Colombia - Anti-Dumping Duties on Frozen Fries from Belgium, Germany and the Netherlands - Arbitration under article 25 of the DSU - Award of the Arbitrators

Colombia – Anti-Dumping Duties on Frozen Fries
from Belgium, Germany and the Netherlands

Arbitration under Article 25 of the DSU

Award of the Arbitrators

Table of contents

 

 

 

1  INTRODUCTION.. 7

2  ARGUMENTS OF THE PARTIES. 11

3  ARGUMENTS OF THE THIRD PARTIES. 11

4  ANALYSIS OF THE ARBITRATORS. 12

4.1  Issues on appeal 12

4.2  Claim under Articles 5.2(iii) and 5.3 of the Anti-Dumping Agreement 12

4.2.1  Introduction and Panel findings. 12

4.2.2  Reviewing Colombia's claim in light of Article 17.6 of the Anti-Dumping Agreement 14

4.2.3  Whether it is permissible to interpret the phrase "where appropriate" in Article 5.2(iii)
of the Anti-Dumping Agreement as granting "free choice" in the use of third-country sales
prices as a basis for normal value. 16

4.2.4  Whether the Panel erred under Articles 5.2(iii) and 5.3 of the Anti-Dumping Agreement
by requiring an explanation as to why domestic sales prices were not used as a basis for
normal value. 18

4.2.5  Conclusion. 19

4.3  Claim under Article 6.5 of the Anti-Dumping Agreement 20

4.3.1  Introduction and Panel findings. 20

4.3.2  Whether the Panel erred in finding that MINCIT acted inconsistently with Article 6.5
of the Anti-Dumping Agreement by granting confidential treatment to redacted information without a showing of "good cause" 21

4.3.3  Conclusion. 23

4.4  Claim under Article 6.2 of the DSU. 24

4.4.1  Introduction and Panel findings. 24

4.4.2  Whether the Panel erred in finding that the European Union's "packaging cost‑related claim" under Article 2.4 of the Anti-Dumping Agreement was within the Panel's terms of
reference pursuant to Article 6.2 of the DSU. 26

4.4.3  Conclusion. 30

4.5  Claim under Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement 30

4.5.1  Introduction and Panel findings. 30

4.5.2  Whether it is permissible to interpret the term "dumped imports" in Articles 3.1, 3.2,
3.4, and 3.5 of the Anti-Dumping Agreement to include imports of exporters determined
to have final de minimis margins of dumping. 32

4.5.3  Conclusion. 38

4.6  Award findings. 38