The Panel in China Clause Samples

The Panel in China. Autos (US) made a distinction between an a priori exclusion of producers from the domestic industry and data collection problems in the context of the injury determination. The Panel also added that an investigating authority did not necessarily have to include in the domestic industry a particular proportion of producers that opposed the complaint: 1. We recall in this regard that Articles 4.1 and 16.1 do not establish any particular procedure or methodology for MOFCOM to follow in defining the domestic industry. Nothing in these provisions thus precludes MOFCOM from establishing deadlines for producers to come forward to be considered for inclusion in the domestic industry, despite that such deadlines may ultimately prevent producers from participating in the investigations, where they fail to make themselves known in a timely manner. In our view, further, the mere fact that the domestic industry as defined does not include a particular proportion of producers opposing the complaint, does not demonstrate that MOFCOM acted inconsistently with Articles 4.1 and 16. 1. With this in mind, we turn to the specific arguments with respect to this claim."23 18 Appellate Body Report, EC – Fasteners (China), para. 419. 20 Appellate Body Report, EC – Fasteners (China), para. 425.
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The Panel in China. Broiler Products held that, in the framework of price undercutting, the investigating authority must ensure that the "like products" compared are sufficiently similar: "Another fundamental determining factor of the price is the physical characteristics of the product. Articles 3.1/15.1 and 3.2/15.2 mandate an analysis of the effects of prices on the domestic market of the 'like product'. Yet, in our view, ensuring that the products being compared are 'like products' will not always suffice to ensure price comparability. Where the products under investigation are not homogenous, and where various models command significantly different prices, the investigating authority must ensure that the product compared on both sides of the comparison are sufficiently similar such that the resulting price difference is informative of the 'price undercutting', if any, by the imported products. For this reason, for the price undercutting analysis to comply with Articles 3.1/15.1 and 3.2/15.2 may well require the investigating authority to perform its price comparison at the level of product models. In a situation in which it performs a price comparison on the basis of a 'basket' of products or sales transactions, the authority must ensure that the groups of products or transactions compared on both sides of the equation are sufficiently similar so that any price differential can reasonably be said to result from 'price undercutting' and not merely from differences in the composition of the two baskets being compared. Alternatively, the authority must make adjustments to control and adjust for relevant differences in the physical or other characteristics of the product."47
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