  
  
WT/DS538/R  
 
18 January  2021 
(21-0518) Page: 1/131 
  Original: English  
 
  
PAKISTAN – ANTI -DUMPING MEASURES ON BIAXIALLY ORIENTED 
POLYPROPYLENE FILM FROM THE UNITED ARAB EMIRATES  
REPORT OF THE PANEL  
 
 
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  TABLE OF CONTENTS  
1   INTRODUCTION  ................................ ................................ ................................ ........  17 
1.1   Consultations  ................................ ................................ ................................ ............. 17 
1.2   Panel establishment and composition  ................................ ................................ ............ 17 
1.3   Panel proceedings  ................................ ................................ ................................ .......17 
2   FACTUAL ASPECTS: THE MEASURES AT ISSUE  ................................ ...........................  18 
3   PARTIES'  REQUESTS FOR FINDINGS AND RECOMMENDATIONS  ................................  20 
4   ARGUMENTS OF THE PARTIES  ................................ ................................ ...................  20 
5   ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ ........  20 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 20 
7   FINDINGS  ................................ ................................ ................................ .................  21 
7.1   Temporal scope of the evidence underlying initiation:  Articles  5.2, 5.3, and 5.8 of the 
Anti-Dumping  Agreement  ................................ ................................ ................................ ....22 
7.1.1    The applicable requirements of Article  5.3................................ ................................ ...23 
7.1.2    Whether Pakistan acted inconsistently with Article  5.3 ................................ .................. 26 
7.1.2.1    The rele vant body of evidence:  whether the NTC was entitled to consider evidence  
not contained in the application  ................................ ................................ ........................... 26 
7.1.2.2    Whether the NTC properly determined that the evidence was sufficient  ....................... 26 
7.1.3    Judicial economy under Articles  5.2 and 5.8  ................................ ................................ 28 
7.2   Temporal scope of the evidence underlying the determination of dumping: Articles  2.1, 
9.1, 9.3, and 11.1 of the Anti -Dumping  Agreement  ................................ ................................ 28 
7.2.1    The applicable requirements of Article  2.1................................ ................................ ...29 
7.2.2    Whether Pakistan acted inconsistently wi th Article  2.1 ................................ .................. 30 
7.2.2.1    The relevant date of final determination  ................................ ................................ ...30 
7.2.2.2    Whether the NTC failed to determine current dumping ................................ ............... 31 
7.2.2.3    Conclusion under Article  2.1 ................................ ................................ ................... 33 
7.2.3    Judicial economy under Articles  9.1, 9.3, and 11.1  ................................ ....................... 33 
7.3   Temporal scope of the evidence underlying the determination of injury: Articles  3.1, 3.2,  
3.4, 3.5, 9.1, and 11.1 of the Anti -Dumping  Agreement  ................................ ......................... 33 
7.3.1    The applicable requirements of Article  3.1................................ ................................ ...34 
7.3.2    Whether Pakistan acted inconsistently with Article  3.1 ................................ .................. 35 
7.3.3    Arguments on temporal scope under Articles 3.2, 3.4, and 3.5  ................................ ......36 
7.3.4    Judicial economy under  Articles  9.1 and  11.1 ................................ .............................. 36 
7.4   The NTC's  choice of cost data: Articles  2.2, 2.2.1, 2.2.1.1, and 2.2.2  ................................ 36 
7.4.1    Factual overview  ................................ ................................ ................................ ......37 
7.4.1.1    Exporter questionnaire  ................................ ................................ .......................... 37 
7.4.1.2    Deficiency letter  ................................ ................................ ................................ ....39 
7.4.1.3    Preliminary determination  ................................ ................................ ...................... 39 
7.4.1.4    Email of December 2012  ................................ ................................ ........................ 40 
7.4.1.5    Taghleef's  comments on the statement of essential facts  ................................ ........... 40 
7.4.1.6    The NTC's  response in the Report on final determination  ................................ ............ 40 
7.4.2    The applicable requirements of Articles  2.2, 2.2.1, 2.2.1.1, and 2.2.2  ............................ 40 WT/DS538/ R 
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  7.4.2.1    Article  2.2 of the Anti -Dumping  Agreement  ................................ .............................. 40 
7.4.2.2    Article  2.2.1 of the Anti -Dumping  Agreement  ................................ ........................... 41 
7.4.2.3    Article  2.2.1.1 of the Anti -Dumping  Agreement  ................................ ......................... 41 
7.4.2.4    Article  2.2.2 of the Anti -Dumping  Agreement  ................................ ........................... 44 
7.4.3    Whether Pakistan acted inconsistently with the requirements of Articles  2.2, 2.2.1,  
2.2.1.1, and 2.2.2  ................................ ................................ ................................ .............. 45 
7.4.3.1    The NTC's  decision to use the data that Taghleef provided in appendix  2 rather than 
appendix  D-3 ................................ ................................ ................................ .................... 45 
7.4.3.1.1    Article  2.2.1.1  ................................ ................................ ................................ ....45 
7.4.3.1.2    Article  2.2.2 ................................ ................................ ................................ ......48 
7.4.3.1. 3   The NTC's explanation in the Report on final determination  ................................ .....49 
7.4.3.2    Consequential claims under Articles  2.2 and 2.2.1  ................................ ..................... 51 
7.4.3.3    Conclusion under Articles  2.2, 2.2.1, 2.2.1.1, and 2.2.2  ................................ ............. 51 
7.5   Level of trade adjustment: Article  2.4 of the Anti -Dumping  Agreement  ............................. 51 
7.5.1    The applicable requirements of Article  2.4................................ ................................ ...52 
7.5.2    Whether Pakistan acted inconsistently wi th Article  2.4 ................................ .................. 53 
7.5.2.1    The NTC's assessment of the evidence ................................ ................................ .....53 
7.5.2.1.1    The NTC's explanation in the Report on final determination  ................................ .....54 
7.5.2.1.2    Taghleef's response to the exporter questionnaire  ................................ .................. 55 
7.5.2.1.3    Taghleef's submissions regarding the additional costs of distributors  ........................ 56 
7.5.2.1.4    Taghleef's  agreement with a Pakistani distributor  ................................ ................... 58 
7.5.2.1.5    Conclusion on the NTC's assessment that the evidence was insufficient ..................... 59 
7.5.2.2    The NTC's requests for evidence  ................................ ................................ ............. 60 
7.5.3    Conclusion under Article 2.4  ................................ ................................ ...................... 62 
7.6   Consideration of the volume of dumped imports: Articles  3.1 and 3.2 of the 
Anti-Dumping  Agreement  ................................ ................................ ................................ ....62 
7.6.1    The applicable requirements of Articles  3.1 and 3.2, first sentence ................................ .63 
7.6.2    Whether the NTC's  consideration of the volume of dumped imports is inconsistent with 
Articles  3.1 and 3.2  ................................ ................................ ................................ ............ 64 
7.6.2.1    The evolution of the volume of dumped imports in absolute terms  .............................. 64 
7.6.2.2    The evolution of the volume of dumped imports relative to domestic production  ........... 66 
7.6.2.3    The evolution of the volume of dumped imports relative to domestic consumption  ........ 67 
7.6.3    Conclusion on the NTC's  consideration of the volume of dumped imports under  
Articles  3.1 and 3.2  ................................ ................................ ................................ ............ 68 
7.7   Consideration of the effect of dumped imports on prices: Articles  3.1 and 3.2 of the 
Anti-Dumping  Agreement  ................................ ................................ ................................ ....68 
7.7.1    The applicable requirements of Article  3.2, second sentence  ................................ ......... 68 
7.7.2    Whether the NTC's  consideration of price undercutting was inconsistent with Articles  3.1 
and 3.2  ................................ ................................ ................................ ............................. 69 
7.7.2.1    The NTC's  use of PRAL data  ................................ ................................ .................... 70 
7.7.2.2    Price comparability (product mix)  ................................ ................................ ........... 71 
7.7.2.3    The NTC's  focus on 2009  ................................ ................................ ....................... 71 
7.7.2.4    "Significance" of price undercutting  ................................ ................................ ......... 73 WT/DS538/ R 
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  7.7.2.5   The global financial crisis  ................................ ................................ ....................... 73 
7.7.2.6    Conclusion on the NTC's  consideration of price undercutting under Articles  3.1  
and 3.2  ................................ ................................ ................................ ............................. 73 
7.7.3    Whether the NTC's  consid eration of price depression was inconsistent with Articles  3.1  
and 3.2  ................................ ................................ ................................ ............................. 74 
7.7.3.1    The NTC's  focus on 2009  ................................ ................................ ....................... 74 
7.7.3.2    "Significance" of price depression  ................................ ................................ ............ 75 
7.7.3.3    Whether the absence of price suppression contradicted the finding of price  
depression  ................................ ................................ ................................ ........................ 75 
7.7.3.4   Decrease in costs  ................................ ................................ ................................ ..76 
7.7.3.5    Conclusion on the NTC's  consideration of price depression under Articles  3.1 
and 3.2 ................................ ................................ ................................ ............................. 77 
7.8   Examination of the impact of the dumped imports on the domestic industry: Articles  3.1 
and 3.4 of the Anti -Dumping  Agreement  ................................ ................................ ............... 77 
7.8.1    The applicable requirements of Article  3.4................................ ................................ ...77 
7.8.2    Whether the NTC's  examination of the impact of the dumped imports on the domestic 
industry was inconsistent with Articles  3.1 and 3.4  ................................ ................................ .78 
7.8.2.1    Whether the NTC failed to evaluate the "magnitude of the margin of dumping" ............. 79 
7.8.2.2    Whether the NTC failed to objectively evaluate seven of the economic factors  
and indices having a bearing on the state of the domestic industry  ................................ .......... 80 
7.8.2.2.1    Market share  ................................ ................................ ................................ .....80 
7.8.2.2.2    Profits  ................................ ................................ ................................ ............... 81 
7.8.2.2.3    Sales  ................................ ................................ ................................ ................ 83 
7.8.2.2.4    Productivity  ................................ ................................ ................................ .......85 
7.8.2.2.5    Salaries and wages  ................................ ................................ ............................. 86 
7.8.2.2.6    Return on investment  ................................ ................................ ......................... 87 
7.8.2.2.7    Cash flow  ................................ ................................ ................................ .......... 87 
7.8.2.3    Whether the NTC failed to make a holistic assessment of the state of the industry  ........ 89 
7.8.3    Conclusion under Articles  3.1 and 3.4  ................................ ................................ ......... 90 
7.9   Causation: Articles  3.1 and 3.5 of the Anti -Dumping  Agreement  ................................ .......90 
7.9.1    The applicab le requirements of Article  3.5................................ ................................ ...90 
7.9.2    Whether the NTC's  examination of causation was inconsistent with Articles  3.1 
and 3.5 ................................ ................................ ................................ ............................. 92 
7.9.2.1    Whether the NTC's  reliance on findings that were inconsistent with Articles  3.1, 3.2,  
and 3.4 renders its causation anal ysis inconsistent with Articles  3.1 and 3.5  ............................. 92 
7.9.2.2    Whether the NTC failed to ensure that injury caused by other factors was not  
attributed to the dumped imports  ................................ ................................ ........................ 92 
7.9.2.2.1    The global financial crisis  ................................ ................................ .................... 93 
7.9.2.2.2    Other factors set out in the domestic producer's  annual report and identified by 
Taghleef  ................................ ................................ ................................ ........................... 94 
7.9.2.3    Whether the NTC otherwise failed to demonstrate a causal relationship between the 
dumped imports and the injury to the domestic industry  ................................ ......................... 96 
7.9.3    Conclusion under Articles  3.1 and 3.5  ................................ ................................ ......... 96 
7.10   Duration of the original investigation:  Article  5.10 of the Anti -Dumping  Agreement  ........... 96 
7.10.1    The applicable requ irements of Article  5.10 ................................ ............................... 97 WT/DS538/ R 
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  7.10.1.1    When do the time -limits in Article  5.10 start running? ................................ .............. 97 
7.10.1.2    When are investigations "concluded" under Article  5.10?  ................................ .......... 99 
7.10.2    Whether Pakistan exceeded the 18 -month time -limit in Article  5.10 ...........................  100 
7.10.2.1    The date of "initiation"  ................................ ................................ .......................  100 
7.10.2.2    The date the investigation was "conclud ed" ................................ ..........................  102 
7.10.2.3    Conclusion under Article  5.10 ................................ ................................ .............  104 
7.11   Due process rights and the 2015 determination:  Article  6.2 of the  
Anti-Dumping  Agreement  ................................ ................................ ................................ .. 104 
7.11.1    The applicable requirements of Article  6.2 ................................ ...............................  104 
7.11.2    Whether Pakistan acted inconsistently with Article  6.2 ................................ ..............  105 
7.12   Sunset review: Articles  11.1 and 11.3  of the Anti -Dumping  Agreement  .........................  106 
7.12.1    The applicable requirements of Articles  11.1 and 11.3  ................................ ..............  107 
7.12.2    Whether the NTC's  likelihood of dumping determination is inconsistent with  
Article  11.3 ................................ ................................ ................................ .....................  109 
7.12.2.1    Whether the NTC acted inconsistently with Article  11.3 by relying on a dumping  
margin that did not conform to Article  2 of the Anti -Dumping  Agreement  ................................  109 
7.12.2.1.1    Whether the NTC's  "likely dumping margins" are subject to Article  2.....................  109 
7.12.2.1.2    Whether the dumping margin that the NTC relied upon for the  
United  Arab Emirates is inconsistent with Article  2 ................................ ...............................  112 
7.12.2.1.2.1    Normal value  ................................ ................................ ..............................  112 
7.12.2.1.2.2    Conclusion on the dumping margin that the NTC relied up on .............................  113 
7.12.2.2    Whether the NTC acted inconsistently with Article  11.3 in finding that the stability  
of export destinations and th e existence of exportable  surplus supported its determination  
that dumping was likely to continue or recur  ................................ ................................ ....... 113 
7.12.2.2.1    The NTC's  reliance on its finding that "major export destinations of the exporting 
countries remained same/similar after imposition of duties"  ................................ ..................  114 
7.12.2.2.2    The NTC's  reliance on its finding of exportable  surplus  ................................ ........  114 
7.12.2.3    Conclusion under Article  11.3 on the NTC's  likelihood of dumping determination  ....... 117 
7.12.3    Whether the NTC's  likelihood of injury determination is inconsistent with Article  11.3 ... 118 
7.12.3.1    Likely volume of imports and effects on domestic production  ................................ .. 118 
7.12.3.2    Likely effects on mar ket share  ................................ ................................ ............  119 
7.12.3.3    Likely price effects  ................................ ................................ ............................  120 
7.12.3.4    Other aspects of the determination of likelihood of injury  ................................ ....... 121 
7.12.3.5    Conclusion under Article  11.3 on the NTC's  likelihood of injury determination  ...........  122 
7.12.4   Whether the sunset review determination is inconsistent with Article  11.3 as a 
consequence of the inconsistencies in the original determination  ................................ ............  122 
7.12.5    Judicial economy under Article  11.1 ................................ ................................ ....... 123 
7.13   Sunset review: Article  11.4 of the Anti -Dumping  Agreeme nt ................................ ........  123 
7.13.1    The applicable requirements of Article  11.4 ................................ .............................  124 
7.13.2    Whether the NTC acted inconsistently with Article  11.4 ................................ .............  125 
7.13.3    Conclusion under Article  11.4 ................................ ................................ ................  127 
7.14   Public notice and explanation of determinations: Ar ticles 12.1, 12.2, and 12.3 of the 
Anti-Dumping  Agreement  ................................ ................................ ................................ .. 127 WT/DS538/ R 
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  7.15   Consequential claims: Articles  1 and 18.1 of the Anti -Dumping  Agreement and  
Articles  VI:1 and VI:2 of the GATT  1994 ................................ ................................ .............  128 
7.16   The Panel's  duty under Article  12.11 of the DSU  ................................ .........................  129 
8   CONCLUSIONS ................................ ................................ ................................ .........  129  
9   RECOMMENDATION AND SUGGESTION  ................................ ................................ ... 130  
 
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  LIST OF ANNEXES  
ANNEX  A 
PANEL  DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures of the Panel on Business Confidential Information  11 
Annex  A-3 Panel c ommunication to the Parties ( 14 April 2020) 13 
Annex  A-4 Panel c ommunication to the Parties ( 23 April 2020) 14 
Annex  A-5 Panel c ommunication to the Parties ( 20 May 2020) 15 
Annex  A-6 Arrangements relating to the second substantive meeting in light of the 
COVID -19 pandemic  16 
Annex  A-7 Panel c ommunication to the Parties ( 21 July 2020) 17 
Annex  A-8 Interim review  18 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the United Arab Emirates  31 
Annex  B-2 Integrated executive summary of the arguments of Pakistan  46 
ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of the European  Union  67 
Annex  C-2 Integrated executive summary of the arguments of Japan  69 
Annex  C-3 Integrated executive summary of the arguments of the United  States  71 
 
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  CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Ceramic Tiles  Panel Report, Argentina – Definitive Anti -Dumping Measures on Imports of 
Ceramic Floor Tiles from Italy , WT/DS189/R , adopted 5  November  2001, 
DSR 2001:XII, p.  6241 
Argentina – Poultry 
Anti-Dumping Duties  Panel Report, Argentina – Definitive Anti -Dumping Duties on Poultry from 
Brazil , WT/DS241/R , adopted 19  May 2003, DSR 2003:V, p.  1727 
Australia – Anti-Dumping  
Measures on Paper  Panel Report, Australia – Anti-Dumping Measures on A4 Copy Paper , 
WT/DS529/R  and Add.1, adopted 28  January  2020 
Canada – Wheat Exports 
and Grain Imports  Appellate Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R , adopted 27  September  2004, 
DSR 2004:VI, p.  2739 
China – Autos (US)  Panel Report, China – Anti-Dumping and Countervailing Duties on Certain 
Automobiles from the United States , WT/DS440/R  and Add.1, adopted 
18 June 2014, DSR 2014:VII, p.  2655 
China – Broiler Products  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 
China – Broiler Products 
(Article 21.5 – US) Panel Report, China − Anti-Dumping and Countervailing Duty Measures on 
Broiler Products from the United States – Recourse to Article 21.5 of the DSU 
by the United States , WT/DS427/RW  and Add.1, adopted 28  February  2018 
China – Cellulose Pulp  Panel Report, China – Anti-Dumping Measures on Imports of Cellulose Pulp 
from Canada , WT/DS483/R  and Add.1, ad opted 22  May 2017, DSR 2017:IV, 
p. 1961 
China – GOES  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 
China – GOES  Panel Report, China – Countervailing and Anti -Dumping Dut ies 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 
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  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, DSR 2015:IX, p.  4573 
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  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, DSR 2015:IX, 
p. 4789 
China – X-Ray Equipment  Panel Report,  China – Definitive Anti -Dumping Duties on X -Ray Security 
Inspection Equipment from the European Union , WT/DS425/R  and Add.1, 
adopted 24  April 2013, DSR 2013:III, p.  659 
EC – Bananas III 
(Article  21.5 – Ecuador)  Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas – Recourse to Article 21.5 of the DSU by Ecuador , 
WT/DS27/RW/ECU , adopted 6  May 1999, DSR 1999:II, p.  803 
EC – Bed Linen  
(Article 21.5 – India)  Panel Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton -Type Bed Linen from India – Recourse to Article 21.5 of the DSU  by 
India, WT/DS141/RW , adopted 24  April 2003, as modified by Appellate Body 
Report WT/DS141/AB/RW, DSR 2003:IV, p.  1269 
EC – Export Subsidies on 
Sugar (Australia)  Panel Report, European Communities – Export Subsidies on Sugar, Complaint 
by Australia , WT/DS265/R , adopted 19  May 2005, as modified by 
Appellate  Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, 
DSR 2005:XIII, p.  6499 WT/DS538/ R 
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  Short Title  Full Case Title and Citation  
EC – Export Subsidies on 
Sugar (Brazil)  Panel Report, European Communities – Export Subsidies on Sugar, Complaint 
by Brazil , WT/DS266/R , adopted 19  May 2005, as modified by Appellate Body 
Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIV, 
p. 6793 
EC – Export Subsidies on 
Sugar (Thailand)  Panel Report, European Communities – Export Subsidies on Sugar, Complaint 
by Thailand , WT/DS283/R , adopted 19  May 2005, as modified by 
Appellate  Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, 
DSR 2005:XIV, p.  7071 
EC – Fasteners (China)  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 
EC – Fasteners (China) 
(Article 21.5 – China)  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, DSR 2016:I, p.  7 
EC – Trademarks and 
Geographical Indications 
(Australia)  Panel Report,  European Communities – Protection of Trademarks and 
Geographical Indications for Agricultural Products and Foodstuffs, Complaint by 
Australia , WT/DS290/R , adopted 20  April 2005, DSR 2005:X, p.  4603 
EC – Trademarks and 
Geographical Indications 
(US) Panel Report,  European Communities – Protection of Trademarks and 
Geographical Indications for Agricultural Products and Foodstuffs, Complaint by 
the United States , WT/DS174/R , adopted 20 April 2005, DSR 2005:VIII, 
p. 3499 
EC – Tube or Pipe Fittings  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 
EC – Tube or Pipe Fittings  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 
Egypt – Steel Rebar  Panel Report, Egypt – Definitive Ant i-Dumping Measures on Steel Rebar from 
Turkey , WT/DS211/R , adopted 1  October  2002, DSR 2002:VII, p.  2667 
EU – Biodiesel (Argentina)  Appellate Body Report, European Union – Anti-Dumping Measures on Biodiesel 
from Argentina , WT/DS473/AB/R  and Add.1, adopted 26  October  2016, 
DSR 2016:VI, p.  2871 
EU – Biodiesel (Argentina)  Panel Report, European Union – Anti-Dumping Measures on Biodiesel from 
Argentina , WT/DS473/R  and Add.1, adopted 26  October  2016, as modified by 
Appellate Body Report WT/DS473/AB/R, DSR 2016:VI, p.  3077 
EU – Cost Adjustment 
Methodologies II (Russia)  Panel Report, European Union – Cost Adjustment Methodologies and Certain 
Anti-Dumping Measures on Imports from Russia (Second Complaint) , 
WT/DS494/R  and Add.1, circulated to WTO Members 24  July 2020 [appealed 
by the European Union 28  August 2020 ] 
EU – Fatty Alcohols 
(Indonesia)  Appellate Body Report, European Union – Anti-Dumping Measures on Imports 
of Certain Fatty Alcohols from Indonesia , WT/DS442/AB/R  and Add.1, adopted 
29 September  2017, DSR 2017:VI, p.  2613 
EU – Fatty Alcohols 
(Indonesia)  Panel Report, European Union – Anti-Dumping Measures on Imports of Certain 
Fatty Alcohols from Indonesia , WT/DS442/R  and Add.1, adopted 
29 September  2017, as modified by Appellate Bod y Report WT/DS442/AB/R, 
DSR 2017:VI, p.  2765 
EU – Footwear (China)  Panel Report, European Union – Anti-Dumping Measures on Certain Footwear 
from China , WT/DS405/R , adopted 22  February  2012, DSR 2012:IX, p.  4585 
EU – PET (Pakistan ) Panel Report, European Union – Countervailing Measures on Certain 
Polyethylene Terephthalate  from Pakistan , WT/DS486/R , Add.1 and Corr.1, 
adopted 28  May 2018, as modified by Appellate Body Report WT/DS486/AB/R  
Guatemala – Cement I  Panel Report, Guatemala – Anti-Dumping Investigation Regarding Portland 
Cement from Mexico , WT/DS60/R , adopted 25  November  1998, as reversed by 
Appellate Body Report WT/DS 60/AB/R, DSR 1998:IX, p.  3797 
Guatemala – Cement II  Panel Report, Guatemala – Definitive Anti -Dumping Measures on Grey Portland 
Cement from Mexico , WT/DS156/R , adopted 17  November  2000, DSR 2000:XI, 
p. 5295 
India – Quantitative 
Restrictions  Panel Report, India – Quantitative Restrictions on Imports of Agricultural, 
Textile and Industrial Products , WT/DS90/R , adopted 22  September  1999, 
upheld by Appellate Body Report WT/DS90/AB/R, DSR 1999:V, p.  1799 WT/DS538/ R 
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  Short Title  Full Case Title and Citation  
Japan – Apples 
(Article  21.5 – US) Panel Report, Japan – Measures Affecting the Importation of Apples – Recourse 
to Article 21.5 of the DSU by the United States , WT/DS245/RW , adopted 
20 July 2005, DSR 2005:XVI, p. 7911  
Korea – Certain Paper  Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from 
Indonesia , WT/DS312/R , adopted 28  November  2005, DSR 2005:XXII, 
p. 10637  
Korea – Certain Paper 
(Article 21.5 – Indonesia)  Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from 
Indonesia – Recourse to Article 21.5 of the DSU by Indonesia , WT/DS312/RW , 
adopted 22  October  2007, DSR 2007:VIII, p.  3369 
Korea – Pneumatic Valves 
(Japan)  Panel Report, Korea – Anti-Dumping Duties on Pneumatic Valves from Japan , 
WT/DS504/R  and Add.1, adopted 30  September  2019, as modified by 
Appellate Bod y Report WT/DS504/AB/R  
Korea – Stainless Steel Bars  Panel Report, Korea – Sunset Review of Anti -Dumping Duties on Stainless Steel 
Bars, WT/DS553/R and Add.1, circulated to WTO Members 30 November 2020 
[adoption/appeal pending]  
Mexico – Anti-Dumping 
Measures on Rice  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  
Mexico – Anti-Dumping 
Measures on Rice  Panel Report, Mexico – Definitive Anti -Dumping Measures on Beef and Rice, 
Complaint with Respect to Rice , WT/DS295/R , adopted 20  December  2005, as 
modified by Appellate Body Report WT/DS295/AB/R, DSR 2005:XXIII, p.  11007  
Mexico – Corn Syrup  Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn 
Syrup (HFCS) from the United States , WT/DS132/R , adopted 
24 February  2000, and Corr.1, DSR 2000:III, p.  1345 
Mexico – Corn Syrup  
(Article 21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose 
Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 of the 
DSU by the United States , WT/DS132/AB/RW , adopted 21  November  2001, 
DSR 2001:XIII, p.  6675 
Mexico – Steel Pipes and 
Tubes  Panel Report, Mexico – Anti-Dumping Duties on Steel Pipes and Tubes from 
Guatemala , WT/DS331/R , adopted 24  July 2007, DSR 2007:IV, p.  1207 
Morocco – Hot-Rolled Steel 
(Turkey)  Panel Report, Morocco – Anti-dumping Measures on Certain Hot -Rolled Steel 
from Turkey , WT/DS513/R  and Add.1, adopted 8 January 2020; appeal 
withdrawn by Morocco as reflected in Appellate Body Report WT/DS513/AB/R  
Russia – Commerci al 
Vehicles  Panel Report, Russia – Anti-Dumping Duties on Light Commercial Vehicles from 
Germany and Italy , WT/DS479/R  and Add.1, adopted 9  April 2018, as modified 
by Appellate Body Report WT/DS479/AB/R  
Thailand – H-Beams  Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections 
of Iron or Non -Alloy Steel and H -Beams from Poland , WT/DS122/R , adopted 
5 April 2001, as modified by Appellate Body Report WT/DS122/AB/R, 
DSR 2001:VII, p.  2741 
Ukraine – Ammonium 
Nitrate  Panel Report , Ukraine – Anti-Dumping Measures on Ammonium Nitrate , 
WT/DS493/R , Add.1 an d Corr.1, adopted 30  September  2019, as upheld by 
Appellate Body Report WT/DS493/AB/R  
Ukraine – Passenger Cars  Panel Report, Ukraine – Definitive Safeguard Measures on Certain Passenger 
Cars, WT/DS468/R  and Add.1, adopted 20  July 2015, DSR 2015:VI, p.  3117 
US – Anti-Dumping 
Measures on Oil Country 
Tubular Goods  Appellate Body Report, United States – Anti-Dumping Measures on Oil Country 
Tubular Goods (OCTG) from Mexico , WT/DS282/AB/R , adopted 
28 November  2005, DSR 2005:XX, p.  10127  
US – Clove Cigarettes  Appellate Body Report, United States – Measures Affecting the Production and 
Sale of Clove Cigarettes , WT/DS406/AB/R , adopted 24  April 2012, 
DSR 2012:XI, p.  5751 
US – Continued Zeroing  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 
US – Corrosion -Resistant 
Steel Sunset Review  Appellate Body Report, United States – Sunset Review of Anti -Dumping Duties 
on Corrosion -Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R , adopted 9  January 2004, DSR 2004:I, p.  3 WT/DS538/ R 
BCI deleted, as indicated [[***]]  
- 11 - 
 
  Short Title  Full Case Title and Citation  
US – Corrosion -Resistant 
Steel Sunset Review  Panel Report, United States – Sunset Review of Anti -Dumping Duties on 
Corrosion -Resistant Carbon Steel Flat Products from Japan , WT/DS244/R , 
adopted 9  January  2004, as modified by Appellate Body Report 
WT/DS 244/AB/R, DSR  2004:I, p.  85 
US – Cotton Yarn  Panel Report, United States – Transitional Safeguard Measure on Combed 
Cotton Yarn from Pakistan , WT/DS192/R , adopted 5  November  2001, as 
modified by Appellate Body Report WT/D S192/AB/R, DSR 2001:XII, p.  6067 
US – Countervailing Duty 
Investigation on DRAMS  Appellate Body Report, United States – Countervailing Duty Investigation on 
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/AB/R , adopted 20 July 2005, DSR 2005:XVI, p. 8131  
US – Countervai ling Duty 
Investigation on DRAMS  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 
US – DRAMS  Panel Report, United States – Anti-Dumping Duty on Dynamic Random Access 
Memory Semiconductors (DRAMS) of One Megabit or Above from Korea , 
WT/DS99/R , adopted 19  March  1999, DSR 1999:II, p.  521 
US – Hot-Rolled Steel  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 
US – Hot-Rolled  Steel Panel Report, United States – Anti-Dumping Measures on Certain Hot -Rolled 
Steel Products from Japan , WT/DS184/R , adopted 23  August  2001 modified by 
Appellate Body Report WT/DS184/AB/R, DSR 2001:X, p.  4769 
US – Lamb  Appellate Body Report, United States – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS177/AB/R , WT/DS178/AB/R , adopted 16  May 2001, DSR 2001:IX, 
p. 4051 
US – Lead and Bismuth II  Panel Repor t, United States – Imposition of Countervailing Duties on Certain 
Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the 
United  Kingdom , WT/DS138/R  and Corr.2, adopted 7  June 2000, upheld by 
Appellate Body Report WT/DS138/AB/R, DSR  2000:VI, p.  2623 
US – Offset Act  
(Byrd Amendment)  Panel Report, United States – Continued Dumping and Subsidy Offset Act 
of 2000, WT/DS217/R , WT/DS234/R , adopted 27  January  2003, as modified by 
Appellate Body Report WT/DS217/AB/R, W T/DS234/AB/R, DSR 2003:II, p.  489 
US – Oil Country Tubular 
Goods Sunset Reviews  Appellate Body Report, United States – Sunset Reviews of Anti -Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R , 
adopted 17  December  2004, DSR 2004:VII, p.  3257 
US – Shrimp  Appellate Body Report, United States – Import Prohibition of Certain Shrimp 
and Shrimp Products , WT/DS58/AB/R , adopted 6  November  1998, 
DSR 1998:VII, p.  2755 
US – Shrimp II (Viet Nam)  Panel Report, United States – Anti-Dumping Measures on Certain Shrimp from 
Viet Nam , WT/DS429/R  and Add.1, adopted 22  April 2015, upheld by 
Appellate  Body Report WT/DS429/AB/R, DSR 2015:III, p.  1341 
US – Softwood Lumber IV 
(Article 21.5 – Canada)  Panel Report, United States – Final Countervailing Duty Determination with 
Respect to Certain Softwood Lumber from Canada – Recourse by Canada to 
Article 21.5 [of the DSU] , WT/DS257/RW , adopted 20  December  2005, upheld 
by Appellate Body Report WT/DS257/AB/RW, DSR 2005:XXIII, p.  11401  
US – Softwood Lumber V  Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada , WT/DS264/AB/R , adopted 31  August  2004, 
DSR 2004:V, p.  1875 
US – Softwood Lumber V  Panel Report, United States – Final Dumping Determination on Softwood 
Lumber from Canada , WT/DS264/R , adopted 31  August  2004, as modified by 
Appellate Body Report WT/DS 264/AB/R, DSR 2004:V, p.  1937 
US – Softwood Lumber VI 
(Article 21.5 – Canada)  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 WT/DS538/ R 
BCI deleted, as indicated [[***]]  
- 12 - 
 
  Short Title  Full Case Title and Citation  
US – Steel Safeguards  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 
US – Supercalendered Paper  Panel Report, United States – Countervailing Measures on Supercalendered 
Paper from Canada , WT/DS505/R  and Add.1, adopted 5  March  2020, as upheld 
by Appellate Body Repor t WT/DS505/AB/R  
US – Underwear  Panel Report, United States – Restrictions on Imports of Cotton and Man -made 
Fibre Underwear , WT/DS24/R , adopted 25  February  1997, as modified by 
Appellate Body Report WT/DS24/AB/R, DSR 1997:I, p.  31 
US – Zeroing (EC)  Appellate Body Report, United States – Laws, Regulations and Methodology for 
Calcu lating Dumping Margins ("Zeroing") , WT/DS294/AB/R , adopted 
9 May 2006, and Corr.1, DSR 2006:II, p.  417 
US – Zeroing (EC) 
(Article  21.5 – EC) Appellate Body Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the DSU 
by the European Communities , WT/DS294/AB/RW  and Corr.1, adopted 
11 June 2009, DSR 2009: VII, p.  2911 
US – Zeroing (Japan)  Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/AB/R , adopted 23  January  2007, DSR 2007:I, p.  3 
US – Zeroing (Japan) 
(Article 21.5 – Japan)  Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, p. 3441  
 
 
 
 WT/DS538/ R 
BCI deleted, as indicated [[***]]  
- 13 - 
 
  EXHIBITS REFERRED TO IN THIS REPORT  
Exhibit  Short title Description/Long title  
ARE-1 Notice of final determination 
(2015)  NTC, Notice of final determination and levy of definitive 
antidumping duties on imports of biaxially oriented poly 
propylene film into Pakistan originating in and/or exported 
from the People's  Republic of China, Sultanate of Oman, 
Kingdom of Saudi Arabia and United Arab Emirates 
(9 April 2015)  
ARE-2 Report on final determination 
(2013), public version  NTC, Report on the final determination final determination 
and levy of definitive antidumping duties on imports of 
biaxially oriented poly propylene film into Pakistan orig inating 
in and/or exported from the People's  Republic of China, 
Sultanate of Oman, Kingdom of Saudi Arabia and 
United  Arab Emirates (4  February  2013)  
ARE-3 Notice of conclusion of 
sunset review  NTC, Notice of conclusion of sunset review and continuation 
of anti -dumping duties imposed on dumped imports of 
biaxially oriented polypropylene (BOPP) film imported from 
China, Oman, Kingdom of Saudi Arabia , and  UAE 
(1 December  2016)  
ARE-4 Report on sunset 
determination, public version  NTC, Report on the conclusion of sunset review and 
continuation of anti -dumping duties imposed on dumped 
imports of biaxially oriented polypropylene (BOPP) film 
imported from China, Oman, Kingdom of Saudi Arabia , and 
UAE (28  November  2016)  
ARE-5 Notice of initiation (2012)  NTC, Notice of initiation of anti -dumping investigation against 
alleged dumping of BOPP film originating in and/or exported 
from the People's  Republic of China, Sultanate of Oman, 
Kingdom of Saudi Ara bia and United Arab Emirates 
(23 April 2012)  
ARE-6 NTC's  letter of 27  April 2012 Letter dated 27  April 2012 from NTC to Taghleef requesting 
to add any information to that already provided in 
first questionnaire response  
ARE-8 Taghleef's  letter of 
25 June 2012 Letter dated 25  June 2012 from Taghleef responding to 
NTC's  decision to re -initiate and to use old questionnaire 
response data  
ARE-9 Report on preliminary 
determination  NTC, Report on preliminary determination and levy of 
provisional antidumpin g duties on imports of biaxially 
oriented poly propylene film into Pakistan originating in 
and/or exported from the People's  Republic of China, 
Sultanate of Oman, Kingdom of Saudi Arabia and 
United  Arab Emirates (10  August  2012)  
ARE-10 Notice of final det ermination 
(2013)  NTC, Notice of final determination and levy of definitive 
antidumping duties on imports of biaxially oriented poly 
propylene film into Pakistan originating in and/or exported 
from the People's  Republic of China, Sultanate of Oman, 
Kingdom  of Saudi Arabia and United Arab Emirates 
(7 February  2013)  
ARE-12 Summary of Tri -Pack Films ' 
application for initiation  Tri-Pack Films Limited, Summary of application under the 
Antidumping Duties Ordinance 2000 for initiation of an 
investigation and imposition of antidumping measures for the 
protection of the domestic industry producing biaxially 
oriented polypropylene film against dumped imports of 
biaxially oriented polypropylene film originating in and or 
exported from China, Oman , Saudi Arabia and UAE  
ARE-13 Taghleef's  post-hearing 
submission  Taghleef's  written submission following a hearing held at the 
NTC on 19  November  2012 (29  November  2012)  
ARE-16 (BCI)  Taghleef's  questionnaire 
response  Taghleef's  response to exporter questionnaire  
(7 December  2010)  
ARE-17 Third deficiency letter  Letter dated 22  February  2011 from NTC to Taghleef 
requesting additional information and clarification concerning 
questionnaire response  
ARE-18 Taghleef's  response to third 
deficiency letter, redacted 
version  Letter dated 1  March  2011 from Taghleef responding to the 
NTC's  deficiency letter of 22  February  2011 (redacted 
version)  
ARE-18b (BCI)  Taghleef's  response to third 
deficiency letter  Letter dated 1  March  2011 from Taghleef responding to the 
NTC's  deficiency letter of 22  February  2011 
ARE-18c (BCI)  
(revised)  Taghleef's  response to third 
deficiency letter  Letter dated 1  March  2011 from Taghleef responding to the 
NTC's  deficiency letter of 22  February  2011 (revised)  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
- 14 - 
 
  Exhibit  Short title Description/Long title  
ARE-19 (BCI)  Taghleef's  letter of 
30 November  2012 Letter dated 30 November 2012 from Taghleef to NTC 
regarding dumping calculations and methodology used in 
preliminary determination  
ARE-20 Taghleef's  response to 
second deficiency letter, 
redac ted version  Letter dated 24  January  2011 from Taghleef responding to 
the NTC's  deficiency letter of 17  January  2011 (redacted 
version)  
ARE-20b (BCI)  Taghleef's  response to 
second deficiency letter  Letter dated 24  January  2011 from Taghleef responding to 
NTC's  deficiency letter of 17  January  2011  
ARE-22 (BCI)  Taghleef's  letter of 
31 May 2011 Letter dated 31  May 2011 from Taghleef to NTC on level of 
trade adjustments  
ARE-23 Report on Tri -Pack Films 
verification visit  NTC, Report on -the-spot verification visit to Tri -Pack Films 
Limited (17  January  2011)  
ARE-24b 
(revised)  2009 Tri -Pack Films' Annual 
Report  Tri-Pack Films Limited, Annual Report 2009 (revised)  
ARE-25 Taghleef's  comments on 
statement of essential facts  Taghleef's  comments on statement of essential facts 
(17 January 2013)  
ARE-26 2010 Tri -Pack Films' Annual 
Report (excerpt)  Tri-Pack Films Limited, Annual Report 2010 (excerpt)  
ARE-27 (BCI)  NTC's  explanation of sunset 
methodology  NTC, Explanation of methodology used in determination of 
likely continuation or recurrence of dumping in sunset review 
of anti -dumping duties imposed on dumped imports of 
Biaxially Oriented Polypropylene (BOPP) Film imports from 
China, Oman, Kingdom of Sau di Arabia , and UAE  
ARE-30 Notice of initiation of sunset 
review  NTC, Notice of initiation of sunset review of anti -dumping 
duties levied on dumped imports of BOPP film originating in 
and/or exported from the People's  Republic of China, 
Sultanate of Oman , Kingdom of Saudi Arabia and 
United  Arab Emirates (4  August  2015)  
ARE-31 (BCI)  NTC's  dumping calculations  NTC dumping calculations for Taghleef LLC, Dubai  
ARE-34 (BCI)  Purchase Agreement  Copy of Taghleef LLC and [[***]] Purchase Agreement 2009  
ARE-36 (BCI)/  
PAK-33 (BCI)  Appendix C -3 to Taghleef's  
response to exporter 
questionnaire  Appendix C -3 of Taghleef's  response to exporter 
questionnaire (7  December  2010)  
ARE-40 (BCI)  Taghleef's letter of 
19 December 2012  Letter dated 19 December 2012 from Taghleef to the NTC 
regarding cost of production of the product under 
investigation  
PAK-1 (BCI) 
(revised)  Report on final determination 
(2013)  NTC, Report on final determination and levy of definitive 
antidumping duties on imports of biaxially oriented 
polypropylene film into Pakistan originating in and/or 
exported from the People's  Republic of China, Sultanate of 
Oman, Kingdom of Saudi Arabia and United Arab Emirates 
(4 February 2013)  
PAK-2 (BCI) 
(revised) Report on sunset 
determination  NTC, Conclusion of sunset review and continuation of 
anti-dumping duties imposed on dumped imports of Biaxially 
Oriented Polypropylene (BOPP) Film imported from China, 
Oman, Kingdom of Saudi Arabia , and  UAE 
(28 Novembe r 2016)  
PAK-8 (BCI) 
(revised)  Tri-Pack Films'  letter of 
9 October  2010 Letter dated 9  October  2010 from Tri -Pack Films to the NTC 
concerning additional data for antidumping investigation of 
BOPP film  
PAK-9 Initiation memorandum  Memorandum dated  18 April 2012 from the Antidumping 
Investigation Unit -I to the National Tariff Commission on the 
initiation of an anti -dumping investigation against 
alleged  dumping of BOPP film originating in and/or exported 
from the People's  Republic of China, Sultanate of Oman, 
Kingdom  of Saudi Arabia and United Arab Emirates  
PAK-10 Judgment of Anti -Dumping 
Appellate Tribunal  Anti-Dumping Appellate Tribunal, Pakistan, Appeals Nos. 42, 
43, 46, 47, 48, and 49 (23  January 2015)  
PAK-12A (BCI)  Taghleef's email of 
18 December  2012 Email dated 18  December  2012 from Taghleef to the NTC   
PAK-12B (BCI)  Appendix to Taghleef's email 
of 18 December  2012 Appendix to Taghleef's  email dated 18  December  2012  
PAK-13 (BCI)  Appendix 2 to Taghleef's 
response to exporter 
questionnaire  Appendix 2 to Taghleef's  questionnaire response  
PAK-14 (BCI)  Appendix D -3 to Taghleef's  
response to exporter 
questionnaire  Appendix D -3 to Taghleef's  questionnaire response   WT/DS538/ R 
BCI deleted, as indicated [[***]]  
- 15 - 
 
  Exhibit  Short title Description/Long title  
PAK-18 (BCI) 
(revised)  Second deficiency letter  Letter dated 17  January  2011 from NTC to Taghleef 
requesting additional information and clarification concerning 
questionnaire response  
PAK-22 Judgment of Lahore High 
Court  Lahore High Court,  Case No. W.P. 4735/2016, International 
Business Management, etc. v. Federation of Pakistan, etc.  
PAK-26  Report on final determination 
(2015)  NTC, Report on final determination an levy of definitive 
antidumping duties on imports of biaxially oriented poly 
propylene film into Pakistan originating in and/or exported 
from the People's  Republic of China, Sultanate of Oman, 
Kingdom of Saudi Arabia and United Arab Emirates 
(9 April 2015)  
PAK-27 Ordinance No.  LXV of 2000  The Anti -Dumping Duties Ordinance, 2000, Ordinance 
No. LXV of 2000 (22  December  2000)  
PAK-28 Amendment of the Ordinance 
No. LXV of 2000  Act No. XXIII of 2011, Act to amend The Anti -Dumping Duties 
Ordinance, 2000  
PAK-29 Anti-Dumping Duties Rules  Anti-Dumping Duties Rules, 2001  
PAK-31 Order of Islamabad High 
Court  Order of the Islamabad High Court, W.P. No. 2098 of 2011, 
Metatex Pvt. Ltd. v. N TC  
PAK-37 NTC's blank exporter 
questionnaire  NTC, antidumping questionnaire for exporters/foreign 
producers of BOPP film  
PAK-39 (BCI)  Annexure -XVI, calculations 
of landed cost  Annexure -XVI, calculations of landed cost  
PAK-49 Report on final determination 
(2015), public version  NTC, Report on final determination an levy of definitive 
antidumping duties on imports of biaxially oriented poly 
propylene film into Pakistan originating in and/or exported 
from the People's  Republic of China, Sultanate of Oman, 
Kingdom of Saudi Arabia an d United Arab Emirates 
(9 April 2015)  
PAK-50 Taghleef's response to 
deficiency letter  Letter dated 23  December  2010 from Taghleef to the 
NTC's  deficiency letter of 20  December  2010 
 WT/DS538/ R 
BCI deleted, as indicated [[***]]  
- 16 - 
 
  ABBREVIATIONS USED IN THIS REPORT  
Abbreviation  Description  
Anti-Dumping Agreement  Agreement on Implementation of Article VI of the 
General  Agreement on Tariffs and Trade 1994  
BOPP  biaxially oriented polypropylene  
CIF cost, insurance, freight  
COP cost of production  
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement 
of Disputes  
GAAP  generally accepted accounting principles  
GATT 1994  General Agreement on Tariffs and Trade 1994  
NTC National Tariff Commission  
PKR Pakistani Rupees  
POI period of investigation  
PRAL  Pakistan Revenue Automation Limited  
ROI return on investment  
SG&A  administrative, selling, and general costs  
Taghleef  Taghleef Industries LLC  
Taghleef LLC, Dubai  
Taghleef LLC  
Taghleef Dubai  
Taghleef SAOC  Taghleef Industries SAOC  
Taghleef Industries SAOG  
Taghleef SAOC, Oman  
Taghleef Oman  
Ti Group  Taghleef Industries Group  
Tri-Pack Films  Tri-Pack Films Limited  
 WT/DS538/ R 
BCI deleted, as indicated [[***]]  
- 17 - 
 
  1  INTRODUCTION  
1.1  Consultations  
1.1.  On 24 January  2018, the United Arab Emirates ( UAE) requested consultations with Pakistan  
pursuant to Articles  1 and 4 of the Understanding on Rules and Procedures Governing the Settlement 
of Disputes (DSU) , Article  XXII:1 of the General  Agreement  on Tariffs and Trade 1994 ( GATT  1994), 
and Articles  17.2 and 17.3  of the  Agreement  on Implementation of Article  VI of the  
General  Agreement  on Tariffs and Trade 1994 (Anti -Dumping  Agreement ), with respect to the 
measures and claims set out below.1 
1.2.  Consultations were held on 27 March  2018 but did n ot resolve the dispute . 
1.2  Panel establishment and composition  
1.3.  On 15 May 2018, the United Arab Emirates  requested the establishment of a panel pursuant 
to Article  6 of the DSU , Article  XXIII of the GATT  1994, and Article  17.4 of the 
Anti-Dumping  Agreement , with standard terms of reference.2 Based on this request, in accordance 
with Article  6 of the DSU, the Dispute Settlement Body (DSB) established a panel at its meeting of 
29 October  2018.3 
1.4.  The Panel 's terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by the United Arab Emirates  
in document WT/DS 538/2  and to make such findings as will assist the DSB in making 
the recommendations or in giving the rulings provided for in those agreements.4 
1.5.  On 7 May 2019, the parties agreed that the panel would be composed as follows:  
Chairperson : Ms Luz Elena R eyes de la Torre  
 
Members:   Mr Paul O'Connor  
   Mr Wilhelm Meier  
 
1.6.  Afghanistan, China, the European  Union , Japan, Oman, the Russian Federation, the 
Kingdom  of Saudi Arabia, and the United  States  notified their interest in participating in the Panel 
proceedings as third parties.  
1.3  Panel proceedings  
1.7.  After consultation with the p arties, on 25  September  2019 the Panel adopted  its Working 
Procedures5, Additional Working Procedures on Business Confidential Information6, and timetable.  
The Panel subsequently revised the time table on 5 March  2020, 20  May 2020, and 21 July 2020.   
1.8.  The United Arab Emirates  submitted its first written submission on 18  October  2019, and 
Pakistan submitted its first written submission on 13  December  2019.7 The Panel held its 
first substantive meeting with the parties on 5 and 6  February  2020. A session  with the third parties 
took place on 6 February  2020. Both parties submitted their second written submissions on 
25 March  2020.  
 
1 Request for consultations by the United Arab Emirates, WT/DS538/1 (United Arab Emirates' 
consultations request).  
2 Request for the establishment of a Panel by the United Arab Emirates, WT/DS538/2 
(United  Arab Emirates' panel request).  
3 DSB, Minutes of Me eting held on 29  October  2018, WT/DSB/M/420.  
4 Constitution note of the Panel, WT/DS538/3.  
5 Working Procedures of the Panel (Annex  A-1). 
6 Additional Working Procedures of the Panel on Business Confidential Information (Annex  A-2). 
7 See para.  7.663  below.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
- 18 - 
 
  1.9.  In view of the various restrictions imposed on gatherings and international travel  in relation to 
the COVID -19 pandemic, holding the second substantive meeting in the manner and at the time 
initially envis aged in the time table became imp ossible . Therefore, on 14  April 2020, the Panel 
consulted the parties on the possibilit y of hearing t hem through a written procedure , while reserving 
the possibility of convening a meeting at a later date.8 The parties provided comments on the 
Panel 's proposal on 17  April 2020. The United Arab Emirates  agreed with the proposed course of 
action9, whereas  Pakistan suggested that the Panel delay its decision  and reassess the situation in  
mid-May, taking into account the evolution of restrictions related to the pandemic.10 On 
23 April 2020, the Panel decided to reassess the situation in mid -May and to announce its decision 
to the parties on 20  May 2020.11 
1.10.   As sig nificant restrictions on international travel and meetings as a result of the COVID -19 
pandemic were still in place in mid -May, it became clear that holding the second  meeti ng with the 
parties would not be possible in the near future. To avoid the risk of further delays , the Panel decided  
on 20  May 2020 to hear the parties through a written procedure  in lieu of the second substantive 
meeting. The Panel  reserv ed the possibility to conven e an in-person meeting  at a later date , if it 
consider ed it necessary to effectively discharge its mandate .12 The parties did not object to this 
decision.  The written procedure in lieu of the second substantive meeting took place from 9  June to 
17 July 2020.13 Following the completion of the written pro cedure, on 21 July 2020 the Panel decided  
that an additional in -person meeting  was not necessary  to effectively dischar ge its mandate.14  
1.11.   On 4 September  2020, the Panel issued the descriptive part of its Report to the parties. The 
Panel issued its Interim Report to the parties on  6 November 2020. The Panel issued its Final Report 
to the parties on  14 December  2020. 
2  FACTUAL ASPECTS : THE MEASURES AT ISSUE  
2.1.  On 12  April 2010, Tri -Pack Films Limited (Tri -Pack Films) filed an application with 
Pakistan's  anti-dumping authority, the National Tariff Commission (NTC), to initiate an investigation 
into imports of biaxially  oriented polypropylene (BOPP) film from, among others, the 
United  Arab Emirates .15 On 27 September 2010, the NTC initiated an investigation on the basis of 
that application.16  
2.2.  On 6 July 2011, the Islamabad High Court  ordered the NTC to suspend its investigation.17 
On 6 March 2012, the Islamabad High Court voided the NTC 's 27 September  2010 initiation due to 
a defect in the composition of the NTC . In the same decision , the court held that the NTC " may 
proceed with the complaint pending before [it]" .18 As a result, on 23  April 2012 the NTC initiated a 
second investigation into BOPP film, on the basis of Tri -Pack Films ' 12 April 2010 application .19  
2.3.  The NTC issued the preliminary determination in its second investigation of imports of 
BOPP  film ( i.e. the investigation that was in itiated on 23  April 2012) on 14  August  2012.20 The NTC 
issued the  Notice of final determination in that investigation on 7 February  201321, having set forth 
its findings in a separate report dated 4  February  2013 (Report on final determination of 
 
8 Panel c ommunication to the Parties ( 14 April 2020) (Annex  A-3). 
9 United Arab Emirates ' comments on the Panel 's communication of 14  April 2020.  
10 Pakistan 's comments on the Panel 's communication of 14  April 2020.  
11 Panel c ommunication to the Parties ( 23 April 2020) (Annex  A-4). 
12 Panel c ommunication to the Parties ( 20 May 2020) (Annex  A-5). 
13 Arrangements relating to the second substantive meeting in light of the COVID -19 pandemic 
(Annex  A-6). 
14 Panel c ommunication to the Parties ( 21 July 2020) (Annex  A-7). 
15 Report on final determination (2013), public version, (Exhibit  ARE-2), section  5.1. 
16 Report on final determination (2013), public version, (Exhibit  ARE-2), section  5.2. 
17 Report on final determination (2013), public version, (Exhibit  ARE-2), section  5.2. 
18 Order of Islamabad Hight Court, (Exhibit  PAK-31). See also Pakistan's  response to Panel question 
No. 14; and Report on final determination (2013), public version, (Exhibit  ARE-2), section  5.2. 
19 Notice of initiation (2012), (Exhibit  ARE-5). 
20 Report on final determination (2013), public version, (Exhibit  ARE-2), section  19. The Report on 
preliminary determination is dated 10  August  2012.  (Report on preliminary determination, ( Exhibit  ARE-9)). 
21 Notice of final determination (2013), ( Exhibit  ARE-10). On the date of final determination, see fn  26 
below.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
- 19 - 
 
  4 February  2013) .22 The NTC  found that BOPP film from the United Arab Emirates  was being dumped 
in the Pakistan i market , and imposed definitive anti -dumping duties at the rate of 29.70% for one 
UAE exporter, Taghleef  Industries  LLC (Taghleef) , and 57.09% for all other UAE exporters, with 
effect until 14  August  2015.23 
2.4.  On 23  January  2015, the Anti -Dumping Appellate Tribunal of Pakistan set aside t he final 
determination of 4 February  2013 and "remand [ed]" it to the NTC24, because the mandate of one of 
the members of the NTC had expired at the time th e determination had been adopted.25  
2.5.  On remand, the NTC adopted a final determination on 9  April 2015, which "ratified" its findings 
of 4 February  2013 and the consequent "impos ition of duty"26, at the same rate and with the same 
end date as under the final determination of 4 February  2013.27 The separate report that 
accompanied the final determination of 9  April 2015 (Report on final determination of 9  April 2015) 
also physicall y incorporated, as annex-I, the Report on final determination of 4  February  2013.28  
2.6.  On 4 August  2015,  following the receipt of an application from the domestic industry,  the NTC 
initiated a sunset review of the anti -dumping measures on imports of BOPP film from, among others, 
the United Arab Emirates .29 Subsequently , in the context of proceedings relating to other 
anti-dumping measures,  the Lahore High Court  found that on e member of the NTC did not meet the 
applicable qualification requirements.30 Following that ruling, the NTC also suspended the BOPP 
sunset review  until 5  September  2016.31 The NTC then issued its sunset determination on 
1 December 201632, extending the an ti-dumping duties, at the same rates, for five more years.33 
The NTC had adopted the separate report on this sunset determination on 28  November  2016 
(Report on sunset determination of 28  November  2016).34 
2.7.  As set out below, the United Arab Emirates  challenges  (a) the final determination of 
9 April 2015, which "ratified" the final determination of 4 February  2013 and incorporated the Report 
on final determination of 4  February 2013 ; and (b) the sunset review determination of 
1 December  2016.  
 
22 Report on final determination (2013), ( Exhibit  PAK-1 (BCI)  (revised )); Report on final 
determination  (2013), publ ic version, ( Exhibit  ARE-2). In the proceedings at issue in this dispute, the NTC 
accompanied its notices of final determination with a separate report setting forth its findings in more detail.  
The parties have submitted to the Panel both a public version  and a version containing BCI of the Report on 
final determination (2013). The Panel has considered both the BCI and public  versions of the Report on final 
determination (2013) in making its assessment. However, whenever doing so does not have an impact on  its 
ultimate findings, in its Report the Panel has chosen to refer to the public  version, with the aim of making the 
meaning of the Panel Report as accessible as possible also in its public version.  
23 Notice of final determination (2013) , (Exhibit  ARE-10), pp.  1-2; Report on final determination (2013), 
public version, (Exhibit  ARE-2), pp.  51-52. 
24 Report on final determination (2015), public version, (Exhibit  PAK-49), p.  2; Judgment of the 
Anti-Dumping Appellate Tribunal, (Exhibit  PAK-10). 
25 Judgment of the Anti -Dumping Appellate Tribunal, (Exhibit  PAK-10), paras.  7 and 9.  
26 Report on final determination (2015), public version, (Exhibit  PAK-49), p.  3; Notice of final 
determination (2015), (Exhibit  ARE-1), p.  2. We note that both documents r efer to the earlier final 
determination as being dated 4 February  2013 (i.e.  the date of the Report  on final determination), even though 
we understand that the determination was in fact made public with the notice  of 7 February  2013. This 
difference of thr ee days is not material to the dispute before us. We therefore refer to that determination as 
being dated 4  February  2013.  
27 Notice of final determination (2015), (Exhibit  ARE-1), p.  2. See also para.  2.3 above.  
28 Report on final determination (2015), public version, (Exhibit  PAK-49), p.  3; Pakistan's  response to 
Panel question No.  95, para.  48. 
29 Notice of initiation of sunset review, (Exhibit  ARE-30); Report on sunset determination , public version , 
(Exhibit  ARE-4), para.  3. 
30 Judgment of Lahore High Court, (Exhibit  PAK-22), para.  12. 
31 Report on sunset determination , public version , (Exhibit  ARE-4), paras.  3-4 (referring to Judgment of 
Lahore High Court, (Exhibit  PAK-22), paras.  12 and 14).  
32 Notice of conclusion of sunset review , (Exhibit  ARE-3). 
33 Notice of conclusion of sunset review, (Exhibit  ARE-3), pp.  1-2. 
34 Report on  sunset determination , public version , (Exhibit  ARE-4); Report on sunset determination, 
(Exhibit PAK-2 (BCI) (revised)).  The parties have submitted to the Panel both a public version and a version 
containing BCI of the Report on sunset determination. The Panel has considered both the BCI and public  
versions of the Report on sunset determination in  making its assessment. However, whenever doing so does 
not have an impact on its ultimate findings, in its Report the Panel has chosen to refer to the public  version, 
with the aim of making the meaning of the Panel Report as accessible as possible also in  its public version.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  3  PARTIES ' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
3.1.  The United Arab Emirates  requests that the Panel find that  Pakistan 's final determination of 
9 April 2015, which "ratified"  the final determination of February  2013, is inconsistent with :  
a. Articles  2.1, 2.2, 2.2.1, 2.2.1.1, 2.2.2, 2.4 , 3.1, 3.2, 3.4, 3.5, 5.2, 5.3, 5.8, 5.10, 6.2, 
9.1, 9.3, 11.1 , 12.1 , and 12.2 of the Anti -Dumping  Agreement ; and 
b. as a consequence , Articles  1 and 18.1 of the Anti -Dumping  Agreement , and Articles  VI:1 
and VI:2 of the GATT  1994.  
3.2.  The United  Arab Emirates  further requests the Panel to find that Pakistan 's sunset review 
determination  of 1 December 2016 is inconsistent with : 
a. Articles  11.1, 11.3, 11.4, 12.2 , and 12.3 of the Anti -Dumping  Agreement ; and  
b. as a consequence,  Articles  1 and 18.1 of the Anti -Dumping  Agreement .  
3.3.  The United  Arab Emirates  requests  that, pursuant to Article  19.1 of the DSU, the Panel 
recommend that Pakistan  bring its measures into conformity with its obligations  under the 
Anti-Dumping  Agreement  and the GATT  1994.35 Further, the United Arab Emirates  requests that , 
pursuant to Article  19.1 of the DSU,  the Panel suggest tha t Pakistan "terminate the duties imposed" 
and "refund the  anti-dumping  duties collected ", in order to bring the measures into confor mity with 
its WTO obligations .36  
3.4.  Pakistan  requests that the Panel find that the United Arab Emirate s' claims under Articles  12.1, 
12.2, and 12.3 of the Anti -Dumping  Agreement  are outside the Panel 's terms of reference37, and 
that the Panel reject the United  Arab Emirate s' claims in this dispute in their entirety.38 In the event 
that the Panel finds that the United  Arab Emirates has established any of the claimed inconsistencies, 
Pakistan requests the Panel to reject the United Ara b Emirates' request for suggestions under 
Article  19.1 of the DSU.  
4  ARGUMENTS OF THE PARTIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph  23 of the Working Procedures adopted by the Pan el (see Annexes B -1 
and B -2). 
5  ARGUMENTS OF THE THIRD PARTIES  
5.1.  The arguments of the European  Union , Japan,  and the United  States  are reflected in their 
executive summaries, provided in accordance with paragraph  26 of the Working Procedures adopted 
by the Panel (see Annexes C -1, C-2, and C -3). Afghanistan, China, Oman, the Russian Federation , 
and the Kingdom of Saudi Arabia did not provide the Panel with a third -party submission and did 
not make an oral statement at the third -party session of the first substantive meeting with the Panel.  
6  INTERIM REVIEW  
6.1.  On 18 November 2020, the parties submitted written requests for the review of precise aspects 
of the Interim Report. Neither party requested an interim review meeting. On 30 November 2020, 
the partie s submitted written comments on each other's requests for review. The Panel's discussion 
and disposition of the parties' requests for review are set out in Annex A -8. 
 
35 United Arab Emirates'  first written submission, para.  622. 
36 United Arab Emirates'  first written submission, paras.  623 and 626.  
37 Pakistan's  first written submission, para.  3.729.  
38 Pakistan's  first written submission, para.  4.1. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  7  FINDINGS  
7.1.  This dispute concerns anti -dumping measures that Pakistan has imposed on BOPP film from 
the United Arab Emirates. On 4 February  2013, Pakistan adopted a final determination imposing 
duties on BOPP film from the United Arab Emirates. In January  2015 that de termination was set 
aside. Pakistan then issued, on 9  April 2015, a final determination that "ratified" the determination 
of 4 February  2013, including the imposition of the duties, and incorporated the findings on which 
the determination of 4 February  2013 was based. On 1  December  2016, Pakistan issued a sunset 
determination that extended the duties on BOPP film for five years.39 
7.2.  In the first part of our findings, we review the United Arab Emirates' claims against the final 
determination of 9  April 2015, which ratified the previous determination of 4 February  2013 
(sections  7.1-7.11). 
7.3.  We begin by examining  the United  Arab Emirates' claims under Articles 5.3, 2.1, and 3.1 of the 
Anti-Dumping Agreement, relating to the temporal scope of the evidence that Pakistan relied upon 
(a) to initiate the investigation , (b) to determin e dumping, and (c) to determine injury , respectively . 
These claims relate to the foundation on which the challenged measures were built, and in each 
instance the United  Arab Emirates' arguments centre on the allegation that the evidence, taking into 
accoun t all relevant circumstances, was too remote (sections 7.1-7.3). We exercise judicial economy 
on the United  Arab Emirates' claims under Articles 9.1, 9.3 , and 11.1 relating to the temporal scope 
of the evidence to determine dumping and injury  (sections 7.2.3  and 7.3.4 ).  
7.4.  We then examine the United  Arab Emirates' claims under Articles 2.2, 2.2.1, 2.2.1.1, 2.2 , and 
2.4 of the Anti -Dumping Agreement , relating to Pakistan's choice of cost data to ascertain whether 
sales were in the ordinary course of trade, and Pakistan's rejection of a request for a level of trade 
adjustment (sections 7.4 and 7.5).  
7.5.  Next, we review the United  Arab Emirates' other claims and arguments relating to 
Pakistan's  determination of injury and causati on under Articles 3.1, 3.2, 3.4, and 3.5 
(sections  7.6-7.9).  
7.6.  We then examine whether the United  Arab Emirates has established that Pakistan exceeded 
the time -limits for original investigations under Article 5.10  (section  7.10), or violated parties' due 
process rights under Article 6.2 (section  7.11). 
7.7.  In the second part of ou r findings, we review the claims against the sunset determination of 
1 December  2016 (sections  7.12-7.14). 
7.8.  We examine the United  Arab Emirate s' claims that Pakistan determined that injury was likely 
to continue or recur inconsistently with Article  11.3 (section  7.12), and that Pakistan completed the 
sunset review in more than 12  months in the absence of abnormal circumstances , inconsistently 
with Article  11.4 ( section  7.13). We exercise judicial economy on the United Arab Emirates' claim 
that the sunset review determination was inconsistent with Article 11.1 (section  7.12.5 ). 
7.9.  We also exercise judicial economy  on certain claims brought against the final determination of 
9 April 2015, the sunset determination of 1  December  2016, or both, to the effect that  Pakistan 
acted inconsistently with certain transparency obligations in Article  12 of the 
Anti-Dumping  Agreement  (section  7.14), and that, as a consequence of the ot her claimed  
inconsistencies, Pakistan acted inconsistently with Articles  1 and 18.1 of the 
Anti-Dumping  Agreement , and Articles  VI:1 and VI:2 of the GATT  1994 (section  7.15).  
7.10.   In making our assessment, we have been mindful of the standard of review set forth for us 
in Article  17.6(i) of the Anti -Dumping  Agreement  and Article  11 of the DSU, which provide, 
respectively:  
[I]n its assessment of the facts of the matter, th e panel shall determine whether the 
authorities ' establishment of the facts was proper and whether their evaluation of those 
facts was unbiased and objective. If the establishment of the facts was proper and the 
 
39 Section  2 above.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  evaluation was unbiased and objective, even though the panel might have reached a 
different conclusion, the evaluation shall not be overturned[.]40  
The function of panels is to assist the DSB in discharging its responsibilities under this 
Understanding and the covered agreements. Accordingly, a pan el should make an 
objective assessment of the matter before it, including an objective assessment of the 
facts of the case and the applicability of and conformity with the relevant covered 
agreements, and make such other findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in the covered agreements.41 
7.1  Temporal scope of the evidence underlying initiation:  Articles  5.2, 5.3, and 5.8 of the 
Anti-Dumping  Agreement  
7.11.   Pakistan first initiated an investigation into impo rts of BOPP film from, among others, the 
United  Arab Emirates in September 2010, based on an application filed in April  2010, which 
contained data up to December 2009.42 At the NTC 's request, the applicant filed additional injury 
data on 9 October  2010, covering the period from January to June  2010.43 The Islamabad High Court 
suspended that first investigation in 2011 and terminated it in 2012. In its ruling the court held that 
the NTC could "proceed with the complaint pending before [it]" .44 As a result, on 23  April 2012 the 
NTC initiated a new investigation into BOPP film. It did so on the basis of the data in the original 
application, supplemented by the additional injury data ending in June 2010.45  
7.12.   The United  Arab Emirates argues that Pakistan acted inconsistently with Articles  5.2, 5.3, 
and 5.8 of the Anti -Dumping  Agreement  by initiating an investigation based on data that ended 
about two years earlier, in circumstances that did not justify doing so, and without explaining its 
decision  to initiate based on remote data or acknowledging that the data were remote.46 
7.13.   Pakistan responds that under Article  5.3 even somewhat dated evidence can be sufficiently 
informative of dumping and injury to justify initiation, and that the NTC 's decision t o initiate must 
be viewed in light of the circumstances. In particular, Pakistan argues that a domestic court had 
ordered the NTC to proceed on the basis of the complaint filed in 2010, and that the NTC saved time 
by not changing the temporal scope of the evidence. According to Pakistan, when these 
circumstances are taken into account, the conclusion must be that the evidence was sufficient for 
purposes of Article  5.3.47 Regarding Articles  5.2 and 5.8, Pakistan argues that they "do not address 
the UAE 's concern".48  
7.14.   As set out below, we find that the United  Arab Emirates has established that Pakistan acted 
inconsistently with Article  5.3 of the Anti -Dumping  Agreement , and we exercise judicial economy  on 
the United Arab Emirates ' claims under Articles  5.2 and 5.8.  
7.15.   We structure our discussion as follows:  first, we set out the applicable requirements of 
Article  5.3 (section  7.1.1 ); second, we apply those requirements to the facts of this case to assess 
whether Pakistan acted inconsistently with Article  5.3, and we conclude that it did ( section  7.1.2); 
and last, we explain that we therefore exercise judicial economy  under Articles  5.2 and 5.8 
(section  7.1.3 ).  
 
40 Article  17.6(i) of the Anti -Dumping  Agreement.  
41 Article  11 of the DSU.  
42 Summary of Tri -Pack F ilms' application for initiation , (Exhibit  ARE-12). 
43 Tri-Pack Films'  letter of 9 October  2010, (Exhibit  PAK-8 (BCI) (revised)). See also Pakistan's  response 
to Panel question No.  26. The additional data for January to June 2010, filed on 9  October  2010, w ere limited 
to injury and did not cover dumping.  
44 Order of Islamabad High Court , (Exhibit  PAK-31); Pakistan's  response to Panel question No.  14. 
45 Initiation memorandum , (Exhibit  PAK-9), para.  12; Pakistan's  response to Panel question No.  26. 
46 United Ara b Emirates'  first written submission, section  V.1; opening statement at the first meeting of 
the Panel, section  II; response to Panel question No. 27; second written submission, section  III.1; and opening 
statement in the written procedure replacing the se cond meeting of the Panel (written opening statement ), 
section  II.1. 
47 Pakistan 's first written submission, section  3.2; second written submission, section  2.1; and opening 
statement in the written procedure replacing the second meeting of the Panel (written opening statement ), 
section  2. See also Pakistan's  response to Panel question No.  31. 
48 Pakistan's  second written submission, para.  2.2. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  7.1.1   The applicable requirements of  Article  5.3 
7.16.   The parties ' arguments raise the question whether Article  5.3 imposes requirements on the  
temporal scope  of the evidence on which initiation is based.  
7.17.   We note that Article  5.3 of the Anti -Dumpi ng Agreement  provides that:   
The authorities  shall examine the accuracy and adequacy of the evidence  provided in 
the application to determine whether there is sufficient evidence  to justify the initiation 
of an investigation.49  
7.18.   Article  5.3 thus requires investigating authorities to "determine whether there is sufficient 
evidence to justify the initiation of an investigation" and, in doing so, to " examine  the accuracy and 
adequacy  of the evidence".50  
7.19.   The ordinary meaning of " evidence " includes "[i]nformation (in the form of personal or 
documented testimony or the production of material objects), tending or used to establish facts  in 
a legal investigation".51 Thus, inherent in the very meaning of evidence is its relationship to the facts 
that it tends to establish, i.e. its relevance.52 Information that does not tend to establish the facts 
called for does not fit this definition. The context of Article  5.3 confirms th at evidence must be 
relevant:  Article  5.2, which provides context for the interpretation of Article  5.3, explicitly requires 
the evidence in the application to be "relevant".   
7.20.   Turning to the attributes that the authorities must examine, "accuracy" and "adequacy" are 
"the state or quality" of being "accurate"53 and "adequate"54, respectively. In turn, the ordinary 
meaning of " accurate " includes " exact, precise; conforming exactly with the truth or with a given 
standard; free from error "55, and the ordinary meaning of " adequate" includes "fu lly satisfying what 
is required; quite sufficient, suitable, or accep table in quality or quantity ".56 Thus, the authority must 
examine whether the evidence is exact, precise, and suitable, acceptable.  
7.21.   Further, regarding the requirement that the authorities determine whether the evidence is 
"sufficient  … to justify the initiation of an investigation", we n ote that the ordinary meaning of 
sufficient includes:  "[o]f a quantity, extent, or scope adequate to a certain purpose or object ".57 That 
"purpose or object" is set forth in Article  5.3 itself, i.e. sufficient "to justify the initiation of an 
investigation ".  
 
49 Underlining and italics  added.  
50 We agree in this regard with the statement in the Panel Report, Guatemala – Cement II , para.  8.31 
("[i]t is … the sufficiency of the evidence, and not its adequacy and accuracy per se, which represents the legal 
standard to be applied in the case  of a determination whether to initiate an investigation").  
51 Oxford Dictionaries online, definition of "evidence" 
https://www.oed.com/view/Entry/65368?rsk ey=t5Pija&result=1&isAdvanced=false#eid  (accessed 
12 October  2020), n., meaning 4.a. (emphasis added)  
52 In plain English, "relevant" is "b earing on or connected with the matter in hand ". (Oxford Dictionaries 
online, definition of "relevant" https://www.oed.com/view/Entry/161893?redirectedFrom=relevant#eid  
(accessed 12 October 2020), meaning 2.a).  
53 Oxford Dictionaries online, definition of "accuracy" 
https://www.oed.com/view/Entry/1281?redirectedFrom=accuracy#eid  (accessed 12 October 2020), n., 
meaning 1.  
54 Oxford Dictionaries online, definition of "adequacy" 
https://www.oed.com/view/Entry/2298?redirectedFrom=adequacy#eid  (accessed 12 October 2020), n., 
meaning 1.  
55 Oxford Dictionaries online, definition of "accurate" 
https://www.oed.com/view/Entry/1283?redirectedFrom=accurate#eid  (accessed 12 October 2020), adj., 
meaning 3 ("[e]sp. of information, measurements, or predictions "). 
56 Oxford Dictionaries online, definition of "adequate" 
https://www.oed.com/view/Entry/2299?rskey=KTs110&result=1&isAdvanced=false#eid  (accessed 
12 October  2020), adj., meaning 3.  
57 Oxfor d Dictionaries online, definition of "sufficient" 
https://www.oed.com/view/Entry/193543?redirectedFrom=sufficient#eid  (accessed 12 October 2020), n., 
meaning 1.a.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  7.22.   As to the subject matter  of the necessary evidence, i.e. what that evidence must tend to 
establish58, the text and context of Article  5.3 indicate that Article  5.3 requires sufficient evidence 
of dumping, injury, and a causal link between them, that is , the same elements that must be 
demonstrated to impose anti -dumping measures. We note, first, that Article  5.3 refers to "the 
evidence provided in the application". Article  5.2 requires the application to contain evidence of 
(a) "dumping", for which Article 2, in turn, provides a single definition for the purpose of the 
Anti-Dumping  Agreement59; of (b)  "injury within the meaning of Article  VI of GATT  1994 as 
interpreted by [the Anti -Dumping]  Agreement "; and (c)  a causal link between them. Further, we 
note that the evidence must be sufficient "to justify … initiation", and Article  5 sets forth two bases 
on which an investigation may be initiated. One such way is "upon a written application"60, which 
must include, pursuant to Article  5.2, evidence of dumping,  injury, and a causal link between them; 
the second way is on the investigating authority's  own motion , which, again, requires "sufficient 
evidence of dumping, injury and a causal link, as described in paragraph  2 [of Article  5]".61 These 
textual and conte xtual elements confirm that initiation requires evidence of the same three elements 
as those whose existence must be ascertained in order to impose anti -dumping measures.62  
7.23.   Thus, the difference between the evidence that must sustain a determination and the evidence 
needed for initiation is not one of subject matter but of degree , or, as other panels have described 
it, of "quantity and quality". The " quantity and quality " of the evidence needed to initiate an 
investigation are lesser tha n required to impose anti -dumping measures.63 However, it is still 
evidence of those same elements  that is necessary to justify initiation of an investigation.64 
7.24.   We further note that the context of Article  5.3, provided by other provisions of the 
Anti-Dumping  Agreement  as well as Article  VI of the GATT  1994, indicates that the WTO disciplines 
on anti -dumping set forth a corrective scheme, i.e. one that is meant to remedy a current situation. 
In particular, Article  VI:2 of the GATT  1994 provides that an anti-dumping duty may be imposed 
only " to offset  or prevent dumping".65 Article  11.1 of the Anti -Dumping  Agreement  provides that an 
anti-dumping duty "shall remain in force only as long as and to the extent necessary to counteract  
dumping which is causing injury".66 And Articles  2.1 and 3.5 speak of dumping causing injury in the 
present tense.67 Thus, under the corrective scheme set out in the Anti -Dumping  Agreement  and 
Article  VI of the GATT  1994, anti -dumping measures may only be imposed to counteract current 
dumping causing injury:  the three elements necessary for imposing anti -dumping measures are thus 
current  dumping, current injury, and a causal link between them.68 This, therefore, must also be the 
subject matter of the evidence underlying initiation.  
 
58 See para.  7.19 above.  
59 See also Panel Report, Guatemala – Cement II , para.  8.35. 
60 Article 5.1 of the Anti -Dumping  Agreement.  
61 Article 5.6 of the Anti -Dumping  Agreem ent.  
62 See also Panel Reports, Guatemala – Cement II , para.  8.35; Mexico – Steel Pipes and Tubes , 
para. 7.21; US – Softwood Lumber V , para.  7.77; and Argentina – Poultry Anti -Dumping Duties , para.  7.61.  
63 See also Panel Reports, Guatemala – Cement II , para.  8.35 ("certainty on the existence of all the 
elements necessary in order to adopt a measure is reached gradually as the investigation moves forward"); 
and Mexico – Steel Pipes and Tubes , para.  7.22. 
64 See also Panel Reports, Guatemala – Cement II , paras.  8.35-8.39 and 8.45; Argentina – Poultry 
Anti-Dumping Duties , paras.  7.61 and 7.80; and Mexico – Steel Pipes and Tubes , para.  7.21. The former 
two panels held that in establishing whether there was suff icient evidence of dumping and injury, the 
authorities "cannot entirely disregard the elements that configure" dumping and injury under Articles  2 and 3; 
the latter panel then summarized these findings as being that " the meanings of the concepts of 'dumpin g', 
'injury ' and 'causation ' in Article  5 are the same as those in the relevant substantive provisions of 
the Agreement (i.e.  Article  2 for dumping and Article  3 for injury and causation)". (Panel Reports, Guatemala  – 
Cement II , para.  8.35; Mexico – Steel Pipes and Tubes , para.  7.21).  
Some panels have also described the "type" or "subject matter" of the evidence (as opposed to its 
quantity and quality) as having to be the same. (Panel Report, Mexico – Corn Syrup , para.  7.97; see also Panel 
Report, Guatemala  – Cement  I, para.  7.77 (reversed on procedural grounds)).  
65 Emphasis added. See also Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , 
para. 165 (quoting Article  VI:2 of the GATT  1994).  
66 Emphasis added. See also Panel Report, Mexico – Anti-Dumping Measures on Rice , para.  7.57 
(quoting Article  11.1 of the Anti -Dumping  Agreement).  
67 See also Panel Report, Mexico – Anti-Dumping Measures on Rice , para.  7.57 (referring to Article  3.5 
("[i]t must be demonstrated that the dumped imports are … causin g injury  within the meaning of 
this Agreement" (emphasis original))).  
68 See also Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , para.  165 ("the current 
situation"), there with reference to Article  3.1 of the Anti-Dumping  Agreement.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  7.25.   Information  that does not speak to current  dumping causing injury, therefore, does not relate 
to the required subject matter:  it is thus not "evidence" in the sense of  being relevant to the facts 
to be established69, and it is not "sufficient" in the sense of being "of a … scope adequate " "to justify 
the initiation of an investigation".70  
7.26.   The mere fact that data relate to the past does not, however, mean that they cannot be used 
to establish the existence of current injurious dumping. To the contrary, the data on which initiation 
decisions and preliminary and final determinations are based are necessarily from a past period. 
However, more recent data  are likely to provi de better indications about current dumping causing 
injury, and vice versa .71 This means that all things equal, the more remote the data, the less likely 
it is to speak to current injurious dumping. Since under Article  5.3 an authority must assess "whether  
there is sufficient evidence to justify … initiation", whether and to what extent the data are remote  
for purposes of Article  5.3 should be assessed with reference to the date of initiation . 
7.27.   We are of the view that the relationship in time between the dat a on which initiation is based 
and the date of initiation is not, alone, dispositive of whether the data relate to current  injurious 
dumping. Instead, whether the data relate to current injurious dumping must be assessed taking 
also into account the other relevant circumstances  surrounding the investigating 
authority 's decision .72 This was also the approach taken by panels and the Appellate  Body in 
assessing whether the data relied upon in injury determinations  provide d evidence of the "current 
situation" .73 
7.28.   For example , in Mexico – Anti-Dumping Measures on Rice , the panel and the Appellate  Body 
assessed the temporal gap existing in that case between the end of the injury POI and both initiation 
and final determination i n light of the following circumstances : (a)the POI was that proposed by the 
applicant; ( b) Mexico had not established "that practical problems necessitated this particular 
[POI]"; ( c) Mexico had not argued "that updating the information was not possible"; (d) "no attempt 
was made to update the information"; and ( e) Mexico had provided no reason for not seeking more 
recent information.74 In that case, these factors together with the considerable temporal gap 
between the end of the POI, on the one hand , and initiation and the final determination, on the 
other, led the panel and the Appellate  Body to conclude that the data did not relate to  current 
injury.75 
7.29.   To sum up, therefore, for evidence to be "sufficient evidence to justify the initiation of an 
investigation" under Article  5.3, it must pertain to current  dumping, injury , and causation. The more 
recent the data are at the time of initia tion, the more likely they will be to provide evidence of current 
dumping, injury , and causal link, and vice versa . Whether a temporal gap between the date of 
initiation and the evidence on which initiation is based means that the evidence does not relate to 
current dumping, injury , and causation, must be assessed case by case in light of the relevant 
circumstances.  
 
69 See para.  7.19 above.  
70 See para.  7.21 above.  
71 To the same e ffect, see Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , para.  166. 
At issue in that case was the requirement for "positive evidence" under Article  3.1 of the 
Anti-Dumping  Agreement; however, the Appellate  Body observed that positive evide nce, at a minimum , had to 
be relevant , and it found that evidence that did not relate to the current situation was not relevant . We also 
note that the Recommendation on Periods of Data Collection adopted in 2000, while not a binding instrument, 
is consiste nt with the view that data ending as close as possible to initiation provide the most appropriate basis 
to decide on initiation. (Recommendation concerning the periods of data collection for anti -dumping 
investigations, G/ADP/6, paras.  1(a) and 1(c)).  
72 We note that while accepting that Article  5.3 of the Anti -Dumping  Agreement does discipline the 
temporal scope of the evidence relied upon to initiate, Pakistan emphasizes the importance of considering all 
the relevant circumstances when assessing whether t he authority has complied with Article  5.3. 
(E.g. Pakistan's  second written submission, paras.  2.3-2.18).  
73 Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , paras.  165 and 167; Panel Reports, 
Mexico – Anti-Dumping Measures on Rice , paras.  7.58 and 7.64 -7.65; and Mexico – Steel Pipes and Tubes , 
paras.  7.233 -7.237 . 
74 Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , para.  167; Panel Report, Mexico – 
Anti-Dumping Measures on Rice , para.  7.64.  
75 Panel Report, Mexico – Anti-Dumping Me asures on Rice, para. 7.65; Appellate  Body Report, Mexico – 
Anti-Dumping Measures on Rice,  para. 172. WT/DS538/ R 
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  7.30.   Finally, we note that Article  5.3 also speaks to a different element of the analysis that is 
relevant in the present case, i.e. where the evid ence must be found: in determining whether there 
is sufficient evidence under Article  5.3, must the authority limit itself to the evidence in the 
application? Although Article  5.3 refers to the accuracy and adequacy of the evidence "provided in 
the applica tion", the ultimate question for the authority under Article  5.3 is " whether there is 
sufficient evidence to justify  the initiation of an investigation". As a result of this latter clause, an 
investigating authority is not precluded from taking into accoun t additional information submitted 
by the applicant upon the authority 's request  to ensure that "there is sufficient evidence to justify 
the initiation" .76 
7.1.2   Whether Pakistan acted inconsistently with Article  5.3 
7.31.   In this section, we apply the standard set ou t above to the facts of the case. We first identify 
the body of evidence that is relevant to the assessment under Article  5.3 (section  7.1.2.1 ); we then 
assess whether the NTC acted inconsistently with this provision by initiating the investigation on the 
basis of that body of evidence , and we conclude that it did (section  7.1.2.2 ). 
7.1.2.1   The relevant body of evidence:  whether the NTC was entitled to consider evidence 
not contained in the application  
7.32.   A first point of disagreement between the parties is whether, for purposes of Article  5.3, the 
NTC had to limit itself to the data c ontained in the application, which went from January 2007 
to December 2009, or whether it was proper for the NTC  to also consider the additional injury data 
filed by the applicant on 9  October  2010, which covered six more months, up to June 2010.77  
7.33.   The Un ited Arab Emirates submits that since Article  5.3 refers to "the evidence provided in 
the application", the authority could not rely on evidence external to the application to comply with 
Article  5.3, and therefore the Panel cannot take into account the ad ditional data in assessing whether 
the NTC acted consistently with Article  5.3.78  
7.34.   As just set out at paragraph  7.30 above, the ultimate question under Article  5.3 is whether 
"there is sufficient evidence " to justify  the initiation of an investigation. On this basis, we consider 
that the NTC was not preclude d from taking into account additional information submitted by the 
applicant upon the NTC 's request. The NTC was therefore entitled to rely on the additional injury 
data covering the first half of 2010 when reviewing the evidence for purposes of Article  5.3.  
7.1.2.2   Whether the NTC properly determined that the evidence was sufficient  
7.35.   We now turn to the central question under Article  5.3, i.e. whether an unbiased and objective 
investigating authority, looking at the facts before it, could have determined that the data ending 
in December 2009 (for dumping) and June 2010 (for injury), in light of all relevant circumstances, 
were "suffici ent evidence to justify the initiation of an investigation" on 23  April 2012. Specifically, 
as set out in section  7.1.1  above, if in light of all relevant circumstanc es the data could not be said 
to relate to "current" dumping, injury , and causation, then the authority could not have determined 
that there was sufficient evidence to justify initiation within the meaning of Article  5.3.  
7.36.   To make our assessment, we consid er, first, the temporal gap between the data, on the one 
hand, and the date of initiation, on the other; and second, the relevant circumstances surrounding 
the authority 's determination that there was sufficient evidence to justify initiation.  
7.37.   We begin wit h the temporal gap  between the data and initiation:  for dumping, this was more 
than 27 months; for injury, the gap was almost 22 months. While the temporal gap alone is not 
enough to conclude that the data did not provide evidence of current dumping causin g injury, these 
gaps are quite considerable, ranging from slightly less to slightly more than two full years.  
 
76 Article 5.3 of the Anti -Dumping  Agreement (emphasis added). See also e.g. Panel Report, 
US – Softwood Lumber V , para.  7.76. 
77 See para.  7.11 above.  
78 United Arab Emirates ' second written submission, paras.  26 and 43.  WT/DS538/ R 
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  7.38.   We turn to the circumstances  surrounding the NTC 's examination that, according to the 
parties, are relevant to our assessment.  
7.39.   First, Pakistan ar gues that under domestic law, the court order directing the NTC to initiate 
the investigation obligated the NTC to proceed on the basis of the original application.79 According 
to Pakistan, this is a "practical constraint[]" that must be taken into account  as a factual matter 
when assessing the NTC 's conduct under Article  5.3.80 The United  Arab Emirates disagrees that this 
is a relevant fact, because a Member may not invoke domestic law to justify a failure to comply with  
its obligations under the WTO  agree ments. The United Arab Emirates also disputes 
Pakistan 's interpretation of the Pakistani court order.81 
7.40.   A Member  is responsible for the acts of all  of its organs, including the judiciary.82 Therefore, 
whether the NTC was abiding by the instructions of a Pa kistani court or acting in its own discretion 
does not affect the scope of Pakistan 's obligations under Article  5.3 of the 
Anti-Dumping  Agreement .83  
7.41.   Second, Pakistan argues that because a gap of almost two years between the end of the POI 
and a final determination  "would be quite normal"84, such a gap "must, in principle, be accep table for 
purposes of the initiation decision".85 The United Arab Emirates considers this "absurd", and points 
out that it is "precisely because" there is a gap between initia tion and final determination that the 
information on which initiation is based needs to be sufficiently recent .86 
7.42.   It is true that an investigation takes time, leading to a gap between the end of the POI and 
the date of final determination . This, however, d oes not suggest that it is necessarily appropriate to 
initiate an investigation on the basis of evidence that is already remote at the time of initiation.  
7.43.   The two factors invoked by Pakistan, therefore, do not explain the NTC 's assessment, in 
April 2012, t hat evidence ending in December 2009 and June 2010 was "sufficient evidence to justify 
the initiation of an investigation", within the meaning of Article  5.3. 
7.44.   The United Arab Emirates, for its part, asks us to take into account that the NTC did not give 
any consideration in its Initiation memorandum or other record documents to the temporal gap 
between the data and initiation, let alone explain why the data nonetheless constituted sufficient 
evidence to justify initiation or why it did not seek more recent evidence.87  
 
79 Pakistan's  first written submission, paras.  3.68-3.69; second written submission,  paras.  2.3 and 2.14.  
80 Pakistan's  second written submission, para.  2.14. 
81 United Arab Emirates'  second written submission, paras.  48-51; Pakistan's  second written submission, 
paras.  2.14-2.17.  
82 See e.g. Appellate  Body Reports, US – Shrimp , para.  173; US – Zeroing (Japan) (Article 21.5 – 
Japan) , para. 182; Panel Report, Brazil – Tyres , para. 7.305; Anti -Dumping Agreement, Article 18.4; and 
WTO Agreement, Article XVI:4. A similar question has been treated in the same way by other international 
tribunals.  See e.g. International Court of Justice, Advisory Opinion of 29 April 1999, Differences Relating to 
Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights  (1999), para.  62. 
83 We also note that, as the Panel pointed out during the first substantive meeting, there are 
inconsistencies in Pakistan's  argument regarding compliance with the Pakistani court order:  Pakistan argues 
that the NTC was obligated by the court order to procee d on the basis of the application received, but in fact it 
included six additional months in its assessment, which contradicts Pakistan's  argument that it could not rely 
on updated evidence. ( Summary of Tri -Pack Films' application for initiation , (Exhibit ARE-12), p. 2; Order of 
Islamabad High Court, (Exhibit PAK -31); Initiation memorandum , (Exhibit PAK -9), section 12; and 
Pakistan's  response to Panel question No.  29). 
84 Pakistan's  first written submission, para.  3.63.  
85 Pakistan's  first written submission , para.  3.65; second written submission, para.  2.3. 
86 United Arab Emirates'  second written submission, para.  46. 
87 See e.g. United Arab Emirates'  second written submission, para.  26. Pakistan admits that "[a] t the 
time of re -initiation, there is no explici t mention in the investigation record or in the NTC 's pronouncements of 
the temporal aspect of the evidence ". (Pakistan's  response to Panel question No.  30). WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  7.45.   We note that the NTC did not discuss or acknowledge the issue of the temporal scope of the 
evidence in its Initiation memorandum (including when referring to the court order that Pakistan 
relies on in its arguments before us88) or in any other  record document before us.89  
7.46.   The fact that the NTC does not appear to have considered the question of the temporal scope 
of the data, despite the fact that they  were two years old at the time of initiation, leads us to conclude 
that the NTC did not fulfi l its obligation to determine that there was "sufficient evidence" for purposes 
of Article  5.3. The NTC gave no reasons for not updating the evidence and made no apparent attempt 
to do so. According to Pakistan, it failed to do so because a court order dir ected it to rely on the data 
in the original application. No such explanation, however, is discernible from the record90 and in any 
case, as we discuss above, this  order did not relieve Pakistan of its obligation to abide by its 
commitments under the Anti -Dumping  Agreement .91 
7.47.   We also recall the circumstances that, in Mexico – Anti-Dumping Measures on Rice , 
contributed to the conclusion that the authority did not base its injury determination on evidence of 
"current" injury.92 We agree that those are relevant circumstances, and we note the similar ities with 
the circumstances surrounding the NTC 's determination that there was sufficient evidence to justify 
initiation : in 2012 the NTC did not demand more recent evidence, did not e xplain its choice, and 
largely relied on the data period proposed by the applicant, and Pakistan has not demonstrated that 
it was not possible to seek more recent evi dence.  
7.48.   Therefore, when we consider both the temporal gap of approximately two  years betwe en the 
data underlying initiation and initiation itself, and the circumstances surrounding the 
authority 's determination that the data were sufficient, we find that the NTC could not have 
determined that the data underlying initiation pertained to current  dumping causing injury. 
Therefore, the NTC acted inconsistently with Article  5.3 by failing to assure itself that there was 
sufficient evidence to justify initiation of an investigation.  
7.1.3   Judicial economy  under Articles  5.2 and 5.8  
7.49.   A panel may ex ercise judicial economy , and thus decline to review  one or more claims , if 
three conditions are met , namely  (a) having already found that the same measure  (b) is inconsistent  
with one or more provisions of the covered agreements  and, further, that (c) findings under the 
additional claims are not necessary to resolve the dispute .93 
7.50.   In this case, the United  Arab Emirates ' Articles  5.2 and 5.8 claims challenge the same 
measure as its Article  5.3 claim, and indeed the same aspect of that measure. The 
United  Arab Emirates argues that the evidence underlying initiation was around two years old at the 
time of initiation , and yet the NTC did not even consider the question of the temporal scope of the 
evidence. Having already found that, for those reasons, Pakist an acted inconsistently with 
Article  5.3, we exercise judicial economy  on the United Arab Emirates ' claims under Articles  5.2 
and 5.8.  
7.2  Temporal scope of the evidence underlying the determination of dumping:  
Articles  2.1, 9.1, 9.3, and 11.1 of the Anti -Dum ping Agreement  
7.51.   When initiating the investigation on 23  April 2012, the NTC selected January  2009 to 
June 2010 as the period of investigation (POI) for dumping . On 4 February  2013, the NTC  made its 
final determination of dumping on the basis of the data for  this POI.94 
 
88 See para.  7.39 above.  
89 Initiation memorandum , (Exhibit  PAK-9); Pakistan's  response to Panel question No.  28. See also 
Report on preliminary determination , (Exhibit  ARE-9); and Report on final determination (2013 ), 
(Exhibit  PAK-1 (BCI)) , which also entirely fail to discuss the temporal scope of the evidence underlying 
initiation.  
90 Even when the Initiation memorandum refers to the court order in question, it does not mention the 
issue of the temporal scope of the evidence. (Initiation m emorandum, (Exhibit  PAK-9), paras.  2.2-2.3). 
91 See para.  7.40 above.  
92 See para.  7.28 above.  
93 See e.g. Appellate  Body Report, Canada – Wheat Exports and Grain Imports , para.  133. 
94 Report on final determination (2013), (Exhibit  PAK-1 (BCI) ), para.  13.3. WT/DS538/ R 
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  7.52.   The United  Arab Emirates argues that in so doing, the NTC acted inconsistently with 
Articles  2.1, 9.1, 9.3, and 11.1 of the Anti -Dumping  Agreement , because of the following, taken 
together: the temporal gap between the end of the POI, on the o ne hand, and the date s of initiation 
and of final determination, on the other hand ; and  other relevant factors, such as the fact that the 
NTC failed to explain its choice and made no attempt at updating the evidence.95  
7.53.   Pakistan responds that Articles  9.1, 9.3, and 11.1 do not discipline the choice of POI.96 As 
regards Article  2.1, Pakistan accepts that it can be read as requiring that "a determination of 
dumping be based on data that bears a sufficiently proximate temporal link to the time of 
determination", but argues that when the circumstances surrounding the NTC 's selection of the POI 
are taken into account, it becomes apparent that the NTC did not act inconsistently with Article  2.1.97 
7.54.   As set out below, we find that the United Arab Emirates has established that Pakistan 
has acted inconsistently with Article  2.1, and we exercise judicial economy on the 
United  Arab Emirates ' claims under Articles  9.1, 9.3 , and 11.1.  
7.55.   We structure our discussion as follows:  (a) we set out the applicable requirements of 
Article  2.1 (section  7.2.1 ); (b)  we apply that standard to the facts of this case to assess whether 
Pakistan acted inconsistently with Article  2.1, and we conclude that it did ( section  7.2.2); and (c) we 
exercise judicial economy under Articles 9.1, 9.3, and 11.1 (section 7.2.3 ).  
7.2.1   The applicable requirements of Article  2.1 
7.56.   Article  2.1 of the Anti -Dumping  Agreement  provides that:   
For the purpose of this  Agreement , a product is to be considered  as being dumped  … if 
the export price … is less than the comparable price … for the like product when destined 
for consumption in the exporting country.98 
7.57.   Article  2.1 defines dumping in the present tense:  "a product is to be considered as being 
dumped  … if the export price … is less than …".99 In other words, under this definition, dumping is a 
present occurrence. Turning to the context of Article  2.1, we note that Article  VI:2 of the GATT  1994 
and Article  11.1 of the Anti -Dumping  Agreement  provide, respectively, that anti -dumpin g measures 
may be imposed to "offset" or "counteract" dumping causing injury. As  we have discussed above 
(paragraph 7.29) and as has been  observed in past disputes, these provisions make it clear that the 
WTO disciplines on anti -dumping set forth a corrective scheme that is concerned with a current 
situation100, confirming the reading of Article  2.1 as defining dumping in the present.  
7.58.   Article  2.1 has sometimes been regarded as merely definitional, i.e. as not itself imposing 
obligations.101 However, the text of this provision evidences that the definition it sets out is directed 
at an authority 's determination. Article  2.1 uses the wording "a product is to be considered  as being 
dumped"102: the entity that "considers" whether a product is being dumped is the investigating 
 
95 United Arab Emirates'  first written submission, paras.  123-135 and 137 -139; opening statement at 
the first meeting of the Panel , section  III; response to Panel question No.  35; second written submission, 
section  III.2; and written opening statement, section  II.2. In setting fo rth its arguments, the 
United  Arab Emirates does not clearly distinguish its claims relating to the dumping POI from those relating to 
the injury POI. Some of these claims relate only to the dumping POI (Articles  2.1 and 9.3) or the injury POI 
(Article  3), but others may relate to both (Articles  9.1 and 11.1). In this section, we limit our consideration of 
the United Arab Emirates'  claims to the dumping POI. We address the injury POI separately, in section  7.3 
below.  
96 Pakistan's  first written submission, paras.  3.95 (for Articles  9.1 and 9.3) and 3.96 -3.97 (for 
Article  11.1); second written submission, section  2.2; and written opening statement, para.  21. 
97 Pakistan's  responses to Panel question Nos.  32-33; second written submission, paras.  2.24-2.31. 
98 Emphasis added.  
99 Emphasis added.  
100 Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , para.  165; Panel Report, Mexico – 
Anti-Dumping Measures on Rice , para.  7.58. See also para. 7.24 above.  
101 Appellate  Body Report, US – Zeroing (Japan) , para.  140; Panel Report, Ukraine – Ammonium Nitrat e, 
para. 7.120.  
102 Emphasis added.  WT/DS538/ R 
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  authority, and ultimately the Member imposing anti -dumping measures. We therefore consider that 
Members are bound by the definition that Article  2.1 sets out.  
7.59.   Therefore, wit h reference to the specific interpretive question raised by the 
United  Arab Emirates ' claim, we consider that to act consistently with Article  2.1 a 
Member 's determination of dumping must pertain to current dumping. Whether this is the case will 
depend, fi rst, on the temporal scope of the evidence relative to the dates of initiation and final 
determination. In this regard, as we found above in respect of the data underlying initiation, we 
agree that the more recent the data, the more likely it is to be rele vant to the current situation, and 
vice versa .103 Second, we are of the view that temporal scope is not, alone, dispositive, and that 
therefore we must assess the authority 's choice of the POI for dumping in light of  all the relevant 
circumstances surroundi ng the authority 's decision at the time . In this regard, we consider that 
depending on the facts of each case, circumstances such as those taken into account in assessing 
the temporal scope of the evidence of injury in Mexico – Anti-Dumping Measures on Rice  are also 
relevant to the requirements o f Article 2.1.  
7.60.   Both parties to the case before us take the view that, in the words of Pakistan, Article  2.1 
"can be read as requiring that a determination of dumping be based on data that bears a sufficiently 
proximate temporal link to the time of determin ation".104 Both parties also agree that whether the 
data relied upon by an authority bear this sufficiently proximate temporal link – i.e. relates to current 
dumping – depends not just on the temporal scope of the evidence , in itself , but also on all the 
attendant circumstances, as also set forth in Mexico – Anti-Dumping Measures on Rice  with 
reference, there, to the determination of injury under Article  3.1.105 
7.2.2   Whether Pakistan acted inconsistently with Article  2.1 
7.61.   There are two points of contention between the parties under Article  2.1, and we discuss each 
of these below:  first, what is the relevant date of final determination against which the temporal 
scope of the evidence must be assessed; and second, whether Pakistan acted inconsistently with 
Article  2.1 by determining dumping on the basis of a POI ending in June  2010, taking into account 
all relevant circumstances.  We discuss these in turn.  
7.2.2.1   The relevant date of final determination  
7.62.   To assess whether the evidence on which the determination is based relates  to current 
dumping, we consider, among other  element s, the temporal scope of that evidence relative  to the 
date of final determination.106 That is, how remote was the evidence from the date the final 
determination was made? In the case before us, the parti es disagree as to the relevant date of final 
determination, and we address that disagreement here.  
7.63.   To recall, in the investigation initiated on 23  April 2012, which is at issue here, the NTC first 
adopted  a final determination on 4 February  2013.107 A Pakistani court subsequently set aside that 
final determination due to a defect in the composition of the NTC and, on remand, the NTC adopted 
a formally distinct but substantively identical final determination on 9 April 2015, which "ratified" 
the findi ngs of February 2013 and continued the anti -dumping measures at the rates and for the 
time provided for in the February 2013 determination.108  
 
103 See also Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , para.  166; and 
Panel  Reports, Mexico – Anti-Dumping Measures on Rice , para.  7.58; Mexico – Steel Pipes and Tubes , 
para. 7.228 . 
104 Pakistan's  response  to Panel question No.  33; see also  ibid. No.  32. According to the 
United  Arab Emirates, a Member that fails to base its determination on evidence that speaks to current injury 
acts inconsistently with Article  2.1 because it fails "to make a proper finding  of the product 'being dumped'". 
(United  Arab Emirates'  second written submission, para.  59). 
105 See e.g. Pakistan's  responses to Panel question Nos.  32-33; and 
United  Arab Emirates'  second  written submission, para.  58. 
106 See para.  7.59 above.  
107 See para. 2.3 above.  
108 See paras.  2.4-2.5 above.  WT/DS538/ R 
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  7.64.   According to the United Arab Emirates, the relevant date of final determination to assess the 
temporal scope of t he evidence is 9 April 2015109, whereas, according to Pakistan, it is 
4 February  2013.110 The United Arab Emirates emphasize d that the final determination of 
February  2013 was set aside, and that the final determination of 9 April 2015 was a fresh start  and 
only imposed duties with prospective effect.111 Pakistan, on the other hand, pointed out  that the 
determination of 9 April 2015 was based on the findings set out in the determination of 
February  2013 and merely "ratified" that previous decision.112 
7.65.   The final  determination of April 2015 formally replaced the final determination of 2013, and 
indeed the United Arab Emirates ' claims are directed at the determination of April 2015 as the 
measure at issue. The question before us under Article  2.1, however, is wheth er the POI selected 
by the NTC for purposes of its determination of dumping pertained to current dumping. In our view, 
this must be assessed with reference to the time at which the NTC actually made that determination, 
i.e. February 2013 , when the NTC adop ted the final determination in the original investigation. The 
fact that because of a  ministerial defect under domestic law a new determination had to be adopted 
in April 2015 does not change this assessment:  the final determination of April 2015 merely "ratified" 
the determination of February  2013, incorporating all of its analysis and findings and providing for 
anti-dumping duties at the same rate and until the same time as set forth in the February  2013 
determination.113 It does not, therefore, c hange the point of reference for the assessment of the 
temporal scope of the POI. 
7.66.   Therefore, we consider that the date of final determination that is relevant to our assessment 
of the temporal scope of the evidence under Article  2.1 is 4 February  2013.114 
7.2.2.2   Whether the NTC failed to determine current dumping  
7.67.   We now turn to whether the NTC acted inconsistently with Article  2.1 by determining dumping 
on the basis of data that did not pertain to current dumping. To answer this question, we begin by 
considering th e temporal scope of the POI relative  to the dates of initiation and final determination. 
In this case, the POI for dumping ran from January 2009 to June 2010. There was thus a temporal 
gap of approximately 22 months between the end of that POI and initiati on (23  April 2012), and a 
gap of 31 months between the end of the POI and the final determination o n 4 February  2013.  
7.68.   To assess whether data for such a POI were evidence of current dumping, we next turn to the 
other factors  surrounding the authority 's selection of the POI.  
7.69.   First, Pakistan asks the Panel to take into account that a domestic court order directed the 
NTC to proceed with the complaint before it, which, according to Pakistan, meant it could not change 
the temporal scope of the evidence.115 However, as we have already noted, a WTO Member  is 
responsible for the WTO -consistency of the acts of all  of its organs, including the judiciary, and 
therefore whether the NTC was abiding by the instructions of a Pakistani court or acting in it s own 
discretion does not change our assessment under the Anti -Dumping  Agreement .116 Moreover, the 
argument is even more difficult to follow when one considers that the court order now invoked by 
Pakistan referred to proceeding "with the complaint before [the NTC]", whereas Pakistan invokes it 
 
109 See e.g. United Arab Emirates'  first written submission, para.  121; responses to Pane l question 
Nos. 23-25, paras.  17-20 and 22 -27; and second written submission, paras.  57 and 81 -87. The 
United  Arab Emirates argues, in the alternative, that there is an inconsistency also if the relevant date of 
final determination is February  2013. (Unite d Arab Emirates'  second written submission, para.  57). 
110 See e.g. Pakistan's  first written submission, para.  2.14;  responses to Panel question Nos.  23 and 25. 
See also Pakistan's  first written submission, paras.  3.106 -3.108; and second  written  submission, para. 2.35, in 
the context of Pakistan's  arguments under Article  5.10. 
111 See e.g. United Arab Emirates'  first written submission, para.  121; and responses to Panel question 
Nos. 23-25, paras.  17-20 and 22 -27. See also para. 7.516  below.  
112 See e.g. Pakistan's response to Panel question No. 23 (referring to Notice of final determination 
(2015) , (Exhibit ARE -1)). 
113 See para. 2.5 above.  
114 Concerning the exact date, we recall that the although the Notice of final determination was issued 
on 7 February  2013, record documents refer to the dat e of adoption of the Report on final determination, 
i.e. 4 February  2013, as the date of final determination. (See fn 26 above). This three days'  difference does not  
have an impact on  our assessment of the temporal scope of the evidence underlying the determination.  
115 Pakistan's  second written submission, paras.  2.26-2.27; response to Panel question No.  28. 
116 See para. 7.40 above.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  to explain  its use of the POI selected  in a first, interrupted investigation, which was not identical117 
to the period covered in the "complaint" in question.  
7.70.   Second, Pakistan argues that maintaining the POI first selected in 2010 allowed the NTC to 
complete the investigation faster, in little more th an nine months118, which also limited the ultimate 
temporal gap between the end of the POI and the final determination.119 The United  Arab Emirates 
responds that this is not a pertinent consideration. Among the third parties, the United  States  too 
takes the view that expediency is not a pertinent consideration, and that the authority must select 
a POI as close as possible to the date of initiation.120  
7.71.   We disagree with Pakistan 's argument. Pursuant to Article  2.1, it is incumbent upon an 
authority to ascertain  the existence of current dumping. The selection of a POI that was almost 
two years old already at the time of initiation cannot be explained by the fact that the investigating 
authority already had on file data relating to that POI, and could therefore sa ve some time in its 
investigation. Moreover, even with the purported "time saving"121, the overall gap between the end 
of the POI and the date of final determination was two years and seven months.  
7.72.   Third, we turn to the factors that the United Arab Emirates  has asked us to take into account. 
The United  Arab Emirates argues that, similar to Mexico – Anti-Dumping Measures on Rice , "(i) the 
selected POI was essentially what was proposed by the applicant; (ii)  the NTC did not establish that 
practical problems ne cessitated this particular POI; (iii)  the NTC never established that updating the 
information was not possible; (iv)  the NTC made no attempt at updating the information although 
there was no lack of cooperation from interested parties; and (v)  the NTC prov ided no reason why 
it was not seeking more recent information. "122 As we have noted above, we agree that these factors 
are relevant to an assessment under Article 2.1.  
7.73.   As regards the allegation that the POI was that proposed by the applicant, Pakistan responds 
that the NTC added six months to the proposed POI, namely January to June  2010. However, we 
note that the dumping POI still encompassed the full year proposed by the applicant  (2009), only 
with the addition of six more months – despite th e fact that by the time of initiation in April  2012, 
two more calendar years had elapsed.  
7.74.   Further, the NTC did not establish  that practical problems necessitated this particular POI and 
that it was not possible to update the data, and provided no reason fo r not seeking more recent 
information. The NTC did not discuss the remoteness of the POI in its Initiation memorandum 
of 2012, in its provisional and final determinations of  2012 and  2013, or elsewhere in the record123, 
even though Taghleef directly raised the matter in various submissions to the NTC.124 The NTC did 
cite the court order that now Pakistan describes as barring it from updating the evidence125; 
however, in doing so, the NTC does not appear to have acknowledged the issue of the temporal gap 
betwee n the end of the POI and initiation, nor to have explained that the court order in question 
required it to rely on the previously selected POI.126  
7.75.   Similarly, the NTC does not appear to have made any attempt to update the evidence. 
Pakistan points out that,  in April  2012, the NTC gave parties the opportunity to "add some 
information to the data already provided" in response to the questionnaires sent in  2010.127 
 
117 See fn  83 above.  
118 Pakistan's  first written submission, paras.  3.89-3.90; second written submission, para.  2.28. 
119 Pakistan's  first written submission, para.  3.90; response to Panel question No.  28. Pakistan explains 
that this was not a consideration that motivated the NTC's  choice when initiating the investigation in  2012 but 
that the Panel should, in its asse ssment, take into account the time saved by not updating the POI. 
(Pakistan's  response to Panel question No.  28). 
120 United  States'  response to Panel question No.  1. The other third parties, while referring to a relevant 
prior WTO dispute, did not ultimately take a stance on the substance of the Panel's  question.  
121 Pakistan's  response to Panel question No.  28. 
122 United Arab Emirates'  second written submission, para.  58 (referring to United Arab Emirates'  first 
written submission, paras.  127-133).  
123 Pakistan's  response to Panel question No. 30; Initiation memorandum, ( Exhibit  PAK-9); Report on 
preliminary determination , (Exhibit  ARE-9); and Report on final determination  (2013) , (Exhibit  PAK-1 (BCI)) . 
124 Taghleef 's letter of 25 June 2012, (Exhibit  ARE-8), pp.  1-2; Taghleef 's post-hearing submission , 
(Exhibit  ARE-13), p.  6. 
125 Initiation memorandum , (Exhibit  PAK-9), sections 2 and 12.  
126 Initiation memorandum , (Exhibit  PAK-9), sections 2 and 12. Moreover, see fn  83 above.  
127 NTC's letter of 27  April 2012, (Exhibit  ARE-6); Pakistan's  response to Panel question No.  30. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  However, the NTC had already defined the dumping POI as January  2009 to June  2010128, and this 
opportunity for parties to "add some information" would not even necessarily be understood as 
allowing the submission of data postdating the POI.  
7.76.   To sum up, therefore, the NTC relied on a dumping POI that was almost two  years old by the 
time of initiation and  two years and seven  months old by the time of the final determination, it made 
no attempt to update it and, during the proceedings, it provided no discussion whatsoever of this 
choice. For these reasons, we find that in making its determination of dumping , the NTC failed to 
ascertain the existence of current dumping, as required by Article  2.1. 
7.2.2.3   Conclusion under Article  2.1 
7.77.   We therefore conclude that Pakistan 's final determination was inconsistent with Article  2.1 of 
the Anti -Dumping  Agreement .  
7.2.3   Judicial ec onomy  under Articles  9.1, 9.3, and 11.1  
7.78.   We refer to paragraph  7.49 above, on the conditions under which a panel may ex ercise judicial 
economy . 
7.79.   In this case, the United Arab Emirates'  claims under Articles  9.1, 9.3, and 11.1 are directed 
at the same measure as the claim under Article  2.1, and indeed at the same aspect of that measure, 
i.e. the selection of the dumping POI.129 Having already found that Pakistan acted inconsistently with 
Article  2.1 because of the selection of the dumping POI, we exercise judicial economy  on the 
United  Arab Emirates'  claims under Ar ticles 9.1, 9.3, and 11.1.   
7.3  Temporal scope of the evidence underlying the determination of injury:  Articles  3.1, 
3.2, 3.4, 3.5, 9.1, and 11.1 of the Anti -Dumping  Agreement  
7.80.   When initiating the investigation on 23  April 2012, the NTC selected January  2007 to  
June 2010 as the POI for injury, and made its final determination of injury on the basis of evidence 
for this POI.130 
7.81.   The United  Arab Emirates argues that in so doing, the NTC acted inconsistently with 
Articles  3.1, 3.2, 3.4, 3.5, 9.1, and 11.1 of the Anti -Dumping  Agreement , because of the temporal 
gap between the end of the POI, on the one hand, and the date s of initiation and of final 
determination, on the other hand, together with other relevant factors, such as the fact that the NTC 
failed to explain it s choice and made no attempt at updating the evidence.131  
7.82.   Pakistan responds that, as made clear in Mexico – Anti-Dumping Measures on Rice , a temporal 
gap alone does not give rise to an inconsistency. Instead, other relevant factors must be considered ; 
and, when the relevant factors are considered in this case, the conclusion must be that there is no 
inconsistency with Article  3.1 and, consequently, no inconsistency with Articles  3.2, 3.4, and 3.5.132 
7.83.   As set out below, we find that the United  Arab Emirates has established that Pakistan acted 
inconsistently with Article  3.1 of the Anti -Dumping  Agreement ; we do not address the 
United  Arab Emirates ' argument that, as a consequence, Pakistan also acted inconsistently with 
Articles  3.2, 3.4 , and 3.5; and we exercise judicial economy  on the United  Arab Emirates ' claims 
under Articles  9.1 and  11.1. 
7.84.   We structure our discussion as follows:  first, we set out the applicable requirements of 
Article  3.1 (section  7.3.1 ); second, we apply that standard to the facts of this case to assess whether 
Pakistan acted inconsistently with Article  3.1, and we conclude that it did ( section  7.3.2 ); and last, 
we explain that we do not address the United Arab Emirates' consequential arguments under 
 
128 Notice of initiation (2012), (Exhibit  ARE-5). 
129 We address the injury POI separately . (See fn 95 above).  
130 Report on final determination (2013), public version,  (Exhibit  ARE-2), para.  13.3. 
131 See e.g. United Arab Emirates'  first written submission, paras.  123-134 and 136; and second writ ten 
submission, paras.  55-68. 
132 See e.g. Pakistan's  first written submission, paras.  3.80-3.82, 3.86 -3.91, and 3.98; and 
second  written submission, paras.  2.24-2.31. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  Articles  3.2, 3.4, and 3.5 and we exercise judicial economy  under Articles  9.1 and  11.1 
(section s 7.3.3 and 7.3.4 ).  
7.3.1   The applicable requirements of Article  3.1 
7.85.   Article  3.1 re quires a "determination of injury" to be "based on positive evidence  and involve 
an objective examination"133 of the volume of dumped imports, their effect on prices, and their 
consequent impact on the domestic industry.  
7.86.   We have considered the ordinary mea ning of "evidence" at paragraph  7.19 above, observing 
that the relevance  of the evidence to the facts to be established is inherent in that ordinary meaning. 
The ord inary meaning of "positive" includes " admitting no question; stated, express, definite, 
precise; emphatic "134 (with the phrase "proof positive" meaning " definite, absolute, or 
incontrovertible proof "135), and " providing support for a particular hypothesis, esp [ecially]  one 
concerning the presence or existence of something ".136 
7.87.   In this regard we agree with  the panel in Mexico – Anti-Dumping Measures on Rice  that 
"positive evidence is in the first place evidence which is material to the case at hand , in other words 
it is to be relevant  and pertinent with respect to the issue to be decided", and it is these traits that 
"make it 'evidence ' as opposed to unrelated facts".137 That is, again, the notion of relevance is 
inherent in the very meaning of "evid ence", and in Article  3.1 the requirement for the evidence to 
be relevant is underlined by the addition of the adjective "positive":  as pointed out by others before 
us, to meet the "positive evidence" standard, evidence must , at a minimum,  be "relevant … t o the 
issue to be decided".138 
7.88.   The context provided by other provisions of the Anti -Dumping  Agreement  and Article  VI of 
the GATT  1994 helps to clarify what "the issue to be decided" is, i.e. what the evidence must be 
relevant to. As we have observed in paragraph  7.24 above, Article  VI:2 of the GATT  1994 and 
Articles  11.1, 2.1, and 3.5 of the Anti -Dumping  Agreement  show that WTO disciplines on 
anti-dumping set forth a scheme for remedying a current  situation of injurious dumping.139 Thus, 
for evidence to meet the requirement of "positive evidence" under Article  3.1, it must, at a minimum, 
pertain to that current  situation, i.e. it must be evidence of current injury.140 
7.89.   In our view, whether the evidence on which the authority has based its determination of injury 
relates to current injury will depend, first, on the temporal scope of the evidence relative to  the 
dates of  initiation and of final determination. The more recent the data, the more likely they are  to 
be relevant to current injury .141 Second, it also depends on the relevant circumstances surrounding 
the authority 's choice of the POI for injury.  
7.90.   In reaching this view we note that , addressing the same question in Mexico – Anti-Dumping 
Measures on Rice , the panel and Appellate  Body also took into account the following 
circumstances:  (a) the POI was that proposed by the applicant; ( b) Mexico had not est ablished "that 
practical problems necessitated this particular [POI]"; ( c) Mexico had not argued "that updating the 
information was not possible"; (d) no attempt was made to update the information ; and ( e) Mexico 
 
133 Emphasis added.  
134 Oxford Dictionaries online, definition of "positive" 
https://www.oed.com/view/Entry/148318?rskey=vGamb6&result=1&isAdvanced=false#eid  (accessed 
12 October  2020), adj., meaning  A.I.2, specifying that "positive" with this mean ing is used chiefly in the 
phrase " proof positive n. at proof n. 1a ", which, in turn, is defined as "definite, absolute, or 
incontrovertible  proof".  
135 See fn 134 above . 
136 Oxford Dictionaries online, definition of "positive" 
https://www.oed.com/view/Ent ry/148318?rskey=vGamb6&result=1&isAdvanced=false#eid  (accessed 
12 October  2020) , adj., meaning  A.II.4.c.  
137 Panel Report, Mexico – Anti-Dumping Measures on Rice , para.  7.55. (emphasis added)  
138 Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , para. 165. 
139 Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , para.  165; Panel Reports, Mexico  – 
Anti-Dumping Measures on Rice, paras.  7.57-7.61; and Mexico – Steel Pipes and Tubes , paras.  7.226 -7.227.  
140 See also Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , para.  165 ("the conditions 
to impose an anti -dumping duty are to be assessed with respect to the current  situation").  
141 See para.  7.26 above ; see also Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , 
para. 166. WT/DS538/ R 
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  had provided no reason for failing to seek more recent information.142 Based on the temporal gap 
between the POI and the dates of initiation and final determination, together with these additional 
circumstances, the panel and the Appellate  Body in that case found that the investigating authorit y 
had failed to base its determination of injury on evidence that was relevant to the current situation, 
and had therefore acted inconsistently with Article  3.1.143 
7.91.   To summarize, then, Article  3.1 requires a determination of injury to be based on positive 
evidence. This means, at a minimum, that the evidence must be relevant, and therefore it must 
pertain to current  injury at the time the determination is made. Whether this requirement is complied 
with depends not only on the temporal scope of the evidence vis-à-vis the dates of initiation and 
final determination, but also on any other relevant circumstances surrounding the 
authorities ' determination, such as, for example, whether the authority made any attempts to 
update remote evidence or whether it was pos sible to do so.  
7.3.2   Whether Pakistan acted inconsistently with Article  3.1 
7.92.   Similar to Article  2.1, the parties disagree on the relevant date of final determination against 
which the temporal scope of the evidence must be assessed. For the reasons we have alre ady set 
out in section  7.2.2.1  above, which are equally applicable to the determination of injury, we find 
that the relevant date of final determination relative to  which the temporal scope of the evidence 
must be assessed is 4 February  2013, and we will not repeat our reasoning here.  
7.93.   We therefore turn to the core question before us, which is whether Pakistan acted 
inconsistently with Article  3.1 by basing its determi nation of injury on evidence ending in June 2010, 
taking into account all relevant circumstances.   
7.94.   We begin by considering the temporal scope  of the evidence relative  to the dates of initiation 
and final determination. In this case, the POI for injury ran from January  2007 to June  2010. There 
was thus a temporal gap  of approximately 22 months between the end of that POI and initiation 
(23 April 2012), and a gap of 31 months between the end of the POI and the final determination o f 
4 February  2013.  
7.95.   To assess whether evidence for such a POI was "positive evidence" and therefore, at a 
minimum, evidence that was relevant to the current situation, we must turn to the other 
circumstances  surrounding the authority 's selection of the POI.   
7.96.   First, Pakistan asks the Panel to take into account that a domestic court order directed the  NTC 
to proceed with the complaint before it, which, according to Pakistan, meant it could not chan ge the 
temporal scope of the evidence.144 We have addressed this argument when discussing the 
dumping  POI at paragraph  7.69 above, and the same considerations are val id here.  
7.97.   Second, Pakistan argues that maintaining the POI first selected in 2010 allowed the NTC to 
complete the investigation faster, in little more than nine months.145 Again, we have addressed this 
argument at paragraphs  7.70-7.71 above . Similar to what we have observed there with regard to 
Article  2.1, Article  3.1 imposes an obligation on Members to base their determination of injury on 
"positive evidence", and mere expediency – without, for example, an explanation as to why updating 
the evidence was not possible – cannot explain the choice to base a determinati on of injury on 
evidence that was already almost two years old at the time of initiation, and two years and seven 
months old at the time of the final determination.  
7.98.   Third, we turn to the factors that the United Arab Emirates has asked us to take into acco unt. 
The United  Arab Emirates argues that, similar to Mexico – Anti-Dumping Measures on Rice , "(i) the 
selected POI was essentially what was proposed by the applicant; (ii)  the NTC did not establish that 
 
142 Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , para.  167. 
143 Appellate  Body Report, Mexico – Anti-Dumping M easures on Rice , para.  167; Panel Report, Mexico – 
Anti-Dumping Measures on Rice , paras.  7.64-7.65. In Mexico – Steel Pipes and Tubes , where the data were 
less remote, the panel concluded that in light of all the relevant circumstances the complainant had not 
established an inconsistency with  Article  3.1. (Panel Report, Mexico – Steel Pipes and Tubes , 
paras.  7.231 -7.240).  
144 Pakistan's  second written submission, paras.  2.26-2.27; response to Panel question No.  28. 
145 Pakistan's  first written submission, paras . 3.89-3.90; second written submission, para.  2.28. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  practical problems necessitated this particular POI;  (iii) the NTC never established that updating the 
information was not possible; (iv)  the NTC made no attempt at updating the information although 
there was no lack of cooperation from interested parties; and (v)  the NTC provided no reason why 
it was not s eeking more recent information ".146 We have addressed these circumstances at 
paragraphs  7.72-7.75 above, and identical considerations are valid here, when assessing the 
consistency of the determination of injury with Article  3.1. 
7.99.   Summing up, the NTC based its determination of injury on evidence that ended almost 
two years before i nitiation, and two years and seven months before the final determination. The NTC 
made no attempt to update that evidence and, during the anti -dumping proceedings, it provided no 
discussion whatsoever of this choice. For these reasons, we find that Pakista n failed to base its 
determination of injury on "positive evidence", thus acting inconsistently with Article  3.1 of the 
Anti-Dumping  Agreement . 
7.3.3   Arguments on temporal scope under Articles 3.2, 3.4, and 3.5  
7.100.   We have found that the final determination of 9  April 2015, which ratified the final 
determination of February  2013, is inconsistent with Article 3.1 because the NTC did not base the 
determination of injury  on evidence of current injury . The United  Arab Emirates argues that, as a 
consequence, the same m easure is also inconsistent with Articles  3.2, 3.4, and 3.5.147  
7.101.   We do not address this UAE argument under Articles  3.2, 3.4, and  3.5. Later, however, we 
examine the merits of other arguments of the United  Arab Emirates under Articles  3.2, 3.4, and  3.5, 
and we find that the United Arab Emirates has established that the final determination of 9  April 2015 
is inconsistent with Articles  3.2, 3.4, and  3.5.148  
7.3.4   Judicial economy  under Articles  9.1 and  11.1 
7.102.   We refer to paragraph  7.49 above, on the conditions allowing a panel to ex ercise judicial 
economy . 
7.103.   In this case, the United  Arab Emirates ' claims under Articles  9.1 and 11.1  are directed at the 
same measure as the claim und er Article  3.1, and at the same aspect of that measure , i.e. the 
temporal scope of the evidence on which the NTC based its determination of injury. Having already 
found that Pakistan acted inconsistently with Article  3.1, we exercise judicial economy  on the 
United  Arab Emirates ' claims under Articles  9.1 and  11.1.  
7.4  The NTC 's choice of cost data: Articles  2.2, 2.2.1, 2.2.1.1, and 2.2.2  
7.104.   The United Arab Emirates claims that Pakistan acted inconsistently with its obligations under 
Articles  2.2, 2.2.1, 2.2.1.1, and  2.2.2 of the Anti -Dumping  Agreement , because the NTC evaluated 
whether Taghleef 's domestic sales were made in the ordinary course of trade by examining certain 
"general 'cost to make and sell'"149 data that Taghleef submitted to the NTC , instead of examining 
what the United  Arab Emirates considers to be more specific record data150 related to the cost of 
production  (COP)  and sale of the product under consideration151, without providing a reasoned and  
adequate explanation for doing so .152 The United  Arab Emirates asserts that the decision to use this 
more "general " data led the NTC to incorrectly determine that a  significant number of 
Taghleef 's sales were made outside of the ordinary course of trade, a nd thus to erroneously establish 
normal value based on a subset of sales .153  
 
146 United Arab Emirates'  second written submission, para.  58. 
147 See e.g. United Arab Emirates'  first written submission, para.  136. 
148 See sections 7.6, 7.7, 7.8, and 7.9 below.  
149 United Arab Emirates'  first written submission, para.  175.  
150 United Arab Emirates' first written submission, para s. 175, 201, and 207 -208; second written 
submission, para.  92. 
151 United Arab Emirates'  first written submission, paras.  175-176. 
152 United Arab Emirates'  first written submission, paras.  214-215, 217, and 221 -224. 
153 United Arab Emirates' second written submission, para. 92 (asserting that the NTC improperly 
rejected "large volumes of Taghleef's domestic sales as allegedly not being in the ordinary course of trade 
 WT/DS538/ R 
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  7.105.   Pakistan denies  these  allegations  for a number  of reasons . Among other things , Pakistan 
asserts that the NTC was within its discretion154 to rely on and use Taghleef's more "genera l" data  
because the company (a)  provided this information to the NTC in response to a request to provide 
"per unit COP information for each type of [investigated product] " that reflects "actual costs"155; 
(b) did not amend , point to perceived flaws in this data156, or dispute that it reflected the company's  
financial statements157; (c) affirmatively stated that the "cost to make" BOPP was the same for  its 
domestic and export sales158; and (d) did not substantiate certain diffe rences in selling costs that it 
alleged existed  across different markets .159 Pakistan  also asserts  that the "alternative" COP data 
that the United  Arab Emirates highlights "could not be reconciled" with Taghleef's  financial 
accounts .160  
7.106.   Given this,  Pakistan argues  that the "NTC was within the bounds of its discretion to 
determine" that the more general data that Taghleef provided were "by far the more plausible and 
reliable … in terms of reflecting the actual costs of production of the investigated product" , and that 
the NTC 's decision to use this  data was reasonable and grounded in the objective characteristics of 
the evidence before it.161  
7.107.   We structure our discussion as follows: first, we review the salient facts underlying the 
United  Arab Emirates ' claims  (section  7.4.1); second, we set out the  applicable requirements of 
Articles  2.2, 2.2.1, 2.2.1.1 , and 2.2.2  (section  7.4.2 ); we then apply that standard to the facts of 
this dispute  to assess whether the United  Arab Emirates has established that Pakistan acted 
inconsistently with the requirements of Articles  2.2, 2.2.1, 2.2.1.1 , and  2.2.2 (section  7.4.3); and 
last, we conclude that it has not (section  7.4.3.3 ). 
7.4.1   Factual overview  
7.108.   The United  Arab Emirates'  arguments , and Pakistan 's response, centre  on the 
parties ' disagreement about the manner in which the NTC evaluated Taghleef 's cost data during the 
investigation. Because the resolution of these claims requires us to examine the circumstances 
surrounding the NTC 's cost analysis in some detail, we summarize below  the key facts that are at 
issue in this analysis.  
7.4.1.1   Exporter questionnaire  
7.109.   A key point of co ntention underlying the United  Arab Emirates ' Article  2.2 claims revolves 
around the parties ' disagreement about the  relative quality of two different sets of data that Taghleef 
provided to the NTC when the company responded to two  different sections of th e 
NTC's questionnaire for exporting producers (" exporter questionnaire "). The sections of the exporter 
questionnaire  at issue can be found at sub section  D-3 and section  F. 
7.110.   Subsection  D-3 of the exporter questionnaire  asked Taghleef to provide the NTC with,  among 
other things, the "[p]er unit total cost of production (cost of production plus administrative, selling 
 
because of the use of cost data that were not specific to the domestic sales of the product under 
consideration"); response to Pa nel question No.  38, paras.  41-42 (asserting that the NTC's decision to use less 
specific "cost data that did not reasonably reflect the costs associated with the production and sale" of 
BOPP  film caused the NTC to find that certain sales were outside the ordinary course of trade and thus to 
erroneously establish normal value on a "relatively small subset of sales"); and comments on 
Pakistan's  response to Panel question No.  87, p. 3 (observing that the United Arab Emirates' claim "focuses on 
the NTC's decis ion to use Taghleef's general cost data from Appendix 2 of Section F … and not its specific 
domestic cost data from Section D -3", which in turn caused the NTC to find that certain sales were not made in 
the ordinary course of trade "and the consequent erro neous establishment of normal value").  
154 Pakistan's first written submission, para. 3.233; second  written submission, para. 2.53. 
155 Pakistan's first written submission, para. 3.143; see also Taghleef's questionnaire response, 
(Exhibit  ARE-16 (BCI) ), p. 29. 
156 Pakistan's first written submission, para. 3.147.  
157 Pakistan's first written submission, para. 3.147.  
158 Pakistan's first written  submission, para. 3.1 56; see also Taghleef's  response to third deficiency 
letter, redacted version , (Exhibit ARE -18), p.  2. 
159 Pakistan's first written submission, para s. 3.157-3.162.  
160 Pakistan's first written submission, paras.  3.140 and 3.231.  
161 Pakista n's second written submission, para.  2.53. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  and financial expenses)" associated with each sale that Taghleef made in the domestic market.162 
Section  D-3 appears in section  D of the exporter questionnaire . Section D is titled "Domestic Sales 
of the [investigated product] ". Section D instructed Taghleef to "please provide specific information 
on all your sales of the [investigated product]  in your domestic market during the POI" . The relevant 
portion of subsection  D-3 reads as follows:  
D-3   Information on Domestic market customers  
Following information should be provided for each transaction separately in a 
table form. This information sh ould also be supplied on CD ROM. These data files should 
be compatible to the US versions in EXCEL format.  
Information Required         Field Name  
A  Sequential number for the transaction     S. No.  
… 
AK  Per unit total cost of production (cost of production plus   COP  
 administrative, selling and financial expenses) for this     
 transaction  
7.111.   Section F of the exporter questionnaire , which is titled "Cost of Production", asked Taghleef 
to "report per -unit COP information for each type of [investigated  product]  in Appendix  No. 2" and 
specified that the amounts that were to be reported in appendix  2 "should be based on the actual 
costs incurred" by Taghleef as recorded in the company 's "normal accounting system".163  
7.112.   Taghleef responded to these requests b y providing the NTC with two different spreadsheets.  
7.113.   The first spreadsheet responded to sub section  D-3 of the exporter questionnaire  by including 
a column with the requested "total cost of production" data for each domestic sale. We  refer to this 
informat ion as the "appendix  D-3" data. The exporter questionnaire  did not ask Taghleef to break 
down the elements of the COP associated with each of Taghleef 's sales ( i.e. into a separate breakout 
of administrative, selling, and general costs  (SG&A ) and profit, for example), and Taghleef did not 
provide such a breakdown in appendix  D-3.164 
7.114.   The second spreadsheet responded to section  F of the exporter questionnaire  with data that 
Taghleef provided in appendix  2 to section  F. We refer to this data as th e "appendix  2" data. 
The appendix  2 data break down the costs associated with the production of BOPP film into a number 
of categories, including the cost of raw materials, packing material, salaries and wages, 
manufacturing overhead, administrative expense s, selling and distribution expenses, financial 
expenses, and whole saler's profit. The appendix  2 data did not, however, segment these costs on a 
market -by-market basis.165  
7.115.   Taghleef did not provide audited financial statements to the NTC.166 Notwithstanding  this, 
Taghleef asserted that the appendix  2 data mirror ed the company 's audited financial statements.167 
Taghleef did not make a similar assertion with respect to the appendix D-3 data.  
7.116.   The NTC and Taghleef had several follow -on communications related to T aghleef 's cost data, 
including in the context of a deficiency letter, a letter related to the dumping calculation, the 
 
162 NTC's  blank  exporter questionnaire, (Exhibit  PAK-37), pp. 16 -17; Taghleef 's questionnaire response , 
(Exhibit  ARE-16 (BCI)), pp. 25-26. 
163 NTC's  blank  exporter questionnaire, (Exhibit  PAK-37), p. 18;  Taghleef 's questionnaire response , 
(Exhibit  ARE-16 (BCI)), p. 29. 
164 Appendix D -3 to Taghleef 's response to exporter questionnaire , (Exhibit  PAK-14 (BCI)). This exhibit 
provides a single COP for each transaction.  
165 Appendix 2 to Taghleef's response to exporter questionnaire, (Exhibit PAK -13 (BCI)).  
166 Taghleef 's questionnaire response , (Exhibit  ARE-16 (BCI)), p.  29 (stating that [[***]], and that 
[[***]]).  
167 United Arab Emirates' second written submission, para. 105 (referring to Taghleef 's letter of 
30 November  2012, (Exhibit  ARE-19 (BCI)), p.  2). Taghleef 's letter of 30  November 2012 states: [[***]]).  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  preliminary determination, an email exchange in which Taghleef bifurcated some of the appendix  2 
data that it had previously provided to the NTC , the statement of essential facts, and the final 
determination. The parties dispute the contents and quality of the information contained in these 
exchanges, which are summarized below.  
7.4.1.2   Deficiency letter  
7.117.   On 22  February  2011, the NTC sent a deficie ncy letter to Taghleef in which the NTC 
requested Taghleef, in relevant part:  
a. To provide cost to make and sell on a quarterly basis in appendix  2 format.  
b. To confirm that the cost to make and sell reported at appendix  2 related to overall 
production of BOP P film only, and to bifurcate those costs if they did not relate to 
production of BOPP film only.  
c. To "work out" costs to make and sell BOPP film for domestic sales and export sales 
separately.168 
7.118.   On 1 March  2011, Taghleef responded to the NTC 's deficiency letter as follows:  
a. Taghleef attached the cost to make and sell on a quarterly basis in appendix -2 format. 
In addition, Taghleef drew the NTC 's "attention to the cost of production given in 
Appendix  D-3". Taghleef stated that these costs ( i.e. the appendix  D-3 costs) were "based 
on the Company 's quarterly average of 'standard costs', which should be used for any 
calculations for the Company".169 
b. Taghleef confirmed that the cost to make and sell data that the company provided in 
appendix  2 related to the production of BOPP film.170  
c. Taghleef stated that there were no differences between the cost to make BOPP film [] for 
domestic and export sales, but indicated that there were some differences in the cost of 
sales between the domestic and export market, w hich Taghleef asserted were "clearly 
provided" in appendices C -3 and D -3.171 
7.119.   Taghleef's 1  March  2011 reply did not provide additional information related to the 
differences that Taghleef stated existed with respect to the company's domestic and export sales.  
7.4.1.3   Preliminary determination  
7.120.   On 10  August  2012, the NTC issued its preliminary determination, in which it used 
Taghleef 's appendix  2 data to calculate the company 's costs.172  
7.121.   On 30  November  2012, Taghleef commented on the preliminary determination. It pointed 
out that the NTC had used the appendix  2 data, which included [[***]] .173 For this reason, Taghleef 
opined that these costs were not representative of the costs associated with domestic sales. Taghleef 
stated that it was more appropriate for the NTC  to use the separate costs that it had provided in 
appendix  D-3.174 
 
168 Third deficiency letter , (Exhibit  ARE-17), p.  1. 
169 Taghleef 's response to third deficiency letter, redacted version, (Exhibit  ARE-18), p.  2, para.  A3. 
Taghleef repeated this statement in a 30  November  2012 letter to the NTC commenting on the NTC's  dumping 
calculations. ( Taghleef 's letter of 30  November  2012, (Exhibit  ARE-19 (BCI)), p.  2). 
170 Taghleef 's response to third deficiency letter, redacted version, (Exhibit  ARE-18), p.  2, para.  A4. 
171 Taghleef 's response to third deficiency letter, redacted version, (Exhibit  ARE-18), p.  2, para.  A4.  
172 Pakistan's  first written submission, para.  3.167.  
173 Taghleef 's letter of 30  November 2012, (Exhibit  ARE-19 (BCI)), p.  1. 
174 Taghleef 's letter of 30  November 2012, (Exhibit  ARE-19 (BCI)), pp.  2-3. See also 
United  Arab Emirates' first written submission e.g.  paras.  198, 208, 213, and  225; and Taghleef's response to 
third deficiency letter, redacted version, (Exhibit ARE -18), p.  2, para.  A3. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  7.4.1.4   Email of December 2012  
7.122.   On 18  December  2012, Taghleef sent an email to the NTC in which it reiterated its position 
that the data used by the NTC to calculate Taghleef 's costs did not correct ly represent the cost to 
make and sell in the domestic market. Taghleef attached files in which it split the appendix  2 data 
by territory into Pakistan, Dubai, Oman , and the rest of the world, and suggested that th ese files 
showed how the appendix  D-3 data were to be reconciled with the appendix  2 data.175 These files , 
however, did not appear to allocate to domestic sales a number of fixed costs ( e.g. manufacturing 
salaries and wages, depreciation, etc.).176  
7.4.1.5   Taghleef 's comments on the statem ent of essential facts  
7.123.   On 17  January  2013, Taghleef commented on the NTC 's statement of essential facts. In its 
letter, Taghleef stated that the NTC had "chosen to ignore what Taghleef [had] repeatedly stated in 
its response to the exporter 's questionnaire , deficiency letters, detailed letters and submissions … 
that the information representing the cost to make and sell for domestic sales is what was provided 
in [appendix] D -3 rather than Appendix  2".177 
7.4.1.6   The NTC 's response in the Report on final determinatio n 
7.124.   In its 2013 Report on final determination , responding to Taghleef's  comment on the 
NTC's  statement of essential facts , the NTC stated that the appendix  D-3 data failed to allocate to 
domestic sales certain fixed costs. In light of this, the NTC concluded  that the cost allocation method 
in appendix  D-3 did not present a "true and fair picture of cost of production. Hence the [NTC] 
calculated cost of production of Taghleef  Oman [ sic]  on the basis of information provided by it in 
Appendix  2".178  
7.4.2   The applica ble requirements of Articles  2.2, 2.2.1, 2.2.1.1, and 2.2.2  
7.4.2.1   Article  2.2 of the Anti -Dumping  Agreement  
7.125.   Article  2.2 of the Anti -Dumping  Agreement  dictates the manner in which an investigating 
authority must determine normal value in the event the authority cannot use sales data from the 
exporting country 's domestic market to calculate the dumping margin.179 Specifically, it provides, in 
relevant par t, that:  
When there are no sales of the like product in the ordinary course of trade in the 
domestic market of the exporting country … the margin of dumping shall be determined 
by comparison with a comparable price of the like product when exported to an 
appropriate third country, provided that this price is representative, or with the cost of 
 
175 Taghleef 's email of 18  December  2012, (Exhibit  PAK-12A (BCI)), (explaining: "[y]ou will see a 
highlighted cell (H48) in each of the sheets and these would reconcile with the quarterly COP numbers 
provided in Annexure D3").  
176 Taghleef 's email of 18  December  2012, (Exhibit  PAK-12A (BCI)). On this point, see also 
fn 241 below.  
177 Taghleef's  comments on statement of essential facts, (Exhibit  ARE-25), section  2. 
178 Report on final determination (2013), public version , (Exhibit  ARE-2), pp.  72-73. We note that 
page 72 of the report uses the term "Taghleef Oman" rather than Taghleef Industries or T aghleef LLC. When 
the Panel asked Pakistan to explain this apparent discrepancy, Pakistan asserted that the reference to Taghleef 
Oman was a typographical error. Pakistan supported this assertion by noting, among other things, that (a) this 
specific refere nce to Taghleef Oman appears in a section of the report that is titled "Comments of Taghleef 
Industries"; and  (b) Taghleef Industries and Taghleef Oman were frequently referred to in a combined or 
collective manner  during the investigatio n. (Pakistan's wri tten opening statement, paras. 51 -54; response to 
Panel question No.  83, p. 37; comments on United Arab Emirates' request for interim review, para.  3.22). 
Given this, and as we discuss in our response to the comments that the United Arab Emirates submitted  on 
this issue in the Interim Report, we accept that the reference to Taghleef Oman that appears on page 71 of 
the 2013 Report on final determination is a typographical error.  
179 See e.g. Panel Report, US – Softwood Lumber V , para.  7.278 (observing that the  provision "concerns 
the establishment of an appropriate proxy for the price of the like product in the ordinary course of trade in the 
domestic market of the exporting country when that price cannot be used" ). WT/DS538/ R 
BCI deleted, as indicated [[***]]  
- 41 - 
 
  production in the country of origin plus a reasonable amount for administrative, selling 
and general costs and for profits.  
7.126.   In such circumstances, Article  2.2 mandate s ("shall be determined") that an investigating 
authority select between one of two  types of data to determine normal value in the event there are 
no sales of the like product that were made in the ordinary course of trade: either third country 
sales, or the COP in the country of origin. When an authority elects to determine normal value based 
on the COP, the authority must add a "reasonable" amount for SG&A and profits to the identified 
production costs.180 
7.4.2.2   Article  2.2.1 of the Anti -Dumping  Agreement  
7.127.   Article 2.2.1 of the Anti -Dumping  Agreement  provides that:  
Sales of the like product in the domestic market of the exporting country or sales to a 
third country at prices below per unit (fixed and variable) costs of production plus 
administrative, selling and general costs may be treated as not being in the ordinary 
course of trade by reason of price and may be disregarded in determining normal value 
only if the authorities determine that such sales are made within an extended period  of 
time in substantial quantities and are at prices which do not provide for the recovery of 
all costs within a reasonable period of time. If prices which are below per unit costs at 
the time of sale are above weighted average per unit costs for the perio d of 
investigation, such prices shall be considered to provide for recovery of costs within a 
reasonable period of time.181 
7.128.   Article  2.2.1 establishes an analytic framework to verify whether an investigating authority 
may disregard certain below -cost sales w hen determining normal value. Specifically, the framework 
provides that an investigating authority may disregard certain below -cost sales that the authority 
determines to have been made outside the ordinary course of trade.182 The first sentence of this 
provision sets out two steps that investigating authorities must follow when applying this framework 
to determine whether particular below -cost sales may be disregarded as being outside the ordinary 
course of trade.  
7.129.   First, the investigating authority must  ascertain that a sale or sales have been made at 
"prices below per unit (fixed and variable) costs of production plus administrative, selling and general 
costs".  Second, the investigating authority must determine that such below -cost sales have been 
made  (a) within an extended period of time, (b) in substantial quantities, and (c) at prices which do 
not provide for the recovery of all costs within a reasonable period of time.  
7.4.2.3   Article  2.2.1.1 of the Anti -Dumping  Agreement  
7.130.   Article  2.2.1.1 of the Anti -Dumping  Agreement  provides that183:  
For the purpose of paragraph  2, costs shall normally be calculated on the basis of 
records kept by the exporter or producer under investigation, provided that such records 
are in accordance with the generally accepted accountin g principles of the exporting 
country and reasonably reflect the costs associated with the production and sale of the 
product under consideration.  
Authorities shall consider all available evidence on the proper allocation of costs, 
including that which is  made available by the exporter or producer in the course of the 
investigation provided that such allocations have been historically utilized by the 
exporter or producer, in particular in relation to establishing appropriate amortization 
and depreciation p eriods and allowances for capital expenditures and other development 
costs.  
 
180 See e.g. Panel Report, US – Softwood Lumber V , para.  7.278.  
181 Fns omitted.  
182 See e.g. Appellate  Body Report, US – Hot-Rolled Steel , para.  147.  
183 We set out the sentences separately for ease of reference.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  Unless already reflected in the cost allocations under this sub -paragraph, costs shall be 
adjusted appropriately for those non -recurring items of cost which benefit future and/or 
current production, or for circumstances in which costs during the period of investigation 
are affected by start -up operations.  
7.131.   Article  2.2.1.1 establishes three rules for investigating authorities to follow in the event that 
an authority determines to con struct normal value under Article  2.2 of the Anti -Dumping  Agreement . 
7.132.   First, the first sentence of Article  2.2.1.1 establishes a general preference for an authority 
to use an exporter or producer 's own records to determine a company 's costs, so long as thos e 
records have been kept in accordance with generally accepted accounting principles (GAAP) and the 
records "reasonably reflect" the costs that the company incurs to produce and sell the product under 
consideration.   
7.133.   This means, conversely, that an authori ty need not necessarily use a company 's records to 
calculate its costs where those records do not reflect GAAP due to their potential lack of reliability.  
The same is true where the authority determines that a company 's records do not "reasonably 
reflect" the company 's costs.  
7.134.   The phrase "reasonably reflect" is not defined in the Anti -Dumping  Agreement . The ordinary 
meaning of the word "reasonably", however, includes: "justly, properly, fairly"; " [f]airly or pretty 
well"; and "sufficiently, suitably" .184 The ordinary meaning of the word "reflect" includes " [t]o display 
as if in a mirror" and "to reproduce, esp. faithfully or accurately" .185  
7.135.   Other dispute proceedings , which we find persuasive,  have interpreted the phrase 
"reasonably reflect" to mean "to mi rror, reproduce, or correspond to something suitably and 
sufficiently".186 This condition has been deemed to be met when, for example, the records kept by 
the exporter or producer suitably and sufficiently correspond to or reproduce the costs that the 
compa ny incurred to produce and sell the product under consideration.187  
7.136.   Those proceedings have also observed that the manner in which an exporter or producer 
records its costs in financial statements may not necessarily correspond to how the product under 
consideration is defined for purposes of a specific anti -dumping investigation. Consequently, how an 
exporter or producer registers its costs in its financial statements may not "reasonably reflect the 
costs associated with the production and sale of the produ ct under consideration" in a specific 
anti-dumping investigation.188  
7.137.   Investigating authorities are, of course, free to examine and test the reliability and accuracy 
of a producer's  or exporter 's recorded costs , i.e. to determine for example: whether the re cords 
accurately reflect all categories of costs; whether the costs that a company claims to have incurred 
have been over or understated; and whether  the allocations made are appropriate and in accordance 
with proper accounting standards.189 
 
184 Oxford  Dictionaries online, definition of "reasonably" 
https://www.oed.com/view/Entry/159074?redirectedFrom=reasonably#eid  (accessed 15  October  2020), adv., 
meanings  1-2. 
185 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.)  (Oxford University Press, 2007), 
Vol. 2, p. 2506; Oxford Dictionaries online, definition of "reflect" 
https://www.oed.com/view/Entry/160912?rskey=FxHC69&result=3& isAdvanced=false#eid  (accessed 
15 October  2020), v., meaning  6.b. 
186 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.20. 
187 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.26. 
188 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.21 and  fn 127 (observing that "the 
exporter or producer under investigation may export or produce a number of different products", "[w]hile the 
product under consideration in a particular anti -dumping investigation may be limited to a single model, size, 
type or specification of a product", and that the records of such exporter or producer may not allocate costs on 
a "product -by-product or model -by-model basis "). 
189 Panel Report, EU – Biodiesel (Argentina) , fn 400:  
However, we do not understand the phrase "reasonably reflect" to mean that whatever is recorded 
in the records of the producer or exporter must be automatically accepted. Nor does it mean … 
that the words "reasonably reflect" are limited only to the "allocation" of costs. The investigating  
 WT/DS538/ R 
BCI deleted, as indicated [[***]]  
- 43 - 
 
  7.138.   Second, the sec ond sentence of Article  2.2.1.1 establishes a general rule governing the 
scope of evidence that an authority must weigh when determining how to properly allocate a 
producer  or exporter 's costs. Specifically, the sentence requires authorities to "consider a ll available 
evidence on the proper allocation of costs", including evidence that a producer  or exporter provides 
during the course of the investigation, so long as the company can demonstrate that its allocation 
criteria reflect the company 's past allocat ion practices.  
7.139.   The Anti -Dumping  Agreement  does not specifically define either the word "consider" or the 
phrase "proper allocation".  
7.140.   The ordinary meaning of the word "consider" includes: " [t]o look attentively"; " [t]o 
contemplate mentally, fix the mind upo n", "to think over, meditate or reflect on, bestow attentive 
thought upon, give heed to, take note of" ; "[t]o think, reflect, take note"; and "to regard, make 
allowance for" .190  
7.141.   After analysing the ordinary meaning of the word, another dispute proceeding which we find 
relevant understood the term "consider" in the context of this sentence to mean that an investigating 
authority is required to "reflect on" and to "weigh the merits of" all available evidence on the proper 
allocation of costs.191 The parameters of this obligation will vary case  by case. In instances where 
there is compelling evidence that more than one allocation methodology may be appropriate to 
ensure there is a "proper" allocation of costs, the same  dispute proceeding concluded that  an 
investigating authority may be required to "reflect on" and "weigh the merits of" evidence that 
relates to such alternative allocation methodologies, in order to satisfy the requirement to "consider 
all available evidence".192 
7.142.   Finally, the third sentence of Article  2.2.1.1 requires an authority to adjust a 
company 's costs to ensure that that the construction of normal value is not distorted by certain 
exceptional non -recurring or start -up costs.  
7.143.   Prior dispute proceedings  have interpreted the second and third sentences of Article  2.2.1.1 
to encompass "the unde rstanding that the inquiry envisaged under Article  2.2.1.1 is one relating to 
the circumstances of each investigated exporter or producer in the exporting country" .193 
Article  2.2.1.1 has also been read to permit an authority to reject an allocation methodo logy that 
would exclude certain costs that in fact pertain to the product under investigation .194 As such,  
Article  2.2.1.1  has been interpreted to allow an investigating authority to "obtain a more precise 
calculation of the costs associated with the produc t under consideration for the specific exporter or 
producer by ensuring or verifying that there is a genuine relationship between the costs reflected in 
the exporter 's or producer 's records and the costs associated with the production and sale of the 
specific product under consideration".195 We agree with these interpretations.  
7.144.   The text of Article  2.2.1.1 does not specify how an investigating authority is to demonstrate 
that it has fulfilled the article's requirement to calculate costs on the basis of the records of a 
producer  or exporter , and that it has considered all available evidence on the pro per allocation of 
 
authorities are certainly free to examine the reliability and accuracy of the costs recorded in the 
records of the producers/exporters, and thus, whether those records "reasonably reflect" such 
costs. In particular, the investigating authorities are free to examine whether all costs incurred are 
captured and none has been left out; they can examine whether the actual costs incurred have 
been over or understated; and they can examine if the allocations made, for example for 
depreciation or amortization, are  appropriate and in accordance with proper accounting standards. 
They are also free to examine non -arms-length transactions or other practices which may affect 
the reliability of the reported costs. But, in our view, the examination of the records that flo ws 
from the term "reasonably reflect" in Article  2.2.1.1 does not involve an examination of the 
"reasonableness" of the reported costs themselves, when the actual costs recorded in the records 
of the producer or exporter are otherwise found, within accep table limits, to be accurate and 
faithful.  
190 Oxford Dictionaries online, definition of "consider" 
https://www.oed.com/view/Entry/39593?redirectedFrom=consider#eid  (accessed  15 October  2020), v., 
meanings  2, 3, 4, and  7. 
191 Appellate  Body Report,  US – Softwood Lumber V , para.  133. 
192 Appellate  Body Report,  US – Softwood Lumber V , para.  138. 
193 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.22. 
194 Panel Report, US – Softwood Lumber V , para.  7.258 (referring to SG&A costs).  
195 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.22. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  costs. Further, prior proceedings that have considered the scope of an authority 's obligation to 
explain its conduct under Article 2.2.1.1 have generally done so when an authority has used external 
cost data, after determining that a part y's records are either inconsistent with GAAP or do not 
reasonably reflect the costs associated with the production and sale of the product under 
consideration.196 We note that those circumstances are different from the circumstances in the 
present dispute,  given that the evidence in the present dispute indicates that the NTC did use 
Taghleef's records in its cost analysis .  
7.145.   Finally, we note that while the text of Article  2.2.1.1 states that its terms apply to Article  2.2, 
other proceedings have observed tha t Article  2.2.1.1 is "applicable to determining whether, pursuant 
to Article  2.2.1, sales in the domestic market of the exporting country are at prices below per -unit 
costs and therefore not in the ordinary course of trade by reason of price" .197 We agree with this 
observation.   
7.4.2.4   Article  2.2.2 of the Anti -Dumping  Agreement  
7.146.   Article  2.2.2 of the Anti-Dumping  Agreement  states that:  
For the purpose of paragraph  2, the amounts for administrative, selling and general 
costs and for profits shall be based on actual data pertaining to production and sales in 
the ordinary course of trade of the like product by the exporter or producer under 
investigation. When such amounts cannot be determined on this basis, the amounts 
may be determined on the basis of:  
(i) the actual amounts incurred and realized by the exporter or producer in question 
in respect of production and sales in the domestic market of the country of origin 
of the same general category of products;  
(ii) the weighted average of the actual amounts inc urred and realized by other 
exporters or producers subject to investigation in respect of production and sales 
of the like product in the domestic market of the country of origin;  
(iii) any other reasonable method, provided that the amount for profit so e stablished 
shall not exceed the profit normally realized by other exporters or producers on 
sales of products of the same general category in the domestic market of the 
country of origin.  
7.147.   Article  2.2.2 thus establishes a two -tiered data hierarchy that an a uthority is expected to 
follow when determining what administrative, selling, and general costs, and profit figures should 
be used in the construction of normal value.198 Specifically, the first sentence of this article  requires 
that, if actual data for SG& A costs and profits in the ordinary course of trade exist for the exporter 
under investigation, then the authority must use that actual data to calculate normal value. If actual 
data are not available, an authority may determine SG&A costs and profits usin g one of the 
three  other methods outlined in the second sentence of this provision.199 
 
196 Panel Report, China – Broiler Products , para.  7.164:  
In sum, the Panel is of the view that although Article  2.2.1.1 sets up a presump tion that the books 
and records of the respondent shall normally  be used to calculate the cost of production for 
constructing normal value, the investigating authority retains the right to decline to use such books 
if it determines that they are either (i)  inconsistent with GAAP or, (ii) do not reasonably reflect the 
costs associated with the production and sale of the product under consideration. However, when 
making such a determination to derogate from the norm, the investigating authority must set forth  
its reasons for doing so.  
(emphasis original)  
197 See e.g. Panel Report, EU – Biodiesel (Argentina) , fn 376. 
198 See also, Appellate  Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.25;  
EC – Tube or Pipe Fittings , para.  97. 
199 The parties to this dispute have not raised any issues regarding the second sentence of Article  2.2.2.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  7.148.   The Anti-Dumping  Agreement  does not define the term "actual" ; the ordinary meaning of 
the word includes " [e]xisting in fact, real".200 
7.4.3   Whether Pakistan acted inconsistentl y with the requirements of Articles  2.2, 2.2.1, 
2.2.1.1, and 2.2.2   
7.149.   In this section  we apply the standard set out above to the particular facts of this dispute .  
7.150.   In doing so we note that  United  Arab Emirates ' written submissions periodically  refer to  its 
Article  2.2 claims either collectively ( by assert ing, for example, that the "NTC acted inconsistently 
with its obligations under Articles  2.2, 2.2.1, 2.2.1.1 and  2.2.2")201 or in pairs ( by assert ing, for 
example, that the "NTC acted inconsistently with  Articles  2.2.1.1 and  2.2.2" when it determined to 
use costs that were "not associated with … domestic sales ", and that the NTC improperly "rejected 
and replaced verifiable cost data … in violation of Articles  2.2 and  2.2.1").202  
7.151.   While these submissions th us do not always specify precisely how the United  Arab Emirates 
believes the NTC 's conduct to be inconsistent with Pakistan 's obligations under Article  2.2, 2.2.1, 
2.2.1.1 , or 2.2.2 standing alone, we understand the United Arab Emirates  to make  two interre lated 
arguments under different combinations of these provisions .  
7.152.   First, under Articles 2.2.1.1 and 2.2.2, we understand the United  Arab Emirates  to challenge 
the NTC's decision to use Taghleef's appendix 2 data rather than its appendix D -3 data and the 
NTC's  alleged failure to provide a reasoned and adequate explanation for doing so. Second, we 
understand the United  Arab Emirates to make a consequ ential claim that Pakistan acted 
inconsistently with  Articles  2.2 and  2.2.1 based on the premise that , if the NTC had used 
Taghleef 's appendix  D-3 data, Taghleef 's overall costs would likely have been lower , which, in turn, 
would have led the NTC to determ ine that more of Taghleef 's domestic sales had been  made in the 
ordinary course of trade , which, in turn "would have resulted in a lower dumping margin".203  
7.153.   We consider these challenges in turn.  
7.4.3.1   The NTC 's decision to use the data that Taghleef provided in appendix  2 rather 
than appendix  D-3 
7.4.3.1.1   Article  2.2.1.1  
7.154.   The parties do not dispute that the d ata in either appendix  2 or appendix  D-3 were drawn 
from "records kept" by Taghleef. The parties also have not questioned whether Taghleef 's records 
were prepared in accordance with GAAP. The central question that thus presents itself under th e 
United  Arab Emirates ' Article  2.2.1.1 claim  (and that impacts all o f the United  Arab Emirates ' related 
claims) is: could an unbiased and objective authority have elected, as the NTC did, to use the cost 
information contained in appendix  2 instead of appendix  D-3 to evaluate whether 
Taghleef 's domestic sales were made in t he ordinary course of trade?  
7.155.   The answer to this question turns on whether ( a) an objective and unbiased authority could, 
in accordance with Article  2.2.1.1, determine that Taghleef 's appendix  2 cost data "reasonably 
reflect[ed]" the costs associated with the production of BOPP ; and ( b) the NTC "consider[ed] all 
available evidence" on the proper allocation of costs when it decided to rely on the appendix  2 data 
to measure Taghleef 's costs.   
 
200 Oxford Dictionaries online, definition of  "actual" 
https://www.oed. com/view/Entry/1972?redirectedFrom=actual#eid  (accessed 15  October  2020), adj., 
meaning  2. 
201 United Arab Emirates ' first written submission, para. 227; see also second written submission, 
para. 98 (claiming that " [b]y using costs that were not associated w ith the domestic sales in the UAE for 
establishing the normal value, the NTC acted inconsistently with Articles  2.2, 2.2 .1, 2.2.1.1, and 2.2.2 of the 
Anti-Dumping  Agreement "). 
202 United Arab Emirates ' first written submission, paras.  214 and  227. 
203 United Arab Emirates' second  written submission, para . 97. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  7.156.   We begin with the  reasonably reflect  element: Did the appendix  2 data "reasonably reflect" 
Taghleef 's costs?  
7.157.   Pakistan asserts that the NTC was within its discretion204 to rely on and use 
Taghleef 's appendix  2 cost data because ( a) Taghleef submitted the appendix  2 data in response to 
section  F of the NTC 's export er questionnaire  request to provide "per -unit COP information for each 
type of [investigated product] ", which should reflect "actual costs"205; (b) Taghleef did not seek to 
amend its appendix  2 data nor dispute that it reflected its financial statements206; (c) Taghleef, when 
asked by the NTC to "bifurcate" the costs associated with its domestic and export sales, affirmatively 
stated that the "cost to make" BOPP in either instance was the same207; and ( d) while Taghleef 
alleged that certain differences in selling costs existed, it did not substantiate those differences, and 
therefore the NTC  could not rely on them.208  
7.158.   The United  Arab Emirates does not appear to dispute points (a)-(c) above. The  
United  Arab Emirates does, however, challenge the premise that Taghleef  had an obligation to 
support its appendix  D-3 cost allocation by providing additional material to further substantiate and 
explain the numerical information contained in the appendix  D-3 spreadsheet.209 Specifically, the 
United  Arab Emirates asserts that t he cells labelled "Other  1", "Other  2", and "Other  3" in 
appendix  D-3210 explain the differences between the appendix  2 and appendix  D-3 cost figures, and 
that these differences were "clearly provided"211 to the NTC.  
7.159.   Pakistan disagrees, noting that "there was no evident basis to understand the origin s of 
these figures" .212 Pakistan also observes that "in contrast to Taghleef 's explicit assertion that the 
Appendix  2 data 'mirror[ed] ' the company 's financial statements ", Taghleef "never asserted that th e 
Appendix  D-3 data could be reconciled with its financial statements" .213  
7.160.   We observe that the ordinary meaning of the phrase "reasonably reflect" as it is used in 
Article  2.2.1.1 indicates that when  the records of a  producer or exporter are used to calcul ate costs, 
those records must fairly reproduce the actual costs that are incurred in the production and sale of 
the product under consideration .  
7.161.   In this particular dispute, we note that the United Arab Emirates , and Taghleef in the 
underlying proceeding, have suggested that Taghleef 's appendix  D-3 data were superior to the 
costs that it recorded in appendix  2 because appendix  D-3 contained "specific … cost data that 
directly applied to … the production and sale"214 of BOPP film , and because the "costs given in  
[appendix]  D-3 … are based on the Company 's quarterly average of 'standard costs'".215 By contrast, 
the United  Arab Emirates asserts that Taghleef 's appendix  2 data " w[ere] not representative of the 
costs affiliated  with domestic sales, as it included certain non -relevant costs for selling to markets 
other than in the UAE" .216  
7.162.   We also observe, however, that the COP section  of the NTC 's exporter questionnaire  
instructed Taghleef to report the company 's "per-unit COP information  for each type of [investigated 
product]  in Appendix  No. 2" and further instructed Taghleef that the "amounts reported in 
 
204 Pakistan 's second written submission, para. 2.53. 
205 NTC's  blank  exporter questionnaire, (Exhibit  PAK-37), p. 18; Taghleef 's questionnaire response , 
(Exhibit  ARE-16 (BCI)), p. 29. 
206 Pakistan 's first written submission, para. 3.147.  
207 Taghleef 's response to third deficiency letter, redacted version , (Exhibit  ARE-18), p.  2. 
208 Pakistan 's first written submission, paras.  3.157 -3.160 and 3.162.  
209 United Arab Emirates ' response to Panel q uestion  No. 46, paras.  51-52 (asserting, among other 
things, that nothing in the A nti-Dumping  Agreement  "requires an interested part y to submit replies to … 
questionnaires accompanied by 'evidence '" and that "the NTC never made any request to provide 'evidence ' to 
support the COP number given in response to the questionnaire as Appendix  D-3"). 
210 United Arab Emirates ' response to Panel  question No.  42, para. 50. 
211 Taghleef 's response to third deficiency letter , (Exhibit  ARE-18b (BCI)) , para.  A4. 
212 Pakistan 's second written submission, para. 2.71. 
213 Pakistan 's response to Panel  question No.  44. 
214 United Arab Emirates ' first written submission, para. 192. 
215 United Arab Emirates'  first written submission, para. 208. 
216 United Arab Emirates ' first written submission, para. 198; see also ibid. para. 213 (stating that the 
appendix  2 data "include many extraordinary and abnormal cost items … such as promotional costs for sales to 
European and American markets an d carrying costs of investment and cost of shared services rendered to 
Ti Group") . WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  Appendix  2 should be based on the actual c osts incurred by your company as recorded in your 
normal accounting system" .217 We further observe that Taghleef stated that  the cost information 
that it provided to the NTC in appendix  2 mirrored the company 's audited financial statements .218 
Taghleef does not appear to have made a similar statement regarding the appendix  D-3 data.  
7.163.   Given this, we are of the view that the various cost information  that Taghleef provided to 
the NTC both in its response s to the questionnaire and in follow -on exchanges, and the 
representations that Taghleef made to the NTC related to this data appear to be  somewhat conflicted.  
7.164.   This conflict  might have been capable of being resolved by the NTC had it had the opportunity 
to evaluate the appendix  2 and appendix  D-3 data against Taghleef 's audited financial statements.  
In this instance, however, Taghleef declined to provide its audited financial statements to the NTC219, 
noting that, [[***]] .220  
7.165.   The United  Arab Emirates acknowledges that the NTC advised Taghleef of this iss ue in both 
the NTC's preliminary and final report.221 Specifically, the  United  Arab Emirates acknowledges that 
the NTC advised Taghleef that it had "'not provided a copy of the audited accounts ' and that such a 
copy is 'required for cross checking the cost of production [of the] investigated products while 
determining ordinary course of trade'" .222 Notwithstanding this,  the United  Arab Emirates suggests  
that these statements are irrelevant223 to resolving whether the data that the NTC elected to use to 
determine that some of Taghleef 's sales were made in the ordinary course of trade reasonably 
reflected Taghleef 's costs.  
7.166.   We are of the view that when an authority is presented with what appear to be conflicting 
sets of company cost data, the phrase "reason ably reflect" in Article  2.2.1.1 provides the authority 
with a degree of discretion to select the data that correspond better to the company's actual costs , 
absent evidence  that demonstrat es that a particular dataset is clearly superior  (for example data 
reflected in audited financial statements) . While the  exact scope of this discretion will vary depending 
on the specific facts of each proceeding , in this instance we conclude that the NTC acted within the 
bounds of its discretion when it elected to use Tag hleef's appendix  2 data to conduct its dumping 
analysis.   
7.167.   We now turn to the  consideration element: Did the NTC "consider all available evidence on 
the proper allocation" of Taghleef 's costs when it determined to use Taghleef 's appendix  2 cost data?  
7.168.   The United Arab Emirates asserts that the NTC "never engaged with the COP information in 
Appendix  D-3".224 
7.169.   Pakistan counters this assertion by noting that the NTC stated in the Report on final 
determination  that, "[t]he cost of production stated at [appendix]  D-3 has been calculated by 
allocating fixed costs to export markets other than Pakistan. Similarly fixed cost has not been 
allocated to cost of production for domestic sales. This method of cost allocation does no[t]  present 
[a] true and fair picture of cost of production. Hence the [NTC]  calculated cost of production … on 
the basis of information provided" by Taghleef in appendix  2.225 
7.170.   We appreciate that the  United  Arab Emirates takes the view that the NTC should have  relied 
upon Taghleef 's appendix  D-3 data when determining how to properly allocate the company 's costs. 
We disagree , however,  with the  suggestion that the NTC failed to consider  this information. To the 
 
217 NTC's  blank  exporter questionnaire, (Exhibit  PAK-37), p. 18; Taghleef 's questionnaire response , 
(Exhibit  ARE-16 (BCI)), p . 29. 
218 United  Arab Emirates' second written submission, para. 105 (referring to Taghleef 's letter of 
30 November  2012, (Exhibit  ARE-19 (BCI)) , p. 2) ; see also Taghleef 's letter of 30  November 2012, 
(Exhibit  ARE-19 (BCI)), p.  2. 
219 Pakistan 's response to Panel  question No.  44. 
220 Taghleef 's questionnaire response , (Exhibit  ARE-16 (BCI)), p . 29. 
221 United Arab Emirates ' first written submission, para. 223. 
222 United Arab Emirates ' first written submission, para. 223 (referring to and quoting Report on 
preliminary determination,  (Exhibit ARE -9), para.  15.2.5; and Report on final determination (2013), public 
version,  (Exhibit ARE -2), para.  15.2.5).  
223 United Arab Emirates ' first written submission, para. 232. 
224 United Arab Emirates ' second written submission, para. 96. 
225 Report on final determination  (2013) , (Exhibit  PAK-1 (BCI) ), pp. 72-73. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  contrary, we no te that  the NTC's Report on final det ermination  both summarizes and responds to 
the cost -related arguments that Taghleef submitted to the NTC regarding the appendix  D-3 and 
appendix  2 data .226 While this portion  of the Report on final determination  is not lengthy, we believe 
that it is sufficient to demonstrate that the NTC did in fact, contemplate, think over, take note of, 
and regard227 – or, stated differently, "consider" – Taghleef 's appendix  D-3 material when 
determining how to  properly allocate  Taghleef 's costs.  
7.171.   In sum, given that (a)  Taghleef made arguably conflicting statements about the nature of 
its data; (b)  Taghleef provided arguably incomplete and conflicting information in response to the 
NTC's deficiency request that Taghleef separate and "work out" its costs to "make and sell … BOPP 
film" in the domestic and export market; (c)  absent these clarifications, the NTC did not have the 
means to separately evaluate whether the appendix  D-3 data were objectively superior to 
appendix  2 because the NTC could not weigh this data against the company's audited financial 
statements; and (d)  the Report on final determination demonstrated that the NTC considered 
Taghleef's  appendix  D-3 arguments, we conclude that the NTC's  establishment of the facts 
surrounding Taghleef's  cost data was proper and that its evaluation of those facts was unbiased and 
objective. We therefore find that the United Arab Emirates has not established that the 
NTC's  decision to use Taghleef's  appendix  2 data was inconsistent with  Article  2.2.1.1 of the 
Anti-Dumping  Agreement.  
7.4.3.1.2   Article  2.2.2  
7.172.   The facts and argument s underlying the United  Arab Emirates ' Article  2.2.2 claim, and 
Pakistan 's response to this claim, are  virtually indistinguishable from the facts and arguments put 
forward in the context of the United  Arab Emirates ' Article  2.2.1.1  claim. Both claims are 
data-oriented and take issue with the NTC 's decision to use the information tha t Taghleef provided 
to the NTC in appendix  2 rather than appendix D-3, to ascertain wh ether sales were in the ordinary 
course of trade. The only apparent difference between the two is that the 
United  Arab Emirates'  Article  2.2.2 allegation is premised on the suggestion that appendix  D-3 
reflected "actual data" within the meaning of Article 2.2.2, whereas appendix  2 did not.228 
7.173.   As noted above, when an investigating authority determines normal value under Article  2.2, 
Article  2.2.2 requires the authority to use a party 's "actual" SG&A cost and profit data "pertaining 
to production and sales in the ordinary course of trade".  
7.174.   The United  Arab Emirates claims that Pakistan acted inconsistently with  this requirement 
because, by using what it considers was more general informat ion contained in appendix  2 rather 
than more "specific per unit" cost data contained in appendix  D-3, the NTC "used cost data for SG&A 
that were not based on actual data" .229  
7.175.   Pakistan responds that Taghleef 's appendix  2 data were the relevant source of inf ormation 
to determine the company 's SG&A costs and profits and was, in fact, "actual data"230 pertaining to 
Taghleef 's domestic sales "taken from [Taghleef's] audited financial statements whereas the 
Appendix  D-3 were standard costs".231 
 
226 Report on final determination  (2013) , (Exhibit  PAK-1 (BCI) ), pp. 72-73 (reproducing 
Taghleef's  comments in which the company reiterated its position "that the [NTC]'s  methodology for the 
determination of dumping in the [preliminary determination] is not in accordance with the information provided 
by Taghleef and thus in cont ravention of the Ordinance", and asserted that the "[NTC] has chosen to ignore 
what Taghleef has repeatedly stated in its response to the Exporter's  Questionnaire, deficiency letters, detailed 
letters and submissions etc., that the information representing  cost to make and sell for domestic sales is what 
was provided in [appendix]  D-3 rather than Appendix  2"). See also fn  241 below . 
227 See para.  7.140  above (reviewing the meaning of the word "consider").  
228 United Arab Emirates' first written submission, paras.  207 and 224 (asserting that the cost data used 
by the N TC was not "actual data" and that the NTC rejected Taghleef's "actual data on costs"); second written 
submission, para.  93 (asserting that the NTC used "cost data for SG&A that were not based on actual data 
pertaining to the production and sale of the like  product in the home market") ; responses to Panel question 
No. 38, para.  42 (same); No.  49, para.  58 (same) and No.  87, para.  6 (same); and comments on 
Pakistan's  response to Panel question No.  87, p.  3. 
229 United Arab Emirates ' second written submission, para. 93. 
230 Pakistan 's first written submission, para. 3.224.  
231 Pakistan 's second written submission, para. 2.75. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  7.176.   The Panel notes that  in support of its Article  2.2.2 claim, the United  Arab Emirates has not 
pointed to any additional evidence not described above that would lead us to conclude that the 
information that Taghleef provided to the NTC when it replied to section  F of the exporter 
questionnaire  was not "actual data", or that Taghleef 's appendix  D-3 information better reflected the 
company 's "actual" SG&A costs and profits.  We again observe that ( a) the instructions that were 
provided in the exporter questionnaire  that the NTC issued to Taghleef requested the company to 
base the "per -unit COP" amounts that it reported in appendix  2 on the "actual costs" that Taghleef 
incurred "for each type of [investigated product] "; (b) Taghleef asserted that its appendix  2 data 
mirrored the company 's audited financial statements ; and ( c) the NTC was unable to evaluate 
Taghleef 's datasets against the company 's audited financial statements.232  
7.177.   Based on this, and given the conflicting statements that Taghleef made with respect to its 
data that we describe above, we conclude that the United  Arab Emirates has not established that 
the NTC 's decision to use Taghleef 's appendix  2 information to determine the company 's SG&A costs 
and profits was inconsistent with  Pakistan 's obligations under  Article  2.2.2 of the 
Anti-Dumping  Agreement . 
7.4.3.1.3   The NTC's e xplanation in the Report on final determination  
7.178.   Together with  the arguments noted above, t he United  Arab Emirates argues  that Pakistan 
acted inconsistently with  its obligations under Articles  2.2.1.1 and 2.2.2  of the 
Anti-dumping  Agreement  because the NTC failed to adequately explain its decision not to use 
Taghleef 's appendix  D-3 information.  
7.179.   We understand that the United  Arab Emirates ' arguments  that the NTC failed to adequately 
explain its decision centre on Article s 2.2.1.1 and 2.2.2233, in that they challenge the NTC's alleged 
failure to explain why it did not use "the most relevant cost data"234 or why Taghleef 's "actual data" 
on sales ( i.e. the appendix D-3 data) could not be used in the NTC's dumping analysis. The  
United  Arab Emirates supports this allegation by observing that the panel in China – Broiler Products  
determined that an authority "must set forth its reasons" for declining to use information on the 
basis that it does not have a genuine relationship with the production and sale of the specific product 
under consideration.235  
7.180.   The United Arab Emirates  also asserts  that the NTC "made no finding, or provided other 
explanation, that would indicate that" the fact that the appendix 2 data reflected Taghleef's financial 
accounts "informed the way in which" the NTC elected to establish normal value .236  
7.181.   Pakistan re sponds that the United  Arab Emirates "fails to mention, let alone properly address 
or engage with, the NTC 's explanation of why it rejected" Taghleef 's appendix  D-3 data.237 
Specifically, Pakistan notes that the Report on f inal determination stated that:  
The cost of production stated at [appendix] D-3 has been calculated by allocating the 
fixed costs to export markets other than Pakistan.  Similarly fixed costs has not been 
allocated to cost of production for domestic sales.  This method of cost allocation doe s 
not present true and fair picture of cost of production.  Hence the NTC calculated cost of 
production of Taghleef Oman on the basis of information provided by it in appendix  2.238  
7.182.   As we consider this particular set of arguments, we note that the United  Arab Emirates does 
not appear to have completely captured the scope of the panel 's reasoning in the China – Broiler 
 
232 We also note that, despite our questions, the United Arab Emirates has not pointed us to the profit 
data that it alleges the NTC has disregarded. (United Arab Emirates'  response to Panel question No.  49).  
233 United Arab Emirates'  first written submission, paras.  214-215 and 217-222 (referring to 
Article  2.2.1.1 and  Article  2.2.2 and reviewing, in light of the NTC's c onduct, the requirement that an 
investigating authority provide a reasoned and adequate explanation for its actions).  
234 United Arab Emirate s' first written submission, para. 215. 
235 United Arab Emirate s' first written submission, paras.  216-217. 
236 United Arab Emirates' second written submission, para.  105. 
237 Pakistan 's first written submission, para. 3.237. 
238 Pakistan's  first written submission, para.  3.238 (quoting Report on final determination (2013), 
(Exhibit  PAK-1 (BCI)), pp.  72-73). See also fn  178 above.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  Products  proceeding. For ease of reference, the complete statement that the United  Arab Emirates 
references in China – Broiler Products  reads as follows:  
In sum, the Panel is of the view that although Article  2.2.1.1 sets up a presumption that 
the books and records of the respondent shall normally be used to calculate the cost of 
production for constructing normal value, the inves tigating authority retains the right 
to decline to use such books if it determines that they are either (i) inconsistent with 
GAAP or, (ii) do not reasonably reflect the costs associated with the production and sale 
of the product under consideration. Howe ver, when making such a determination to 
derogate from the norm, the investigating authority must set forth its reasons for doing 
so.239 
7.183.   A close reading of this paragraph  makes clear that the Broiler Products  panel stated that an 
authority must "set forth i ts reasons" in the event that it "derogates from the norm" by declining  to 
use a respondent 's books and records to determine normal value. That is not the circumstance here. 
In this instance, the NTC did use Taghleef 's records  to determine normal value , just not the records 
that Taghleef and the United  Arab Emirates believe the NTC should have used.240  
7.184.   Recognizing  this, the question that  would seem to be  properly before the Panel is not whether 
the NTC acted inconsistently with  its Article  2 obligations  because it failed to explain why it did  not 
use Taghleef 's records  at all.  The question is, instead,  whether the NTC acted inconsistently with  
Pakistan 's obligations b y not explain ing why it used some of Taghleef 's records but not others.  
7.185.   In th is instance, we are of the view that the NTC did explain why it elected to use 
Taghleef 's appendix  2 data rather than its appendix D-3 data.241 In particular, we observe that the 
Report on f inal determination stated that the NTC took the view that Taghleef 's appendix D-3 data 
allocated certain "fixed costs to export markets other than Pakistan". The Report on f inal 
determination also stated that " [s]imilarly fixed cost has not been allocated to cost of production for 
domes tic sales" .242  
7.186.   While this explanation is brief, it does explain "why" the NTC elected to use 
Taghleef 's appendix  2 data instead of its appendix D-3 data. Based on this, we find that the 
United  Arab Emirates has not established that Pakistan acted inconsist ently with  its Article s 2.2.1.1 
and 2.2.2 obligations to adequately explain its decision not to use Taghleef 's appendix  D-3 
information . 
7.187.   The fact that the NTC did not explicitly state that it "preferred the [a]ppendix 2 data because 
it 'mirrored the compan y's financial accounts'"243 does not alter this  analysis . While i nvestigating 
authorities must of course provide a reasoned and adequate explanation for their decisions, 
authori ties need not explicitly address each and every argument that is presented to them to fulfil 
this requirement, as long as the rationale for a particular  decision can be inferred from the record of 
the proceeding.244 In this case , as also noted above,  the NTC twice advised Taghleef that it had "not 
provided [a] copy of [its] audited accounts" and that this information was "required for cross 
checking the cost of production [of the] investigated product … while determining [the] ordinary 
course of trade for domest ic sales" .245 When we consider this exchange in concert with the arguably 
conflicting and incomplete information and statements described above that Taghleef provided to 
the NTC , and in  concert with  the record of this proceeding, we believe it reasonable to  infer that , 
when it was determining which dataset better reflected Taghleef's costs,  the NTC considered the fact 
 
239 Panel Report, China – Broiler Products , para.  7.164.  
240 See e.g. Pakistan's first written submission, para. 3.137 (stating that "the UAE does not deny t hat 
the NTC used Taghleef's own COP figures … . Rather, the UAE argues that the NTC should have used another  
set of figures from Taghleef's Questionnaire response" (emphasis original)).  
241 We note that in response to our question asking the United Arab Emi rates to explain the manner in 
which Taghleef allocated different cost items across different markets, the United Arab Emirates assert ed that 
those costs were not allocated to any specific market . This explanation was not provided to the NTC. 
(United  Arab Emirates' response to Panel question No.  48). 
242 Report on final determination (2013), public version, (Exhibit  ARE-2), annexure -IV, pp.  72-73. 
243 United Arab Emirates' second written submission, para.  105. 
244 See e.g . Appellate Body Report, US – Counter vailing Duty Investigation on DRAMS , paras.  164 
and 186; and Panel Report, EU – Fatty Alcohols (Indonesia) , para.  7.8. 
245 Report on final determination (2013),  (Exhibit PAK -1 (BCI)) , para.  15.2.5.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  that Taghleef stated that its appendix 2 data mirrored the company's financials to be a relevant 
factor in its analysis.  
7.4.3.2   Consequential claims under Article s 2.2 and 2.2.1  
7.188.   Lastly, the United  Arab Emirates claims that Pakistan acted inconsistently with  Article s 2.2 
and 2.2.1 on the grounds that, if the NTC had used Taghleef 's appendix  D-3 data, Taghleef 's overall 
costs would have been lower and that this, in turn, would have led the NTC to determine that more 
of the company 's domestic sales were made in the ordinary course of trade.246  
7.189.   Pakistan contests the premise of these consequential claims, and asserts that the NTC did 
not err in using Taghl eef's appendix  2 cost data.  
7.190.   The United  Arab Emirates'  claims under Articles  2.2 and  2.2.1 are based on the premise that 
the NTC acted inconsistently with Articles  2.2.1.1 and  2.2.2 in electing to rely on the appendix  2 
data instead of the appendix  D-3 dat a. Because we  find that the United  Arab Emirates has not 
established that the NTC 's decision to use Taghleef 's appendix  2 data was inconsistent with 
Article s 2.2.1.1 and  2.2.2, we find that the United  Arab Emirates has not established that, as a 
consequenc e, the NTC also acted inconsistently with Articles  2.2 and  2.2.1 . 
7.4.3.3   Conclusion under Articles  2.2, 2.2.1, 2.2.1.1, and 2.2.2  
7.191.   We conclude that the United  Arab Emirates has not established that the NTC 's decision to 
use Taghleef 's appendix  2 data was inconsist ent with Pakistan 's obligations under Article s 2.2, 2.2.1, 
2.2.1.1, and  2.2.2. We also find that the United  Arab Emirates has not established that the 
explanation that the NTC provided when taking this action was inconsistent with  
Pakistan 's obligations under these articles . 
7.5  Level of trade adjustment: Article  2.4 of the Anti -Dumping  Agreement  
7.192.   Taghleef requested an adjustment for differences in level of trade on the basis that in 
Pakistan it sold mainly to distributors, whereas on the domestic market it sold mainly to converters. 
According to Taghleef, its prices to distributors were lower than its prices to converters, because 
Taghleef was giving distributors discounts to compensate them for their distribution costs.247 After 
a number of exchang es with Taghleef, the NTC rejected Taghleef's request as unsubstantiated.  
7.193.   The United Arab Emirates argues that Pakistan acted inconsistently with Article  2.4 of the 
Anti-Dumping  Agreement because (a) Taghleef substantiated its request with evidence and 
arguments in "no less than five submissions" , but the NTC rejected the request without a reasoned 
and adequate explanation248; and (b) the NTC did not indicate what information reasonably available 
to Taghleef was required to substantiate a request for a level  of trade adjustment249, and the NTC 
imposed an unreasonable burden of proof on Taghleef.250  
7.194.   Pakistan responds that the NTC repeatedly instructed Taghleef on what information it 
required, but Taghleef either ignored the NTC's  instructions, or was unable to substantiate its 
assertions.251  
 
246 See e.g. United Arab Emirate s' first written submission, p ara. 227; second written submission, 
paras.  92-93 and 97 -98. 
247 United Arab Emirates'  first written submission, paras.  238-239, 241, and 243. See also 
section  7.5.2.1.2  below.  
248 United Arab Emirates'  first written submission, paras.  240, 248 -249, and 253 -255; opening 
statement at the first meeting of the Panel, paras.  89 and 92; second written submission, paras.  120, 123, 
125, and 131; written opening st atement, paras.  54 and 57; and response to Pakistan's  written opening 
statement, paras.  29-30. 
249 United Arab Emirates'  first written submission, paras.  248 and 250; second written submission, 
paras.  120 and 131. See also United Arab Emirates'  first written  submission, para.  257; written opening 
statement, para.  54; response to Pakistan's  written opening statement, para.  27; and comments on 
Pakistan's  response to Panel question No.  88, p.  7. 
250 United Arab Emirates'  first written submission, paras.  251 and 25 7; second written submission, 
para. 121; and written opening statement, para.  55. 
251 Pakistan's  first written submission, e.g.  paras. 3.245, 3.324, and 3.329.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  7.195.   In this section, we first recall the applicable requirements of Article  2.4 of the 
Anti-Dumping  Agreement (section  7.5.1). We then ap ply those requirements to the facts of this case 
(section  7.5.2 ) and find that the United Arab Emirates has not established that Pakistan acted 
inconsistently with Ar ticle 2.4 (section  7.5.3 ).  
7.5.1   The applicable requirements of Article  2.4 
7.196.   Article  2.4 provides, in relevant part:  
A fair comparison shall be made between the export price and the normal value. This 
comparison shall be made at the same level of trade, normally at the ex -factory level, 
and in respect of sales made at as nearly as possible the same time. Due allowance 
shall be made in each case, on its merits, for differences which affect price 
comparability, including differences in … levels of trade … and any other differences 
which are also demonstrated to affect price comparability. … The authorities shall 
indicate to  the parties in question what information is necessary to ensure a fair 
comparison and shall not impose an unreasonable burden of proof on those parties.252  
7.197.   Article  2.4 requires that investigating authorities make a fair comparison between the export 
price and the normal value, and sets forth certain requirements that must be complied with in order 
to ensure that the comparison is fair.  
7.198.   In particular, Article  2.4 requires that investigating authorities make "[d]ue allowance … in 
each case, on its merits, f or differences which affect price comparability ".253 Article  2.4 is thus 
explicit that the relevant differences are those "which affect price comparability", and we agree with 
the Appellate  Body that "this refers to differences in characteristics of the compared transactions 
that have an impact, or are likely to have an impact, on the prices of the transactions".254  
7.199.   Article  2.4 provides an illustrative list of differences that may affect price comparability, 
which includes "differen ces in … levels of trade". However, the existence of one of the differences 
listed in Article  2.4 does not automatically mean that price comparability has been affected, as " there 
may be situations when those differences do not affect price comparability".255 
7.200.   The last sentence of Article  2.4 requires that investigating authorities  "indicate to the parties 
in question  what information is necessary to ensure a fair comparison". Investigating authorities 
must thus indicate what information they will need in ord er to ensure a fair comparison "so that the 
interested parties will be in a position to make a request for adjustments".256 In addition, the last 
sentence of Article  2.4 requires that investigating authorities "not impose an unreasonable burden 
of proof on those parties".257  
7.201.   Although investigating authorities are under the obligation to ensure that the comparison is 
fair, we agree with the Appellate  Body and panels in previous disputes that "exporters bear the 
burden of substantiating, 'as constructively as possible', their requests for adjustments" under 
Article  2.4.258 Therefore, if exporters request an adjustment but fail to demonstrate the existence of 
 
252 Fn omitted.  
253 Emphasis added.  
254 Appellate  Body Report, EU – Fatty Alcohols (Indonesia) , para.  5.22 (referring to Appellate  Body 
Report, US – Zeroing (EC) , para.  157).  
255 Appellate  Body Report, EU – Fatty Alcohols (Indonesia) , para. 5.23. We thus also agree with the 
panel in US – Softwood Lumber V  that "Article  2.4 does not requir e that an adjustment be made automatically 
in all cases where a difference is found to exist, but only where – based on the merits of the case – that 
difference is demonstrated to affect price comparability". ( Panel Report, US – Softwood Lumber V , para.  7.165 
(emphasis original)).  
256 Appellate  Body Report, EC – Fasteners (China) (Article  21.5 – China) , para.  5.165 (quoting 
Appellate  Body Report, EC – Fasteners (China) , para.  489).  
257 We note the panel's  observation in US – Softwood Lumber V "that the requirem ent in the last 
sentence of Article  2.4 that the authorities 'shall not impose an unreasonable burden of proof' on interested 
parties does not remove the burden from interested parties to substantiate their assertions concerning claimed 
adjustments". (Ibid . para.  7.167). See also Panel Report, EC – Tube or Pipe Fittings , para.  7.157.  
258 Appellate  Body Report, EC – Fasteners (China) (Article  21.5 – China) , para.  5.204 (quoting 
Appellate  Body Report, EC – Fasteners (China) , para.  488). See also Panel Reports, EC – Tube or Pipe Fittings , 
para. 7.158; and Korea – Certain Paper , para.  7.147.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  a difference that affects price comparability, the investigating authorities are entitled to reject the 
requested adjustment.259 At the same time, the investigating authorities "must take steps to achieve 
clarity as to the adjustment claimed and then determine whether and to what extent that adjustment 
is merited".260 
7.5.2   Whether Pakistan acted inconsistently with Article  2.4 
7.202.   In light of the parties'  arguments, we consider that in order to resolve the 
United  Arab Emirate s' claim under Article  2.4, we need to examine : (a) the NTC's assessment of the 
evidence, namely whether the NTC rejected a request that was duly su bstantiated, without a 
reasoned and adequate explanation for doing so (section  7.5.2.1 ); and (b)  the NTC's requests for 
evidence, namely whether the NTC failed to in dicate what information was necessary to substantiate 
a request for a level of trade adjustment and imposed an unreasonable burden of proof on Taghleef 
(section  7.5.2.2 ).  
7.5.2.1   The NTC's assessment of the evidence  
7.203.   The United  Arab Emirates argues that "[i]n no less than five submissions, Taghleef provided 
arguments and evidence to support the need for an adjustment related to the differences in the level 
of trade, which were demonstrated to affect price comparability"261, "but the NTC ignored this 
evidence and rejected the request for an adjustment".262 The United  Arab Emirates submits that 
"the NTC effectively found that absent evidence of additional costs on the sid e of the distributors in 
Pakistan no adjustment was warranted" .263 The United  Arab Emirates contends  that the NTC 
"disregarded the fact that evidence was presented by Taghleef that distributors necessarily incurred 
certain additional costs for which compens ation was required in the form of price reductions".264 The 
United  Arab Emirates argues that the NTC failed to provide a reasoned and adequate explanation of 
why, despite the evidence presented by Taghleef, it denied the adjustment.265  
7.204.   Pakistan responds that "Taghleef failed to provide any meaningful evidence to substantiate 
its assertions"266, and that it "either ignored the multiple information requests of the NTC or it was 
compelled to acknowledge that it was unable to provide the requisite inf ormation".267 In particular, 
Pakistan argues that Taghleef did not provide "information on the precise amounts that formed the 
basis for the discounts granted to the Pakistani distributors".268 According to Pakistan, "the NTC 
provided a reasoned and adequate  explanation why it had no choice but to reject" the request for a 
level of trade adjustment.269 
7.205.   To make our assessment, we turn first to the explanation provided by the NTC in its Report 
on final determination, and then to the evidence that, according to t he United Arab Emirates, 
supported Taghleef's request but was "ignored" by the NTC.  
 
259 Appellate  Body Reports, EC – Fasteners (China) (Article  21.5 – China) , para.  5.204;  EC – Fasteners 
(China) , para. 488; and Panel Report, Korea – Certain Paper , para.  7.147.  
260 Appellate  Body Reports, EC – Fasteners (China) (Article  21.5 – China) , para.  5.204;  EC – Fasteners 
(China) , para. 488; and Panel Report, EC – Tube or Pipe Fittings , para.  7.158.  
261 United Arab Emirates'  first written submission, para.  240. The five submissions referred to by the 
United Arab Emirates in paragraphs 240 -246 of its first written submission are: Taghleef's  questionnaire 
response, (Exhibit  ARE-16 (BCI)); Taghleef's  respon se to second deficiency letter, (Exhibits ARE -20 
(redacted)/ARE -20b (BCI)); Taghleef's  response to third deficiency letter, (Exhibits ARE -18 
(redacted)/ARE -18b (BCI)/ARE -18c (BCI) (revised)); Taghleef's  letter of 31  May 2011, (Exhibit  ARE-22 (BCI)); 
and Ta ghleef's  letter of 30  November  2012, (Exhibit  ARE-19 (BCI)).  
262 United Arab Emirates'  opening statement at the first meeting of the Panel, para.  89; see also 
second  written submission, para.  123. 
263 United Arab Emirates'  first written submission, para.  248; second written submission, para.  131. See 
also United Arab Emirates'  opening statement at the first meeting of the Panel, para.  91. 
264 United Arab Emirates'  first written submission, para.  248; second written submission, para.  131. 
265 United Arab Emirates' f irst written submission, paras. 253 and 255; second written submission, 
para. 125. See also  United Arab Emirates'  opening statement at the first meeting of the Panel, para. 92; 
written opening statement, para. 57; and response to  Pakistan's written opening  statement, para. 29.  
266 Pakistan's  first written submission, para.  3.324.  
267 Pakistan's  first written submission, para.  3.329.  
268 Pakistan's  first written submission, para.  3.308.  
269 Pakistan's  first written submission, para.  3.340. See also ibid. para.  3.6; and second written 
submission, para.  2.119.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  7.5.2.1.1   The NTC's explanation in the Report on final determination  
7.206.   In its Report on final determination, the NTC provided the following explanation for denying 
Taghleef's  request for a level of trade adjustment:  
[a] The [NTC]  has rejected the level of trade adjustment on the ground that same level 
of trade adjustment has not been offered for domestic sales. The level of trade 
adjustment is given in view of saving in the cost of tra nsactions. The [NTC] asked as to 
what price differential is available in domestic market, which justify the level of trade 
adjustment in export price. In reply it was stated that there is no differential in level of 
trade in the domestic market. [ b] Howeve r, different price is given to different 
categories of importers in view of their additional cost hence this adjustment is claimed. 
But no evidence of additional cost of importer has been given by the exporter. The 
adjustment of level of trade is given for  reasons of cost saving of the exporters and not 
on account of additional cost of importers. The [NTC] has disregarded the adjustment 
on the grounds, if it is accepted that adjustment is given on the account of additional 
cost, it should be supported by es sential data plus it cannot be different for different 
exporters as shown below.  
Table – III 
Different Level of Trade claimed  
Distributor Name  Taghleef SAO [C] Taghleef LLC  
 Status  Per Unit Adjustment 
Claimed [[***]]  Status  Per Unit Adjustment 
Claimed [[***]]  
Multi Traders  Distributor  [[***]]  Distributor  [[***]]  
Adnan Brothers  Distributor  [[***]]  Distributor  [[***]]  
Glamour 
International  Distributor  …  Distributor  [[***]]  
Trade Line 
International  Distributor  [[***]]  … … 
Sony Trading CO  Distributor  [[***]]  … … 
It is also added that the costs of distributors have not been established through 
evidence.270 
7.207.   There are thus two parts to Taghleef's explanation, which for ease of reference we have 
identified by adding "a" and "b" in the quotation above: (a)  Taghleef could not demonstrate the need 
for an adjustment in the manner usually preferred by the NTC, namely based on differences in level 
of trade on the domestic market; and (b) Taghleef sought an adjustment  on a different basis, namely 
additional costs incurred by distributors, but the NTC found that Tagh leef had not substantiated that 
request with evidence of the additional costs.  
7.208.   Thus, in the first part of its explanation the NTC noted that Taghleef had no t based its request 
for a level of trade adjustment on differences in prices between different levels of trade on the 
domestic market, which the exporter questionnaire  described as the NTC's preferred method for 
demonstrating the existence of a difference in levels of trade affecting price comparability.271 
Ultimately, however, this was not material because the NTC entertained Taghleef's proposal of an 
alternative basis for substantiating the need for an adjustment, even though the NTC then concluded 
that Taghleef had not provided sufficient evidence to supp ort its request.272 
7.209.   In the second part of its explanation, the NTC addressed Taghleef's request as formulated 
by Taghleef. The NTC noted that Taghleef's position was that its prices to "different categories of 
importers" were different because of the additi onal costs those importers (i.e. distributors273) 
incurred, and that Taghleef was requesting an adjustment on the basis of these additional costs. 
The NTC then explained that, however, "no evidence of additional cost of importer has been given 
 
270 Report on final determination (2013), (Exhibit  PAK-1 (BCI)), paras.  29.2.3 -29.2.4 
(emphasis  original). See also Report on final determination (2013), public version, (Exhibit  ARE-2), 
paras.  29.2.3 -29.2.4.  
271 See para. 7.240  below.  
272 Report on final determination (2013), public version, (Exhibit  ARE-2), para.  29.2.3.  
273 See e.g. Taghleef's questionnaire response, (Exhibit ARE -16 (BCI)), section C -1.1. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  by the export er"; "if it is accepted that adjustment is given on the account of additional cost, it 
should be supported by essential data"; and "the costs of distributors have not been established 
through evidence".274  
7.210.   We understand these statements to mean that the NT C denied the adjustment because, 
although Taghleef was requesting an adjustment for differences in level of trade on the basis of  
additional costs allegedly incurred by distributors in Pakistan, Taghleef  had not provided the 
evidence necessary to substanti ate its request, such as evidence of the alleged additional costs on 
which the request for an adjustment was based .  
7.211.   The United Arab Emirates however argues that Taghleef  did provide the necessary evidence 
but the NTC ignored it, effectively finding "that absent evidence of additional costs on the side of 
the distributors in Pakistan no adjustment was warranted", and failing to provide a reasoned and 
adequate explanation for reject ing the request for an adjustment in light of the evidence before it.275 
We th erefore review the arguments and evidence of Taghleef that the United  Arab Emirates refers 
to, to test whether, in light of that evidence and of the standard in Article 2.4, the NTC's explanations 
and conclusions are reasoned and adequate. We review Taghle ef's arguments and evidence in the 
following order: Taghleef's questionnaire response (section  7.5.2.1.2 ); Taghleef's subsequent 
submissions regarding the additional  costs of distributors (section  7.5.2.1.3 ); and 
Taghleef's  agreement with one distributor (section  7.5.2.1.4 ). 
7.5.2.1.2   Taghleef's response to the exporter questionnaire  
7.212.   In requesting an adjustment for level of trade in its response to the exporter questionnaire , 
Taghleef stated as follows:  
[[***]] .276  
7.213.   As a point of clarification, we note that Taghleef's questionnaire response and subsequent 
submissions contained certain contradictory statements on the categories of customers to which it 
sold in its domestic market.277 However, Taghleef clarified in response t o a deficiency letter that 
during the POI, all its domestic market sales were to converters and traders, and none to distributors 
and end -users.278  
7.214.   Thus, in its questionnaire response, Taghleef was arguing that its price to distributors in 
Pakistan was low er than its price to converters and traders in the domestic market  to compensate 
 
274 Report on final determination (2013), public version, (Exhibit ARE -2), paras. 29.2.3 -29.2.4. The NTC 
also stated "plus [the adjustment] cannot be different for different exporters, as shown below", and the 
United  Arab Emirates takes issue with this statement. We note that table -III, which follows immediately 
"below", shows that two different exporters, Taghleef LLC, Dubai and Taghleef SAOC, Oman indeed claimed 
adjustments in significantly different amounts for the same Pakistani  distributors. Pakistan explains that the 
NTC made this observation because the fact that the two exporters requested level of trade adjustments in 
different amount for sales to the same distributor  in Pakistan is inconsistent with Taghleef's  narrative tha t the 
discounts were driven by the distributors'  costs. The United  Arab Emirates argues that this explanation by 
Pakistan constitutes an ex post justification. However, as this relates to a reason that the NTC made explicit in 
its explanation, we reject th e United  Arab Emirates' argument that this is an ex post justification. The 
United  Arab Emirates has not shown to us that this reasoning was not proper. (Report on final 
determination  (2013), public version, (Exhibit ARE -2), para. 29.2.3 and table -III; Uni ted Arab Emirates'  written 
opening statement, paras.  56-57 and fn  68; response to Pakistan's  written opening statement, para.  28; 
Pakistan's first written submission, paras.  3.313 and 3.318; second written submission, paras. 2.218 
and 2.137; written openin g statement, paras.  60-62; and response to United Arab Emirates'  written opening 
statement, para.  30). 
275 See para.  7.203  above.  
276 Taghleef's  questionnaire response, (Exhibit  ARE-16 (BCI)), sections  C-1.1 and D -2.4 
(emphasis  added). See also Taghleef's  response to second deficiency letter, redacted version, 
(Exhibit  ARE-20), paras.  A2:1 and  A6; Taghleef's  response to third deficiency  letter, redacted version, 
(Exhibit  ARE-18), para.  A1; and Taghleef's  letter of 30  November  2012, (Exhibit  ARE-19 (BCI)), p.  3. 
277 For instance, at section  C-1.1 of its questionnaire response, Taghleef stated that its domestic market 
sales had been made mos tly to end -users (Taghleef's  questionnaire response, (Exhibit  ARE-16 (BCI))), 
whereas appendix  D-3 to the questionnaire response indicated that, during the POI, Taghleef 's domestic sales 
had been made to converters and traders. (Appendix  D-3 to Taghleef's  response to exporter questionnaire, 
(Exhibit PAK -14 (BCI))).  
278 Taghleef's  response to second deficiency letter, redacted version, (Exhibit  ARE-20), para.  A2:3.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  for "distribution costs and margin"  of the distributors . On that basis, in appendix  C-3 of the 
questionnaire, Taghleef included an upward adjustment to the price of its export  sales to distributors 
in Pakistan279, to reflect the additional costs and margin of the distributors as compared with 
converters and traders.   
7.215.   The United Arab Emirates refers to the questionnaire response as one of the five submissions 
in which Taghleef al legedly "provided arguments and evidence to support the need for an adjustment 
related to the differences in the level of trade".280 The questionnaire response, while including 
statements to the effect that sales on the domestic market and sales to Pakistan  were at different 
levels of trade, and stating the amount of the adjustment sought by Taghleef, did not contain 
evidence of the difference in levels of trade or of the basis for the adjustment sought. The NTC 
therefore sought evidence and clarifications f rom Taghleef, to which we now turn.   
7.5.2.1.3   Taghleef's submissions regarding the additional costs of distributors  
7.216.   Following receipt of the questionnaire response, in a deficiency letter dated 17  January  2011 
the NTC requested Taghleef to "provide documentary evid ence of expenses incurred by distributors 
against the allowance provided to them under allowance for level of trade".281 The NTC also asked 
Taghleef whether it had agreements with its distributors "that it will compensate [them] in their 
distribution cost a nd profit margin", and if so, to provide a copy "in respect of each distributor".282 
7.217.   Taghleef responded that it was "not possible for the Company to provide the documentary 
evidence of the expenses incurred by other companies" and that "distributors in Paki stan are 
independent companies and they do not share their costs and profits margins with the Company".283 
Taghleef added that it had agreements to compensate distributors for their additional costs and 
margin and submitted a copy of an agreement with one distributor284, which we discuss separately 
below.  
7.218.   In a further deficiency letter, dated 22  February  2011, the NTC requested that Taghleef 
"share the basis of estimation of such costs incurred by distributors and the cost incurred by each 
distributor".285  
7.219.   Taghleef answered that "[t]he adjustment value has been arrived [at] by subtracting the 
average selling price to distributors from the average selling price to converters".286 In the same 
letter, Taghleef also listed certain "differentiating cost elements" incurred by distributors in Pakistan, 
although without stating the value of those costs, and without providing any explanation.287  
 
279 Appendix C -3 to Taghleef's  response to exporter questionnaire,  
(Exhibits ARE -36 (BCI)/PAK -33 (BCI)).  
280 United Arab Emirates'  first written submission, paras.  240-241.  
281 Second deficiency letter, (Exhibit  PAK-18 (BCI) (revised)), para.  7.  
282 Second deficiency letter, (Exhibit  PAK-18 (BCI)), para.  3. 
283 Taghleef's  response to second deficiency letter, redacted version, (Exhibit  ARE-20), para.  A6. 
Taghleef also explained that the "'allowance for difference in level of trade'  is solely based on business 
convention, general practice of trade and the Company 's experience with the distribution set up in the 
domestic and external markets". (Ibid.)  
284 Purchase agreement, (Exhibit  ARE-34 (BCI)); Taghleef's  response to second deficiency letter, 
(Exhibit  ARE-20b (BCI)), para. A2 and annexure  1. In a subsequent defic iency letter, the NTC reiterated its 
request for agreements with all distributors to which Taghleef sold the investigated product. (Third deficiency 
letter, (Exhibit  ARE-17), para.  2(ii)). Taghleef responded that it only had one agreement, which it had alr eady 
submitted, and that it was giving the price discounts to all distributors irrespective of whether an agreement 
had been signed or not. (Taghleef's  response to third deficiency letter, redacted version, (Exhibit  ARE-18), 
para. A1(ii)).  
285 Third deficien cy letter, (Exhibit  ARE-17), para.  2(iii).  
286 Taghleef's  response to third deficiency letter, redacted version, (Exhibit  ARE-18), para.  A1(iii).  
287 Those costs, as they appear in Taghleef's  response letter are: [[***]]. (Taghleef's  response to 
third deficie ncy letter, (Exhibit  ARE-18c (BCI)), para.  A1(iii)).  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
- 57 - 
 
  7.220.   In a subsequent letter to the NTC dated 31  May 2011, Taghleef provided the following 
table setting out a breakdown of the distributors'  costs and profit margin underlying the price 
reductions288: 
[[***]]289 
 
7.221.   In arguing that there was evidence before the NTC to support Taghleef's  request for a level 
of trade adjustment, the United Arab Emirates repea tedly cites th is breakdown of distributors'  costs 
provided by Taghleef.290 In the United Arab Emirates'  view, this was a substantiated breakdown of 
the distributors'  costs for which discounts were given.291  
7.222.   Pakistan responds that "this piece of evidence is of essentially no evidentiary value"292, as 
the cost figures provided by Taghleef appear to be an estimate only, and Taghleef did not explain 
how it arrived at those figures.293 According to the United  Arab Emirates, Pakistan's arguments that 
the breakdown o f the distributors' costs does not constitute credible evidence are "inadmissible ex 
post justifications" , because they  did not feature in the explanation given by the NTC in its report.294 
However, the NTC stated in its report, inter alia , that "no evidenc e of additional cost of importer has 
been given by the exporter"295, that "the costs of distributors have not been established through 
evidence"296, and that "if it is accepted that adjustment is given on the account of additional cost, it 
should be supporte d by essential data".297 We therefore do not consider that Pakistan is providing  
"inadmissible ex post justifications".  
7.223.   We also note that Taghleef did not accompany the breakdown of costs with an explanation 
of how it arrived at those figures, or with any supporting evidence. In response to our questioning, 
the United  Arab Emirates indicated that the "grand total" of [[***]]  presented in the 
table approximate d the difference between the weighte d average price of sales to distributors on 
the one hand, and to converters on the other hand, in Pakistan .298 However, Taghleef did not explain 
its "breakdown of costs" to the NTC in this way during the proceedings; in fact, as we will see next, 
Taghleef s tated in a subsequent submission that it had "calculated" this "[m]argin … based on 
the [[***]] ".299  
7.224.   In its subsequent  communication of 30  November  2012, following the NTC's preliminary 
determination, Taghleef reiterated its explanation that, in Pakistan, it sold mainly to distributors, 
which "incur additional costs … and profit margin", and that "[k]nowing this, Taghleef Dubai sells 
the investigated product to distributors at a price that takes into account their additional costs" .300 
In other words, Taghle ef reiterated the assertions contained in its original questionnaire response, 
of which the NTC had subsequently sought clarifications and evidence.  
 
288 United Arab Emirates'  first written submission, paras.  245 and 250; second written submission, 
para. 120. 
289 Taghleef's  letter of 31  May 2011, (Exhibit  ARE-22 (BCI)), annex -I. (emphasis original)  
290 United Arab Emirates'  first written submission, paras.  245 and 250; second written submission, 
paras.  120 and 126; opening statement at the first meeting of the Panel, para.  90; written opening statement, 
para. 54; response to Pakistan written opening statemen t, para.  27; and comments on Pakistan's  response to 
Panel question No.  88, p.  7. 
291 United Arab Emirates'  response to Pakistan's  written opening statement, para.  27. 
292 Pakistan's  first written submission, paras.  3.320 -3.321. See also Pakistan's second writt en 
submission, para.  2.137.  
293 Pakistan's  first written submission, paras.  3.310 and 3.320. Pakistan also points out that Taghleef did 
not attempt to tie the figures it submitted, including the total of [[***]], to the discounts allegedly granted to 
distrib utors or to the requested adjustments, as listed in the spreadsheets annexed to Taghleef's  questionnaire 
response. (Pakistan's  first written submission, para.  3.321; see also response to Panel question No.  88, fn  13). 
294 United Arab Emirates' written openin g statement, para.  57 (referring to Pakistan's second written 
submission, para.  2.137).  
295 Report on final determination (2013), public version, (Exhibit  ARE-2), para.  29.2.3.  
296 Report on final determination (2013), public version, (Exhibit  ARE-2), para.  29.2.4. 
297 Report on final determination (2013), public version, (Exhibit  ARE-2), para.  29.2.3.  
298 United Arab Emirates'  responses to Panel question No.  51, paras.  63-64, and No.  52, para.  67. 
299 Taghleef's letter of 30  November  2012, (Exhibit ARE -19 (BCI)), p.  3. 
300 Taghleef's letter of 30  November  2012, (Exhibit ARE -19 (BCI)), p.  3. This is the fifth of the 
"five submissions" that the United  Arab Emirates refers to; see fn  261 above.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  7.225.   As just noted, Taghleef added that it had calculated the "margin" of the additional costs and 
profits "based on the [[*** ]]".301 Again, it provided no supporting evidence.  
7.226.   Thus, although Taghleef did repeat in a number of submissions that its distributors incurred 
additio nal costs (and added a margin), and that Taghleef charged them lower prices to compensate 
for those additional costs and margin, it did not provide evidence of the amount of those additional 
costs or of the amount of the consequent price reductions. In ans wer to the NTC's third deficiency 
letter, Taghleef provided a breakdown of costs resulting in a [[***]]  total, but provided no evidence 
of how it had arrived at those figures.  
7.227.   Taghleef provided  one item of documentary evidence that it presented as going to the 
existence  of the policy of compensating distributors for their additional costs and margin (and not 
to the amount of the price reduction), and we turn to that next. 
7.5.2.1.4   Taghleef's  agreement wit h a Pakistani distributor  
7.228.   In its deficiency letter of 17  January  2011, the NTC had also asked Taghleef to explain its 
stated  policy of compensating distributors for their distribution costs and margin and whether it had 
agreements with its distributors to this effect; in the event Taghleef had such agreements, the NTC 
requested a copy of those agreements.302 
7.229.   Taghleef submitted a copy of one agreement with an unrelated distributor in Pakistan, 
[[***]] .303 The United  Arab Emirates argues that this agreement "de monstrated … the arrangement 
for compensating the distributor for incurring additional costs when subsequently selling the BOPP 
film to end -users in Pakistan", and that this "is sufficient to establish that there was a price difference 
owing to the specifi c level of trade" .304 The United  Arab Emirates submits that the agreement in 
question "expressly provided for price 'concessions'  to account for the distributor's"  costs.305  
7.230.   Pakistan responds that the agreement with Taghleef's  distributor [[***]]  does not 
substantiate Taghleef's  assertion that it had a policy306 of giving price discounts to distributors as 
compensation for their distributions costs307, because that agreement concern ed only one 
distributor308; the discounts it contemplate d appear ed to be volume -driven rather than based on the 
level of trade309; and the agreement provide d that granting the discounts was entirely within 
Taghleef's  discretion.310 Pakistan also notes that the text of the agreement indicates that the precise 
amount of the discount would  be determined in light of information pertaining to individual 
transactions "at that point in time", and alleges that this implie d that the distributor would 
periodically provide Taghleef with information on its costs. Pakistan points out that Taghleef st ated 
 
301 Taghleef's letter of 30  November  2012, (Exhibit ARE -19 (BCI)), p.  3. 
302 Second deficiency letter, (Exhibit PAK -18 (BCI)), para.  3. 
303 Purchase agreement, (Exhibit  ARE-34 (BCI)); Taghleef's  response to second deficiency letter, 
(Exhibit  ARE-20b (BCI)), para.  A2 and annexure  1. 
304 United Arab Emirates' first written submission, para.  251; see also second written submission, 
para. 121.  
305 United Arab Emirates'  first written submission, para.  250; second written submission, para.  120. See 
also United Arab Emirates'  second written submission, para.  128. 
306 We note that Taghleef argued before the NTC that it was offering distributors a price that took it into 
account the costs they incurred for the sale of the product " as a matter of policy ". (Taghleef's  response to 
third deficiency letter, redacted version,  (Exhibit  ARE-18), para.  A1 (emphasis added)).  
307 Pakistan's  response to Panel question No.  88, para.  12. See also ibid. paras.  16-17; first written 
submission, paras.  3.299 -3.3302; second written submission, para.  2.138; and response to 
United  Arab Emirate s' written opening statement, para.  32.  
308 Pakistan's  second written submission, para.  2.138; response to United  Arab Emirates' written 
opening statement, para.  32; and response to Panel question No.  88, paras.  12 and 17. See also 
Pakistan's  first written submission, paras.  3.295 -3.298 and 3.328.  
309 Pakistan's  second written submission, para.  2.138; response to Panel question No.  88, paras.  12 
and 17. See also Pakistan's  first written submission, paras.  3.299 and 3.301. Pakistan points out that "quantity 
discounts are a different type of adjustment than [level of trade] adjustments". (Pakistan's  first written 
submission, para.  3.301).  
310 Pakistan submits that according to the agreement, the granting of the discount was entirely within 
Taghleef's  discretion, wh ich implies that Taghleef reserved its right to refuse to grant the discount or to vary its 
amount. In Pakistan's  view, this contradicts the notion that Taghleef had a consistent pricing policy of giving 
discounts to compensate distributors for their costs . (Pakistan's  first written submission, paras.  3.300 
and 3.302; second written submission, para.  2.138; and response to Panel question No.  88, para.  17). WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  before the NTC that it did not have access to such data, and this contradicts the content of the 
agreement.311  
7.231.   The United  Arab Emirates submits that Pakistan's arguments concerning 
Taghleef's  agreement with the Pakistani distributor are ex post justifications , as the reasons provided 
by Pakistan for the NTC's dismissal of the agreement do not feature in the NTC's explanation.312 In 
our view, however, these arguments by Pakistan , i.e. that Taghle ef's agreement with the Pakistani 
distributor do es not demonstrate Taghleef's asserted policy , are connected to the NTC's explanation , 
in its final determination , that Taghleef's request was not supported by evidence, and specifically by 
evidence of the di stributors' costs.313 The NTC's correspondence with Taghleef  also bears out that, 
in asking for Taghleef's agreements with its distributors, the NTC was seeking evidence that Taghleef 
consistently granted the alleged compensation for distributors' costs.314 Therefore, we do not 
consider these arguments by Pakistan to be ex post rationalizations.  
7.232.   We note that the agreement submitted by Taghleef provides for [[***]] .315 The agreement 
specifies that [[***]] .316  
7.233.   Although the agreement stipulates that the [[***]] , it also stipulates that the [[***]] .317  
7.234.   In light of the contents of the agreement, we reject the United Arab Emirates'  argument that 
the agreement Taghleef submitted to the NTC was "sufficient to establish that there was a price 
difference owing to the specific level of trade".318 We note that the agreement characterizes the 
price concessions as based on volume of sales , emphasizes that any price concession is 
discretionary, and gives no indication of the magnitude of any such concession .  
7.5.2.1.5   Conclusion on t he NTC's assessment that the evidence was insufficient  
7.235.   The record thus shows that Taghleef requested an adjustment for level of trade on the basis 
that its distributors in Pakistan incurred "an additional cost … and add a margin" and that 
Taghleef's  price to them was set to compensate for the additional costs and margin. The NTC, in 
various communications, asked Taghleef to provide evidence of its allegations, such as copies of 
Taghleef's agreements to that effect with its distributors, if it had such  agreements, and evidence of 
the amount of the additional costs, either in the form of direct evidence of those costs or in the form 
of evidence of the basis for estimating such costs. By way of evidence, Taghleef was only able to 
produce an agreement with  a distributor that envisaged price concessions linked to the volume of 
sales, described the concessions as  discretionary, and gave no indication as to the amount of any 
such concessions; and a "breakdown of costs" of distributors for which Taghleef gave n o supporting 
evidence or explanation as to how it had derived it. In its final determination , the NTC set out the 
basis on which Taghleef had requested the adjustment and explained that , absent evidence of the 
facts on the basis of which the adjustment was  sought, it could not grant the adjustment.  
7.236.   We therefore do not consider that the United  Arab Emirates has shown that the NTC erred 
when it rejected Taghleef's request for a level of trade adjustment on the basis that Taghleef had 
not substantiated its re quest with evidence, or that the NTC did so without a reasoned and adequate 
explanation.  
 
311 Pakistan's  response to Panel question No.  88, paras.  14 and 17. See also Pakistan's  first written 
submission, fn  151 and paras.  3.311 -3.312; and second written submission, para.  2.138.  
312 United Arab Emirates' written opening statement, para.  57 and fn  58 (referring to 
Pakistan's  second  written submission, para.  2.138); comments on Pakistan's response to Panel question 
No. 88, p.  7 (referring to Pakistan's response to Panel question No.  88, para.  17). 
313 Report on final determination (2013), (Exhibit  PAK-1 (BCI)), paras.  29.2.3 -29.2.4. See also Report 
on final determination (2013), public version, (Exhibit  ARE-2), paras.  29.2.3 -29.2.4.  
314 Second deficiency letter, (Exhibit  PAK-18 (BCI)), para.  3. 
315 Purchase agreement, (Exhibit  ARE-34 (BCI)).  
316 Purchase agreement, (Exhibit  ARE-34 (BCI)). (emphasis added)  
317 Purchase agreement, (Exhibit  ARE-34 (BCI)). (emphasis added)  
318 United Arab Emirates'  first written submission, para.  251; see also second written submission, 
para. 121. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  7.5.2.2   The NTC's requests for evidence  
7.237.   The United  Arab Emirates argues that the NTC acted inconsistently with the last sentence of 
Article  2.4 by not indicating what informat ion that was reasonably available to Taghleef was required 
in support of the request for the level of trade adjustment319, and by imposing an unreasonable 
burden of proof on Taghleef.320 The United  Arab Emirates submits that if the NTC wanted more 
evidence i t should have engaged with Taghleef in order to identify reasonably available additional 
evidence, but it did not do so.321 The United Arab Emirates contends that by requesting evidence on 
the distributors'  costs, the NTC imposed an unreasonable burden of p roof on Taghleef, as Taghleef 
could not provide documentary evidence of the actual expenses incurred by unrelated companies, 
which do not share with Taghleef evidence of their costs and profit margins.322  
7.238.   Pakistan responds that the NTC provided precise ins tructions in the exporter questionnaire  
on what evidence it required and requested further information from Taghleef by means of 
two deficiency letters.323  
7.239.   At the outset, we note that the record does not reflect the United Arab Emirates'  allegation 
that th e NTC demanded evidence of Taghleef's distributors' costs as a necessary condition to grant 
the level of trade adjustment.  
7.240.   The NTC indicated in the exporter questionnaire  what an exporter normally needed to 
demonstrate in support of a request for a level of trade adjustment, and listed the information it 
required from the exporter. Thus,  section  D-2.4 of the NTC's  exporter questionnaire  reads, in 
relevant part:  
An adjustment for differences in levels of trade … can be made where, in relation to the 
distribution chain in both markets, it is shown that the export price … is at a different 
level of trade from the normal value and the difference has affected  price comparability 
which is demonstrated by consistent and distinct differences in functions and price s of 
the seller for the different level of trade in the domestic market of the exporting country.  
However, in circumstances not envisaged in the paragraph above, when an existing 
difference in level of trade cannot be quantified because of the absence of t he relevant 
levels on the domestic market of the exporting country … a special adjustment may be 
granted.  
If you claim a level of trade adjustment the following information should be provided:  
- a detailed description of the functions of each level of trad e both on the domestic 
market and Pakistani market.  
- a detailed description of the method used to determine the amount of adjustment.  
- evidence showing that prices differ consistently for the different levels of trade on the 
domestic market.  
 
319 United Arab Emirates'  first written submission, para.  250; second written submission, para.  120. See 
also United  Arab Emirates' first writt en submission, paras.  248 and 257; second written submission. para.  131; 
written opening statement, para.  54; response to Pakistan's  written opening statement, para.  27; and 
comments on Pakistan's  response to Panel question No.  88, p.  7. 
320 United Arab Emir ates' first written submission, paras.  251 and 257; second written submission, 
para. 121; and written opening statement, para.  54. 
321 United Arab Emirates'  first written submission, paras.  250 and 257; opening statement at the 
first meeting of the Panel, pa ra. 93; second written submission, paras.  120 and 127; written opening 
statement, para.  54; and response to Pakistan's  written opening statement, para.  27. 
322 United Arab Emirates'  first written submission, para.  251; second written submission, paras.  121 
and 126; and written opening statement , para.  55. 
323 Pakistan's  first written submission, para.  3.339. See also ibid. paras.  3.322 -3.329; and 
second  written submission, para.  2.131.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  - report i n the transaction -by-transaction listing (at point D -3 below) the market value 
of the difference in level of trade.324 
7.241.   The NTC's  exporter questionnaire  thus indicated that, as a rule, the NTC grants adjustments 
for differences in  level of trade where the in vestigated exporter demonstrates that those difference s 
have " affected  price comparability which is demonstrated by consistent and distinct differences in 
functions and prices of the seller for the different level of trade in the domestic market of the 
exporting country", and it further listed the evidence to be provided, in cluding "a detailed description 
of the functions of each level of trade" and "a detailed description of the method used to determine 
the amount of adjustment". In its questionnaire, the NTC added that where  a difference cannot be 
demonstrated on that basis  because of the absence of the relevant levels on the domestic market 
of the exporting country, "a special adjustment could be granted".325  
7.242.   Taghleef did not seek an adjustment based on differences in level of trade in the domestic 
market (the NTC's preferr ed approach according to the questionnaire), but on an alternative basis.326 
That is, in its questionnaire response, Taghleef requested an adjustment for differences in level of 
trade on the basis that its sales to Pakistan were mainly to distributors, "distributors incur additional 
cost … and add a margin", and Taghleef sells to distributors "at a price to compensate distribution 
costs and margin".327 It is after Taghleef formulated its request on this basis that the NTC sought 
evidence and clarifications from Taghleef about what Taghleef itself  had described as the basis for 
its request for a level of trade adjustment, i.e. the existence of additional costs incurred by 
distributors, and its practice of compensating for such costs through price concessions.  
7.243.   Specifically, in its deficiency letter of 17  January  2011, the NTC asked Tag hleef, inter alia : to 
"explain the policy of granting trade concession claimed under level of trade adjustment"328; whether 
it had agreements with its distributors that it will compensate them for their distribution costs and 
profit margin, and if so to pro vide copies of those agreements329; and to "provide documentary 
evidence of the expenses incurred by distributors against the allowance provided to them under 
allowance for level of trade".330  
7.244.   In its deficiency letter of 22  February  2011, the NTC made furth er requests for information 
related to Taghleef's  claim for a level of trade adjustment. Among other requests, the NTC reiterated 
its request for copies of agreements with all Pakistan distributors to which Taghleef sold the 
investigated product.331 The NTC  did not reiterate its request for " documentary evidence " of the 
distributors'  costs and instead asked Taghleef to "share the basis of estimation of such costs incurred 
by distributors and the cost incurred by each distributor".332  
7.245.   The evidence on the reco rd of the Panel, thus, shows that the NTC indicated from the outset 
(i.e. in the exporter questionnaire ) what information it required to assess a request for a level of 
trade adjustment333, and that it subsequently took steps to achieve clarity with respect  to 
Taghleef's  request for an adjustment by sending Taghleef the two deficiency letters. The record also 
shows that it was Taghleef that indicated that its request for a level of trade adjustment was based 
on the additional costs incurred by distributors, for which its prices allegedly compensated. In its 
subsequent requests, the NTC was demanding  evidence of Taghleef's own assertions.  
7.246.   Given that Taghleef's  request for a level of trade adjustment was premised on the 
proposition that distributors incurred ad ditional costs and that Taghleef had a policy of giving price 
discounts to distributors as compensation for those costs, we do not consider that the NTC imposed 
an unreasonable burden of proof on Taghleef by requiring that it provide evidence of those  costs, or 
 
324 NTC's  blank  exporter questionnaire , (Exhibit  PAK-37), section  D-2.4; Taghl eef's questionnaire 
response, (Exhibit  ARE-16 (BCI)), section  D-2.4. 
325 NTC's  blank  exporter questionnaire , (Exhibit  PAK-37), section  D-2.4; Taghleef's  questionnaire 
response, (Exhibit  ARE-16 (BCI)), section  D-2.4. 
326 This is also reflected in the explanation provided by the NTC in its Report on final determination; see 
para. 7.206  above. See also para.  7.208 above.  
327 See para.  7.212  above.  
328 Second deficiency letter, (Exhibit  PAK-18 (BCI)), para.  3. 
329 Second deficiency letter, (Exhibit  PAK-18 (BCI)), para.  3. 
330 Second deficiency letter, (Exhibit  PAK-18 (BCI)), para.  7. 
331 Third deficiency letter, (Exhibit  ARE-17), para.  2(ii). 
332 Third deficiency letter, (Exhibit  ARE-17), para.  2(iii).  
333 Taghleef's  questi onnaire response, (Exhibit  ARE-16 (BCI)), section  D-2.4. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  that it at least provide evidence of the existence of its stated policy of compensating for the 
distributors' additional costs and explain how it estimated those costs.  
7.247.   We therefore find that the United Arab Emirates has not established that the NTC  failed to 
indicate what information it required in support of a request for a level of trade adjustment, or that 
it imposed an unreasonable burden of proof on Taghleef. We thus conclude that the 
United  Arab Emirates has not established that the NTC acted inconsistently with the last sentence 
of Article  2.4.  
7.5.3   Conclusion under Article 2.4  
7.248.   We conclude that the United Arab Emirates has not established that the NTC erred when it 
rejected Taghleef's request for a level of trade adjustment on the basis that Taghl eef had not 
substantiated its request with evidence, or that it failed to provide a reasoned and adequate 
explanation for doing so, failed to indicate what information it required in support of a request for a 
level of trade adjustment, or imposed an unrea sonable burden of proof on Taghleef.  
7.249.   Therefore, we conclude that the United Arab Emirates has not established that Pakistan 
acted inconsistently with Article  2.4 of the Anti -Dumping  Agreement in denying Taghleef's  request 
for an adjustment for differences in the level of trade.  
7.6  Consideration of the volume of dumped imports: Articles  3.1 and 3.2 of the 
Anti-Dumping  Agreement  
7.250.   As part of its injury analysis, the NTC found that, during the POI, the volume of dumped 
imports had increased significantly in absolu te terms and relative to domestic production of the like 
product.334  
7.251.   The United  Arab Emirates argues that  both of these findings are inconsistent with 
Articles  3.1 and 3.2 of the Anti -Dumping  Agreement on three grounds. With regard to the volume 
of imports in absolute terms and relative to domestic production, the United  Arab Emirates argues, 
first, that the NTC  based its findings on the single year of the POI in which the volume of dumped 
imports increased, and disregarded the fact that the volume o f dumped imports decreased during 
the rest of the POI, including  its most recent period335; and second, that the NTC failed to objectively 
evaluate and adequately explain whether the increases were significant .336 Third, the 
United  Arab Emirates argues that the NTC erred by  not consider ing also  whether the volume of 
dumped imports had increased relative to domestic consumption.337 
7.252.   Pakistan responds that : first, the NTC considered data from the entire POI, but attached 
more analytical significance to data relat ing to 2009 because that was the most recent full year in 
the POI338; second, the NTC adequately considered the increase in the absolute volume of dumped 
imports  to be significant, the data on its record supported such a finding , and the NTC could have 
easily found the increase in the volume of dumped imports relative to domestic production to be 
significant339; and third, the NTC was not required to consider whether the volume of dumped 
imports had also increased relative to domestic consumption.340  
7.253.   As set out below, we find that the United Arab Emirates has established that the 
NTC's  consideration of the volume of dumped imports was inconsistent with Articles  3.1 and 3.2.  
7.254.   We structure our discussion as follows: first, we set out the applicable requireme nts of 
Articles  3.1 and 3.2 (section  7.6.1); second, we apply those requirements to the facts of this case 
 
334 Report on final determination (2013), public version , (Exhibit  ARE-2), para. 35.7. 
335 United Arab Emirates'  first written submission, paras.  300-305. 
336 United Arab Emirates'  first written submission, paras.  307-311. 
337 United Arab Emirates'  first written submission, para.  306; response to Panel question No.  59. 
338 Pakistan's  first written su bmission, paras.  3.357 -3.359; second written submission 
paras.  2.144 -2.162.  
339 Pakistan's  first written submission, paras.  3.360 -3.362; second written submission 
paras.  2.163 -2.167.  
340 Pakistan's  response to Panel question No.  59. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  to assess whether Pakistan acted inconsistently with Artic les 3.1 and  3.2 (section  7.6.2); and third, 
we conclude that Pakistan acted inconsistently with those provisions (section  7.6.3).  
7.6.1   The applicable requirements of Articles  3.1 and 3.2, first sentence  
7.255.   Article  3.1 of the Anti -Dumping  Agreement provides:  
A determination of injury for purposes of Article  VI of GATT  1994 shall be based on 
positive evidence and involve an objective examinati on of both (a) the volume of the 
dumped imports and the effect of the dumped imports on prices in the domestic market  
for like products, and ( b) the consequent impact of these imports on domestic producers 
of such products.  
7.256.   Article  3.1 thus requires a "det ermination of injury" to be " based on positive evidence  and 
involve an objective examination "341 of the volume of dumped imports, their effect on prices, and 
their consequent impact on the domestic industry.  
7.257.   As noted earlier, the ordinary meaning of " evide nce" includes: "[i]nformation (in the form of 
personal or documented testimony or the production of material objects), tending or used to 
establish facts  in a legal investigation".342 The ordinary meaning of "positive" includes " admitting no 
question; state d, express, definite, precise; emphatic "343 and " providing support for a particular 
hypothesis, esp [ecially]  one concerning the presence or existence of something "344, and, as noted 
by the Appellate  Body, affirmative, objective, verifiable , and credible.345 Further, "based on" means 
"place[d] on … a foundation, fundamental principle, or underlying basis ".346 Thus, Article  3.1 requires 
that a determination of injury be "based on", i.e.  have as its foundation, "evidence" that is 
affirmative, def inite, and capable of supporting such a determination.  
7.258.   As for the requirement that the determination of injury "involve an objective examination", 
this relates to the approach taken by the authority to the evidence and its analysis. The ordinary 
meaning of  examination includes the "[i] nvestigation of or inquiry into a subject, situation  … etc.; 
critical analysis "347, and the ordinary meaning of "objective" includes " not influenced by personal 
feelings or opinions in considering and representing facts; impart ial, detached ".348 Thus, the enquiry 
and analysis leading to a determination of injury must be one that is impartial, i.e.  not influenced 
by personal feelings and not favouring any interested party.349 For example, to perform an objective 
examination the aut hority must also take into account the evidence that appears to conflict with its 
own hypotheses, and explain how it has reconciled conflicting evidence in reaching its conclusions.350 
7.259.   The overarching requirements to conduct an objective examination and to base the 
determination of injury on positive evidence, as set forth in Article  3.1, apply to every aspect of the 
determination of injury. Articles  3.2, 3.4, and  3.5, in turn, set forth more detailed requirements 
 
341 Emphasis added.   
342 See para.  7.19 above.  
343 Oxford Dictionaries online, definition of "positive" 
https://www.oed.com/view/Entry/148318?rskey=3r7q5h&result=1&isAdvanced=false#eid  (accessed 
13 October  2020), adj., meaning  A.I.2, specifying that "positive" with this meanin g is used chiefly in the 
phrase " proof positive n. at proof n.  1a", which, in turn, is defined as "definite, absolute, or incontrovertible 
proof".  
344 Oxford Dictionaries online, definition of  "positive " 
https://www.oed.com/view/Entry/148318?rskey=3r7q5h&result=1&isAdvanced=false#eid  (accessed 
13 October  2020),  adj., meaning  A.II.4.c.  
345 Appellate  Body Reports, US – Hot-Rolled Steel , para.  192; China – GOES , para.  126.  
346 Oxford Dictionaries online, definition of "base" 
https://www.oed.com/view/Entry/15856?rskey=rBVVi9&result=10&isAdvanced=false#eid  (accessed 
13 October  2020), v.3, meaning  2. 
347 Oxford Dictionaries online, definition of  "examination" 
https://www.oed.com/view/Entry/65580?redirectedFrom=examination#eid (accessed 13  October  2020), n., 
meaning  6.a. 
348 Oxford Dictionaries online, definition of " objective" 
https://www.oed.com/view/Entry/129634?redirectedFrom=objective#eid (accessed 13  October  2020), adj., 
meaning  8.a. 
349 See also e.g.  Appellate  Body Report, US – Hot-Rolled Steel , para.  193. 
350 See also e.g.  Appellate  Body Report, US – Softwood Lumbe r VI ( Article  21.5 – Canada) , paras.  93-94 
and 97. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  relating to the examination of the volume of  the dumped imports (Article  3.2), their effect on prices 
in the domestic market of the like product (Article  3.2), the consequent impact of these imports on 
domestic producers of such products (Article  3.4), and the demonstration that it is the dumped 
imports that are causing injury (Article  3.5).  
7.260.   Beginning with Article  3.2, the first sentence sets out further requirements for the 
examination of the volume of dumped imports, which is the aspect of the NTC's  determination that 
we are reviewing here.  
7.261.   The first sentence of Article  3.2 provides:  
With regard to the volume of the dumped imports, the investigating authorities shall 
consider whether there has been a significant increase in dumped imports, either in 
absolute terms or relative to production or con sumption in the importing Member.   
7.262.   Article  3.2 requires an investigating authority to " consider " whether there has been a 
significant increase in dumped imports. As we discussed at paragraph  7.140  above, t he ordinary 
meaning of "consider" includes "[t]o view or contemplate attentively, to survey, examine " and "[t] o 
contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive 
thought  upon, give heed to, take note of ".351 Thus Article  3.2 requires an investigating authority to 
assess whether  there has been an increase in the volume of dumped imports, and to take those 
findings into account.352  
7.263.   What the investigating authority must consider is whether there has been an increase in the 
volume of dumped imports that is "significant", i.e.  "notew orthy; consequential, influential ".353 
Article  3.2 does not set out a minimum threshold for what qualifies as a "significant" increase; 
whether an increase is "significant" will depend on the specific circumstances of the case.354  
7.264.   Article  3.2 sets forth three perspectives from which an increase may be assessed: " either in 
absolute terms or relative to production or consumption in the importing Member ". The use of the 
disjunctive s "either … or … or" makes it clear that these are alternative, i.e.  an investigating authority 
may rely on one, two, or all three in its consideration of the volume of dumped imports.355 
7.6.2   Whether the NTC's  consideration of the volume of dumped imports is inconsistent 
with Articles  3.1 and 3.2  
7.265.   Below, we assess first the NTC's  consideration of the evolution of the volume of dumped 
imports in absolute terms (section  7.6.2.1 ); second, the NTC's  consideration of the volume of 
dumped imports re lative to domestic production (section  7.6.2.2 ); and third, whether the 
United  Arab Emirates has established that the NTC was also required to consider whether there  had 
been an increase in the volume of imports relative to domestic consumption (section  7.6.2.3 ). 
7.6.2.1   The evolution of the volume of dumped imports in absolute terms  
7.266.   To recall356, the United Arab Emirates  makes two  sets of arguments on the 
NTC's consideration of the volume of dumped imports in absolute terms: first, that the NTC focused 
on 2009, the only year showing an increase on the previous year, and disregarded the evidence 
 
351 Oxford Dictionaries online, definition of "consider" 
https://www.oed.com/view/Entry/39593?redirectedFrom=consider#eid  (accessed 13  October  2020), v., 
meaning  3.a.  
352 See also e.g.  Appellate  Body Report, China – GOES , para.  130. 
353 Oxford Dictionaries online, definition of  "significant"  
https://www.oed.com/view/Entry/179569?redirectedFrom=significant#eid  (accessed 13  October  2020), adj., 
meaning  4.a. See also Panel Reports, China – Cellulose Pulp , para. 7.40; and Thailand – H-Beams , 
para. 7.163.  
354 See also Appellate  Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.161.  
355 See also Panel Report, China – Cellulose Pulp , para. 7.39. A previous panel took the same view when 
addressing the similarly worded Article  15.2 of the SCM  Agreement . (Panel Report, US – Countervailing Duty 
Investigation on DRAMS , paras.  7.233 -7.234).  
356 See para.  7.251  above.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  relating to the rest of the POI , including its most recent period357; and second, that the NTC in any 
event failed to consider whether the increase in imports in abso lute terms  was significant.358 
7.267.   Pakistan responds that the NTC in fact considered data from the entire POI , but attached 
particular significance to the  2009 data for a number of reasons. First, 2009 was the most recent 
full year in the POI359: the earlier yea rs of the POI were too remote in time and therefore less 
reliable360, and data relating to the last six months "cannot be as reliable and as revealing as full -year 
data".361 Second,  the decline in volume of dumped imports observed in January to June 2010 cou ld 
not offset the increase observed in  2009.362  
7.268.   To make our assessment, we turn to the NTC 's determination.  We recall that the injury POI 
ran from January  2007 to June  2010.363 
7.269.   We note that the NTC found that the volume of dumped imports in absolute terms h ad 
decreased by 12.96% in 2008 compared with 2007, increased by 56.86% in 2009 compared 
with 2008 and decreased by 47.91% in the first six months of 2010 compared with the first 
six months of 2009.364 Specifically, imports in absolute terms decreased by [[***]] metric tonnes  in 
2008 (from [[***]]  metric tonnes in 2007), increased by [[***]] metric tonnes  in 2009 , and 
decreased by [[***]] metric tonnes  during January to June  2010 compared with the previous 
half-year.365 The NTC noted the fluctuations, but observed that the increase in 2009 was at a "higher 
rate" than the subsequent decrease.366 It then concluded that the volume of dumped imports in 
absolute terms had increased significantly during the POI.367  
7.270.   Thus, althou gh the NTC described the evolution of imports including the fact that they had 
decreased during the first and last part of the POI, it then based its finding on the single year in 
which they had increased, i.e.  2009, and it dismissed the decreases simply s tating that the increase 
in 2009 had been at a "higher rate" than the decrease in the first half of 2010.368  
7.271.   We note  that Article  3 does not preclude an investigating authority from attaching more 
weight to certain data on its record. However, even in doin g so, an investigating authority must not 
ignore other relevant data369, and must explain how it took into account evidence that conflicted 
with its conclusions.370 
7.272.   The NTC provided one comment that appears intended at explaining its focus on 2009 rather 
than other years; namely, that the increase in the volume of imports in 2009 had been at a "higher 
rate" than the decrease in the first half of 2010.371 We note however that the rate of decrease 
observed in January to June  2010 (47.91%) is close in m agnitude to the rate of the previous increase 
(56.86%) and that, moreover, the absolute volume of decrease in the first six months of  2010 
 
357 United Arab Emirates'  first written submission, paras.  300-303 and 305; opening statement at the 
first meeting of the Panel, para.  46; and written opening statement, para.  59. 
358 United Arab Emirates'  first written submission, para.  307; second written submission , para.  143; and 
written opening statement, para. 60. 
359 Pakistan 's first written submission, para. 3.359; second written submission, paras.  2.145-2.151 ; and 
response to United A rab Emirates'  written opening statement, paras.  35-42. 
360 Pakistan 's second written submission, para. 2.150 ( referring to  Appellate  Body Reports, US – Steel 
Safeguards , para. 388; and US – Lamb , para. 137).  
361 Pakistan 's second written submission, paras.  2.145 -2.146 and 2.150 -2.151 (referring to  
Appellate  Body Reports, US – Lamb , para. 137; Mexico – Anti-Dumping Measures on Rice , paras.  166-167; and 
Panel Report, Ukraine – Passenger Cars , para. 7.179); written opening stat ement, para. 71. See also 
Pakistan 's written opening statement, paras.  73-74; and response to United Arab Emirates'  written opening 
statement, paras.  35-42. 
362 Pakistan's  first written submission, paras.  3.357  and 3.359; second written submission, para.  2.145.  
363 See para.  7.80 above.  
364 Report on final determination (2013), public version , (Exhibit  ARE-2), table -VII. 
365 Report on final determination (2013), (Exhibit  PAK-1 (BCI)), table -VII and para.  35.6.  
366 Report on final determination (2013), public version, (Exhibit  ARE-2), paras.  35.3 and 35.6.  
367 Report on final determination (2013), public version, (Exhibit  ARE-2), par a. 35.7. 
368 Report on final determination (2013), (Exhibit  PAK-1 (BCI)), table -VII and para.  35.6. 
369 Panel Reports, Russia – Commercial Vehicles , para.  7.41; China – Broiler Products   
(Article  21.5 – US), paras.  7.152 -7.153.  
370 See para.  7.258  above.  
371 Report on final determination (2013), (Exhibit  PAK-1 (BCI)), table -VII and para.  35.6. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  [[***]]  was larger than the absolute volume of increase in the full year 2009 [[***]] .372 Therefore, 
the NTC's  comment does not, in our view, adequately explain its decision to focus on the rate of  
increase in 2009 and disregard th e conflicting evidence on the evo lution of imports during earlier 
and later periods of the POI.  
7.273.   As noted, Pakistan argues that it was reasonable for the NTC to attach more significance 
to 2009 because the earlier years of the POI were too remote in time and therefore less reliable, 
and d ata relating to the last six months "cannot be as reliable and as revealing as full -year data".373 
However, Pakistan has not pointed us to any evidence that these explanations formed part of the 
NTC's own reasoning in the domestic proceedings, and we theref ore cannot rely on them in assessing 
the NTC 's determination.  
7.274.   Pakistan also maintains that Article  3.2 only requires authorities to "consider whether there 
has been a significant increase in dumped imports", and not to determine or conclude that there 
was.374 We note however that this does not exempt authorities from the requirement to make an 
"objective examination" when considering whether there has been a significant increase in dumped 
imports, which is what was lacking in this case.  
7.275.   Therefore, we find t hat the NTC failed to make an objective examination in considering 
whether there had been a significant increase in dumped imports in absolute terms, because it 
focused selectively on the only year in which imports increased and did not explain how it took  into 
account the conflicting evidence pertaining to the rest of the POI , including the most recent period . 
By so doing, the NTC acted inconsistently with Articles  3.1 and  3.2. Having so found, we do not 
examine the United  Arab Emirates'  further argument t hat the NTC failed to consider whether the 
increase in the absolute volume of imports, if any, was significant.  
7.6.2.2   The evolution of the volume of dumped imports relative to domestic production  
7.276.   The United  Arab Emirates makes two  sets of arguments on the NTC's  consideration of the 
volume of dumped imports relative to domestic production: first, that the NTC focused on  2009, the 
only year showing an increase on the previous year, and disregarded the evidence relating to the 
rest of the POI375; and second, that the  NTC in any event failed to consider whether the increase in 
imports relative to domestic production was significant.376  
7.277.   Regarding the NTC's  reliance on the increase in 2009, Pakistan responds that the decline in 
the volume of dumped imports relative to do mestic production observed in January to June  2010 
was not sufficient to offset the increase observed in the full year 2009.377 As to the 
NTC's  consideration of significance, Pakistan responds that the NTC chose to focus "on import 
volumes in absolute t erms", was not required to consider whether also the increase in relative terms 
was significant, and in any event " could have easily found " the relative increase of 6  percentage 
points observed in 2009 to be  significant , "in the light of the precarious state of the domestic 
industry ".378  
7.278.   To make our assessment, we turn to the NTC's  determination. The NTC observed that the 
dumped imports were 11.80%, 10.30%, 16.41% , and 14.84% of the domestic production in the 
years  2007, 2008, 2009 , and Januar y to June 2010, respectively.379 The NTC then  concluded that 
the volume of dumped imports had "increased significantly … relative to production of the domestic 
like product during [the] POI".380  
7.279.   Thus, the NTC was faced with fluctuating trends: a decrease  of 1.5 percentage points 
in 2008, an increase  of 6.1 percentage points in 2009, and a decrease  of 1.6 percentage points in 
 
372 Report on final determination (2013), (Exhibit  PAK-1 (BCI)), t able-VII.  
373 See para.  7.267  above. We recall that the NTC itself, in April  2012, chose to cut off the injury POI at 
the end of June  2010. See para.  7.80 above.  
374 Pakistan's  first written submission, paras.  3.353 -3.354.  
375 United Arab Emirates'  first written submission, para.  304. 
376 United Arab Emirates'  first written submission , para.  310. 
377 Pakistan's  second written submission, para.  2.148.  
378 Pakistan's  second written submission, paras.  2.165 -2.167.  We also recall Pakistan's  overarching 
argument addressed in para.  7.274  above.  
379 Report on final determination (2013), public version, (Exhibit  ARE-2), para.  35.5. 
380 Report on final determination (2013), public version, (Exhibit  ARE-2), para.  35.7. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  January to June  2010. The NTC described those trends and then, without more, concluded that the 
volume of dumped imports relative to do mestic production had " increased significantly " during the 
POI. We note Pakistan's  explanation to us that the NTC focused on the increase in 2009 because the 
later decrease did not offset that increase381; however, Pakistan has not pointed us to evidence fr om 
the record of the domestic proceedings showing that this was indeed the NTC's  reasoning.  
7.280.   Thus, in finding that imports relative to domestic production had "increased significantly", 
the NTC did not explain how it reconciled the conflicting trends in th e data before it to reach its 
conclusion. Specifically, it did not explain how the sequence of downward and upward movements 
it observed led it to conclude that the increase in imports relative to domestic production was 
"significant". Indeed, Pakistan's  arguments acknowledge that the NTC did not discuss whether the 
increase was significant.382  
7.281.   We further note Pakistan's  argument that the NTC was entitled to focus on the increase in 
the absolute volume of imports and did not need to consider also whether th e increase in the volume 
of imports relative to domestic production was "significant".383 However, the NTC did conclude that 
the increase in the volume of imports relative to domestic production was significant384, and it relied 
on that conclusion as part of the basis for its determination of injury385; in doing so, it was subject 
to the requirements of Articles  3.1 and  3.2.  
7.282.   We therefore find that in concluding that the volume of dumped imports relative to domestic 
production had increased "significant ly", the NTC acted inconsistently with Articles  3.1 and 3.2, 
because it did not explain how it reconciled the conflicting trends before it and in particular it did not 
explain how those conflicting trends supported its conclusion that the increase was "sig nificant".386 
7.6.2.3   The evolution of the volume of dumped imports relative to domestic consumption  
7.283.   The NTC did not consider whether there had been an increase in dumped imports relative to 
domestic consumption.  
7.284.   The United Arab Emirates argues that, given the "contradictory trends" observed, the NTC 
was required to consider also whether there had been a  significant increase in the volume of dumped 
imports relative to domestic consumption, in order to perform an objective examination under 
Articles  3.1 and  3.2.387  
7.285.   Pakistan responds that Article  3.2 confers discretion on the investigating authority to anal yse 
whether the volume of dumped imports has increased in absolute terms, or relative to domestic 
production, or relative to domestic consumption, and does not require authorities to consider more 
than one of these metrics.388 Therefore, Pakistan argues tha t having already examined the evolution 
of the volume of dumped imports in absolute terms and relative to domestic production, the NTC 
was not required to consider also whether there had been a significant increase in the volume of 
imports relative to dome stic consumption.389  
7.286.   We recall that Article  3.2 uses the disjunctive s "either … or … or" when listing the different 
manners in which an authority may consider whether dumped imports have increased significantly, 
making it clear that these are alternative a nd not cumulative.390 Therefore, we reject the 
United  Arab Emirates'  argument that the NTC was required to examine the evolution of the volume 
 
381 See para.  7.277  above.  
382 Pakistan's  second written submission, paras.  2.165 -2.167.  
383 See para.  7.277  above.  
384 Report on final determination (2013), public version, (Exhibit  ARE-2), para.  35.7. 
385 Report on final determination (2013), public version, (Exhibit  ARE-2), para.  47.2. 
386 See paras.  7.258 , 7.262 , and 7.263  above.  
387 United Arab Emirates'  first written submission, para.  306; response to Panel question No.  59. 
388 Pakistan's  response to Panel question No.  59. 
389 Pakistan's  second written submission, paras.  2.171 -2.173.  
390 See para.  7.264  above.  WT/DS538/ R 
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  of imports relative to domestic consumption, in addition to examining the evolution of the volume 
of imports in ab solute terms and relative to domestic production.391 
7.6.3   Conclusion on the NTC's  consideration of the volume of dumped imports under 
Articles  3.1 and 3.2  
7.287.   In sum, we find that the NTC acted inconsistently with Articles  3.1 and 3.2  because it failed 
to make an ob jective examination in considering whether there had been a significant increase in 
imports in absolute terms and relative to domestic production.  
7.7  Consideration of the effect of dumped imports on prices: Articles  3.1 and 3.2 of the 
Anti-Dumping  Agreement  
7.288.   As part of its injury analysis, the NTC found that the effects of the dumped imports on the 
prices of the domestic industry were significant price undercutting and significant price depression.392 
The United  Arab Emirates claims that the NTC's  consideration  of whether there had been significant 
price undercutting and significant price depression was inconsistent with Articles  3.1 and 3.2.  
7.289.   We structure our discussion as follows: first, we set out the applicable requirements of 
Article  3.2 (section  7.7.1 ), having already discussed Article  3.1 in section  7.6.1 above; second, we 
assess  whether the United  Arab Emirates has established that the NTC's  consideration of price 
undercutting was inconsistent with the requirements of Articles  3.1 and  3.2, and find that it has so 
established (section  7.7.2 ); third, we assess whether the United  Arab Emirates has established that 
the NTC's  consideration of price depression was inconsistent with those requirements, and find that 
it has so established (section  7.7.3).  
7.7.1   The applicable requirements of Article  3.2, second sentence  
7.290.   The second sentence of Article  3.2 sets out requirements for the examination of the eff ect 
of dumped imports on prices. It provides that:  
With regard to the effect of the dumped imports on prices, the investigating authorities 
shall consider whether there has been a significant price undercutting by the dumped 
imports as compared with the p rice of a like product of the importing Member, or 
whether the effect of such imports is otherwise to depress prices to a significant degree 
or prevent price increases, which otherwise would have occurred, to a significant 
degree. No one or several of thes e factors can necessarily give decisive guidance.  
7.291.   The second sentence of Article  3.2 imposes on an investigating authority the obligation to 
"consider" the effect of dumped imports on prices. As we discussed at paragraph  7.262  above, the 
ordinary meaning of  "consider" includes  "view or contemplate attentively … examine", "take 
something into account in reaching its decision", and does not require an authority to make a 
definitive determination.393  
7.292.   Article  3.2 refers to three types of price effects, two of which are the subject of the 
United  Arab Emirates'  challenge , namely price undercutting and price depression.  
7.293.   With regard to price undercutting , Article  3.2 requires  authorities to "consider whether there 
has been a significant price undercutting by the dumped imports as compared with the price  of a 
like product of the importing Member".394 That is, Article  3.2 requires a comparison between the 
prices of the dumped imp orts and those of a domestic like product.395 As has been observed in the 
 
391 We note that this is separate from the question whether the NTC's  examination of the evolution of 
dumped imports in absolute terms and relative to domestic production was itself consi stent with Articles  3.1 
and 3.2, which we have considered above.  
392 Report on final determination (2013), public version, (Exhibit  ARE-2), sections  36.1 and 36.2.  
393 Appellate  Body Report, China – GOES , para.  130. 
394 Emphasis added.  
395 See also Appellate  Body Reports, China – GOES , para.  136; and China – HP-SSST (Japan) / China – 
HP-SSST (EU) , para. 5.158 . WT/DS538/ R 
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  past, when the investigating authority must compare prices, "price comparability necessarily arises 
as an issue".396 
7.294.   The text of Article  3.2, which uses the present perfect ("has been") and the present participle 
("undercutting"), in its context, suggests that what is at issue are price effects that continue over 
time, and are not limited to an isolated instance.397  
7.295.   With regard to price depression , the question is "whether the effe ct of [the dumped] imports 
is … to depress prices to a significant degree". The ordinary meaning of "depress" includes "[t] o 
press down … to lower "398, while the ordinary meaning of "depression" includes "[t]he action of 
pressing down, or fact of being pressed down" .399 In the context of Article  3.2, an investigating 
authority is thus required to consider whether the prices of domestic like products are being pressed 
down by the dumped imports.  
7.296.   For both types of price effects at issue here, the investigating authority must consider 
whether they are "significant", i.e.  "important, notable, consequential". This will depend on the 
circumstances of the case.400  
7.297.   Further, the question under the second sentence of Article  3.2 is whether "the effect of the 
dumped imports" has been one (or more) of these price phenomena. Article  3.2 thus links the 
dumped imports and the price depression  and contemplates considerati on of the relationship 
between the two.401  
7.298.   Beyond these requirements and the overarching requirements in Article  3.1, Article  3.2 does 
not prescribe a specific methodology to be relied upon in a price undercutting or depression analysis, 
thus affording a c ertain level of discretion to the investigating authority.402  
7.7.2   Whether the NTC's  consideration of price undercutting was inconsistent with 
Articles  3.1 and 3.2  
7.299.   The United  Arab Emirates makes five arguments in support of its claim that the 
NTC's  consideratio n of price undercutting was inconsistent with Articles  3.1 and 3.2. The 
United  Arab Emirates argues: first, that the NTC failed to rely on positive evidence by using import 
price data from Pakistan Revenue Automation Limited (PRAL), the data processing arm  of the Federal 
Board of Revenue of the Government of Pakistan403; second, that the NTC failed to ensure price 
comparability404; third, that the NTC focused on 2009, the single year of the POI during which 
 
396 Panel Report, China – GOES , para.  7.530; Appellate  Body Report, China – GOES , para.  200. See also 
Panel Report, China – Broiler Products , paras.  7.475 -7.478.  
397 See also Appellate  Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.159, 
reasoning that  "a proper reading of 'price undercutting'  under Article  3.2 suggests that the inquiry requires a 
dynamic assessment of price develop ments and trends in the relationship between the prices of the dumped 
imports and those of domestic like products over the entire period of investigation (POI). An examination of 
such developments and trends includes assessing whether import and domestic p rices are moving in the same 
or contrary directions, and whether there has been a sudden and substantial increase in the domestic prices".  
398 Oxford Dictionaries online, definition of "depress" 
https://www.oed.com/view/Entry/50442?rskey=ThDTSn&result=2&isAd vanced=false#eid (accessed 
14 October  2020), v. meaning  2.  
399 Oxford Dictionaries online, definition of "depression " 
https://www.oed.com/view/Entry/50451?redirectedFrom=depression#eid (accessed 14  October  2020), n. 
meaning  1. 
400 See para.  7.263  above.  
401 See also e.g.  Appellate  Body Reports, China – GOES , paras.  136, 144, and 152; China – HP-SSST 
(Japan) / China – HP-SSST (EU) , para.  5.161.  
402 See also Panel Reports, China – Broiler Products , para.  7.474 ; and China – X-Ray Equipment , 
para. 7.41. 
403 United Arab Emirates'  first written submission, para.  317; second written submission, para.  160; and 
written opening statement, para.  67. For Pakista n's response, see Pakistan's  first written submission, 
paras.  3.374 -3.376; response to Panel question No.  60; and written  opening statement , paras.  76-78.  
404 United Arab Emirates'  first written submission, paras.  318-322; second written submission, 
para. 161; and written opening statement, para.  68. For Pakistan's  response, see Pakistan 's first written 
submission, paras.  3.381 -3.386; and response to Panel question No.  61. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  undercutting was found, disregarding conflicting evi dence from the rest of the POI405; fourth, that 
the NTC failed to consider whether price undercutting was significant406; and fifth, that the NTC did 
not take into account the global financial crisis.407 We consider these arguments in turn.  
7.7.2.1   The NTC's  use of PRAL data  
7.300.   The United  Arab Emirates argues that the NTC used data from official import statistics 
maintained by PRAL  to establish the price of dumped imports for purposes of its undercutting 
analysis , disregarding without any explanation the export price information provided  by cooperating 
exporters.408  
7.301.   Pakistan responds that the NTC established the price ("weighted average landed cost") of 
the dumped imports using the price data submitted by the cooperating exporters as its primary 
source of informa tion, and used PRAL data only for non -cooperating exporters. Pakistan 
acknowledges that a passage in the Report on final determination  refers only to PRAL as the source 
of the data , but maintains that is because of a clerical error.409  
7.302.   We note that i n a fo otnote to table-VIII on price undercutting, the NTC state d that the 
sources of the data underlying the price undercutting analysis were "[a]pplicant and cooperating 
exporters ".410 Elsewhere in its report, the NTC stated that it had "used import data obtaine d from 
PRAL in addition to the information provided by the Applicant and the exporters/foreign 
producers ".411  
7.303.   Pakistan presented to us the NTC's  calculation of the prices of the dumped imports. In those 
calculations, the NTC appears to have, indeed, calculated weighted average prices using data from 
cooperating exporters, including Taghleef, and PRAL data for other exporters.412 The 
NTC's  statements in its report, together with its calculations of export price, support 
Pakistan's  explanation that it us ed price data from cooperating exporters where available, and that 
the NTC's  statement suggesting that landed costs were calculated only from PRAL data was in error.  
7.304.   We therefore find that the United  Arab Emirates has not established, as a matter of fact, 
that the NTC did not use the available price data from cooperating exporters.  
7.305.   The United  Arab Emirates further argues that even if the NTC combined the data from 
cooperating exporters and PRAL, it is " doubtful " that this ensured " an objective examination b ased 
on positive evidence "413, the NTC provided "zero explanation" and there are "serious questions" 
about reliance on this commingled data.414 However, the United  Arab Emirates has not further 
substantiated its "doubts" and "questions", and we therefore con sider that it has not established 
that the fact of combining data from the cooperating exporters with PRAL data for non -cooperating 
exporters, in itself, gave rise to an inconsistency with Articles  3.1 and 3.2.  
 
405 United Arab Emirates'  first written submission, paras.  323-334; opening statement at  the 
first meeting of the Panel,  paras.  48-50; second written submission, para.  163; and written opening statement, 
para. 69. For Pakistan's  response, see Pakistan 's first written submission, paras.  3.393 -3.395; and 
second  written submission, paras.  2.179 -2.184 . 
406 United Arab Emirates'  first writte n submission, para.  330; opening statement at the first meeting of 
the Panel,  para. 53; and second written submission, para.  162. For Pakistan's  response, see Pakistan 's first 
written submission, paras.  3.388 -3.390; response to Panel question No.  63; and s econd written submission, 
paras.  2.186 -2.189 . 
407 United Arab Emirates'  first written submission, paras.  326 and 328. For Pakistan's  response, see 
Pakistan's  first written submission, paras.  3.397 -3.399.  
408 United Arab Emirates'  first written submission, para . 317; second written submission, paras.  145 
and 160; and written opening statement, para. 67. The United Arab Emirates refers to Report on final 
determination (2013), public version, (Exhibit  ARE-2), para. 36.1.1 . 
409 Pakistan's  first written submission, pa ras. 3.374 -3.376; response to Panel question No.  60. 
410 Report on final determination (2013), public version, (Exhibit  ARE-2), table-VIII. (emphasis added)  
411 Report on final determination (2013), public version, (Exhibit  ARE-2), para. 14.8. (emphasis added)  
412 Annexure -XVI, calculations of landed cost , (Exhibit  PAK-39 (BCI)). This was annexure -XVI to the 
Report on final determination (2013), (Exhibit  PAK-1 (BCI)).  
413 United Arab Emirates ' second written submission, para. 160.  
414 See also  United Arab Emirates ' response to Pakistan's  written  opening statement, para. 33. WT/DS538/ R 
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  7.7.2.2   Price comparability (product mix)  
7.306.   The United  Arab Emirates argues that the NTC failed to ensure that the prices it was 
comparing were comparable: although there were two  different types of the product under 
consideration, namely metallized and non -metallized BOPP film, with " significant differences i n 
import volumes and prices "415 between the two, the NTC compared the aggregate price of dumped 
imports with the aggregate price of domestic BOPP film without distinguishing the metallized and 
non-metallized type.416 The United  Arab Emirates maintains that the NTC bore the obligation to 
ensure price comparability , even though Taghleef did not raise this issue during the domestic 
proceedings.417 
7.307.   Pakistan responds that the NTC considered the product mix on either side of the price 
comparison and concluded that the prices were comparable because the proportions of metallized 
and non -metallized BOPP film on either side were "not different".418 Pakistan adds that the proportion 
of the cheaper , non-metallized BOPP film was slightly greater on the domes tic side than on the side 
of dumped import s, and therefore the use of average figures in the comparison understated the 
magnitude of undercutting.419 Pakistan concedes that the NTC did not explicitly discuss this analysis 
on the record, but asserts that the  NTC was not required to do so, because it had the discretion on 
how to undertake the analysis, and no interested party raised these arguments during the 
investigation.420 
7.308.   It is not disputed that the exporters (including Taghleef) and the domestic industry sold 
two types of BOPP film in different proportions in the Pakistani market: non -metallized BOPP film 
and metallized BOPP film.421 There were pricing differences between the two types of BOPP film, 
with the metallized type priced higher than the non -metall ized type.422 In its undercutting analysis, 
the NTC calculated a single weighted average price of imports for each year of the POI, and compared 
that average price to the weighted average price of the domestic like product.423 Pakistan is offering 
explanatio ns for this choice but has not pointed us to anything in the record of the domestic 
proceedings indicating that those explanations were the NTC's  own. 
7.309.   We note that the existence of two types of the product that differed in price and quantities 
raised conce rns of comparability. We recall that the text of Article  3.2 stipulates that a price 
undercutting analysis is a price comparison. Whether the prices under comparison are comparable 
is core to the objectivity of the analysis. Therefore, investigating author ities are required to ensure 
that prices are comparable , whether or not investigated exporters raise such concerns during the 
investigation .424 Failure to do so falls short of an objective examination of price undercutting.  
7.310.   Therefore, we find that by simpl y calculating an average price for the dumped imports and 
an average price for the like domestic product, without addressing the concerns for comparability 
that were posed by the existence of two different product types, the NTC failed to undertake an 
objective examination in considering price undercutting. It thus acted inconsistently with Articles  3.1 
and 3.2. 
7.7.2.3   The NTC's  focus on 2009  
7.311.   The United  Arab Emirates argues that the NTC based its finding that there had been price 
undercutting during the POI on the  single year in which the prices of dumped imports were lower 
 
415 United Arab Emirates'  first written submission, para.  319. 
416 United Arab Emirates'  first written submission, paras.  318-321; second written submission, 
para. 161; and written opening s tatement, para. 68. 
417 United Arab Emirates'  first written submission, para.  322 (referring to Appellate  Body Report, China – 
GOES , para.  200). See also United Arab Emirates'  response to Pakistan's  written opening  statement, para.  34. 
418 Pakistan's  first wri tten submission, paras.  3.381 -3.382.  
419 Pakistan's  first written submission, para.  3.384; response to Panel question No.  61. 
420 Pakistan's  first written submission, paras.  3.381 -3.386; response to Panel question No.  61. 
421 Report on final determination (2013), public version, (Exhibit  ARE-2), paras.  12.2.1 -12.2.2  
and 28.2.2 ; Pakistan's  first written submission, para.  3.379 . 
422 NTC's dumping calculations , (Exhibit  ARE-31 (BCI)); United Arab Emirates'  first written submission, 
para. 319; and Pakistan's  first written submission, para.  3.381.  
423 Report on final determination (2013), public version, (Exhibit  ARE-2), para. 36.1.1 . 
424 Appellate  Body Report, China – GOES , para.  201; Panel Report, China – Broiler Products , 
paras. 7.475 -7.478.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  than the prices of the domestic like product (2009), without taking into account the conflicting 
evidence from the rest of the POI, including the fact that the rate of undercutting in 2009 was lower 
than the rate  of overselling in 2007 and 2008 and close to the rate level of overselling in January  to 
June 2010.425  
7.312.   Pakistan responds that the NTC considered data from the entire POI , but attached particular 
significance to that relating to 2009 because it was the most recent full year in the POI426, and that 
the level of overselling in January to June 2010 did not offset the level of undercutting in 2009 .427 
However, we note that the record before us does not establish that these explanations were 
the NTC's.  
7.313.   To make our assessment, we turn to the NTC's  discussion of whether there had been price 
undercutting. The NTC first set out  the aggregate price of the d umped imports and of the domestic 
like product during each year of the injury POI, an exercise that showed undercutting only in 2009.428 
In percentage terms, undercutting was 4.35% in 2009, whereas overselling was [[***]]  in 2007, 
[[***]]  in 2008, and 3% in  January to June  2010.429 The NTC then stated that the prices of dumped 
imports and domestic like products had both increased in 2008, that the price of dumped imports 
undercut prices of domestic like products in 2009430, and that while the price of dumped i mports 
was higher than that of domestic like products during January to June  2010, the "magnitude of the 
price undercutting [in 2009] was overwhelming".431 The NTC then concluded that there was price 
undercutting during the POI.432 
7.314.   Thus, the data before the NTC showed undercutting in 2009 by a margin of 4.35%, whereas 
during the rest of the POI, including the most recent period of the POI, the import prices exceeded 
those of the domestic like product by similar margins.433 Yet, the NTC did not explain how it t ook 
this conflicting evidence into account, other than to state that although the domestic price was lower 
than the price of imports in January to June  2010, the magnitude of price undercutting in 2009 was 
"overwhelming" .434 We also note that this cursory s tatement does not appear to be supported by 
the data, because the magnitude of the undercutting in 2009 was in fact similar to the magnitude 
of the overselling in January to June  2010.435  
7.315.   We recall that to make an objective examination as required by Artic le 3.1, the investigating 
authority must not disregard relevant evidence that may conflict with its findings, and must instead 
explain how it has taken this evidence into account.436 We further recall that the requirement to 
consider "whether there has been a significant price undercutting " is not satisfied "by a static 
examination" at a single point in time.437 By basing its conclusion of price undercutting solely 
on 2009, without explaining how it had taken into account conflicting evidence, including f rom the 
most recent period of the POI, the NTC acted inconsistently with Articles  3.1 and  3.2.  
 
425 United Arab Emirates'  first written submission, paras.  323-329; opening statement at the 
first meeting of the Panel, paras.  48-50; and written opening statement, para.  69. 
426 Pakistan's  first written submission, paras.  3.393 -3.395; secon d written submission, 
paras.  2.179 -2.180; and response to Panel question No.  55. 
427 Pakistan's  second written submission, para.  2.180. See also Pakistan's  response to 
United  Arab Emirates'  written opening statement, para.  43. 
428 Report on final determination  (2013), (Exhibit  PAK-1 (BCI)), table -VIII; Report on final 
determination (2013), public version, (Exhibit  ARE-2), table -VIII. 
429 For 2009, Report on final determination (2013), public version, (Exhibit  ARE-2); for 2010, 
United  Arab Emirates' response to Pa nel question No. 90 and Pakistan's comments on United Arab 
Emirates'  response to Panel question No.  90; for the other years, percentages derived from Report on final 
determination  (2013), (Exhibit  PAK-1 (BCI)), table -VIII. In absolute terms, the margins we re [[***]]. (Report 
on final  determination (2013), (Exhibit  PAK-1 (BCI)), table -VIII).  
430 The Report on final determination refers to the "POI for dumping"; in the course of the proceedings, 
Pakistan clarified that this was meant to be a reference to 2009. (Pakistan's  response to Panel 
question  No. 57). 
431 Report on final determination (2013), public version, (Exhibit  ARE-2), para.  36.1.2 .  
432 Report on final determination (2013), public version, (Exhibit  ARE-2), para.  36.1.3. 
433 We refer to fn  429 above, for the exact magnitudes. [[***]]  
434 See fn  431 above.  
435 Report on final deter mination (2013), (Exhibit  PAK-1 (BCI)), table -VIII; see also Report on final 
determination (2013), public version, (Exhibit  ARE-2), table -VIII. 
436 See para.  7.258  above. 
437 Emphasis added. See para.  7.294  and fn  397 above.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  7.7.2.4   "Significance" of price undercutting  
7.316.   The United  Arab Emirates argues that the NTC did not consider whether the price 
undercutting was "significant", as required  under Article  3.2.438 
7.317.   Pakistan responds that the magnitude of price undercutting observed by the NTC in 2009 
(4.35%) was sufficient to support a finding of significance  in the circumstances of this case: the 
investigated product is a commodity product whos e competition is primarily based on price, and 
therefore, even small price differences influence consumer decisions.439 We note, however, that this 
explanation is not reflected in the record of the investigation. Pakistan points out that during the 
investig ation Taghleef itself referred to BOPP Film as a "commodity"440; in our view, however, this 
does not demonstrate that the explanation put forward by Pakistan was the NTC's reasoning in the 
underlying proceedings. Therefore, we cannot rely on this explanatio n in making our assessment, 
notwithstanding Pakistan's  assertion that "it is common industry knowledge that the subject product 
is a commodity ".441 
7.318.   The Report on final determination observes that the prices of dumped imports undercut 
prices of the domestic like product by 4 .35% in 2009, then adds that the domestic price was lower 
than the price of dumped imports in January to June  2010, but that the "magnitude of the price 
undercutting [in 2009]  was overwhelming ".442 That is the entirety of the NTC's  consider ation of this 
issue, and Pakistan has not shown otherwise.  
7.319.   We therefore find that the United Arab Emirates has established that the NTC did not consider 
whether there had been "significant" price undercutting, and thus acted inconsistently with 
Article  3.2.  
7.7.2.5   The global financial crisis  
7.320.   The United  Arab Emirates also argues that by not considering the price undercutting 
observed in 2009 in the context of the global financial crisis, the NTC failed to make an objective 
examination of whether that undercutting was the effect of the dumped imports. The 
United  Arab Emirates points out that in 2009 the prices of BOPP film followed the world market trend 
for non -energy commodity prices.443 Pakistan responds that the NTC was not required to take into 
account the global financial crisis in its price undercutting analysis.444 
7.321.   Having already found, on other grounds, that the NTC's  consideration of price undercutting 
was inconsistent with Articles  3.1 and 3.2, we do not consider this additional argument by the 
United  Arab Emirates.  
7.7.2.6   Conclusion on the NTC's  consideration of price undercutting under Articles  3.1 
and 3.2  
7.322.   We find that the NTC's  consideration of price undercutting was inconsistent with Articles  3.1 
and 3.2 because the NTC failed to ensure that the  prices it was comparing were comparable, relied 
on data for a single year of the POI without adequately explaining why it disregarded conflicting 
evidence from the rest of the POI, including its most recent period, and failed to consider whether 
price und ercutting was significant.  
 
438 United Arab Emirates'  first written submission, para.  330. See also United Arab Emirates'  opening 
statement at the first meeting of the Panel, para. 53. 
439 Pakistan's  first written sub mission, paras.  3.387-3.390 ; second written submission, 
paras.  2.186 -2.189; and c omments on the United Arab Emirates'  response to the Panel question No.  90. 
440 Pakistan's second written submission, paras. 2.187 -2.188 (referring to Taghleef's post -hearing 
submission , (Exhibit ARE -13), p. 17).  
441 Pakistan's  response to Panel question No.  63. 
442 Report on final determination (2013), public version, (Exhibit  ARE-2), para.  36.1.2. See also 
ibid. table-VIII. 
443 United Arab Emirates'  first written submission, paras.  326 and 328.  
444 Pakistan's  first written submission, paras.  3.397 -3.399.  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  7.7.3   Whether the NTC's  consideration of price depression was inconsistent with 
Articles  3.1 and 3.2  
7.323.   The United  Arab Emirates argues that the NTC acted inconsistently with Articles  3.1 and 3.2 
in considering price depression, because , first, the NTC focused on the price decline in  2009 alone, 
without explaining how it had taken into account conflicting evidence from the rest of the POI , 
including its most recent period445; second, the NTC did not consider whether the price depression 
was "significant"446; third, the NTC did not consider whether the price depression was "the effect of" 
dumped imports , given that the decline in prices tracked the decline in costs447; and, fourth, the 
NTC did not reconcile its finding of price depression with  the finding that there was no price 
suppression .448 We consider these arguments in turn.  
7.7.3.1   The NTC's  focus on 2009  
7.324.   The United  Arab Emirates argues that the NTC failed to make an objective examination in 
considering price depression, because it based its find ing on the single year in which domestic prices 
had decreased, and disregarded the fact that during the rest of the POI, including the period 
January  to June  2010, prices of the domestic like product increased.449  
7.325.   Pakistan responds that the NTC considered trends from the entire POI but gave more weight 
to 2009, because the increase in January to June  2010 was less pronounced than the preceding 
decline, and 2009 was the most recent full year of the POI.450  
7.326.   We note that the NTC set out the evolution of domestic prices in each year and the last 
half-year of the POI, namely a price increase of  27.44% in 2008, a price decrease of  13.24% 
in 2009, and a price increase of 11.5% in January to June  2010.451 The NTC then stated that the 
price decrease observed in 2009 was "overwhelming"452, and concluded that the domestic industry 
had suffered price depression due to dumped imports.453 The NTC did not explain how it took into 
account the conflicting indications provided by the data for 2008 and 2010. Beyond asserting  that 
the price decrease in 2009 was "overwhelming", it did not explain this assertion in light of the trends 
observed during the rest of the POI, namely the fact that the price decrease in 2009 was more 
contained than the price increase in 2008 and was ve ry close to the price increase in the first half 
of 2010.454  
7.327.   We recall that to perform an objective examination , the authority must also take into account 
the evidence that appears to conflict with its findings, and explain how it has reconciled this evide nce 
 
445 United Arab Emirates ' first written submission, paras.  336-346; second written submission, 
para. 164; opening statement at the first meeting of the Panel, para. 51; and written openin g statement 
paras.  70-72. For Pakistan 's response,  see Pakistan 's first written submission, paras.  3.410 -3.414; and 
second  written submission, paras.  2.196 -2.200.  
446 United Arab Emirates'  first written submission, paras.  347-350; second written submission, 
para. 165. For Pakistan's  response, see Pakistan's  first written submission, para.  3.416; second written 
submission, paras.  2.201 -2.204 ; and response to Panel quest ion No.  63. 
447 United Arab Emirates ' first written submission, paras.  340-342; second written submission, 
para. 165; opening statement at the first meeting of the Panel, para. 52; and written opening statement 
para. 71. For Pakistan 's response,  see Pakistan 's first written submission, paras.  3.413 -3.414; second written 
submission, paras.  2.199 -2.200 ; and response to United Arab Emirates'  written opening statement, 
paras.  47-48. 
448 United Arab  Emirates'  first written submission, para.  343; response to  Panel question No.  62. 
Pakistan's  first written submission, para.  3.415; response to Panel question No.  64; and second written 
submission, para.  2.209.  
449 United Arab Emirates'  first written submission, paras.  336-337; second written submission, 
para. 164; opening statement at the first meeting of the Panel, para. 51; and written opening statement, 
paras.  70-71. 
450 Pakistan's  first written submission, para.  3.411; second written submission, paras.  2.196 and 2.206.  
451 Report on final determination (2013), publ ic version, (Exhibit  ARE-2), table -IX. For 2010, the 
percentage increase is specified at para.  36.3.2 . See also Report on final determination (2013),  
(Exhibit  PAK-1 (BCI)), table -IX. 
452 Report on final determination (2013), public version, (Exhibit  ARE-2), para.  36.2.1 .  
453 Report on final determination (2013), public  version, (Exhibit  ARE-2), para.  32.2.4.  
454 Report on final determination (2013), public version, (Exhibit  ARE-2), table -IX. The percentage 
increase in January to June  2010 was de rived from Report on final determination (2013),  
(Exhibit  PAK-1 (BCI)), table -IX. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  in reaching its conclusions.455 In considering whether there had been significant price depression, 
the NTC failed to do so, and focused on the only year supporting its conclusion of price depression, 
without explaining how it had taken into account the  evidence relating to the rest of the POI.  
7.328.   Although Pakistan argues that the NTC attached significance to the data for 2009 (to the 
exclusion of earlier and later data) because 2009 was the most recent full -year, it could not point 
us to record evidence e stablishing that this was the NTC's  reasoning.  
7.329.   We therefore find that the NTC acted inconsistently with Articles  3.1 and 3.2 in considering 
price depression, because, by focusing solely on data for the on e year supporting its conclusion and 
by not explain ing how it took into account conflicting evidence, it failed to make an objective 
examination.  
7.7.3.2   "Significance" of price depression  
7.330.   The United  Arab Emirates asserts that the NTC did not consider whether the price depression 
was significant, as is required by  Article  3.2. The United Arab Emirates adds that the NTC did not 
support its assertion that the " magnitude of the decrease [in 2009]  was overwhelming ", in the 
context of the subsequent increase in prices.456  
7.331.   Pakistan responds that it was reasonable for the NTC to consider a 13% decrease in prices 
of the domestic like product to be "significant" because BOPP film is a commodity that is extremely 
price-sensitive.457 Pakistan concedes that the NTC did not characte rize BOPP film as a commodity 
product in its price depression analysis, but asserts that it " is common industry knowledge that the 
subject product is a commodity " which has " obvious implications for competitive conditions in the 
BOPP market ".458 Pakistan ad ds that Taghleef itself referred to BOPP film as a commodity during the 
investigation.459 
7.332.   We recall that Article  3.2 does not provide a quantitative threshold for what qualifies as 
"significant" price depression. Whether the magnitude of depression is signi ficant depends on the 
specific circumstances of each case. However, we also note that the NTC's  analysis was limited to 
identifying the trends during the POI and asserting that the domestic price "recovered during the 
last six months of [the] POI but [the] magnitude of the decrease [in 2009]  was overwhelming ".460  
7.333.   While Pakistan argues that the NTC considered the price decline in the context of the 
competitive effect of BOPP film as a commodity product, it has not pointed us to information from 
the record of the domestic proceedings indicating that this was the NTC' s reasoning.   
7.334.   We therefore find that the NTC did not consider whether the dumped imports had depressed 
prices "to a significant degree", as required by Article  3.2.  
7.7.3.3   Whether the absence of price suppression contradicted the finding of price 
depression  
7.335.   The United  Arab Emirates argues that the NTC's  findings that there was no price suppression 
but there was price depression are contradictory. The United  Arab Emirates asks, " if dumped imports 
did not stop domestic prices from increasing as much as they otherwi se would have, how can 
dumped imports be blamed for having decreased prices? "461  
7.336.   Pakistan responds that the NTC's  practice is to consider that price suppression exists when 
a producer is unable to increase prices in response to an increase  in production costs. In 2009, when 
 
455 See para.  7.258  above.  
456 United Arab Emirates'  first written submission, paras.  347-350 (referring to Report on final 
determination (2013), public version, (Exhibit  ARE-2), para.  36.2.1 ). 
457 Pakistan's  first written submission, para.  3.416.  
458 Pakistan's  response to Panel question No.  63; second written submission, paras.  2.203 -2.204.  
459 Pakistan's second written submission, paras. 2.187 -2.189  (referring to Taghleef's post -hearing 
submission,  (Exhibit ARE -13), p. 17). 
460 Report on final determination (2013), public version, (Exhibit  ARE-2), para.  36.2.1 . 
461 United Arab Emirates'  first writt en submission, para.  343; response to Panel question No.  62. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  the NTC found price depression, the NTC did not consider there to be price suppression because 
costs decreased .462 
7.337.   Under Article  3.2, consideration of price depression and price suppression entail s related but 
different enquiries – price depression exists when prices are "pushed down", while price suppression 
exists when dumped imports "prevent price increases, which otherwise would have occurred".463 
The Report on final determination reflects Pakistan's  explanation that the NTC considers t hat there 
is price suppression only if the domestic industry cannot recover increases in costs , and there were 
no such increases in 2009.464  
7.338.   Therefore, the United  Arab Emirates has not established that the NTC's  finding of price 
depression in 2009 was cont radicted by its finding that there was no price suppression that year.  
7.7.3.4   Decrease in costs  
7.339.   The United  Arab Emirates argues that the NTC failed to consider whether the price 
depression was the effect of dumped imports, because the price decrease in 2009 trac ked closely 
the decrease in costs, and yet the NTC merely stated that the " price depression was partly due to 
decrease in cost and partly due to dumping ".465 Pakistan responds that the NTC considered that the 
magnitude of price decrease was mathematically greater than the cost decrease, and thus, dumping 
was a "co -causal" factor in the price decline.466  
7.340.   We note that in 2009, the price of the domestic like prod uct declined by [[***]]  PKR/metric 
tonnes (13.24%)467 while costs declined by [[***]]  PKR/metric tonnes468 (13.4%469). In its Report 
on final determination , the NTC stated that the prices of inputs had also reduced in 2009 , but the 
"reduction in prices was mo re than reduction in cost ". The NTC then concluded that there was price 
depression during the POI for dumping " partly due to decrease in cost and partly due to dumping ".470  
7.341.   We recall that Article  3.2 requires an investigating authority to consider "whether  the effect 
of [the dumped] imports is … to depress prices".471 We agree with Pakistan that price depression 
need not be exclusively  the effect of dumping .472 However, where there is evidence that other 
elements may explain the price depression, an objective investigating authority would need to 
consider such evidence to understand whether the dumped imports have indeed depressed the 
domestic prices.473  
7.342.   In this case, prices of the domestic like product tracked costs closely both in percentage and 
absolute terms, and Taghleef had pointed out these facts during the investigation.474 In our view, in 
these circumstances, it was not sufficient merely to assert that the price depression was the effect 
of dumped imports and other factors. The NTC's  statements that "the reduction in prices was more 
than reduction in cost" and that therefore "price depression was partly due to decrease in cost and 
partly due to dump ing", are conclusory and fall short of a reasoned an adequate explanation . In our 
 
462 Pakistan's  response to Panel question No.  64. 
463 Appellate  Body Report, China – GOES , para.  141. 
464 Report on final determination (2013), (Exhibit  PAK-1 (BCI)), para.  36.3.2.  
465 United Arab Emirat es' first written submission, paras.  339-342; opening statement at the 
first meeting of the Panel, para. 52; and written opening statement, paras.  71 and 78 (referring to Report on 
final determination (2013), public version, (Exhibit  ARE-2), para.  36.2.1 ). See also  
United  Arab Emirates'  response to Panel question No.  91. 
466 Pakistan's  first written submission, para.  3.414; second written submission, paras.  2.197 -2.200 
and 2.210. See also Pakistan's  response to the United Arab Emirates'  written opening statement, para.  47; 
response to Panel question No.  91; and comments on United Arab Emirates'  response to Panel question No.  91. 
467 Report on final determination (2013), (Exhibit  PAK-1 (BCI )), table -IX and para.  36.2.1 . 
468 Report on  final determination (2013), (Exhibit  PAK-1 (BCI )), table -X. 
469 United Arab Emirates'  response to Panel question No.  91. 
470 Report on final determination (2013), public version, (Exhibit  ARE-2), para.  32.2.4.  
471 Emphasis added.  
472 Pakistan's  second written sub mission, para.  2.200.  
473 See also Appellate  Body Report, China – GOES , para.  152, calling for an examination into whether 
dumped imports have a "depressive … effect on domestic prices".  
474 Taghleef 's post-hearing submission , (Exhibit  ARE-13), p.  18. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  view, to perform an objective examination, the NTC was required to explain why, in light of the facts 
on its record, it considered that the price depression was "the effect o f" the dumped imports.  
7.343.   We therefore find that the NTC acted inconsistently with Articles  3.1 and 3.2 because it did 
not explain why it considered that the price depression was the effect of the dumped imports in light 
of the fact that the decline in price s tracked extremely closely the decrease in the domestic 
industry's  costs.  
7.7.3.5   Conclusion on the NTC's  consideration of price depression under Articles  3.1 
and 3.2 
7.344.   We find that the NTC's  price depression analysis was inconsistent with Articles  3.1 and 3.2 
because: the NTC based its conclusion of price depression on the only year of the POI that supported 
that conclusion, without explaining how it took into account the conflicting evidence from earlier and 
later parts of the POI; the NTC did not consider whethe r the price depression was "significant"; and 
the NTC did not explain why it considered that the price depression was "the effect of" the dumped 
imports in light of the fact that the decline in prices tracked extremely closely the decrease in the 
domestic industry's  costs.  
7.8  Examination of the impact of the dumped imports on the domestic industry: 
Articles  3.1 and 3.4 of the Anti -Dumping  Agreement  
7.345.   The United  Arab Emirates challenges the NTC's  examination of the impact of the dumped 
imports on the domestic ind ustry as inconsistent with Articles  3.1 and 3.4. First, the 
United  Arab Emirates submits that the NTC  failed to evaluate the magnitude of the margin of 
dumping, which is one of  the factors explicitly listed in Article  3.4. Second, the United  Arab Emirates 
submits that the NTC did not objectively evaluate seven of the economic factors and indices having 
a bearing on the state of the industry. Third, the United  Arab Emirates argues that the NTC failed to 
adequately explain why it concluded that overall, the d omestic industry had been injured, in light of 
several factors that exhibited positive trends.  
7.346.   Pakistan asks the Panel to reject the United Arab Emirates'  claims.  
7.347.   As set out below, we find that the United Arab Emirates has established that 
Pakistan's  exam ination of the impact of the dumped imports on the domestic industry was 
inconsistent with Articles  3.1 and 3.4 of the Anti -Dumping  Agreement.  
7.348.   We structure our discussion as follows: first, we set out the applicable requirements of 
Article  3.4 (section  7.8.1 ), having already discussed Article  3.1 in section  7.6.1 above ; second,  we 
apply those requirements to the facts of this case to assess whether Pakistan acted inconsistently 
with Articles  3.1 and 3.4 (section  7.8.2); and third, we conclude that Pakistan acted inconsistently 
with those provisions (section  7.8.3).  
7.8.1   The applicable requirements of Article  3.4 
7.349.   We recall that pursuant to Article  3.1, a determination of injury must involve an objective 
examination of, inter alia, the impact of dumped imports on domestic producers of the like product. 
Article  3.4 sets forth requirements for this examination of the impact of the dumped imports. 
It provides that:  
The examination of the impact of the dumped imports on the domestic industry 
concerned shall  include an evaluation of all relevant economic factors and indices having 
a bearing on the state of the  industry, including actual and potential decline  in sales, 
profits, output, market share, productivity, return  on investments, or utilization of 
capacity; factors affecting domestic prices; the magnitude of the  margin of dumping; 
actual and potential negative effects on cash flow, inventories, employmen t, wages,  
growth, ability to raise capital or investments. This list is not exhaustive, nor can one 
or several of these  factors necessarily give decisive guidance.  
7.350.   Article  3.4 requires that an investigating authority evaluate all relevant economic factors and 
indices that have a bearing on the state of the domestic industry , and lists 15 such factors. The list WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  is not exhaustive, i.e.  an investigating authority must examine all the listed factors but may also be 
required to evaluate other relevant factors ba sed on the facts and circumstances of the particular 
proceeding.  
7.351.   The ordinary meaning of "evaluate" includes to " determine the significance, worth, or 
condition of usually by careful appraisal and study ".475 We agree with previous panels that have 
understo od the obligation to "evaluat[e]" under Article  3.4 to require an analysis and interpretation 
of the data relating to the economic factors and indices, and an assessment of the "role, relevance 
and relative weight of each factor in the particular investiga tion".476 Therefore, an investigating 
authority may not limit itself to setting out trends relating to the economic factors and indices .477 
Instead, it must analyse and interpret the data , in a way that is then discernible from the 
investigation record.478  
7.352.   Article 3.4 requires an investigating authority to examin e the impact  of the dumped  imports  
on the domestic  industry . Thus, the text of Article  3.4 creates a link between dumped imports and 
the state of the domestic industry. Therefore, in our view, an investigating authority is required to 
identify the trends in the injury factors and place those trends in the relevant  context that is 
informative of the injury  suffered by the domestic industry, taking into account the relevant evidence 
and explanations that are on its record.479 The precise contours  of this analysis will vary  on a 
case-by-case basis, depending on the evi dence and explanations on the record of the investigating 
authority.  Where the evidence on the investigating authority's record suggests alternative readings  
of the trends observed, an objective examination would include  considering that evidence, and 
reconciling it with the authority's reading  of the trends it observes .480 
7.353.   While an investigating authority must assess the factors listed in Article  3.4, this provision 
does not require all factors to be indicative of injury. An investigating authority may find  that some 
factors are not relevant, or have limited relevance, and explain the basis for such findings.481 And it 
is possible for an investigating authority to conclude that there is injury to the domestic industry 
where some of the relevant individual factors are not indicative of injury , provided that the  authority 
adequately explain s how its evaluation of the relevant economic factors and indices support the 
overall determination of injury.482  
7.8.2   Whether the NTC's  examination of the impact of the dumped imports on the 
domestic industry was inconsistent with Articles  3.1 and 3.4  
7.354.   As we outlined at paragraph  7.345  above, the United  Arab Emirates argues that the NTC 
acted inconsistently with Articles  3.1 and  3.4 on three grounds. Below, we discuss the merits of each 
of the three grounds in turn, as follo ws: first, whether the NTC failed to evaluate the "magnitude of 
the margin of dumping" (section  7.8.2.1 ); second, whether the NTC failed to evaluate seven of the 
injury factors objectively and based on positive evidence (section  7.8.2.2 ); and  third, whether the 
 
475 Merriam -Webster Dictionary online, definition of  "evaluate" www.merriam -webster.com , v., 
meaning  2.  
476 Panel Report, EC – Bed Linen  (Article  21.5 – India) , para. 6.162. See also Panel Report, Egypt  – 
Steel Rebar , paras.  7.43-7.44. 
477 Panel Report, Korea  – Certain  Paper , para.  7.268 . 
478 Previous panels and the Appellate  Body have considered that an investigating authority is not 
required to include a separate record of the evalua tion of each of the injury factors listed in Article  3.4. 
Whether there is sufficient and credible record evidence to satisfy a panel  that a factor has been evaluated, 
even though a separate record of the evaluation of that factor has not been made, will d epend on the particular 
facts of each case . (Panel Report, Thailand  – H-Beams , para.  7.237 ; Appellate  Body Report, EC – Tube or Pipe 
Fittings , paras.  157 and 161). Since Article  3.4 does not stipulate how an investigating authority shall set out 
its evaluation of the relevant economic factors and indices, we agree with this reasoning.  
479 Panel Report, China  – Broiler  Products , para.  7.554. See a lso Appellate Body Report, China  – GOES , 
paras.  149-150. 
480 An examination of the impact of the dumped imports on the state of the domestic industry, under 
Article 3.4, is part of the overall framework of an injury analysis under Article 3. Under Article 3. 4, an 
investigating authority is required to examine what the impact of the dumped imports on the domestic industry 
is, and not to demonstrate  that the dumped imports have caused  injury to the domestic industry: the latter is 
required under Article 3.5.  
481 See e.g. Panel Reports, EC – Bed Linen  (Article  21.5 – India) , para.  6.162; Russia  – Commercial  
Vehicles , para.  7.111.  
482 See e.g.  Panel Report, Thailand  – H-Beams , paras.  7.236 and 7.249. See also Panel Report, China  – 
Cellulose  Pulp, para. 7.129.  WT/DS538/ R 
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  NTC failed to adequately explain why it concluded that, overall, the domestic industry had suffered 
injury (section  7.8.2.3 ). 
7.8.2.1   Whether the NTC failed to evaluate the "magnitude of the margin of dumping"  
7.355.   The United  Arab Emirates argues that the NTC acted inconsistently with Article  3.4 by failing 
to evaluate  the magnitude of the margin of dumping in its examination of the impact of the dumped 
imports on the domestic industry.483 The United  Arab Emirates acknowledges that the NTC set out 
its calculation of the margins of dumping in another section  of its Report on final determination, but 
argues that this did not meet the required standard under Article  3.4.484 
7.356.   Pakistan agrees that the NTC did not explicitly  analyse the magnitude of the marg in of 
dumping in its injury analysis. However, Pakistan points us to the section  of the Report  on final 
determination in which the NTC set out  the margins of dumping485, and argues that in assessing 
injury the NTC implicitly  considered the magnitude of the margins of dumping and concluded that 
they were indicative of injury. Pakistan asserts that the NTC's  practice is to consider an explicit 
analysis superfluous where the margins of dumping are as high as they were in this case ( 24.32%  
to 59.67% ).486 Pakistan also argues that it is especially obvious in the context of a commodity 
product that dumping margins of this magnitude "will significantly contribute to material injury" .487  
7.357.   We recall that Article  3.4 does not prescribe the manner in which an inv estigating authority 
must examine and present its evaluation of the relevant economic factors and indices  in its published 
documents. An investigating authority may undertake an "implicit analysis" of a factor, provided 
that the record contains sufficient and credible evidence that the factor has been evaluated.488  
7.358.   We now turn to assess whether the NTC indeed undertook an implicit analysis of the 
magnitude of the margin of dumping.  
7.359.   In the portion of the Report on final determination that Pakistan points us to, towards the 
end of the section  on "determination of dumping", the NTC lists, in a table, the margins of dumping 
for each relevant source.489 There is no accompanying discussion or analysis, explicit or implicit, 
associated with this table. In our view, this does not satisfy the requirements of Article  3.4 because 
the evaluation of the factors listed in Article  3.4 requires investigating authorities to exercise their 
judgment, i.e.  to assess the role, relevance, and relative weight of eac h factor.490  
 
483 United Arab Emirates'  first written submission, paras.  373-375. 
484 United Arab Emirates'  first written submission, paras.  376-377; opening statement at the 
first meeting of the Panel,  paras.  63-64; second written submission, para.  177; and wr itten opening statement, 
para. 80. 
485 Pakistan's  first written submission, para.  3.435  (referring to Report on final determination (2013), 
public version , (Exhibit  ARE-2), para.  30.4).  
486 Pakistan's  first written submission, paras.  3.435 -3.436; response to P anel question No.  65; and 
second written submission, paras.  2.243 -2.245.  
487 Pakistan's  first written submission, para.  3.436.  
488 See fn 478 above.  
489 Report on final determination (2013), public version , (Exhibit  ARE-2), para.  30.4. 
490 See para.  7.351  above; see also Panel Report, EC – Bed Linen  (Article  21.5 – India) , para.  6.162 . 
Past panels have also taken this position (see, e.g.  Panel Reports,  Russia  – Commercial  Vehicles , para. 7.161; 
China  – X-Ray Equipment , paras.  7.183 -7.184; and China  – HP-SSST  (Japan)  / China  – HP-SSST  (EU), 
para. 7.160 ). In support of its arguments, Pakistan refers to the Panel Report in Russia  – Commercial  Vehicles , 
in which that panel stated that Article  3.4 does not require that the magnitude of the margin of dumping be 
evaluated in any particular way or be given any p articular weight , and that the Anti-Dumping  Agreement does 
not provide any guidance as to how the investigating authority 's evaluation should be set out in its 
determination . (Pakistan's  response to Panel question No.  65 (referring to Panel Report, Russia  – Commercial  
Vehicles , para. 7.159)). However, in that same report, the panel stated as follows:  
In the present case, in section  4.1 of the Investigation Report, the [Department for Internal Market 
Defence of the Eurasian Economic Commission ] was addressi ng the issue whether the margin of 
dumping for each of the countries potentially subject to a cumulative assessment was greater than 
de minimis  (2%). There is no discussion of the impact of dumped imports on the domestic industry, 
or the magnitude of the m argin of dumping in that context. There is no basis for us to conclude 
that the analysis in section  4.1 for the purposes of Article  3.3 was relevant to, or considered in, 
the context of the Article  3.4 examination.  Section 4.1 of the Investigation Report d oes not, 
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  7.360.   While Pakistan asserts that with dumping margins of this magnitude the injurious effect is 
obvious, especially for a commodity product, there is nothing on the NTC's  record to suggest that 
this was, in fact, the NTC's  implicit reasoning.  In reaching this concl usion, we note that the table  that 
Pakistan refers to appears in the section  of the report involving the calculation of the margin of 
dumping, and not that on injury to the domestic industry. Moreover, the NTC does not connect that 
information to the injur y analysis in any way.  
7.361.   We conclude that the NTC did not evaluate the magnitude of the margin of dumping in the 
context of its injury analysis, explicitly or implicitly. Therefore, we find that the NTC acted 
inconsistently with Article  3.4 of the Anti -Dumpi ng Agreement, by failing to evaluate all the relevant 
factors listed in that provision.  
7.8.2.2   Whether the NTC failed to objectively evaluate seven of the economic factors and 
indices having a bearing on the state of the domestic industry  
7.362.   The United  Arab Emirates  claims that the NTC's  evaluation of seven of the economic factors 
and indices having a bearing on the domestic industry did not involve an objective examination of 
positive evidence. We assess the United Arab Emirates'  arguments regarding each of the fact ors in 
turn.  
7.8.2.2.1   Market share  
7.363.   The United  Arab Emirates contends that the NTC acted inconsistently with Articles  3.1 
and 3.4 in finding that the domestic industry had suffered injury on account of market share, because 
the NTC based this finding on the single year in which the domestic industry's  market share declined 
somewhat while the market share of dumped imports increased, and disregarded the fact that the 
domestic industry's  market share increased during the rest of the POI, including the last half year.491 
The United  Arab Emirates argues that the NTC thus failed to take into account evidence contradicting 
its conclusions and to explain why, despite that evidence, the facts still supported its conclusions.492  
7.364.   Pakistan responds that the NTC considered data from the entire POI, and that the data 
supported its finding that the domestic industry's  market share declined on account of dumped 
imports. Pakistan asserts that the NTC merely attached particular significance to data observed 
in 2009 (wh ile not ignoring the rest of the POI) because it was the most recent full year in the POI.493 
Pakistan also argues that data relating to the period January to June  2010 supports the 
NTC's  finding, because the domestic industry's  market share increased at th e same time as the 
volume of dumped imports declined.494  
7.365.   In its Report on final determination, the NTC set out the year -on-year changes in the 
domestic market share of the domestic industry and the sources under investigation.495 This data 
showed that the domestic industry's  market share increased in 2008 (from 2007) and January to 
June 2010 (from January to June  2009), as well as overall from the beginning of the POI (2007) to 
the end of the POI (January to June  2010). The NTC th en commented that the domestic 
industry's  market share had increased in 2008 but decreased in 2009, when the share held by 
dumped imports increased, and concluded, without more, that the domestic industry had suffered 
material injury on account of the dump ed imports.496 
7.366.   We recall that  Articles  3.1 and 3.4 require a determination to "be based on positive evidence" 
and "involve an objective examination" of, among others, the impact of dumped imports on the state 
of the domestic industry, including market share .497 To perform an objective examination based on 
 
therefore, contain an evaluation of the magnitude of the margin of dumping for purposes of 
Article  3.4. 
(Panel Report, Russia  – Commercial  Vehicles , para. 7.161 (fn  omitted))  
On this basis, we agree with the United Arab Emirates that the Panel Report in  Russia  – Commercial  
Vehicles  does not support Pakistan's  view. 
491 United Arab Emirates'  first written submission, paras.  386-391. 
492 United Arab Emirates'  first written submission, para.  391. 
493 Pakistan's  first written submission, paras.  3.445-3.448.  
494 Pakistan's  first written submission, para.  3.448.  
495 Report on final determination (2013), public version , (Exhibit  ARE-2), table -XI. 
496 Report on final determination (2013), public version , (Exhibit  ARE-2), paras.  37.2-37.5. 
497 See paras.  7.257 -7.259  and 7.349  above.  WT/DS538/ R 
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  positive evidence, an investigating authority must, among other things, take into account conflicting 
evidence and explain how the evidence supported its conclusions.498  
7.367.   In the case before us, the NTC was fa ced with an increasing market share of the domestic 
industry during the first and last part of the POI, and a decrease in 2009; and vice versa  for the 
market share of the dumped imports. The NTC chose to base its findings on market share exclusively 
on 200 9, the only portion of the POI  during which the domestic industry's  market share decreased. 
We cannot find any explanation on the record of how the NTC took into account the conflicting data 
from the earlier and later parts of the POI. This is not consiste nt with the requirement to perform an 
objective examination pursuant to Articles  3.1 and 3.4.  
7.368.   Regarding data from the last portion of the POI, i.e.  January to June  2010, Pakistan argues 
that the NTC "was … within … its … discretion to discount the upward t ick" during this period because 
half-year data was "inherently less reliable" than the most recent full year (2009) and the increase 
in market share observed in January to June  2010 could not outweigh the preceding decline.499 
Further, Pakistan points out t hat data for this period actually showed a link between the dumped 
imports and domestic industry's  market share, because the increase in the domestic 
industry's  market share coincided with a decline in the market share of the dumped imports.500 
However, Pak istan has not pointed us to any evidence that these explanations formed part of the 
NTC's  own reasoning in the domestic proceedings, and therefore we cannot rely on them in assessing 
the authority's  determination.  
7.369.   We therefore find that in concluding that  the domestic industry had suffered injury on 
account of market share, the NTC acted inconsistently with Articles  3.1 and  3.4, because it focused 
on the single year in which market share declined and gave no explanation of how it took into 
account the conf licting evidence from the rest of the POI.  
7.8.2.2.2   Profits  
7.370.   The United  Arab Emirates submits that the NTC's  evaluation of "profits" was inconsistent 
with Articles  3.1 and 3.4 for three reasons. First, the United  Arab Emirates argues that there were 
unexplained dis crepancies between the data relied upon by the NTC and that reflected in the 
domestic producer's  annual reports , which called into question the profit data underlying the 
NTC's  analysis.501 Second, the United  Arab Emirates asserts that it is questionable  whether the slight 
declines in profits and the absence of losses support ed a finding of "material injury".502 Third, the 
United  Arab Emirates argues that the NTC failed to consider other explanations identified by Taghleef 
and enumerated in the domestic producer's  annual reports that could have explained the declines in 
profits.503  
7.371.   Pakistan responds that, first, there are no discrepancies between the data relied upon by 
the NTC and th ose in the domestic producer's  annual reports. Rather, the dome stic 
producer's  annual reports reflect its consolidated profit data, while the NTC's  Report on final 
determination only reflects profit data relating to BOPP film.504 Second, Pakistan asserts that the 
Anti-Dumping  Agreement does not preclude the NTC from co ncluding that small declines in profits, 
and absence of losses, were indicative of injury.505 Third, Pakistan argues that the NTC was not 
required to evaluate the alternative explanations for the declines in profits because the domestic 
producer's  annual re ports contained consolidated business information, and therefore  the 
 
498 See also e.g.  Appellate  Body Report, US – Softwood  Lumber  VI (Article  21.5 – Canada) , paras.  93-94 
and 97.  
499 Pakistan's  first written submission, paras.  3.445 -3.447.  
500 Pakistan's  first written submission, para.  3.448.  
501 United Arab Emirates'  first written submission, para.  401 (referring to Taghleef 's post-hearing 
submission , (Exhibit  ARE-13), p. 24; 2009 Tri-Pack Films ' Annual Report , (Exhibit  ARE-24b (revised)), pp.  1 
and 10; and 2010 Tri -Pack Films' Annual Report (excerpt) , (Exhibit  ARE-26), pp. 14 and 17). 
502 United Arab Emirates'  first written submission, para.  399; second written submission, para.  191. 
The United Arab Emirates subsequently conceded a finding of inju ry may be warranted even absent losses. 
(United  Arab Emirates'  second written submission, para.  192).  
503 United Arab Emirates'  first written submission, paras.  402-403; second written submission, 
para. 193. 
504 Pakistan's  first written submission, para.  3.463; response to Panel question No.  66. 
505 Pakistan's  first written submission, paras.  3.459 and 3.462.  WT/DS538/ R 
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  explanations therein did not necessarily relate to BOPP film and Taghleef had not substantiated its 
assertions.506 
7.372.   On the first issue, the parties agree that the profit data in the domesti c producer's  annual 
reports varied from that reflected in the Report on final determination. The parties also agree that 
the domestic producer's  annual reports related to consolidated data.507 However, the 
United  Arab Emirates argues that, because the domes tic producer mainly produced BOPP film, the 
profit data in its annual reports were relevant to BOPP film, and that, considering that Taghleef 
raised its concerns during the investigation, the NTC acted inconsistently with Articles  3.1 and  3.4 
by not examin ing whether the profit data underlying its determination were accurate.508 
7.373.   We note that during the investigation Taghleef raised its concerns as to the accuracy of the 
profit data.509 The NTC acknowledged these concerns in its Report on final determination510, but did 
not address these particular concerns in the Report. Pakistan argues that during the verification visit 
the NTC verified that the profit data underlying its analysis relat ed to BOPP film only, and that the 
NTC was therefore entitled to disregard Taghleef's  arguments.511  
7.374.   In this regard, we note that in its Report on final determination, the NTC stated that the 
profit data therein were "duly adjusted (explained in on -the-spot investigation report of domestic 
industry)".512 We also note that in the verification report, the NTC did not specifically explain its 
adjustment to profit data. The NTC did state generally that the verification report "contains mostly 
the information on B OPP Film in as far as it can be identified with the domestic like product 
(BOPP  Film). In case of information  or data that cannot be identified with the domestic like product 
the information is for the products group, which also include [cast polypropylene ] Film".513 The NTC 
also stated that the profit data were verified from the profit and loss statements of the domestic 
producer.514  
7.375.   Thus, the NTC's  Report on final determination and the verification report do not clarify 
whether, indeed, the differences in the profit data can be explained by the supposed disaggregation 
of the data. In our view, Taghleef proffered sufficient evidence to substantiate515 its assertions in 
order to warrant an explicit response from the NTC. Taghleef indexed the pro fit data in the annual 
reports, observed that they differed from the trends presented by the NTC in its Report on 
preliminary determination, and pointed out to the NTC that the two sets of data differed.516 The NTC 
acknowledged these concerns in its Report on final determination517, but does not appear to have 
addressed them. On this basis, we agree with the United Arab Emirates that the NTC was "put on 
notice"518 of the differences in the data. In our view, failing to address Taghleef's  concern regarding 
the accuracy of the profit data was not consistent with Articles  3.1 and  3.4.519  
7.376.   We now turn to the second issue, which is whether the NTC acted inconsistently with 
Articles  3.1 and  3.4 by finding that the trends in profits were indicative of injury, despite slight 
declines in profits.  
7.377.   We note that Article  3.4 does not necessarily preclude an investigating authority from finding 
the existence of material injury where it observes minor negative trends with regard to some of the 
individual factors. We understand the materiality  of injury to attach to the overall state of the 
domestic industry, and not the individual factors. Therefore, the United  Arab Emirates has not 
 
506 Pakistan's  first written submission, para.  3.464; response to Panel question No.  67. 
507 United Arab Emirates'  second written submission, para.  194. 
508 United Arab Emirates'  second written submission, para.  194. 
509 Taghleef 's post-hearing submission , (Exhibit  ARE-13), p.  24. 
510 Report on final determination (2013), public version , (Exhibit  ARE-2), p.  68. 
511 Pakistan's  response to Panel question No.  67. 
512 Report on final determination (2013), public version , (Exhibit  ARE-2), para.  41.1. 
513 Report on Tri -Pack Films verification visit , (Exhibit  ARE-23), para.  3.2. 
514 Report on Tri -Pack Films verification visit , (Exhibit  ARE-23), para.  16. 
515 Pakistan's  response to Panel question No.  67. 
516 Taghleef 's post-hearing submission , (Exhibit  ARE-13), p.  24. 
517 Report on final determination (2013), public version , (Exhibit  ARE-2), p.  68. 
518 United Arab Emirates'  second written  submission, para.  194. 
519 We recall that investigating authorities are required to base their determinations on "positive 
evidence". i.e.  evidence that is, inter alia, accurate, affirmative, objective, verifiable , and credible . See 
para. 7.257  above.  WT/DS538/ R 
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  established that the NTC acted inconsistently with Article  3.4 by relying on slight declines in p rofits 
in support of its finding of injury .  
7.378.   We now turn to the final issue, which is whether the NTC objectively evaluated whether the 
decline in profits was the result of the dumped imports. In its Report on final determination, the NTC 
set out the trend s in profit and loss data, and concluded that the domestic industry had suffered 
material injury during the POI for dumping .520 The United  Arab Emirates argues that the NTC failed 
to address alternative factors  that could have explained the decline in profi ts, i.e.  the increase in 
raw material costs, which could not be passed onto consumers due to availability of cheap smuggled 
film; and the increased financial costs.521 We note that these factors were identified in the domestic 
producer's  annual report , whic h formed part of the record of the investigation522, and were raised 
by Taghleef during the investigation.523  
7.379.   Pakistan concedes that the NTC did not address these arguments in its Report on final 
determination. However, Pakistan argues that the NTC was not required to do so because the annual 
reports of the domestic producer contained consolidated data, not limited to BOPP film524, and it was 
therefore " clear to the NTC that Taghleef 's arguments had no validity for the issue at hand ".525 
We note, first, th at the evidence before us does not indicate that this was the NTC's  reasoning.  
7.380.   Second, we note that the domestic producer stated as follows in the portion of its annual 
report pointed to by Taghleef:  
Decline in net profit is mainly on account of increase in raw material cost  which could 
not be fully passed on to our customers due to availability of smuggled film  at cheaper 
rates. Our financial cost also increased  as a result of higher mark -up rates and financing 
requirements during the current period.526 
7.381.   While the domestic producer's  annual report related to its consolidated business, the same 
report also stated that:  
While we struggled to survive in such difficult business environment, cheap availability 
of smuggled  BOPP  film created an unfair competition directly hitting our domestic sales 
and margins.527 
7.382.   The wording of these statements indicates that they  were relevant to the NTC's  evaluation 
of the profitability of the domestic BOPP film industry during the POI.  They therefore  do not support 
Pakistan's assertion that the NTC disregarded Taghleef's  argument on the basis that the statements 
in the domestic producer's  annual report were not specific to BOPP film.  
7.383.   For these reasons, we are of the view that the NTC was sufficiently put on notice that the 
domestic producer considered that its profits from the domestic like product had declined mainly 
due to the increase in raw materials and financial costs ; it disregarded this evidence, which conflicted 
with its own conclusions ; and it did n ot offer any explanation for doing so. Therefore, by disregarding 
these alternative explanations when evaluating whether the decline in profits was the "impact of the 
dumped imports", the NTC acted inconsistently with Articles  3.1 and  3.4. 
7.8.2.2.3   Sales  
7.384.   The United  Arab Emirates submits that the NTC's  analysis of the injury factor "sales" was 
inconsistent with Articles  3.1 and 3.4 for two reasons. First, the United  Arab Emirates argues that 
 
520 Report on final determination (2013), public version , (Exhibit  ARE-2), section  41.  
521 United Arab Emirates'  first written submission, para.  402 (referring to 2009 Tri-Pack Films ' Annual 
Report , (Exhibit  ARE-24b), p.  18).  
522 2009 Tri-Pack Films ' Annual Report , (Exhibit  ARE-24b), p.  18. 
523 Taghleef 's post-hearing submission , (Exhibit  ARE-13), pp. 24-25; Taghleef 's comments on statement 
of essential facts , (Exhibit  ARE-25), section  1(g) (referring to 2009 Tri-Pack Films ' Annual Report , 
(Exhibit  ARE-24b), p.  18).  
524 Pakistan's  first written submission, para.  3.464.  
525 Pakistan's  response to Panel  question No.  66. 
526 2009 Tri-Pack Films ' Annual Report , (Exhibit  ARE-24b), p.  18. (emphasis added)  
527 2009 Tri-Pack Films ' Annual Report , (Exhibit  ARE-24b), p.  17. (emphasis added)  WT/DS538/ R 
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  the NTC observed only marginal declines in sales, which did not support a fi nding that the domestic 
industry had suffered "material injury".528 Second, the United  Arab Emirates argues that the NTC 
failed to evaluate other evidence on its record that could explain the decline in sales on the domestic 
market, including the domestic industry's  increased export  sales and other reasons enumerated in 
the domestic producer's  annual reports.529 
7.385.   Pakistan responds, first, that the Anti -Dumping  Agreement does not prescribe any minimum 
quantum of decline in the individual injury factors, and materiality  of injury depends on the "overall, 
holistic examination of all the injury factors taken together".530 Second, Pakistan argues that the 
NTC properly established that the impact of the dumped imports included the declin e in sales. 
Pakistan asserts that the NTC's  findings on "sales" must be seen in the context of its previous 
findings that the volume of dumped imports had increased in 2009, and that the NTC was not 
required to "repeat" these facts at every step of its analysis.531  
7.386.   Regarding the extent of the decline in sales, we recall that materiality of injury attaches to 
the overall state  of the domestic industry, and not to the individual factors, and that Article  3.4 does 
not set a threshold below which a decline in an individual factor cannot be indicative of injury. On  this 
basis, we are of the view that merely by invoking the limited extent of the decline in sales, the 
United  Arab Emirates has not established that the NTC acted inconsistently with Article  3.4. 
7.387.   We now turn to the alternative explanations for the domestic industry's  decline in sales on 
the domestic market, which the Unit ed Arab Emirates argues that the NTC failed to take into account.  
7.388.   Beginning with export sales , we note that during the investigation Taghleef noted that the 
domestic producer's  total sales had grown during the POI , but argued  that from  January 2009 to 
June 2010 the company's  export  sales had grown at the expense of its domestic sales.532 Taghleef 
relied upon the report on the domestic producer's  verification visit, which indeed supported 
Taghleef's  statement.533  
7.389.   Pakistan argues that the NTC considered the e ffect of the domestic industry's  export sales 
in its non -attribution analysis.534 We note that in the context of its non -attribution analysis, the NTC 
considered the domestic industry's  export sales as follows:  
Export performance of the domestic industry w as better in 2009 and 2010. Therefore, 
this to some extent diluted the effects of dumping and was not a factor causing injury 
to domestic industry.535 
7.390.   This statement is premised on the assumption  by the NTC that injury was the effect of 
dumped imports , and asserts that increased export sales diluted the injurious effects of those 
dumped imports. It does not reflect a consideration of whether , in the first place,  the decrease in 
domestic sales was "the impact of the dumped imports" , as envisaged by Article  3.4, or whether it 
rather reflected  a shifting of sales to export markets.  
7.391.   Given the above, the record in this dispute indicates that the NTC did not address information 
and argument that Taghleef submitted to the NTC that suggest ed that  the decline in domestic sales 
could be attributed to factors other than dumping. In order to comply with the obligations of 
Articles  3.1 and 3.4, the NTC would have been required to take into account this alternative 
explanation in its evaluation o f whether the decline in sales was "the impact of the dumped imports". 
By not doing so, the NTC acted inconsistently with the requirement to make an "objective 
 
528 United Arab Emirates'  first written submission, para.  393; second written submission, para.  188. 
529 United Arab Emirates'  first written submission, para.  395 (referring to Report on Tri -Pack Films 
verification visit , (Exhibit  ARE-23), section  10; 2009 Tri-Pack Films ' Annual Report , (Exhibit  ARE-24b), p.  17); 
and second written submission, para.  190.  
530 Pakistan's  first written submission, paras.  3.453 -3.454; second written submission, 
paras.  2.226 -2.227.  
531 Pakistan's  first written submission, para.  3.455.  
532 Taghleef 's post-hearing submission , (Exhibit  ARE-13), p.  21 (referring to Report on Tri -Pack Films 
verification visit , (Exhibit  ARE-23), section  10). 
533 Report on Tri -Pack Films verification visit , (Exhibit  ARE-23), section  10. 
534 Pakistan's  first written submission, para.  3.456 (referring to Report on final determination (2013), 
public version , (Exhibit  ARE-2), para.  48.1).  
535 Report on final determination (2013), public version , (Exhibit  ARE-2), para.  48.1(vi).  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  examination" of "the impact of the dumped imports on the domestic industry", pursuant to 
Article s 3.1 and  3.4. 
7.392.   Next, the United  Arab Emirates argues that other explanations for the domestic 
industry's  decline in sales were set forth in the domestic producer's  annual report and raised by 
Taghleef during the investigation536, but the NTC did not take th ese into account, either. Specifically, 
the United  Arab Emirates notes that in its annual report, the domestic producer indicated that it 
"struggled to survive" in 2009 because of "deteriorating economy, electricity crisis, rupee 
devaluation, uncertain pol itical situation and security conditions", compounded by "cheap availability 
of smuggled BOPP film … directly hitting our domestic sales  and margins" .537 
7.393.   Again, this evidence suggested that the decline in sales might not have been "the impact of 
the dumped imports" and yet the NTC neither acknowledged nor addressed it. In our view, this is 
not consistent with the requirement for an objective examination of the impact of the dumped 
imports, set forth in Articles  3.1 and  3.4.538 
7.8.2.2.4   Productivity  
7.394.   The United  Arab Emirates argues that the NTC's  evaluation of the "productivity" factor was 
inconsistent with Articles  3.1 and 3.4 for two reasons. First, the United  Arab Emirates asserts that 
the NTC did not make a finding that the domestic industry suffered injury on acc ount of productivity, 
but then listed this factor as supporting the overall injury determination.539 Second, the 
United  Arab Emirates asserts that in evaluating productivity the NTC failed to address the constituent 
factors of productivity, namely productio n and employment540: although the increase in employment 
appeared to explain the decrease in productivity, the NTC assumed that this was due to the dumped 
imports instead.541 
7.395.   In response to the United  Arab Emirates'  first argument, Pakistan maintains that it  was clear 
from the "content and thrust" of the NTC's  analysis that the NTC considered the decline in 
productivity to be indicative of injury.542 In response to the United  Arab Emirates'  second argument, 
Pakistan maintains that the decline in productivity c oincided with an increase in dumped imports, 
and therefore "it was not necessary for the NTC to repeat" the "crucial role played" by the increase 
in dumped imports during the "most significant part of the POI"543; and that the NTC was not required 
to analys e the constituents of productivity in its evaluation of the factor "productivity".544  
7.396.   We begin by considering the United  Arab Emirates'  second argument, namely that the NTC 
erred by disregarding the fact that the decrease in productivity was directly related to the increase 
in number of employees of the domestic industry.  
7.397.   The NTC observed that productivity declined through the P OI545, and then included the 
"negative effect on productivity " in the list of factors that supported its findings that the domestic 
industry had suffered material injury.546  
7.398.   We note that the NTC calculated productivity as production per worker.547 During the  POI, 
the level of production remained rather stable, whereas the number of employees increased steadily, 
 
536 Taghleef 's post-hearing submission , (Exhibit  ARE-13), pp.  21-22 (referring to 2009 Tri-Pack 
Films' Annual Report , (Exhibit  ARE-24b), p. 17).  
537 2009 Tri-Pack Films' Annual Report , (Exhibit  ARE-24b), p. 17.  
538 We have addressed at paras.  7.381 -7.382  above Pakistan's  objection that the annual report refers to 
the domestic producer's  consolidated business.  
539 United Arab Emirates'  first written submission, para.  407. 
540 United Arab Emirates'  first written submission, para.  409. 
541 United Arab Emirates'  first written submission, paras.  407-412; second written submission, 
paras.  170 and 196.  
542 Pakistan's  first written submission, para.  3.468.  
543 Pakistan's  first written submission, para.  3.469.  
544 Pakistan's  first written submission, para.  3.470.  
545 Report on final determination (2013), public version , (Exhibit  ARE-2), paras.  43.2 and 43.4.  
546 Report on final determination (2013), public version , (Exhibit  ARE-2), paras.  47.1(vii) and 50(vi); 
Report on final determination (2013),  (Exhibit  PAK-1 (BCI)), table -XX and para.  47.2(vii).  
547 Report on final determination (2013), public version , (Exhibit  ARE-2), p.  45. WT/DS538/ R 
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  directly resulting in the decrease in productivity observed by the NTC.548 Yet, in discussing 
productivity, the NTC did not acknowledge the increase in  the number of employees, and did not 
consider how it should affect its consideration of "productivity" as "the impact of the dumped 
imports".  
7.399.   Pakistan argues that the NTC based this part of its analysis on productivity  alone , not its 
constituent parts (p roduction and employment), which it examined separately.549 This argument is 
unconvincing. Indeed, the NTC did observe (in the same section  in which it discussed productivity) 
that employment increased, and that the domestic industry did not suffer injury o n account of 
employment.550 However, when observing (in the sentence that immediately followed) that during 
the same period productivity decreased, it failed even to acknowledge the link between the increase 
in number of employees and the decrease in produc tivity.  
7.400.   This failure to address evidence that conflicted directly with its own reading of the data was 
not consistent with the NTC's  duty to carry out an objective examination of the impact of dumped 
imports under Articles  3.1 and  3.4. Having reached this  finding, we do not address the 
United  Arab Emirates'  argument that the NTC did not even make a finding that productivity was a 
negative injury factor.  
7.8.2.2.5   Salaries and wages  
7.401.   The United  Arab Emirates submits that the NTC's  evaluation of salaries and wages was 
inconsistent with Articles  3.1 and 3.4 for two reasons. First, the United  Arab Emirates asserts that 
the NTC did not make a finding as to whether the increase in salaries and wages observed during 
the POI was indicative of injury, but listed this factor as  supporting the overall injury 
determination.551 Second, the United  Arab Emirates asserts that the NTC failed to explain why it 
considered an increase in salaries and wages to be indicative of injury.552  
7.402.   Pakistan responds, first, that the totality of the NT C's analysis of the evolution of salaries 
and wages reveals that the NTC effectively concluded that the trends were indicative of injury553; 
and, second, that an increase in salaries and wages increases the COP of a company, and is therefore 
indicative of i njury to the domestic industry.554  
7.403.   We begin with the United  Arab Emirates'  second line of argument, namely that the NTC failed 
to explain how an increase in salaries and wages could  be indicative of injury. We note that in its 
Report on final determination, the NTC found that salaries and wages per unit of production increased 
across the POI.555 Without more, the NTC then listed "negative effect on salaries & wages" as one 
of the factors on account of which the domestic industry had suffered mat erial injury .556  
7.404.   Thus, the NTC did not provide any discussion or analysis of how the increase in salaries and 
wages was indicative of injury. Yet, i ncreased wages and salaries may be a sign of a prosperous 
domestic industry. Thus, an objective examination under Articles  3.1 and  3.4 would have required 
at least an explanation of how an apparently positive trend could be regarded as supporting a finding 
of injury.  
7.405.   Pakistan asserts t hat the NTC considered increases in salaries and wages per unit of 
production to be indicative of injury because they increased the COP. However, Pakistan does not 
point us to any part of the NTC's  record from which we can infer that the explanation it pre sents 
was the NTC's  own reasoning .  
 
548 Report on final determination (2013),  (Exhibit  PAK-1 (BCI)), table -XVII. 
549 Pakistan's  first written submission, para.  3.470.  
550 Report on final determinat ion (2013), public version , (Exhibit  ARE-2), paras.  43.2 and 43.4.  
551 United Arab Emirates'  first written submission, para.  414. 
552 United Arab Emirates'  first written submission, paras.  415-416; second written submission, 
paras.  170 and 197.  
553 Pakistan's  first written submission, para.  3.473.  
554 Pakistan's  first written submission, para.  3.474; response to Panel question No.  70. 
555 Report on final determination (2013), public version , (Exhibit  ARE-2), paras.  43.3-43.4. The 
confidential version of the report in dicates the magnitude of the increase.  
556 Report on final determination (2013), public version , (Exhibit  ARE-2), para.  47.1(viii); Report on final 
determination (2013),  (Exhibit  PAK-1 (BCI)), table -XX and para.  47.2(viii).  WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  7.406.   Therefore, we find that the United  Arab Emirates has established that the NTC's  evaluation 
of salaries and wages was inconsistent with Articles  3.1 and  3.4. We therefore do not address the 
United  Arab Emirates'  argument that the NTC did not even make a finding that salaries and wages 
were a negative injury factor.  
7.8.2.2.6   Return on investment  
7.407.   The United  Arab Emirates argues that the NTC's  evaluation of the domestic 
industry's  "return on investment" (ROI) was inconsistent with Art icles 3.1 and 3.4 because the NTC 
failed to offer any analysis or explanation of the data and of how the data supported its conclusion 
of material injury; the narrative description of the ROI data in the Report on final determination was 
inconsistent with the data presented in the same report; and the data in the Report on final 
determination were inconsistent with the data in the Report on the verification visit .557 
7.408.   Pakistan responds that the NTC's  evaluation was adequate because the data showed that 
the ROI decreased during the POI558; that the internal inconsistency in the NTC's  report was due to 
a typographical error559; and that although there was a discrepancy with the data in the verification 
report, that discrepancy had no impact on the NTC's  analysis b ecause both datasets showed a 
decrease in the ROI starting in 2009.560  
7.409.   We note that as set out in the NTC's  Report on final determination, the NTC's  analysis was 
limited to the following561: the NTC  listed a figure for each year's  ROI as provided by the domestic 
industry, stated that ROI "decreased during the POI as compared to … 2007 and 2008", and 
"concluded that the domestic industry suffered material injury on account of" this factor.562  
7.410.   As we observed  above563, merely setting out data and making conclusory statements is not 
sufficient for purposes of Articles  3.1 and  3.4. The NTC provided no explanation, let alone a reasoned 
and adequate one, of how the data supported its conclusion that the domes tic injury had suffered 
injury on account of the ROI, and thus acted inconsistently with Articles  3.1 and  3.4. Having reached 
this finding, we do not consider it necessary to address the United  Arab Emirates'  arguments 
regarding the inconsistencies within the Report on final determination and between the data in the 
Report on final determination and the data in the Report on the verification visit . 
7.8.2.2.7   Cash flow  
7.411.   The United  Arab Emirates challenges the NTC's  evaluation of "cash flow" as inconsistent with 
Article s 3.1 and  3.4 on four grounds. First, the United  Arab Emirates points out that cash flow dipped 
in 2008 but then returned to its 2007 level in 2009, and while decreasing again in the first half 
of 2010, it was still greater than in 2008 ; yet the NTC failed  to "acknowledg[e]  these trends in a fair 
and complete manner", finding injury merely on the basis of a "significant decrease" in cash flow in 
January to June 2010.564 Second, the United Arab Emirates points out that the industry's  cash flow 
position worsen ed when the allegedly dumped imports decreased, and vice versa , yet the NTC failed 
to explain why it nonetheless considered the changes in cash flow to be "the impact of the dumped 
imports".565 Third, the United Arab Emirates argues that the cash flow data relied upon by the NTC 
are contradicted by the data in the domestic producer's  annual reports.566 Fourth, the 
 
557 United Arab Emirates'  first written submission, paras.  420-422. 
558 Pakistan's  first written submission, para.  3.477.  
559 The NTC report states that the ROI "increased during year 2009", though the data in the report show 
the opposite. (Report  on final determination (2013), public version , (Exhibit  ARE-2), table -XVIII and 
para. 44.2). According to Pakistan, "increased" was a typographical error and the report should read 
"decreased". (Pakistan's  first written submission, para.  3.477).  
560 Pakistan's  respon se to Panel question No.  72. 
561 In addition to the sentence that Pakistan argues contained a typographical error, and which was 
indeed inconsistent both with the data in the report and with Pakistan's  current arguments. See fn  559 above.  
562 Report on final determination (2013), public version , (Exhibit  ARE-2), paras.  44.1-44.3. 
563 See para.  7.351  above.  
564 United Arab Emirates'  first written submission, para.  426. 
565 United Arab Emirates'  first written submission, paras.  426-427; second written submission, 
paras.  170 and 200.  
566 United Arab Emirates'  first written submission, para.  428 (referring to 2009 Tri-Pack Films' Annual 
Report , (Exhibit  ARE-24b), p. 36; and 2010 Tri-Pack Films' Annual Report  (excerpt) , (Exhibit  ARE-26), p. 18); 
second written submission, para.  170. WT/DS538/ R 
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  United  Arab Emirates points out that the NTC changed its conclusion on cash flow be tween the 
preliminary and final determination, based on the same data and with no explanation.567  
7.412.   Pakistan responds that: there was a time lag between the increase in dumped imports and 
the decrease in cash flow because of the "mechanics of contractual int eraction"568; the NTC used the 
domestic producer's  cash flow from operating activities as set out in the annual reports569; and the 
discrepancy between preliminary and final determination was due to the fact that, the NTC had 
inadvertently failed to include the 2010 cash flow data in its preliminary determination.570  
7.413.   We begin with the United  Arab Emirates'  first argument, i.e.  in summary, that the NTC failed 
to acknowledge trends "in a fair and complete manner". We note that, as the United  Arab Emirates 
points out, the data in the Report on final determination showed a decidedly positive trend for cash 
flow in 2009, the year in which dumped imports had increased.571 Yet the NTC dismissed this fact 
merely on the basis that there had been a "significant decrease"  in cash flow in the first half 
of 2010.572 When viewed in the context of its overall injury determination, in which the NTC 
systematically decided not to rely on data for January to June  2010 and to focus instead on data 
for 2009, the NTC's  choice to do the opposite in the context of cash flow, an d to provide no 
explanation for doing so, does not constitute an "objective examination" under Articles  3.1 and  3.4.  
7.414.   We now turn to the United  Arab Emirates'  second – and related – argument, namely that 
the NTC failed to evaluate "the impact of the dumped  imports" on cash flow. We note that, as the 
United  Arab Emirates points out, the NTC's  data show that cash flow improved when allegedly 
dumped imports increased, and vice versa . Yet, the NTC entirely failed to contend with this fact. 
Pakistan argues that the decrease in cash flow (observed in January to June  2010) lagged behind 
the increase in dumped imports (observed in 2009) because of the "mechanics of contractual 
interactions"573, but has been unable to point us to anything in the record evidencing that  this was 
the NTC's  reasoning. We consider that the NTC's  failure to contend, at all, with evidence 
contradicting its conclusion that the negative trends in cash flow were the impact of the dumped 
imports does not constitute an objective examination as req uired by Articles  3.1 and  3.4. 
7.415.   The United  Arab Emirates'  third argument is that the cash flow data in the Report on final 
determination is contradicted by the data in the domestic producer's  annual reports, which " show 
that its net cash flows increased con siderably and consistently through 2009 and 2010 ".574 Pakistan 
responds that it is not certain which cash flow figures the United  Arab Emirates is referring to, that 
the NTC relied on cash flow from operating activities and that, "for instance", one can verify the 
accuracy of the figures for 2008 and 2009 from the 2009  annual report.575 However, the issue that 
the United  Arab Emirates points to is that while the NTC relied on a decrease in cash flow in 2010, 
which apparently led it to disregard the increas e in 2009, the annual report for 2010 shows an 
increase in cash flow in both years.576 Although the figures in the annual report related to the full 
year 2010, the fact that they showed an overall increase should have been a further reason for the 
NTC to ex plain its choice to rely so heavily on the decrease in cash flow during the first half of  2010, 
whereas, as seen, the NTC gave no explanation at all for its choice. Therefore, these facts confirm 
our finding that the NTC failed to perform an objective exam ination as required by Articles  3.1 
and 3.4.  
7.416.   Having found that the NTC's  consideration of cash flows was inconsistent with Articles  3.1 
and 3.4, we do not consider it necessary to address the United  Arab Emirates'  further argument that 
 
567 United Arab Emirates'  first written submission, para.  429. 
568 Pakistan's  first written submission, para.  3.482; response to Panel question No.  68. 
569 Pakistan's  first written submission, para.  3.483.  
570 Pakistan's  response to Panel question No.  69. 
571 Report on final determination (2013), public version , (Exhibit  ARE-2), table-XVI.  
572 Report on final determination (2013), public version , (Exhibit  ARE-2), para.  42.2. Moreover, as the 
United Arab Emirates also points out, the NTC's  own data show that cash flow during this last half year was still 
greater than in full year 2008. ( Report on final determination (2013), public version , (Exhibit  ARE-2), 
table-XVI; Report on final determination (2013) , (Exhibit  PAK-1 (BCI)), table-XVI). 
573 Pakistan's  first written submission, para.  3.482.  
574 United Arab Emirates'  first written  submission, para.  428. 
575 Pakistan's  first written submission, para.  3.483.  
576 2010 Tri -Pack Films ' Annual Report  (excerpt), (Exhibit  ARE-26), p.  18. WT/DS538/ R 
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  the NTC failed to e xplain the fact that it reached opposite conclusions on cash flow in the preliminary 
and final determinations, based on the same data.  
7.8.2.3   Whether the NTC failed to make a holistic assessment of the state of the industry  
7.417.   The United  Arab Emirates argues that th e NTC failed to make a holistic assessment of the 
state of the domestic industry, explaining why the facts taken together supported its finding of 
material injury despite conflicting evidence.577 The United  Arab Emirates points out that: the NTC 
found that six of the factors it evaluated under Article  3.4 were not indicative of injury578; the other 
injury factors displayed only "minor negative developments"579; the domestic market share of the 
domestic industry was consistently between 80% and 85%, sales were consistently high despite 
reduced consumption, and ex -factory prices and production were high580; and yet the NTC provided 
no overall analysis explaining why, in light of these facts taken together, it determined that the 
domestic industry was suffering mat erial injury.  
7.418.   Pakistan responds that: the United  Arab Emirates is engaging in a "numbers game"581; the 
NTC acknowledged the positive factors582; an authority is not required to dissect every positive factor 
to explain why it does not affect its finding of in jury583; certain factors play a "particularly pronounced 
role in any injury analysis", such as profits, cash flow, market share and domestic sales, and these 
all trended negative ly in this case584; and the NTC included volume and price effects under Article  3.2 
in its holistic analysis and these further strengthened the finding of material injury.585  
7.419.   To assess the question before us, we turn to the NTC's  determination. As both parties point 
out, the NTC found that the domestic industry was not suffering injur y on account of six of the 
factors it examined. In subsequently concluding that the domestic industry had suffered material 
injury, the NTC either did not refer to these factors at all (in the public version of its Report on final 
determination) or listed them as factors on account of which the domestic industry had not suffered 
material injury (in the confidential version of its report).586 However, there is no indication 
whatsoever of how the NTC took into account these positive factors in reaching its ove rall conclusion.  
7.420.   Article  3.4 expressly provides that no particular factor "can … necessarily give decisive 
guidance": there is no requirement for all factors, or a defined number of factors, to display negative 
trends. However, faced with evidence that co ntradicts its conclusions, an investigating authority 
must at least explain how it took that evidence into account in reaching its conclusions.587  
7.421.   In this case, the NTC failed to provide any explanation. Pakistan argues that the factors 
displaying negative  trends were those that play a particularly important role in an injury analysis, 
but this argument finds no reflection in the NTC's  reasoning. Pakistan also argues that the 
NTC's  conclusions were strengthened by its consideration of the volume and price e ffects pursuant 
to Article  3.2, but this does not excuse an authority from explaining how it has taken into account 
evidence that conflicts with its ultimate conclusions, here in the form of a number of injury factors 
displaying positive trends.  
7.422.   We theref ore find that by failing to provide any explanation – or even indication – of how it 
took into account the factors displaying positive trends in reaching its conclusion that the domestic 
industry had suffered material injury, the NTC failed to perform an o bjective examination based on 
 
577 United Arab Emirates'  first written submission, paras.  432-439. 
578 United Arab Emirates'  first written sub mission, para.  433. 
579 United Arab Emirates'  first written submission, para.  434. 
580 United Arab Emirates'  first written submission, para.  436. 
581 Pakistan's  first written submission, para.  3.487.  
582 Pakistan's  first written submission, para.  3.490.  
583 Pakistan 's first written submission, para.  3.489.  
584 Pakistan's  first written submission, paras.  3.492 -3.493.  
585 Pakistan's  first written submission, para.  3.491.  
586 Report on final determination (2013), public version , (Exhibit  ARE-2), paras.  47.2-47.5; Report on 
final determination (2013),  (Exhibit  PAK-1 (BCI)), table -XX. This table does not appear in the public version of 
the Report on final determination . 
587 See also Panel Report, Thailand  – H-Beams , para. 7.249 , calling for a "compelling explanation" . See 
also Panel Report, China  – Cellulose  Pulp, para. 7.129.  WT/DS538/ R 
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  positive evidence of the impact of the dumped imports on the domestic industry, and therefore acted 
inconsistently with Articles  3.1 and  3.4. 
7.8.3   Conclusion under Articles  3.1 and 3.4  
7.423.   In sum , we find that  the NTC acted inconsistently with Articles  3.1 and 3.4, because it failed 
to evaluate the magnitude of the margin of dumping; it failed to carry out an objective examination 
of seven of the injury factors and to provide a reasoned and adequate explanation  of its finding that 
the negative trends in those factors were the impact of the dumped imports; and it failed to explain 
how it took into account the positive trends in its evaluation of the overall impact of the dumped 
imports on the domestic industry.  
7.9  Causation: Articles  3.1 and 3.5 of the Anti -Dumping  Agreement  
7.424.   The United  Arab Emirates claims that the NTC's  causation analysis was inconsistent with 
Articles  3.1 and 3.5 based on three  sets of arguments: first, because it was based on findings that 
were in consistent with Articles  3.1, 3.2, and 3.4588; second, because the NTC failed to ensure that 
it would not attribute to the dumped imports the injur y caused by other known factors, namely the 
global financial crisis and factors set out in the domestic produc er's annual report589; and third, 
because of other flaws in the causation analysis.590  
7.425.   Pakistan responds that: first, inconsistencies with Articles  3.2 and 3.4 do not necessarily 
render a causation analysis inconsistent with Article  3.5591; second, the NTC a scertained that the 
global financial crisis was not injuring the domestic industry592 and, as for the other factors, 
Taghleef's  had not "substantiate [d] its assertions"  that they were injuring the domestic industry593; 
and third, the United  Arab Emirates'  other allegations concerning the NTC's  causation analysis are 
unfounded.594 
7.426.   As set out below, we find that the United  Arab Emirates has established that the 
NTC's  causation analysis was inconsistent with  Articles  3.1 and 3.5 of the Anti -Dumping  Agreement 
based on the first two  sets of arguments set out above, and we do not address the third set of 
arguments made by the United  Arab Emirates.  
7.427.   We structure our discussion as follows: first, we set out the applicable requirements of 
Article  3.5 (section  7.9.1 ), having already discussed Article  3.1 in section  7.6.1 above; second, we 
apply those requirements to the facts of this case to assess whether Pakistan acted inconsistently 
with Articles  3.1 and  3.5 (section  7.9.2 ); and third, we conclude that Pakistan acted inconsistently 
with those provisions (section  7.9.3).  
7.9.1   The applicable requirements of Article  3.5 
7.428.   Article  3.5 of the Anti -Dumping  Agreement provides:  
It must be demonstrated that the dumped imports are, through the effects of dumping, 
as set forth in paragraphs  2 and 4, causing injury within the meaning of thi s Agreement. 
The demonstration of a causal relationship between the dumped imports and the injury 
to the domestic industry shall be based on an examination of all relevant evidence 
before the authorities . The authorities shall also examine any known factor s other than 
the dumped imports which at the same time are injuring the domestic industry, and the 
 
588 United Arab Emirates'  first written submission, paras.  460-462. 
589 United Arab Emirates'  first written submission, paras.  469-473; second written submission, 
paras.  215-221. 
590 United Arab Emirates'  first written submission, paras.  464-465; opening statement at the 
first meeting of the Panel, paras.  69-70; second written submission, paras.  213-214; and 
written  opening  statement, paras.  91-92. 
591 Pakistan's  first written submission, paras.  3.515  -3.516.  
592 Pakistan's  first written submission, paras.  3.541 -3.545. See also Pakistan's  response to Panel 
question No.  75. 
593 Pakistan's  first written submission, paras.  3.547 -3.550; second written submission, 
paras.  2.277 -2.284 .  
594 Pakistan's  first written submissio n, paras.  3.519 -3.531. See also Pakistan's  second written 
submission, paras.  2.271 -2.275.  WT/DS538/ R 
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  injuries caused by these other factors must not be attributed to the dumped imports. 
Factors which may be relevant in this respect include, inter alia, the v olume and prices 
of imports not sold at dumping prices, contraction in demand or changes in the patterns 
of consumption, trade restrictive practices of and competition between the foreign and 
domestic producers, developments in technology and the export pe rformance and 
productivity of the domestic industry.  
7.429.   Article  3.5 thus requires Members to ascertain whether the dumped imports are causing 
injury to the domestic industry ("causation") and, as part of that causation analysis, it also requires 
Members to e nsure that they do not attribute to dumped imports the injury caused by known factors 
other than dumping ("non -attribution").  
7.430.   The first sentence of Article  3.5 requires that an investigating authority demonstrate that 
dumped imports are, "through the effe cts of dumping, as set forth in paragraphs  2 and  4", causing 
injury. This text thus requires the authority to bring together the findings arrived at under 
Articles  3.2 and  3.4 to ascertain whether "the dumped imports are … causing injury".595  
7.431.   The second se ntence of Article  3.5 requires the authorit y to demonstrate the causal 
relationship between the dumped imports and injury "based on an examination of all relevant 
evidence before [ it]".  
7.432.   The third sentence of Article  3.5 requires an investigating authority  to examine "any known 
factors" that are causing injury at the same time as dumped imports, and ensure that it does not 
attribute the injury caused by those other factors to the dumped imports. The fourth sentence of 
Article  3.5 lists some of the  factors o ther than dumped imports that "may be relevant", and makes 
it clear, by using the words "include, inter alia", that the list is not exhaustive.  
7.433.   Article  3.5 requires an authority to examine injurious factors other than dumping only when 
the factors are "known" to them. The ordinary meaning of "known" includes "[t] hat has become an 
object of knowledge; that is or has been apprehended mentally " and "[t] hat is known of; known to 
exist; that is or has come within the scope of knowledge ".596 Thus, for a factor  to be "known" it must 
have "come within the scope of knowledge" of the authority, which is typically the case when 
interested parties have substantiated the existence of such a factor during the anti -dumping 
proceedings.597 Consistent with this ordinary me aning, it has been observed in the past that "a factor 
is either 'known'  to the investigating authority, or it is not 'known'; it cannot be 'known'  in one stage 
of the investigation [such as in the dumping and injury analyses] and unknown in a subsequent 
stage [such as the causation analysis]" .598  
7.434.   Once the other factors are "known" to it, the authority must "examine" them and "not … 
attribute[] to the dumped imports" "the injuries caused by these other factors".599 This requires the 
authority to identify, and "separat[e] and distinguish[,] the injurious effects of the other factors from 
the injurious effects of the dumped imports"600, because unless it does so, the authority will not 
have a rational basis to ensure t hat it does not attribute those injuries to the dumped imports.601  
7.435.   Article  3.5 does not set out a specific methodology for investigating authorities to follow. 
However, the methods applied by an investigating authority must comport with the overarching 
obligation in Article  3.1 to undertake an objective examination based on positive evidence602, which 
we have discussed in section  7.6.1 above.  
 
595 See also e.g.  Appellate  Body Report, China  – GOES , para.  128. 
596 Oxford Dictionaries online, definition of "known" 
https://www.oed.com/search?searchType=dictionary&q=known&_searchBtn=Search  (accessed 
27 October  2020), adj., meanings  A1a and  A1b. 
597 See also, a contrario , Panel Reports, China  – X-Ray Equipment , para. 7.267;  China  – Autos  (US), 
paras.  7.322 -7.323 ; Thailand  – H-Beams , para. 7.273; and EU – Footwear  (China) , para. 7.484.  
598 Appellate  Body Report, EC – Tube or Pipe Fittings , para.  178. 
599 Article  3.5 of the Anti -Dumping  Agreement.  
600 Appellate  Body Report, US – Hot-Rolled  Steel, para.  223. 
601 See also e.g.  Appellate  Body Report, US – Hot-Rolled  Steel, paras.  223 and 226.  
602 See also Appellate  Body Report s, China  – HP-SSST  (Japan)  / China  – HP-SSST  (EU), para. 5.141 .  WT/DS538/ R 
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  7.9.2   Whether the NTC's  examinati on of causation was inconsistent with Articles  3.1 
and 3.5 
7.436.   As we outlined at paragraph  7.424  above, the United  Arab Emirates  argues that the NTC 
acted inconsistently  with Articles  3.1 and 3.5 on three grounds . Below , we discuss , first, whether 
the United  Arab Emirates has established that the NTC's  causation analysis was inconsistent with 
Articles  3.1 and 3.5 because it was based on findings that were, in turn, inconsistent with 
Articles  3.1, 3.2, and 3.4 (section  7.9.2.1 ). Second, we discuss whether the United  Arab Emirates 
has established that the NTC's  causation analysis was inconsistent with Articles  3.1 and 3.5 also 
because the NTC failed to carry out the necessary non -attribution analysis (section  7.9.2.2 ). Having 
found that the Un ited Arab Emirates has established inconsistencies with Articles  3.1 and 3.5 on 
both these grounds, we do not proceed to examine the United  Arab Emirates'  additional arguments 
against the NTC's  causation analysis (see section  7.9.2. 3).  
7.9.2.1   Whether the NTC's  reliance on findings that were inconsistent with Articles  3.1, 
3.2, and 3.4 renders its causation analysis inconsistent with Articles  3.1 and 3.5  
7.437.   The United  Arab Emira tes argues that because the NTC relied, in its causation analysis, on 
findings that are inconsistent with Articles  3.1, 3.2, and 3.4, the NTC's  causation analysis is 
consequently inconsistent with Articles  3.1 and 3.5.603  
7.438.   Pakistan responds that inconsisten cies in underlying analyses do not necessarily render the 
evaluation of causation inconsistent with Article  3.5, and that whether they do give rise to an 
inconsistency with Article 3.5 must  be determined case  by case.604  
7.439.   We recall that Article  3.5 requires  an investigating authority to demonstrate that dumped 
imports are causing injury "through the effects of dumping, as set forth in paragraphs  2 and 4", 
which indicates that the examination of causation is based, among others, on the findings arrived at 
under Articles  3.2 and  3.4. 
7.440.   We also note that the NTC's findings of the volume of dumped imports, the effects of those 
imports on prices, and the impact of the dumped imports on the domestic industry are integral to 
its causation analysis . In its causation an alysis, the NTC found a "strong time correlation" between 
the increased volume of dumped imports and injury to the domestic industry, particularly to each of 
three injury factors – market share, domestic sales and profitability. In its causation analysis, the 
NTC also took into account its finding that the dumped imports had depressed prices to a significant 
degree.605  
7.441.   We have found above606 that the NTC's  examination of each of these underlying factors was 
inconsistent with Articles  3.1, 3.2, and 3.4. Conse quently, those errors undermine the 
NTC's  determination of causation. On this basis, we find that the NTC's  causation analysis is 
inconsistent with Articles  3.1 and 3.5.  
7.9.2.2   Whether the NTC failed to ensure that injur y caused by other factors was not 
attributed to the dumped imports  
7.442.   We now turn to the United  Arab Emirates'  arguments relating to non -attribution. The 
United  Arab Emirates argues that the NTC failed to ensure that the injurious effects of (a) the global 
financial crisis of 2009607, and (b) all other factors identified by Taghleef during the domestic 
proceedings were not attributed to the dumped imports.608 We address these two in turn.  
 
603 United Arab Emirates'  first written submission, paras.  460-462. 
604 Pakistan's  first written submission, paras.  3.515 -3.516.  
605 Report on final determination (2013), public version , (Exhibit  ARE-2), para.  48.2. 
606 See paras.  7.287 , 7.322 , 7.329 , and 7.344 . 
607 United Arab Emirates'  first written submission, paras.  468-470; second written submission, 
para. 221.  
608 United Arab Emirates'  first written submission, paras.  471-472. WT/DS538/ R 
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  7.9.2.2.1   The global financial crisis  
7.443.   It is not disputed that interested parties had raised the global financial crisi s of 2008 
and 2009 as a factor causing injury to the domestic industry.609  
7.444.   The United  Arab Emirates argues that the NTC failed to adequately evaluate whether the 
global financial crisis was injuring the domestic industry, and to provide a reasoned and adeq uate 
explanation of how it ensured that the injury caused by the global financial crisis was not attributed 
to the dumped imports.610 The United  Arab Emirates points out that the NTC's  analysis was limited 
to an assertion that domestic demand had increased slightly in 2009, and that this demonstrated 
that the global financial crisis had not injured the domestic industry. The United  Arab Emirates 
further points out that the NTC failed to evaluate the injurious effects of the global financial crisis on 
prices , particularly the price declines observed in 2009.611  
7.445.   Pakistan responds that it was reasonable for the NTC to conclude that there was no evidence 
that the global financial crisis had "any discernible effect" on the Pakistani market, given that th e 
domestic market experienced minor fluctuations in 2007 and 2008, and "ultimately nudge[d] 
upwards"612 in 2009, "at the height of the global crisis".613 
7.446.   To assess the question before us, we turn to the NTC's  determination. The NTC's  entire 
discussion of the  effect of the global financial crisis reads:  
It may be pointed out no other factor was pointed out by any interested party which 
may be causing injury to domestic industry except the international crisis during 2008 
and 2009. It may be noted from Table – XI that market share [ sic] of BOPP Film reduced 
marginally but it increased during 2009. Hence this factor cannot be considered 
effecting domestic market.614 
7.447.   We understand that the NTC's  reference to "market share" was a clerical error, and that the 
intend ed reference was to the size of the domestic market615, which, in that year, increased 
by 0.98%.616 Thus, the NTC took the view that the global financial crisis could not be considered to 
affect the domestic market solely on the basis that the size of the do mestic market had increased 
by 0.98% in 2009, after fluctuating in the earlier part of the POI.  
7.448.   First, we note that the NTC provided no explanation of why the trends in the size of the 
domestic market led it to exclude that the global financial crisis had any injurious effect on the 
domestic market.  
7.449.   Second, certain exchanges between the interested parties and the NTC during the domestic 
proceedings indicate that the NTC was aware of the opposite, i.e.  of the fact that the global financial 
crisis had had an  injurious effect on prices. Specifically, during the domestic proceedings, Taghleef 
submitted that " the slight change [in the domestic industry's  prices] in 2009 was due to the global 
financial crisis "617 and "the reduction in prices [in 2009] was experienced by industries worldwide 
due to the deteriorating market conditions".618 The NTC responded that it had "determined that price 
depression faced by the domestic industry was due to dumped imports and other global  economic  
 
609 In its Report on final determination, the NTC describes it  as the only other factor raised. ( Report on 
final determination (2013), public version, ( Exhibit  ARE-2), para. 48.1). 
610 United Arab Emirates'  first written submission, para.  468. 
611 United Arab Emirates'  first written submission, para.  470; second written submission, para.  221. 
612 Pakistan's  first written submission, paras.  3.542 -3.543 and 3.545.  
613 Pakistan's  response to Panel question No.  75. See also Pakistan's  written opening statement, 
para. 92. 
614 Report on final determination (2013), public version , (Exhibit  ARE-2), para.  48.1.  
615 See e.g.  Pakistan's  first written submission, para.  3.542 ; and United Arab Emirates'  first written 
submission, para.  470. 
616 Report on final determination (2013), public version , (Exhibit  ARE-2), para.  37.2. 
617 Taghle ef's post-hearing submission , (Exhibit  ARE-13), p.  16. 
618 Report on final determination (2013), public version , (Exhibit  ARE-2), annexure -III, p.  66. See also 
Taghleef 's post-hearing submission , (Exhibit  ARE-13), p.  18; and Taghleef 's comments on statement of 
essential facts , (Exhibit  ARE-25), section  1(e). Taghleef also stated that "the price of the Domestic Like Product 
recovered to previous levels as the effects of the global financial crisis lessened in the first half of 2010". 
(Taghleef 's comm ents on statement of essential facts , (Exhibit  ARE-25), section  1(e)).  WT/DS538/ R 
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  developments ".619 In other words, in discussing price effects under Article  3.2, the NTC went so far 
as acknowledging that "global economic developments" had depressed the domestic prices. 
However, when assessing causation620, the NTC then ruled out that the global financial crisis had 
any effect at all and failed to even consider its injurious effects on prices.  
7.450.   In its non -attribution analysis, the NTC thus failed to identify – let alone separate and 
distinguish – the injurious effects of the global financial crisis, although the crisis was a known factor 
and although elsewhere in its analysis the NTC had acknowledged that "global economic 
developments" had depressed the domestic industry's  prices. It provided a bare assertion that the 
trends in the size of the domestic market showed the financial crisis had not affected the domestic 
industry, with no explanation. By so doing, the NTC acted inconsistently with the requirements of 
non-attribution and objective examination based on positive ev idence set out in Articles  3.5 and  3.1. 
7.9.2.2.2   Other factors set out in the domestic producer's  annual report and identified by 
Taghleef  
7.451.   We recall that the NTC stated in its determination that the only other known factor that may 
have been causing injury to the d omestic industry was the global financial crisis.621 
7.452.   The United  Arab Emirates argues that other known factors were, individually or collectively, 
injuring the domestic industry at the same time as dumped imports. Those other known factors were 
the deteriora ting economy, electricity crisis, rupee devaluation, uncertain political situation, 
heightened security conditions , and cheap availability of smuggled goods. The United  Arab Emirates 
argues that those factors were set out in the 2009 annual report of the d omestic producer, which 
was on the NTC's  record in the domestic proceedings, and that Taghleef had specifically pointed to 
them, and yet the NTC disregarded them.622 
7.453.   Pakistan concedes that the NTC did not undertake a non -attribution analysis for these 
factors. However, Pakistan contends that the NTC was not required to make any finding with respect 
to these factors because Taghleef had failed to provide sufficient arguments and evidence to the 
effect that these other factors were injuring the domestic indust ry.623 Pakistan maintains that the 
factors in the annual report were "generally -worded", and without further explanations or evidence 
from Taghleef, it was not clear how those factors injured the domestic industry.624 Pakistan also 
argues that the statements  in the domestic producer 's annual report were not relevant because they 
were not made in the context of the domestic anti -dumping proceedings625, and because the annual 
report related to the domestic producer 's consolidated business, which was not limited to BOPP 
film.626 Thus, in essence, Pakistan is arguing that the factors in question were not known to the NTC 
as other factors causing injury to the domestic industry.  
 
619 Report on final determination (2013), public version , (Exhibit  ARE-2), annexure -III, p.  66 
(emphasis  added). See also  ibid. annexure -IV, p.  72. 
620 As noted at para.  7.433  above, when a factor is "known" to the authority in the context of one part 
of its analysis, it cannot then be regarded as "unknown" in the context of the causation analysis.  
621 Report on final determination (2013), public version , (Exhibit  ARE-2), para.  48.1. 
622 United Arab Emirates'  first written submission, paras.  471-472 (referring to Taghleef 's post-hearing 
submission , (Exhibit  ARE-13), pp.  21-22; and Report on final determina tion (2013), public version , 
(Exhibit  ARE-2), para.  48.1); opening statement at the first meeting of the Panel, para.  71; and second written 
submission, paras.  215-221. See also United Arab Emirates ' response to Pakistan's  written  opening statement, 
paras.  38 and 40.  
623 Pakistan's  responses to Panel question Nos.  73 and 74 (referring to Appellate  Body Report, EC – 
Tube or Pipe Fittings , paras.  177-178; and Panel Reports, China  – X-Ray Equipment , para. 7.267 ; EU – Fatty 
Alcohols  (Indonesia) , para. 7.188 ); second written submission, paras.  2.277 -2.279; written opening 
statement, paras.  87-89; and  response to United Arab Emirates'  written opening statement, paras.  56-61. 
624 Pakistan's response to United Arab Emirates'  written opening statement, paras.  57-61. 
625 Pakistan argues that publicly -listed companies face "many potential obligations and incentives" when 
preparing their annual reports, and that as a result these companies may include in their annual reports 
"potential but unconfirmed factors that may affec t the company's future performance, especially if those 
developments may be adverse ", which makes the statements in their annual reports less relevant when not 
accompanied by additional evidence. (Pakistan's response to United  Arab Emirates'  written openin g statement, 
paras.  57-58).  
626 Pakistan's  second written submission, paras.  2.280 -2.281.  See also Pakistan's  response to Panel 
question No.  73. WT/DS538/ R 
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  7.454.   We note that during the domestic proceedings, Taghleef argued to the NTC that in its annual 
report the d omestic producer had "attribute[d] the decrease in its domestic sales" to certain other 
factors.627 
7.455.   In the cited sections of its annual report, the domestic producer stated as follows:  
The year 2009 started with challenging business conditions. We faced de teriorating 
economy, electricity crisis, rupee devaluation, uncertain political situation and security 
conditions. While we struggled to survive in such difficult business environment, cheap 
availability of smuggled BOPP film created an unfair competition directly hitting our 
domestic sales and margins.628 
7.456.   As Pakistan submits, Taghleef referred to the factors cited in the domestic producer's  annual 
report and did not provide additional  explanations or evidence in support. However, we disagree  
with Pakistan t hat Taghleef made "theoretical"629/"bare assertions"630 to the NTC. 
Taghleef's  assertions were supported by evidence – the domestic producer's  annual report, where 
the domestic producer itself identified those other factors. The domestic producer is in the b est place 
to know what factors have injured it. Tri -Pack Films, the domestic producer, enumerated conditions 
that were harming its business, and did so in its annual report, which is a formal company document. 
In our view, these statements in the domestic producer's  own annual report were sufficient evidence 
to require the NTC to evaluate whether the factors in question were also injuring the domestic 
industry.  
7.457.   Pakistan argues that the  fact that these  statements  were reflected  in the annual report of 
the do mestic producer cast doubt on their probative value . Pakistan maintains that publicly listed 
companies like Tri -Pack face different obligations and incentives when preparing their annual reports  
which " might require the disclosure of certain information to  shareholders, including potential but 
unconfirmed factors that might affect the company's future performance ". Thus, Pakistan argues  
that t hese circumstances limit the value of annual reports as evidence of other causal factors, 
especially when presented without any further evidence.631 This argument misses the point. The 
question is whether certain factors other than dumped imports were known to the authority to cause 
injury to the domestic industry. Taghleef raised these factors in the domestic proceeding s and 
referred to the domestic producer's  annual report as evidence. The fact that the annual report was 
not prepared by the domestic producer for purposes of the investigation does not disqualify it as 
evidence of other factors causing injury to the domes tic industry.  In our view, in the circumstances 
of this case, this evidence was sufficient , at a minimum, to warrant a consideration by the NTC.632 
7.458.   Next, Pakistan argues that the statements in the annual report were not relevant because 
the annual report re lates to the domestic producer's  consolidated business, which includes more 
than BOPP film. We note, however, that the quoted statement refers specifically to BOPP film. Thus, 
whatever other businesses the domestic producer was also referring to, the state ment in question 
also relates to BOPP film.633  
7.459.   Moreover, taking into account the NTC's statement that " no other factor was pointed out  by 
any interested party which may be causing injury to domestic industry except the international 
 
627 Taghleef 's post-hearing submission , (Exhibit  ARE-13), pp.  21-22 (referring to 2009 Tri -Pack 
Films' Annual Repo rt, (Exhibit  ARE-24b), p.  17). 
628 2009 Tri -Pack Films ' Annual Report , (Exhibit  ARE-24b), p.  17. 
629 Pakistan's  response to Panel question No.  74. 
630 Pakistan's  response to United Arab Emirates'  written opening statement, para.  57. 
631 Pakistan's  written opening statement, para. 89; response to United Arab Emirates'  written opening 
statement, paras.  57-58. 
632 We make this finding specifically in the circu mstances of this case. We emphasise that we do not 
suggest that any evidence, no matter its quality, would be sufficient to warrant a non -attribution analysis. 
Whether evidence is sufficient must be determined on a case -by-case basis.  
633 In addition, we no te that BOPP film was the predominant part of the domestic producer's  business. 
The total installed capacity for BOPP film was 27,800 metric tonnes per annum , while that of cast 
polypropylene film was 7,000  metric tonnes per annum. (2009 Tri -Pack Films' An nual Report , 
(Exhibit  ARE-24b), p. 3) . See also United  Arab Emirates'  second written submission, para. 194) .  WT/DS538/ R 
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  crisis"634, we are of the view that the explanations now provided by Pakistan, which we have 
dismissed, were not the NTC's own reasoning.  
7.460.   We therefore consider that the factors identified by the domestic producer as harming its 
business in 2009 were "known" to the NT C within the meaning of Article  3.5. Therefore, by failing 
to "examine" them and ensure that "the injuries caused by these other factors" were not "attributed 
to the dumped imports", the NTC acted inconsistently with Article  3.5. As a consequence, it also 
failed to carry out an objective examination based on positive evidence, as required by Article  3.1. 
7.9.2.3   Whether the NTC otherwise failed to demonstrate a causal relationship between 
the dumped imports and the injury to the domestic industry  
7.461.   The United  Arab Emirates further argues that the NTC's  determination that dumping was 
causing injury was also inconsistent with Articles  3.1 and 3.5 because the NTC based its analysis on 
a "few negative trends in injury factors" ; failed to take into account factors such as the high market 
share held by the domestic industry, its continued profitability , and the "overall lack of negative 
effects in the last six months of the POI "635; and did not objectively establish the coincidence in time 
of the dumped imports and the evolut ion of trends in the three injury factors examined in the 
NTC's causation analysis , namely  market share,  domestic sales , and profits .636 
7.462.   Pakistan responds that the NTC had assessed all injury factors in reaching its determination 
of injury and was not requi red to assess all factors  again in its causation analysis , including those 
that did not support a finding of injury637; that the data on the NTC's  record supported the 
NTC's  conclusion that there was a strong correlation between the volume of dumped imports  and 
the key injury indicators; and that the United  Arab Emirates was essentially questioning the way the 
NTC had weighed the data before it, without demonstrating that it had exceeded its discretion.638  
7.463.   Having found that the NTC 's causation analysis was i nconsistent with Articles  3.1 and 3.5 on 
several grounds, we do not examine these additional grounds of inconsistency raised by the 
United  Arab Emirates . 
7.9.3   Conclusion under Articles  3.1 and 3.5  
7.464.   In sum, we find that the United  Arab Emirates has established that the NTC's  causation 
analysis was inconsistent with Articles  3.1 and 3.5, both because it was based on findings that were 
inconsistent with Articles  3.1, 3.2, and 3.4, and because the NTC failed to ensure that it did not 
attrib ute to the dumped imports the injury caused by other known factors.  
7.10  Duration of the original investigation:  Article  5.10 of the Anti -Dumping  Agreement  
7.465.   We refer to the facts set out in paragraphs  2.1-2.5 above.  
7.466.   The United  Arab Emirates claims that Pakistan acted inconsistently with Article  5.10 by 
exceeding the peremptory 18 -month time -limit applying to original investigations. 
The United  Arab Emirates makes two alternative arguments in support of this claim. 
The United  Arab Emirates'  principal argument is that the NTC initiated the investigation on 
23 April 2012 and concluded it on 9 April 2015, thus taking almost exactly three years.639  
 
634 Report on final determination (2013), public version , (Exhibit  ARE-2), para.  48.1. (emphasis added)  
635 United Arab Emirates'  first written submis sion, para.  464; second written submission, para.  208. See 
also United Arab Emirates'  opening statement at the first meeting of the Panel, para. 69; and written opening 
statement, para.  91. 
636 United Arab Emirates'  first written submission, paras.  464-465; second written submission, 
paras.  213-214. See also United Arab Emirates'  opening statement at the first meeting of the Panel, para. 70; 
and written opening statement, para. 92. 
637 Pakistan's  first written submission, para.  3.522.  See also second written su bmission, 
paras.  2.271 -2.272.  
638 Pakistan's  first written submission, paras.  3.524 -3.531 ; second written submission, 
paras.  2.265 -2.275.  
639 See e.g.  United Arab Emirates'  second written submission, paras.  78 and 82 -87; and responses to 
Panel question Nos.  23-24.  WT/DS538/ R 
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  7.467.   The United  Arab Emirates'  alternative argument is that the investigation started on 
27 September  2010 and ended on 4 February  2013. More precisely, the United  Arab Emirates 
argue s that, should we take the view that the NTC concluded the investigation into BOPP film in 
February  2013, we must take into account that the NTC could not have done so without the 
investigative steps undertaken after the first initiation of 27  September  2010, which was 
subsequently declared void by the Pakistani courts. Therefore, according to the 
United  Arab Emirates'  alternative argument, the NTC took from 27  September  2010 to 
7 February  2013 to conclude the investigation, i.e.  a little over two  years and four  months.640  
7.468.   Pakistan responds that the NTC initiated the investigation on 23 April 2012 and concluded it 
with the final determination on 4 February  2013, thus taking little more than nine  months.641 
7.469.   Below, we first set out the applicable requirements of Article  5.10 (section  7.10.1 ); we then 
apply that standard to the facts of this case, i.e.  we ascer tain the date of "initiation" 
(section  7.10.2.1 ) and the date the investigation was "concluded" (section  7.10.2.2 ); on that basis, 
we find that Pakistan has not exceeded the  time-limits set forth in Article  5.10 (section  7.10.2.3 ).  
7.10.1   The appli cable requirements of Article  5.10 
7.470.   Article  5.10 provides:   
Investigations shall, except in exceptional circumstances, be concluded  within one year, 
and in no case more than 18 months, after their initiation .642 
7.471.   We consider that Article  5.10 "preserves predictability for the interested parties in an 
investigation"643 by ensuring that when an investigation is initiated , interested parties are not left in 
the uncertainty about the outcome of the investigation for more than one year "and in no cas e more 
than 18  months".  
7.472.   The parties do not dispute the peremptory nature of the 18 -month time -limit, which is 
apparent from the text of Article  5.10 ("in no case"644). Instead, the parties disagree on when the 
clock under Article  5.10 starts and stops.  
7.473.   Article 5.10 identifies the process to which the time -limit applies as "investigations", and it 
identifies the beginning and end of investigations, respectively, as "initiation" and the time when 
investigations are "concluded". The questions of legal interpre tation in this case, then, are:  (a) when 
are investigations initiated; and (b)  when are investigations concluded, within the meaning of 
Article  5.10? We discuss these two  questions in turn.  
7.10.1.1   When do the time -limits in Article  5.10 start running?  
7.474.   Article  5.10 requires investigations to be concluded "within … in no case more than 
18 months, after their initiation ".645 Thus, the text of this provision is clear that the starting point 
for the 18 -month time -limit is the initiation  of the relevant investigation. F ootnote 1 of the 
Anti-Dumping  Agreement defines initiation as follows:   
The term "initiated" as used in this  Agreement means the procedural action  by which a 
Member formally  commences  an investigation  as provided in Article  5.646 
7.475.   Initiation is thus ( a) a pr ocedural action ( b) by which a Member ( c) formally ( d) commences 
(e) an investigation as provided in Article  5.  
 
640 See e.g. United Arab Emirates'  second written submission, paras.  79 and 88 -90; and response to 
Panel question No.  20. 
641 See e.g. Pakistan's  second written submission, paras.  2.33-2.51; and responses to Panel 
question  Nos. 20 and 23.  
642 Emphasis added.  
643 Panel Report, Morocco – Hot-Rolled Steel (Turkey) , para.  7.74. 
644 See also Panel Report, Morocco – Hot-Rolled Steel (Turkey) , para.  7.72. 
645 Emphasis added.  
646 Emphasis added.  WT/DS538/ R 
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  7.476.   Beginning with this last element, i.e.  what is commenced, the investigations provided for in 
Article  5 are those "to determine the existence, degree and effect of any alleged dumping" 
(Article  5.1), which are initiated following an application ( Article  5.1) or on the authority's own 
motion  (Article  5.6).  
7.477.   Turning to the third and fourth elements, i.e.  "formally commences", the ordinary meaning 
of "commence" includes "to begin (an action); to enter upon; esp. in legal use, to commence an 
action".647 The word "commences" in footnote 1 is qualified by the adjective "formally". The ordinary 
meaning of "formally" includes "in formal r espects", "with regard to the form, as opposed to the 
matter of reasoning", " [i]n prescribed or customary form ; with the formalities required to give 
validity or definiteness to the action", " [a]s a matter of form".648 Thus, the focus of the definition in 
footnote 1 is  on when "the procedural action" that commences the investigation " as a matter of 
form" has taken place . 
7.478.   Article  12.1 of the Anti -Dumping  Agreement sheds some light on what is required "as a 
matter of form" for the procedural action that commen ces the investigation : "interested parties … 
shall be notified and a public notice shall be given"  of initiation.  
7.479.   Further, footnote 1 specifies that initiation is the procedural action by which the "Member" 
in question commences an investigation. This mak es it relevant to look into that Member's  municipal 
law for guidance to identify the precise date of initiation, as the panel in Guatemala – Cement II  
did.649 In that case, Mexico and Guatemala differed on what the date of initiation was. The panel 
relied o n the definition in footnote 1 and took into account:  the provisions of the domestic legal 
instrument underlying decisions to initiate anti -dumping investigations (which provided that the date 
of initiation was that of publication in the Official Journal);  the text of a domestic resolution stating 
that initiation would take effect from the date of publication in the Official Journal; and the fact that 
"deadlines for interested parties to respond to the initiation were activated" on the date of publication 
in the Official Journal.650 On this basis, the panel considered that "the action by which the 
investigation was formally commenced is the date of publication of the notice of initiation [in the 
Official Journal]".651 
7.480.   To sum up, the time -limits in Article  5.10 start running under the express terms of 
Article  5.10, from "initiation", and initiation, in turn, is the "procedural action" that "formally 
commences an investigation". The context provided by Article  12.1 highlights one element of what 
is required "as a  matter of form" to commence an investigation, namely the notification to interested 
parties, and publication of a notice of initiation. Further, because footnote 1 refers to the procedural 
action "by which a Member" formally commences an investigation, do mestic legislation can be 
among the facts that are relevant to resolve questions concerning the date of initiation.   
7.481.   The United  Arab Emirates urges us to take into account, in our interpretation, the "interests 
being protected" by Article  5.10.652 Specifica lly, the United  Arab Emirates points out that the 
purpose of Article  5.10 is to ensure that parties to an anti -dumping investigation are not "left in 
uncertainty" for too long. We agree:  as another panel before us has pointed out, Article  5.10 
"preserves p redictability for the interested parties in an investigation".653 Yet, Article  5.10 sets forth 
the precise terms in which predictability is to be preserved, and it does so by setting, as a starting 
point, the procedural action that commences an investigatio n as a matter of form. This does not, 
therefore, lead us to a different interpretive result from that set out above.  
 
647 Oxford Dictionaries online, definition of  "commence" 
https://www.oed.com/view/Entry/37004?rskey=Sc3jks&result=2&isAdvanced=false#eid  (accessed 
11 October  2020), v., meaning  1.a. (emphasis omitted)  
648 Oxford Dictionarie s online, definition of  "formally" 
https://www.oed.com/view/Entry/73440?redirectedFrom=formally#eid  (accessed 11  October  2020) , 
meanings  1, 1.a ("in logic"), 6, and 8.  
649 Panel Report, Guatemala – Cement II , para. 8.82 . 
650 Panel Report, Guatemala – Cement II , para.  8.82. 
651 Panel Report, Guatemala – Cement II , para.  8.82. 
652 United Arab Emirates'  second written submission, para.  90.  
653 Panel Report, Morocco – Hot-Rolled Steel (Turkey) , para.  7.74. WT/DS538/ R 
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  7.10.1.2   When are investigations "concluded" under Article  5.10?  
7.482.   The end -point of the period that must not exceed 18 months is the date on which an 
"investigation[]" is "concluded".  
7.483.   What must be "concluded" under Article  5.10 are "investigations". As we have just seen, the 
remainder of Article  5 provides context for identifying the investigations at issue:  these are 
investigations "to determine the ex istence, degree and effect of any alleged dumping" (Article  5.1), 
which are initiated either on an application that includes evidence of dumping, injury, and a causal 
link between them (Articles  5.1 and 5.2), or on the authority's own motion  if the authorit y has 
sufficient evidence of dumping, injury, and a causal link (Article  5.6). In other words, these are the 
original investigations to ascertain the existence of the three elements necessary to impose 
anti-dumping measures.  
7.484.   The ordinary m eaning of the verb "to conclude" includes "[t]o bring to a close or end"654 and 
"[t]o bring or come to a decision, settle, decide, determine" . An original investigation to ascertain 
the existence of the three elements necessary to impose anti -dumping measur es may arguably be 
"ended" in several ways, as illustrated by the context provided by other provisions of the 
Anti-Dumping  Agreement.  
7.485.   Thus, Article  12.2.2  refers expressly to the "conclusion … of an investigation",  setting forth 
the requirements applying t o the "public notice of conclusion … of an investigation  in the case of an 
affirmative determination  providing for the imposition of a definitive duty  or the acceptance of a 
price undertaking ".655 We thus learn from this provision that an investigation may be concluded with 
"an affirmative determination providing for the imposition of a definitive duty or the acceptance of 
a price undertaking".  
7.486.   Article  12.2.2 is part of the broader Article  12.2, which disciplines more generally the public 
notice of "any prel iminary or final determination , whether affirmative or negative "656, thus including 
final determinations that dumping causing injury was, or was not, established. We thus learn that 
an investigation may also be concluded with a "negative" determination.  
7.487.   Further, the Anti -Dumping  Agreement does not prevent Members from terminating an 
investigation without reaching a final determination, "affirmative or negative", of dumping causing 
injury. Thus, an investigation may also be "concluded" with a decision by the Member concerned to 
terminate the investigation without reaching a determination regarding the existence of dumping 
causing injury.  
7.488.   Taken together, these provisions therefore indicate that an "investigation" initiated under 
Article  5 may be "concluded" in particular in the following ways657: (a) with a final affirmative 
determination of injurious dumping that stipulates any measures to be imposed; (b)  with a final 
negative determination (that injurious dumping is not established); or (c)  with a decision to 
terminate without having determined whether injurious dumping existed.  
7.489.   Further, the context provided by Articles  11.4 and 13 underlines the difference between the 
conclusion of an original investigation under Article  5.10, and further steps that may instea d consist 
of changed circumstances or sunset reviews, as well as judicial review – a difference that is important 
in the current case.  
7.490.   Article  11.4 regulates separately the duration of changed circumstances and sunset reviews 
(which "shall normally be conc luded within 12  months" of their initiation). This confirms that 
 
654 Oxford Dictionaries online, definition of  "to conclude" 
https://www.oed.com/view/Entry/38300?rskey=Yslm9m&result=2&isAdvanced=false#eid  (accessed 
11 October  2020), v., meaning  II.5.a (transitive).  
655 Emphasis added.  
656 Emphasis added. While Article  12 is broader in scope, the "investi gations" at issue in Article  5.10 are 
those identified earlier in Article  5, namely, as we have already noted, "investigation[s] to determine the 
existence, degree and effect of any alleged dumping". (Article  5.1).  
657 We are not concerned in this case with  price undertakings.  WT/DS538/ R 
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  Article  5.10 pertains specifically to original investigations658, and not generically to any investigation 
or review under the Anti -Dumping  Agreement.  
7.491.   Article  13 requires Members to maintain "judicial, arbitral or administrative tribunals or 
procedures" for the review of, among others, "administrative actions relating to final 
determinations".659 This provision thus underlines the distinction between, on the one hand, "final 
determinat ions" and, on the other, "judicial, arbitral or administrative" review of administrative 
actions relating to those determinations. Judicial review is a distinct process, for which Article  5.10 
does not set out a time -limit – nor, indeed, does any other pro vision of the Anti -Dumping  Agreement, 
including Article  13.660  
7.492.   In our view, this context confirms that the time -limits in Article  5.10 apply to original 
investigations, and not to a time period encompassing their possible subsequent judicial review, and 
that therefore it is the date of conclusion of original investigations that is the relevant date under 
Article  5.10. 
7.10.2   Whether Pakistan exceeded the 18 -month time -limit in Article  5.10 
7.493.   To ascertain whether Pakistan exceeded the 18 -month time -limit in Article  5.10 we need to 
identify the date of "initiation" of the investigation and the date the investigation was "concluded".  
7.10.2.1   The date of "initiation"  
7.494.   We recall that initiation is "the procedural action by which a Member formally commences  
an investigation", i.e. commences it "as a matter of form"661, and that the domestic law of the 
Member in question is among the facts that are relevant to answer the enquiry as to what is the 
procedural action by which th at Member formally commences an investigation.662  
7.495.   In the present case, the parties agree that the "formal date of initiation of the 
investigation  … is … 23 April 2012"663, i.e. that the procedural action by which Pakistan formally 
commenced the relevant investigation was the Notice of initiation of 23  April 2012.  
7.496.   As set out below, we, too, consider that the procedural action that "formally commence[d]" 
the relevant investigation was the publication of the Notice of initiation on 23  April 2012.  
7.497.   We begin by considering Pakistan's  municipal law, since we must ascert ain what is "the 
procedural action by which [ Pakistan ] formally commences an investigation".664  
7.498.   Pakistan has indicated, and the United Arab Emirates has not contested, that initiation is 
governed by the Anti -Dumping Duties Ordinance, 2000 (Ordinance of 200 0), Sections 20 -28, and 
the Anti -Dumping Duties Rules, 2001, Rules 3 -6.665 Of these, the provisions that offer the most 
useful guidance to the question at hand are Section 27 of the Ordinance of 2000 and Rule 6 of the 
Anti-Dumping Duties Rules, 2001.  
7.499.   First, Section 27 of the Ordinance of 2000 provides that when the NTC "has decided to 
initiate an investigation, it shall … publish a … notice" of initiation in at least one issue of a widely 
 
658 See para.  7.483  above . See also paras.  7.474 -7.476  above.  
659 As well as "administrative actions relating to … reviews of determinations within the meaning of 
Article  11". 
660 To the contrary, though the context is not id entical, footnote 20 to Article  9.3.1 contains an explicit 
recognition that it "may not be possible" to observe the time -limits set forth in Article  9.3.1 of the 
Anti-Dumping  Agreement in case of "judicial review proceedings".  
661 Emphasis added.  See paras.  7.474 -7.477  above.  
662 See para. 7.479  above.  
663 United Arab Emirates'  second written submission, para.  90; response to Panel question No.  20; and 
Pakistan's  response to Panel question No.  20.  
664 Fn 1 of the Anti -Dumping  Agreement.  
665 Ordinance No. LXV of 2000 , (Exhibit  PAK-27); and Anti-Dumping Duties Rules , (Exhibit  PAK-29), 
respectively. See also Pakistan's  response to Panel question No.  5. Pakistan also cited the Act No. XXIII 
of 2011 (amending the Ordinance of 2000 : Amendment of the Ordinance No. LXV of 2000 , (Exhibit  PAK-28)). 
This Act, however, amends a provision of the Ordinance of 2000 that does not directly concern initiation. 
(Ibid.).  WT/DS538/ R 
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  circulated newspaper in English and a widely circulated newspaper in Urdu, and initiation "shall be 
effective on the date" of publication in those newspapers .666 On 23  April 2012 the NTC published a 
notice of initiation in the requisite newspapers667, reciting, in accordance with Section 27, that the 
"[d]ate of initiation of investigation" is "[t]he date of publication of this notice in the newspapers in 
Pakistan".668 Thus, on 23  April 2012, the NTC took the step by which "Pakistan formally commences" 
an investigation, i.e.  publication of a notice of initiation in the requisite  newspapers in Pakistan.  
7.500.   More generally, Section 27 of the Ordinance of 2000 provides that when the NTC "has 
decided to initiate an investigation, it shall give notice" to interested parties, including all exporters, 
and publish a copy of the notice in the  Official Gazette, as well as in the newspapers mentioned 
above. In addition to publishing the Notice of initiation on 23  April 2012, the evidence before us 
shows that the NTC also gave notice to the investigated United  Arab Emirates exporter, Taghleef669; 
we also presume, and no party has disputed, that it gave notice to other interested parties.  
7.501.   These steps undertaken by the NTC in April 2012, i.e.  publishing and notifying the notice of 
initiation , are also required "as a matter of form" under WTO rules when initiating an investigation.670  
7.502.   Further, Rule 6 of the Anti -Dumping Duties Rules, 2001, sets forth the items on which the 
notice of initiation must contain information. These are similar to the items in Article  12.1.1 of the 
Anti-Dumpi ng Agreement, and include the name of the countries of export, the identification of the 
product, a description of the alleged dumping and of the factors on which the allegations of injury 
are based, the address and time -limits for interested parties to ma ke their views known, and the 
proposed schedule for the investigation. Without prejudice to an assessment of the adequacy of the 
information in the notice, the notice issued on 23  April 2012 does contain some mention of 
information regarding each of the it ems set forth in Rule 6.  
7.503.   Finally, Rule  8 of the Anti -Dumping Duties Rules, 2001, provides that "upon initiation, 
the [NTC]  shall send questionnaires", and it shall give "at least thirty days for reply", it being deemed 
that the questionnaire  is received "o ne week from the day on which it was sent"; these requirements 
are similar to those set out in Articles  6.1 and 6.1.1 of the Anti -Dumping  Agreement. We note that 
indeed, four days after 23 April, on 27  April 2012, the NTC transmitted to Taghleef a question naire, 
informing Taghleef that it had 37 days from the date of "issuance" of the letter (30  days plus one 
week, the minimum set forth in Rule 8) to provide new information using that questionnaire.671 Thus, 
formally at least672, the NTC took the steps envisaged by Rule 8 "upon initiation".  
7.504.   Therefore, the initiation of 23  April 2012 bears the hallmarks envisaged in domestic law 
(which, in turn, is similar to  the Anti-Dumping  Agreement) for initiation, as "the procedural action 
by which [Pakistan] formally commences an investigation".673 
7.505.   However, the United Arab Emirates argues that regardless of the formal date of initiation, 
Pakistan subjected interested parties to a continuum of investigative steps that carried over from 
the fir st investigation, initiated on 27  September  2010, to the second investigation, initiated on 
23 April 2012.674 For this reason, the United Arab Emirates  argues that the time -limit in Article  5.10 
must run from 27  September  2010, the date the first investigat ion was initiated , regardless of "the 
formal date of initiation" of the second investigation , which led to the challenged measures.675 
The United  Arab Emirates explains that one cannot ignore "the special and unique situation of this 
case, where a new investigation incorporates the results of so many investigative steps taken in 
another case, prior to initiation", and that to do otherwise would go against the "interests being 
 
666 Ordinance No. LXV of 2000, (Exhibit  PAK-27), Section  27. (emphasis added)  
667 Notice of initiation (2012) , (Exhibit  ARE-5); Pakistan's  response to Pan el question No.  86.  
668 Notice of initiation (2012) , (Exhibit  ARE-5). 
669 In a letter to Taghleef of 27  April 2012, the NTC indicates that it has already sent the notice to 
Taghleef. ( NTC's letter of 27  April 2012, (Exhibit  ARE-6)). 
670 See paras.  7.477 -7.478  above.  
671 NTC's letter of 27  April 2012, (Exhibit  ARE-6). 
672 In terms of content, the questionnaire was identical to that sent out after the first initiation of 
27 September  2010. (Pakistan's  response to Panel question No.  22). 
673 Anti-Dumping  Agreement, fn  1. See also Panel Report, Guatemala – Cement II , para.  8.82, for a 
similar conclusion.  
674 For the sequence of events, see paras. 2.1-2.3 above.  
675 United Arab Emirates'  second written submission, para.  90.  WT/DS538/ R 
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  protected" by Article  5.10, namely parties'  interest in not being "left in unc ertainty" beyond the 
time-limits set forth in Article  5.10.676  
7.506.   Indeed, important investigative steps were undertaken in the first investigation and relied 
upon in the second one. It is during the first investigation, initiated on 27  September  2010, that th e 
NTC obtained Taghleef's  questionnaire response, Taghleef's  responses to three deficiency letters, 
and a further submission from Taghleef on level of trade adjustments, all of which the NTC relied 
upon in reaching its final determination in February  2013.677 It is also during the first investigation 
that the NTC conducted its sole on -the-spot verification visit of the domestic applicant, 
Tri-Pack Films; again, the NTC relied on the results of the verification visit in reaching its final 
determination in Feb ruary  2013.678  
7.507.   During the second investigation, the NTC did not require  parties to submit a new 
questionnaire response, and relied upon Taghleef's  previously submitted responses to the 
questionnaire and deficiency letters.679 The new materials the NTC recei ved from Taghleef were, 
with one exception, submitted after the preliminary determination in the second investigation, and 
to a large extent consisted of arguments that the NTC rejected, including on the choice of POI and 
on level of trade adjustments.680  
7.508.   The question for us, then, is which was the procedural step by which Pakistan formally 
commenced the relevant investigation, within the meaning of footnote 1 and therefore of 
Article  5.10. Neither party disputes that the first investigation was initiated o n 27 September  2010, 
i.e. that, at the time, the publication of the notice of initiation was the procedural action that formally 
commenced that investigation. Nor do the parties dispute that that initiation was subsequently 
declared void by a Pakistani cou rt, leading to a new initiation on 23  April 2012.681 
7.509.   As we have underlined in discussing the requirements of Article  5.10, the emphasis in 
Article  5.10, read together with footnote 1, is on the procedural action that " formally commences an 
investigation".682 In the case before us, where a first initiation was declared void, and a new Notice 
of initiation was published to commence , formally,  a new investigation, it is the latter – publication 
of the Notice of initiation on 23  April 2012 – that designates the b eginning of the time period to 
which the deadlines in Article  5.10 apply.  
7.510.   Thus, we find that "initiation" within the meaning of footnote 1 and Article  5.10 took place 
on 23  April 2012.  
7.10.2.2   The date the investigation was "concluded"  
7.511.   To recall, first, one of th e ways in which an "investigation" initiated under Article  5 may be 
"concluded" is with a final affirmative determination of injurious dumping that stipulates any 
measures to be imposed .683 Second, the Anti -Dumping  Agreement distinguishes between 
investigations initiated under Article  5 and subsequent steps, including judicial reviews of the 
determinations that may be adopted as a result of those investigations, and it is the investigations 
 
676 United Arab Emirates'  second written submission, para.  90. 
677 Pakistan's  response to Panel question No.  85 (referring to Taghleef 's questionnaire response , 
(Exhibit  ARE-16 (BCI)); Taghleef 's response to third deficiency letter , (Exhibit  ARE-18c (BCI)); 
Taghleef 's response to second deficiency letter , (Exhibit  ARE-20b (BCI)); Taghleef 's letter of 31  May 2011, 
(Exhibit  ARE-22 (BCI)); and Taghleef 's response to deficiency  letter , (Exhibit  PAK-50)). 
678 Report on Tri -Pack Films verification visit, (Exhibit  ARE-23); Report on final determination (2013), 
public version, (Exhibit  ARE-2), section  16.2. 
679 Pakistan's  response to Panel question No.  85; Report on final determination (2013), public version, 
(Exhibit  ARE-2), e.g.  section  15.2. 
680 Pakistan's  response to Panel question No.  85 (referring to Taghleef 's letter of 25  June 2012, 
(Exhibit  ARE-8); Taghleef 's post-hearing submission , (Exhibit  ARE-13); Taghleef 's letter of 30 November 2012 , 
(Exhibit  ARE-19 (BCI)); Taghleef 's comments on statement of essential facts , (Exhibit  ARE-25); 
Taghleef 's letter of 19  December  2012, (Exhibit  ARE-40 (BCI)); Taghleef 's email of 18  December  2012, 
(Exhibit  PAK-12A (BCI)); and Appendix to T aghleef 's email of 18  December  2012, (Exhibit  PAK-12B (BCI))).  
681 Order of Islamabad High Court , (Exhibit  PAK-31); Report on final determination (2013), public 
version, (Exhibit  ARE-2), paras.  5.2-5.3. 
682 Emphasis added. See para. 7.477 above.  
683 See para. 7.488  above.  WT/DS538/ R 
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  initiated under Ar ticle 5, and not subsequent steps, that are  subject to the time -limits in 
Article  5.10.684 
7.512.   On 4 February  2013, the NTC adopted  a Report  on final determination685 that recount ed the 
23 April 2012 initiation686, set out the findings of the investigation, conclu ded that there was 
dumping, injury , and a causal link between them687 and, on that basis,  provide d for the imposition 
of definitive anti -dumping duties.688 On 7 February  2013, Pakistan issued a "Notice of Final 
Determination and levy of Definitive Antidumpin g Duties"689, which set forth the NTC's  conclusion  of 
injurious dumping  and impose d the definitive anti -dumping duties690 provided for in the Report on 
final determination .  
7.513.   Thus, the notice of 7 February  2013 and the report of 4  February  2013 serve as the "public 
notice" and "separate report"691, respectively, of an affirmative final determination of injurious 
dumping, which set forth the definitive anti -dumping duties to be imposed on that basis. Therefore, 
that final determination "concluded" the inves tigation initiated on 23  April 2012, within the meaning 
of Article  5.10.692 
7.514.   After adoption of this final determination on 4 February  2013693, domestic judicial 
proceedings led to its annulment (though not to the refund of anti -dumping duties collected 
thereu nder694), to remand to the NTC, and to the adoption of a new final determination 
on 9 April 2015. The United Arab Emirates argues that this determination o f 9 April 2015, and not 
the determination of 4 February  2013, "concluded" the investigation within the  meaning of 
Article  5.10. 
7.515.   However, as seen earlier, the Anti -Dumping  Agreement distinguishes between final 
determinations and the judicial review of those determinations, the latter being a separate step, the 
duration of which is not included in the time p eriod disciplined by Article  5.10.695 Therefore, the fact 
that the final determination of 4 February  2013 was subject to judicial review and then formally 
replaced (though "ratified") by a determination adopted on remand does not mean that the clock 
under A rticle 5.10 continued ticking throughout judicial review.  
7.516.   In support of its contrary argument, the United Arab Emirates emphasizes that the 
determination of 9  April 2015 was a "fresh start"; that the February 2013 determination is "officially 
valid" only because  it was  "ratified" by the 9  April 2015 determination; and that the latter imposed 
duties only prospectively and was entitled "final determination".696 However, none of these points 
would mean that the time -limit in Article  5.10 should apply to the su m total of the time taken to 
reach the first final determination and the time taken for its subsequent judicial review and the time 
taken to reach a new determination on remand, as a result of judicial review.697  
 
684 See paras.  7.489 -7.492  above.  
685 Report on final determination (2013), public version, (Exhibit  ARE-2); Report on final 
determination  (2013), (Exhibit  PAK-1 (BCI)).  
686 Report on final determination (2013), public version, (Exhibit  ARE-2), para. 5.3. 
687 Report  on final determination (2013), public version, (Exhibit  ARE-2), para. 50. 
688 Report on final determination (2013), public version, (Exhibit  ARE-2), paras.  51 and 54.  
689 Notice of final determination (2013) , (Exhibit  ARE-10). 
690 As well as collecting definiti vely the anti -dumping duties imposed on the basis of the provisional 
determination. (Notice of final determination (2013), (Exhibit  ARE-10)). 
691 Article  12.2 of the Anti -Dumping  Agreement.  
692 See para.  7.488  above, point (a). 
693 See fn  26 above.  
694 Pakistan's  response to Panel question No.  15(b)(ii).  
695 See para. 7.491  above.  
696 United Arab Emirates'  responses to Panel question Nos.  23-24. 
697 Less importantly, we note that the facts do not support the view that the 2015 determination was a 
"fresh start":  the NTC made no new analysis and did not reopen the record, taking the view that the only step 
that had been set aside was the act of adopting the final determination; the duties collected under the 
February  2013 determination were not refunded; and the April  2015 determination only imposed duties until 
the end date originally envisaged in the February  2013 determination. (Report on final determination (2015), 
public version, (Exhibit  PAK-49), paras.  3-5; Pakistan's  response to Panel question No.  15(b)(ii)).  WT/DS538/ R 
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  7.10.2.3   Conclusion under Article  5.10 
7.517.   Pakistan init iated the investigation on 23  April 2012 and concluded that investigation on 
4 February  2013. Therefore, the United Arab Emirates has not established that Pakistan exceeded 
the 18 -month time -limit set forth in Article  5.10 for investigations initiated "as provided in Article  5". 
7.11  Due process rights and the 2015 determination:  Article  6.2 of the 
Anti-Dumping  Agreement  
7.518.   We refer to the facts set out in paragraphs  2.4-2.5 above.  
7.519.   The United  Arab Emirates claims that in the process leading to the adoption of the 
determination of 9  April 2015, Pakistan failed to provide interested parties with a full opportunity for 
the defence of their interests as required by Article  6.2. The United  Arab Emirates points out that 
the NTC gave parties no opportunity to make their views known and gave them no notice that it 
intended to reconsider its determination of 4 February  2013.698 
7.520.   Pakistan responds that the determination adopted on remand from the domestic court in 
April 2015 was limited to rectifying a purely formal defect, arisen under domestic law, in the 
February  2013 determination, with no substantive changes, and that the refore no obligation to 
involve interested parties was triggered under Article  6.2.699 
7.521.   Among the third parties, the European  Union argues that "the type of analysis carried out 
on remand is determinative":  Article  6.2 will not give interested parties a righ t to comment again if 
the authority "simply repeated the initial analysis", but it will if the authority "engaged in an analysis 
different from the original one".700 
7.522.   Below , we first set out the applicable requirements of Article  6.2 (section  7.11.1 ). We then 
apply that  standard to the facts of this case, discussing whether the steps taken on remand by the 
NTC triggered obligations under Article  6.2 that the NTC failed t o abide by, and we find that the 
United Arab Emirates has not established that Pakistan acted inconsistently with Article  6.2 
(section  7.11.2 ).  
7.11.1   The applicable requir ements of Article  6.2 
7.523.   The opening clause of Article  6.2, on which the United Arab Emirates relies701, provides:   
Throughout the anti -dumping investigation all interested parties shall have a full 
opportunity for the defence of their interests.  
7.524.   By providing that interested parties be given a full opportunity for the defence of their 
interests, Article  6.2 sets forth one of the "fundamen tal due process rights to which interested parties 
are entitled in anti -dumping investigations and reviews". It provides for "liberal opportunities for 
respondents to defend their interests"; however, it does not provide "for 'indefinite'  rights" and does 
not give parties the right to make submissions or otherwise participate "as and when they choose".702 
 
698 United Arab Emirates'  first written submission, para.  484; second written submission, 
paras.  223-225; and response to Panel question No.  23, paras.  17-20. 
699 Pakistan's  first written submission, paras.  3.553 -3.574; second written submission, 
paras.  2.287 -2.296. 
700 European  Union's  third-party submission, para.  16; third -party statement, paras.  11-13. 
701 The remainder of Article  6.2 relates to hearings in the context of anti -dumping proceedings, with or 
without other parties. The United Arab Emirates does not make arguments specifically with regard to hearings.  
702 Appellate  Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  241. WT/DS538/ R 
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  7.525.   The United  Arab Emirates'  arguments in this case raise the question of the extent to which 
Article  6.2 applies outside703 the scope of original investigations and interim and sunset reviews.704 
7.526.   As fundamental due process rights, the rights set forth in Article  6.2 must be available in 
any process leading to the imposition of anti -dumping measures by a Member. However, not eve ry 
step taken by an investigating authority will trigger an obligation for the authority to give parties an 
opportunity to submit their views.  
7.527.   We agree with how t he panel in Korea – Certain Paper ( Article  21.5 – Indonesia)  addressed 
a similar question to the one before us, in the context of a compliance redetermination.705 That panel 
held that the extent to which "a procedural obligation set forth under Article  6" applied anew to the 
compliance redetermination depended on "the steps taken" by the domestic a uthority in the 
redetermination.706 
7.528.   The panel in Korea – Certain Paper ( Article  21.5 – Indonesia)  relied on the fact that, in 
compliance proceedings, the original determination and the compliance redetermination form part 
of a continuum of events.707 That pa nel observed that when a procedural obligation under Article  6 
had already been complied with in the original proceedings, ruling that it had to be "re -observed" in 
the implementation proceedings would have meant the panel was imposing on the respondent 
"procedural obligations that had no … connection with the implementation of the 
DSB recommendations and rulings at issue", " unless the steps taken by the [investigating authority 
of the respondent] made it necessary ". This would be the case, for example, whe re the investigating 
authority had to perform a new analysis , even if that analysis was based on the same facts already 
relied upon in the original proceedings.708 
7.529.   The reasoning in that case was specific to compliance redeterminations. However, there are 
commonalities with the situation before us, namely:  a "first" final determination had already been 
adopted; it was either not contested that the authority had complied with Article  6.2 (in our case), 
or the complainant had not established otherwise (in the o riginal proceedings in Korea – Certain 
Paper ); a "second" final determination was then adopted, replacing the former, and the question 
was to what extent the authority had to take steps in adopting the second determination to ensure 
that parties had a full  opportunity for the defence of their interests under Article  6.2. In such 
circumstances, we consider that also when a determination is remanded to the domestic authority 
as a result of domestic judicial proceedings rather than as a result of WTO dispute s ettlement, the 
question under Article  6.2 is whether the steps taken on remand  by the investigating authority  make 
it necessary to give parties a further opportunity to make their views known.  
7.11.2   Whether Pakistan acted inconsistently with Article  6.2 
7.530.   The NTC  adopted a first final determination on 4 February  2013. A Pakistani court then set 
aside the February  2013 determination because of a defect in the composition of the NTC at the time 
the determination was adopted. On remand from the court, the NTC adopted  a new determination 
 
703 In the second written submission, the United Arab Emirates emphasizes that Article  6.2 requires a 
full opportunity for  parties to defend their interests "' throughout ' [the anti -dumping] investigation". 
(United  Arab Emirates'  second written submission, para.  227 ( emphasis  added)). This, however, does not 
appear to address the question at hand, which is the extent to which Article  6.2 requires separate opportunities 
for comment in the context of a remand redetermination.  
704 For interim and sunset reviews, Article  11.4 expressly provides: "[t]he provisions of Article  6 
regarding evidence and procedure shall apply to any revie w carried out under this Article."  
705 That is, in the context of a determination adopted to implement the recommendations and rulings of 
the DSB relating to anti -dumping measures adopted by Korea.  
706 Panel Report, Korea – Certain Paper ( Article  21.5 – Indonesia) , para.  6.74. In its  
third-party submission, the European  Union points out that that panel clarified that the fact of relying on the 
same factual basis as relied upon in the original proceedings is not determinative, as one "cannot assume that 
the same factual basis would in all cases lead to the same analysis". (Ibid. para.  6.79 (quoted in Indonesia 
third-party submission, para.  14)). 
707 Panel  Report, Korea – Certain Pap er (Article  21.5 – Indonesia) , para.  6.74 (quoting Appellate  Body 
Report, Mexico – Corn Syrup ( Article  21.5 – US), para.  121).  
708 Panel Report, Korea – Certain Paper ( Article  21.5 – Indonesia) , paras.  6.74 and 6.79 -6.80 
(emphasis  added). The panel found that this was precisely the case before it:  because compliance with its 
recommend ations and rulings under Article  3.4 required the authority to perform a new analysis, the authority 
was required to provide parties with an opportunity to make their views known, even though that new analysis 
was based on an unchanged factual record. (Ibi d. para.  6.79).  WT/DS538/ R 
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  on 9 April 2015, which was formally distinct but, in its own words, "ratified" the determination of 
February  2013, including the entirety of the underlying findings and the imposition of duties.709  
7.531.   The United  Arab Emirates claims that the NTC failed to give parties a full opportunity for the 
defence of their interests in adopting the determination of 9  April 2015, because it gave parties no 
opportunity to make their views known and gave them no notice that it intended to reconsider its 
determination of 4 February  2013.710 
7.532.   As set out in discussing the requirements of Article  6.2 of the Anti -Dumping  Agreement 
above, the question is whether, under this provision, the adoption of the 9  April 2015 determination 
in lieu of the 4 February  2013 determination triggered an obligation on the part of Pakistan to afford 
interested parties an additional o pportunity for the defence of their interests, and specifically 
whether it required Pakistan to give notice of the impending adoption of a new determination and 
opportunities for the parties to make their views known.  
7.533.   The Report on final determination of 9  April 2015 states that the NTC "re -considered, 
re-appreciated and re -appraised the facts of the investigation".711 Despite this language, the NTC 
not only did not reopen the record of the investigation, but also it carried out absolutely no new or 
further analysis of the facts already on the record. Instead, the NTC observed that the determination 
of February 2013 had been annulled solely on the basis of a formal defect in the composition of the 
NTC ("only on the issue of quorum"712), and that "only the fina l determination" had been set aside.713 
Therefore, the now "properly constituted"714 NTC considered that only the last step of adopting  a 
final determination had to be repeated, and it therefore "ratified" the earlier findings and the 
consequent imposition o f duties.715  
7.534.   Thus, on the face of the determination716, what the NTC did in April  2015 was to readopt a 
determination that was identical717 to that of February  2013, but whereas in February  2013 one 
member of the NTC had overstayed its mandate under domestic law, in April  2015 the composition 
of the NTC was proper under domestic law.  
7.535.   On this basis, we do not consider that the United  Arab Emirates has demonstrated that 
Article  6.2 of the Anti -Dumping  Agreement required Pakistan to give parties a new o pportunity to 
make their views know before the adoption of the 2015 determination, additional to the opportunities 
provided in the process that led to the adoption of the 2013 determination. We therefore find that 
the United  Arab Emirates has not demonstra ted that Pakistan acted inconsistently with Article  6.2 
of the Anti -Dumping  Agreement.  
7.12  Sunset review: Articles  11.1 and 11.3 of the Anti -Dumping  Agreement  
7.536.   The United  Arab Emirates claims that Pakistan's  sunset review determination of 
1 December  2016 is inc onsistent with Articles  11.1 and 11.3 of the Anti -Dumping  Agreement on 
multiple  grounds.  
 
709 See paras.  2.3-2.5 above . The only substantive difference  consists of the fact  that the determination 
of 9 April 2015 only imposed duties with effect from that date. (Notice of final determination (2015), 
(Exhibit  ARE-1), p.  2). The end date of the duties under the determinations of February  2013 and April  2015 
was the same (14  August  2015), and the duties collected under the determination of February  2013 were not 
refunded following the annulment of that determination. (Notice of final determination (2013), 
(Exhibit  ARE-10), p.  1; Notice of final determination ( 2015), (Exhibit  ARE-1), p.  2; and Pakistan's  response to 
Panel question No.  15(b)(ii)).  
710 See para. 7.519  above.  
711 Report on final determination (2015), public version, (Exhibit  PAK-49), para.  4. The same language 
is contained in the Notice of final determination (2015), (Exhibit  ARE-1), p.  1. 
712 Report on final determination (2015), public version,  (Exhibit  PAK-49), para.  4. 
713 Report on final determination (2015), public version,  (Exhibit  PAK-49), para.  3. 
714 Notice of final determination (2015), (Exhibit  ARE-1), p.  1; Report on final determination  (2015), 
public version, (Exhibit  PAK-49), para.  3. 
715 Report on final determination (2015), public version, (Exhibit  PAK-49), para.  4. Also the end date of 
the anti -dumping duties remained the same as under the determination of February  2013. See 
para. 2.5 above.  
716 Notice of final determination (2015), (Exhibit  ARE-1); Report on final determination (2015), public 
version, (Exhibit  PAK-49).  
717 See fn  709 above.  WT/DS538/ R 
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  7.537.   We begin by recalling the applicable requirements of Articles  11.1 and 11.3 of the 
Anti-Dumping  Agreement (section  7.12.1 ). We then apply those requirements to the facts of this 
case, and we structure our discussion as follows: first, we examine whether the United  Arab Emirates 
has established that the NTC's  determination that dum ping was likely to continue or recur was 
inconsistent with Article  11.3, and we find that it has so established (section  7.12.2 ); second, we 
examine whether the Unite d Arab Emirates has established that the NTC's  determination that injury 
was likely to recur was inconsistent with Article  11.3, and we find that it has so established 
(section  7.12.3 ); third, we decline to decide whether the sunset review determination is also 
inconsistent with Article  11.3 as a result of inconsistencies in the determination under which the 
anti-dumping du ties were first imposed (section  7.12.4 ); and, finally, we exercise judicial economy 
under Article  11.1 (section  7.12.5 ). 
7.12.1   The applicable requirements of Articles  11.1 and 11.3  
7.538.   Article  11.1 provides  that: 
An anti -dumping duty shall remain in force only as long as and to the extent necessary 
to counteract dumping which is causing in jury.  
7.539.   The ordinary meaning of "counteract" includes "act against … or contrary to", "hinder or 
defeat by contrary action", and "neutralize the action or effect of".718 Thus, on its face, Article  11.1 
provides that an anti -dumping duty may remain in force  only "as long as and to the extent " that it 
is necessary to act against, or neutralize the action or effect of, "dumping which is causing injury ". 
7.540.   Article  11.1 is the first paragraph  of Article  11, which is a provision on the "Duration and 
Review of Anti-Dumping Duties" and sets forth disciplines for so -called changed circumstances 
reviews and sunset reviews.719 Thus, we agree with other panels which have taken the view that 
Article  11.1 establishes an overarching principle that duties may only continue to be  imposed as long 
as they remain necessary, which is operationalized in the procedures for changed circumstances and 
sunset reviews set out in the remainder of Article  11.720 
7.541.   Article  11.3 is the central provision governing sunset reviews. Article  11.3 reads in relevant 
part:  
Any definitive anti -dumping duty shall be terminated on a date not later than five years 
from its imposition … unless the authorities determine, in a review  initiated before that 
date on their own initiative or upon a duly substantiated request made by or on behalf 
of the domestic industry within a reasonable period of time prior to that date, that the 
expiry of the duty would be likely to lead to continuation or recurrence of dumping and 
injury.721 
7.542.   Article  11.3 thus requires that anti -dumping duties be terminated within five  years, unless 
an investigating authority " determine[s], in a review  … that the expiry of the duty would be likely to 
lead to continuation or recurrence of dumping and injury" .722 
7.543.   The ordinary meaning of "determine" includes to "bring to an end a … doubtful matter; to 
conclude, settle, decide, fix", to "conclude from reasoning, investigation", and to "ascertain definit ely 
 
718 Oxford Dictionaries online, definition of "counteract" 
https://www.oed.com/view/ Entry/42649?redirectedFrom=counteract#eid  (accessed 12  October  2020), v., 
meanings  1-2. 
719 Article  11.1 is followed by Articles  11.2 and 11.3, which discipline so -called changed circumstances 
reviews and sunset reviews; Article  11.4, which extends certain p rocedural provisions to both type of reviews; 
and Article  11.5, which explains that these disciplines also apply to the duration and review of price 
undertakings.  
720 Panel Reports, US – Shrimp II (Viet Nam) , para.  7.363; EU – Cost Adjustment Methodologies I I 
(Russia) , para.  7.567; Ukraine – Ammonium Nitrate , paras.  7.7, 7.34, and 7.46; US – Corrosion -Resistant 
Steel Sunset Review , paras.  7.28, 7.95, and 7.300; and EC – Tube or Pipe Fittings , para.  7.113. See also 
Panel  Report, US – DRAMS , para.  6.41. 
721 Emphasis added.  
722 Emphasis added.  WT/DS538/ R 
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  by observation, examination"723; and the ordinary meaning of "review" includes an "inspection, 
examination".724 Further, the ordinary meaning of the word "likely" includes "having a high chance 
of occurring; probable", and "that looks as if it would happ en, be realized, or prove to be what is 
alleged or suggested; probable".725 Together, these terms indicate that a Member may not rely solely 
on assumption or speculation when conducting a likelihood analysis during a sunset proceeding but 
must, instead, con duct its examination on the basis of positive evidence so as to arrive at a reasoned 
determination, resting on a sufficient factual basis726, that dumping and injury are "likely" – 
i.e. probable and not merely possible727 – to continue or recur.  
7.544.   Regarding the likelihood that dumping  will continue or recur, one of the questions before us 
is whether and to what extent Article  2 applies in the context of reviews conducted under 
Article  11.3. We note that Article  11.3 does not require a determination of dumping, but rather a 
determination that expiry of the duty would be likely to lead to continuation or recurrence of 
dumping. Thus, an investigating authority is not required to determine a margin of dumping in the 
context of a sunset review.728 However,  in determining likelihood of dumping, an authority may rely 
on margins of dumping. If it does so, those dumping margins must then conform to the requirements 
of Article  2, because Article  2.1 of the Anti -Dumping Agreement  sets forth a single definition of  
dumping "[f]or the purpose of this  Agreement". Similar to the view taken in previous disputes , we 
are therefore of the view  that under Article 11.3 , when an authority is in a position to rely on dumping 
margins, and it chooses to rely on dumping margins t o determine the likelihood of continuation or 
recurrence of dumping, it must do so in a way that conform s to the disciplines of Article  2.729  
7.545.   Similar to dumping, we note that Article  11.3 does not require a determination of injury, but 
rather a determinati on of whether the expiry of a duty would be likely to lead to continuation or 
recurrence of injury . Therefore, in a sunset review, an investigating authority is not required to make 
a determination of injury within the meaning of Article  3.730 However, to d etermine likelihood of 
injury, an authority may choose to, or even have to, evaluate certain of the factors mentioned in 
Article  3 and conduct analyses akin to those mandated by Article  3.731 To that extent, the disciplines 
in Article  3 may be relevant to i nterpret the obligation to determine likelihood of injury under 
Article  11.3.732  
7.546.   Finally, Article  11.3 requires the authority to "determine … that the expiry of the duty would 
be likely to lead to continuation or recurrence of dumping and injury".733 Thus, Article  11.3 requires 
the authority to ascertain whether there is a relationship (or "nexus"734) between the expiry of a 
duty, on the one hand, and continuation or recurrence of dumping and injury, on the other, such 
that the former "would be likely to lead to" the latter.   
 
723 Oxford Dictionaries online, definition of "determine" 
https://www.oed.com/view/Entry/51244?redirectedFrom=determine#eid (accessed 8  October  2020), v., 
meanings  II.4, II.10, and II.11.  
724 Oxford Dictionaries online, definition of "review" 
https://www.oed.com/view/Entry/164850?rskey=3wbCMT&result=1&isAdvanced= false#eid  (accessed 
8 October  2020), n., meaning  I.4.a.  
725 Oxford Dictionaries online, definition of "likely" 
https://www.oed.com/view/Entry/108315?rskey=W od6SQ&result=1&isAdvanced=false#eid  (accessed 
8 October  2020), adj., meanings  II.2.a and II.2.d.  
726 Panel Reports, US – Corrosion -Resistant Steel Sunset Review , para.  7.271; Ukraine – Ammonium 
Nitrate , para.  7.16;  Appellate  Body Reports, US – Corrosion -Resistant Steel Sunset Review , paras.  110-115; 
and US – Oil Country Tubular Goods Sunset Reviews , paras.  179-180. 
727 See also e.g.  Appellate  Body Reports, US – Corrosion -Resistant Steel Sunset Review , para.  111; and 
US – Oil Country Tubular Goods Sunset Reviews , para.  308. 
728 See also Appellate  Body Report, US – Corrosion -Resistant Steel Sunset Review , paras.  123 and 127; 
Panel Reports, EU – Cost Adjustment Methodologies II (Russia) , para.  7.270;  and US – Shrimp II (Viet Nam) , 
para. 7.306.  
729 Appellate  Body Reports, US – Corrosion -Resistant Steel Sunset Review , para.  127; US – Zeroing 
(Japan) , paras.  183-185. Panel Reports, EU – Cost Adjustment Methodologies II (Russia) , para.  7.270; 
Ukraine  – Ammonium N itrate , para.  7.130 ; and US – Shrimp II (Viet Nam) , para.  7.306.  
730 See also Appellate  Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  279; and 
Panel Report,  Ukraine – Ammonium Nitrate , para.  7.166 . 
731 See also Appellate  Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  284. 
732 See also e.g.  Panel Report, EU – Cost Adjustment Methodologies II (Russia) , paras.  7.381 -7.383.  
733 Emphasis added.  
734 Appellate  Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods , para.  108. See 
also ibid. para.  123. WT/DS538/ R 
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  7.12.2   Whether the NTC's  likelihood of dumping determination is inconsistent with 
Article  11.3 
7.547.   The United  Arab Emirates argues that the NTC's  determination that dumping from the 
United  Arab Emirates was likely to continue or recur is inco nsistent with Article  11.3 on multiple 
grounds. In particular, the United Arab Emirates argues that : in making its likelihood of dumping 
determination, the NTC relied on dumping margins that were inconsistent with Article  2 of the 
Anti-Dumping  Agreement735; two of the other three factors relied upon by the NTC did not support 
the NTC's  finding that dumping was likely to continue or recur if the duties expired736; and the NTC 
failed to take into consideration that during the period of review the prices of the subject imports 
had increased significantly and had consistently been higher than those of the domestic producers, 
even before accounting for the anti -dumping duties.737 Below, we consider the first two of these 
three sets of arguments and find that the Uni ted Arab Emirates has established, on that basis, that 
the NTC's  determination of likelihood of dumping is inconsistent with Article  11.3. We therefore do 
not proceed to consider the remainder of the United  Arab Emirates'  arguments against the 
NTC's  likelihood of dumping determination.  
7.12.2.1   Whether the NTC acted inconsistently with Article  11.3 by relying on a dumping 
margin that did not conform to Article  2 of the Anti -Dumping  Agreement  
7.548.   In determining that dumping was likely to continue or recur, the NTC relie d on what it called 
"likely dumping margins". The United Arab Emirates argues that these dumping margins738 were 
inconsistent with Article  2 of the Anti -Dumping  Agreement and therefore that, by relying on them to 
determine that dumping was likely to continu e or recur, the NTC acted inconsistently with 
Article  11.3.739 
7.549.   Pakistan responds that the NTC did not calculate company -specific dumping margins, but 
"likely dumping margins" at the country level, i.e.  estimates or proxies for likely country -wide pricing 
behaviour. Pakistan argues that, therefore, the disciplines of Article  2 do not apply.740 
7.550.   The parties'  arguments raise two questions, which we examine in turn: (a)  were what t he 
NTC called "likely dumping margins" subject to the requirements of  Article  2 of t he 
Anti-Dumping  Agreement; and (b)  if so, were those "likely dumping margins" inconsistent with 
Article  2 and, therefore, with Article  11.3? We answer both questions in the affirmative.  
7.12.2.1.1   Whether the NTC's  "likely dumping margins" are subject to Article  2 
7.551.   We first consider whether what the NTC referred to as likely dumping margins are subject 
to the substantive requirements of Article  2, as the United Arab Emirates argues.  
7.552.   According to Pakistan, the NTC did not calculate individual dumping margins in the sen se of 
Article  2741, but rather "country -wide estimates"742 of "the likely future pricing behaviour of exporters 
 
735 See e.g. United Arab Emirates'  first written submission, paras.  490 and 532 -538; second written 
submission, paras.  235-237 and 248 -251.  
736 See e.g. United Arab Emirates'  first written submission, para.  541; second written submission, 
paras.  238 and 252 -254. 
737 United Arab Emirates'  first written submission, para.  540; response to Panel question No.  78. See 
also United Arab Emirates'  second wr itten submission, para.  234; written opening statement, para.  111; and 
response to Pakistan's  written opening statement, para.  49.  
738 Specifically, the dumping margin calculated for BOPP film from the United Arab Emirates, since the 
United Arab Emirates ch allenges the anti -dumping measures on BOPP film from the United Arab Emirates.  
739 United Arab Emirates'  first written submission, paras.  532 and 534. See also 
United  Arab Emirates'  opening statement at the first meeting of the Panel, para.  78; 
second  writte n submission, paras.  235 and 249; written opening statement, para. 107; response to Panel 
question  No. 92, para.  15; and comments on Pakistan's  response to Panel question No.  92, p.  11. 
740 Pakistan's  first written submission, paras.  3.637 -3.644; second writ ten submission, section  2.11.2.3; 
written opening statement, paras.  112-119; response to United Arab Emirates'  written opening statement, 
paras.  72-73; comments on United Arab Emirates'  response to Panel question No.  92; and  response to Panel 
question No.  92, paras.  32-33.  
741 Pakistan's  first written submission, para.  3.638; second written submission, para.  2.309.  
742 Pakistan's  second written submission, para.  2.307.  WT/DS538/ R 
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  from the relevant countries".743 Pakistan argues that, therefore, the NTC's  calculations are not 
subject to the rules of Article  2.744 
7.553.   To make our assessment, we turn to the NTC's  determination.  
7.554.   The NTC explained in its  Report  on sunset determination that "[t]o determine likelihood of 
recurrence or continuation of dumping … the [NTC]  has considered"745 several factors, among which 
"[l]ikelihood of dumping and calculation of likely dumping margins  for exporters/foreign producers 
of the Exporting Countries".746 It explained how it calculated t hese "likely dumping margins" in a 
section  entitled " Determination of dumping and calculation of dumping margins  for exporters/foreign 
producers of the Exporting Countries".747 While the specific manner in which a Member designates 
its actions in domestic law does not conclusively determine how those actions can properly be 
characterized under the covered agreements, we note that the NTC described what it was doing as 
a "calcula tion of likely dumping margins" and a "determination of dumping".  
7.555.   In explaining how it determined these likely dumping margins, the NTC began by quoting 
Sections  4, 5, and 6(1) of the Pakistani Anti -Dumping Duties Act (2015), which define dumping 
(Section  4), normal value (Section  5), and alternative bases for determining normal value 
(Section  6(1)) in Pakistani law748, and are similar to Articles  2.1 and 2.2 of the 
Anti-Dumping  Agreement. The text of these provisions is also identical to that of the provis ions 
quoted at the outset of the section  on "Determination of Dumping" in the Report on final 
determination of 4  February  2013.749 
7.556.   After quoting Sections  4, 5, and 6(1) of the Anti -Dumping Duties Act (2015), the NTC 
explained in its report that it had recei ved responses to the questionnaire from two exporters from 
Dubai and Oman – i.e. Taghleef ( Taghleef LLC, Dubai ) and Taghleef SAOC ( Taghleef SAOC, 
Oman).750 It further explained that the "likely normal value for Oman, Saudi  Arabia, and 
United  Arab Emirates f or the [period of review] is constructed on the basis of cost to make and sell 
of Taghleef LLC, Dubai, and Taghleef SAOC, Oman, which they have provided in response to the 
questionnaire" .751 It appears that the NTC constructed a single normal value based on  the combined 
costs to make and sell of the two cooperating exporters for the year  2014, which it then assigned to 
each of the three aforementioned countries.752 The NTC then compared753 the constructed normal 
value754 with country -wide export price s determin ed for each country separately on the basis of 
import statistics obtained from PRAL.755 The NTC also listed a number of adjustments it had made 
 
743 Pakistan uses various formulations. It argues that the NTC sought to analyse "likely coun try-wide of 
pricing behaviour", and to that effect calculated "proxies for likely future pricing behaviour", "country -wide 
estimates of likely dumping", "likely future dumping proxy figure[s]", "country -wide pricing behaviour proxies", 
"country -wide dumpin g trends", and "other dumping -type calculations". (Pakistan's  first written submission, 
paras.  3.612, 3.639, and 3.644; second written submission, paras.  2.307, 2.311, and 2.314).  
744 Pakistan's  first written submission, para.  3.639. See also ibid. para.  3.612; written opening 
statement, paras.  115 and 117; response to Panel question No.  92, paras.  32-33; and comments on 
United  Arab Emirates'  response to Panel question No.  92, paras.  23 and 25.  
745 Report on sunset determination, public version, (Exhibit  ARE-4), para.  25. 
746 Report on sunset determination, public version, (Exhibit  ARE-4), para.  25(ii). (emphasis added)  
747 Report on sunset determination, public version, (Exhibit  ARE-4), section  28. (emphasis added)  
748 Report on sunset determination, public version, (Exhibit  ARE-4), pp.  12-13.  
749 In the Report on final determination of 4  February  2013, the NTC quoted at the outset of the 
section  of the report on "Determination of Dumping", among other provisions, Sections  4, 5, and 6(1) of the 
Anti-Dumping Duties Ordi nance (2000), which are identical, word -for-word with Sections  4, 5, and 6(1) of the 
Anti-Dumping Duties Act (2015), as quoted in the Report on sunset determination. (Report on final 
determination (2013), (Exhibit  PAK-1 (BCI)), pp.  22-23; Report on sunset determination, public version, 
(Exhibit  ARE-4), pp.  12-13. See also United Arab Emirates'  opening statement at the first meeting of the Panel, 
para. 78; second written submission, para.  248 (referring to Report on final determination (2013), 
(Exhibit  PAK-1 (BCI)), pp.  22-24)). 
750 Report on sunset determination, public version, (Exhibit  ARE-4), paras.  28.3-28.4.1.  
751 Report on sunset determination, public version, (Exhibit  ARE-4), para. 28.4.2.  
752 NTC's  explanation of sunset methodology, (Exhibit  ARE-27 (BCI)) , section  4.1; Report on sunset 
determination, (Exhibit  PAK-2 (BCI)), annex -II and table -VI. 
753 Report on sunset determination, (Exhibit  PAK-2 (BCI)), table -VI. 
754 We note that the NTC used the phrase "constructed normal value". ( NTC's  explanation of sunset 
methodology, (Exhibit  ARE-27 (BCI)), section  4.1; Report on sunset determination, (Exhibit  PAK-2 (BCI)), 
annex -II). 
755 NTC's  explanation of sunset methodology, (Exhibit  ARE-27 (BCI)), section  4.2; Report on sunset 
determination, (Exhibit  PAK-2 (BCI)), para.  28.5, table -V, and annex -IV. WT/DS538/ R 
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  to the export price "to reach at ex -works level for like to like comparison of the normal value  and 
export price ".756 Further, before setting out the results of its calculations of "normal value", "export 
price", and "dumping margin" for each of the four  investigated exporting  countries757, the NTC 
quoted the definition of "dumping margin" from the Anti -Dumping Duties Act (2015), stating that 
"[t]he Act defines 'dumping margin'  in relation to a product as 'the amount by which its normal value 
exceeds its export price' ".758  
7.557.   In support of its position that the NTC was not calculating margins of dumping, Pak istan 
points out that the NTC's  calculations were country -wide.759 However, as described above, the steps  
actually  taken by the NTC to calculate the "likely dumping margins " at issue , the provisions of 
domestic law invoked by the NTC, and the manner in whic h the NTC described its determination, all 
indicate that the NTC calculate d margins of dumping760 and rel ied on these margins when 
determining whether dumping was likely to continue or recur.  The question of the consistency of 
these margins with the applica ble requirements is a separate one.  
7.558.   Pakistan also points out that it did not modify the anti -dumping duty rates to reflect  the 
"likely dumping margins" at issue here; instead, it left anti -dumping duty rates unchanged after the 
sunset review.761 However, th is does not change the outcome of our analysis. If in determining 
whether dumping is likely to continue or recur, an authority is in a position to rely on dumping 
margins and chooses to do so, then Article  11.3 requires it to abide by the requirements of A rticle 2 
in calculating those dumping margins .762 This does not depend on  whether  those margins are then 
also used as a basis to update the anti -dumping duty rates.  
7.559.   Finally, Pakistan submits that the NTC would not have been able to calculate individual 
dump ing margins because its exporter questionnaire in the sunset review did not request 
transaction -specific data from exporters, but rather aggregate values and volumes of domestic and 
export sales.763 The UAE responds that the sunset review questionnaire required "the same 
categories of data … that the NTC relied on in … calculating dumping margins in the original 
investigation".764 Pakistan appears to confuse the question whether Article 2 applies , with the 
separate and logically subsequent question whether the dumping margins are consistent with  
Article  2. If an authority calculates dumping margins in a manner that is not consistent  with Article  2, 
that does not mean that Article 2 does not apply . Ther efore, with reference to this specific argument 
by Pakistan, if an authority collects data from exporters that would not allow it to calculate dumping 
margins in a manner consistent with Article 2, that does not mean that Article 2 does not apply . 
7.560.   In sum, the calculations performed by the NTC, the provisions the NTC invoked and the 
wording it used in its determination, taken together, indicate  that the NTC calculated margins of 
dumping and relied upon them in determining whether dumping was likely to contin ue or recur.  
Thus, t he NTC first calculate d normal values , and in order  to do so, it turned to the questionnaire 
responses of the cooperating exporters and stated that it would construct normal value on the basis 
of the cost data submitted by those exporte rs. It then calculate d an export price , and derive d 
margins of dumping by comparing the normal value s and export price s it had so established. In  doing 
so, it cited provisions of domestic law concerning the definition and determination of dumping, 
normal v alue, and dumping margins. We note, in addition, that the NTC  set out the results of this 
exercise in a table entitled "Dumping Margins".765 All of these elements taken together, which we 
 
756 NTC's  explanation of sunset methodology, (Exhibit  ARE-27 (BCI)), section  4.2; Report on sunset 
determination, public version, (Exhibit  ARE-4), para.  28.5. (emphasis added)  
757 Report on sunset determination, publi c version, (Exhibit  ARE-4), table -IV. 
758 Report on sunset determination, public version, (Exhibit  ARE-4), para.  28.6.1. (emphasis original)  
759 Pakistan's  written opening statement, para.  117. See also ibid. paras.  114 and 118; responses to 
Panel question No.  87, paras.  6 and 8, and No.  92, para.  32; and comments on United Arab Emirates'  response 
to Panel question No.  92, paras.  22-24. 
760 This is without prejudice to the question of the consistency of those margins of dumping with the 
applicable requirements.  
761 Pakistan's  first written submission para.  3.640; second written submission, para.  2.313. See also 
Pakistan's  written opening statement, paras.  114 and 118; response to Panel question No.  87, para.  6; and 
comments on United Arab Emirates'  response to Panel  question No.  92, para.  24. 
762 See para.  7.544  above.  
763 Pakistan's first written submission, para. 3.641; second written submission, para. 2.312; and written 
opening statement, para. 115.  
764 United Arab Emirates' second written submission, para. 248.  
765 Report on sunset determination, (Exhibit  PAK-2 (BCI)), table -VI. WT/DS538/ R 
BCI deleted, as indicated [[***]]  
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  have described in more detail above, indicate that the NTC calculated  margins of dumping.766 
Immediately after setting out its calculations of dumping margins, the NTC stated that "[o]n the 
basis of above information and analysis the [NTC]  has reached the conclusion [that] there is 
likelihood of continuation or recurrence of  dumping of the product under review if antidumping duties 
imposed on it are terminated"767: that is, it relied on those margins in determining that dumping 
was likely to continue or recur.  While Article  11.3 does not require authorities to calculate 
(or otherwise rely upon) dumping margins in a sunset review, when an authority is in a position to 
rely on dumping margins and chooses to rely  on dumping margins under Article  11.3, these must 
conform to the requirements of Article  2.768 Therefore, given that the NTC chose to calculate and 
rely upon dumping margins in determining whether dumping was likely to continue or recur, these 
dumping margins are subject to the requirements of Article  2. 
7.12.2.1.2   Whether the dumping margin that the NTC relied upon for the 
United  Arab  Emirates is inconsistent with Article  2 
7.561.   Having found that, in determining that dumping from the United  Arab Emirates was likely to 
continue or recur, the NTC relied upon a margin of dump ing that was subject to the requirements of 
Article  2, we now examine whether the United  Arab Emirates has established that that dumping 
margin does not conform with the requirements of Article  2. The United  Arab Emirates argues that 
the margin of dumping that the NTC relied upon for the United Arab Emirates was inconsistent with 
Article  2 for the following reasons: (a)  because the NTC constructed normal value when the 
conditions for doing so were not met769 or, in the alternative, because the NTC did not en sure that 
the costs of production it used pertained to the product sold in the United  Arab Emirates770; 
(b) because the NTC established the export price using data from its official import statistics rather 
than data submitted by the investigated exporters771; and (c) because the NTC failed to ensure a 
fair comparison between normal value and export price.772  
7.562.   Below, we find that the NTC constructed normal value without establishing that the 
conditions for doing so were met. Because the resulting margin of dum ping was therefore 
inconsistent with Article  2, the determination that dumping was likely to continue or recur was 
inconsistent with Article  11.3. We therefore do not proceed to examine the 
United  Arab Emirates'  additional arguments regarding the export pr ice and the fairness of the 
comparison between the normal value and the export price.  
7.12.2.1.2.1   Normal value  
7.563.   The NTC constructed a single normal value on the basis of the data submitted by Taghleef 
(Taghleef LLC, Dubai ) and Taghleef SAOC (Taghleef SAOC, Oman ), whic h it then assigned, among 
others, to the United  Arab Emirates.773 The NTC did not explain why it chose to construct normal 
value .  
7.564.   The United  Arab Emirates recalls that normal value can be constructed only in one of the 
three situations set out in Article  2.2, which are: (a)  when there are no sales in the exporting country 
of the like product in the ordinary course of trade; (b)  when sales in the exporting country's  market 
do not permit a proper comparison because of the particular market situation;  and (c) when sales 
 
766 This is without prejudice to the consistency of the NTC's calculations with Article 2, which we 
consider in the following section.  
767 Report on sunset determination, public vers ion, (Exhibit ARE -4), para.  28.7. 
768 See para.  7.544  above.  
769 United Arab Emirates'  first written submission, para.  535. See also United Arab Emirates'  second 
written  submission, paras.  235, 249, and 251; and written opening statement, para.  107. 
770 United Arab Emirates'  first written submission, para.  536; second written submission, para.  250. See 
also United Arab Emirates'  written opening statement, para.  108. 
771 United Arab Emirates'  first written submission, paras.  537-538; second written submission, 
paras.  237 and 250. See also United Arab Emirates'  first written submission, para.  533; opening statement at 
the first meeting of the Panel, para.  78; written opening sta tement, paras.  107 and 109; response to Panel 
question No.  92, para.  15; and comments on Pakistan's  response to Panel question No.  92, p.  11. 
772 United Arab Emirates'  first written submission, para.  537; second written submission paras.  237 
and 250; and wri tten opening statement, para.  109. 
773 Report on sunset determination, public version, (Exhibit  ARE-4) para.  28.4.2; Report on sunset 
determination, (Exhibit  PAK-2 (BCI)), para.  28.4.2; and annex -II. See also NTC's  explanation of sunset 
methodology, (Exhibit  ARE-27 (BCI)), section  4.1. WT/DS538/ R 
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  in the exporting country's  market do not permit a proper comparison because of their low volume. 
The United  Arab Emirates argues that "[t]here is no evidence or explanation [of] which of these 
three situations justified the construction  of normal value", and therefore the NTC was not justified 
in constructing normal value.774  
7.565.   Pakistan responds that "the NTC did not have to explain why it chose to construct the normal 
value proxy … or follow the rules governing when an investigating autho rity may rely on constructed 
normal value"775, because the NTC's  calculation of "likely dumping margins" was not subject to the 
disciplines of Article  2.  
7.566.   We have found above that the NTC relied upon margins of dumping that are subject to the 
requirements o f Article  2. However,  the NTC constructed normal value without establishing the 
existence of any of the three situations in which an authority may construct normal value pursuant 
to Article  2.2. Therefore, the NTC constructed normal value inconsistently wi th Article  2.2. It was on 
the basis of this normal value that the NTC calculated the margin of dumping that it relied on to 
determine that dumping was likely to continue or recur.776 As a result, the NTC's  determination that 
dumping was likely to continue o r recur was inconsistent with Article  11.3.777  
7.567.   The United  Arab Emirates'  alternative argument that the NTC made no attempt "to ensure 
that the costs of production used were those for the product as sold in the United  Arab Emirates and 
not for other markets "778 is premised on us finding that the NTC's  decision to construct normal value 
was justified, and we therefore do not consider it.  
7.12.2.1.2.2   Conclusion on the dumping margin that the NTC relied upon  
7.568.   We have found that in determining that dumping from the United Arab Emirates was likely 
to continue or recur, the NTC relied on a margin of dumping, and that in establishing this margin of 
dumping  the NTC constructed normal value without establishing that the conditions for doing so 
were met. As a result, that margin of dumping is inconsistent with Article  2 and, therefore, the 
determination that dumping was likely to continue or recur, which was based on that margin of 
dumping, is inconsistent with Article  11.3.  
7.569.   Having so found, we do not examine the United  Arab Emirates'  additional arguments 
regarding the export price and the fairness of the comparison between the normal value and the 
export price.  
7.12.2.2   Whether the NTC acted inconsistently with Article  11.3 in finding that the 
stability of export destinations and the existence of exportable  surplus supported its 
determination that dumping was likely to continue or recur  
7.570.   In addition to asserting that the NTC relied on dumping margins that were inconsistent with 
Article  2, the United  Arab Emirates also argues that the NTC's  determination that dumping was likely 
to continue or recur did not otherwise rest on a sufficient factual basis779 and was not adequately 
explained.780  
7.571.   In addition to relying on the dumping margin discussed in the previou s section, the NTC 
considered three other factors as part of its likelihood of dumping analysis781: (a) whether exports 
to Pakistan had continued or stopped after the imposition of duties782; (b) whether the exporters 
 
774 United Arab Emirates'  first written submission, para.  535. See also United Arab Emirates'  second 
written submission, paras.  235, 249, and 251; and written opening statement, para.  107. 
775 Pakistan's  first written submission, p ara. 3.642. See also Pakistan's  response to Panel question 
No. 87, para.  6. 
776 Report on sunset determination, (Exhibit  PAK-2 (BCI)), para.  28.4.2 and table -VI. See also 
ibid. annex -II. 
777 See para.  7.544  above.  
778 United Arab Emirates'  first written submission, para.  536; second written submission, para.  250. See 
also United Arab Emirates'  written opening statement, para.  108. 
779 United Arab Emirates'  first written submi ssion, para.  531. See also ibid. paras.  489-490, 529, 539, 
and 544.  
780 United Arab Emirates'  first written submission, para.  539.  
781 Report on sunset determination, public version, (Exhibit  ARE-4), para.  25. 
782 Report on sunset determination, public version , (Exhibit  ARE-4), section  27.  WT/DS538/ R 
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  developed other export markets after the  imposition of duties783; and (c)  whether the exporters had 
an exportable  surplus of the product under review.784 The United Arab Emirates challenges the 
findings made by the NTC with respect to the second and third of these factors785, arguing that they 
do not support a finding of likelihood of dumping.786 We discuss them in turn, below.  
7.12.2.2.1   The NTC's  reliance on its finding that "major export destinations of the 
exporting countries remained same/similar after imposition of duties"  
7.572.   In assessing whether dumping was  likely to continue or recur, the NTC reviewed the 
investigated countries'  exports to their "major export destinations" in 2012 and 2015, and found 
that their "major export destinations … remained same/similar after imposition of anti -dumping 
duties" .787 
7.573.   According to the United Arab Emirates, "this … confirmed that there was not going to be a 
reason to expect major shifts back towards the Pakistan market if duties were terminated", as it 
indicated that the duties had no impact on export trends.788 The United  Arab Emirates argues that 
the NTC "failed to incorporate this finding in its overall assessment or to explain why this fact did 
not detract from its likelihood determination" .789  
7.574.   Pakistan responds that the stability of the export market suggests that the  "exporters chose 
not to develop new markets for the export volumes previously destined for Pakistan while the 
[anti-]dumping measure was in place", which "in turn, suggests that the production capacity 
previously dedicated to exports to Pakistan – not havin g any alternative outlet market – would 
presumably be available and could easily be used again for exports to Pakistan if the duties were 
removed".790 While this explanation may potentially have been a plausible one, it is not reflected in 
the NTC's  determi nation, or in its separate report, and Pakistan has not pointed to other elements 
of the record showing that this was the NTC's  reasoning. Hence, we are unable to accord any weight 
to this particular explanation.  
7.575.   We note that the NTC did not provide any e xplanation of how its finding that "major export 
destinations … remained same/similar"791 supported, or related to, its final conclusion that dumping 
was likely to continue or recur.  In reaching that conclusion, the NTC merely asserted that it was 
based on the "information and analysis" in the preceding paragraphs.792 Therefore, we find that the 
NTC failed to provide a reasoned and adequate explanation of how its finding that major export 
destinations remained stable  related to its final conclusion that dumpi ng was likely to continue or 
recur if duties were terminated.  
7.12.2.2.2   The NTC's  reliance on its finding of exportable  surplus  
7.576.   The NTC found that the exporting Members concerned had exportable  surplus of the product 
under review and relied on this finding to support its determination that dumping was likely to 
continue or recur.793  
7.577.   We note that the NTC based its finding that the United Arab Emirates, among others, had 
exportable  surplus, on:  
 
783 Report on sunset determination, public version, (Exhibit  ARE-4), section  29. 
784 Report on sunset determination, public version, (Exhibit  ARE-4), section  30. 
785 United Arab Emirates'  first written submission, paras.  541-543; second written submission, 
paras.  238 and 252; response to Pakistan's  written opening statement, paras.  55-56; and comments on 
Pakistan's  response to Panel question No.  93, pp.  13-14. 
786 United Arab Emirates'  first written submission, para.  541; second written submission, para.  238. 
787 Report on sunset determination, public version, (Exhibit  ARE-4), para.  29.3. 
788 United Arab Emirates'  first written submission, para.  541; second written sub mission, para.  238. 
789 United Arab Emirates'  first written submission, para.  541. 
790 Pakistan's  first written submission, para.  3.657. See also ibid. para.  3.591.  
791 Report on sunset determination, public version, (Exhibit  ARE-4), para.  29.3. 
792 Report on suns et determination, public version, (Exhibit  ARE-4), para.  30. See also ibid. para.  31. 
793 Report on sunset determination, public version, (Exhibit  ARE-4), para.  30. WT/DS538/ R 
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  a. a statement from the website of the Taghleef Industries Group, which  we describe in more 
detail below794; and  
b. a table listing the investigated countries'  quantities of exports of the " product group which 
includes the product under review "795 for 2012 and 2015.796 
7.578.   The United  Arab Emirates argues that the NTC's  finding of exportable  surplus was not 
supported by sufficient facts, because it was based on a generic statement on Taghleef's  website to 
the effect that it had grown since its inception in 2006, and on non -specific data on the export trends 
of the i nvestigated countries.797 The United  Arab Emirates also argues that the NTC's  finding of 
exportable  surplus lacked a reasoned and adequate explanation.798 
7.579.   Pakistan responds that the NTC relied on statements from the exporters'  websites "attesting 
to the incr ease in their productive capacity"799 and that the "only reasonable conclusion that could  
be drawn from the statement [from Taghleef's  website] was that Taghleef had increased its capacity 
during the [period of review ]".800 Pakistan further argues that the N TC did not have information on 
exports of BOPP film from the investigated countries and considered that export trends for the 
product group that included BOPP film provided "meaningful information" also with respect to BOPP 
film.801  
7.580.   We begin our analysis b y considering the statements from the website of the Taghleef 
Industries  Group , which includes Taghleef. After indicating that the Taghleef Industries Group was 
"one of the largest global manufacturers" of BOPP film and various other types of film, it read : 
Since its inception, the Ti Group has grown by both acquiring in strategic manufacturing 
entities around the world and investing in new capacities for its organic growth strategy. 
Today, Ti has nine manufacturing facilities on five continents: 2 faciliti es in 
Asia/Middle  East (Dubai, Oman), 3 in Europe (Italy, Hungary and Spain) and one each 
in Australia (Wodonga), Africa (Egypt), USA (Indiana), and Canada (Québec).802 
7.581.   From this, the NTC inferred that Taghleef had increased its installed capacity and there fore 
had exportable  surplus.803 The United  Arab Emirates argues that this statement does not constitute 
positive evidence supporting these inferences.804 The United  Arab Emirates points out, first, that 
Taghleef Industries  Group 's "inception" was in 2006, well before the period of review805 and, second, 
that it has had since its inception only two "two manufacturing 'facilities in Asia/Middle East (Dubai, 
 
794 Report on sunset determination, public version, (Exhibit  ARE-4), para.  30.2. The NTC also r elied on 
statements from the websites of two Saudi Arabian producers. (Ibid. paras.  30.3-30.4). Pakistan takes issue 
with the fact that the United Arab Emirates does not address the statements relating to Saudi Arabia in its 
arguments. (Pakistan's  first wr itten submission, para.  3.664). However, the United Arab Emirates'  challenge is 
limited to anti -dumping measures on BOPP film from the United Arab Emirates. When reviewing the 
NTC's  determination that dumping from the United Arab Emirates  was likely to con tinue or recur, the website 
statements relating to Saudi Arabia are not relevant.  
795 Report on sunset determination, public version, (Exhibit  ARE-4), para.  30.5. (emphasis added)  
796 Report on sunset determination, public version, (Exhibit  ARE-4), para.  30.5 and table -VIII. In 
responding to a question from the Panel, Pakistan indicated that the NTC's  finding of exportable  surplus also 
rested on its separate finding that the exporting countries continued to export BOPP film to Pakistan, which 
meant they had ma intained business links to Pakistan, and could increase exports to Pakistan on relatively 
short notice once the duties were revoked. However, this explanation is not reflected in the NTC's  report. 
(Pakistan's  response to Panel question No.  77). 
797 United Ar ab Emirates'  first written submission, para.  542; second written submission, para.  238; and 
comments on Pakistan's  response to Panel question No.  93, p.  13.  
798 United Arab Emirates'  first written submission, para.  542; second written submission, para.  238; and 
comments on Pakistan's  response to Panel question No.  93, p.  13. 
799 Pakistan's  response to Panel question No.  93, para.  39. 
800 Pakistan'  written opening statement, para.  122. See also ibid. para.  121; Pakistan's  first written 
submission, para.  3.663; an d response to Panel question No.  77. 
801 Pakistan's  response to Panel question No.  77. See also Pakistan's  response to Panel question No.  93, 
paras.  37-38.  
802 Report on sunset determination, public version, (Exhibit  ARE-4), para.  30.2. 
803 Report on sunset det ermination, public version, (Exhibit  ARE-4), paras.  30.2 and 30.  
804 United Arab Emirates'  first written submission, para.  543; second written submission, paras.  238 
and 254. 
805 United Arab Emirates'  first written submission, para.  543; second written submiss ion, para.  254. See 
also United Arab Emirates'  response to Pakistan's  written opening statement, para.  55. WT/DS538/ R 
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  Oman)", and has not added any other facilities in the countries subject to the  anti-dumping 
measures.806 
7.582.   In our view, it is not clear from the statement quoted by the NTC to what extent, when, and 
in which countr ies the Taghleef Industries Group increased its production capacity. Therefore, in the 
absence of further information or ex planation, this statement does not constitute positive evidence 
supporting the NTC's  finding that the United Arab Emirates had exportable  surplus.807  
7.583.   In answer to a question we posed during the written exchange that replaced the second 
substantive meeting,  Pakistan pointed out that the questionnaire replies of cooperating exporters 
contained data on a number of variables including production capacity, and indicated that the NTC 
relied on those data in reaching its finding of exportable surplus.808 We note th at the Report on 
sunset determination refers generically to "information" submitted by "cooperating exporters ", 
including  "Taghleef Dubai"809, but only discusses and appears to rely upon the web site statements 
referred to above.810 
7.584.   We now turn to the data on exports in 2012 and 2015. The NTC listed the following data on 
the investigated countries'  exports of a " product group which includes the product under review … 
before and after the imposition of antidumping duties"811: 
Table -VIII 
Export of the Expo rting Countries (MT)  
Exporting country  2012  2015  
China  299,100  358,763  
Oman  36,569  44,284  
[Kingdom of 
Saudi Arabia ] 80,375  84,069  
UAE 58,103  47,377  
Source: www.trademap.org  
7.585.   The United  Arab Emirates argues that because the data related to a broader product group 
than BOPP film it did not constitute positive evidence on export trends for BOPP film812, and that 
there is no explanation as to how this data supported the finding that there was an exportable  
surplus of BOPP film and the ultimate con clusion that dumping was likely to continue or recur.813  
7.586.   We note that the NTC indeed stated in its report that data for BOPP film alone were not 
available, and that it therefore relied on "broadly categorized" data for "the product group [that] 
includes" B OPP film, obtained from the International Trade Centre (www.trademap.org).814  
7.587.   Pakistan argues that in the absence of more precise data "the NTC concluded that the trends 
observed with respect to the six -digit level provided meaningful information also with  respect to the 
eight-digit level sub -products"815, but has not explained why this is the case, nor is such an 
explanation found in the report.   
 
806 United Arab Emirates'  response to Pakistan's  written opening statement, para.  55. 
807 Report on sunset determination, public version, (Exhibit  ARE-4), para.  30. 
808 Pakistan's response to Panel question No. 93, para. 35.  
809 Report on sunset determination, public version, (Exhibit  ARE-4), paras. 30.1 -30.2. 
810 See also United Arab Emirates' comments on Pakistan's response to Panel question No. 93.  
811 Report on sunset determination, public version, (Exhibit  ARE-4), para.  30.5 and table -VIII. 
(emphasis added)  
812 United Arab Emirates'  first written submission, para.  542. See also United Arab Emirates'  second 
written submission, paras.  238 and 253; and com ments on Pakistan's  response to Panel question No.  93, 
p. 13. 
813 See e.g. United Arab Emirates'  second written submission, para.  253. See also United Arab Emirates' 
first written submission, para.  541. 
814 Report on sunset determination, public version, (Exhi bit ARE-4), para.  30.5. See also 
ibid. para. 29.1. 
815 Pakistan's  response to Panel question No.  77, p.  33. WT/DS538/ R 
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  7.588.   As already noted, in answer to a question we posed during the written exchange that 
replaced the second substant ive meeting, Pakistan indicated that in reaching its finding of exportable 
surplus the NTC also relied upon certain data in the questionnaire replies of cooperating exporters, 
which included data on export sales.816 However, we note that in discussing the "information on 
exports of the product under review from the Exporting Countries" as part of its analysis of 
exportable surplus, the NTC relied exclusively on the data from the International Trade Center, 
pertaining to a broader product grou p than BOPP film.817 
7.589.   We therefore find that by basing its findings on data for a broader product group than the 
product under review, and in the absence of any additional explanation of why t hose data were  
nonetheless representative of trends for BOPP film,  the NTC failed to rely on positive evidence.  
7.590.   To recall, the United  Arab Emirates also argues that, in any event, there is no explanation 
of how the data supported the finding that there was exportable  surplus and the ultimate conclusion 
that dumping was likely to continue or recur.818 
7.591.   Pakistan submits that the data relied on by the NTC "indicates that every country that was 
subject to the original anti -dumping duties, except for the UAE, increased its exports from the 
beginning of the [period of review ] (2012) to the end of the [period of review ] (2015)" .819 Pakistan 
further argues that "[t]he NTC observed that even though exports increased throughout the [period 
of review] , they increased to existing markets  of the exporting countries" .820 According to Pakis tan, 
the fact that the "exporters did not develop new markets to which they could export the increased 
quantities of BOPP Film they had at their disposal" supported the NTC's  finding "that there was an 
increased availability in these countries of the inves tigated product for export sales" .821  
7.592.   We note that we have been offered no record evidence that NTC explained how the data set 
out in table -VIII supported its finding that there was exportable  surplus and therefore that dumping 
was likely to continue or re cur, but rather merely cited that data. Therefore, we are unable to 
consider Pakistan's  explanations on the significance of that data , made in the context of this dispute,  
in assessing the NTC's  explanation of its findings.822 
7.593.   We therefore also find that th e NTC failed to explain how the data it relied upon supported 
its finding that there was exportable  surplus and therefore that dumping was likely to continue or 
recur.  
7.12.2.3   Conclusion under Article  11.3 on the NTC's  likelihood of dumping determination  
7.594.   As summa rized above, the NTC relied on four factors in its analysis of likelihood of 
continuation or recurrence of dumping.823 We have found deficiencies in the NTC's  analysis with 
respect to the three of those four factors, as discussed in the preceding sections. First, we have 
found that the NTC's  calculation of dumping margins did not conform with the requirements of 
Article  2 and, therefore, was inconsistent with Article  11.3.824 Second, we have found that the NTC 
failed to provide any explanation of how its find ing that major export destinations of the investigated 
countries remained the same or similar related to its conclusion that dumping was likely to continue 
or recur.825 Third, we have found that the NTC's  finding of exportable  surplus was not based on 
 
816 Pakistan's response to Panel question No. 93, para. 35.  
817 Report on sunset determination, public version, (Exhibit  ARE-4), para. 30.5. See also 
United Arab Emirates' comments on Pakistan's response to Panel question No. 93.  
818 See e.g. United Arab Emirates'  first written submission, para.  542; and second written submission, 
para. 253. See also United Arab Emirates'  first written submission, para.  541. 
819 Pakistan's  response to Panel question No.  93, para.  38. (emphasis original)  
820 Pakistan's  response to Panel question No.  93, para.  38 (emphasis original). We note that Pakistan 
appears to be referring to the NTC's  finding (in a different section  of the re port) that the "major export 
destinations of the exporting countries remained same/similar after imposition of anti -dumping duties". (Report 
on sunset determination, public version, (Exhibit  ARE-4), para.  29.3).  
821 Pakistan's  response to Panel question No.  93, para.  38.  
822 Panel Reports,  US – Supercalendered Paper , para.  7.6; Korea  – Pneumatic  Valves  (Japan ), 
para. 7.10; EU – PET ( Pakistan ), para.  7.7; EU – Fatty Alcohols (Indonesia) , para.  7.8; Argentina – Ceramic  
Tiles, para.  6.27; and  Argentina – Poultry Anti -Dumping Duties , para.  7.48. 
823 See para.  7.571  above.  
824 See para.  7.568  above.  
825 See para.  7.575  above.  WT/DS538/ R 
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  positive evidence826, and also that the NTC failed to explain how the export data it relied upon 
supported its conclusion that dumping was likely to continue or recur.827  
7.595.   We therefore conclude that the NTC's  determination that dumping was likely to continue or 
recur is inconsistent with Article  11.3 of the Anti -Dumping  Agreement.  
7.12.3   Whether the NTC's  likelihood of injury determination is inconsistent with 
Article  11.3 
7.596.   The United  Arab Emirates argues that the NTC's  determination that injury was likely to recur 
was based on unwarranted inferences and assumptions, i.e.  that the NTC failed to reach a reasoned 
determination based on a sufficient factual basis, and to establish that the recurrence of injury was 
likely rather than merely possible.828  
7.597.   In particular, the United  Arab Emirates argues that the NTC acted inconsistently with 
Article  11.3 in determining that if duties were terminated, it was likely that imports would increase, 
domestic production would decrease, the market share of the domestic  industry would decrease, 
and the domestic industry would suffer price undercutting and price depression. We examine each 
of these arguments in turn (sections 7.12.3.1  to 7.12.3.3 ), and we find that the 
United  Arab Emirates has established that the NTC's  determination of likelihood of injury is 
inconsistent with Pakistan's  obligat ions under Article  11.3. 
7.598.   The United  Arab Emirates also argues that the NTC's  likelihood of injury determination was 
inconsistent with Article  11.3 on a number of other grounds. However, having already found multiple 
flaws in the NTC's  analysis, we do not p roceed to examine these further grounds put forward by the 
United  Arab Emirates (section  7.12.3.4 ). 
7.12.3.1   Likely volume of imports and effects on domestic production  
7.599.   The NT C found that after the imposition of anti -dumping duties, there had been a significant 
decline in imports from the countries subject to measures, imports from other sources remained in 
the same range, and domestic production had significantly increased . From this, the NTC concluded 
that if duties were terminated, imports of the product under review were likely to increase, which in 
turn would likely "affect adversely" the domestic production of the like product.829  
7.600.   The United  Arab Emirates argues that these  conclusions of the NTC were mere assertions, 
not supported by sufficient facts or analysis, and that the NTC did not establish that the increase in 
imports and reduction in domestic production were likely, rather than merely possible.830  
7.601.   Pakistan responds  that the "NTC reasoned that import volumes had declined significantly 
after the introduction of the anti -dumping duties in 2013 and that, therefore, it was the anti -dumping 
duties that triggered the rapid decline of imports" .831 Pakistan adds that the NTC had found 
elsewhere that "after duty removal, exporters would seek to regain market share by lowering their 
prices"832, and concluded that this  would lead to  an increase in import volumes833, which in turn 
would result in a contraction in domestic sales and domestic production.834 According to Pakistan, 
 
826 See paras. 7.582  and 7.589  above.  
827 See para.  7.593  above.  
828 United Arab Emirates'  first written submission, paras.  529-530, 546, 548, 5 50, and 560. See also 
United Arab Emirates'  opening statement at the first meeting of the Panel, para.  79; second written 
submission, paras.  239-240; written opening statement, paras.  110 and 112; and response to 
Pakistan's  written opening statement, para.  49.  
829 Report on sunset determination, public version, (Exhibit  ARE-4), paras.  34.1-34.4. 
830 United Arab Emirates'  first written submission, para.  551; second written submission, para.  240. See 
also United Arab Emirates'  opening statement at the first meet ing of the Panel, para.  79; second written 
submission, para.  246; and written opening statement, paras.  112 and 119.  
831 Pakistan's  first written submission, para.  3.679.  
832 Pakistan's  first written submission, para.  3.679 (referring to Report on s unset deter mination, 
(Exhibit  PAK-2 (BCI)), para.  36.1.2).  
833 Pakistan's  first written submission, para.  3.680.  
834 Pakistan's  first written submission, para.  3.680.  WT/DS538/ R 
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  the United  Arab Emirates has not demonstrated that this examination did not meet the standard of 
Article  11.3.835 
7.602.   We recall that, under Article  11.3, an authority must determine that the continuation or 
recurrence of injury is likely, and not merely possible, and that this determination must be based on 
positive evidence and not on assumption.836 
7.603.   We note that the NTC reasoned that, since after the imposition of anti -dumping duties 
imports had declined and dome stic production had increased, it was likely that the opposite would 
happen if the duties were removed.837 While the fact that imports declined significantly and domestic 
production increased significantly after the imposition of the anti -dumping duties sug gests that it is 
possible that the opposite could happen upon removal of the duties, the NTC did not explain why it 
considered these developments to be likely to occur  (and not just possible) . Given the absence of 
any further explanation in this regard, we  are of the view that the NTC's  finding that "termination of 
antidumping duties will likely result in an increase in imports of the product under review which will 
affect adversely … the productions of the domestic like product"838 was essentially conclusor y in 
nature.  We therefore find that the NTC failed to provide a reasoned and adequate explanation to 
support its finding that imports of BOPP film would likely increase in the event anti -dumping duties 
on these imports were to be removed.  
7.604.   We have also not ed Pakistan's  argument that the NTC relied on  its conclusion reached 
elsewhere that exporters would seek to regain market share by lowering their prices , as a basis for  
finding a likely increase in dumped imports .839 However, the Report on sunset determinat ion 
indicates th at the NTC's reasoning was the reverse:  that is, the report indicates that the NTC relied 
on its finding that imports  from the investigated countries were likely to increase as a basis for  
finding that exporters from the investigated countr ies were likely to lower their prices .840 Moreover, 
we find below that that the NTC's  conclusion that the investigated exporters would lower their prices 
was also not supported by a reasoned and adequate explanation.841 
7.12.3.2   Likely effects on market share  
7.605.   The NTC found that after the imposition of anti -dumping duties, the market share of the 
domestic industry had increased, the market share of the dumped imports had decreased 
significantly, and the market share of imports from other sources had remained stable.842 On that 
basis, the NTC  concluded that expiry of the anti -dumping duties would likely lead to an increase in 
imports of the product under review and therefore in the market share of the dumped imports, and 
"therefore" would "likely affect adversely" the domestic industry's  marke t share.843 
7.606.   The United  Arab Emirates argues that these conclusions are not supported by analysis or 
evidence844, and that the NTC did not establish that the effects in question were likely rather than 
merely possible.845 The United  Arab Emirates also points o ut that the NTC determined that the 
market share of the domestic industry was in the range of 94% to 97% during the period of 
 
835 See e.g. Pakistan's  first written submission, para.  3.681.  
836 See para.  7.543  above.  
837 See para.  7.599  above, summarizing Report on sunset determination, public version, 
(Exhibit  ARE-4), paras.  34.1-34.4. 
838 Report on sunset determination, public version, (Exhibit  ARE-4), para. 34.4.  
839 See para.  7.601  above. Pakistan's  first written submission, para.  3.679 (referring to Report on 
sunset determination, (Exhibit  PAK-2 (BCI)), para.  36.1.2). See also  Pakistan's  first written submission, 
para. 3.680.  
840 Report on sunset determination, public version, (Exhibit  ARE-4), para.  36.1.2.  
841 See paras.  7.614 -7.615  below.  
842 Report on sunset determination, public version, (Exhibit  ARE-4), paras.  35.1-35.3. 
843 Report on sunset determination, public version, (Exhibit  ARE-4), para.  35.4. 
844 United Arab Emirates'  first written submission, para.  552; second written submission, para.  240. 
845 United Arab Emirates'  first written submission, para.  552; second written submission, para.  240. WT/DS538/ R 
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  review846, and argues that the NTC failed to ascertain the probability of recurrence of material injury 
in light of this "quasi -monopoly situation".847  
7.607.   Pakistan responds that the domestic industry was already experiencing financial losses and 
"given the price -based competition common to commodity products like BOPP, no particular level of 
market share protects an industry from aggress ive price competition from exporters"848, and 
therefore "the domestic industry's  high market share in no way insulates [it] from sudden potential 
injury".849 We note that this reasoning is not reflected in the NTC's  determination.  
7.608.   We further  note that simila r to its findings on imports and domestic production850, the NTC 
appears to have assumed that, because dumped imports had decreased and the market share of 
the domestic industry had increased following the introduction of the anti -dumping duties, the 
opposi te would happen upon removal of the duties. We therefore find that the NTC did not provide 
a reasoned and adequate explanation of why these developments were likely to occur , and not just 
possible .851 
7.609.   We do not examine the United  Arab Emirates'  additional a rgument that the NTC should also 
have taken into account the large market share of the domestic industry.  
7.12.3.3   Likely price effects  
7.610.   The NTC's  analysis indicates that during the period under review there had been no 
undercutting and no price depression, but that  both would likely occur if duties were removed.852  
7.611.   The United  Arab Emirates argues that the NTC was merely making assumptions and did not 
establish, based on facts and analysis, that it was likely that price undercutting and price depression 
would occur.853  
7.612.   Pakistan responds that the NTC's  reasoning had been that if duties were removed, "the 
exporters'  logical strategy to restore their previous market share would be to reduce their prices, at 
the expense of the domestic industry", and for this reason price undercutting and depression were 
likely.854 Pakistan argues that this was reasonable given that for "a commodity like BOPP, 
competition is overwhelmingly price -based"855, and that the NTC had not made this reasoning explicit 
in its determination only b ecause all interested parties were aware that the market for BOPP film is 
a commodity market.856 Pakistan adds that neither Taghleef nor the United Arab Emirates had 
offered an "alternative 'forward looking analysis'".857 
7.613.   As regards price undercutting, we no te that the NTC found that during the period of review, 
the "landed cost of the product under review was above the price of the domestic like product even 
without incidence of the antidumping duties".858 It then asserted that, "however", if duties were 
 
846 United Arab Emirates'  first written submission, para.  531. See also United Arab Emirates'  first written 
submission, paras.  552-553 and 558; opening statement at the first meeting of the Panel, para.  81; 
second  written submission, paras.  240 and 256; and written opening statement, pa ra. 111. 
847 United Arab Emirates'  first written submission, paras.  552-553 and 558; second written submission, 
para. 240. See also United Arab Emirates'  first written submission, para.  531; opening statement at the 
first meeting of the Panel, para.  81; seco nd written submission, para.  256; and written opening statement, 
para. 111.  
848 Pakistan's  first written submission, para.  3.683.  
849 Pakistan's  first written submission, para.  3.683.  
850 See paras.  7.599 , 7.602 , and 7.603  above.  
851 See para.  7.543  above.  
852 Report on sunset determination, public version, (Exhibit  ARE-4), paras.  36.1.1 -36.2.3.  
853 United Arab Emirates'  first written submission, para.  554; opening statement at the first meeting of 
the Panel, para.  80; and second written submission, paras.  240 and 247.  
854 Pakistan's  first written submission, para.  3.599.  
855 Pakistan's  first written submission, para.  3.687.  
856 Pakistan's  second written submission, para.  2.324.  
857 Pakistan's  first written submission, para.  3.688.  
858 Report on sunset determination, public version, (Exhibit  ARE-4), para.  36.1.2. When indexed , taking 
the applicant's  price in 2009 as 100, the landed cost of the product under review, after deducting the 
anti-dumping duty, compared with the prices of the applicant as follows: 177.40 (product under review) 
and 144.63 (applicant) from April 2012 to March 2013;  202.82 (product under review) and 158.19 (applicant) 
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  removed, the volume of dumped imports was likely to increase, and therefore the price of dumped 
imports was likely to decrease for those imports "to get their share in the market", and there was 
thus "a likelihood of price undercutting".859 
7.614.   Thus, we note that faced with evidence that the price of the product under review was 
considerably higher than that of the domestic industry throughout the period of review, the NTC 
(a) referred to its earlier assumption that upon removal of the duties the imports of th e product 
under review would likely increase860; (b) assumed that the sources of the product under review 
would decrease their prices to regain market share ; and (c)  assumed that the result would be price 
undercutting, i.e.  that those prices would be reduce d to a level lower than the applicant's  price.  
7.615.   We recall that to extend duties under Article  11.3, a Member must determine, based on 
positive evidence, that injury is likely to continue or recur, and not merely that it is possible, and 
that this requires a  reasoned determination based on positive evidence, and not solely on 
assumptions. Instead, every step in the reasoning that led the NTC to conclude that the removal of 
the duties was likely to lead to price undercutting appears to have been premised on as sumption. 
We therefore find that the NTC failed to provide a reasoned and adequate explanation of why it 
considered that price undercutting was likely to occur if duties were removed.  
7.616.   As regards price depression, the NTC found that during the period of rev iew there had been 
an overall increase861 in the ex -factory price of the domestic like product862, and asserted that this 
was due to the absence of price pressure from dumped imports.863 The NTC then asserted that, 
"however", as the volume of dumped imports w as likely to increase if duties were removed, there 
would be pressure on the domestic industry to reduce prices, and therefore price depression was 
likely to occur.864  
7.617.   Thus, starting from evidence that the price of the like domestic product had increased,  the 
NTC asserted that this was due to the absence of price pressure from dumped imports; it then relied 
again on its earlier assumption that imports of the product under review would likely increase, and 
assumed that the domestic industry would likely redu ce its price to retain market share, leading to 
price depression.  
7.618.   We therefore observe that, in assessing the likelihood of price depression, the NTC again 
appears to have relied on assumptions about how the market would develop, without grounding 
them in  positive evidence, and without explaining why the developments it foresaw were likely, 
rather than merely possible. We therefore find that the NTC failed to provide a reasoned and 
adequate explanation to support its conclusions on the likelihood of price undercutting and price 
depression.  
7.619.   With regard to both price undercutting and price depression, we note Pakistan's  explanation 
that the NTC's  reasoning is explained by the fact that BOPP film is a commodity product.865 Assuming 
that this was the NTC's  own r easoning, the fact that a product is a commodity does not, alone, allow 
an authority to conclude that price undercutting or price depression is likely to occur based only on 
a series of assumptions.  
7.12.3.4   Other aspects of the determination of likelihood of injur y 
7.620.   The United  Arab Emirates also argues that the NTC acted inconsistently with Article  11.3 
because it found that the expiry of the duties was likely to lead to recurrence of injury, despite the 
 
from April 2013 to March 2014; 203.39 (product under review) and 156.50 (applicant) from April 2014 to 
March 2015. (Report on sunset determination, public version, (Exhibit  ARE-4), para.  36.1.1 and tabl e-IX). 
859 Report on sunset determination, public version, (Exhibit  ARE-4), paras.  36.1.2 -36.1.3.  
860 See paras.  7.599  and 7.603  above.  
861 Paragraph 36.2.2 of the Report on sunset determination mistakenly refers to a "decrease". 
(Report  on sunset determination, public version, (Exhibit  ARE-4), para.  36.2.2; compare with ibid. table -X). 
862 Report on sunset determination, public version, (Exhibit  ARE-4), para.  36.2.2. When indexed, taking 
the applicant's  ex-factory price in 2009 as 100, the applicant's  ex-factory price developed as follows: 
144.63  from Apri l 2012 to March 2013; 158.19 from April 2013 to March 2014; and 156.50 from April 2014 to 
March  2015. (Report on sunset determination, public version, (Exhibit  ARE-4), para.  36.2.1, table -X). 
863 Report on sunset determination, public version, (Exhibit  ARE-4), para.  36.2.2.  
864 Report on sunset determination, public version, (Exhibit  ARE-4), paras.  36.2.2 -36.2.3.  
865 See para.  7.612  above.  WT/DS538/ R 
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  fact that the domestic industry had more than doubled its prod uction capacity during the period of 
review866 and therefore any injury it was suffering was self -inflicted.867 Pakistan responds that an 
investigating authority is not precluded from taking into account financial harm arising from capacity 
utilization868, and that provided that there is a likelihood of injury from imports after the removal of 
the duties, "it does not matter that other factors, current or past, may also be part of the reason 
why injury would likely recur or continue" .869 
7.621.   Further, the United  Arab Emirates also challenges other aspects of the determination of 
likelihood of injury, inter alia  arguing that the NTC considered that every factor that had developed 
positively during the period of review would deteriorate, and that factors that had dev eloped 
negatively would also be negatively affected.870  
7.622.   However, having already found multiple flaws in the NTC's  determination that injury was 
likely to recur, we do not proceed to examine these additional arguments.  
7.12.3.5   Conclusion under Article  11.3 on the N TC's likelihood of injury determination  
7.623.   We thus conclude that the NTC's  determination that injury was likely to recur is inconsistent 
with Pakistan's  obligations under Article  11.3, because the NTC based its findings that expiry of the 
duties was likely to  lead to an increase in volume of imports, a decrease in domestic production, a 
decrease in the domestic industry's  market share, price undercutting, and price depression, on a 
series of assumptions that were not grounded in positive evidence, and failed t o provide reasoned 
and adequate explanations of why the developments it foresaw were likely to occur, rather than 
merely possible.  
7.12.4   Whether the sunset review determination is inconsistent with Article  11.3 as a 
consequence of the inconsistencies in the orig inal determination  
7.624.   The United  Arab Emirates also argues that the sunset review determination of 
1 December  2016 is inconsistent with Article  11.3871 because the determination on the basis of which 
anti-dumping duties on BOPP film were imposed in the first p lace was itself inconsistent with the 
Anti-Dumping  Agreement.872 Pakistan responds that inconsistencies in the original determination do 
not automatically result in the sunset review determination being inconsistent with Article  11.3873, 
and that in any event the United  Arab Emirates has failed to "articulate any cogniz able claim under 
Article  11.3" in this regard.874  
 
866 The NTC found t hat "the installed production capacity of the domestic industry increased 
considerably by 140  percent above the original capacity after imposition of antidumping duties", and 
"[c]urrently the installed production capacity of domestic industry is much more than domestic demand of the 
BOPP Film". (Report on sunset determination, public version, (Exhibit  ARE-4), para.  37.2; see also 
ibid. table-XII). 
867 United Arab Emirates'  first written submission, paras.  556-557. See also 
United  Arab Emirates'  opening statem ent at the first meeting with the Panel, para.  82; second written 
submission, paras.  240, 257, 259, and 261; written opening statement, paras.  111 and 120; and response to 
Pakistan's  written opening statement, paras.  49-52.  
868 Pakistan's  first written submission, para.  3.685. See also Pakistan's  second written submission, 
para. 2.329; and written opening statement, para.  124. 
869 Pakistan's  second written submission, para.  2.330. See also Pakistan's  written opening statement, 
para. 125.  
870 United Arab Emirates'  first written submission, para.  555; opening statement at the first meeting of 
the Panel, para.  7; and second written submission, para. 240. See also United Arab Emirates'  first written 
submission, paras.  529, 548, 550 -551, 554 and 559 -560; second written submission, para.  241; and written 
opening statement, para.  112. 
871 The United Arab Emirates'  argument that inconsistencies in the original determination also render the 
sunset review determination inconsistent with the Anti -Dumping  Agreement is mainly made in connection with 
Article  11.1. However, as indicated in section  7.12.5 , we exercise judicial economy on the 
United Arab Emirates'  claim that the sunset review determination is inconsistent with Article  11.1. 
872 United Arab Emirates'  first written submission, paras.  487-488 and 527; opening statement at the 
first meeting of the Panel, para.  73; second written submissio n, paras.  231-232; written opening statement, 
para. 105; and response to Pakistan's  written opening statement, para.  45.  
873 Pakistan's  first written submission, paras.  3.622, 3.625, 3.627, and 3.632; written opening 
statement, paras.  102-104. See also Paki stan's  second written submission, paras.  2.305 -2.306.  
874 Pakistan's  first written submission, para.  3.631. See also ibid. paras.  3.618 and 3.630.  WT/DS538/ R 
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  7.625.   Having already found that the sunset review determination is inconsistent with Article  11.3 
on multiple grounds , we do not proceed to examine this additional ground for inconsistency put 
forward by the Unit ed Arab Emirates.  
7.12.5   Judicial economy under Article  11.1 
7.626.   We have found that the United  Arab Emirates has established that the sunset review 
determination is inconsistent with Article  11.3 on a number of grounds. On the basis of some of the 
same grounds875, the United Arab Emirates also claims that the sunset review determination is 
inconsistent with Article  11.1. 
7.627.   We have already found that the sunset determination is inconsistent with Article  11.3, and 
we do not consider that these additional findings sought b y the United  Arab Emirates under 
Article  11.1 are necessary to resolve the dispute.876 We therefore exercise judicial economy on the 
United  Arab Emirates'  claim under Article  11.1. 
7.13  Sunset review: Article  11.4 of the Anti -Dumping  Agreement  
7.628.   The NTC initiated a sunset review of the anti -dumping measures on BOPP film from Pakistan 
on 4 August  2015 and concluded it on 1  December  2016, i.e. almost 16  months later.877 Pakistan 
explains, and the NTC stated in its Report on sunset determination, that this was because domestic 
judicial proceedings had led to the suspension of all work of the NTC for a number  of months 
in 2016.878 
7.629.   Specifically, following litigation in unrel ated anti -dumping proceedings, on 15  March  2016879, 
the Lahore High Court held that one member of the NTC did not meet the qualification requirements 
set forth in Pakistani law. The Lahore High Court therefore ordered the suspension of the proceedings 
in the context of which the domestic legal challenge had been brought.880 The NTC decided, "by 
analogy", to suspend all pending anti -dumping proceedings until the defect in its composition was 
cured, i.e. until 5  September  2016.881  
7.630.   The United  Arab Emirates  argue s that the NTC thus acted inconsistently with the 
second  sentence of Article  11.4 of the Anti -Dumping  Agreement, because it took more than 
12 months to conclude the sunset review, in the absence of abnormal circumstances that justified 
 
875 These grounds are: that because the original determination was inconsistent with the 
Anti-Dumping  Agreement, the sunset review determination extending the duties is inconsistent with 
Article  11.1 (United Arab Emirates'  first written submission, paras.  487-488 and 524 -528; opening statement 
at the first meeting of the Panel, paras.  73 and 77; second written submis sion, paras.  231-233 and 244 -245; 
written opening statement, paras.  105 and 114; and response to Pakistan's  written opening statement, 
paras.  45-48); and that the NTC relied on a dumping margin that was inconsistent with Article  2 
(United  Arab Emirates'  first written submission, para.  534).  
876 See para.  7.49 above.  
877 Notice of initiation of sunset review, (Exhibit  ARE-30); Notice of conclusion of sunset review, 
(Exhibit  ARE-3). The NTC adopted its Report on sunset determination three days before issuing the Notice of 
conclusion, on 28  November  2016. (Report on sunset determination, public version, (Exhibit  ARE-4)). 
878 Pakistan's first written submission, paras.  3.695, 3.715, and 3.726; Report on sunset determination, 
public version, (Exhibit  ARE-4), paras.  3-4.  
879 The parties disagree as to the date of the judgment. Acc ording to the United Arab Emirates, the date 
of the judgment was 15  March  2016, whereas Pakistan argues it was 27  April 2016. (United Arab Emirates' 
response to Pakistan's written opening statement, para.  59; comments on Pakistan's response to Panel 
questi on No. 94, pp.  14-15; Pakistan's response to Panel question No. 94, paras.  42-44; see also Pakistan's 
response to Panel question No. 94, paras.  43-44). We note that in its own Report on sunset determination, the 
NTC indicated that the judgment was dated 15  March  2016. We further note that the NTC considered that the 
time during which the work of the NTC was suspended because of the judgment was to be considered an 
"injunction period" that extended the statutory time -limit for the sunset review under Pakista ni law, and that 
the total extension thus granted (20  January  2017 instead of 3  August  2016) totalled 170  days, which is 
almost exactly the period between 15  March  2016 and 5  September  2016 (173 days); if the NTC had 
considered the date of the judgment to be 27 April 2016 rather than 15  March  2016, it would not be possible to 
explain the length of the extension. (Report on sunset determination, public version, (Exhibit  ARE-4), 
paras.  3-4). We thus refer to 15  March  2016 as the date of the judgment. In any e vent, the precise date of the 
judgment does not affect our ultimate findings.  
880 Report on sunset determination, public version, (Exhibit ARE -4), para.  3; Judgment of Lahore High 
Court, (Exhibit  PAK-22). 
881 Report on sunset determination, public version, (E xhibit  ARE-4), para.  4. WT/DS538/ R 
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  doing so, and withou t providing a reasoned and adequate explanation of the abnormal circumstances 
warranting the delay.882 Further, the United Arab Emirates  argues that, for the same reasons, the 
NTC acted inconsistently with the requirement to carry out reviews "expeditiously ", also set forth in 
the second  sentence of Article  11.4.883  
7.631.   Pakistan responds that Article  11.4 requires sunset reviews to be completed " normally " 
within 12  months, and that the judgment leading to the suspension of all the work of the NTC was 
an abnormal  circumstance, with the consequence that the NTC was allowed to take more than 
12 months to conclude the sunset review.884 Pakistan adds that Article  11.4 does not contain the 
separate explanation requirement that the United  Arab Emirates  reads into it885, and also that, to 
the extent the United  Arab Emirates  is seeking to establish a separate inconsistency with the 
requirement to carry out reviews "expeditiously", the United  Arab Emirates  has failed to make a 
prima facie case in that regard.886 
7.632.   Below, we firs t set out the applicable requirements of Article  11.4 of the 
Anti-Dumping  Agreement (section  7.13.1 ). We then apply those requirements to the facts of this 
case to assess whether Pakistan acted inconsistently with Article  11.4 (section  7.13.2 ), and we 
conclude that it did (section  7.13.3 ). 
7.13.1   The applicable requirements of Article  11.4 
7.633.   The second sentence of Article  11.4 provides that any review conducted under Article  11 
"shall be carried out expeditiously and shall normally  be concluded within 12  months of the date of 
initiation of the review".   
7.634.   Thus, this provision requires authoritie s to carry out reviews under Article  11 "expeditiously", 
and to conclude them "normally … within 12  months" from initiation.   
7.635.   The ordinary meaning of "expeditiously" includes "in an expeditious manner; speedily, with 
expedition"887, and in turn the ordinary  meaning of "expeditious" includes "speedily performed".888 
Hence, the first clause of the second sentence of Article  11.4 provides that investigating authorities 
must carry out reviews under Article  11 "in an expeditious manner", "speedily".  
7.636.   The second cla use of the second sentence of Article  11.4 lays down a specific timeframe for 
completion of reviews, i.e. 12  months, but qualifies it with the term "normally". The ordinary 
meaning of this term is "under normal or ordinary conditions; as a rule, ordinarily "889 and, in turn, 
the ordinary meaning of "normal" includes "constituting or conforming to a type or standard; regular, 
usual, typical; ordinary, conventional" .890 
 
882 United Arab Emirates' first written submission, paras.  563, 572 -577, and 587; opening statement at 
the first meeting of the Panel, para.  83; second written submission, paras.  264 and 266; written opening 
statement, paras.  123 and 125; and response to Pakistan's written opening statement, para.  57.  
883 United Arab Emirates' first written submission, paras.  574 and 587; opening statement at the 
first meeting of the Panel, para.  83; second written submission, paras.  265 and 277 -278; wr itten opening 
statement, para.  124; and response to Pakistan's written opening statement, para.  57. 
884 See e.g. Pakistan's first written submission, paras.  3.696 -3.697, 3.713 -3.714, and 3.726 -3.727; 
second written submission, paras.  2.335 and 2.342; and res ponse to Panel question No. 94, para.  46. 
885 Pakistan's first written submission, para.  3.725. See also Pakistan's response to 
United  Arab Emirates' written opening statement, para.  84. 
886 Pakistan's first written submission, para.  3.724; written opening sta tement, para.  128. See also 
Pakistan's  first written submission, paras.  3.722 -3.723.  
887 Oxford Dictionaries online, definition of "expeditiously" 
https://www.oed.com/vie w/Entry/66493?redirectedFrom=expeditiously#eid  (accessed 8  October  2020), adv. 
888 Oxford Dictionaries online, definition of "expeditious" 
https://www.oed.com/view/Entry /66492?redirectedFrom=expeditious#eid  (accessed 8  October  2020), adj., 
meaning  1. 
889 Oxford Dictionaries online, definition of "normally" 
https://www.oed.com/view/Entry/1 28277?redirectedFrom=normally#eid  (accessed 8  October  2020), adv., 
meaning  2. 
890 Oxford Dictionaries online, "normal" 
https://www.oed.com/view/Entry/128269?redirectedFrom=n ormal#eid  (accessed 8  October  2020), adj., 
meaning  A.I.1.a.  WT/DS538/ R 
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  7.637.   Therefore, the use of the term "normally" in the second sentence of Article  11.4 indicates 
that there are certain conditions under which the 12 -month deadline may be exceeded ; such 
conditions are those that are not "normal", i.e. not conforming to a standard, not regular, usual, 
typical , or ordinary.   
7.638.   The Appellate Body and panels in past disputes  have similarly construed the use of the term 
"normally", as it appears in other provisions of the Anti -Dumping  Agreement891 and other 
WTO instruments892, to indicate that a rule qualified by this term admits of derogation under 
circumstances that are not "n ormal or ordinary".893  
7.639.   Pakistan points out that other provisions in the Anti -Dumping  Agreement lay down a 
time-limit that applies as a rule, while providing for some flexibility.894 Article  5.10 provides that 
original investigations "shall, except in specia l circumstances, be concluded within one year, and in 
no case more than 18  months". Articles  9.3.1 and 9.3.2 provide for the determination of final liability 
for payment of anti -dumping duties, and refunds, to take place "normally within 12  months, and in 
no case more than 18  months, after … a request", with an express exception in the event of judicial 
review proceedings.895 Pakistan also points out that each of these provisions sets out, in addition to 
a normal or non -exceptional 12 -month time -limit, "a firm and unconditional outer limit of 
18 months", while Article  11.4 does not.896 We agree with this observation. In our vie w, however, 
the fact that provisions other than Article  11.4 set forth an outer limit of 18  months does not address 
the question that is decisive in this case, namely what circumstances are abnormal and would 
therefore justify exceeding the 12 -month time -limit set out in Article  11.4.  
7.13.2   Whether the NTC acted inconsistently with Article  11.4 
7.640.   It is not disputed that the NTC took more than 12  months to complete the sunset review in 
question, from 4  August  2015 to 1  December  2016.897 The first question before us is whether the 
circumstances of this case fell within the scope of the qualifier "normally" in Article  11.4898: if the 
circumstances were "normal", then Pakistan acted inconsistently with the requirement to conclude 
reviews "normally … within 12  months".  
7.641.   Pakistan argues that the judgment of the Lahore High Court ordering  the suspension of 
proceedings was an abnormal circumstance within the meaning of the second sentence of 
Article  11.4, because it was an event that was extraneous to the ordinary conduct of sunset reviews 
and outside the control of the investigating authority, and prevented completion of the review within 
12 months.899 Pakistan emphasizes that court proceedings are not part of the normal sequence of 
events during a sunset review, that the dome stic legal challenge in question had been brought in 
the context of anti -dumping proceedings that were unrelated to those at issue before us, and that 
the NTC had no choice but to suspend all its work until properly composed.900  
7.642.   Pakistan argues that the co ntext of Article  11.4, and specifically Articles  13 and footnote  20 
of the Anti -Dumping  Agreement, confirm that a court ruling ordering  suspension is an abnormal 
circumstance that justifies exceeding the 12 -month time -limit. According to Pakistan, by makin g 
separate provision for judicial proceedings, Article  13 "confirms that [they] do not form part of the 
'normal' or 'usual' conduct of those investigations or reviews" .901 Pakistan also argues that 
 
891 Article  2.2.1.1 of the Anti -Dumping Agreement.  
892 Doha Ministerial Decision, para. 5.2.  
893 Panel Reports, Australia – Anti-Dumping Measures on Paper , para.  7.111; EU – Biodiesel (Argentina) , 
para. 7.227; and China – Broiler Products , para.  7.161; Appellate Body Report, US – Clove Cigarettes , 
para. 273. 
894 Pakistan's first written submission, paras.  3.693, 3.699, and 3.717.  
895 Fn 20 of the Anti -Dumping Agreement, on which see para.  7.650  below.  
896 Pakistan's first written submission, paras.  3.699 and 3.717.  
897 See fn  877 above.  
898 Having answered this question in the affirmative, we do not proceed to address the further questions 
raised by the United Arab Emirates' additional arguments. (See para.  7.652  below).  
899 Pakistan's first written submission, paras.  3.706 -3.707, 3.709, and 3.713 -3.716; second written 
submission, paras.  2.335 and 2.341. See also Pakistan's wr itten opening statement, para.  135; and response 
to United Arab Emirates' written opening statement, paras.  79 and 82.  
900 Pakistan's first written submission, paras.  3.695 and 3.709 -3.716; second written submission, 
para. 2.339; written opening statement, p aras. 130-131; and response to United Arab Emirates' written 
opening statement, para.  82. 
901 Pakistan's first written submission, para.  3.710.  WT/DS538/ R 
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  footnote  20, by providing that the time -limits in Articles  9.3.1 and  9.3.2  may not be complied with 
in case of judicial review proceedings, shows that "the Anti -Dumping  Agreement recognizes explicitly 
that judicial proceedings may affect the ability of the investigating authority to adhere to 
treaty -prescribed tim e limits".902 
7.643.   The United  Arab Emirates  argues instead that the circumstances were not abnormal within 
the meaning of Article  11.4. According to the United  Arab Emirates , "internal administrative issues 
such as the proper constitution of the investigating au thority as a matter of domestic law, are not in 
principle a sufficient reason for … violating the WTO obligation to conclude the review in 
12 months".903 Referring to Article  27 of the Vienna Convention on the Law of Treaties904, the 
United  Arab Emirates  argues that a WTO  Member may not invoke domestic law to justify a failure to 
perform a treaty.905  
7.644.   Pakistan responds that it is not invoking domestic law to  justify a violation of Article  11.4.906 
Rather, Pakistan's position is that it is pointing to the domestic judicial proceedings as a factor for 
determining whether the circumstances in which the sunset review was carried out were normal: if 
the circumstanc es were not normal, no violation arises and the rule of state responsibility referred 
to by the United  Arab Emirates  does not apply.907  
7.645.   The United  Arab Emirates  further argues that problems with the proper constitution of the 
NTC were not an unusual event, because in the context of the BOPP film proceedings alone, such 
problems had already arisen twice before, in 2011 and 2013.908 To this, Pakistan answers that wh at 
is "normal" under Article  11.4 does not hinge on whether the relevant event has already occurred 
on previous occasions.909  
7.646.   We agree with Pakistan that the text of Article 11.4 does not establish an outer time-limit in 
which an investigating authority mu st conclude a sunset review. We also agree that the text of 
Article 11.4 does not, as a general matter, provide definitive guidance regarding the nature of the 
facts or circumstances that may be considered to be sufficiently "abnormal" to permit an 
adminis tering authority to take longer than the "normal" 12-months period to conclude a sunset 
review.  Given this, we are of the view that what may be considered "abnormal" in a proceeding for 
the purposes of Article 11.4 will depend on the unique set of facts an d circumstances that are 
associated with the proceeding, and that those facts will necessarily vary from case to case.   
7.647.   Turning to the particular facts of this proceeding, we note Pakistan's argument that the NTC 
was justified in not completing its sunset review within the normal 12-month period because the 
review was the subject of judicial proceedings and rulings that were extraneous to the ordinary 
conduct of sunset reviews and outside of the NTC's control.910 We also note Pakistan's statement 
that court proceedings are generally not part of the normal sequence of events in Pakistan during a 
sunset review.911 
7.648.   Notwithstanding this, we also observe that this dispute presents a unique constellation of 
facts that we must consider when assessing whether the spec ific Lahore High Court decision that 
Pakistan relies upon could, in fact, justify exceeding the 12 -month "normal" time -limit in light of the 
history and circumstances of the BOPP proceeding. Specifically, we observe that: (a) Pakistan 
determines the compos ition of the NTC, through procedures governed by Pakistani law; (b) the 
record of this dispute indicates that the composition of the NTC was the subject of at least three 
 
902 Pakistan's first written submission, para.  3.711.  
903 United Arab Emirates' first written submission, para.  578. S ee also ibid. para. 581; opening 
statement at the first meeting of the Panel, para.  85; second written submission, paras.  267 and 273; and 
response to Pakistan's written opening statement, para.  58. 
904 Article  27 reads in relevant part: "[a] party may not i nvoke the provisions of its internal law as 
justification for its failure to perform a treaty."  
905 United Arab Emirates' first written submission, para.  582. 
906 Pakistan's first written submission, paras.  3.718 -3.719.  
907 Pakistan's first written submission, p ara. 3.719. See also Pakistan's second written submission, 
para. 2.337; and response to United Arab Emirates' written opening statement, para.  81.  
908 United Arab Emirates' first written submission, para.  585; opening statement at the first meeting of 
the Panel, para.  85; and second written submission, paras.  269 and 276.  
909 Pakistan's written opening statement, para.  137. 
910 See para.  7.641  above.  
911 See para. 7.641  above.  WT/DS538/ R 
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  court challenges during the pendency of the BOPP film proceedings, each of which foun d successive 
defects in the composition of the NTC912; (c) in the BOPP film proceedings alone, these challenges 
led to the suspension or termination of proceedings, or to a determination being set aside, on at 
least three occasions913; and (d) the Lahore Hig h Court decision that Pakistan relies on as "abnormal" 
resulted from the third in this series of court challenges. Considering all these facts taken together, 
we are of the view that the judgment of the Lahore High Court that led to the suspension of the 
sunset review proceedings cannot be considered to be a circumstance that is "abnormal" within the 
meaning of Article 11.4 in the context of the BOPP film proceedings as a whole.  
7.649.   In support of its argument that judicial review proceedings fall outside what i s "normal" 
within the meaning of Article  11.4, Pakistan refers to Article  13 and footnote 20 of the 
Anti-Dumping  Agreement.914 We agree with Pakistan that Article  13 shows that the 
Anti-Dumping  Agreement envisages judicial (or equivalent) review proceedings  as separate915 from 
the investigations and reviews conducted by the investigating authorities . However , Article  13 does 
not automatically render the acts of the judiciary "extraneous" or "outside the control of" a Member, 
in a way that always  turns those a cts into abnormal or extraordinary events within the meaning of 
Article  11.4.  
7.650.   As for footnote  20, this is an instance in which Members have expressly agreed that certain 
time-limits can be exceeded in case of judicial review proceedings. In the case of th e reviews 
regulated by Article  11, Members have not include d a provision equivalent to footnote  20. 
7.651.   We therefore find that, because of the particular constellation of facts before us in this case,   
the judgment of the Lahore High Court, which Pakistan invokes as an abnormal circumstance under 
which it could not conclude the sunset review within 12  months, does not qualify as a circumstance 
that is not "normal" for purposes of Article  11.4, and that Pakistan acted inconsistently with 
Article  11.4 by concluding the sunset review in more than the 12 -month limit that "normally" applies 
under Article  11.4.  
7.652.   Having so found, we will not consider the United Arab Emirates ' additional arguments to the 
effect that (a)  Pakistan acted inconsistently with Article 11.4 by failing to provide an explanation of 
the abnormal circumstances that justified exceeding the time -limits; and that (b)  Pakistan acted 
inconsistently with Article  11.4 by not carrying out the review "expeditiously".916  
7.13.3   Conclusion under Article  11.4 
7.653.   We find that Pakistan acted inconsistently with Article  11.4 by concluding  the sunset review 
in more than  12 months, in the absence of abnormal circumstances within the meaning of this 
provision.  
7.14  Public notice and explanation of determinations: Artic les 12.1, 12.2, and 12.3 of the 
Anti-Dumping  Agreement  
7.654.   The United  Arab Emirates claims that Pakistan's  final determination of 9  April 2015, which 
"ratified"917 the final determination of 4 February  2013, was inconsistent with Articles  12.1 and 12.2 
of the Anti -Dumping  Agreement. In support of these claims, the United Arab Emirates argues that 
the Notice of initiation of 23  April 2012918 did not provide the factual basis on which dumping is 
 
912 See e.g. United Arab Emirates' first written submission, para. 585; second written submission, 
paras.  269 and 276; Report on final determination (2013), public v ersion, (Exhibit ARE -2), para. 5.2; 
Order  of Islamabad Hight Court, (Exhibit PAK -31); Report on final determination (2015), public version, 
(Exhibit PAK -49), p. 2; Judgment of the Anti -Dumping Appellate Tribunal, (Exhibit PAK -10); Report on 
sunset  determination, public version, (Exhibit ARE -4), paras. 3 -4; and Judgment of Lahore High Court, 
(Exhibit  PAK-22). 
913 See fn 912 above.  
914 See para.  7.642  above.  
915 See also para.  7.491  above, in the context of our analysis under Article 5.10 . We note that under 
Article 5.10, we reviewed the different question whether the time taken for judicial review of a final 
determination that had already been adopted should be counted against the time -limit set out in Article 5.10.  
916 See paras.  7.630  above.  
917 Report on final determination (2015), public version, ( Exhibit  PAK-49), para. 4; Notice of final 
determination (2015), ( Exhibit  ARE-1), p.  2. 
918 Notice of initi ation (2012) , (Exhibit  ARE-5). WT/DS538/ R 
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  alleged, contrar y to Article  12.1.1(iii)919; that the Notice of final determination did not disclose 
essential information with respect to the NTC's  dumping calculation , contrary to Article  12.2920; and 
that the separate Report on final determination did not sufficiently explain the basis for the 
NTC's  findings of dumping and injury, contrary to Article  12.2.921 
7.655.   The United  Arab Emirates also claims that Pakistan's  sunset review determination of 
1 December 2016  was inconsistent with Articles  12.2 and 12.3. In su pport of these claims, the 
United  Arab Emirates argues that  the Notice of conclusion of sunset review922 and the Report on 
sunset determination923 did not provide in sufficient detail the findings and conclusions reached on 
material aspects of the sunset rev iew.924 
7.656.   Pakistan responds that United  Arab Emirates' claims under Articles  12.1, 12.2, and 12.3 do 
not fall within the Panel's  terms of reference.925 In the alternative, Pakistan argues that the NTC did 
not act inconsistently with Article  12.1 because, accor ding to Pakistan, the Notice of initiation and 
the Initiation memorandum should be read together with the application, and the application  set 
forth the factual basis on which dumping  was alleged.926 Pakistan also argues that the 
United  Arab Emirates does n ot advance any arguments in support of its claims under Articles  12.2 
and 12.3 other than those already raised with regard to its claims of inconsistency with the 
substantive obligations it invoke s.927 
7.657.   We recall that we may ex ercise judicial economy  under o ne or more claims if we have already 
found that the same measure is inconsistent with one or more provisions of a covered  agreement,  
and findings under the additional claims are not necessary to resolve the dispute .928 
7.658.   We have found that Pakistan's  final determination of 9  April 2015 and sunset review 
determination of 1  December  2016 are inconsistent with a number of provisions of the 
Anti-Dumping  Agreement. Having reached those findings, we do not consider it necessary for the 
resolution of this dispute to assess whether the same determinations are also inconsistent with 
Articles  12.1, 12.2, and 12.3 of the Anti -Dumping  Agreement, and we therefore do not decide on  
Pakistan's  terms of reference objection regarding these claims.  
7.15  Consequentia l claims : Articles  1 and 18.1 of the Anti -Dumping  Agreement and 
Articles  VI:1 and VI:2 of the GATT  1994  
7.659.   The United  Arab Emirates claims that, as a consequence of the inconsistencies that the 
United  Arab Emirates has sought to establish, (a) Pakistan 's fina l determination of 9  April 2015, 
which "ratified" the final determination of February 2013 , is also inconsistent with Articles  1 and  18.1 
of the Anti -Dumping  Agreement, and Articles  VI:1 and VI:2 of the GATT  1994; and 
 
919 United Arab Emirates'  first written submission, para.  602. See also United Arab Emirates'  second 
written submission, para.  281. 
920 United Arab Emirates'  first written submission, paras.  603-605.  
921 United Arab Emirates'  first written submission, para.  606 (referring to Report on final 
determination  (2013), public version , (Exhibit  ARE-2)). In its first written submission, the United Arab Emirates 
argued that the NTC did not make available a separate report supporting the 2015 final determination. In the 
alternative, and to the extent that the 2013  Report on final determination was the releva nt "separate report" , 
that report did not provide sufficient information. (United Arab Emirates'  first written submission, para.  606 
(referring to Report on final determination (2013), public version , (Exhibit  ARE-2)). Subsequently, the 
United  Arab Emirate s argued that the Report on final determination (2015) , which Pakistan presented during 
these panel proceedings, was not made public and did not provide all relevant information in sufficient detail to 
support the final determination.  (United Arab Emirates ' second written submission, para.  296 (referring to 
Report on final determination (2015) , (Exhibit  PAK-26)). 
922 Notice of conclusion of sunset review , (Exhibit  ARE-3). 
923 Report on sunset determination , public version, (Exhibit  ARE-4). 
924 United Arab Emirate s' first written submission, paras.  607-609. 
925 Pakistan's  first written submission, paras.  3.736 -3.738; response to Panel question No.  80; and 
written opening statement, paras.  143-152. 
926 Pakistan's  response to Panel question No.  82; written opening statem ent, paras.  154-156. 
927 Pakistan's  first written submission, paras.  3.748 -3.750 ; written opening statement, para.  157. 
928 See para.  7.49 above.  WT/DS538/ R 
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  (b) Pakistan's  sunset review determina tion of 1  December 2016 is also inconsistent with  Articles  1 
and 18.1 of the Anti -Dumping  Agreement.929  
7.660.   We refer to the conditions under which we may exercise judicial economy.930 The 
United  Arab Emirates' claims under Articles  1, 18.1, VI:1, and VI:2 are m erely consequential on the 
claims we have already reviewed. They challenge the same measures and the same aspects of the 
same measures as the claims under which we have already reached findings of inconsistency, 
above.  We therefore exercise judicial econom y on the United Arab Emirates' claims under Articles  1, 
18.1, VI:1, and VI:2.   
7.16  The Panel 's duty under Article  12.11 of the DSU  
7.661.   Article  12.11 of the DSU requires that in cases in which "one or more of the parties is a 
developing country Member":  
[T]he panel's  report shall explicitly indicate the form in which account has been taken 
of relevant provisions on differential and more -favourable treatment for developing 
country Members that form part of the covered agreements which have been raised by 
the dev eloping country Member in the course of the dispute settlement procedures.  
7.662.   In this dispute, Pakistan has raised Article  12.10 of the DSU931, which provides, in relevant 
part:  
[I]n examining a complaint against a developing country Member, the panel shall accord 
sufficient time for the developing country Member to prepare and present its 
argumentation.  
7.663.   We took account of both parties'  status as a developing country Member in adopting and 
reviewing the Working Procedures and timetable. The Panel's  timetable provided Pakistan 
eight weeks to file its own first written submission after having received the complainant 's first 
written submission , as requested by Pakistan, and it provided the United  Arab Emirates five  weeks 
after the organizational meeting to  prepare its first written submission, as requested by the 
United  Arab Emirates. We have also taken into account the status of the parties as developing 
country Members  when subsequently revising the timetable  and the Working Procedures , including 
when gra nting Pakistan's  request for an extension to file its second written submission.  
8  CONCLUSIONS  
8.1.  For the reasons set out in this Report, we conclude as follows:  
a. The United  Arab Emirates has established that the final determination of 9  April 2015, 
which ratifi ed the final determination of February 2013, is inconsistent with:  
i. Article  5.3 of the Anti -Dumping Agreement,  because Pakistan did not assure itself that 
there  was sufficient evidence to justify initiation of an investigation ;  
ii. Article  2.1 of the Anti -Dumping Agreement, because Pakistan made a determination 
of dumping without evidence of current dumping ;  
iii. Article  3.1 of the Anti -Dumping Agreement, because Pakistan did not base its 
determination of injury on evidence of current injury;  
iv. Articles  3.1 and 3.2  of the Anti -Dumping Agreement, because Pakistan did not 
objectively consider whether the volume of dumped imports in absolute terms and 
relative to domestic production had increased significantly during the POI, and whether 
 
929 United Arab Emirates ' first written submission, paras.  612-621; second written submission, 
paras.  298-300. 
930 See para.  7.49 above.  
931 Pakistan 's comments on the proposed time table and Working Procedures of 17  September  2019. WT/DS538/ R 
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  the effect of the dumped imports  on prices of the like product  had been significant 
price undercutting and significant price depression during the POI;  
v. Articles  3.1 and 3.4  of the Anti -Dumping Agreement, because Pakistan did not 
evaluate all the injury factors listed in Article 3.4, and  did not objectively evaluate the 
impact of the dumped imports on the state of the domestic industry; and  
vi. Articles  3.1 and 3.5  of the Anti -Dumping Agreement, because Pakistan based its 
causation analysis on findings that were inconsistent with Articles 3.1, 3.2 and 3.4, 
and did not ensure that injury caused by other known factors was not attributed to the 
dumped imports.  
b. The Unite d Arab Emirates has not established that the final determination of 9  April 2015, 
which ratified the final determination of February  2013, is inconsistent with:  
i. Articles  2.2, 2.2.1, 2.2.1.1 , and 2.2.2 of the Anti -Dumping Agreement with regard to 
the cost d ata relied upon to determine whether sales were in the ordinary course of 
trade;  
ii. Article  2.4 of the Anti -Dumping Agreement with regard to the denial of an adjustment 
for level of trade;  
iii. Article  5.10 of the Anti -Dumping Agreement with regard to the duration  of the original 
investigation; and  
iv. Article  6.2 of the Anti -Dumping Agreement with regard to the adoption, in 2015, of 
the final determination of 9  April 2015 ratifying the final determination of 
February  2013.  
c. We exercise judicial economy on the United  Arab Emirates' claims that the final 
determination of 9  April 2015, which ratified the final determination of February  2013, is 
also inconsistent with Articles  1, 5.2, 5 .8, 9.1, 9.3, 11.1, 12.1, 12.2, and 18.1 of the 
Anti-Dumping Agreement, and Articles VI:1  and VI:2 of the GATT 1994.  
d. The United  Arab Emirates has established that the sunset determination of 
1 December  2016 is inconsistent with : 
i. Article 11.3 of the Anti -Dumping Agreement, because in determining that dumping 
and injury were likely to continue or recur, Pakistan relied on a margin of dumping 
calculated inconsistently with Article 2, failed to rely on positive evidence, did not 
explain how the data supported its findings and how its findings supported its 
conclusions ; and 
ii. Article 11.4, because Pakistan did not conclude the sunset review within 12  months 
from initiation, in the absence of abnormal circumstances within the meaning of this 
provision.  
e. We exercise judicial economy on the United Arab Emirates' claims that the sunset 
determination of 1  December  2016 is also inconsistent with Articles  1, 11.1, 12.2, 12.3, 
and 18.1 of the Anti -Dumping Agreement.  
9  RECOMMENDATION AND SUGGESTION  
9.1.  Pursuant to Article  19.1 of the DSU, we recommend that Pakistan bring its measures into 
conformit y with its obligations under the Anti -Dumping  Agreement . WT/DS538/ R 
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  9.2.  The United  Arab Emirates also asks us to suggest ways in which Pakistan could implement this 
recommendation. Specifically, the United Arab Emirates asks us to suggest that Pakistan "terminate 
the dut ies imposed"932 and "refund the anti -dumping duties collected".933 
9.3.  Pursuant to the second sentence of Article  19.1, "[i]n addition to [our] recommendations, [we] 
may suggest ways in which the Member concerned could implement the recommendations".  Thus, 
we have discretion to suggest ways to implement our recommendation.934  
9.4.  Many panels before us have declined to exercise this discretion to make suggestions, observing 
in particular that "the implementation of DSB recommendations and rulings is left, in the first 
instance, to the discretion of the implementing Member".935 Some panels, however, have chosen to 
exercise their discretion to suggest ways to implement their recommendations.936 Of these , 
three  WTO panels suggested the revocatio n of anti -dumping duties, having found inconsistencies 
that were "of a fundamental nature and pervasive".937 On the other hand, so far, the WTO panels 
asked to suggest refund of anti -dumping duties have rejected such requests.938 
9.5.  In the case before us, we have found fundamental and pervasive inconsistencies , extending to 
the evidence on the basis of which the authority initiated the investigation, the chosen POI for the 
original investigation, multiple aspects of the determination of injury in the original investigation, 
and multiple aspects of the sunset determination.  
9.6.  Because of the fundamental nature and pervasiveness of the inconsistencies  we have found, 
we suggest that Pakistan implement our recommendation by withdrawing the anti-dumping 
measures it has imposed on BOPP film from the United  Arab Emirates. We decline however to 
suggest that Pakistan refund the anti -dumping duties already paid.  
 
__________  
 
932 United Arab Emirates'  first written submission, paras.  623-625. 
933 United Arab Emirates'  first written submission, paras.  626-628. 
934 See also e.g.  Appellate  Body Reports, US – Zeroing (EC) ( Article  21.5 – EC), para. 466; and US – 
Continued Zeroing , para.  389. 
935 See e.g.  Panel Report, Australia – Anti-Dumping Measures on Paper , para.  8.6. 
936 Panel Reports, Argentina – Poultry Anti -Dumping Duties , paras.  8.3-8.7; US – Offset Act (Byrd 
Amendment) , para.  8.6; US – Cotton Yarn , paras.  8.4-8.5; Guatemala – Cement II , paras.  9.4-9.6; US – 
Underwear , paras.  8.1-8.3; Mexico – Steel Pipes and Tubes , paras.  8.7-8.12; Ukraine – Passenger Cars , 
paras.  8.7-8.8; US – Lead and Bismuth II , para.  8.2; India – Quantitative Restrictions , paras.  7.1-7.7; EC – 
Bananas III ( Article  21.5 – Ecuador) , paras.  6.154 -6.159; EC – Trademarks and Geographical Indications 
(Australia)  and EC – Trademarks and Geographical Indications (US) , paras.  8.4-8.5; EC – Export Subsidies on 
Sugar (Australia) ; EC – Export Subsidies on Sugar (Brazil) ; and EC – Export Subsidies on Sugar (Thailand) , 
paras.  8.6-8.8. 
937 Panel Reports, Argentina – Poultry Anti -Dumping Duties , para. 8.6; Guatemala – Cement II , 
para. 9.6; Mexico – Steel Pipes and Tu bes, paras.  8.9-8.12 (the latter with slightly different language). For the 
same rationale applied to a safeguard measure, see Panel Report, Ukraine – Passenger Cars , para.  8.8. The 
Panel in Guatemala – Cement I  had also suggested revocation, but was rever sed on other grounds. 
(Panel  Report, Guatemala – Cement I , para.  8.6).  
938 Panel Reports, US – Hot-Rolled Steel , paras.  8.7 and 8.11 -8.13; Guatemala – Cement II , 
paras.  9.6-9.7. Similarly, the panel in US – Softwood Lumber IV ( Article  21.5 – Canada)  declined to suggest 
the refund of countervailing duties. (Panel Report, US – Softwood Lumber IV ( Article  21.5 – Canada) , 
paras.  5.6-5.7). 