Page 609 - MANUAL OF SOP

Manual of OP for Trade Remedy Investigations

anticipates that a final determination will be made and that the authorities
have identified and is considering the essential facts on which that decision
is to be made. Under Article 6.9, these facts must be disclosed so that
parties can defend their interests, for example by commenting on the
completeness of the essential facts under consideration."

24.80. In WTO Dispute China – Broiler Products (DS-427) (Article 21.5 – US) the
Panel noted that:

"Article 6.9 does not set out rules or any guidance on how all interested
parties are to be informed of the essential facts. In these circumstances, the
investigating authority has a large margin of discretion."
24.81. In WTO Dispute EC - Salmon (Norway) (DS337) the Panel correctly
analyzed:-

“The disclosure must "provide the interested parties with the necessary
information to enable them to comment on the completeness and
correctness of the facts being considered by the investigating authority,
provide additional information or correct perceived errors, and
comment on or make arguments as to the proper interpretation of those
facts".

24.82. In WTO Dispute EC – Salmon (Norway) (DS337) the Panel noted that a
change in outcome did not trigger a requirement for any additional disclosure
under Article 6.9:

"How an investigating authority undertakes to disclose the essential facts
does not change the nature of the obligations under Article 6.9. The second
sentence of Article 6.9 makes clear that the disclosure of essential facts
must be in sufficient time to allow parties to defend their interests”.

24.83. In WTO Dispute Argentina – Poultry Anti-Dumping Duties (DS-241) the
Panel with regard to Article 6.9 stated that-
“In an anti-dumping investigation, the essential elements include the
existence of dumping injury and causation. We agree with those panels
that have noted the disclosure obligation does not apply to the reasoning of
the investigating authorities, but rather to the "essential facts" underlying
the reasoning.”

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