Arguments of the Participants

Arguments of the Third Participants

1. 
   The arguments of the third participants that filed a written submission (Brazil, Japan, Ukraine, and the United States) are reflected in the executive summaries of their written submissions provided to the Appellate Body⁵², and are contained in Annex C of the Addendum to this Report, WT/DS479/AB/R/Add.1.
   

Issues Raised in This Appeal

1. 
   The following issues are raised in this appeal:
   
   1. 
      whether the Panel erred in its interpretation and application of Articles 3.1 and 4.1 of the Anti-Dumping Agreement in finding that the DIMD acted inconsistently with these provisions in its definition of "domestic industry" (raised by Russia);
      
   2. 
      with respect to price suppression:
      
      1. 
         whether the Panel erred in its interpretation and application of Articles 3.1 and 3.2 of the Anti-Dumping Agreement in finding that the DIMD acted inconsistently with these provisions because it failed to take into account the impact of the financial crisis in determining the rate of return used to construct the target domestic price for its price suppression analysis (raised by Russia);
         
      2. 
         whether the Panel failed to make an objective assessment under Article 11 of the DSU in finding that the European Union had not established that the DIMD acted inconsistently with Articles 3.1 and 3.2 of the Anti-Dumping Agreement when assessing the "explanatory force" of dumped imports for price suppression and whether the degree of price suppression was "significant" (raised by the European Union);
         

• 
  conditionally, in the event the Appellate Body disagrees with the European Union's claims under Article 11 of the DSU, whether the Panel erred in its interpretation and application of Articles 3.1 and 3.2 of the Anti-Dumping Agreement in finding that the DIMD's methodology will necessarily show that the dumped imports have "explanatory force" for the existence of price suppression (raised by the European Union); and
  
• 
  in the event that the Appellate Body reverses the Panel's findings in this regard, whether the Appellate Body can complete the analysis and find that the DIMD acted inconsistently with Articles 3.1 and 3.2 of the Anti-Dumping Agreement by failing to consider whether the dumped imports have explanatory force for the existence of "significant" price suppression (requested by the European Union);
  

1. 
   whether the Panel erred in its interpretation and application of Articles 3.1 and 3.2 of the Anti-Dumping Agreement in finding that the evidence on the record was not sufficient to require an objective and unbiased investigating authority to consider whether the market would absorb price increases beyond those that actually took place in the context of its consideration of price suppression (raised by the European Union);
   

• 
  conditionally, in the event that the Appellate Body reverses the Panel's findings in this regard, whether the Appellate Body can complete the analysis and find that the DIMD acted inconsistently with Articles 3.1 and 3.2 of the Anti-Dumping Agreement by failing to examine whether the market would accept additional domestic price increases (requested by the European Union);
  

1. 
   whether, by basing its assessment of the European Union's claims under Articles 3.1 and 3.4 of the Anti‑Dumping Agreement on parts of the confidential investigation report, the Panel failed to: (i) make an objective assessment of the matter before it pursuant to Article 11 of the DSU; and (ii) determine whether the DIMD's establishment of the facts was proper and whether its evaluation of those facts was unbiased and objective within the meaning of Article 17.6 of the Anti-Dumping Agreement (raised by the European Union);
   
   1. 
      conditionally, in the event that the Appellate Body reverses the Panel findings, whether the Appellate Body can complete the analysis and find that the DIMD acted inconsistently with Articles 3.1 and 3.4 of the Anti–Dumping Agreement by failing to evaluate the three injury factors at issue (requested by the European Union);
      
2. 
   with respect to dealers related to Sollers, whether the Panel erred in its interpretation and application of Articles 3.1 and 3.4 of the Anti‑Dumping Agreement in finding that the DIMD was not required to evaluate the inventory information of Turin Auto in examining injury to the domestic industry (raised by the European Union); and
   
3. 
   with respect to the disclosure of essential facts:
   
   1. 
      whether the Panel erred in its interpretation and application of Article 6.9 of the Anti‑Dumping Agreement in finding that:
      

• 
  a failure to disclose essential facts that were not properly treated as confidential under Article 6.5 would lead to an inconsistency with Article 6.9 of the Anti‑Dumping Agreement (raised by Russia);
  
• 
  the DIMD acted inconsistently with Article 6.9 of the Anti-Dumping Agreement by not disclosing the actual figures for the import volumes and the weighted average import price of LCVs produced by each German exporting producer and the figures for domestic consumption and production volumes of LCVs in the Customs Union (raised by Russia);
  
• 
  the data concerning the actual import volumes and the weighted average import price of LCVs produced by Daimler AG and Volkswagen AG that originated from the electronic customs database was not properly treated as confidential (raised by Russia);
  
• 
  a methodology is not an "essential fact" within the meaning of Article 6.9 of the Anti‑Dumping Agreement (raised by the European Union);
  
• 
  not every "essential fact" is required to be disclosed, but only those that are additionally shown to be "under consideration" (raised by the European Union);
  
• 
  a source of data in general and the source of data concerning import volumes and values used by the DIMD in its dumping and injury determinations are not "essential facts" within the meaning of Article 6.9 of the Anti-Dumping Agreement (raised by the European Union);
  

1. 
   whether the Panel acted inconsistently with Articles 15.2 and 7 of the DSU by adding, in paragraph 7.270 of the Panel Report, a legal finding under Article 6.5 of the Anti-Dumping Agreement that had not appeared in the Panel's Interim Report (raised by Russia);
   
2. 
   conditionally, in the event that the Appellate Body reverses the relevant Panel's findings concerning essential facts:
   

• 
  whether the Appellate Body can complete the analysis and find that the DIMD acted inconsistently with Article 6.9 of the Anti-Dumping Agreement by failing to disclose the "essential facts" at issue (requested by the European Union); and
  
• 
  whether the Appellate Body can complete the analysis and find that, by failing to disclose the source of information concerning import volumes and values in its dumping and injury determinations, the DIMD acted inconsistently with Article 6.9 of the Anti-Dumping Agreement (requested by the European Union).
  

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