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WTO ANALYTICAL INDEX: ANTI-DUMPING AGREEMENT Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) |
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XVIII. Article 18 back to top Article 18: Final Provisions 18.1 No specific action against dumping of exports from another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement.(24)
(footnote original) 24 This is not intended to preclude action under other relevant provisions of GATT 1994, as appropriate.
18.2 Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members.
18.3 Subject to subparagraphs 3.1 and 3.2, the provisions of this Agreement shall apply to investigations, and reviews of existing measures, initiated pursuant to applications which have been made on or after the date of entry into force for a Member of the WTO Agreement.
18.3.1 With respect to the calculation of margins of dumping in refund procedures under paragraph 3 of Article 9, the rules used in the most recent determination or review of dumping shall apply.
18.3.2 For the purposes of paragraph 3 of Article 11, existing anti-dumping measures shall be deemed to be imposed on a date not later than the date of entry into force for a Member of the WTO Agreement, except in cases in which the domestic legislation of a Member in force on that date already included a clause of the type provided for in that paragraph.
18.4 Each Member shall take all necessary steps, of a general or particular character, to ensure, not later than the date of entry into force of the WTO Agreement for it, the conformity of its laws, regulations and administrative procedures with the provisions of this Agreement as they may apply for the Member in question.
18.5 Each Member shall inform the Committee of any changes in its laws and regulations relevant to this Agreement and in the administration of such laws and regulations.
18.6 The Committee shall review annually the implementation and operation of this Agreement taking into account the objectives thereof. The Committee shall inform annually the Council for Trade in Goods of developments during the period covered by such reviews.
18.7 The Annexes to this Agreement constitute an integral part thereof. (a) Rules on interpretation of the Anti-Dumping Agreement 536. Regarding the interpretation of the Anti-Dumping Agreement, the Panel on US - DRAMS referred to Article 3.2 of the DSU: "[W]e bear in mind that Article 3.2 of the DSU requires Panels to interpret 'covered agreements', including the AD Agreement, 'in accordance with customary rules of interpretation of public international law'. We recall that the rules of treaty interpretation set forth in Article 31 of the Vienna Convention expressly defines the context of the treaty to include the text of the treaty. Thus, the entire text of the AD Agreement may be relevant to a proper interpretation of any particular provision thereof."(643) (a) "specific action against dumping" 537. The Appellate Body in US - 1916 Act considered that "the scope of application of Article VI [of the GATT 1994] is clarified, in particular, by Article 18.1 of the Anti-Dumping Agreement".(644) The Appellate Body then found "that Article 18.1 of the Anti-Dumping Agreement requires that any 'specific action against dumping' be in accordance with the provisions of Article VI of the GATT 1994 concerning dumping, as those provisions are interpreted by the Anti-Dumping Agreement": "In our view, the ordinary meaning of the phrase 'specific action against dumping' of exports within the meaning of Article 18.1 is action that is taken in response to situations presenting the constituent elements of 'dumping'. 'Specific action against dumping' of exports must, at a minimum, encompass action that may be taken only when the constituent elements of 'dumping' are present. Since intent is not a constituent element of 'dumping', the intent with which action against dumping is taken is not relevant to the determination of whether such action is 'specific action against dumping' of exports within the meaning of Article 18.1 of the Anti-Dumping Agreement. ... We note that footnote 24 refers generally to 'action' and not, as does Article 18.1, to 'specific action against dumping' of exports. 'Action' within the meaning of footnote 24 is to be distinguished from 'specific action against dumping' of exports, which is governed by Article 18.1 itself.
Article 18.1 of the Anti-Dumping Agreement contains a prohibition on the taking of any 'specific action against dumping' of exports when such specific action is not 'in accordance with the provisions of GATT 1994, as interpreted by this Agreement'. Since the only provisions of the GATT 1994 'interpreted' by the Anti-Dumping Agreement are those provisions of Article VI concerning dumping, Article 18.1 should be read as requiring that any 'specific action against dumping' of exports from another Member be in accordance with the relevant provisions of Article VI of the GATT 1994, as interpreted by the Anti-Dumping Agreement.
We recall that footnote 24 to Article 18.1 refers to 'other relevant provisions of GATT 1994' (emphasis added). These terms can only refer to provisions other than the provisions of Article VI concerning dumping. Footnote 24 thus confirms that the 'provisions of GATT 1994' referred to in Article 18.1 are in fact the provisions of Article VI of the GATT 1994 concerning dumping.
We have found that Article 18.1 of the Anti-Dumping Agreement requires that any 'specific action against dumping' be in accordance with the provisions of Article VI of the GATT 1994 concerning dumping, as those provisions are interpreted by the Anti-Dumping Agreement. It follows that Article VI is applicable to any 'specific action against dumping' of exports, i.e., action that is taken in response to situations presenting the constituent elements of 'dumping'.(645) (b) "except in accordance with the provisions of GATT 1994" 538. The Panel on US - 1916 Act (EC) considered that Article 18.1 of the Anti-Dumping Agreement confirms the purpose of Article VI as "to define the conditions under which counteracting dumping as such is allowed."(646) 539. The Panel on US - 1916 Act (Japan) considered that "footnote 24 does not prevent Members from addressing the causes or effects of dumping through other trade policy instruments allowed under the WTO Agreement. Nor does it prevent Members from adopting other types of measures which are compatible with the WTO Agreement. Such a possibility does not affect our conclusion that, when a law of a Member addresses the type of price discrimination covered by Article VI and makes it the cause for the imposition of anti-dumping measures, that Member has to abide by the requirements of Article VI and the Anti-Dumping Agreement."(647) 540. In US - 1916 Act, the Appellate Body referred to footnote 24 in order to clarify the scope of Article VI of GATT 1994. See paragraph 537 above. (a) "reviews of existing measures" 541. Referring to its statement that the Anti-Dumping Agreement applies only to "reviews of existing measures" initiated pursuant to applications made on or after the date of entry into force of the Anti-Dumping Agreement for the Member concerned, the Panel on US - DRAMS drew a comparison with the findings of the Panel on Brazil - Desiccated Coconut: "We note that this approach is in line with that adopted by the Panel on Desiccated Coconut in respect of Article 32.3 of the SCM Agreement, which is virtually identical to Article 18.3 of the AD Agreement. That Panel stated that 'Article 32.3 defines comprehensively the situations in which the SCM Agreement applies to measures which were imposed pursuant to investigations not subject to that Agreement. Specifically, the SCM Agreement applies to reviews of existing measures initiated pursuant to applications made on or after the date of entry into force of the WTO Agreement. It is thus through the mechanism of reviews provided for in the SCM Agreement, and only through that mechanism, that the Agreement becomes effective with respect to measures imposed pursuant to investigations to which the SCM Agreement does not apply' (Brazil - Measures Affecting Desiccated Coconut, WT/DS22/R, para. 230, upheld by the Appellate Body in WT/DS22/AB/R, adopted on 20 March 1997)."(648) (b) Application of the Anti-Dumping Agreement 542. Regarding the application of the Anti-Dumping Agreement to pre- and post-WTO measures, the Panel on US - DRAMS emphasized that the Anti-Dumping Agreement applies only to reviews and existing measures initiated pursuant to applications made on or after the date of entry into force of the Agreement with respect to the Member concerned: "In our view, pre-WTO measures do not become subject to the AD Agreement simply because they continue to be applied on or after the date of entry into force of the WTO Agreement for the Member concerned. Rather, by virtue of the ordinary meaning of the terms of Article 18.3, the AD Agreement applies only to 'reviews of existing measures' initiated pursuant to applications made on or after the date of entry into force of the AD Agreement for the Member concerned ('post-WTO reviews'). However, we do not believe that the terms of Article 18.3 provide for the application of the AD Agreement to all aspects of a pre-WTO measure simply because parts of that measure are under post-WTO review. Instead, we believe that the wording of Article 18.3 only applies the AD Agreement to the post-WTO review. In other words, the scope of application of the AD Agreement is determined by the scope of the post-WTO review, so that pursuant to Article 18.3, the AD Agreement only applies to those parts of a pre-WTO measure that are included in the scope of a post-WTO review. Any aspects of a pre-WTO measure that are not covered by the scope of the post-WTO review do not become subject to the AD Agreement by virtue of Article 18.3 of the AD Agreement. By way of example, a pre-WTO injury determination does not become subject to the AD Agreement merely because a post-WTO review is conducted relating to the pre-WTO determination of the margin of dumping."(649) (a) Maintenance of inconsistent legislation after entry into force of WTO Agreement 543. 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 390-392 above ) as inconsistent with Article 9.4 and, accordingly with Articles XVI:4 of the WTO Agreement and 18.4 of the Anti-Dumping Agreement. 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.(650) The Appellate Body upheld these findings.(651) (b) Mandatory versus discretionary legislation 544. In US - 1916 Act (EC), the Panel referred to Article 18.4 in stating that the mere fact that the initiation of anti-dumping investigations was discretionary would not make the legislation at issue non-mandatory. See paragraph 477 above. 545. Paragraph 7.4 of the Doha Ministerial Decision of 14 November 2001 on Implementation-Related Issues and Concerns states that the Ministerial Conference "[t]akes note that Article 18.6 of the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 requires the Committee on Anti-Dumping Practices to review annually the implementation and operation of the Agreement taking into account the objectives thereof. The Committee on Anti-dumping Practices is instructed to draw up guidelines for the improvement of annual reviews and to report its views and recommendations to the General Council for subsequent decision within 12 months."(652) 546. Further to the Doha mandate, the Committee on Anti-Dumping Practices adopted on 27 November 2002, the "Recommendation regarding Annual Reviews of the Anti-Dumping Agreement".(653) In its recommendation, the Committee on Anti-Dumping Practices considers that "improvements in the reporting of anti-dumping activity under the Agreement and in the Committee's annual reviews are important to promoting transparency". Accordingly, the Recommendation includes the following improvements aimed at providing useful information to Members and the public, and enhancing transparency under the Agreement: "1. The Committee's annual report under Article 18.6 should include in the Summary of Anti-Dumping Actions(654), in addition to the column currently included that lists the initiations reported by each Member, a comparable column listing the number of anti-dumping revocations reported by each Member during the reporting period. Where a Member has not provided such information, the report should note this omission. Members are already requested to report the number of revocations in a separate table as an annex to their semi-annual reports of anti-dumping activity. Consequently, such information should be included in the Article 18.6 annual report.
2. The Committee's Article 18.6 annual report should also include a chart comparing for each Member the number of preliminary and final measures reported in its semi-annual reports with the number of notices of preliminary and final measures the Member submitted to the Secretariat for the comparable period.
3. 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' semi-annual 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.
4. This recommendation does not prejudge the ability of Members to submit other proposals and to agree in the future on other recommendations aimed at improving annual reviews in the Committee on Anti-dumping Practices."(655) 6. Relationship with other Articles 547. The relationship between Article 18.1 and other provisions in the Anti-Dumping Agreement was discussed in Guatemala - Cement II. The Panel found that the subject anti-dumping duty order of Guatemala was inconsistent with Articles 3, 5, 6, 7,12, and paragraph 2 of Annex I of the Anti-Dumping Agreement. The Panel then opined that Mexico's claims under other articles of the Anti-Dumping Agreement, among them Article 18, were "dependent claims, in the sense that they depend entirely on findings that Guatemala has violated other provisions of the AD Agreement. There would be no basis to Mexico's claims under Articles 1, 9 and 18 of the AD Agreement, and Article VI of GATT 1994, if Guatemala were not found to have violated other provisions of the AD Agreement."(656) In light of this dependent nature of Mexico's claim, the Panel considered it not necessary to address these claims. 548. The Panel on US - 1916 Act (Japan) stated that "[t]he meaning of Article 18.4 which immediately comes to mind when reading that Article is that when a law, regulation or administrative procedure of a Member has been found incompatible with the provisions of the Anti-Dumping Agreement, that Member is also in breach of its obligations under Article 18.4."(657) 549. The Panel on US - 1916 Act (Japan) stated in a footnote that "we did not exercise judicial economy with respect to Article 18.4 because, in that context, a violation of Article 18.4 automatically results from the breach of another provision of the Anti-Dumping Agreement."(658) 550. In US - 1916 Act, the Appellate Body referred to Article 18.1 and 18.4 as contextual support for its reading of Article 17.4 as allowing Members to bring claims against anti-dumping legislation as such.(659) 7. Relationship with other WTO Agreements 551. The relationship between Article 18 and Article VI of the GATT 1994 was discussed in US - 1916 Act. See paragraphs 537-539 above and 571 below. 552. The Panel on US - DRAMS referred to the applicability of the SCM Agreement to measures initiated before the entry into force of the WTO Agreement, in deciding on a similar issue under the Anti-Dumping Agreement. See paragraph 541 above.
XIX. Annex I back to top Annex I: Procedures for on-the-spot Investigations Pursuant to Paragraph 7 of Article 6 1. Upon initiation of an investigation, the authorities of the exporting Member and the firms known to be concerned should be informed of the intention to carry out on-the-spot investigations.
2. If in exceptional circumstances it is intended to include non-governmental experts in the investigating team, the firms and the authorities of the exporting Member should be so informed. Such non-governmental experts should be subject to effective sanctions for breach of confidentiality requirements.
3. It should be standard practice to obtain explicit agreement of the firms concerned in the exporting Member before the visit is finally scheduled.
4. As soon as the agreement of the firms concerned has been obtained, the investigating authorities should notify the authorities of the exporting Member of the names and addresses of the firms to be visited and the dates agreed.
5. Sufficient advance notice should be given to the firms in question before the visit is made.
6. Visits to explain the questionnaire should only be made at the request of an exporting firm. Such a visit may only be made if (a) the authorities of the importing Member notify the representatives of the Member in question and (b) the latter do not object to the visit.
7. As the main purpose of the on-the-spot investigation is to verify information provided or to obtain further details, it should be carried out after the response to the questionnaire has been received unless the firm agrees to the contrary and the government of the exporting Member is informed by the investigating authorities of the anticipated visit and does not object to it; further, it should be standard practice prior to the visit to advise the firms concerned of the general nature of the information to be verified and of any further information which needs to be provided, though this should not preclude requests to be made on the spot for further details to be provided in the light of information obtained.
8. Enquiries or questions put by the authorities or firms of the exporting Members and essential to a successful on-the-spot investigation should, whenever possible, be answered before the visit is made. 1. On-the-spot verifications as an option 553. The Panel on Argentina - Ceramic Tiles, indicated in a footnote that, although common practice, there is no requirement to carry out on-the-spot verifications. See paragraph 298 above. 2. Participation of non-governmental experts in the on-the-spot verification 554. In Guatemala - Cement II, Mexico claimed that a verification visit by Guatemala's authority to a Mexican producer's site was inconsistent with Article 6.7 and Annex I(2), (3), (7) and (8) because the authority included non-governmental experts with an alleged conflict of interest in its verification team. See paragraphs. 300-302 above. 3. Information verifiable on-the-spot 555. In Guatemala - Cement II, Mexico argued that in violation of Article 6.7 and paragraph 7 of Annex I, the Guatemalan authority sought to verify certain information not submitted by the Mexican producer under investigation because it pertained to the period of investigation newly added during the course of the investigation. See paragraph 299 above. 4. Relationship with other Articles 556. In Guatemala - Cement II, the Panel found that the subject anti-dumping duty order of Guatemala was inconsistent with Articles 3, 5, 6, 7, 12, and paragraph 2 of Annex I of the Anti-Dumping Agreement. The Panel then opined that Mexico's claims under Articles 1, 9 and 18 of the AD Agreement, and Article VI of GATT 1994, were "dependent claims, in the sense that they depend entirely on findings that Guatemala has violated other provisions of the AD Agreement. There would be no basis to Mexico's claims under Articles 1, 9 and 18 of the AD Agreement, and Article VI of GATT 1994, if Guatemala were not found to have violated other provisions of the AD Agreement." In light of this dependent nature of Mexico's claim, the Panel considered it not necessary to address these claims.(660) 557. With respect to the relationship of Annex I and Article 6.7, in Egypt - Steel Rebar, the Panel came to the same conclusion as with the relationship between Article 6.8 and Annex II (see paragraph 307 above), i.e. that Annex I is incorporated by reference into Article 6.7. See paragraph 297 above.
XX. Annex II back to top Annex II: Best Information Available in Terms of Paragraph 8 of Article 6 1. As soon as possible after the initiation of the investigation, the investigating authorities should specify in detail the information required from any interested party, and the manner in which that information should be structured by the interested party in its response. The authorities should also ensure that the party is aware that if information is not supplied within a reasonable time, the authorities will be free to make determinations on the basis of the facts available, including those contained in the application for the initiation of the investigation by the domestic industry.
2. The authorities may also request that an interested party provide its response in a particular medium (e.g. computer tape) or computer language. Where such a request is made, the authorities should consider the reasonable ability of the interested party to respond in the preferred medium or computer language, and should not request the party to use for its response a computer system other than that used by the party. The authority should not maintain a request for a computerized response if the interested party does not maintain computerized accounts and if presenting the response as requested would result in an unreasonable extra burden on the interested party, e.g. it would entail unreasonable additional cost and trouble. The authorities should not maintain a request for a response in a particular medium or computer language if the interested party does not maintain its computerized accounts in such medium or computer language and if presenting the response as requested would result in an unreasonable extra burden on the interested party, e.g. it would entail unreasonable additional cost and trouble.
3. All information which is verifiable, which is appropriately submitted so that it can be used in the investigation without undue difficulties, which is supplied in a timely fashion, and, where applicable, which is supplied in a medium or computer language requested by the authorities, should be taken into account when determinations are made. If a party does not respond in the preferred medium or computer language but the authorities find that the circumstances set out in paragraph 2 have been satisfied, the failure to respond in the preferred medium or computer language should not be considered to significantly impede the investigation.
4. Where the authorities do not have the ability to process information if provided in a particular medium (e.g. computer tape), the information should be supplied in the form of written material or any other form acceptable to the authorities.
5. Even though the information provided may not be ideal in all respects, this should not justify the authorities from disregarding it, provided the interested party has acted to the best of its ability.
6. If evidence or information is not accepted, the supplying party should be informed forthwith of the reasons therefor, and should have an opportunity to provide further explanations within a reasonable period, due account being taken of the time-limits of the investigation. If the explanations are considered by the authorities as not being satisfactory, the reasons for the rejection of such evidence or information should be given in any published determinations.
7. If the authorities have to base their findings, including those with respect to normal value, on information from a secondary source, including the information supplied in the application for the initiation of the investigation, they should do so with special circumspection. In such cases, the authorities should, where practicable, check the information from other independent sources at their disposal, such as published price lists, official import statistics and customs returns, and from the information obtained from other interested parties during the investigation. It is clear, however, that if an interested party does not cooperate and thus relevant information is being withheld from the authorities, this situation could lead to a result which is less favourable to the party than if the party did cooperate. 1. "best information available" 558. With respect to Annex II and recourse to "best information available" pursuant to Article 6.8, see paragraphs 303-352 above. 559. As regards the interpretation of paragraph 1 of Annex II, see paragraphs 309-311, 324-325 and 327-330 above. 560. As regards the interpretation of paragraph 3, see paragraphs 306 and 316-323 above. 561. Concerning the interpretation of the concept of cooperation "to the best of its ability", see paragraphs 333-336 above. As regards co-operation as a two-way process, see paragraph 338 above (a) Duty to inform of reasons for disregarding evidence or information 562. See paragraphs 323 and 341-342 above. (b) "reasonable period, due account being taken of the time-limits of the investigation" 563. In Egypt - Steel Rebar, the Panel considered that the text of paragraph 6 of Annex II "makes clear that the obligation for an investigating authority to provide a reasonable period for the provision of further explanations is not open-ended or absolute. Rather, this obligation exists within the overall time constraints of the investigation." The Panel concluded that "in determining a "reasonable period" an investigating authority must balance the need to provide an adequate period for the provision of the explanations referred to against the time constraints applicable to the various phases of the investigation and to the investigation as a whole."(661) 564. In Egypt - Steel Rebar, the Panel considered that the issue of whether the two-to-five day deadline fixed by the investigating authority was unreasonable "must be judged on the basis of the overall factual situation that existed at the time". In this case, the Panel considered whether the information requested was new information, whether any of the other respondents received a longer period in which to respond and what was the attitude of the respondents concerned, and concluded that the deadline in question was not unreasonable.(662) 565. As regards the possibility of resorting to a "secondary source", see paragraph 339 above. 566. Concerning the concept of cooperation, see paragraphs 332-333 above. 7. Relationship with Article 6 (a) Relationship with Article 6.1 567. In Egypt - Steel Rebar, Turkey had claimed a violation of paragraph 1 of Annex II outside the context of Article 6.8. The Panel decided not to rule on whether paragraph 1 could be invoked separately from Article 6.8.(663) (b) Relationship with Article 6.2 568. In Egypt - Steel Rebar, Turkey had made a number of claims of violation of both paragraph 6 of Annex II and Article 6.2. The Panel, who did not take a position on whether paragraph 6 of Annex II can be invoked separately from Article 6.8, considered as follows. "As for the claim of violation of the requirement in Annex II, paragraph 6 to provide a 'reasonable period', we recall that this provision forms part of the required procedural and substantive basis for a decision as to whether resort to facts available pursuant to Article 6.8. We further recall that we have found, supra(664), that the [investigating authority]'s decision to resort to facts available ... did not violate Article 6.8, based on considerations under Annex II, paragraphs 3 and 5. Thus, we would not necessarily need to address this aspect of this claim for its own sake. Nonetheless, a full analysis of Annex II, paragraph 6 as it pertains to the factual basis of this claim, appears necessary to evaluate the merits of the claimed violation of Article 6.2 resulting from the deadline for responses to the 23 September requests. In performing this analysis, however, we note that we again do not here take a position on whether Annex II, paragraph 6 can be invoked separately from Article 6.8. We would need to do so only if we find that as a factual matter, the deadline in question was unreasonable."(665) (c) Relationship with Article 6.8 569. As regards the relationship between Annex II and Article 6.8, see paragraphs 303-352 above.
XXI. Relationship with other WTO Agreements back to top A. Article VI of the GATT 1994 570. Regarding the relationship between Article VI of the GATT 1994 and the Anti-Dumping Agreement, the Panel on US - 1916 Act (EC), referring to the Appellate Body Report on Argentina - Footwear (EC), used the term an "inseparable package of rights and disciplines": "In our opinion, Article VI and the Anti-Dumping Agreement are part of the same treaty or, as the panel and the Appellate Body put it in Argentina -Footwear (EC) with respect to Article XIX and the Agreement on Safeguards, an 'inseparable package of rights and disciplines'. In application of the customary rules of interpretation of international law, we are bound to interpret Article VI of the GATT 1994 as part of the WTO Agreement and the Anti-Dumping Agreement is part of the context of Article VI. This implies that Article VI should not be interpreted in a way that would deprive it or the Anti-Dumping Agreement of meaning. Rather, we should give meaning and legal effect to all the relevant provisions. However, the requirement does not prevent us from making findings in relation to Article VI only, or in relation to specific provisions of the Anti-Dumping Agreement, as required by our terms of reference."(666) 571. The Panel on US - 1916 Act (EC) considered the Anti-Dumping Agreement as context in interpreting Article VI of the GATT 1994 and explained its reasoning as follows: "The official title of the Anti-Dumping Agreement is 'Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994'. This agreement is essential for the interpretation of Article VI. Articles 1 and 18.1 confirm the close link between Article VI and the Anti-Dumping Agreement. Moreover, as was recalled by the Appellate Body in the Brazil - Coconuts case, the WTO Agreement is a single treaty instrument which was accepted by the WTO Members as a single undertaking. As a result, Article 18.1 of the Anti-Dumping Agreement is part of the context of Article VI since Article 31.2 of the Vienna Convention provides that 'the context for the purpose of the interpretation of a treaty shall comprise, [...] the text [of the treaty], including its preamble and annexes...'. We are therefore not only entitled to consider Articles 1 and 18.1 of the Anti-Dumping Agreement even though the European Communities did not mention those provisions as part of its claims in its request for establishment of a panel, but we are also required to do so under the general principles of interpretation of public international law."(667) 572. In examining the scope of Article VI of the GATT 1994, the Panel on US - 1916 Act (EC) stated that Article 1 of the Anti-Dumping Agreement "supports the view that Article VI is about what Members are entitled to do when they counteract dumping within the meaning of Article VI ... by referring to 'anti-dumping measure[s]' which may be applied by Members."(668) (emphasis in original) The Panel concluded that "a law that would counteract 'dumping' as defined in Article VI:1 would fall within the scope of Article VI."(669) 573. The Appellate Body in US - 1916 Act concluded that "[s]ince an 'Anti-dumping measure' must, according to Article 1 of the Anti-Dumping Agreement, be consistent with Article VI of the GATT 1994 and the provisions of the Anti-Dumping Agreement, it seems to follow that Article VI would apply to 'an anti-dumping measure', i.e., a measure against dumping."(670) 574. The Panel on US - 1916 Act (EC) considered that the first sentence of Article 1 of the Anti-Dumping Agreement confirms the purpose of Article VI as "to define the conditions under which counteracting dumping as such is allowed."(671) 575. Regarding the relationship between Article VI of the GATT 1994 and the Anti-Dumping Agreement, the Panel on US - 1916 Act (Japan) noted that "Article 1.1 of the Anti-Dumping Agreement establishes a link between Article VI and the Anti-Dumping Agreement."(672) 576. The Appellate Body in US - 1916 Act agreed with the Panel's conclusion that "[g]iven the link between Article VI of the GATT 1994 and the Anti-Dumping Agreement, we find that the applicability of Article VI to the 1916 Act also implies the applicability of the Anti-Dumping Agreement."(673) 577. The Panel on US - 1916 Act (Japan), after finding that the measure at issue was inconsistent with provisions of the Anti-Dumping Agreement (and Article VI of GATT), exercised judicial economy with respect to a claim under Article XI of GATT.(674) 578. The Panel on US - DRAMS discussed the interpretation of provisions of the Anti-Dumping Agreement in the light of the wording of Article 3.2 of the DSU. 579. As regards the different standard of review under Article 17.6 of the Anti-Dumping Agreement and the general standard of review of Article 11 of the DSU, see paragraphs 502-503 above. 580. The Appellate Body in US - Hot-Rolled Steel supported its interpretation of the non-attribution language of Article 3.5 by referring to its decisions in two safeguards Reports, US - Wheat Gluten and US - Lamb where it interpreted the non-attribution language in Article 4.2(b) of the Agreement on Safeguards in a similar manner. See paragraph 141 above. See also the Panel Report in Guatemala - Cement II, paragraph 116 above. 581. The Panel on US - DRAMS referred to the applicability of the SCM Agreement to measures initiated before the entry into force of the WTO Agreement, in deciding on a similar issue under the Anti-Dumping Agreement. See paragraph 541 above.
XXII. 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 back to top Ministers recognize, with respect to dispute settlement pursuant to the Agreement on Implementation of Article VI of GATT 1994 or Part V of the Agreement on Subsidies and Countervailing Measures, the need for the consistent resolution of disputes arising from anti-dumping and countervailing duty measures. No jurisprudence or decision of a competent WTO body.
XXIII. Decision on Review of Article 17.6 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 back to top Ministers decide as follows:
The standard of review in paragraph 6 of Article 17 of the Agreement on Implementation of Article VI of GATT 1994 shall be reviewed after a period of three years with a view to considering the question of whether it is capable of general application. No jurisprudence or decision of a competent WTO body.
XXIV. Decision on Anti-Circumvention back to top A. Text of the Decision on Anti-Circumvention Decision on Anti-Circumvention Ministers,
Noting that while the problem of circumvention of anti-dumping duty measures formed part of the negotiations which preceded the Agreement on Implementation of Article VI of GATT 1994, negotiators were unable to agree on specific text,
Mindful of the desirability of the applicability of uniform rules in this area as soon as possible,
Decide to refer this matter to the Committee on Anti-Dumping Practices established under that Agreement for resolution. No jurisprudence or decision of a competent WTO body.
Footnotes: 643. Panel
Report on US - DRAMS, para. 6.21. back to text |
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