan, Third Participant
Korea, Third Participant
Turkey, Third Participant
Ukraine, Third Participant
United States, Third Participant
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AB-2017-3
Appellate Body Division:
Zhao, Presiding Member
Bhatia, Member
Servansing, Member
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