Page 600 - MANUAL OF SOP

Relevant Wto Jurisprudence

used to calculate normal value if the exporter is the seller. The Appellate Body
reversed the Panel finding and stated the following:-

"The text of Article 2.1 is, however, silent as to who the parties to relevant
sales transactions should be. Thus, Article 2.1 does not expressly mandate
that the sale be made by the exporter for whom a margin of dumping is
being calculated. Nor does Article 2.1 expressly preclude that relevant sales
transactions might be made downstream, between affiliates of the exporter
and independent buyers. If all of the explicit conditions in Article 2.1 of
the Anti-Dumping Agreement are satisfied, the identity of the seller of the
'like product' is not a ground for precluding the use of a downstream sales
transaction when calculating normal value. In short, there seems to be no
reason to read into Article 2.1 an additional condition that is not expressed.

This interpretation does not suggest that the identity of the seller is
irrelevant in calculating normal value under Article 2.1 of the Anti-Dumping
Agreement. However, to ensure that prices are 'comparable', the Anti-
Dumping Agreement provides a mechanism, in Article 2.4, which allows
investigating authorities to take full account of the fact, as appropriate, that
a relevant sale was not made by the exporter or producer itself, but was
made by another part.

The use of downstream sales prices may necessitate the provision of
appropriate 'allowances', under Article 2.4, which take into account any
differences demonstrated to affect price comparability. We will explore this
issue further below.”

24.56. In a WTO Dispute US – Hot-Rolled Steel (DS184), the Appellate Body stated
in making a “fair comparison” the mandate given in Article 2.4 needs to be followed
by the investigation authority.

“Article 2.4 mandates that due account be taken of ‘differences which
affect price comparability’, such as differences in the ‘levels of trade’ at
which normal value and the export price are calculated.”
24.57. In a WTO Dispute EU – Footwear (China) (DS-405), the Panel explained
about the methodology for determination of normal value.

“Article 2.1 contains no requirements regarding the methodology used to
determine normal value, more specifically regarding the selection of the
analogue country in investigations involving non-market economy countries.

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