United States –
Anti-Dumping and Countervailing Measures on Certain Coated Paper from Indonesia
Report of
the Panel
BCI
deleted, as indicated [[***]]
TABLE
OF CONTENTS
1 Introduction.. 13
1.1 Complaint by Indonesia. 13
1.2 Panel establishment and composition. 13
1.3 Panel proceedings. 14
1.3.1 General 14
1.3.2 Additional working procedures
concerning BCI 14
1.3.3 Request for a preliminary ruling. 14
1.3.4 Requests of a procedural nature by
certain third parties. 14
2 Factual aspects and
measures at issue. 15
3 Parties' requests for
findings and recommendation.. 16
4 Arguments of the
parties. 17
5 Arguments of the thiRd
parties. 17
6 Interim review... 17
7 Findings. 17
7.1 Introduction. 17
7.2 General principles regarding treaty
interpretation, the applicable standard of review, and burden of proof 18
7.2.1 Treaty interpretation. 18
7.2.2 Standard of review.. 18
7.2.3 Burden of proof 19
7.3 Special and differential treatment 19
7.4 Terms of reference – United States'
request for a preliminary ruling. 19
7.5 "As applied" claims concerning
the USDOC's subsidy determination. 22
7.5.1 Introduction. 22
7.5.2 Claims under Article 14(d) of the SCM
Agreement (rejection of in-country prices as benchmarks to calculate benefit) 23
7.5.2.1
Introduction. 23
7.5.2.2
Legal standard under Article 14(d) of the SCM Agreement 24
7.5.2.3 The USDOC's finding that there were no market-determined prices for standing
timber in Indonesia upon which to base the benchmark. 26
7.5.2.4
The USDOC's finding that there were no market prices for logs in
Indonesia upon which to base the benchmark. 33
7.5.2.5
Overall conclusion concerning Indonesia's claims under Article 14(d) of the SCM
Agreement 39
7.5.3 Claim under Article 12.7 of the SCM
Agreement ("facts available") with respect to the debt buy-back 39
7.5.3.1 Introduction. 39
7.5.3.2 Legal standard under Article 12.7 of
the SCM Agreement 43
7.5.3.3 Whether the conditions for resorting
to facts available were met 44
7.5.3.4 Whether the facts relied upon by the
USDOC "reasonably replaced" the missing "necessary
information". 50
7.5.4 Claims under Article 2.1(c) and the
chapeau of Article 2.1 of the SCM Agreement (specificity) 53
7.5.4.1 Introduction. 53
7.5.4.2 Legal standard under Article 2.1(c)
and the chapeau of Article 2.1 of the SCM Agreement 54
7.5.4.3 Whether the USDOC's determinations of
de facto specificity are inconsistent
with Article 2.1(c) of the SCM Agreement 56
7.5.4.4 Whether the USDOC's determination of de facto specificity in connection with the debt buy-back is
inconsistent with the chapeau of Article 2.1 of the SCM Agreement 62
7.5.4.5 Indonesia's allegations concerning
the USDOC's determination that the debt buy‑back was a company-specific subsidy. 63
7.5.4.6 Overall conclusion concerning
Indonesia's claims under Article 2.1(c) of the SCM Agreement and the chapeau of
Article 2.1 of the SCM Agreement 67
7.6 "As applied" claims concerning
the USITC's threat of injury determination. 67
7.6.1 Introduction. 67
7.6.2 Claims under Article 3.5 of the
Anti-Dumping Agreement and Article 15.5 of the SCM Agreement (non-attribution) 68
7.6.2.1 Introduction. 68
7.6.2.2 Legal standard under Article 3.5 of the Anti-Dumping Agreement
and Article 15.5 of the SCM Agreement 69
7.6.2.3 The USITC's consideration of the
three alleged "other factors". 72
7.6.2.4 The USITC's re-statement of the legal
standard under US law.. 74
7.6.2.5 The USITC's finding of vulnerability. 75
7.6.2.6 Projected decline in demand. 78
7.6.2.7 Expiration of the "black
liquor" tax credit 80
7.6.2.8 Non-subject imports. 82
7.6.2.9 Overall conclusion concerning
Indonesia's claims under Article 3.5 of the Anti‑Dumping Agreement and Article
15.5 of the SCM Agreement 83
7.6.3 Claims under Article 3.7 of the Anti-Dumping
Agreement and Article 15.7 of the SCM Agreement (threat of injury) 83
7.6.3.1 Introduction. 83
7.6.3.2 Legal standard under Article 3.7 of the Anti-Dumping Agreement and
Article 15.7 of the SCM
Agreement 84
7.6.3.3 The USITC's finding that subject
imports would gain market share at the expense of the domestic industry. 85
7.6.3.3.1 Market share trends during the POI 88
7.6.3.3.2 The likely increase in production
capacity in China. 92
7.6.3.3.3 The Unisource affidavit and the
establishment of Eagle Ridge. 95
7.6.3.4 The USITC's finding that subject
imports would have adverse effects on domestic prices 98
7.6.3.5 Overall conclusion concerning
Indonesia's claims under Article 3.7 of the Anti‑Dumping Agreement and Article
15.7 of the SCM Agreement 101
7.6.4 Claims under Article 3.8 of the
Anti-Dumping Agreement and Article 15.8 of the SCM Agreement ("special
care") 101
7.6.4.1 Introduction. 101
7.6.4.2 Legal standard under Article 3.8 of
the Anti-Dumping Agreement and Article 15.8 of the SCM Agreement 102
7.6.4.3 Whether the USITC's threat of injury
determination is inconsistent with Article 3.8 of the Anti-Dumping
Agreement and Article 15.8 of the SCM Agreement 102
7.7 "As such" claims alleging
inconsistency of Section 771(11)(B) of the US Tariff Act of 1930 ("tie
vote" provision) with Article 3.8 of the Anti-Dumping Agreement and
Article 15.8 of the SCM Agreement ("special care") 104
7.7.1 Introduction. 104
7.7.2 Legal standard under Article 3.8 of the
Anti-Dumping Agreement and Article 15.8 of the SCM Agreement 105
7.7.3 Whether the US "tie vote"
provision is inconsistent with Article 3.8 of the Anti‑Dumping Agreement and
Article 15.8 of the SCM Agreement 110
8 Conclusions. 110