Analysis, statistics, publications, downloads, links, etc

WTO ANALYTICAL INDEX: ANTI-DUMPING AGREEMENT

Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement)

150pxls.gif (76 bytes)
The texts reproduced here do not have the legal standing of the original documents which are entrusted and kept at the WTO Secretariat in Geneva.

> General
> Article 1
> Article 2
> Article 3
> Article 4
> Article 5
> Article 6
> Article 7
> Article 8
> Article 9
> Article 10
> Article 11
> Article 12
> Article 13
> Article 14
> Article 15
> Article 16
> Article 17
> Article 18
> Annex I
> Annex II
> Relationship with other WTO Agreements
> Declaration on Dispute Settlement Pursuant to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 or Part V of the Agreement on Subsidies and Countervailing Measures
> Decision on Review of Article 17.6 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
> Decision on Anti-Circumvention

 

> Analytical Index main page


XIII. Article 12     back to top

A. Text of Article 12

Article 12: Public Notice and Explanation of Determinations

12.1     When the authorities are satisfied that there is sufficient evidence to justify the initiation of an antidumping investigation pursuant to Article 5, the Member or Members the products of which are subject to such investigation and other interested parties known to the investigating authorities to have an interest therein shall be notified and a public notice shall be given.

 

12.1.1     A public notice of the initiation of an investigation shall contain, or otherwise make available through a separate report(23), adequate information on the following:

 

(footnote original) 23 Where authorities provide information and explanations under the provisions of this Article in a separate report, they shall ensure that such report is readily available to the public.

 

(i)     the name of the exporting country or countries and the product involved;

 

(ii)     the date of initiation of the investigation;

 

(iii)     the basis on which dumping is alleged in the application;

 

(iv)     a summary of the factors on which the allegation of injury is based;

 

(v)     the address to which representations by interested parties should be directed;

 

(vi)     the time limits allowed to interested parties for making their views known.

 

12.2     Public notice shall be given of any preliminary or final determination, whether affirmative or negative, of any decision to accept an undertaking pursuant to Article 8, of the termination of such an undertaking, and of the termination of a definitive anti-dumping duty. Each such notice shall set forth, or otherwise make available through a separate report, in sufficient detail the findings and conclusions reached on all issues of fact and law considered material by the investigating authorities. All such notices and reports shall be forwarded to the Member or Members the products of which are subject to such determination or undertaking and to other interested parties known to have an interest therein.

 

12.2.1     A public notice of the imposition of provisional measures shall set forth, or otherwise make available through a separate report, sufficiently detailed explanations for the preliminary determinations on dumping and injury and shall refer to the matters of fact and law which have led to arguments being accepted or rejected. Such a notice or report shall, due regard being paid to the requirement for the protection of confidential information, contain in particular:

 

(i)     the names of the suppliers, or when this is impracticable, the supplying countries involved;

 

(ii)     a description of the product which is sufficient for customs purposes;

 

(iii)     the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value under Article 2;

 

(iv)     considerations relevant to the injury determination as set out in Article 3;

 

(v)     the main reasons leading to the determination.

 

12.2.2     A public notice of conclusion or suspension of an investigation in the case of an affirmative determination providing for the imposition of a definitive duty or the acceptance of a price undertaking shall contain, or otherwise make available through a separate report, all relevant information on the matters of fact and law and reasons which have led to the imposition of final measures or the acceptance of a price undertaking, due regard being paid to the requirement for the protection of confidential information. In particular, the notice or report shall contain the information described in subparagraph 2.1, as well as the reasons for the acceptance or rejection of relevant arguments or claims made by the exporters and importers, and the basis for any decision made under subparagraph 10.2 of Article 6.

 

12.2.3     A public notice of the termination or suspension of an investigation following the acceptance of an undertaking pursuant to Article 8 shall include, or otherwise make available through a separate report, the non-confidential part of this undertaking.

 

12.3     The provisions of this Article shall apply mutatis mutandis to the initiation and completion of reviews pursuant to Article 11 and to decisions under Article 10 to apply duties retroactively.

 
B. Interpretation and Application of Article 12

1. Article 12.1

(a) General

822.     In Guatemala — Cement II, Mexico argued that Guatemala had acted inconsistently with the requirements of Article 12.1 by failing to publish a notice of initiation and notify Mexico and its exporter when the Guatemalan authority was satisfied that there was sufficient evidence to justify the initiation of an investigation. The Panel clarified the meaning of Article 12.1:

“[T]his provision can most reasonably be read to require notification and public notice once a Member has decided to initiate an investigation. This interpretation is confirmed by the fact that the public notice to be provided is a ‘notice of initiation of an investigation’. We can conceive of no logical reason why the AD Agreement would require a Member to publish a notice of the initiation of an investigation before the decision had been taken that such an investigation should be initiated.”(1130)

823.     The Panel further rejected Mexico’s argument that Guatemala was in violation of Article 12.1 by failing to satisfy itself as to the sufficiency of the evidence before giving notice of initiation, stating:

“Given the function and context of Article 12.1 in the AD Agreement, we interpret this provision as imposing a procedural obligation on the investigating agency to publish a notice and notify interested parties after it has taken a decision that there is sufficient evidence to proceed with an initiation. The Panel is of the view that Article 12.1 is not concerned with the substance of the decision to initiate an investigation, which is dealt with in Article 5.3. By issuing a public notice of initiation in the case before us, the Guatemalan authorities complied with their procedural obligation under Article 12.1 to notify known interested parties and publish a public notice after they had decided to initiate an investigation. Whether or not Guatemala was justified in initiating an investigation on the basis of the evidence before it is an issue governed by Article 5.3.”(1131)

824.     The Panel in Argentina — Poultry Anti-Dumping Duties rejected the argument that by fulfilling the requirement to publish a notice of initiation of an investigation, a Member has fulfilled the obligation to notify. According to the Panel, Article 12.1 clearly imposes two separate obligations, one to notify and another to give public notice, and it considered that these separate obligations “must both be fulfilled in any given investigation”.(1132)

(b) Obligation to notify “interested parties known to the investigating parties to have an interest” in the investigation

825.     The Panel in Argentina — Poultry Anti-Dumping Duties considered that, by definition, “interested parties” necessarily have an interest in the investigation and should therefore be notified if they are known to the investigating authorities. The Panel rejected the argument that absence of contact details for such interested parties implied that the authority was not able to comply with its notification obligation:

“We accept that there may be circumstances in which an investigating authority may not have sufficient information to allow it to notify all interested parties known to have an interest in an investigation. In this sense, the fact that an exporter is ‘known’ by the investigating authority to have an interest in an investigation does not necessarily mean that sufficient details concerning the exporter are ‘known’ to the investigating authority such that it may make the Article 12.1 notification. In other words, knowledge of an exporter’s interest in an investigation does not necessarily imply knowledge of contact details regarding that exporter. In such circumstances, however, we consider that the nature of the Article 12.1 notification obligation is such that the investigating authority should make all reasonable efforts to obtain the requisite contact details. Sending a letter with only a very general request for assistance, without specifying the exporters for which contact details are required, does not satisfy the need to make all reasonable efforts.”(1133)

(c) Article 12.1.1

(i) General

826.     In Guatemala — Cement II, Guatemala argued that even if a public notice itself is insufficient, a separate report can satisfy the requirements of Article 12.1.1. The Panel disagreed on the basis of the following analysis:

“There is no reference to a separate report in the public notice of initiation. Under Article 12.1.1, it is the ‘public notice’, and not the Member, that must ‘make available through a separate report’, certain information. We take this to mean that the public notice must at a minimum refer to a separate report. This conclusion is logical in that the separate report is a substitute for certain elements of the public notice and thus should perform a notice function comparable to that of the public notice itself. If there were no reference to a separate report in the public notice, how would the public and the interested parties concerned become aware of its existence? If the public and interested parties do not know of the existence of the report, how can it be considered that the required information was properly made available to them?”

In support of its proposition that in order to fulfil the requirements of Article 12.1.1, the public notice must, at a minimum, refer to a separate report, the Panel referred to footnote 23 of the Anti-Dumping Agreement, and stated that “[i]t cannot be said that the separate report was ‘readily available’ to the public, if the public is not informed about where, when and how to have access to this report, leave alone if they were not even publicly informed of its existence.”(1134)

827.     In Guatemala — Cement II, the Panel rejected Guatemala’s argument that the alleged violations of Articles 5.5, 12.1.1 and 6.1.3, even if found to be violations, had not affected the course of the investigation, and thus: (a) the alleged violations were not harmful according to the principle of harmless error; (b) Mexico “convalidated” the alleged violations by not objecting immediately after their occurrence; and (c) the alleged violations did not cause nullification or impairment of benefits accruing to Mexico under the Anti-Dumping Agreement. See paragraphs 390393 above.

(ii) Article 12.1.1(iv): “a summary of the factors on which the allegation of injury is based”

828.     The Panel in Mexico — Corn Syrup rejected the argument that the notice of initiation of an investigation must set forth the investigating authority’s conclusion regarding the relevant domestic industry, and the bases on which that conclusion was reached. The Panel stated:

Article 12.1.1(iv) merely requires that the notice of initiation contain ‘a summary of the factors on which the allegation of injury is based’ (emphasis added). It does not require a summary of the conclusion of the investigating authority regarding the definition of the relevant domestic industry. Nor does it require a summary of the factors and analysis on which the investigating authority based that conclusion. Still less does it require a summary of the factors and analysis on which the investigating authority based its conclusion regarding exclusion of some producers from consideration as the relevant domestic industry. In other words, in our view, Article 12.1.1 cannot reasonably be read to require that the notice of initiation contain an explanation of the factors underlying, or the investigating authority’s conclusion regarding, the definition of the relevant domestic industry.”(1135)

829.     The Panel in Mexico — Corn Syrup noted that

“a notice of preliminary or final determination must set forth explanations for all material elements of the determination. A notice of initiation, on the other hand, pursuant to Article 12.1, must set forth specific information regarding certain factors, but need not contain explanations of, or reasons for, the resolution of all questions of fact underlying the determination that there is sufficient evidence to justify initiation.”(1136)

2. Article 12.2

(a) General

830.     The Recommendation concerning the periods of data collection for original anti-dumping investigations to determine the existence of dumping and consequent injury, adopted by the Committee on Anti-Dumping Practices at its meeting of 4—5 May 2000, includes paragraph 3 requiring notices under Article 12.2 to explain in some cases why a particular period of investigation was selected. See paragraph 13 above.

“3. In order to increase transparency of proceedings, investigating authorities should include in public notices or in the separate reports provided pursuant to Article 12.2 of the Agreement, an explanation of the reason for the selection of a particular period for data collection if it differs from that provided for in: paragraph 1 of this recommendation, national legislation, regulation, or established national guidelines.”

831.     The Panel in EC — Salmon (Norway), drawing on EC — Bed Linen, found that where there was a substantive inconsistency with the AD Agreement, it was not necessary to consider whether notice was “sufficient” under Article 12:

“We consider that, where there is a substantive inconsistency with the provisions of the AD Agreement, it is neither necessary nor appropriate to consider whether there is a violation of Article 12, as the question of whether the notice is ‘sufficient’ under Articles 12.2 and 12.2.2 is immaterial.”(1137)

(b) Article 12.2.1

832.     In Guatemala — Cement II, Article 12.2.1 was referred to as part of the context of Article 6.1. See paragraph 429 above.

(c) Article 12.2.2

833.     Rejecting the view that Article 12.2.2 requires explanations relating to initiation of the investigation to be set out in the notice of final determination, the Panel in EC — Bed Linen stated:

“There is no reference to the initiation decision among the elements to be addressed in notices under Article 12.2. Moreover, in our view, it would be anomalous to interpret Article 12.2 as also requiring, in addition to the detailed information concerning the decisions of which notice is being given, explanations concerning the initiation of the investigation, of which notice has previously been given under Article 12.1. This is particularly the case with respect to elements which are not within the scope of the information to be disclosed in the notice of initiation itself.”(1138)

834.     The Panel in EC — Bed Linen concluded that “[w]e do not believe that Article 12.2.2 requires a Member to explain, in the notice of final determination, aspects of its decision to initiate the investigation in the first place.”(1139)

835.     The Panel in US — Softwood Lumber VI saw no point in finding violations of Article 12.2.2 of the Anti-Dumping Agreement or Article 22.5 of the SCM Agreement:

Article 22.5 of the SCM Agreement, and Article 22.4 referred to therein, are similar, and the minor textual differences are not relevant to this dispute.

 

As with its other overarching claims, Canada does not make specific arguments with respect to these claims. Rather, as Canada clarified in response to the Panel’s questions, Canada’s claims under these provisions are procedural, dealing with the content of the notices, and not with the substantive elements of the underlying USITC determination. Canada specified that the asserted requirement for a ‘reasoned and adequate explanation’ of the USITC’s determination, which it alleges was not provided in this case, did not derive from Articles 12.2.2 and 22.5, but rather from the substantive obligations of Article 3 of the AD Agreement and Article 15 of the SCM Agreement. In our view, Canada’s claims under Articles 12.2.2 of the AD Agreement and 22.5 of the SCM Agreement are thus dependent on the disposition of the specific claims of violation.

 

In evaluating these claims, we note that our conclusions with respect to each of the alleged substantive violations asserted by Canada rest on our examination of the USITC’s published determination, which constitutes the notices provided by the United States under Article 12.2.2 of the AD Agreement and Article 22.5 of the SCM Agreement with respect to the injury determination in this case. No additional materials have been cited to us with respect to the determination for consideration in determining whether or not the USITC’s determination is consistent with the relevant provisions of the Agreements. Thus, if we find no violation with respect to a particular specific claim, such a conclusion must rest on the USITC’s published determination. In this circumstance, it is clear to us that no violation of Articles 12.2.2 and 22.5 could be found to exist in this case, where it is not disputed that the USITC determination accurately reflects the analysis and determination in the investigations. On the other hand, if we find a violation of a specific substantive requirement, the question of whether the notice of the determination is ‘sufficient’ under Article 12.2.2 of the AD Agreement or Article 22.5 of the SCM Agreement is, in our view, immaterial.

 

As was pointed out by the Panel in EC — Bed Linen:

 

‘A notice may adequately explain the determination that was made, but if the determination was substantively inconsistent with the relevant legal obligations, the adequacy of the notice is meaningless. Further, in our view, it is meaningless to consider whether the notice of a decision that is substantively inconsistent with the requirements of the AD Agreement is, as a separate matter, insufficient under Article 12.2. A finding that the notice of an inconsistent action is inadequate does not add anything to the finding of violation, the resolution of the dispute before us, or to the understanding of the obligations imposed by the AD Agreement’.(1140)

 

We share the views of the EC — Bed Linen Panel in this respect, and adopt them as our own. In this regard, we note Canada’s statement that ‘as a practical matter, Canada recognizes that it would be unusual for an injury determination to either satisfy the obligations in Articles 3 and 15 but not Articles 12.2.2 and 22.5 or vice versa’. Canada has made no arguments to suggest that this is such an unusual case. Therefore, we will make no findings with respect to the alleged violations of Article 12.2.2 of the AD Agreement and Article 22.5 of the SCM Agreement.”(1141)

836.     The Panel in EC — Tube or Pipe Fittings considered that the findings and conclusions on issues of fact and law which are to be included in the public notices, or separate report, are those considered “material” by the investigating authority:

“We understand a ‘material’ issue to be an issue that has arisen in the course of the investigation that must necessarily be resolved in order for the investigating authorities to be able to reach their determination. We observe that the list of topics in Article 12.2.1 is limited to matters associated with the determinations of dumping and injury, while Article 12.2.2 is more generally phrased (‘all relevant information on matters of fact and law and reasons which have led to the imposition of final measures, or the acceptance of a price undertaking’). Nevertheless, the phrase ‘have led to’, implies those matters on which a factual or legal determination must necessarily be made in connection with the decision to impose a definitive anti-dumping duty. While it would certainly be desirable for an investigating authority to set out steps it has taken with a view to exploring possibilities of constructive remedies, such exploration is not a matter on which a factual or legal determination must necessarily be made since, at most, it might lead to the imposition of remedies other than anti-dumping duties.”(1142)

837.     The Panel in EC — Fasteners (China) opined that “the nature and content of the explanation given may well differ depending on the nature of the determination or decision in question. We do not exclude that, in a situation where a relevant provision establishes detailed requirements for factual criteria that must be satisfied in order to justify a particular decision, an explanation that the party in question satisfied the relevant criteria may be sufficient under Article 12.2.2.”(1143)

3. Relationship with other Articles

(a) General

838.     In Guatemala — Cement II, the Panel considered it unnecessary to examine Mexico’s claim of a violation of Articles 12.2 and 12.2.2 because “the issue of Guatemala’s compliance with the transparency obligations deriving from its decision to impose definitive anti-dumping measures on imports of cement from Mexico would only be relevant if the decision to impose the measure itself had been consistent with the AD Agreement.”(1144)

839.     The Panel in US — Softwood Lumber VI held a similar view, considering that if it were to find no violation with respect to a particular specific claim, such a conclusion would be based on the USITC’s published determination which was then ipso facto sufficient. On the contrary, the Panel considered that if it did find a violation of a specific substantive requirement, the question of whether the notice of the determination was “sufficient” under Article 12.2.2 of the Anti-Dumping Agreement would be immaterial:

“In evaluating these claims, we note that our conclusions with respect to each of the alleged substantive violations asserted by Canada rest on our examination of the USITC’s published determination, which constitutes the notices provided by the United States under Article 12.2.2 of the AD Agreement and Article 22.5 of the SCM Agreement with respect to the injury determination in this case. No additional materials have been cited to us with respect to the determination for consideration in determining whether or not the USITC’s determination is consistent with the relevant provisions of the Agreements. Thus, if we find no violation with respect to a particular specific claim, such a conclusion must rest on the USITC’s published determination. In this circumstance, it is clear to us that no violation of Articles 12.2.2 and 22.5 could be found to exist in this case, where it is not disputed that the USITC determination accurately reflects the analysis and determination in the investigations. On the other hand, if we find a violation of a specific substantive requirement, the question of whether the notice of the determination is ‘sufficient’ under Article 12.2.2 of the AD Agreement or Article 22.5 of the SCM Agreement is, in our view, immaterial.”(1145)

(b) Article 1, 9, and 18, and Article VI: 1 of the GATT

840.     In Guatemala — Cement II, the Panel found that the subject anti-dumping duty order of Guatemala was inconsistent with several articles of the Anti-Dumping Agreement, including Article 12. The Panel then opined that that Mexico’s claims under other articles of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994 were “dependent claims, in the sense that they depend entirely on findings that Guatemala has violated other provisions of the AD Agreement.”(1146) In light of this dependent nature of Mexico’s claim, the Panel considered it not necessary to address these claims. See paragraph 9 above.

(c) Article 3

841.     In Thailand — H-Beams, the Appellate Body referred to Article 12 in interpreting Article 3.1. See paragraph 186 above.

842.     The Panel in EC — Bed Linen, after finding a violation of Article 3.4 by the European Communities, found it “neither necessary nor appropriate” to make a finding with respect to a claim of inadequate notice under Article 12.2.2. The Panel held that while a notice may adequately explain the determination that was made, the adequacy of the notice is nevertheless meaningless where the determination was substantively inconsistent with the relevant legal obligations. Furthermore, even if the notice itself was inconsistent with the Anti-Dumping Agreement, such a finding “does not add anything to the finding of violation, the resolution of the dispute before us, or to the understanding of the obligations imposed by the AD Agreement.”(1147)

(d) Article 5

843.     The Panel in Guatemala — Cement II touched on the relationship between Articles 5.3 and 12.1. See paragraph 823 above.

844.     The Panel in Thailand — H-Beams compared the notification requirements under Articles 5.5 and 12. See paragraph 421 above.

(e) Article 6

845.     The Panel in Argentina — Ceramic Tiles referred to Articles 6.5 and Article 12 of the Anti-Dumping Agreement as support for its conclusion that an investigating authority may rely on confidential information in making determinations while respecting its obligation to protect the confidentiality of that information. See paragraph 598 above.

(f) Article 15

846.     The Panel in EC — Tube or Pipe Fittings considered that it would certainly be desirable for an investigating authority to set out the steps it has taken with a view to exploring the possibilities for constructive remedies, but that “such exploration is not a matter on which a factual or legal determination must necessarily be made since, at most, it might lead to the imposition of remedies other than anti-dumping duties”.(1148) The Panel concluded that the elements of Article 15 were not of a “material” nature and thus did not consider that “the European Communities erred by not treating these elements as ‘material’ within the meaning of that term used in Article 12 and [we] thus do not view it as having erred by not having included these in its published final determination”.(1149)

(g) Article 17

847.     In Thailand — H-Beams, the Appellate Body referred to Article 12 in interpreting Articles 17.5 and 17.6. See paragraph 918 below.

 

XIV. Article 13     back to top

A. Text of Article 13

Article 13: Judicial Review

Each Member whose national legislation contains provisions on anti-dumping measures shall maintain judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review of administrative actions relating to final determinations and reviews of determinations within the meaning of Article 11. Such tribunals or procedures shall be independent of the authorities responsible for the determination or review in question.


B. Interpretation and Application of Article 13

848.     Members have provided descriptions of their systems for judicial review under Article 13, to the Working Group on Implementation of the Committee on Anti-Dumping Practices.(1150)

 

XV. Article 14     back to top

A. Text of Article 14

Article 14: Anti-Dumping Action on Behalf of a Third Country

14.1     An application for anti-dumping action on behalf of a third country shall be made by the authorities of the third country requesting action.

 

14.2     Such an application shall be supported by price information to show that the imports are being dumped and by detailed information to show that the alleged dumping is causing injury to the domestic industry concerned in the third country. The government of the third country shall afford all assistance to the authorities of the importing country to obtain any further information which the latter may require.

 

14.3     In considering such an application, the authorities of the importing country shall consider the effects of the alleged dumping on the industry concerned as a whole in the third country; that is to say, the injury shall not be assessed in relation only to the effect of the alleged dumping on the industry’s exports to the importing country or even on the industry’s total exports.

 

14.4     The decision whether or not to proceed with a case shall rest with the importing country. If the importing country decides that it is prepared to take action, the initiation of the approach to the Council for Trade in Goods seeking its approval for such action shall rest with the importing country.


B. Interpretation and Application of Article 14

849.     The reference in Article 14.4 to an approach to the Council on Trade in Goods refers to Article VI:6(b) of the GATT 1994, which permits levying of anti-dumping duties on behalf of a third country if a waiver has been obtained.

850.     The provisions of Article VI:6(b) and (c) on antidumping action on behalf of a third country have never been invoked since 1957 when they entered into force, and no waiver for this purpose has ever been requested. The provisions of Article 14 (and its predecessor provisions in the Tokyo Round and Kennedy Round Anti-Dumping Codes) have also never been invoked.

851.     For background on anti-dumping actions on behalf of a third country.

 

XVI. Article 15     back to top

A. Text of Article 15

Article 15: Developing Country Members

It is recognized that special regard must be given by developed country Members to the special situation of developing country Members when considering the application of anti-dumping measures under this Agreement. Possibilities of constructive remedies provided for by this Agreement shall be explored before applying anti-dumping duties where they would affect the essential interests of developing country Members.


B. Interpretation and Application of Article 15

1. General

852.     Paragraph 7.2 of the Doha Ministerial Decision of 14 November 2001 on Implementation-Related Issues and Concerns states that the Ministerial Conference “recognizes that, while Article 15 of the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 is a mandatory provision, the modalities for its application would benefit from clarification. Accordingly, the Committee on Anti-Dumping Practices is instructed, through its working group on Implementation, to examine this issue and to draw up appropriate recommendations within twelve months on how to operationalize this provision.”

853.     Paragraph 3 of the Recommendation Regarding Annual Reviews of the Anti-Dumping Agreement, adopted by the Committee on Anti-Dumping Practices at its meeting of 27 November 2002, provides for regular reporting by Members on fulfilment of obligations under Article 15:

“Developed country Members should include, when reporting anti-dumping actions in the semi-annual report that Members are required to submit under Article 16.4, the manner in which the obligations of Article 15 have been fulfilled. Without prejudice to the scope and application of Article 15, price undertakings and lesser duty rules are examples of constructive remedies that could be included in such Members’ semiannual reports. The Committee’s annual report under Article 18.6 should include, in a separate table, a compilation of the information reported by each Member in this respect during the reporting period. Where a Member has not provided such information, the report should note this omission.”(1151)

2. First sentence

(a) Extent of Members’ obligation

854.     In US — Steel Plate, the Panel considered that there are no specific legal requirements for specific action in the first sentence of Article 15 and that, therefore, “Members cannot be expected to comply with an obligation whose parameters are entirely undefined”. According to the Panel, “the first sentence of Article 15 imposes no specific or general obligation on Members to undertake any particular action.(1152)”(1153)

855.     A similar view was expressed by the Panel in EC — Tube or Pipe Fittings as follows:

“We agree with Brazil that there is no requirement for any specific outcome set out in the first sentence of Article 15. We are furthermore of the view that, even assuming that the first sentence of Article 15 imposes a general obligation on Members, it clearly contains no operational language delineating the precise extent or nature of that obligation or requiring a developed country Member to undertake any specific action. The second sentence serves to provide operational indications as to the nature of the specific action required. Fulfilment of the obligations in the second sentence of Article 15 would therefore necessarily, in our view, constitute fulfilment of any general obligation that might arguably be contained in the first sentence. We do not see this as a ‘reduction’ of the first sentence into the second sentence, as suggested to us by Brazil. Rather the second sentence articulates certain operational modalities of the first sentence.”(1154)

(b) When and to whom “special regard” should be given

856.     In US — Steel Plate, the Panel addressed the question of when and to whom special regard should be given under Article 15. The Panel concluded that Article 15 only requires special regard in respect of the final decision whether to apply a final measure and that such a special regard is to be given to the situation of developing country Members, and not to the situation of companies operating in developing countries:

“India’s arguments as to when and to whom this ‘special regard’ must be given disregard the text of Article 15 itself. Thus, the suggestion that special regard must be given throughout the course of the investigation, for instance in deciding whether to apply facts available, ignores that Article 15 only requires special regard ‘when considering the application of anti-dumping measures under this Agreement’. In our view, the phrase ‘when considering the application of anti-dumping measures under this Agreement’ refers to the final decision whether to apply a final measure, and not intermediate decisions concerning such matters as investigative procedures and choices of methodology during the course of the investigation. Finally, India’s argument focuses on the exporter, arguing that special regard must be given in considering aspects of the investigation relevant to developing country exporters involved in the case. However, Article 15 requires that special regard must be given ‘to the special situation of developing country Members‘. We do not read this as referring to the situation of companies operating in developing countries. Simply because a company is operating in a developing country does not mean that it somehow shares the ‘special situation’ of the developing country Member.”(1155)

3. Second sentence

(a) “constructive remedies provided for by this Agreement”

857.     The Panel in EC — Bed Linen rejected the argument that a “constructive remedy” might be a decision not to impose anti-dumping duties at all. The Panel stated that “Article 15 refers to ‘remedies’ in respect of injurious dumping. A decision not to impose an anti-dumping duty, while clearly within the authority of a Member under Article 9.1 of the Anti-Dumping Agreement, is not a ‘remedy’ of any type, constructive or otherwise” for injurious dumping:

“ ‘Remedy’ is defined as, inter alia, ‘a means of counteracting or removing something undesirable; redress, relief’. ‘Constructive’ is defined as ‘tending to construct or build up something non-material; contributing helpfully, not destructive’. The term ‘constructive remedies’ might consequently be understood as helpful means of counteracting the effect of injurious dumping. However, the term as used in Article 15 is limited to constructive remedies ‘provided for under this Agreement’. … In our view, Article 15 refers to ‘remedies’ in respect of injurious dumping.”(1156)

858.     Discussing what might be encompassed by the phrase “constructive remedies provided for by this Agreement”, the Panel in EC — Bed Linen mentioned the examples of the imposition of a “lesser duty” or a price undertaking:

“The Agreement provides for the imposition of antidumping duties, either in the full amount of the dumping margin, or desirably, in a lesser amount, or the acceptance of price undertakings, as means of resolving an antidumping investigation resulting in a final affirmative determination of dumping, injury, and causal link. Thus, in our view, imposition of a lesser duty, or a price undertaking would constitute ‘constructive remedies’ within the meaning of Article 15. We come to no conclusions as to what other actions might in addition be considered to constitute ‘constructive remedies’ under Article 15, as none have been proposed to us.”(1157)

(b) “shall be explored”

859.     The Panel in EC — Bed Linen, in interpreting the term “explore”, stated that, while the concept of “explore” does not imply any particular outcome, the developed country authorities must actively undertake the exploration of possibilities with a willingness to reach a positive outcome:

“In our view, while the exact parameters of the term are difficult to establish, the concept of ‘explore’ clearly does not imply any particular outcome. We recall that Article 15 does not require that ‘constructive remedies’ must be explored, but rather that the ‘possibilities’ of such remedies must be explored, which further suggests that the exploration may conclude that no possibilities exist, or that no constructive remedies are possible, in the particular circumstances of a given case. Taken in its context, however, and in light of the object and purpose of Article 15, we do consider that the ‘exploration’ of possibilities must be actively undertaken by the developed country authorities with a willingness to reach a positive outcome. Thus, in our view, Article 15 imposes no obligation to actually provide or accept any constructive remedy that may be identified and/or offered.(1158) It does, however, impose an obligation to actively consider, with an open mind, the possibility of such a remedy prior to imposition of an anti-dumping measure that would affect the essential interests of a developing country.”(1159)

860.     The Panel in EC — Bed Linen concluded that “[p]ure passivity is not sufficient, in our view, to satisfy the obligation to ‘explore’ possibilities of constructive remedies, particularly where the possibility of an undertaking has already been broached by the developing country concerned.” The Panel consequently regarded the failure of a Member “to respond in some fashion other than bare rejection particularly once the desire to offer undertakings had been communicated to it” as a failure to “explore constructive remedies”.(1160)

861.     In US Steel Plate, India had argued that the United States authorities should have considered applying a lesser duty in this case, despite the fact that US law does not provide for application of a lesser duty in any case. The Panel noted that “consideration and application of a lesser duty is deemed desirable by Article 9.1 of the [Anti-Dumping] Agreement, but is not mandatory.” Therefore, it stated, a Member is not obligated to have the possibility of a lesser duty in its domestic legislation. The Panel concluded that “the second sentence of Article 15 [cannot] be understood to require a Member to consider an action that is not required by the WTO Agreement and is not provided for under its own municipal law.”(1161)

(c) “before applying anti-dumping duties”

862.     The Panel in EC — Bed Linen interpreted the phrase “before applying anti-dumping duties” as follows:

“In our view, [Article 1] implies that the phrase ‘before applying anti-dumping duties’ … means before the application of definitive anti-dumping measures. Looking at the whole of the AD Agreement, we consider that the term ‘provisional measures’ is consistently used where the intention is to refer to measures imposed before the end of the investigative process. Indeed, in our view, the AD Agreement clearly distinguishes between provisional measures and anti-dumping duties, which term consistently refers to definitive measures. We find no instance in the Agreement where the term ‘anti-dumping duties’ is used in a context in which it can reasonably be understood to refer to provisional measures. Thus, in our view, the ordinary meaning of the term ‘anti-dumping duties’ in Article 15 is clear it refers to the imposition of definitive anti-dumping measures at the end of the investigative process.

 

Consideration of practical elements reinforces this conclusion. Provisional measures are based on a preliminary determination of dumping, injury, and causal link. While it is certainly permitted, and may be in a foreign producer’s or exporter’s interest to offer or enter into an undertaking at this stage of the proceeding, we do not consider that Article 15 can be understood to require developed country Members to explore the possibilities of price undertakings prior to imposition of provisional measures. In addition to the fact that such exploration may result in delay or distraction from the continuation of the investigation, in some cases, a price undertaking based on the preliminary determination of dumping could be subject to revision in light of the final determination of dumping. However, unlike a provisional duty or security, which must, under Article 10.3, be refunded or released in the event the final dumping margin is lower than the preliminarily calculated margin (as is frequently the case), a ‘provisional’ price undertaking could not be retroactively revised. We do not consider that an interpretation of Article 15 which could, in some cases, have negative effects on the very parties it is intended to benefit, producers and exporters in developing countries, is required.”(1162)

4. Relationship with other Articles

863.     The EC — Bed Linen Panel touched on the relationship between Article 15 and Article 1. See the first paragraph of the quote in paragraph 862 above.

 

PART II

 

XVII. Article 16     back to top

A. Text of Article 16

Article 16: Committee on Anti-Dumping Practices

16.1     There is hereby established a Committee on Anti-Dumping Practices (referred to in this Agreement as the “Committee”) composed of representatives from each of the Members. The Committee shall elect its own Chairman and shall meet not less than twice a year and otherwise as envisaged by relevant provisions of this Agreement at the request of any Member. The Committee shall carry out responsibilities as assigned to it under this Agreement or by the Members and it shall afford Members the opportunity of consulting on any matters relating to the operation of the Agreement or the furtherance of its objectives. The WTO Secretariat shall act as the secretariat to the Committee.

 

16.2     The Committee may set up subsidiary bodies as appropriate.

 

16.3     In carrying out their functions, the Committee and any subsidiary bodies may consult with and seek information from any source they deem appropriate. However, before the Committee or a subsidiary body seeks such information from a source within the jurisdiction of a Member, it shall inform the Member involved. It shall obtain the consent of the Member and any firm to be consulted.

 

16.4     Members shall report without delay to the Committee all preliminary or final anti-dumping actions taken. Such reports shall be available in the Secretariat for inspection by other Members. Members shall also submit, on a semi-annual basis, reports of any antidumping actions taken within the preceding six months. The semi-annual reports shall be submitted on an agreed standard form.

 

16.5     Each Member shall notify the Committee (a) which of its authorities are competent to initiate and conduct investigations referred to in Article 5 and (b) its domestic procedures governing the initiation and conduct of such investigations.


B. Interpretation and Application of Article 16

1. Article 16.1

(a) Rules of procedure

864.    At its meeting of 22 May 1996, the Council for Trade in Goods approved rules of procedure for the meetings of the Committee on Anti-Dumping Practices (the “Rules of Procedure).(1163)

(b) “shall meet not less than twice a year and otherwise”

865.     The Rules of Procedure require that the Committee “shall meet not less than twice a year in regular session, and otherwise as appropriate.”(1164)

2. Articles 16.4 and 16.5

(a) Reporting on anti-dumping actions

866.     At its meeting of 30 October 1995, the Committee on Anti-Dumping Practices adopted guidelines for the minimum information to be provided under Article 16.4 of the Agreement in reports on all preliminary or final anti-dumping actions.(1165) On 21 October 2009, the Committee adopted its most recent amended guidelines for reports on anti-dumping actions, as well as a standard form of notification by Members that have not established anti-dumping authorities and therefore never taken any anti-dumping actions.(1166) On 21 October 2009 as well, the Committee agreed that each Member “shall submit its anti-dumping notifications, including the ad hoc reports on all anti-dumping actions and the minimum information format, in electronic form.”(1167)

867.     At its meeting of 30 October 1995, the Committee on Anti-Dumping Practices adopted guidelines for the format of, and information to be provided in, the semiannual reports.(1168) The Committee adopted amended guidelines on 27 November 2008(1169).

868.     Notifications on anti-dumping legislation and on anti-dumping actions are circulated as unrestricted documents. In addition, the Secretariat website makes available a range of updated statistics on anti-dumping actions, e.g. by exporting country, reporting Member, and product sector.(1170)

 

XVIII. Article 17     back to top

A. Text of Article 17

Article 17: Consultation and Dispute Settlement

17.1     Except as otherwise provided herein, the Dispute Settlement Understanding is applicable to consultations and the settlement of disputes under this Agreement.

 

17.2     Each Member shall afford sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, representations made by another Member with respect to any matter affecting the operation of this Agreement.

 

17.3     If any Member considers that any benefit accruing to it, directly or indirectly, under this Agreement is being nullified or impaired, or that the achievement of any objective is being impeded, by another Member or Members, it may, with a view to reaching a mutually satisfactory resolution of the matter, request in writing consultations with the Member or Members in question. Each Member shall afford sympathetic consideration to any request from another Member for consultation.

 

17.4     If the Member that requested consultations considers that the consultations pursuant to paragraph 3 have failed to achieve a mutually agreed solution, and if final action has been taken by the administering authorities of the importing Member to levy definitive antidumping duties or to accept price undertakings, it may refer the matter to the Dispute Settlement Body (“DSB”). When a provisional measure has a significant impact and the Member that requested consultations considers that the measure was taken contrary to the provisions of paragraph 1 of Article 7, that Member may also refer such matter to the DSB.

 

17.5     The DSB shall, at the request of the complaining party, establish a panel to examine the matter based upon:

 

(i)     a written statement of the Member making the request indicating how a benefit accruing to it, directly or indirectly, under this Agreement has been nullified or impaired, or that the achieving of the objectives of the Agreement is being impeded, and

 

(ii) the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member.

 

17.6     In examining the matter referred to in paragraph 5:

 

(i)     in its assessment of the facts of the matter, the panel shall determine whether the authorities’ establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned;

 

(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities’ measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.

 

17.7     Confidential information provided to the panel shall not be disclosed without formal authorization from the person, body or authority providing such information. Where such information is requested from the panel but release of such information by the panel is not authorized, a non-confidential summary of the information, authorized by the person, body or authority providing the information, shall be provided.


B. Interpretation and Application of Article 17

1. General

(a) Articles of the Anti-Dumping Agreement invoked in panel and Appellate Body proceedings

869.     For a table of disputes under the Anti-Dumping Agreement, see the table of “Articles of the Covered Agreements Invoked in Panel and Appellate Body Proceedings” in the Chapter on the DSU.

(b) Ministerial Decisions

870.     At the Marrakech Ministerial Meeting on 15 April 1994, the Ministers adopted the Declaration on Dispute Settlement pursuant to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 or Part V of the Agreement on Subsidies and Countervailing Measures. See Section XXIII below.

(c) Concurrent application of Article 17 of the Anti-Dumping Agreement and the rules and procedures of the DSU

871.     The Appellate Body in Guatemala — Cement I rejected the finding by the Panel that “the provisions of Article 17 provides for a coherent set of rules for dispute settlement specific to anti-dumping cases, … that replaces the more general approach of the DSU (emphasis added).”(1171) The Appellate Body first held that the special or additional rules within the meaning of Article 1.2 shall prevail over the provisions of the DSU only “to the extent that there is a difference between the two sets of provisions”:

Article 1.2 of the DSU provides that the ‘rules and procedures of this Understanding shall apply subject to such special or additional rules and procedures on dispute settlement contained in the covered agreements as are identified in Appendix 2 to this Understanding.’ (emphasis added) It states, furthermore, that these special or additional rules and procedures ‘shall prevail’ over the provisions of the DSU ‘[t]o the extent that there is a difference between’ the two sets of provisions (emphasis added). Accordingly, if there is no ‘difference’, then the rules and procedures of the DSU apply together with the special or additional provisions of the covered agreement. In our view, it is only where the provisions of the DSU and the special or additional rules and procedures of a covered agreement cannot be read as complementing each other that the special or additional provisions are to prevail. A special or additional provision should only be found to prevail over a provision of the DSU in a situation where adherence to the one provision will lead to a violation of the other provision, that is, in the case of a conflict between them. An interpreter must, therefore, identify an inconsistency or a difference between a provision of the DSU and a special or additional provision of a covered agreement before concluding that the latter prevails and that the provision of the DSU does not apply.

 

We see the special or additional rules and procedures of a particular covered agreement as fitting together with the generally applicable rules and procedures of the DSU to form a comprehensive, integrated dispute settlement system for the TWO Agreement. The special or additional provisions listed in Appendix 2 of the DSU are designed to deal with the particularities of dispute settlement relating to obligations arising under a specific covered agreement, while Article 1 of the DSU seeks to establish an integrated and comprehensive dispute settlement system for all of the covered agreements of the TWO Agreement as a whole. It is, therefore, only in the specific circumstance where a provision of the DSU and a special or additional provision of another covered agreement are mutually inconsistent that the special or additional provision may be read to prevail over the provision of the DSU.”(1172)

872.     The Appellate Body in Guatemala — Cement I then found that Article 17 of the Anti-Dumping Agreement does not replace the “more general approach of the DSU”.

“Clearly, the consultation and dispute settlement provisions of a covered agreement are not meant to replace, as a coherent system of dispute settlement for that agreement, the rules and procedures of the DSU. To read Article 17 of the Anti-Dumping Agreement as replacing the DSU system as a whole is to deny the integrated nature of the WTO dispute settlement system established by Article 1.1 of the DSU. To suggest, as the Panel has, that Article 17 of the Anti-Dumping Agreement replaces the ‘more general approach of the DSU’ is also to deny the application of the often more detailed provisions of the DSU to anti-dumping disputes. The Panel’s conclusion is reminiscent of the fragmented dispute settlement mechanisms that characterized the previous GATT 1947 and Tokyo Round agreements; it does not reflect the integrated dispute settlement system established in the WTO.”(1173)

(d) Challenge against anti-dumping legislation as such

873.     One of the main issues which arose in the US — 1916 Act dispute was whether an anti-dumping statute could, in the light of Article 17 of the Anti-Dumping Agreement, be challenged “as such”, rather than a specific application of such a statute in a particular antidumping investigation. Discussing the legal basis for claims brought under the Anti-Dumping Agreement, the Appellate Body in US — 1916 Act stated:

Article 17 of the Anti-Dumping Agreement addresses dispute settlement under that Agreement. Just as Articles XXII and XXIII of the GATT 1994 create a legal basis for claims in disputes relating to provisions of the GATT 1994, so also Article 17 establishes the basis for dispute settlement claims relating to provisions of the Anti-Dumping Agreement. In the same way that Article XXIII of the GATT 1994 allows a WTO Member to challenge legislation as such, Article 17 of the Anti-Dumping Agreement is properly to be regarded as allowing a challenge to legislation as such, unless this possibility is excluded. No such express exclusion is found in Article 17 or elsewhere in the Anti-Dumping Agreement.”(1174)

874.     In considering whether Article 17 contains an implicit restriction on challenges to anti-dumping legislation as such, the Appellate Body, in US — 1916 Act, noted the following:

Article 17.1 refers, without qualification, to ‘the settlement of disputes’ under the Anti-Dumping Agreement. Article 17.1 does not distinguish between disputes relating to Anti-Dumping legislation as such and disputes relating to anti-dumping measures taken in the implementation of such legislation. Article 17.1 therefore implies that Members can challenge the consistency of legislation as such with the Anti-Dumping Agreement unless this action is excluded by Article 17.

 

Similarly, Article 17.2 of the Anti-Dumping Agreement does not distinguish between disputes relating to antidumping legislation as such and disputes relating to antidumping measures taken in the implementation of such legislation. On the contrary, it refers to consultations with respect to ‘any matter affecting the operation of this Agreement’.(1175)

Article 17.3 does not explicitly address challenges to legislation as such. … Articles XXII and XXIII allow challenges to be brought under the GATT 1994 against legislation as such. Since Article 17.3 is the ‘equivalent provision’ to Articles XXII and XXIII of the GATT 1994, Article 17.3 provides further support for our view that challenges may be brought under the Anti-Dumping Agreement against legislation as such unless such challenges are otherwise excluded.”(1176)

875.     After finding that Article 17.3 supported its view that challenges may be brought under the Anti-Dumping Agreement against legislation as such, unless such challenges are explicitly excluded, the Appellate Body also addressed Article 17.4:

Article 17.4 sets out certain conditions that must exist before a Member can challenge action taken by a national investigating authority in the context of an antidumping investigation. However, Article 17.4 does not address or affect Member’s right to bring a claim of inconsistency with the Anti-Dumping Agreement against anti-dumping legislation as such.”(1177)

876.     The Appellate Body in US — 1916 Act finally referred to Articles 18.1 and 18.4 of the Anti-Dumping Agreement as contextual support for its reading of Article 17 as allowing Members to bring claims against anti-dumping legislation as such:

“Nothing in Article 18.4 or elsewhere in the Anti-Dumping Agreement excludes the obligation set out in Article 18.4 from the scope of matters that may be submitted to dispute settlement.

 

If a Member could not bring a claim of inconsistency under the Anti-Dumping Agreement against legislation as such until one of the three anti-dumping measures specified in Article 17.4 had been adopted and was also challenged, then examination of the consistency with Article 18.4 of anti-dumping legislation as such would be deferred, and the effectiveness of Article 18.4 would be diminished.

 Article 18.1 contains a prohibition on ‘specific action against dumping’ when such action is not taken in accordance with the provisions of the GATT 1994, as interpreted by the Anti-Dumping Agreement. Specific action against dumping could take a wide variety of forms. If specific action against dumping is taken in a form other than a form authorized under Article VI of the GATT 1994, as interpreted by the Anti-Dumping Agreement, such action will violate Article 18.1. We find nothing, however, in Article 18.1 or elsewhere in the Anti-Dumping Agreement, to suggest that the consistency of such action with Article 18.1 may only be challenged when one of the three measures specified in Article 17.4 has been adopted. Indeed, such an interpretation must be wrong since it implies that, if a Member’s legislation provides for a response to dumping that does not consist of one of the three measures listed in Article 17.4, then it would be impossible to test the consistency of that legislation, and of particular responses there under, with Article 18.1 of the Anti-Dumping Agreement.

 

Therefore, we consider that Articles 18.1 and 18.4 support our conclusion that a Member may challenge the consistency of legislation as such with the provisions of the Anti-Dumping Agreement.” (1178)

877.     In US — Hot-Rolled Steel, Japan had challenged Section 735(c)(5)(A) of the United States Tariff Act of 1930, as amended, which provided for a method for calculating the “all others” rate (see paragraphs (i) 708 above) as inconsistent with Article 9.4. The Panel found that Section 735(c)(5)(A), as amended, was, on its face, inconsistent with Article 9.4 “in so far as it requires the consideration of margins based in part on facts available in the calculation of the all others rate”. The Panel further found that, in maintaining this Section following the entry into force of the Anti-Dumping Agreement, the United States had acted inconsistently with Article 18.4 of this Agreement as well as with Article XVI:4 of the WTO Agreement.(1179) The Appellate Body upheld these findings.(1180)

(e) Mandatory versus discretionary legislation (1181)

(i) General

878.     The Appellate Body and the Panels addressed the issue of mandatory versus discretionary legislation with respect to the United States Antidumping Act of 1916. This United States legislation provided for civil and criminal proceedings to counteract predatory pricing from abroad. In addition, the Panel in US — 1916 Act (EC), in a finding explicitly endorsed by the Appellate Body (1182), rejected the United States’ argument, according to which the 1916 Act was a non-mandatory law, because the US Department of Justice had the discretion to initiate, or not, a case under the 1916 Act:

“The EC also refers to the panel report in EC — Audio Cassettes, which was not adopted.(1183) This report stated why the mere fact that the initiation of anti-dumping investigations was discretionary would not make the EC legislation non-mandatory. The panel stated that:

 

‘[it] did not consider in any event that its task in this case was to determine whether the EC’s Basic Regulation was non-mandatory in the sense that the initiation of investigations and impositions of duties were not mandatory functions. Should panels accept this approach, they would be precluded from ever reviewing the content of a party’s anti-dumping legislation.’(1184)

 

The EC — Audio Cassettes panel based its reasoning on the fact that this would undermine the obligation contained in Article 16.6 of the Tokyo Round Anti-Dumping Agreement. That provision provided that parties had to bring their laws, regulations and administrative procedures into conformity with the provisions of the Tokyo Round Anti-Dumping Agreement.(1185) We note that almost identical terms are found in Article 18.4 of the WTO Anti-Dumping Agreement …

 …

 Since we found that Article VI and the WTO Anti-Dumping Agreement are applicable to the 1916 Act, we consider that the reasoning of the panel in the EC — Audio Cassettes case should apply in the present case. Interpreting the provisions of Article 18.4 differently would undermine the obligations contained in that Article and would be contrary to the general principle of useful effect by making all the disciplines of the Anti-Dumping Agreement non-enforceable as soon as a Member would claim that the investigating authority has discretion to initiate or not an anti-dumping investigation.”(1186)

879.     In US DRAMS, Korea challenged certain certification requirements under the United States antidumping law. The provision challenged by Korea required exporters to certify, upon removal of anti-dumping duties, that they agreed to the reinstatement of the anti-dumping duties on the products of their company if, after revocation of the original anti-dumping duties, the United States authorities found dumping. The Panel rejected the Korean arguments, noting that the certification requirement was not a mandatory requirement for revocation under United States anti-dumping law in general. The Panel held that other provisions of United States anti-dumping law and regulations of the United States authorities made revocation of an anti-dumping order possible contingent upon a different set of requirements, not including the certification requirement:

“We note section 751(b) of the 1930 Tariff Act (as amended) and section 353.25(d) of the DOC’s regulations, whereby an anti-dumping order may be revoked on the basis of ‘changed circumstances’. We note that neither of these provisions imposes a certification requirement. In other words, an anti-dumping order may be revoked under these provisions absent fulfilment of the section 353.25(a)(2)(iii) certification requirement. We also note that Korea has not challenged the consistency of these provisions with the WTO Agreement. Thus, because of the existence of legislative avenues for Article 11.2-type reviews that do not impose a certification requirement, and which have not been found inconsistent with the WTO Agreement, we are precluded from finding that the section 353.25(a)(2)(iii) certification requirement in and of itself amounts to a mandatory requirement inconsistent with Article 11.2 of the AD Agreement.”(1187)

880.     In US — Section 129(c)(1) URAA, Canada had claimed that certain United States legislation as such violated WTO law. The Panel (1188) decided to analyse first whether the United States legislation at issue was mandatory, before analysing whether the behaviour mandated would be inconsistent with the relevant WTO provisions.(1189)

(ii) Rejection of the distinction?

881.     In US — Corrosion-Resistant Steel Sunset Review, the Appellate Body, for the first time, did not follow the traditional mandatory versus discretionary rule and found that it saw no reason for concluding that, in principle, non-mandatory measures cannot be challenged “as such”. In this case, the measure at issue was the United States Sunset Policy Bulletin which the Panel had found not to be challengeable as such because it was not mandatory for the competent authorities. The Appellate Body disagreed:

“We also believe that the provisions of Article 18.4 of the Anti-Dumping Agreement are relevant to the question of the type of measures that may, as such, be submitted to dispute settlement under that Agreement. Article 18.4 contains an explicit obligation for Members to ‘take all necessary steps, of a general or particular character’ to ensure that their ‘laws, regulations and administrative procedures’ are in conformity with the obligations set forth in the Anti-Dumping Agreement. Taken as a whole, the phrase ‘laws, regulations and administrative procedures’ seems to us to encompass the entire body of generally applicable rules, norms and standards adopted by Members in connection with the conduct of anti-dumping proceedings.(1190) If some of these types of measure could not, as such, be subject to dispute settlement under the Anti-Dumping Agreement, it would frustrate the obligation of ‘conformity’ set forth in Article 18.4.

 

This analysis leads us to conclude that there is no basis, either in the practice of the GATT and the WTO generally or in the provisions of the Anti-Dumping Agreement, for finding that only certain types of measure can, as such, be challenged in dispute settlement proceedings under the Anti-Dumping Agreement. Hence we see no reason for concluding that, in principle, non-mandatory measures cannot be challenged ‘as such’. To the extent that the Panel’s findings in paragraphs 7.145, 7.195, and 7.246 of the Panel Report suggest otherwise, we consider them to be in error.

 

We observe, too, that allowing measures to be the subject of dispute settlement proceedings, whether or not they are of a mandatory character, is consistent with the comprehensive nature of the right of Members to resort to dispute settlement to ‘preserve [their] rights and obligations … under the covered agreements, and to clarify the existing provisions of those agreements’.(1191) As long as a Member respects the principles set forth in Articles 3.7 and 3.10 of the DSU, namely, to exercise their ‘judgement as to whether action under these procedures would be fruitful’ and to engage in dispute settlement in good faith, then that Member is entitled to request a panel to examine measures that the Member considers nullify or impair its benefits. We do not think that panels are obliged, as a preliminary jurisdictional matter, to examine whether the challenged measure is mandatory. This issue is relevant, if at all, only as part of the panel’s assessment of whether the measure is, as such, inconsistent with particular obligations. It is to this issue that we now turn.”(1192)

882.     In US — Corrosion-Resistant Steel Sunset Review, the Appellate Body, referring to its previous report in US — 1916 Act where it did follow the mandatory/discretionary rule, indicated that it had yet to pronounce itself generally upon the continuing relevance of such a distinction and warned against its “mechanistic application”:

“We explained in US — 1916 Act that this analytical tool existed prior to the establishment of the WTO, and that a number of GATT panels had used it as a technique for evaluating claims brought against legislation as such.(1193) As the Panel seemed to acknowledge(1194), we have not, as yet, been required to pronounce generally upon the continuing relevance or significance of the mandatory/discretionary distinction.(1195) Nor do we consider that this appeal calls for us to undertake a comprehensive examination of this distinction. We do, nevertheless, wish to observe that, as with any such analytical tool, the import of the ‘mandatory/discretionary distinction’ may vary from case to case. For this reason, we also wish to caution against the application of this distinction in a mechanistic fashion.”(1196)

(f) Challenge of a “practice” as such

883.     In US — Export Restraints, Canada had claimed that the US “practice” of treating export restraints as meeting the “financial contribution” requirement of Article 1.1(a)(1)(iv) of the SCM Agreement was a measure and could be challenged as such. Canada defined US “practice” as “an institutional commitment to follow declared interpretations or methodologies that is reflected in cumulative determinations” and claimed that this “practice” has an “operational existence in and of itself”. The Panel considered whether the alleged US practice required the US authorities to treat export restraints in a certain way and therefore had “independent operational status”. The Panel, which concluded that there was no measure in the form of US practice, indicated:

“[W]hile Canada may be right that under US law, ‘practice must normally be followed, and those affected by US [CVD] law … therefore have reason to expect that it will be’, past practice can be departed from as long as a reasoned explanation, which prevents such practice from achieving independent operational status in the sense of doing something or requiring some particular action. The argument that expectations are created on the part of foreign governments, exporters, consumers, and petitioners as a result of any particular practice that the DOC ‘normally’ follows would not be sufficient to accord such a practice an independent operational existence. Nor do we see how the DOC’s references in its determinations to its practice gives ‘legal effect to that “practice” as determinative of the interpretations and methodologies it applies’. US ‘practice’ therefore does not appear to have independent operational status such that it could independently give rise to a WTO violation as alleged by Canada.”(1197)

884.     In US — Hot-Rolled Steel, Japan had also challenged the “general” practice of the US investigating authorities regarding total facts available. The Panel did not rule on whether a general practice could be challenged separately from the statutory measure on which it is based because it concluded that Japan’s claim in this regard was outside its terms of reference. Indeed, the Panel found that there was no mention of such a claim in Japan’s request for the establishment of a panel.(1198)

885.     In US — Steel Plate, the United States, referring to the Panel’s decision in US — Export Restraints, argued that the United States “practice” (in this case its practice as regards total facts available) could not be the subject of a claim because it did not have “independent operational status” and therefore it was not a “measure”.(1199) India, on the contrary, claimed that a “practice” becomes a “measure” through repeated similar responses to the same situation.(1200) The Panel concluded that “[t]he challenged practice in this case is, in our view, no different from that considered in the US — Export Restraints case. It can be departed from so long as a reasoned explanation is given. It therefore lacks independent operational status, as it cannot require USDOC to do something, or refrain from doing something.”(1201)

2. Article 17.1

(a) “settlement of disputes”

886.     Article 17.1 was discussed by the Appellate Body in US — 1916 Act. See paragraph 874 above.

3. Article 17.2

(a) “any matter affecting the operation of this Agreement”

887.     Article 17.2 was discussed by the Appellate Body in US — 1916 Act. See paragraph 874 above.

4. Article 17.3

(a) Exclusion of Article 17.3 of the Anti-Dumping Agreement from Appendix 2 of the DSU

888.     In analysing the Panel’s interpretation of the relationship between Article 17 of the Anti-Dumping Agreement and the DSU, the Appellate Body in Guatemala — Cement I referred to the exclusion of Article 17.3 from Appendix 2 of the DSU, which lists the special or additional rules and procedures contained in the covered agreements:

“The Anti-Dumping Agreement is a covered agreement listed in Appendix 1 of the DSU; the rules and procedures of the DSU, therefore, apply to disputes brought pursuant to the consultation and dispute settlement provisions contained in Article 17 of that Agreement … [Article 17.3] is not listed [in Appendix 2 of the DSU,] precisely because it provides the legal basis for consultations to be requested by a complaining Member under the Anti-Dumping Agreement. Indeed, it is the equivalent provision in the Anti-Dumping Agreement to Articles XXII and XXIII of the GATT 1994, which serve as the basis for consultations and dispute settlement under the GATT 1994, under most of the other agreements in Annex 1A of the … WTO Agreement, and under the … TRIPS Agreement.”(1202)

5. Article 17.4

(a) Scope of Article 17.4: “if final action has been taken”

889.     In Guatemala — Cement I, Mexico’s complaint related to various aspects of the anti-dumping investigation by Guatemala applied in a specific case. Guatemala requested that the complaint be rejected, because (i) while a provisional anti-dumping measure was identified in the request for panel establishment, Mexico had not asserted and demonstrated that the measure had had a “significant impact” as required under Article 17.4, and (ii) neither of a final antidumping measure and a price undertaking had been identified in Mexico’s request for the establishment of the panel.

890.     The Panel in Guatemala — Cement I found that Article 17.4 of the Anti-Dumping Agreement is a “timing provision”, meaning that Article 17.4 established when a panel may be requested, rather than a provision setting forth the appropriate subject of a request for establishment of a panel.(1203) The Appellate Body disagreed with this finding and stated that “Article 6.2 of the DSU requires ‘the specific measures at issue’ to be identified in the Panel request.”(1204) In determining what may constitute a “specific measure” for the purposes of the Anti-Dumping Agreement, the Appellate Body in Guatemala — Cement I stated:

“According to Article 17.4, a ‘matter’ may be referred to the DSB only if one of the relevant three anti-dumping measures is in place. This provision, when read together with Article 6.2 of the DSU, requires a Panel request in a dispute brought under the Anti-Dumping Agreement to identify, as the specific measure at issue, either a definitive anti-dumping duty, the acceptance of a price undertaking, or a provisional measure. This requirement to identify a specific anti-dumping measure at issue in a Panel request in no way limits the nature of the claims that may be brought concerning alleged nullification or impairment of benefits or the impeding of the achievement of any objective in a dispute under the Anti-Dumping Agreement. As we have observed earlier, there is a difference between the specific measures at issue in the case of the Anti-Dumping Agreement, one of the three types of anti-dumping measure described in Article 17.4 and the claims or the legal basis of the complaint referred to the DSB relating to those specific measures. In coming to this conclusion, we note that the language of Article 17.4 of the Anti-Dumping Agreement is unique to that Agreement.

 

[I]n disputes under the Anti-Dumping Agreement relating to the initiation and conduct of anti-dumping investigations, a definitive anti-dumping duty, the acceptance of a price undertaking or a provisional measure must be identified as part of the matter referred to the DSB pursuant to the provisions of Article 17.4 of the Anti-Dumping Agreement and Article 6.2 of the DSU.”(1205)

891.     In US 1916 Act, the Panel and the Appellate Body were called upon to determine whether the Anti-Dumping Agreement allowed challenges to antidumping legislation “as such”, rather than merely to the specific application of such legislation in individual anti-dumping investigations. The Panel in US — 1916 Act found that it had jurisdiction to consider claims “as such”.(1206) The United States based its objections to the Panel’s jurisdiction on Article 17.4. More specifically, the United States argued that Members could not bring a claim of inconsistency with the Anti-Dumping Agreement “against legislation as such independently from a claim with respect to one of the three measures identified in Article 17.4, i.e. a definitive anti-dumping duty, a price undertaking, or a provisional measure.”(1207) The United States relied on the Appellate Body’s findings in Guatemala — Cement I, where the Appellate Body had held that “[a]ccording to Article 17.4, a ‘matter’ may be referred to the DSB only if one of the relevant three antidumping measures is in place. This provision, when read together with Article 6.2 of the DSU, requires a panel request in a dispute brought under the Anti-Dumping Agreement to identify, as the specific measure at issue, either a definitive anti-dumping duty, the acceptance of a price undertaking, or a provisional measure.”(1208) The Appellate Body upheld the Panel’s findings; in doing so, it first clarified its own findings in Guatemala — Cement I:

“In Guatemala — Cement, Mexico had challenged Guatemala’s initiation of anti-dumping proceedings, and its conduct of the investigation, without identifying any of the measures listed in Article 17.4

 …

 Nothing in our Report in Guatemala — Cement suggests that Article 17.4 precludes review of anti-dumping legislation as such. Rather, in that case, we simply found that, for Mexico to challenge Guatemala’s initiation and conduct of the anti-dumping investigation, Mexico was required to identify one of the three anti-dumping measures listed in Article 17.4 in its request for establishment of a panel. Since it did not do so, the panel in that case did not have jurisdiction.”(1209)

892.     After clarifying its own findings in Guatemala — Cement I with respect to Article 17.4, the Appellate Body turned to the considerations underlying the restrictions contained in Article 17.4:

“In the context of dispute settlement proceedings regarding an anti-dumping investigation, there is tension between, on the one hand, a complaining Member’s right to seek redress when illegal action affects its economic operators and, on the other hand, the risk that a responding Member may be harassed or its resources squandered if dispute settlement proceedings could be initiated against it in respect of each step, however small, taken in the course of an anti-dumping investigation, even before any concrete measure had been adopted. (1210) In our view, by limiting the availability of dispute settlement proceedings related to an anti-dumping investigation to cases in which a Member’s request for establishment of a panel identifies a definitive anti-dumping duty, a price undertaking or a provisional measure(1211), Article 17.4 strikes a balance between these competing considerations.

 

Therefore, Article 17.4 sets out certain conditions that must exist before a Member can challenge action taken by a national investigating authority in the context of an anti-dumping investigation. However, Article 17.4 does not address or affect a Member’s right to bring a claim of inconsistency with the Anti-Dumping Agreement against anti-dumping legislation as such.”(1212)

893.     After setting out the function of Article 17.4 within the Anti-Dumping Agreement, the Appellate Body also stated that it failed to see, in the light of firmly established GATT and WTO jurisprudence according to which claims can be brought against legislation as such, which particular characteristics should distinguish anti-dumping legislation from other legislation so as to render the established case law practice inapplicable in the context of anti-dumping legislation. Finally, the Appellate Body also referred to Articles 18.1 and 18.4 as context for its findings.(1213)

894.     In Mexico — Corn Syrup, the question arose whether, in a dispute where the specific measure challenged is a definitive anti-dumping duty, a Member may assert a claim of violation of Article 7.4, which establishes maximum time periods for the imposition of provisional measures. Article 17.4 establishes the possibility of challenging definitive anti-dumping duties, price undertakings or provisional measures; with respect to the latter, Article 17.4 establishes that “[w]hen a provisional measure has a significant impact and [a] Member … considers that the measure was taken contrary to the provisions of paragraph 1 of Article 7, that Member may also refer such matter to the DSB”. The Panel discussed to what extent the United States’ claim under Article 7.4 was “related to” Mexico’s definitive anti-dumping duty:

“The Appellate Body Report in Guatemala — Cement indicates that a complainant may, having identified a specific anti-dumping duty in its request for establishment, bring any claims under the AD Agreement relating to that specific measure. That there should be a relationship between the measure challenged in a dispute and the claims asserted in that dispute would appear necessary, given that Article 19.1 of the DSU requires that, ‘where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with the agreement’.

 

[W]e consider that the United States’ claim under Article 7.4 of the AD Agreement is nevertheless related to Mexico’s definitive anti-dumping duty. In this regard, we recall that, under Article 10 of the AD Agreement, a provisional measure represents a basis under which a Member may, if the requisite conditions are met, levy anti-dumping duties retroactively. At the same time, a Member may not, except in the circumstances provided for in Article 10.6 of the AD Agreement, retroactively levy a definitive antidumping duty for a period during which provisional measures were not applied. Consequently, because the period of time for which a provisional measure is applied is generally determinative of the period for which a definitive anti-dumping duty may be levied retroactively, we consider that a claim regarding the duration of a provisional measure relates to the definitive anti-dumping duty.”(1214)

895.     The Panel in Mexico — Corn Syrup then considered the fact that Article 17.4 refers only to paragraph 1 of Article 7 and decided that it would be incorrect to interpret Article 17.4 in a manner “which would leave Members without any possibility to pursue dispute settlement in respect of a claim alleging a violation of a requirement of the AD Agreement”:

“Read literally, this provision could be taken to mean that in a dispute where the specific measure being challenged is a provisional measure, the only claim that a Member may pursue is a claim under Article 7.1 of the AD Agreement (and not a claim under Article 7.4 of the AD Agreement). If this conclusion is correct, a ruling that a claim under Article 7.4 could not be pursued in a dispute where the specific measure challenged is a definitive antidumping duty would mean that a Member would never be able to pursue an Article 7.4 claim. In our view, it would be incorrect to interpret Article 17.4 of the AD Agreement in a manner which would leave Members without any possibility to pursue dispute settlement in respect of a claim alleging a violation of a requirement of the AD Agreement.”(1215)

896.     The Appellate Body in US — Continued Zeroing found that “continued zeroing” is a measure susceptible of challenge in dispute settlement. Noting that “Articles 17.3 and 17.4 of the Anti-Dumping Agreement are also relevant” to this issue,(1216) the Appellate Body then characterized “continued zeroing” as “the use of the zeroing methodology in successive proceedings”:

“[T]he measures at issue consist of neither the zeroing methodology as a rule or norm of general and prospective application, nor discrete applications of the zeroing methodology in particular determinations; rather, they are the use of the zeroing methodology in successive proceedings, in each of the 18 cases, by which duties are maintained over a period of time. We see no reason to exclude ongoing conduct that consists of the use of the zeroing methodology from challenge in WTO dispute settlement. The successive determinations by which duties are maintained are connected stages in each of the 18 cases involving imposition, assessment, and collection of duties under the same anti-dumping duty order. The use of the zeroing methodology in a string of these stages is the allegedly unchanged component of each of the 18 measures at issue. It is with respect to this ongoing conduct that the European Communities brought its challenge, seeking its cessation. … In our view, the European Communities, in seeking an effective resolution of its dispute with the United States, is entitled to frame the subject of its challenge in such a way as to bring the ongoing conduct, regarding the use of the zeroing methodology in these 18 cases, under the scrutiny of WTO dispute settlement.”(1217)

897.     In the dispute on US — Orange Juice (Brazil), the United States argued that “continued zeroing” does not amount to “final action” within the meaning of Article 17.4, and therefore a claim regarding continued zeroing could not be referred to dispute settlement. Recalling the Appellate Body’s findings in US — Continued Zeroing, and noting that “Brazil’s complaint is focused on the Sudan’s alleged ‘use of zeroing’ in multiple proceedings, under the orange juice anti-dumping duty order, as a single ‘ongoing conduct’ measure”, the Panel stated:

“In our view, an ‘ongoing conduct’ measure is broader than the type of conduct envisaged under Article 17.4 of the AD Agreement, and as such, falls outside of its scope of operation.

 

… the evidence Brazil has advanced in support of the existence of the alleged ‘continued zeroing’ measure includes instances where the United States authorities have, in fact, levied definitive anti-dumping duties. Thus, Brazil does not challenge the alleged ‘continued zeroing’ measure in the absence of any connection between this alleged measure and ‘final action’. On the contrary, the evidence of United States’ ‘final action’ lies at the heart of Brazil’s complaint.

 

In conclusion, we find that … the inclusion of Brazil’s claim against the alleged ‘continued zeroing’ measure in our terms of reference is not inconsistent with the requirements of Article 17.4 of the AD Agreement.”(1218)

(b) Concept of “matter”

898.     The Appellate Body described the word “matter” in paragraphs 2, 3, 4, 5 and 6 of Article 17 as “the key concept in defining the scope of a dispute that may be referred to the DSB under the Anti-Dumping Agreement and, therefore, in identifying the parameters of a Panel’s terms of reference in an anti-dumping dispute.”(1219) Regarding the ordinary meaning of “matter”, the Appellate Body in Guatemala — Cement I stated that “the most appropriate [ordinary meaning] in this context is ‘substance’ or ‘subject-matter’. Although the ordinary meaning is rather broad, it indicates that the ‘matter’ is the substance or subject-matter of the dispute.”(1220) The Appellate Body then linked the term “matter” to a panel’s terms of reference under Article 7 of the DSU and defined matter as consisting of: (i) the specific measures at issue and (ii) the legal basis of the complaint or the claims:

“The word ‘matter’ appears in Article 7 of the DSU, which provides the standard terms of reference for Panels. Under this provision, the task of a Panel is to examine ‘the matter referred to the DSB’. These words closely echo those of Article 17.4 of the Anti-Dumping Agreement and, in view of the integrated nature of the dispute settlement system, form part of the context of that provision. Article 7 of the DSU itself does not shed any further light on the meaning of the term ‘matter’. However, when that provision is read together with Article 6.2 of the DSU, the precise meaning of the term ‘matter’ becomes clear. Article 6.2 specifies the requirements under which a complaining Member may refer a ‘matter’ to the DSB: in order to establish a Panel to hear its complaint, a Member must make, in writing, a ‘request for the establishment of a Panel’ (a ‘Panel request’). In addition to being the document which enables the DSB to establish a Panel, the Panel request is also usually identified in the Panel’s terms of reference as the document setting out ‘the matter referred to the DSB’. Thus, ‘the matter referred to the DSB’ for the purposes of Article 7 of the DSU and Article 17.4 of the Anti-Dumping Agreement must be the ‘matter’ identified in the request for the establishment of a Panel under Article 6.2 of the DSU. That provision requires the complaining Member, in a Panel request, to ‘identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly.’ (emphasis added) The ‘matter referred to the DSB’, therefore, consists of two elements: the specific measures at issue and the legal basis of the complaint (or the claims).

 

In our Report in Brazil — Coconut, we agreed with previous Panels established under the GATT 1947, as well as under the [AD Agreement], ‘that the “matter” referred to a Panel for consideration consists of the specific claims stated by the parties to the dispute in the relevant documents specified in the terms of reference.’(1221) Statements in two of the Panel reports cited by us in that case clarify further the relationship between the ‘matter’, the ‘measures’ at issue and the ‘claims’. In United States — Imposition of Anti-Dumping Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway(1222), the Panel found that ‘the “matter” consisted of the specific claims stated by Norway … with respect to the imposition of these duties’. (emphasis added) A distinction is therefore to be drawn between the ‘measure’ and the ‘claims’. Taken together, the ‘measure’ and the ‘claims’ made concerning that measure constitute the ‘matter referred to the DSB’, which forms the basis for a Panel’s terms of reference.”(1223)

(c) Claims

899.     Noting that Article 17.4 does not refer to “claims”, the Panel in Mexico — Corn Syrup stated that “Article 17.4 does not, in our view, set out any further or additional requirements with respect to the degree of specificity with which claims must be set forth in a request for establishment challenging a final anti-dumping measure.”(1224) The Panel concluded that “a request for establishment that satisfies the requirements of Article 6.2 of the DSU in this regard also satisfies the requirements of Article 17.4 of the AD Agreement.”(1225)

900.     In US — Hot-Rolled Steel, the issue arose whether the “general” practice of the United States investigating authorities regarding best facts available was within the terms of reference of the Panel. The Panel, which did not rule on whether a general practice could be challenged separately from the statutory measure on which it is based, concluded that Japan’s claim in this regard was outside its terms of reference because there was no mention of such a claim in Japan’s request for the establishment of a panel.(1226)

901.     As regards the concept of claims or legal basis of the complaint, see Articles 6 and 7 of the Chapter on the DSU.

(i) Abandoned claims

902.     In US — Steel Plate, India indicated in its first written submission that it would not pursue several claims that had been set out in its request for establishment of the Panel. However, India subsequently changed its position and informed the Panel of its intention to pursue one of these claims during the first substantive meeting of the Panel with the parties and in its rebuttal submission. In spite of the lack of specific objection by the United States which had noted that the claim was within the Panel’s terms of reference, the Panel concluded that it would not rule on India’s abandoned claim:

“This situation is not explicitly addressed in either the DSU or any previous panel or Appellate Body report. We do note, however, the ruling of the Appellate Body in Bananas to the effect that a claim may not be raised for the first time in a first written submission, if it was not in the request for establishment.(1227) One element of the Appellate Body’s decision in that regard was the notice aspect of the request for establishment. The request for establishment is relied upon by Members in deciding whether to participate in the dispute as third parties. To allow a claim to be introduced in a first written submission would deprive Members who did not choose to participate as third parties from presenting their views with respect to such a new claim.

 

The situation here is, in our view, analogous. That is, to allow a party to resurrect a claim it had explicitly stated, in its first written submission, that it would not pursue would, in the absence of significant adjustments in the Panel’s procedures, deprive other Members participating in the dispute settlement proceeding of their full opportunities to defend their interest with respect to that claim. Paragraphs 4 and 7 of Appendix 3 to the DSU provide that parties shall ‘present the facts of the case and their arguments’ in the first written submission, and that written rebuttals shall be submitted prior to the second meeting. These procedures, in our view, envision that initial arguments regarding a claim should be presented for the first time in the first written submission, and not at the meeting of the panel with the parties or in rebuttal submissions.

 

With respect to the interests of third parties, the unfairness of allowing a claim to be argued for the first time at the meeting of the panel with the parties, or in rebuttal submissions, is even more pronounced. In such a circumstance, third parties would be entirely precluded from responding to arguments with respect to such a resurrected claim, as they would not have access to those arguments under the normal panel procedures set out in paragraph 6 of Appendix 3 to the DSU. Further, India has identified no extenuating circumstances to justify the reversal of its abandonment of this claim.(1228) Thus, in our view, it would be inappropriate in these circumstances to allow India to resurrect its claim in this manner. Therefore, we will not rule on India’s claim under AD Agreement Articles 6.6 and 6.8 and Annex II, paragraph 7 regarding failure to exercise special circumspection in using information supplied in the petition.(1229)”(1230)

6. Article 17.5

(a) Article 17.5(i)

903.     In considering what requirements, if any, must be fulfilled by virtue of Article 17.5(i) of the Anti-Dumping Agreement in addition to requirements existing under Article 6.2 of the DSU, the Panel in Mexico — Corn Syrup stated:

“In our view, Article 17.5(i) does not require a complaining Member to use the words ‘nullify’ or ‘impair’ in a request for establishment. However, it must be clear from the request that an allegation of nullification or impairment is being made, and the request must explicitly indicate how benefits accruing to the complaining Member are being nullified or impaired.”(1231)

904.     The Panel in Mexico — Corn Syrup went on to state that, in its view:

“A request for establishment that alleges violations of the AD Agreement which, if demonstrated, will constitute a prima facie case of nullification or impairment under Article 3.8 of the DSU, contains a sufficient allegation of nullification or impairment for purposes of Article 17.5(i). In addition, as noted above, the request must indicate how benefits accruing to the complaining Member are being nullified or impaired.”(1232)

(b) Article 17.5(ii)

(i) Documents not available to the investigating authorities

905.     In US — Hot-Rolled Steel, the Panel found that, under Article 17.5(ii), “a panel may not, when examining a claim of violation of the AD Agreement (1233) in a particular determination, consider facts or evidence presented to it by a party in an attempt to demonstrate error in the determination concerning questions that were investigated and decided by the authorities, unless they had been made available in conformity with the appropriate domestic procedures to the authorities of the investigating country during the investigation”.(1234) The Panel further concluded that its duty not to consider new evidence with respect to claims under the Anti-Dumping Agreement “flows not only from Article 17.5(ii), but also from the fact that a panel is not to perform a de novo review of the issues considered and decided by the investigating authorities”.(1235)

(ii) Undisclosed facts

906.     In Thailand — H-Beams, in reversing the Panel’s finding that an injury determination must be based exclusively upon evidence disclosed to, or discernible by, the parties to the investigation, the Appellate Body explained the scope of facts which panels are required to review pursuant to Article 17.5(ii), as follows:

Article 17.5 specifies that a panel’s examination must be based upon the ‘facts made available’ to the domestic authorities. Anti-dumping investigations frequently involve both confidential and non-confidential information. The wording of Article 17.5 does not specifically exclude from panel examination facts made available to domestic authorities, but not disclosed or discernible to interested parties by the time of the final determination. Based on the wording of Article 17.5, we can conclude that a panel must examine the facts before it, whether in confidential documents or non-confidential documents.”(1236)

907.     See also paragraphs 185188 above.

(iii) Documents created for the purpose of a dispute

908.     In deciding whether a document created post hoc for the purposes of a dispute could be considered by the Panel, the Panel in EC — Bed Linen stated that Article 17.5(ii) “does not require … that a panel consider those facts exclusively in the format in which they were originally available to the investigating authority. Indeed, the very purpose of the submissions of the parties to the Panel is to marshal the relevant facts in an organized and comprehensible fashion to elucidate the parties’ positions and in support of their arguments.”(1237) The Panel concluded that “the form of the document, (i.e., a new document) does not preclude us from considering its substance, which comprises facts made available to the investigating authority during the investigation.”(1238)

(c) Relationship with other paragraphs of Article 17

909.     In Thailand — H-Beams, the Appellate Body discussed the relationship between Articles 17.5 and 17.6. See paragraphs 187188 above and 918 below.

7. Article 17.6

(a) Ministerial Decision

910.     At the Ministerial Meeting in Marrakesh on 15 April 1994, the Ministers adopted the Decision on Review of Article 17.6 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994. See Section XXIV below.

(b) Relationship with the standard of review in Article 11 of the DSU

911.     In US — Hot Rolled Steel, the Appellate Body compared the standards of review under Article 17.6 of the Anti-Dumping Agreement and Article 11 of the DSU when considering to what extent Article 17.6 may conflict with Article 11 of the DSU.(1239) The Appellate Body explained that, whilst Article 17.6 lays down rules relating to a panel’s examination of “matters” arising under only one of the covered agreements, i.e. the Anti-Dumping Agreement, Article 11 of the DSU rules applies to a panel’s examination of “matters” arising under any of the covered agreements.(1240) The Appellate Body then focussed on the different structure of both provisions and indicated:

Article 11 of the DSU imposes upon panels a comprehensive obligation to make an ‘objective assessment of the matter’, an obligation which embraces all aspects of a panel’s examination of the ‘matter’, both factual and legal. … Article 17.6 is divided into two separate subparagraphs, each applying to different aspects of the panel’s examination of the matter. The first sub-paragraph covers the panels assessment of the facts of the matter’, whereas the second covers its ‘interpret[ation of] the relevant provisions‘. (emphasis added) The structure of Article 17.6, therefore, involves a clear distinction between a panel’s assessment of the facts and its legal interpretation of the Anti-Dumping Agreement.”(1241)

912.     The Panel in US — Softwood Lumber VI addressed the question of whether the application of the standard of review under Article 11 of the DSU to a determination could, in appropriate factual circumstances, lead to differing outcomes compared to the application of the Article 11 of the DSU and Article 17.6(i) of the Anti-Dumping Agreement standards together to the same determination:

“Under the Article 17.6 standard, with respect to claims involving questions of fact, Panels have concluded that whether the measures at issue are consistent with relevant provisions of the AD Agreement depends on whether the investigating authority properly established the facts, and evaluated the facts in an unbiased and objective manner. This latter has been defined as assessing whether an unbiased and objective decision maker, taking into account the facts that were before the investigating authority, and in light of the explanations given, could have reached the conclusions that were reached. A panel’s task is not to carry out a de novo review of the information and evidence on the record of the underlying investigation. Nor may a panel substitute its judgment for that of the investigating authorities, even though the Panel might have arrived at a different determination were it considering the record evidence for itself.

 

Similarly, the Appellate Body has explained that, under Article 11 of the DSU, a panel’s role is not to substitute its analysis for that of the investigating authority.(1242) The Appellate Body has stated:

 

‘We wish to emphasize that, although panels are not entitled to conduct a de novo review of the evidence, nor to substitute their own conclusions for those of the competent authorities, this does not mean that panels must simply accept the conclusions of the competent authorities’.(1243)

 

In light of Canada’s clarification of its position, and based on our understanding of the applicable standards of review under Article 11 of the DSU and Article 17.6 of the AD Agreement, we do not consider that it is either necessary or appropriate to conduct separate analyses of the USITC determination under the two Agreements.

 

We consider this result appropriate in view of the guidance in the Declaration of Ministers relating to Dispute Settlement under the AD and SCM Agreements. While the Appellate Body has clearly stated that the Ministerial Declaration does not require the application of the Article 17.6 standard of review in countervailing duty investigations, (1244) it nonetheless seems to us that in a case such as this one, involving a single injury determination with respect to both subsidized and dumped imports, and where most of Canada’s claims involve identical or almost identical provisions of the AD and SCM Agreements, we should seek to avoid inconsistent conclusions.”(1245)

913.     As regards the relationship of Article 11 of the DSU with Articles 17.6(i) and 17.6(ii) respectively, see paragraphs 925926 and 935 below respectively.

(c) Article 17.6(i)

(i) General

914.     In Guatemala — Cement II, the Panel defined the standard of review applicable by virtue of Article 17.6(i):

“We consider that it is not our role to perform a de novo review of the evidence which was before the investigating authority in this case. Rather, Article 17 makes it clear that our task is to review the determination of the investigating authorities. Specifically, we must determine whether its establishment of the facts was proper and the evaluation of those facts was unbiased and objective.(1246) In other words, we must determine whether an unbiased and objective investigating authority evaluating the evidence before it at the time of the investigation could properly have made the determinations made by Guatemala in this case. In our review of the investigating authorities’ evaluation of the facts, we will first need to examine evidence considered by the investigating authority, and second, this examination is limited by Article 17.5(ii) to the facts before the investigating authority. That is, we are not to examine any new evidence that was not part of the record of the investigation.(1247)”(1248)

915.     In EC — Bed Linen (Article 21.5 — India), the Appellate Body stated clearly that it “will not interfere lightly with [a] panel’s exercise of its ‘discretion’ under Article 17.6(i) of the Anti-Dumping Agreement.”(1249) In that appeal, it also explained that “[a]n appellant must persuade us, with sufficiently compelling reasons, that we should disturb a panel’s assessment of the facts or interfere with a panel’s discretion as the trier of facts.”(1250) Applying this standard in EC — Tube or Pipe Fittings, the Appellate Body rejected Brazil’s claim that the Panel failed to assess whether the establishment of the facts was proper pursuant to Article 17.6(i) of the Anti-Dumping Agreement, when it found that an internal note which contained analysis of certain injury factors and which was not disclosed to the interested parties during the investigation, was part of the record of the underlying anti-dumping investigation. The Appellate Body considered highly relevant that the Panel had not just accepted at face value the assertion of the European Communities that this internal note was contemporaneous to the investigation and formed part of the record of the investigation, but had taken steps to assure itself of the validity of this exhibit and of the fact that it formed part of the contemporaneous written record of the EC investigation.(1251)

(ii) “establishment of the facts was proper”

Record of the investigating authority

916.     In Guatemala — Cement I, in order to examine the claim that the initiation of an investigation was not consistent with Article 5, the Panel “scrutinized all the information which was on the record before the Ministry at the time of initiation in examining whether an unbiased and objective investigating authority could properly have made the determination that was reached by the Ministry.”(1252) The panels in EC — Bed Linen, US — Stainless Steel (Korea), Guatemala — Cement II, and Thailand — H-Beams also based their factual review of decisions of the investigating authority on the evidence before the authority at the time of the determination.(1253) See also paragraphs 905908 above dealing with Article 17.5(ii) which orders panels to consider a dispute under the Anti-Dumping Agreement on the basis of the facts made available to the investigating authorities.

Treatment of undisclosed facts

917.     In Thailand — H-Beams, in discussing whether an injury determination must be based only upon evidence disclosed to the parties to the investigation, the Appellate Body interpreted the term “establishment of the facts was proper”, as follows:

“The ordinary meaning of ‘establishment’ suggests an action to ‘place beyond dispute; ascertain, demonstrate, prove’; the ordinary meaning of ‘proper’ suggests ‘accurate’ or ‘correct’. Based on the ordinary meaning of these words, the proper establishment of the facts appears to have no logical link to whether those facts are disclosed to, or discernible by, the parties to an anti-dumping investigation prior to the final determination.”(1254)

918.     The Appellate Body elaborated on the aim of Article 17.6(i), stating that its function is to “prevent a panel from ‘second-guessing’ a determination of a national authority when the establishment of the facts is proper and the evaluation of those facts is unbiased and objective”:

“There is a clear connection between Articles 17.6(i) and 17.5(ii). The facts of the matter referred to in Article 17.6(i) are ‘the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member’ under Article 17.5(ii). Such facts do not exclude confidential facts made available to the authorities of the importing Member. Rather, Article 6.5 explicitly recognizes the submission of confidential information to investigating authorities and its treatment and protection by those authorities. Article 12, in paragraphs 2.1, 2.2 and 2.3, also recognizes the use, treatment and protection of confidential information by investigating authorities. The ‘facts’ referred to in Articles 17.5(ii) and 17.6(i) thus embrace ‘all facts confidential and non-confidential’, made available to the authorities of the importing Member in conformity with the domestic procedures of that Member. Article 17.6(i) places a limitation on the panel in the circumstances defined by the Article. The aim of Article 17.6(i) is to prevent a panel from ‘second-guessing’ a determination of a national authority when the establishment of the facts is proper and the evaluation of those facts is unbiased and objective. Whether evidence or reasoning is disclosed or made discernible to interested parties by the final determination is a matter of procedure and due process. These matters are very important, but they are comprehensively dealt with in other provisions, notably Articles 6 and 12 of the Anti-Dumping Agreement.”(1255)

(iii) the evaluation of facts was unbiased and objective

919.     In US — Stainless Steel (Korea), the Panel examined the determinations of the United States authorities on the issue of whether certain local sales were in dollars or won. The Panel rejected Korea’s argument that Article 17.6(i) did not apply to the examination of this issue because the United States decision on this point was not a factual determination. The Panel stated:

“Korea’s view appears to be that Article 17.6(i) applies only in respect of the establishment of certain objectively-ascertainable underlying facts, e.g., did the invoices express the sales values in terms of dollars or won, in what currency payment was made, etc. We consider that this interpretation does not however coincide with the language of Article 17.6(i). That Article speaks not only to the establishment of the facts, but also to their evaluation. Therefore, the Panel must check not merely whether the national authorities have properly established the relevant facts but also the value or weight attached to those facts and whether this was done in an unbiased and objective manner. This concerns the according of a certain weight to the facts in their relation to each other; it is not a legal evaluation.”(1256)

920.     In Thailand — H-Beams, in discussing whether an injury determination must be based only upon evidence disclosed to the parties to the investigation, the Appellate Body touched on the term “unbiased and objective”. The Appellate Body stated that “[t]he ordinary meaning of the words ‘unbiased’ and ‘objective’ also appears to have no logical link to whether those facts are disclosed to, or discernible by, the parties to an anti-dumping investigation at the time of the final determination.”(1257) See also the excerpt from the Appellate Body Report on Thailand — H-Beams referenced in paragraph 918 above.

(iv) Relevance of the different roles of panels and investigating authorities

921.     In US — Hot-Rolled Steel, when defining the task of panels under Article 17.6(i), the Appellate Body recalled the importance “to bear in mind the different roles of panels and investigating authorities”.(1258)

“Although the text of Article 17.6(i) is couched in terms of an obligation on panels — panels ‘shall’ make these determinations the provision, at the same time, in effect defines when investigating authorities can be considered to have acted inconsistently with the Anti-Dumping Agreement in the course of their ‘establishment’ and ‘evaluation’ of the relevant facts. In other words, Article 17.6(i) sets forth the appropriate standard to be applied by panels in examining the WTO consistency of the investigating authorities’ establishment and evaluation of the facts under other provisions of the Anti-Dumping Agreement. Thus, panels must assess if the establishment of the facts by the investigating authorities was proper and if the evaluation of those facts by those authorities was unbiased and objective. If these broad standards have not been met, a panel must hold the investigating authorities’ establishment or evaluation of the facts to be inconsistent with the Anti-Dumping Agreement.”(1259)

922.     As regards the different roles of investigating authorities and panels in the context of Article 3.7 (threat of serious injury), see paragraph 302 above.

(v) No ex post rationalization

923.     On the question of whether ex post rationalization should be taken into account in order to assess an authority’s compliance with the provisions of the Anti-Dumping Agreement, the Panel in Argentina — Ceramic Tiles stated:

“under Article 17.6 of the AD Agreement we are to determine whether the DCD established the facts properly and whether the evaluation performed by the DCD was unbiased and objective. In other words, we are asked to review the evaluation of the DCD made at the time of the determination as set forth in a public notice or in any other document of a public or confidential nature. We do not believe that, as a panel reviewing the evaluation of the investigating authority, we are to take into consideration any arguments and reasons that did not form part of the evaluation process of the investigating authority, but instead are ex post facto justifications which were not provided at the time the determination was made.”(1260) (emphasis in original)

924.     The Panel in Argentina — Poultry Anti-Dumping Duties agreed with the view expressed by the Panel in Argentina — Ceramic Tiles, concluding that as a panel reviewing the evaluation of the investigating authority, it did not believe it was to “take into consideration any arguments and reasons that are not demonstrated to have formed part of the evaluation process of the investigating authority”.(1261)

(vi) Relationship of Article 17.6(i) with Article 11 of the DSU

925.     In US — Hot-Rolled Steel, the Appellate Body defined the task of panels under Article 17.6(i) by comparing it to their task under Article 11 of the DSU:

“Under Article 17.6(i), the task of panels is simply to review the investigating authorities’ ‘establishment’ and ‘evaluation’ of the facts. To that end, Article 17.6(i) requires panels to make an ‘assessment of the facts’. The language of this phrase reflects closely the obligation imposed on panels under Article 11 of the DSU to make an ‘objective assessment of the facts’. Thus the text of both provisions requires panels to ‘assess’ the facts and this, in our view, clearly necessitates an active review or examination of the pertinent facts. Article 17.6(i) of the Anti-Dumping Agreement does not expressly state that panels are obliged to make an assessment of the facts which is ‘objective’. However, it is inconceivable that Article 17.6(i) should require anything other than that panels make an objective ‘assessment of the facts of the matter’. In this respect, we see no ‘conflict’ between Article 17.6(i) of the Anti-Dumping Agreement and Article 11 of the DSU.”(1262)

926.     In US — Steel Plate, India requested the Panel to conduct an “active review” of the facts before the US investigating authorities pursuant to both Article 11 of the DSU and Article 17.6(i). India based its request in the Appellate Body’s decisions on the application of Article 11 in US — Cotton Yarn and of Article 17.6(i) in US — Hot-Rolled Steel.(1263) The United States was opposed to such a request since it considered that India was trying to add to the obligations of investigating authorities. The Panel considered that there was no question that it had to apply Article 17.6 to the dispute and recalled the Appellate Body’s decision in US — Hot-Rolled Steel to the effect that Article 17.6(i) is not in conflict with Article 11 of the DSU(1264) and that Article 17.6(ii) supplemented Article 11 of the DSU.(1265) (1266) The Panel found:

“[W]e do not consider that India’s reference to Article 11 of the DSU constitutes an argument that we apply some other or different standard of review in considering the factual aspects of this dispute than that set out in Article 17.6 of the AD Agreement, which India recognizes is applicable in all anti-dumping disputes. That standard requires us to assess the facts to determine whether the investigating authorities’ own establishment of facts was proper, and to assess the investigating authorities’ own evaluation of those facts to determine if it was unbiased and objective. What is clear from this is that we are precluded from establishing facts and evaluating them for ourselves that is, we may not engage in de novo review. However, this does not limit our examination of the matters in dispute, but only the manner in which we conduct that examination. In this regard, we keep in mind that Article 17.5(ii) of the AD Agreement establishes that we are to examine the matter based upon ‘the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member.’”(1267)

(d) Article 17.6(ii)

(i) First sentence: customary rules of interpretation

927.     In US — Hot-Rolled Steel, the Appellate Body looked into the first sentence of Article 17.6(ii) which provides that the Panel “shall” interpret the provisions of the Anti-Dumping Agreement “in accordance with customary rules of interpretation”, and considered that it echoed closely Article 3.2 of the DSU (see Article 3.2 of the Chapter on the DSU). The Appellate Body stated that such customary rules are embodied in Articles 31 and 32 of the Vienna Convention on the Law of the Treaties. On a further note, the Appellate Body indicated that “[c]learly, this aspect of Article 17.6(ii) involves no ‘conflict’ with the DSU but, rather, confirms that the usual rules of treaty interpretation under the DSU also apply to the Anti-Dumping Agreement”.(1268)

(ii) Second sentence: more than one permissible interpretation

928.     The second sentence of Article 17.6(ii) deals with the situation where there is more than one permissible interpretation of a provision of the Anti-Dumping Agreement.(1269) In US — Hot-Rolled Steel, the Appellate Body defined the term “permissible interpretation” as “one which is found to be appropriate after application of the pertinent rules of the Vienna Convention”.(1270) The Appellate Body considered:

“This second sentence of Article 17.6(ii) presupposes that application of the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention could give rise to, at least, two interpretations of some provisions of the Anti-Dumping Agreement, which, under that Convention, would both be ‘permissible interpretations’. In that event, a measure is deemed to be in conformity with the Anti-Dumping Agreement ‘if it rests upon one of those permissible interpretations.’

 

It follows that, under Article 17.6(ii) of the Anti-Dumping Agreement, panels are obliged to determine whether a measure rests upon an interpretation of the relevant provisions of the Anti-Dumping Agreement which is permissible under the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention.”(1271)

929.     The Appellate Body in US — Zeroing (Japan) did not consider “Articles 2.4, 2.4.2, 9.3, 9.5, and 11.3 of the Anti-Dumping Agreement and Articles VI:1 and VI:2 of the GATT 1994, when interpreted in accordance with customary rules of interpretation of public international law, as required by the first sentence of Article 17.6 (ii), … [permit] … another interpretation of these provisions as far as the issue of zeroing before us is concerned.”(1272) The Appellate Body in US — Softwood Lumber V (Article 21.5 — Canada) found that “Article 2.4.2 does not admit an interpretation that would allow the use of zeroing under the transaction-to-transaction comparison methodology. Therefore, the contrary view is not a permissible interpretation of Article 2.4.2 within the meaning of Article 17.6(ii) of the Anti-Dumping Agreement.(1273)”(1274)

930.     The Panel in US — Stainless Steel (Mexico) was of the view that it was at least a permissible interpretation of Article 9.3 “that the concept of dumping may be interpreted on an importer-specific basis … we are precluded from excluding an interpretation which we find permissible, even if there may be other permissible interpretations.”(1275) The Appellate Body in US — Stainless Steel (Mexico) did not agree with the Panel:

“In our analysis, we have been mindful of the standard of review provided in Article 17.6(ii) of the Anti-Dumping Agreement. However, we consider that Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement, when interpreted in accordance with the customary rules of interpretation of public international law as required by the first sentence of Article 17.6(ii) of the Anti-Dumping Agreement, do not admit of another interpretation as far as the issue of zeroing raised in this appeal is concerned.”(1276)

931. In US — Continued Zeroing, the Appellate Body analysed Article 17.6(a)(ii) in the context of the law of treaty interpretation:

Article 17.6(ii) consists of two sentences. The first sentence clarifies that panels are charged with the obligation to interpret the provisions of the Anti-Dumping Agreement ‘in accordance with customary rules of interpretation of public international law’. The same language is found in Article 3.2 of the DSU.(1277) Panels examining claims under the Anti-Dumping Agreement are therefore required to apply the customary rules of treaty interpretation codified in Articles 31 and 32 of the Vienna Convention. … The customary rules of treaty interpretation apply to any treaty, in any field of public international law, and not just to the WTO agreements. As the Appellate Body has said, they ‘impose certain common disciplines upon treaty interpreters, irrespective of the content of the treaty provision being examined and irrespective of the field of international law concerned.’(1278)

 

The principles of interpretation that are set out in Articles 31 and 32 are to be followed in a holistic fashion. The interpretative exercise is engaged so as to yield an interpretation that is harmonious and coherent and fits comfortably in the treaty as a whole so as to render the treaty provision legally effective. A word or term may have more than one meaning or shade of meaning, but the identification of such meanings in isolation only commences the process of interpretation, it does not conclude it. Nor do multiple meanings of a word or term automatically constitute ‘permissible’ interpretations within the meaning of Article 17.6(ii). Instead, a treaty interpreter is required to have recourse to context and object and purpose to elucidate the relevant meaning of the word or term. This logical progression provides a framework for proper interpretative analysis. At the same time, it should be kept in mind that treaty interpretation is an integrated operation, where interpretative rules or principles must be understood and applied as connected and mutually reinforcing components of a holistic exercise.

 

The second sentence of Article 17.6(ii) imposes an obligation on panels that is not found elsewhere in the covered agreements. It stipulates that:

 

Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities’ measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.

 

The Appellate Body has reasoned that the second sentence of Article 17.6(ii) presupposes ‘that application of the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention could give rise to, at least, two interpretations of some provisions of the Anti-Dumping Agreement, which, under that Convention, would both be “permissible interpretations”.’(1279) Where that is the case, a measure is deemed to be in conformity with the Anti-Dumping Agreement ‘if it rests upon one of those permissible interpretations.’ As the Appellate Body has said, ‘[i]t follows that, under Article 17.6(ii) of the Anti-Dumping Agreement, panels are obliged to determine whether a measure rests upon an interpretation of the relevant provisions of the Anti-Dumping Agreement which is permissible under the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention.’(1280)

 

The second sentence of Article 17.6(ii) must therefore be read and applied in the light of the first sentence. We wish to make a number of general observations about the second sentence. First, Article 17.6(ii) contemplates a sequential analysis. The first step requires a panel to apply the customary rules of interpretation to the treaty to see what is yielded by a conscientious application of such rules including those codified in the Vienna Convention. Only after engaging this exercise will a panel be able to determine whether the second sentence of Article 17.6(ii) applies. The structure and logic of Article 17.6(ii) therefore do not permit a panel to determine first whether an interpretation is permissible under the second sentence and then to seek validation of that permissibility by recourse to the first sentence.

 

Secondly, the proper interpretation of the second sentence of Article 17.6(ii) must itself be consistent with the rules and principles set out in the Vienna Convention. This means that it cannot be interpreted in a way that would render it redundant, or that derogates from the customary rules of interpretation of public international law. However, the second sentence allows for the possibility that the application of the rules of the Vienna Convention may give rise to an interpretative range and, if it does, an interpretation falling within that range is permissible and must be given effect by holding the measure to be in conformity with the covered agreement. The function of the second sentence is thus to give effect to the interpretative range rather than to require the interpreter to pursue further the interpretative exercise to the point where only one interpretation within that range may prevail.

 

We further note that the rules and principles of the Vienna Convention cannot contemplate interpretations with mutually contradictory results. Instead, the enterprise of interpretation is intended to ascertain the proper meaning of a provision; one that fits harmoniously with the terms, context, and object and purpose of the treaty.(1281) The purpose of such an exercise is therefore to narrow the range of interpretations, not to generate conflicting, competing interpretations. Interpretative tools cannot be applied selectively or in isolation from one another. It would be a subversion of the interpretative disciplines of the Vienna Convention if application of those disciplines yielded contradiction instead of coherence and harmony among, and effect to, all relevant treaty provisions. Moreover, a permissible interpretation for purposes of the second sentence of Article 17.6 (ii) is not the result of an inquiry that asks whether a provision of domestic law is ‘necessarily excluded’ by the application of the Vienna Convention. Such an approach subverts the hierarchy between the treaty and municipal law. It is the proper interpretation of a covered agreement that is the enterprise with which Article 17.6(ii) is engaged, not whether the treaty can be interpreted consistently with a particular Member’s municipal law or with municipal laws of Members as they existed at the time of the conclusion of the relevant treaty.”(1282)

932.     The Appellate Body then found that “[a] holding that zeroing is also consistent with Article 9.3 would be flatly contradictory. Such contradiction would be repugnant to the customary rules of treaty interpretation referred to in the first sentence of Article 17.6(ii). Consequently, it is not a permissible interpretation within the meaning of Article 17.6(ii), second sentence.”(1283)

933.     A concurring opinion in US — Continued Zeroing emphasized the importance of finality:

“Variability, contradiction, and uncertainty stalk the interpretative enterprise, but they are the hallmarks of its failure, not its success. Just as the interpreter of a treaty strives for coherence, there is an inevitable recognition that a treaty bears the imprint of many hands. And what is left behind is a text, sometimes negotiated to a point where an agreement to regulate a matter could only be reached on the basis of constructive ambiguity, carrying both the hopes and fears of the parties. Interpretation is an endeavour to discern order, notwithstanding these infirmities, without adding to or diminishing the rights and obligations of the parties.”(1284)

 

“There is little point in further rehearsing the fine points of these interpretations. In my view, there is every reason to survey this debate with humility. There are arguments of substance made on both sides; but one issue is unavoidable. In matters of adjudication, there must be an end to every great debate. The Appellate Body exists to clarify the meaning of the covered agreements. On the question of zeroing it has spoken definitively. Its decisions have been adopted by the DSB. The membership of the WTO is entitled to rely upon these outcomes. Whatever the difficulty of interpreting the meaning of ‘dumping’, it cannot bear a meaning that is both exporter-specific and transaction-specific. We have sought to elucidate the notion of permissibility in the second sentence of Article 17(6)(ii). The range of meanings that may constitute a permissible interpretation does not encompass meanings of such wide variability, and even contradiction, so as to accommodate the two rival interpretations. One must prevail. The Appellate Body has decided the matter. At a point in every debate, there comes a time when it is more important for the system of dispute resolution to have a definitive outcome, than further to pick over the entrails of battles past. With respect to zeroing, that time has come.”(1285)

934.     In US — Orange Juice (Brazil), the Panel again addressed the possibility of rival interpretations under Article 17.6(a)(ii), concluding that it would follow the Appellate Body’s interpretation of dumping, despite doubts as to whether it was the only permissible interpretation:

“It is well established that the purpose of treaty interpretation through the use of the Vienna Convention is the identification of the common intention of the parties. It follows that where the common intention of the parties to a treaty explicitly provides for two conflicting interpretations of the same term or treaty provision, the Vienna Convention rules on treaty interpretation must necessarily recognize both positions. In other words, where the very words of a treaty expressly provide for the legality of two rival interpretations, the Vienna Convention will respect both interpretations. The same result must also hold where the examination of a term’s ordinary meaning, in the light of its context and the object and purpose of the treaty to which it pertains, establishes a common intention of the parties to accept two conflicting interpretations. … Thus, we see the critical question before us in the present dispute to be the following: does application of the customary rules of interpretation of public international law reflected in the Vienna Convention rules of treaty interpretation lead us to understand the common intention of the Members at the end of the Uruguay Round as allowing for one exclusive (‘product as a whole’) interpretation of the concept of ‘dumping’; or does it accept the possibility that ‘dumping’ may also have an additional (‘transaction-specific’) meaning?”(1286)

 

“For the reasons we have tried to explain … we find it difficult to accept, on the basis of the arguments and jurisprudence we have reviewed, that the AD Agreement entertains only one exclusive definition of ‘dumping’. However, there is no doubt in our minds that on the question of ‘zeroing’, and more particularly, the definition of ‘dumping’, the string of Appellate Body reports concerning mainly the United States’ use of ‘zeroing’ in antidumping proceedings read loud and clear.”(1287)

 

“Given the objective lack of clarity in the current definition of ‘dumping’ that is set forth in the AD Agreement (a conclusion which we believe is inescapable after almost a decade of unprecedented, and often conflicting, panel and Appellate Body opinions on the matter), we firmly believe that all Members have a strong systemic interest in seeing that a lasting resolution to the ‘zeroing’ controversy is found sooner rather than later.

 

With all these considerations in mind, and despite sometimes diverse positions existing even amongst ourselves as to different aspects of this debate, we believe that, on balance, our function under Article 11 of the DSU, and the integrity and effectiveness of the WTO dispute settlement system, are best served in the present instance by following the Appellate Body. Thus, we find that the only permissible interpretation of the definition of ‘dumping’ contained in Article 2.1 of the AD Agreement, with relevance for the entire AD Agreement, is one that is based on an understanding that ‘dumping’ can only be determined for the ‘product as a whole’, and not individual transactions.”(1288)

(iii) Relationship with standard of review in Article 11 of the DSU

935. In US — Hot-Rolled Steel, the Appellate Body considered the relationship between Article 17.6(ii) and the DSU, in particular Article 11. The Appellate Body stated:

“[A]lthough the second sentence of Article 17.6(ii) of the Anti-Dumping Agreement imposes obligations on panels which are not found in the DSU, we see Article 17.6(ii) as supplementing, rather than replacing, the DSU, and Article 11 in particular. Article 11 requires panels to make an ‘objective assessment of the matter’ as a whole. Thus, under the DSU, in examining claims, panels must make an ‘objective assessment’ of the legal provisions at issue, their ‘applicability’ to the dispute, and the ‘conformity’ of the measures at issue with the covered agreements. Nothing in Article 17.6(ii) of the Anti-Dumping Agreement suggests that panels examining claims under that Agreement should not conduct an ‘objective assessment’ of the legal provisions of the Agreement, their applicability to the dispute, and the conformity of the measures at issue with the Agreement. Article 17.6(ii) simply adds that a panel shall find that a measure is in conformity with the Anti-Dumping Agreement if it rests upon one permissible interpretation of that Agreement.”(1289)

936.     With respect to the question of the legal interpretation under Article 17.6(ii), the Panel in US — Softwood Lumber VI considered that under the Anti-Dumping Agreement, a panel is to follow the same rules of treaty interpretation as in any other dispute:

“Thus, it is clear to us that under the AD Agreement, a panel is to follow the same rules of treaty interpretation as in any other dispute. The difference is that if a panel finds more than one permissible interpretation of a provision of the AD Agreement, it may uphold a measure that rests on one of those interpretations. It is not clear whether the same result could be reached under Articles 3.2 and 11 of the DSU. However, it seems to us that there might well be cases in which the application of the Vienna Convention principles together with the additional provisions of Article 17.6 of the AD Agreement could result in a different conclusion being reached in a dispute under the AD Agreement than under the SCM Agreement. In this case, it has not been necessary for us to resolve this question, as we did not find any instances where the question of violation turned on the question whether there was more than one permissible interpretation of the text of the relevant Agreements.”(1290)

937. The Panel in EC — Salmon (Norway) came to the same conclusion:

“Thus, it is clear that under the AD Agreement, we are to follow the same rules of treaty interpretation as a panel in any other dispute. The difference is that if, after following those rules, we find more than one permissible interpretation of a provision of the AD Agreement, we may uphold a measure that rests on one of those interpretations.”(1291)

(e) Relationship between subparagraphs (i) and (ii) of Article 17.6

938. In Mexico — Corn Syrup (Article 21.5 — US), the Appellate Body ruled that “the requirements of the standard of review provided for in Article 17.6(i) and 17.6(ii) are cumulative. In other words, a panel must find a determination made by the investigating authorities to be consistent with relevant provisions of the Anti-Dumping Agreement if it finds that those investigating authorities have properly established the facts and evaluated those facts in an unbiased and objective manner, and that the determination rests upon a ‘permissible’ interpretation of the relevant provisions.”(1292)

8. Relationship with other Articles

(a) Article 3

939.     In Thailand — H-Beams, the Appellate Body addressed the relationship between Articles 3.1, and 17.5 and 17.6. See paragraph 187 above.

(b) Article 5

940.     The Panel in Guatemala — Cement I addressed the relationship between Articles 5.3 and 17.6. In determining what constitutes “sufficient evidence to justify the initiation of an investigation” under Article 5.3, the Panel in Guatemala — Cement I applied the standard of review set out in Article 17.6(i).(1293) The Panel also considered that the standard of review for the initiation of an investigation under Article 5 is less strict than that for preliminary or final determination of dumping, injury and causation.(1294) However, the Appellate Body found that the dispute was not properly before the Panel and therefore did not reach a conclusion on the interpretation of Article 17.6. See paragraph 367 above.

(c) Article 7

941.     The relationship between Articles 7.1 and 17.4 was discussed in Mexico — Corn Syrup. See paragraph 895 above.

942. Also, the relationship between Articles 7.4 and 17.4 was discussed in Mexico — Corn Syrup. See paragraphs 894895 above.

(d) Article 18

943.     Further, the relationship between Articles 17.4, and 18.1 and 18.4 was discussed in US — 1916 Act. See paragraph 876 above.

9. Relationship with other WTO Agreements

(a) GATT 1994

(i) Articles XXII and XXIII

944.     The Appellate Body in Guatemala — Cement I noted the following regarding the relationship between Article 17 and Articles XXII and XXIII of the GATT 1994:

Articles XXII and XXIII of the GATT 1994 are not expressly incorporated by reference into the Anti-Dumping Agreement as they are into all of the other Annex 1A agreements … As a result, … Article XXIII of the GATT 1994 does not apply to disputes brought under the Anti-Dumping Agreement. On the contrary, Articles 17.3 and 17.4 of the Anti-Dumping Agreement are the ‘consultation and dispute settlement provisions’ pursuant to which disputes may be brought under that covered agreement.”(1295)

945. The Appellate Body, in Guatemala — Cement I, further addressed this issue. See paragraph 888 above. Also, this issue was addressed in US — 1916 Act. See paragraphs 873874 above.

(b) DSU

(i) Article 1

946.     The Appellate Body in Guatemala — Cement I considered the concurrent application of Article 17 and the rules and procedures of the DSU. See paragraph 871 above.

(ii) Article 3.8

947.     In Mexico — Corn Syrup, the Panel touched on the relationship between Article 17.5 of the Anti-Dumping Agreement and Article 3.8 of the DSU. See paragraph 904 above.

(iii) Article 6.2

948.     The Appellate Body in Guatemala — Cement I rejected the Panel’s conclusion that Article 17.5 of the Anti-Dumping Agreement prevails over Article 6.2 of the DSU and went on to state that both provisions apply cumulatively:

“The fact that Article 17.5 contains these additional requirements, which are not mentioned in Article 6.2 of the DSU, does not nullify, or render inapplicable, the specific requirements of Article 6.2 of the DSU in disputes brought under the Anti-Dumping Agreement. In our view, there is no inconsistency between Article 17.5 of the Anti-Dumping Agreement and the provisions of Article 6.2 of the DSU. On the contrary, they are complementary and should be applied together. A Panel request made concerning a dispute brought under the Anti-Dumping Agreement must therefore comply with the relevant dispute settlement provisions of both that Agreement and the DSU. Thus, when a ‘matter’ is referred to the DSB by a complaining party under Article 17.4 of the Anti-Dumping Agreement, the Panel request must meet the requirements of Articles 17.4 and 17.5 of the Anti-Dumping Agreement as well as Article 6.2 of the DSU.”(1296)

949.     The Panel in Mexico — Corn Syrup discussed the relationship between Article 17.4 of the Anti-Dumping Agreement, and Article 6.2 of the DSU. See paragraph 899 above.

950.     This issue was also discussed by the Appellate Body in Guatemala — Cement I. See paragraph 948 above.

(iv) Article 7

951.     The Appellate Body in Guatemala — Cement I linked the term “matter” in Article 7 of the DSU, which provides the standard terms of reference for Panels, to the same word in Article 17.4 of the Anti-Dumping Agreement.(1297) It specifically stated:

“[T]he word ‘matter’ has the same meaning in Article 17 of the Anti-Dumping Agreement as it has in Article 7 of the DSU. It consists of two elements: the specific ‘measure’ and the ‘claims’ relating to it, both of which must be properly identified in a Panel request as required by Article 6.2 of the DSU.”(1298)

952. The Appellate Body addressed further this issue. See paragraph 898 above.

(v) Article 11

953.     For the relationship between Article 17.6 and the standard of review provision of the DSU, i.e. Article 11, see paragraphs 911, 925, 935 and 912 above. See also Article 11 of the Chapter on the DSU.

(vi) Article 19.1

954.    In Guatemala — Cement I, it was disputed whether a complaint of non-compliance in an anti-dumping investigation should be examined even if neither a final anti-dumping measure, a provisional measure nor a price undertaking is identified in the request for panel establishment, as referenced in paragraph 889 above. In this regard, the Panel rejected Guatemala’s argument that a final or provisional duty or a price undertaking must be identified in a request for panel establishment in order for a panel to be able to issue a recommendation in terms of Article 19.1 of the DSU:

“This [argument] is clearly in conflict with our conclusion regarding the interpretation of the provisions of the ADP Agreement as not limited to disputes involving only specific ‘measures’. A restrictive reading of Article 19.1 would mean that, while the ADP Agreement provides for consultations and establishment of a Panel to consider a matter without limitation to a specific ‘measure’, the Panel so established is not empowered to make a recommendation with respect to that matter. This would clearly run counter to the intention of the drafters of the DSU to establish an effective dispute resolution system for the WTO. In addition, it would undermine the special or additional rules for dispute settlement in anti-dumping cases provided for in the ADP Agreement. A broader reading of Article 19.1, on the other hand, would give effect to the special or additional dispute settlement provisions of the ADP Agreement, by allowing Panels in anti-dumping disputes to consider the ‘matter’ referred to them, and issue a recommendation with respect to that matter. As discussed below, the DSU provisions relied on … do not, in our view, limit Panels to the consideration only of certain types of specified ‘measures’ in disputes.”(1299)

955. The Appellate Body in Guatemala — Cement I found that the dispute was not properly before the Panel and therefore did not come to any conclusion as to the broad reading of Article 19.1 by the Panel.(1300) The Appellate Body concluded that the Panel had not considered whether the complainant, Mexico, had properly identified a relevant anti-dumping measure in its panel request, and that the Panel had therefore erred in finding the dispute properly before it.(1301)

 

Footnote:

1130. Panel Report, Guatemala — Cement II, para. 8.87. back to text
1131
. Panel Report, Guatemala — Cement II, para. 8.89. back to text
1132
. Panel Report, Argentina — Poultry Anti-Dumping Duties, para. 7.133. back to text
1133
. Panel Report, Argentina — Poultry Anti-Dumping Duties, para. 7.132. back to text
1134
. Panel Report, Guatemala — Cement II, paras. 8.95—8.96. back to text
1135
. Panel Report, Mexico — Corn Syrup, para. 7.87. back to text
1136
. Panel Report, Mexico — Corn Syrup, para. 7.103. back to text
1137
. Panel Report, EC — Salmon (Norway), para. 7.834. back to text
1138
. Panel Report, EC — Bed Linen, para. 6.260. back to text
1139
. Panel Report, EC — Bed Linen, para. 6.260. back to text
1140
. (footnote original) Panel Report, European Communities — Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India (“EC — Bed Linen”), WT/DS141/R, adopted 12 March 2001, as modified by the Appellate Body Report, WT/DS141/AB/R, at para. 6.259. back to text
1141
. Panel Report, US — Softwood Lumber VI, paras. 7.39—7.42. back to text
1142
. Panel Report, EC — Tube or Pipe Fittings, para. 7.424. back to text
1143
. Panel Report, EC — Fasteners (China), para. 7.547. back to text
1144
. Panel Report, Guatemala — Cement II, para. 8.291. Also see Panel Report, Argentina — Poultry Anti-Dumping Duties, para. 7.207. back to text
1145
. Panel Report, US — Softwood Lumber VI, para. 7.41. back to text
1146
. Panel Report, Guatemala — Cement II, para. 8.296. back to text
1147
. Panel Report, EC — Bed Linen, para. 6.259. See also Panel Report, Mexico — Corn Syrup (Article 21.5 — US), para. 6.40; and Panel Report, Argentina — Poultry Anti-Dumping Duties, para. 7.293. back to text
1148
. Panel Report, EC — Tube or Pipe Fittings, para. 7.424. back to text
1149
. Panel Report, EC — Tube or Pipe Fittings, para. 7.425. back to text
1150
. See documents on Article 13 in the G/ADP/AHG/W series. back to text
1151
. G/ADP/9, adopted on 27 November 2002. back to text
1152
. (footnote original) In this regard, we note the decision of the GATT Panel that considered similar arguments in the EEC — Cotton Yarn dispute. That Panel, in considering Article 13 of the Tokyo Round Agreement, which is substantively identical to its successor, Article 15 of the AD Agreement, stated: 
       “582. …  The Panel was of the view that Article 13 should be interpreted as a whole. In the view of the Panel, assuming arguendo that an obligation was imposed by the first sentence of Article 13, its wording contained no operative language delineating the extent of the obligation. Such language was only to be found in the second sentence of Article 13 whereby it is stipulated that ‘possibilities of constructive remedies provided for by this Code shall be explored before applying anti-dumping duties where they would affect the essential interests of developing countries’.” 
     Panel Report, European Economic Community — Imposition of Anti-Dumping Duties on Imports of Cotton Yarn from Brazil (“EEC — Cotton Yarn”), adopted 30 October 1995, BISD 42S/17, para. 582 (emphasis added). back to text
1153. Panel Report, US — Steel Plate, para. 7.110. back to text
1154
. Panel Report, EC — Tube or Pipe Fittings, para. 7.68. back to text
1155
. Panel Report, US — Steel Plate, para. 7.111. back to text
1156
. Panel Report, EC — Bed Linen, para. 6.228. In US — Steel Plate, the Panel agreed with the above conclusions and, applying it in the circumstances of this case, “consider[ed] that the possibility of applying different choices of methodology is not a ‘remedy’ of any sort under the AD Agreement”. Panel Report, US — Steel Plate, para. 7.112. back to text
1157
. Panel Report, EC — Bed Linen, para. 6.229. A similar view was expressed by the Panel Report, EC — Tube or Pipe Fittings, paras. 7.71—7.72. The Panel on EC — Tube or Pipe Fittings considered that Article 15 does not impose any obligation to explore undertakings other than price undertakings in the case of developing country Members. Panel Report, EC — Tube or Pipe Fittings, para. 7.78. back to text
1158
. (footnote original) We note that our interpretation of Article 15 in this regard is consistent with that of a GATT Panel which considered the predecessor of that provision, Article 13 of the Tokyo Round Anti-Dumping Code, which provision is substantively identical to present Article 15. That Panel found: 
     The Panel noted that if the application of anti-dumping measures ‘would affect the essential interests of developing countries’, the obligation that then arose was to explore the ‘possibilities’ of ‘constructive remedies’. It was clear from the words [p]ossibilitiesand exploredthat the investigating authorities were not required to adopt constructive remedies merely because they were proposed.” EC — Cotton Yarn, para. 584 (emphasis added). back to text
1159
. Panel Report, EC — Bed Linen, para. 6.233. See also Panel Report, US — Steel Plate, paras. 7.113—7.115 and Panel Report, EC — Tube or Pipe Fittings, para. 7.72. With respect to the related concept of good faith in general, see the Chapter on the DSU. back to text
1160
. Panel Report, EC — Bed Linen, para. 6.238. back to text
1161
. Panel Report, US — Steel Plate, para. 7.116. back to text
1162
. Panel Report, EC — Bed Linen, paras. 6.231—6.232. Also see Panel Report, EC — Tube or Pipe Fittings, para. 7.82. back to text
1163
. G/C/M/10, section 1(ii). The text of the adopted rules of procedure can be found in G/ADP/4 and G/L/143back to text
1164
. G/L/143, chapter I, rule 1. back to text
1165
. G/ADP/M/4, section D; text of original guidelines, G/ADP/2. back to text
1166
. G/ADP/M/37; text of amended guidelines, G/ADP/2/Rev.2; standard format for Members that have not established antidumping authorities, G/ADP/19. back to text
1167
. G/ADP/M/37; G/ADP/20, “Decision on the Electronic Submission of All Anti-Dumping Notifications”.  back to text
1168
. G/ADP/M/4, section D; text of adopted format and guidelines, G/ADP/1. back to text
1169
. G/ADP/M/35; text of amended format and guidelines, G/ADP/1/Rev.1. back to text
1170
. See http://www.wto.org/english/tratop_e/adp_e/adp_e.htm. back to text
1171
. Appellate Body Report, Guatemala — Cement I, para. 58, quoting from the Panel Report, Guatemala — Cement I, para. 7.16. back to text
1172
. Appellate Body Report, Guatemala — Cement I, paras. 65—66. back to text
1173
. Appellate Body Report, Guatemala — Cement I, para. 67. The Panels on US — 1916 Act followed the approach of the Appellate Body. Panel Report, US — 1916 Act (EC), para. 5.21; and Panel Report, US — 1916 Act (Japan), para. 6.85. See also Appellate Body Report, US — Hot-Rolled Steel, para. 51. back to text
1174
. Appellate Body Report, US — 1916 Act, para. 62. back to text
1175
. Appellate Body Report, US — 1916 Act, paras. 64—65. back to text
1176
. Appellate Body Report, US — 1916 Act, para. 68. back to text
1177
. Appellate Body Report, US — 1916 Act, para. 74. back to text
1178
. Appellate Body Report, US — 1916 Act, paras. 78—82. back to text
1179
. Panel Report, US — Hot-Rolled Steel, para. 7.90. back to text
1180
. Appellate Body Report, US — Hot-Rolled Steel, para. 129. back to text
1181
. This Section only refers to the analysis of this issue in anti-dumping-related disputes. For a detailed analysis of this issue in the WTO jurisprudence, see Article 6 of the Chapter on the DSU. back to text
1182
. Appellate Body Report, US — 1916 Act, para. 91. back to text
1183
. (footnote original) Panel Report, ECAudio Cassette, para. 4.1. On the legal value of unadopted panel reports, see footnote 358 above and its reference to the Appellate Body Report, Japan — Alcoholic Beverages II. back to text
1184
. (footnote original) Panel Report, EC — Audio Cassette, para. 362. back to text
1185
. (footnote original) Article 16.6(a) (“National Legislation”) of the Tokyo Round Anti-Dumping Agreement provided as follows:
     “Each government accepting or acceding to this Agreement shall take all necessary steps, of a general or particular character, to ensure, not later than the date of entry into force of this Agreement for it, the conformity of its laws, regulations and administrative procedures with the provisions of this Agreement as they may apply to the Party in question.” back to text
1186
. Panel Report, US — 1916 Act (EC), para. 6.168. See also Panel Report, US — 1916 Act (Japan), paras. 6.188—6.189. See also, Panel Report, US — Steel Plate, paras. 7.88—7.89 and 8.3. In this case, the Panel concluded that the “practice” of the US authorities concerning the application of “total facts available” (Article 6.8 Anti-Dumping Agreement) is not a measure which can give rise to an independent claim of violation of the AD Agreement. See also, Panel Report, US — Section 129(c)(1) URAA, para. 6.22. back to text
1187
. Panel Report, US — DRAMS, para. 6.53. back to text
1188
. The Panel decided not to follow the approach of the Panel on US — Export Restraints, which had considered that identifying and addressing the relevant WTO obligations first would facilitate its assessment of the manner in which the legislation addresses those obligations, and whether any violation is involved (Panel Report, US — Export Restraints, paras. 8.10—8.13). The Panel Report, US — Section 129(c)(1) URAA justified the different approach as follows: “We note that the Panel on United States Measures Treating Exports Restraints as Subsidies first considered whether certain action was in conformity with WTO requirements and only then addressed whether the measure at issue mandated such action. … In the circumstances of the case at hand, where there is a major factual dispute regarding whether section 129(c)(1) requires and/or precludes certain action, we think that a panel is of most assistance to the DSB if it examines the factual issues first. Moreover, we do not see how addressing first whether certain actions identified by Canada would contravene particular WTO provisions would facilitate our assessment of whether section 129(c)(1) mandates the United States to take certain action or not to take certain action. Finally, we have taken into account the fact that, in the present case, our ultimate conclusions with respect to Canada’s claims would not differ depending on the order of analysis we decided to follow”. Panel Report, US — Section 129(c)(1) URAA, footnote 72. back to text
1189
. Panel Report, US — Section 129(c)(1) URAA, paras. 6.22—6.25. back to text
1190
. (footnote original) We observe that the scope of each element in the phrase “laws, regulations and administrative procedures” must be determined for purposes of WTO law and not simply by reference to the label given to various instruments under the domestic law of each WTO Member. This determination must be based on the content and substance of the instrument, and not merely on its form or nomenclature. Otherwise, the obligations set forth in Article 18.4 would vary from Member to Member depending on each Member’s domestic law and practice. back to text
1191
. (footnote original) Article 3.2 of the DSU. back to text
1192
. Appellate Body Report, US — Corrosion-Resistant Steel Sunset Review, paras. 87—89. back to text
1193
. (footnote original) Appellate Body Report, US — 1916 Act, paras. 61 and 88. back to text
1194
. (footnote original) In footnote 95 to para. 7.114, the Panel quoted the following statement from para. 7.88 of the Panel Report in US — Steel Plate: “[t]he Appellate Body has recognized the distinction, but has not specifically ruled that it is determinative in consideration of whether a statute is inconsistent with relevant WTO obligations.” back to text
1195
. (footnote original) In our Report in US — 1916 Act, we examined the challenged legislation and found that the alleged “discretionary” elements of that legislation were not of a type that, even under the mandatory/discretionary distinction, would have led to the measure being classified as “discretionary” and therefore consistent with the Anti-Dumping Agreement. In other words, we assumed that the distinction could be applied because it did not, in any event, affect the outcome of our analysis. We specifically indicated that it was not necessary, in that appeal, for us to answer “the question of the continuing relevance of the distinction between mandatory and discretionary legislation for claims brought under the Anti-Dumping Agreement”. (Appellate Body Report, US — 1916 Act, para. 99) We also expressly declined to answer this question in footnote 334 to paragraph 159 of our Report in US — Countervailing Measures on Certain EC Products. Furthermore, the appeal in US — Section 211 Appropriations Act presented a unique set of circumstances. In that case, in defending the measure challenged by the European Communities, the United States unsuccessfully argued that discretionary regulations, issued under a separate law, cured the discriminatory aspects of the measure at issue. back to text
1196
. Appellate Body Report, US — Corrosion-Resistant Steel Sunset Review, para. 93. back to text
1197
. Panel Report, US — Export Restraints, para. 8.126. back to text
1198
. Panel Report, US — Hot-Rolled Steel, para. 7.22. back to text
1199
. Panel Report, US — Steel Plate, para. 7.14. back to text
1200
. Panel Report, US — Steel Plate, para. 7.15. back to text
1201
. Panel Report, US — Steel Plate, para. 7.23. back to text
1202
. Appellate Body Report, Guatemala — Cement I, para. 64. back to text
1203
. Appellate Body Report, Guatemala — Cement I, para. 77, quoting the Panel Report, Guatemala — Cement I, para. 7.15. back to text
1204
. Appellate Body Report, Guatemala — Cement I, para. 77. back to text
1205
. Appellate Body Report, Guatemala — Cement I, paras. 79—80. back to text
1206
. Panel Report, US — 1916 Act (EC), para. 5.27; Panel Report, US 1916 Act (Japan), para. 6.91. back to text
1207
. Appellate Body Report, US — 1916 Act, para. 55. back to text
1208
. Appellate Body Report, Guatemala — Cement I, para. 79. (See also para. 890 of this Chapter.) back to text
1209
. Appellate Body Report, US — 1916, paras. 71—72. back to text
1210
. (footnote original) An unrestricted right to have recourse to dispute settlement during an anti-dumping investigation would allow a multiplicity of dispute settlement proceedings arising out of the same investigation, leading to repeated disruption of that investigation. back to text
1211
. (footnote original) Once one of the three types of measure listed in Article 17.4 is identified in the request for establishment of a panel, a Member may challenge the consistency of any preceding action taken by an investigating authority in the course of an antidumping investigation. back to text
1212
. Appellate Body Report, US — 1916 Act, paras. 73—74. back to text
1213
. Appellate Body Report, US — 1916 Act, paras. 75—83. back to text
1214
. Panel Report, Mexico — Corn Syrup, paras. 7.52—7.53. back to text
1215
. Panel Report, Mexico — Corn Syrup, para. 7.54. back to text
1216
. Appellate Body Report, Continued Zeroing, para. 177. back to text
1217
. Appellate Body Report, Continued Zeroing, para. 181. back to text
1218
. Panel Report, US — Orange Juice (Brazil), paras. 7.47—7.49. back to text
1219
. Appellate Body Report, Guatemala — Cement I, para. 70. back to text
1220
. Appellate Body Report, Guatemala — Cement I, para. 71. back to text
1221
. (footnote original) Appellate Body Report, Brazil — Desiccated Coconut, p. 22. back to text
1222
. (footnote original) Panel Report, US — Norwegian Salmon AD, para. 342. back to text
1223
. Appellate Body Report, Guatemala — Cement I, paras. 72—73. back to text
1224
. Panel Report, Mexico — Corn Syrup, para. 7.14. back to text
1225
. Panel Report, Mexico — Corn Syrup, para. 7.14. With respect to specificity of requests for the establishment of a panel, see Article 6 of the Chapter on the DSU. back to text
1226
. Panel Report, US — Hot-Rolled Steel, para. 7.22. back to text
1227
. (footnote original) Appellate Body Report, European Communities — Regime for the Importation, Sale and Distribution of Bananas (“EC — Bananas III”), WT/DS27/AB/R, adopted 25 September 1997, DSR 1997: II, 591, at para. 143. back to text
1228
. (footnote original) This is not, for example, a case where a complainant obtained, through the dispute settlement process, information in support of a claim to which it did not otherwise have access. back to text
1229
. (footnote original) We note that, since we do not reach India’s alternative claims in this dispute, as discussed below in para. 7.80, we also would not have reached this claim in any event. back to text
1230
. Panel Report, US — Steel Plate, paras. 7.27—7.29. back to text
1231
. Panel Report, Mexico — Corn Syrup, para. 7.26. back to text
1232
. Panel Report, Mexico — Corn Syrup, para. 7.28. back to text
1233
. (footnote original) We note that there is no claim under Article VI of GATT 1994 in this case, so we need not consider whether Article 17.5(ii) has implications for the evidence a panel may consider in that context. back to text
1234
. Panel Report, US — Hot-Rolled Steel, para. 7.6. back to text
1235
. Panel Report, US — Hot-Rolled Steel, para. 7.7. See also Panel Report, Egypt — Steel Rebar, paras. 7.15—7.21. back to text
1236
. Appellate Body Report, Thailand — H-Beams, para. 115. back to text
1237
. Panel Report, EC — Bed Linen, para. 6.43. back to text
1238
. Panel Report, EC — Bed Linen, para. 6.43. back to text
1239
. In this analysis, the Appellate Body applied its conclusions on the relationship between the provisions of the DSU and the special or additional rules and procedures of a covered agreement developed in Guatemala — Cement II, paras. 65—67. See para. 871 of this Chapter. back to text
1240
. Appellate Body Report, US — Hot Rolled Steel, para. 53. back to text
1241
. Appellate Body Report, US — Hot Rolled Steel, para. 54. back to text
1242
. (footnote original) Appellate Body Report, United States — Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan (“US — Cotton Yarn”), WT/DS192/AB/R, adopted 5 November 2001, para. 74; Appellate Body Report, United States — Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia (“US — Lamb”), WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, para. 106. back to text
1243
. (footnote original) Appellate Body Report, US — Cotton Yarn, para. 69, n.42, citing Appellate Body Report, US — Lamb, para. 106. back to text
1244
. (footnote original) Appellate Body Report, United States — Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom (“US — Lead and Bismuth II”), WT/DS138/AB/R, adopted 7 June 2000, DSR 2000:V, 2601 at para 49. back to text
1245
. Panel Report, US — Softwood Lumber VI, paras. 7.15—7.18. back to text
1246
. (footnote original) We note that, in the context of safeguard measures, the panel in Korea Dairy, said the following of the need for a panel to perform an objective assessment pursuant to Article 11 of the DSU:
     “7.30 We consider that for the Panel to adopt a policy of total deference to the findings of the national authorities could not ensure an ‘objective assessment’ as foreseen by Article 11 of the DSU. This conclusion is supported, in our view, by previous panel reports that have dealt with this issue. However, we do not see our review as a substitute for the proceedings conducted by national investigating authorities. Rather, we consider that the Panel’s function is to assess objectively the review conducted by the national investigating authority, in this case the KTC. For us, an objective assessment entails an examination of whether the KTC had examined all facts in its possession or which it should have obtained in accordance with Article 4.2 of the Agreement on Safeguards (including facts which might detract from an affirmative determination in accordance with the last sentence of Article 4.2 of the Agreement on Safeguards), whether adequate explanation had been provided of how the facts as a whole supported the determination made, and, consequently, whether the determination made was consistent with the international obligations of Korea. Finally, we consider that the Panel should examine the analysis performed by the national authorities at the time of the investigation on the basis of the various national authorities’ determinations and the evidence it had collected.” back to text
1247
. (footnote original) We note that this standard is consistent with the approach followed by the panel in Guatemala — Cement I in para. 7.57 of its report. In that instance the panel was of the opinion that its role was:
      “… to examine whether the evidence relied on by the Ministry was sufficient, that is, whether an unbiased and objective investigating authority evaluating that evidence could properly have determined that sufficient evidence of dumping, injury, and causal link existed to justify initiating the investigation.” back to text
1248
. Panel Report, Guatemala — Cement II, para. 8.19. See also Panel Report, US — Stainless Steel, para. 6.18; Panel Report, Argentina — Ceramic Tiles, paras. 6.2—6.3; and Panel Report, Egypt — Steel Rebar, paras. 7.8—7.14. back to text
1249
. Appellate Body Report, EC — Bed Linen (Article 21.5 India), para. 169, quoting Appellate Body Report, US — Wheat Gluten, para. 151. back to text
1250
. Appellate Body Report, EC — Bed Linen (Article 21.5 India), para. 170. back to text
1251
. Appellate Body Report, EC — Tube or Pipe Fittings, para. 127. back to text
1252
. Panel Report, Guatemala  — Cement I, para. 7.60. back to text
1253
. Panel Report, EC — Bed Linen, para. 6.45; Panel Report, US — Stainless Steel (Korea), para. 6.3; Panel Report, Guatemala Cement II, para. 8.19; and Panel Report, Thailand — H-Beams, para. 7.51; Panel Report, Argentina — Ceramic Tiles, para. 6.27. back to text
1254
. Appellate Body Report, Thailand — H-Beams, para. 116. With respect to a related topic under Article 3.1, see also paras. 185188 of this Chapter. back to text
1255
. Appellate Body Report, Thailand — H-Beams, para. 117. With respect to a related topic under Article 3.1, see also paras. 185188 of this Chapter. back to text
1256
. Panel Report, US — Stainless Steel (Korea), para. 6.18. back to text
1257
. Appellate Body Report, Thailand — H-Beams, para. 116. back to text
1258
. Appellate Body Report, US — Hot Rolled Steel, para. 55. back to text
1259
. Appellate Body Report, US — Hot Rolled Steel, para. 56. back to text
1260
. Panel Report, Argentina — Ceramic Tiles, para. 6.27. back to text
1261
. Panel Report, Argentina — Poultry Anti-Dumping Duties, para. 7.49. back to text
1262
. Appellate Body Report, US — Hot Rolled Steel, para. 55. back to text
1263
. See para. 925 of this Chapter. back to text
1264
. See para. 925 of this Chapter. back to text
1265
. See para. 935 of this Chapter. back to text
1266
. Panel Report, US — Steel Plate, paras. 7.1—7.5. back to text
1267
. Panel Report, US — Steel Plate, para. 7.6. back to text
1268
. Appellate Body Report, US — Hot Rolled Steel, para. 57. See also Panel Report, US — Steel Plate, para. 7.7. back to text
1269
. In EC — Bed Linen, the EC argued that the Panel had failed to apply the standard of review laid down in Article 17.6(ii) because it had not established that the interpretation of Article 2.4.2 of the Anti-Dumping Agreement was “impermissible”. The Appellate Body upheld the Panel’s finding and indicated that the Panel had not viewed the interpretation given by the EC of Article 2.4.2 as a “permissible interpretation” within the meaning of Article 17.6(ii). The Appellate Body considered that “the Panel was not faced with a choice of multiple ‘permissible’ interpretations which would have required it, under Article 17.6(ii), to give deference to the interpretation relied upon by the European Communities. Rather, the Panel was faced with a situation in which the interpretation relied upon by the European Communities was,…, ‘impermissible’.” Appellate Body Report, EC — Bed Linen, paras. 63—66. back to text
1270
. Appellate Body Report, US — Hot Rolled Steel, para. 60. back to text
1271
. Appellate Body Report, US — Hot Rolled Steel, paras. 59—60. back to text
1272
. Appellate Body Report, US — Zeroing (Japan), para. 189. back to text
1273
. (footnote original) The Appellate Body has explained that “a permissible interpretation is one which is found to be appropriate after application” of the customary rules of interpretation reflected in Articles 31 and 32 of the Vienna Convention. (Appellate Body Report, US — Hot-Rolled Steel, para. 60.) back to text
1274
. Appellate Body on US — Softwood Lumber V (Article 21.5 Canada), para. 123. back to text
1275
. Panel Report, US — Stainless Steel (Mexico), para. 7.128. back to text
1276
. Appellate Body Report, US — Stainless Steel (Mexico), para. 136. back to text
1277
. (footnote original) Clearly, the first sentence of Article 17.6(ii) involves no “conflict” with the DSU but, rather, confirms that the usual rules of treaty interpretation under the DSU also apply to the Anti-Dumping Agreement. back to text
1278
. (footnote original) Appellate Body Report, US — Hot-Rolled Steel, para. 60. The parties to a particular treaty might agree upon rules of interpretation for that treaty which differ from the rules of interpretation in Articles 31 and 32 of the Vienna Convention. (Ibid., footnote 40) But this is not the case here. back to text
1279
. (footnote original) Appellate Body Report, US — Hot-Rolled Steel, para. 59. (original emphasis) back to text
1280
. (footnote original) Appellate Body Report, US — Hot-Rolled Steel, para. 60 (original emphasis) (referring to Appellate Body Report, EC — Bed Linen, footnote 36 to paras. 63—65; and Appellate Body Report, Thailand — H-Beams, footnote 36 to para. 127). back to text
1281
. (footnote original) Recourse to supplementary means may also be had under Article 32 of the Vienna Convention. back to text
1282
. Appellate Body Report, US — Continued Zeroing, paras. 267—273. back to text
1283
. Appellate Body Report, US — Continued Zeroing, para. 317. back to text
1284
. Appellate Body Report, US — Continued Zeroing, para. 306. back to text
1285
. Appellate Body Report, US — Continued Zeroing, para. 312. back to text
1286
. Panel Report, US — Orange Juice (Brazil), para. 7.129. back to text
1287
. Panel Report, US — Orange Juice (Brazil), para. 7.131. back to text
1288
. Panel Report, US — Orange Juice (Brazil), paras. 7.135—7.136. back to text
1289
. Appellate Body Report, US — Hot Rolled Steel, para. 62. back to text
1290
. Panel Report, US — Softwood Lumber VI, para. 7.22. back to text
1291
. EC — Salmon (Norway), para. 7.11. back to text
1292
. Appellate Body Report, Mexico — Corn Syrup (Article 21.5 US), para. 130. back to text
1293
. Panel Report, Guatemala — Cement I, para. 7.57. back to text
1294
. Panel Report, Guatemala — Cement I, para. 7.57. back to text
1295
. Appellate Body Report, Guatemala — Cement I, para. 64, fn 43. back to text
1296
. Appellate Body Report, Guatemala — Cement I, para. 75. back to text
1297
. Appellate Body Report, Guatemala — Cement I, para. 72. back to text
1298
. Appellate Body Report, Guatemala — Cement I, para. 76. back to text
1299
. Panel Report, Guatemala — Cement I, para. 7.21. With respect to the issue of repayment of anti-dumping duties under Article 19.1 of the DSU, see Panel Report, Guatemala — Cement II, paras. 9.4—9.7. back to text
1300
. Appellate Body Report, Guatemala — Cement I, para. 89. back to text
1301
. Appellate Body Report, Guatemala — Cement I, para. 88. back to text

150pxls.gif (76 bytes)
 

 

   show next page