Page 598 - MANUAL OF SOP

Relevant Wto Jurisprudence

at the very end of the POI, Brazil's approach would imply that the determination
would have to be based on the data of a very short period." The Appellate Body,
pointing out that there could also be a revaluation late in the POI, considered as
follows:

"Permitting such discretionary selection of data from a period of time within
the POI would defeat the objectives underlying investigating authorities'
reliance on a POI for the purposes of a dumping determination. As the Panel
correctly noted, the POI 'form[s] the basis for an objective and unbiased
determination by the investigating authority.' Like the Panel and the parties
to this dispute, we understand a POI to provide data collected over a
sustained period of time, which period can allow the investigating authority
to make a dumping determination that is less likely to be subject to market
fluctuations or other vagaries that may distort a proper evaluation. We
agree with the Panel that the standardized reliance on a POI, although not
fixed in duration by the Anti-Dumping Agreement, assures the investigating
authority and exporters of 'a consistent and reasonable methodology for
determining present dumping', which anti-dumping duties are intended to
offset. In contrast to this consistency and reliability, Brazil's approach would
introduce a significant level of subjectivity on the part of the investigating
authority to determine when data from a subset of the POI may be a
reliable indicator of an exporter's future pricing behaviour. As the European
Communities points out, the 'broad judgmental role' accorded investigating
authorities by Brazil's approach is not consistent with the detailed nature
of the rules and obligations of the Anti-Dumping Agreement governing
various aspects of the dumping determination."

24.51. The same Report found that "the Anti-Dumping Agreement takes into
account the possibility of such major changes occurring at a late stage of the POI,
or even after the POI, not by allowing investigating authorities to pick and choose a
subset of data or sub-periods of a POI according to their subjective considerations,
but by review mechanisms."

XIII. NORMAL VALUE DETERMINATION

24.52. In a WTO dispute US – Hot-Rolled Steel (DS-184), the Appellate Body
mentioned the conditions for sale transactions to be used for the calculation of
normal vale.

575