GUATEMALA - CEMENT II’ (DS156) men le Establohment of Panel 22 September 1009 " ADA Ants. 3, Sana Ciclaton of PenelReport 24 October 2000 porn le psuar tat CCelaon of AB Report NA ~ “ ‘Adoption 17 November 2000 1, MEASURE AND PRODUCT AT ISSUE + Measure at issue: Guatomalas antidumping investigation on certain imports + Produet at issue: Grey Portand coment from Mexico. 2. SUMMARY OF KEY PANEL FINDINGS* + ADA Art. 5.3 (initiation of investigation ~ application) and 6.8 (hritiation of investigation ~ insufficient evidence): The Panel found that Guaterslavolsted Art. 8.8 because the application forthe intiton of anti-dumping investigation ai not have sufficient evidence of dumping, threat of injury and causal ink ojusty the ination of the iwestigation. The Panel noted thatthe evidentiary standards of ft. 2 (dumping) and of Art. 3:7 (neat of inj) are relevant to an ivestgating authorities consideration under Art. 5:3. Given that it had aleady found that there was insufficient evidence to lusty iitation under {rt 5.3, the Panel conchaded that Guatemala azo voted Art. 8.8 by fling to reject such an application, + ADA At. 6.1.2 and 6.4 (evidence access): The Pane! found the following violations by Guatemala in elation to evidentiary ‘eoatment: () Art. 6.12 and 6.4 by fling to grant Mexico regula and routine” accossto certain avidence; (i) rt. 6.1.2 fling {omake evidence available promptly" (20-day delay); and Gi) Art. 6.4 for fling to provide timely opportunities to see evidence. + ADA Art. 6.5 (evidence ~ confidential information): Regarding the confiental westment given to the petitioner's submissions, the Pane found an Art 8. violation because there was no recrd a "goed cause" shown bythe petitioner and ‘the petitioner dé nat seem ta have requested confidential treatment forthe information. + ADA Art. 6.9 (evidence ~ essential facts): The Pano found that Guatemala violated Art. 69 by fling to inform the patios ofthe “essential facts" under consideration for its definitive ant-dumping measure + ADA Art 6.8 and Annex I (evidence ~ facts available): Having found that Mexican exporter’ refusal o permit vrfiation ‘was reasonable and that "best information avallabe' (BIA) should not be used when information Is verifiable and can be used Inthe vestigation without undue ofiuties, he Panel concluded that Guatemala violated Art. 88 by unreasonably using BIA, + ADA Art. 8.4 (injury determination ~ injury factors): The Panel found that Guatemala violated Art, 34 because it fale to ‘evaluat Some injury factors (return on investrants and ality to raise capita listed in Art 34 + DSU Art. 19:1 (Panel and Appellate Body recommendations - suggestion on implementation): In light of the pervasiveness and fundamental nature ofthe viltions found in this case, the Panel, under Art. 191, specifically recommended ‘that Guatemala revoko its anti-dumping measure, However, Mexico's request for refund ofthe anti-dumping duties collected in ‘the past was declined onthe grounds tht this was a systemic issue beyond the reach ofthe Pane’ consideration inthis case 7 Guatemala ~BenitieeAnt-dumping Measures on Grey Portnd Comeot ram Morice (The Apps Body dismisses, based on procedural rounds, Guntanaa Comer hien Set wth essential the same more and anime as thovein ths cae) 2 Oter suns aobrersed: AOA Arts 2,55 817,069,093, 12 (pule noe) etension of POI (AOA A's. 81,6: and Anne Kt nlusion of non-govenmrta spats on veribeton eam (ADA Art 8 and Antes content intrmaton (6) mary andeauratan rs 3);-n0 Proje” etence pane! OSU Art 9.8) panel compotion standora of reviow (ADA Art 175) namlers a Sotrine. 2001 coon