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