  
  
WT/DS493/AB/R/Add.1  
 
12 September  2019 
(19-5780) Page: 1/21 
   
 
 
UKRAINE – ANTI -DUMPI NG MEASURES ON AMMON IUM NITRATE  
AB-2018-5 
Report of the Appellate Body  
Addendum  
This Addendum contains Annexes A to C to the Report of the Appellate Body  circulated as  document  
WT/DS493/AB/R . 
 
The Notice  of Appeal and the executive summaries of written submissions contained in this 
Addendum are attached as they were received from the participants and third participants. The 
content has not been revised or edited by the Appellate Body, except that paragraph  and footnote 
numbers that did not start at one in the original may have been re -numbered to do so, and the text 
may have been formatted in order to adhere to WTO style. The executive summaries do not serve 
as substitutes for the submissions of the partici pants and third participants in the Appellate Body's 
examination of the appeal.  
 
 
_______________  
 
 
 WT/DS493/AB/R/Add.1  
 
- 2 - 
 
 LIST OF ANNEXES  
 
ANNEX  A 
NOTICE OF APPEAL  
Contents  Page  
Annex  A-1 Ukraine 's Notice of Appeal  4 
ANNEX  B 
ARGUMENTS OF THE PARTICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Ukraine 's appellant's submission  6 
Annex  B-2 Executive summary of Russia 's appellee's submission  9 
ANNEX  C 
ARGUMENTS OF THE THI RD PA RTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of Argentina's third participant's submission  16 
Annex  C-2 Executive summary of Australia's third participant's submission  17 
Annex  C-3 Executive summary of Brazil's third participant's submission  18 
Annex  C-4 Executive summary of the European  Union's third participant's submission  19 
Annex  C-5 Executive summary of Japan's third participant's submission  20 
Annex  C-6 Executive summary of the United  States' third participant's submission  21 
 
 WT/DS493/AB/R/Add.1  
 
- 3 - 
 
 ANNEX  A 
NOTICE OF APPEAL  
Contents  Page  
Annex  A-1 Ukraine 's Notice of Appeal  4 WT/DS493/AB/R/Add.1  
 
- 4 - 
 
 ANNEX  A-1 
UKRAINE 'S NOTICE OF APPEAL1 
Pursuant to Article  16.4 of the DSU  Ukraine hereby notifies to the Dispute Settlement Body its 
decision to appeal to the Appellate Body certain issues of law covered in the Panel Report and certain 
legal interpretations developed by the Panel in the dispute Ukraine – Anti-Dumping Measures o n 
Ammonium Nitrate  (WT/DS493). Pursuant to Rule  20(1) of the Working Procedures for 
Appellate  Review, Ukraine simultaneously files this Notice of Appeal with the Appellate  Body 
Secretariat.  
For the reasons to be further elaborated in its submissions to the  Appellate Body, Ukraine appeals, 
and requests the Appellate Body to reverse the findings, conclusions and recommendations of the 
Panel, with respect to the following errors contained in the Panel Report:2 
a. the Panel erred when finding that Russia's Panel R equest i dentified the 2008 and the 
2010 Decisions as measures at issue within the meaning of Article  6.2 of the DSU  and that 
these measures consequently fell within the Panel's terms of reference. As a result, 
Ukraine requests the Appellate Body to reverse the Panel's findings in paragraphs  7.24, 
7.26, 7.27, 7.28 and 8.1 (a);  
b. the Panel  violated Article 7.1 and Article 11 of the DSU by making findings on a claim that 
Russia never made in its Panel Request, First Written Submission and Russia's Opening 
Statement at the First Substantive Meeting with the Panel. As a result, Ukraine requests 
the Appellate Body to reverse th e Panel's findings in paragraphs  7.147, 7.149, 7.150, 
7.151, 7.152 and 8.3 (a)(i) and 8.3 (a)(ii);  
c. the Panel erred  when finding that Ukraine acted inconsistently with Article  2.2.1.1 of the 
Anti-Dumping Agreement by failing to calculate the cost of product ion of the product under 
investigation on the basis of the records kept by the producers. As a result, Ukraine 
requests the Appellate Body to reverse the Panel's findings in paragraphs  7.89, 7.90, 7.91, 
7.92 and  8.2 (a) which are based on its legally er roneous reasoning in 
paragraphs  7.85-7.88;  
d. the Panel erred in the interpretation and application of Article  2.2 of the Anti -Dumping 
Agreement when finding that Ukraine violated Article  2.2 of the Anti -Dumping Agreement 
by not using the actual costs "in the co untry of origin" when calculating the cost of 
production of the investigated Russian producers. As a result, Ukraine requests the 
Appellate Body to reverse the Panel's findings in paragraphs 7.99, 7.101, 7.102, 7.103 
and 8.2 (b);  
e. the Panel erred in the app lication of Article  2.2.1. of the Anti -Dumping Agreement by 
finding that MEDT of Ukraine relied on the costs that were calculated inconsistently with 
Article  2.2.1.1 of the Anti -Dumping Agreement for the purpose of performing the 
ordinary -course -of-trade t est. As a result, Ukraine requests the Appellate Body to reverse 
the Panel's findings  in paragraphs 7.114, 7.116, 7.117, 7.118 and 8.2 (c); and  
f. the Panel failed to make an objective assessment of the matter before it, and thus violated 
Article  11 DSU, when  examining the scope, meaning and content of the 2010 Decision and 
the judgments  of the Ukrainian Courts, and in particular the decision of the 
Kiev Administrative District Court and the Panel erred when concluding that the Ukrainian 
authorities acted inco nsistently with Article  5.8 of the Anti -Dumping Agreement. A s a 
result, Ukraine requests the Appellate Body to reverse the  Panel's findings in 
paragraphs  7.147, 7.149, 7.150, 7.151, 7.152, 7.154, 7.157 and 8.3 (a) . 
_______________  
                                                
1 This document, dated 23 August  2018, was circulated to Members as document WT/DS 493/6.  
2 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review , this Notice of Appeal 
includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without prejudice 
to the ability of Ukraine to re fer to other paragraphs of the Panel Report in the context of its appeal.  WT/DS493/AB/R/Add.1  
 
- 5 - 
 
 ANNEX  B 
ARGUMENTS OF THE PAR TICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Ukraine 's appellant's submission  6 
Annex  B-2 Executive summary of Russia 's appellee's submission  9 
 WT/DS493/AB/R/Add.1  
 
- 6 - 
 
 ANNEX  B-1 
EXECUTIVE SUMMARY OF  UKRAINE 'S APPELLANT'S SUBMISSI ON 
I. PROCEDURAL ISSUES  
A. The Panel erred in finding that the 2008 and the 2010 Decisions were identified in 
the panel request  
1. Ukraine submits that the Russian Federation's Panel Request did not identify the 2008 and the 
2010 Decision as measures at issue. First, in the main text of the paragraph identifying the 
measures at issue, the Russian Federation only mentioned the 2014 Decision.1 Second, 
footnote  2 of the Panel Request does not indicate that the Russian Federation intended to 
challenge  the 2008, 2010 and 2013 Decisions or that the Russian Federation  takes issue with 
what was determined in those decisions. Footnote  2 provides background information relating 
to the preceding anti -dumping proceedings. Third, Ukraine submits that Item number 1 of the 
Panel Request does not refer to the original anti -dumpi ng measures but merely to 
"anti-dumping measures" and there is again no mention of the 2008 or the 2 010 Decisions. 
Last, c ontrary to what the Panel found, footnote 3 does not seek to clarify the term "the 
anti-dumping measures" but refers to the alleged de minimis findings by the Ukrainian Courts. 
In light of this, Ukraine submits that the Russian Federa tion's Panel Request did not sufficiently 
clearly identify the measures at issue within the meaning of Article 6.2 DSU and therefore the 
Panel erred when finding that the 2008 and the 2010 Decisions fell within its terms of 
reference.  
B. The Panel made a f inding on a claim that was not made by the Complainant  
2. The Panel made findings on the inconsistency of the original anti -dumping measures with 
Article 5.8 of the Anti -Dumping Agreement. Despite the fact that this claim is neither included 
in the Panel Requ est, nor in the Russian Federation's First Written Submission, the Panel added 
this claim to the Russian Federation's requests for findings in chapter 3 of the Panel Report 
and made findings on this claim under subheading 7.5.3.1. The Panel refers to parag raphs  57 
and 58 of the Russian Federation 's response to Panel question No. 24 to justify adding this 
new claim.2 Nevertheless, a panel's terms of reference are not determined by the responses 
of the complainant after the first substantive panel meeting. In  light of this, Ukraine submits 
that the Panel violated Article 7.1 and Article 11 of the DSU.  
II. THE PANEL ERRED BY F INDING THAT THE UKRA INIAN AUTHORITIES FA ILED TO 
PROVIDE "AN ADEQUATE  BASIS" FOR REJECTIN G THE REPORTED GAS C OST OF THE 
INVESTIGATED RUSSI AN PRODUCERS UNDER THE SECOND CONDITION  OF 
ARTICLE  2.2.1.1 OF THE ANTI -DUMPING AGREEMENT  
3. Ukraine submits that the Panel's interpretation of the second condition of Article 2.2.1.1 of 
the Anti -Dumping Agreement is erroneous and inconsistent with the finding s in EU – Biodiesel . 
In particular, the Panel refused to consider whether the conditions in the domestic Russian 
market and the conditions of sales of gas met the definitions of "non -arm's length" and "other 
practices".3 
4. First, with regard to "non -arm's le ngth" transactions, the Panel seemed to suggest that only 
non-arm's length transactions between legally affiliated parties  could affect the reliability of 
the producers' records. Ukraine contends that for a transaction to be considered at  arm's 
length in a nti-dumping -cost context, the following conditions must be met: (1) the transaction 
needs to be between two willing parties that are unrelated; (2) the parties must act 
independently from each other; and (3) the parties must pursue their own best interest.  
Consequently, even where parties are "unrelated", when the second or/and third condition(s) 
                                                
1 Russia n Federation 's Panel Request, p 1.  
2 Panel Report, para. 7.135, f n 234. 
3 Panel Report, para. 7.85.  WT/DS493/AB/R/Add.1  
 
- 7 - 
 
 is/are not met, a transaction cannot be considered at arm's length from the point of view of 
an independent auditor. In past case law, the determining factor was n ever the legal affiliation  
of the parties, but whether commercial principles had been respected or whether market prices 
were applied . 
5. Based on this, Ukraine submits that the transactions between the Russian exporters and the 
gas suppliers are not at "arm's length", as properly established by MEDT of Ukraine. The 
Russian parties were not free to independently determine the prices of the g as sales 
transactions since the prices were fixed by the Russian state. Moreover, the prices fixed by 
the state were below cost and were much below the price that results from free market forces. 
Therefore, the transactions are also not based on commercial  principles.  
6. Second, with regard to "other practices", Ukraine notes that the Panel did also not consider 
its arguments that the Russian dual pricing system for gas qualifies as "other practices" which 
in turn renders the records of the Russian investigate d exporters unreliable.  
III. THE PANEL ERRED WHEN  FINDING THAT MEDT O F UKRAINE ACTED 
INCONSISTENTLY WITH ARTICLE 2.2 OF THE A NTI-DUMPING AGREEMEN T BECAUSE 
IT FAILED TO CALCULA TE THE COST OF PRODU CTION OF THE INVESTI GATED 
RUSSIAN PRODUCERS "I N THE COUNTRY O F ORIGIN"  
7. Ukraine submits that the Panel erred (1) in the interpreta tion of Article 2.2 of the 
Anti-Dumping Agreement and (2) in finding that the surrogate price was not properly adapted 
to reflect the costs "in the country of origin".  
8. First, Ukraine submi ts that the Appellate Body's interpretati on of Article 14 (d) of the 
SCM Agreement applies by analogy to anti -dumping cases in situations where domestic prices 
in the country of origin are found to be unreliable. In the present dispute, the Russian domesti c 
prices are unreliable given the state's intervention in fixing gas prices. It would therefore be 
illogical to force an investigating authority to construct the cost of production based on an 
unreliable, already rejected price.  
9. Second, Ukraine would like to highlight the fact that the possibility to have recourse to an 
out-of-country benchmark in an anti -dumping case is in line with WTO law provided that it is 
properly adapted to reflect the cost of production in the country of origin. In this regard, 
Ukraine submits that it did make the necessary adjustment for transport expenses to net the 
export price back to the country of origin.  
IV. THE PANEL ERRED WHEN  FINDING THAT UKRAIN E ACTED INCONSISTENT LY WITH 
ARTICLE 2.2.1 OF THE  ANTI -DUMPING AGREEM ENT BECAUSE IN MAKING ITS 
DETERMINATIONS UNDER  THIS PROVISION IT R ELIED ON COSTS THAT WERE 
CALCULATED INCONSIST ENTLY WITH ARTICLE 2 .2.1.1 OF THE ANTI -DUMPING 
AGREEMENT  
10. Ukraine further contends that the Panel's finding regarding Article 2.2.1.1 of the Anti -Dumping 
Agreement is vitiated by errors of interpretation and application of the second condition in the 
first sentence of this provision. Given that the Panel's finding related to Article 2.2.1 of the 
Anti-Dumping Agreement is purely consequential to its erroneous fi nding of the violation of 
Article 2.2.1.1 of the Anti -Dumping Agreement, Ukraine requests the Appellate Body to 
reverse the Panel's findings in paras 7.114, 7.118, 8.2(c) of its report.  
V. THE PANEL VIOLATED A RTICLE 11 OF THE DSU  WHEN IT CONCLUDED T HAT THE  2010 
DECISION AND THE JUD GMENTS OF THE UKRAIN IAN COURTS DETERMINE D A 
BELOW DE MINIMIS  DUMPING MARGIN  
11. Ukraine submits that by failing to apply the correct legal standard for ascertaining the correct 
meaning of municipal law, and particularly the Panel's failure to undertake a proper holistic 
assessment of all the evidence before it, the Panel failed to mak e on objective assessment of 
the matter before it, within the meaning of Article 11 of the DSU. This, in turn, resulted in the 
erroneous conclusion that the 2010 Decision and the judgment of the Kiev Administrative 
District Court  determined a below de mini mis dumping margin for EuroChem.  WT/DS493/AB/R/Add.1  
 
- 8 - 
 
 12. In the 2010 decision, MEDT of Ukraine and ICIT did not calculate a dumping margin but merely 
determined a zero duty. Similarly, the court did not calculate a dumping margin, it only ruled 
that the 2008 decision imposed an i llegal duty on EuroChem. In reaching this conclusion the 
Kiev Administrative District Court relied on the evidence before it, which were the dumping 
calculations calculated by EuroChem itself since ICIT (or MEDT of Ukraine) did not present any 
dumping marg in calculation or any other data allowing the Kiev Administrative District Court  
to calculate a dumping margin. Furthermore, the fact that the competence of the 
Ukrainian  courts is limited to reviewing the legality of anti -dumping measures that have been 
adopted – but not to recalculate dumping margins absent the illegality identified by a court – 
explains why, contrary to the Panel's conclusion, the Kiev Administrative District Court  did not 
calculate a (new) dumping margin for EuroChem. Therefore, Ukraine  submits that the Panel 
erred when it concluded that a below de minimis  dumping mar gin was established by the 
2010 Decision or by the judgments of the Ukrainian Courts.  
13. Ukraine also disagrees with the Panel's finding that the grounds advanced by Ukraine ar e 
essentially matters under Ukrainian domestic law and are not determinative of issues raised 
in WTO dispute settlement proceedings.4 
VI. CONCLUSION  
14. In light of this, Ukraine requests the Appellate Body to reverse the Panel's findings on all the 
aforementi oned issues.  
 
                                                
4 Panel Report, para. 7.148.  WT/DS493/AB/R/Add.1  
 
- 9 - 
 
 ANNEX  B-2 
EXECUTIVE SUMMARY OF  RUSSIA'S  APPELLEE'S SUBMISSIO N 
A. The Panel Correctly Found that the Panel Request Identified the 2008 and 2010 
Decisions as Measures at Issue  
1. The Russian Federation supports the Panel's findings that the 2008 and 2010 Decisions were 
correctly identified as measures at issue. Compliance with Article 6.2 of the DSU must be 
assessed having considered the panel request as a whole. By singling out ab stracts of the 
Panel Request, Ukraine misleadingly seeks support for its claim that the 2008 and 2010 
Decisions were not identified. The Panel Request identifies the measures at issue in the 
opening paragraph as Ukraine's anti -dumping meas ures on ammonium nitrate. These 
measures are explicitly detailed in footnote 2. An additional  reference to the 2008 and 
2010 Decisions in item 1 and footnote 3 of the Panel Request leaves no doubt that these 
decisions were considered as measures at issue.  
2. Footnote 2 of the  Panel Request does not provide "background information". It specifically 
characterizes and develops references to the "anti -dumping measures" being challenged as 
measures at issue. The 2008 and 2010 Decisions were clearly designated in the Panel Request 
as being challenged. Footnote 3 of the Panel Request identifying – again and in clear terms – 
the 2008 and 2010 Decisions, was correctly considered by the Panel, when considering the 
Panel Request as a whole.  
3. The Russian Federation therefore submits that th e Panel was right in ruling that, when 
considering the opening paragraph, footnote 2, item 1 and footnote 2 of the Panel Request in 
conjunction, and not in isolation, the 2008 and 2010 Decisions were appropriately identified 
as measures at issue.  
B. Ukrain e's Claims Under Article 7.1 and Article 11 of the DSU are Without Merits  
4. The Russian Federation supports the Panel's finding that the compliance of the 2008 and 
2010 Decisions with Article 5.8 of the Anti -Dumping Agreement falls within its terms of 
refere nce. Ukraine wrongfully advances that this claim was not included in the Panel Request 
or Russian Federation's First Written Submission. This claim was contained in item 1 of the 
Panel Request, and later developed in Russian Federation's subsequent submiss ions. Ukraine 
in fact lodged a Request for Preliminary Ruling against that claim and has presented arguments 
throughout the procedure before the Panel on this claim.  
5. The Russian Federation agrees with the Panel's finding that item 1 of the Panel Request 
identified clearly, by using the word "because" twice, that it was challenging the measures at 
issue under Article 5.8 of the Anti -Dumping Agreement in two respects: by failing to exclude 
a Russian exporter whose dumping margin was de minimis  from the anti -dumping measures 
and by subjecting this exporter to subsequent reviews. The Russian Federation notes that it 
was only obliged, in the Panel Request, to identify claims and not arguments, as the latter 
naturally need to be developed in subseq uent submissions.  
6. The Russian Federation therefore submits that the Panel rightfully concluded that the claim 
made by the Russian Federation on the inconsistency of the 2008 and 2010 Decisions with 
Article 5.8 of the Anti -Dumping Agreement was within its t erms of reference and 
correspondingly ruled on such claim.  WT/DS493/AB/R/Add.1  
 
- 10 - 
 
 C. The Panel Correctly Found that the Ukrainian Authorities Acted Inconsistently With 
Article 2.2.1.1 of the Anti -Dumping Agreement in Rejecting the Reported Gas Cost 
of the Investigated Russian Pr oducers Without Providing An Adequate Basis under 
the Second Condition of Article 2.2.1.1  
7. The Russian Federation supports the Panel's finding that the factual findings relied upon by 
MEDT of Ukraine, and set out in paragraph 7.73 of the Panel Report, did n ot provide a sufficient 
basis for MEDT of Ukraine to conclude that the records of the investigated Russian producers 
did not reasonably reflect the costs associated with the production and sale of ammonium 
nitrate. In particular, the Panel was correct in i ts factual finding that MEDT of Ukraine's enquiry 
was focused on whether the cost of gas incurred by the investigated Russian producers in the 
production and sale of ammonium nitrate was reasonable, or was the cost they would incur 
under what it considered  to be normal circumstances, i.e. in the absence of the alleged 
distortions in the domestic Russian market for gas. The Panel's reliance on the legal findings 
and interpretation developed in EU – Biodiesel (Argentina)  was also correct. 
The Russian  Federati on also supports the Panel's finding that for resolving this dispute it was 
not necessary to consider whether the conditions in the domestic Russian market and the 
conditions of sale of gas met the definitions of "non -arm's length transactions" proposed by  
Ukraine, or its interpretation of "other practices".  
8. The Panel correctly found that the Ukrainian authorities acted inconsistently with 
Article  2.2.1.1 of the Anti -Dumping Agreement in rejecting the reported gas cost of the 
investigated Russian producers without providing an adequate basis under the 
second  condition of Article 2.2.1.1.  
Ukraine's Arguments on the "Non -arm's -length" Test are Legally Flawed, 
Irrelevant and Should be Rejected  
9. With reference to footnote 400 to para. 7.242 of the panel report in  EU – Biodiesel (Argentina) 
where the term "non -arm's length transactions" originally appeared in connection with the 
phrase "reasonably reflect" in the text of Article 2.2.1.1, Ukraine developed its own test to 
determine whether a transaction between the investigated exporter or producer and its 
supplier of input is at arm's length, and thus reliable or not. Ukraine defined the term "a 
transaction at arm's length" on the basis of the US Generally Accepted Auditing Standards and 
the International Standards on Auditing and referred to three WTO cases ( EU – Biodiesel 
(Argentina) , the Appellate Body Report in US – Hot-Rolled Steel , and the panel Report in  
US – OCTG) where, in Ukraine's view, a panel or the Appellate Body "had to assess whether 
the transactions  were at arm's length".  Ukraine argues that the determining factor  was never 
the legal affiliation of the parties, but whether commercial principles had been respected or 
whether market prices were applied. The Russian Federation submits that Ukraine's 
arguments with respect to "non -arm's length test" and its application are legally flawed, 
irrelevant and should be rejected.  
10. Article 2.2.1.1 of the Anti -Dumping Agreement does not contain the term "non -arm's length 
transaction", and thus there is no legal bas is for an additional enquiry whether a transaction 
between the investigated exporter or producer and its supplier of input is at non -arm's length 
or not. The only enquiry under the second condition of Article 2.2.1.1 is whether the records 
of the investiga ted exporter or producer reasonably reflect the costs associated with the 
production and sale of the product under consideration.1 
11. In this dispute, the Panel noted Ukraine's arguments based on Article 2.3 and ruled that this 
provision is not applicable to the circumstances of this case.2 In its reliance on Article  2.3, 
Ukraine ignores the textual difference between Article 2.2.1.1 which contains rules for the 
calculation of costs to determine normal value and Article 2.3 which allows construction of 
                                                
1 The Russian Federation recalls that the Appellate Body concluded that "th e second condition in the 
first sentence of Article 2.2.1.1 of the Anti -Dumping Agreement … relates to whether the records kept by the 
exporter or producer under investigation suitably and sufficiently correspond to or repr oduce those costs 
incurred by the investigated exporter or producer that have a genuine relationship with the production and sale 
of the specific product under consideration". The second condition does not include a general standard of 
"reasonableness".  (Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.56)  
2 Panel Report,  Ukraine – Ammonium Nitrate , fn 163 to para. 7.91.  WT/DS493/AB/R/Add.1  
 
- 11 - 
 
 export prices of the product under consideration where the actual export price may be found 
unreliable due to the association between the exporter and the importer. The absence of 
similar wording in Article 2.2.1.1 strongly indicates that such a test was not inte nded.  
12. Contrary to Ukraine's position, the US Generally Accepted Auditing Standards and the 
International Standards on Auditing and their definitions are irrelevant  to both the legal 
interpretation of Article 2.2.1.1 and to this dispute. The text of Article  2.2.1.1 clearly 
demonstrates that WTO Members did not agree to apply these auditing standards for the 
interpretation and application of this provision.  
13. With respect to Ukraine's reference to three WTO cases, the Russian Federation notes that in 
EU – Biodiesel (Argentina)  the panel did not assess whet her transactions of 
Argentinian  producers were at arm's length in its consideration of Argentina's claim under 
Article 2.2.1.1. The Appellate Body's observations in para. 141 of its Report in US – Hot-Rolled 
Steel are specific to the circumstances of that dispute and the clam of violation of Article  2.1 
of the Anti -Dumping Agreement, and thus should not be trans posed to the test under 
Article  2.2.1.1 and the present dispute. In US – OCTG (Korea), the panel's obs ervations in 
para. 7.197 of its Report were made in light of the circumstances of that dispute, the 
complainant's arguments and identified legal issues which are different in comparison with the 
dispute before the Appellate Body.  
14. Article 2.2.1.1 of the Ant i-Dumping Agreement does not permit an investigating authority to 
examine government regulation of prices and to reject the recorded prices because the 
authority considers them as "unreliable" due to government regulation. The Appellate Body in 
EU – Biodie sel (Argentina)  ruled that Article 2.2.1.1 does not permit an investigating authority 
to disregard recorded costs because it considers them to be unreasonable or to not be a cost 
that the exporter or producer would incur under normal circumstances, i.e. in  the absence of 
the alleged distortion caused by government action.  
15. The Russian Federation also notes that, contrary to Ukraine's definition of non -arm's length 
transaction and provided explanation, the text of Article 2.3 indicates that the government 
regulation of price does not affect the reliability of the export price of the product under 
consideration. The term "association" in the context of Article 2.3 concerns relationships 
between economic operators, and not government regulation.  
16. Also, Ukraine's argument disregards the fact that dumping arises from the pricing behaviour  
of an exporter or foreign producer  of the product under consideration, but not government 
regulation. The investigated exporter or producer cannot be responsible for government 
regulation, including regulation of input prices, and for prices and costs of suppliers of inputs.  
17. The Russian Federation does not agree with Ukraine's consideration that "the Panel seemed 
to suggest that the records can only be deemed unreliable when the par ties are affiliated". It 
is not necessary for the Panel to consider in abstract all circumstances in which records of the 
investigated exporters or producers may not meet the second condition of Article  2.2.1.1 of 
the Anti -Dumping Agreement. The Panel focu sed on the factual circumstances of this dispute 
and replied to Ukraine's argument: "[w]e do not consider that the investigated Russian 
producers' own records could be said to be unreliable, or not reasonably reflect the costs 
associated with the productio n and sale of the product under investigation, because its 
unrelated suppliers' prices are government regulated, lower than the prices prevailing in other 
countries, or allegedly priced below their cost of production".  
18. Contrary to Ukraine's suggestion, Article 2.2.1.1 of the Anti -Dumping Agreement does not 
allow an investigating authority to go through records of the supplier of input – a company 
which is not under investigation – to pick and choose the input price that the authority prefers,  
considering such price as more "reasonable", "reliable" or "the freely determinable market 
prices". A price of input selected by an investigating authority, for example because it is "the 
freely determinable market price" in comparison with the actually i ncurred price, will not have 
"a genuine relationship with the production and sale of the specific product under 
consideration" in a specific anti -dumping proceeding.  WT/DS493/AB/R/Add.1  
 
- 12 - 
 
 19. Ukraine submits that MEDT of Ukraine established that the transactions between the Russian  
exporters and the gas suppliers are not at arm's length, but this is not true. The Panel correctly 
found, inter alia , that there is not any finding in the Investigation Report that the records of 
the investigated Russian producers, insofar as they reflected the prices paid to gas suppliers, 
were unreliable. Ukraine's arguments based on the term "non -arm's length" consti tute ex post 
facto rationalizations.  
20. Ukraine argues that the present case is different from EU – Biodiesel (Argentina)  and  
EU – Biodiesel (Indonesia) . The Russian Federation disagrees with Ukraine's position and 
refers to paras. 26 -29 of its Second Writte n Submission, where the Russian Federation 
described at least 11 similarities between EU – Biodiesel (Argentina)  and the present dispute.  
Ukraine's  Arguments on the "Other Practices" Are Legally Flawed, Irrelevant 
and Should be Rejected  
21. The category of "ot her practices" mentioned by the panel and the Appellate Body in  
EU – Biodiesel (Argentina)  comprises only those accounting, reporting and business practices 
of investigated producers and exporters that may affect the quality of the reported costs to 
the effect that such practices impede the investigating authority in the performance of its duty 
to ascertain whether costs recorded suitably and sufficiently correspond to or reproduce "all 
the actual costs incurred by the particular producer or exporter under  consideration" in the 
production and sale of the product under consideration. Article 2.2.1.1 Anti -Dumping 
Agreement does not contain the terms "reliability", "reliable", "unreliable". In contrast with 
Article 2.2.1.1, Article 2.3 of the same Agreement pr ovides that the export price may be 
constructed, inter alia , in cases "where it appears to the authorities concerned that the export 
price is unreliable because of association or a compensatory arrangement between the 
exporter and the importer or a third p arty". The absence of a similar wording in Article  2.2.1.1 
and other provisions relevant to normal value indicates that Article 2.3 should not be applied 
for the calculation of the cost of production, establishment or construction of normal value. 
Ukraine' s arguments on the "other practices" are legally flawed, irrelevant and should be 
rejected.  
Ukraine's Interpretation of the Second Ad Note to Paragraph 1 of Article VI of 
the GATT 1994 is Legally Flawed, Irrelevant and Should be Rejected  
22. Contrary to Ukrain e's assertions, the second Ad Note to Article VI to GATT 1994 contains no 
such word as "unreliable". Second, the text of this provision does not combine conjunctions 
and/or. The text of the second Ad Note to Article VI in Annex I to the GATT 1994 explicitl y 
sets two cumulative  conditions when special difficulties may exist in determining price 
comparability for the purpose of Article VI:1 of the GATT 1994: "in the case of imports from 
a country which has a complete or substantially complete monopoly of its trade and where all 
domestic prices are fixed by the State ".3 Both of these conditions should be met for this 
provision to be applied. This paragraph of Ad Note to Article VI also provides that "in such 
cases importing contracting parties may find it neces sary to take into account the possibility 
that a strict comparison with domestic prices in such a country may not always be 
appropriate ". 
Ukraine's Interpretation of the Term "the Particular Market Situation" in 
Article 2.2 of the Anti -Dumping Agreement is  Erroneous, Irrelevant and Should 
be Rejected  
23. Neither negotiating history of 1967 Kennedy Round and 1979 Tokyo Round anti -dumping 
codes, nor subsequent discussions of any issues with regard to these documents are relevant 
for the interpretation of Article 2.2 of the Anti -Dumping Agreement as they are documents 
related to other treaties. Anti-Dumping Codes are distinct from the Anti -Dumping Agreement, 
i.e. these are legally different treaties and each of them has its own negotiation history. 
Ukraine's positi on that the term "the particular market situation" implies "a market structure, 
                                                
3 Emphasis added.  WT/DS493/AB/R/Add.1  
 
- 13 - 
 
 where the interaction of supply and demand and free price determination, is interfered with 
by government intervention" has no legal basis.  
Practice of Other WTO Members is Irr elevant for the Interpretation of the Term 
"the Particular Market Situation" under Article 2.2 of the Anti -Dumping 
Agreement  
24. The practice of other WTO Members is irrelevant for the interpretation of the term "the 
particular market situation" under Article 2.2 of the Anti -Dumping Agreement. First, decisions 
and other documents referred to by Ukraine constitute internal law of some WTO Members. 
Second, as it follows from the principles of treaty interpretation set out in Articles 31 and 32 
of the Vienna Conve ntion practice of other WTO Members referred to by Ukraine cannot be 
taken into account in the interpretation of either Article 2.2 or any other provision of the 
Anti-Dumping Agreement.  
The Analogy between Articles 2.2 and 2.2.1.1 in a Way Proposed by Ukra ine is 
Unsubstantiated, Legally Flawed and Should be Rejected  
25. Contrary to Ukraine's assertion Article 2.2 of the Anti -Dumping Agreement does not contain 
word "unreliable", as well as there are no grounds to reject the cost data in the country of 
origin. Second, the Anti -Dumping Agreement targets only the individual pricing behaviour of 
exporters or foreign producers that engage in practices that r esult in situations of injurious 
dumping. In particular, Article 2.2.1.1 of the Anti -Dumping Agreement refers to the "records 
kept by the exporter or producer under investigation". Thus, Ukraine's argument that "there 
is nothing in the wording of Article 2 .2.1.1 that would suggest that only particular actions of 
private parties may lead to the lack of reliability of the recorded costs"4 is legally flawed.  
D. The Panel Correctly Found that Ukraine Acted Inconsistently with Article 2.2 of the 
Anti-Dumping Agr eement  
26. The Russian Federation supports the Panels finding that Ukraine acted inconsistently with 
Article 2.2 of the Anti -Dumping Agreement and requests the Appellate Body to uphold it and 
reject Ukraine's assertions these findings were in error.  
27. First, the  rulings of the Appellate Body in US – Softwood Lumber IV  are not instructive for the 
anti-dumping proceedings. That dispute concerns the applicat ion of Article 14(d) of the 
SCM Agreement, and thus the panel and the Appellate Body considered different lega l issues 
in comparison with the present dispute. The Russian Federation would like to stress that 
GATT/WTO provisions on subsidies shall not be transposed to provisions on anti -dumping. In 
the WTO, while subsidies are regulated by the Agreement on Subsidie s and Countervailing 
Measures, anti -dumping measures are governed by the Anti -Dumping Agreement. It follows 
that the Agreement on Subsidies and Countervailing Measures is irrelevant for the 
interpretation of Article 2 of the Anti -Dumping Agreement.  
28. Second,  the Panel Correctly Found That the Gas Price Was Not Properly Adapted to Reflect the 
Costs "In the Country of Origin". In this regard, the Russian Federation submits that Article  2.2 
of the Anti -Dumping Agreement clearly requires that when constructing th e normal value the 
investigating authority shall use "the cost of production in the country of origin". Article  2.2 
of the Anti -Dumping Agreement use the word "shall". The auxiliary verb "shall" indicates that 
this provision is of mandatory character as th e word "shall" is "commonly used in legal texts 
to express a mandatory rule".5 
29. Contrary to Ukraine's assertion, Article 2.2 of the Anti -Dumping Agreement does not provide 
the investigating authority with discretion to choose a benchmark that will "vary dep ending 
on the circumstances of the case, the characteristics of the market being examined, and the 
nature, quantity, and quality of the information supplied by petitioners and respondents". 
Article 2.2 of the Anti -Dumping Agreement is precise in requiring from an investigating 
                                                
4 Ukraine's Appellant Submission, para. 65.  
5 Appellate Body Report, EC – Fasteners (China) , para. 316.  WT/DS493/AB/R/Add.1  
 
- 14 - 
 
 authority to use "the cost of production in the country of origin" in construction of normal 
value.  
E. The Panel Correctly Found that Ukraine Acted Inconsistently with Article 2.2.1 of the 
Anti-Dumping Agreement  
30. The Panel did not err in finding that Ukraine violated its obligation under Article 2.2.1.1 of the 
Anti-Dumping Agreement since Ukraine relied on costs calcula ted inconsistently with 
Article  2.2.1.1 of the Anti -Dumping Agreement. Accordingly, the Panel's finding that Ukraine 
acted inconsistently with Article 2.2.1 of the Anti -Dumping Agreement is correct.  
F. Ukraine's Claim Under Article 11 of the DSU Is Without Merit and The Panel Correctly 
Found that the Ukrainian Authorities Acted Inconsistently with Article 5.8 of the 
Anti-Dumping Agreement  
31. As a preliminary remark, The Russian Federation considers that Ukraine's arguments as to the 
findings of the Panel that the Ukrainian authorities determined that EuroChem was not 
dumping during the original investigation period are matters  of fact that fall outside the 
jurisdiction of the Appellate Body pursuant to Article 17.6 of the DSU.  
32. In any event, the Russian Federation considers that the Panel objectively analyzed the 
evidence presented by Ukraine and its probative value. As acknowle dged by the Panel, the 
Ukrainian Courts' Judgments concluded to the absence of dumping on the part of EuroChem. 
"In pursuance of" these judgments, the Intergovernmen tal Commission adopted the 
2010 Decision. Therefore, taken together, the Ukrainian Cour t's Judgments and the 
Ukrainian  authorities' decision constituted a determination that the dumping margin for 
EuroChem in the original investigation was de minimis . 
33. The Russian Federation considers that the Panel conducted a thorough review of the 
justificatio ns advanced by Ukraine and rejected them based on reasoned and adequate 
explanations. First, Ukraine's claim that the Ukrainian authorities did not recalculate 
EuroChem's dumping margin was correctly dismissed by the Panel because Ukraine brought 
no eviden ce that the 2010 Decision adopted "in pursuance of" the Ukrainian Courts' Judgments 
did not endorse such judgments and the findings that EuroChem was not dumping during the 
original investigation. The Panel correctly noted that, accepting Ukraine's argumen ts, would 
open the door for circumvention of Article 5.8 of the Anti -Dumping Agreement. Secondly, 
Ukraine's claim that the Ukrainian Courts' findings were based on evidence presented by 
EuroChem was correctly dismissed by the Panel because the restraints a lleged by Ukraine 
were rooted in domestic law. Such a restraint obviously cannot j ustify a departure from 
Article  5.8 of the Anti -Dumping Agreement. Third, the Panel rightly rejected Ukraine's claim 
that Ukrainian Courts are not competent to recalculate du mping margins and that, based on 
the Ukrainian Courts' judgments, the Ukrainian authorities could not recalculate a dumping 
margin, again, because this corresponds to a matter of domestic rather than WTO law.  
34. The Russian Federation fully supports the concl usions of the Panel. All arguments brought by 
Ukraine correspond to restraints or justifications under municipal law, which cannot justify a 
departure from WTO law. The record shows that the Ukrainian Courts concluded that 
EuroChem was not dumping during t he original investigation. The Intergovernmental 
Commission implemented this ruling without objection. Hence, there was a determination that 
EuroChem was not dumping during the original investigation, i.e. that it had a zero, negative 
or de minimis  dumping  margin. In that respect, Ukraine simply reiterates the claims made 
before the Panel, which is not the purpose of an appellate proceeding.  
35. The Russian Federation therefore considers that the Panel's assessment of Ukraine's 
arguments complies with Article 11 of the DSU. Having established that Ukraine determined 
that EuroChem was not dumping during the original investigation, the Panel rightfu lly 
concluded that Ukraine acted in violation of Article 5.8 of the Anti -Dumping Agreement.  
_______________  
 WT/DS493/AB/R/Add.1  
 
- 15 - 
 
 ANNEX  C 
ARGUMENTS OF THE THI RD PARTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of Argentina 's third participant's submission  16 
Annex  C-2 Executive summary of Australia 's third participant's submission  17 
Annex  C-3 Executive summary of Brazil 's third participant's submission  18 
Annex  C-4 Executive summary of the European Union's third participant's submission  19 
Annex  C-5 Executive summary of Japan's third participant's submission  20 
Annex  C-6 Executive summary of the United States' third participant's submission  21 
 
 WT/DS493/AB/R/Add.1  
 
- 16 - 
 
 ANNEX C -1 
EXECUTIVE SUMMARY OF  ARGENTINA'S  THIRD PARTICIPANT'S SUBMISSION1 
I.  Existence of an "adequate basis" for rejecting the cost reported by the investigated 
producers pursuant to the second condition of Article  2.2.1.1 of the  Anti-Dumping 
Agreement. Factual f indings.  
• Argentina  agrees with the Panel's findings - which are based on the Appellate  Body's 
finding in EU – Biodiesel - to the effect that an "adequate basis" for concluding that the 
records of the investigated producers reasonably reflected the costs associated with the 
production and sale under the second condition of Article 2.2.1.1 of the Anti -Dumping 
Agreement does no t involve an examination of the reasonableness of the costs.  
• There is no additional standard of reasonableness that applies to "costs" in the second 
condition under Article 2.2.1.1 of the Anti -Dumping Agreement. The condition is fulfilled 
when the costs ar e genuinely related to the production and sale of the product under 
consideration . 
• The reference to "non -arm's length transactions or other practices" that may affect the 
reliability of the costs in the records should not be seen as an exception that permi ts the 
analysis of the reasonableness of costs instead of the reasonableness of the records.  
II.  Calculation of the cost of production in the country of origin. Replacement of the 
cost in the country of origin by a surrogate price.  
• The Appellate Body's fi ndings under Article 14(d) of the SCM Agreement are not relevant 
in helping us to interpret Article 2.2 of the Anti -Dumping Agreement.  
 
 
 
                                                
1 The original version of the executive summary and submission were submitted in Spanish . WT/DS493/AB/R/Add.1  
 
- 17 - 
 
 ANNEX C -2 
EXECUTIVE SUMMARY OF  AUSTRALIA'S  THIRD PARTICIPANT'S SUBMISSION  
I. EXECUTIVE SUMMARY  
1. Australia's submission addresses the interpretation of the Anti -Dumping Agreement in the 
context of government price setting.  
A. Interpretation of Article 2.2.1.1  
2. The interpretation of Article 2.2.1.1 must be subject to the "basic purpose" of cost construction 
under Article 2.2 – identifying an appropriate proxy for the normal value of the product under 
consideration.1 Costs calculated under Article 2.2.1.1 must be capable of generating such a 
proxy.2 
3. The setting of input prices by government is an anomalous circumstance in which recorded 
costs may not accurately reflect how actual  costs have been apportioned between relevant 
transacting entities. If an input price set by government is above the market price, this will 
result in a net cost to the pro ducer of the product; a price set below the market price will 
result in a net cost to the seller of the input. Neither such net costs would be reflected in the 
price paid, nor in the producer's records. It may therefore be necessary to adjust such prices 
to reflect the actual apportionment of costs between transacting parties.  
B. Interpretation of Article 2.2  
4. Determining the "cost of production in the country of origin" is also subject to this "basic 
purpose" of Article 2.2.  
5. Any adjustments made to ensure a n out-of-country benchmark reflects the cost of production 
in the country of origin must not reintroduce inaccuracies or unreliabilities – including any 
arising from government price setting – that would prevent the benchmark from yielding a 
reliable proxy  for the normal value of the product.  
 
 
 
                                                
1 Panel Report, EU – Biodiesel (Argentina) , para 7.233.  
2 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.24.  WT/DS493/AB/R/Add.1  
 
- 18 - 
 
 ANNEX C -3 
EXECUTIVE SUMMARY OF  BRAZIL'S  THIRD PARTICIPANT'S SUBMISSION  
I. Ukraine's contentions under Article 2.2.1.1 of the ADA  
1. The panel's and Appellate Body's findings in EU – Biodiesel (Argentina)  do not provide the 
proper interpretative context for an assessment of whether an investigating authority could 
disregard properly recorded costs because they are not set on the basis o f market -determined 
prices. The discussion focused on whether the producers' records reasonably reflected their 
costs and not on the costs themselves.  
2. The term "normally" in Article 2.2.1.1 should have meaning and effect. The word "normally" 
implies that t here may be "abnormal" circumstances where the producers' records could be 
put aside to calculate normal value. Thus, it should be interpreted in a strict manner.  
3. The term "reasonably" in Article 2.2.1.1 refers to the correspondence between the costs 
registered on the records and those effectively incurred by the producer1. Therefore, the 
general disciplines of the GATT and of the Antidumping Agreement do not allow investigating 
authorities to dismiss the costs on producers' records solely because investiga tors deem costs 
themselves to be "unreasonable".  
4. The mere fact of government participation or presence in a given market – short of the 
situation described in the first Ad Note  to Article VI of the GATT – does not in itself indicate 
price distortions that should warrant deviation from in -country prices. In US – Softwood 
Lumber IV , in the context of Article 14 of the Subsidies Agreement, the Appellate Body found 
that this assessment should be made on a case -by-case basis.  
 
 
 
 
                                                
1 EU – Biodiesel (Argentina) , Appellate Body R eport, para. 6.39 . WT/DS493/AB/R/Add.1  
 
- 19 - 
 
 ANNEX C -4 
EXECUTIVE SUMMARY OF  THE EUROPEAN UNION'S  THIRD PARTICIPANT'S SUBMISSION  
I. EXECUTIVE SUMMARY  
A. Terms of reference issues  
1. The European Union agrees with the Panel that a panel request has to be read as a whole. 
The European Union also recalls that informa tion provided as background information is not 
part of the identification of the measure at issue . Whether a panel request sufficiently identifies 
a measure has to be assessed on a case -by-case basis.  
B. Substantive aspects  
2. In light of the International St andards on Auditing definition of arm's length transactions it 
may have been useful to also explore the fulfilment of the first condition in Article  2.2.1.1, 
namely that the records are in accordance with the generally accepted accounting principles 
of Rus sia. 
3. In the context of the second condition in Article 2.2.1.1 it is important to examine in particular 
to which extent the third element is fulfilled (i.e. parties pursuing their own best interests).  
4. The establishment of the domestic gas prices in Russia may fall under the category of "other 
practices" which may affect the reliability of the reported costs.  
5. Certain government actions can be at the source of dumping and material injury, as confirmed 
by the Appellate Body in United States – Anti-Dumping and Countervailing Duties (China) . 
6. The Appellate Body has held that when the relevant data may not be relied upon for the 
purpose of establishing normal value in the country of origin, an investigating authority may 
have recourse to information from outside th e country of origin. To the extent necessary, such 
information must be adjusted to reflect normal market conditions in the country of origin. 
However, such data does not need to be adjusted back to an amount that is the same as the 
amount that would result  from use of the very data rejected as unreliable.  
 
 WT/DS493/AB/R/Add.1  
 
- 20 - 
 
 ANNEX C -5 
EXECUTIVE SUMMARY OF  JAPAN'S  THIRD PARTICIPANT'S SUBMISSION  
1. First, while Ukraine questions the Panel's interpretation of the second condition of the 
first sentence of Article 2.2.1.1, the Panel correctly found and Japan generally agrees that an 
investigating authority cannot reject the records of the investigated exporter or producer 
simply because the relevant input is priced below cost due to governmental regulation.  
2. For example, based on universal service obligations , prices for certain customers could be 
below cost but this below -cost pricing can be explained by legitim ate policy reasons , provided 
the regulated pricing is profitable overall based upon commercial principles. Thus, these 
circumstance s alone do not necessarily raise questions about the reliability of the records.  
3. Second, Ukraine argues that the Panel erred in the interpretation and application of Article  2.2. 
However, Japan sees no error in the Panel 's interpretation recognizing that "investigating 
authorities may use out -of-country evidence  [ ] provided they adapt this evidence to reflect 
the cost in the co untry of origin."1 
4. In Japan 's view, the required adjustments will depend on the type of information that is used 
to calculate. The investigating authority has certain discretion provided it ensures that the 
calculated cost represents the cost in the countr y of origin and adequately explains its 
adjustments. Japan also understands this does not mean that some kind of "adjustment" or 
"adaptation" is always necessary. If it is the case that adjustment is unnecessary, the 
investigating authority would be requir ed to prepare an adequate explanation of why so.  
 
 
                                                
1 Panel Report, para. 7.99.   WT/DS493/AB/R/Add.1  
 
- 21 - 
 
 ANNEX C -6 
EXECUTIVE SUMMARY OF  THE UNITED  STATES ' THIRD PARTICIPANT'S SUBMISSION  
1. In this submission, the United States addresses the interpretation of Article 2.2.1.1 of the 
Anti-Dumping Agreement, the use of out -of-country sources to derive the cost of production 
in the country of origin under Article 2.2 of the Anti -Dumping Agreement, and the inclusion in 
the terms of reference of Ukraine's 2008 original decision, as amended  by the 
2010 amendment, and the 2010 amendment itself.  
2. First, an investigating authority may focus on State interference in the marketplace to 
ascertain under Article 2.2.1.1 whether the records kept by an investigated firm reasonably 
reflect the costs ass ociated with the production and sale of the product under consideration. 
Ukraine provided a reasoned and adequate explanation for its decision to examine the records 
kept by the investigated firms given possible State interference in the marketplace for na tural 
gas. The Panel therefore erred as a matter of law when it held that Ukraine 's decision to 
examine the records of the investigated firms was not consistent with the second condition of 
Article 2.2.1.1.  
3. Second, nothing in the text of Article 2.2 proscr ibes the use of out -of-country information to 
evaluate recorded costs, or to adjust or replace recorded costs when formulating the 
appropriate cost for an individual producer. Further, nothing in the text of Article 2.2 requires 
an investigating authority to adapt an out -of-country source for an input price back to the cost 
that had been rejected because it was not capable of generating an appropriate proxy for the 
price of the like product in the ordinary course of trade in the domestic market of the expor ting 
country. An investigating authority therefore is not required under Article 2.2 to adapt an 
out-of-country source for an input price so as to match the rejected cost for that input.  
4. Third, the Panel erred as a matter of law when it failed to compare t he terms of 
Russia 's consultations request to the terms of Russia 's panel request before deciding if the 
2008 decision and the 2010 amendment were properly within its terms of reference. Indeed, 
a comparison of the measures identified in Russia 's consultat ions request to the measures 
identified in its panel request demonstrates that the Panel 's legal conclusion was wrong, 
because the 2008 decision and the 2010 amendment were not identified and could not have 
been subject to consultations. The Appellate Body  therefore should reverse the Panel 's legal 
conclusions and findings with respect to these two measures that are outside the Panel 's terms 
of reference.  
__________  