|
Part III
XVIII. Article 18 back to top
A. Text of Article 18
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.
B. Interpretation and Application of Article 18
1. Article 18.1
(a) “specific action against dumping”
956.
In US — 1916 Act, the Appellate Body 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”.(1302) 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”:
“[T]he 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’.“(1303)
“… Article VI of the GATT 1994 and the Anti-Dumping Agreement
apply to ‘specific action against dumping’. Article
VI, and, in
particular, Article VI:2, read in conjunction with the Anti-Dumping
Agreement, limit the permissible responses to dumping to definitive
anti-dumping duties, provisional measures and price undertakings.
Therefore, the 1916 Act is inconsistent with Article VI:2 and the Anti-Dumping
Agreement to the extent that it provides for ‘specific action
against dumping’ in the form of civil and criminal proceedings and
penalties.”(1304)
957.
In US — Offset Act (Byrd Amendment), the Appellate Body
reiterated its view that “a measure that may be taken only when the
constituent elements of dumping or a subsidy are present, is a ‘specific
action’ in response to dumping within the meaning of Article 18.1 of
the Anti-Dumping Agreement”.(1305) This implied that the
measure must be inextricably linked to, or have a strong correlation
with, the constituent elements of dumping. According to the Appellate
Body, “such link or correlation may, as in the 1916 Act, be derived
from the text of the measure itself”.(1306) However, not all
action taken in response to dumping is necessarily action against
dumping.(1307) The Panel in US — Offset Act (Byrd Amendment)
took the position that an action operates “against” dumping or a
subsidy within the meaning of Article 18.1 of the Anti-Dumping Agreement
if it has an adverse bearing on dumping.(1308) The
Appellate Body agreed with the Panel’s interpretation of the term “against”
and reached the following conclusion with respect to the Continued
Dumping and Subsidy Offset Act (CDSOA):
“All these elements lead us to conclude that the CDSOA has an
adverse bearing on the foreign producers/exporters in that the imports
into the United States of the dumped or subsidized products (besides
being subject to anti-dumping or countervailing duties) result in the
financing of United States competitors — producers of like products
— through the transfer to the latter of the duties collected on those
exports. Thus, foreign producers/exporters have an incentive not to
engage in the practice of exporting dumped or subsidized products or to
terminate such practices. Because the CDSOA has an adverse bearing on,
and, more specifically, is designed and structured so that it dissuades
the practice of dumping or the practice of subsidization, and because it
creates an incentive to terminate such practices, the CDSOA is
undoubtedly an action ‘against’ dumping or a subsidy, within the
meaning of Article 18.1 of the Anti-Dumping Agreement and of
Article 32.1 of the SCM Agreement.”(1309)
958.
In US — Offset Act (Byrd Amendment), the Appellate Body
also emphasized that in order to determine whether a specific action is
“against” dumping or subsidization, it is neither necessary, nor
relevant, to examine the conditions of competition under which domestic
products and dumped/subsidized imports compete, nor to assess the impact
of the measure on the competitive relationship between them. An analysis
of the term “against”, in the view of the Appellate Body, “is more
appropriately centred on the design and structure of the measure; such
an analysis does not mandate an economic assessment of the implications
of the measure on the conditions of competition under which domestic
product and dumped/subsidized imports compete”.(1310) However,
as the Appellate Body also stated, “a measure cannot be against
dumping or a subsidy simply because it facilitates or induces the
exercise of rights that are WTO-consistent”(1311), such as the
filing of anti-dumping applications.
(b) “except in accordance with the provisions of GATT 1994”
959.
The Panel in 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.”(1312)
(c) Footnote 24
960.
The Panel in US — 1916 Act (Japan) considered that:
“[F]ootnote 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.”(1313)
961.
The Appellate Body in US — Offset Act (Byrd Amendment)
clarified that footnotes 24 and 56 are clarifications of the main
provisions, and were added so as to avoid ambiguity:
“[T]hey confirm what is implicit in Article 18.1 of the Anti-Dumping
Agreement and in Article 32.1 of the SCM
Agreement, namely, that an
action that is not ‘specific’ within the meaning of Article
18.1 of the Anti-Dumping Agreement and of Article 32.1 of the SCM
Agreement, but is nevertheless related to dumping or subsidization,
is not prohibited by Article 18.1 of the Anti-Dumping Agreement
or Article 32.1 of the SCM Agreement.”(1314)
962.
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 956 above.
(d) Relationship between Article 18.1, GATT Article VI and the Note Ad
Paragraphs 2 and 3 of Article VI
963.
The dispute in US — Shrimp (Thailand)/US — Customs Bond
Directive concerned US requirements for increased bonds to secure
eventual payment of duties under a retrospective assessment system. The
Appellate Body, upholding the Panel, found that the enhanced bond
requirement (EBR) was permitted under the Note Ad Paragraphs 2 and
3 to
Article VI of the GATT 1994 and did not constitute a “specific action
against dumping” under Article 18.1:
“[W]e reaffirm the Appellate Body findings in previous reports that
the Anti-Dumping Agreement does not allow a fourth category of specific
action against dumping. We do not, however, consider that a security
taken for guaranteeing the payment of a lawfully established duty
liability would necessarily constitute a ‘specific action against
dumping’; rather, whether a particular security constitutes a ‘specific
action against dumping’ should be evaluated in the light of the nature
and characteristics of the security and the particular circumstances in
which it is applied. We wish to emphasize that, in any event, an
impermissible specific action against dumping cannot be taken in the
guise of a security.
Generally speaking, a security is accessory or ancillary to the
principal obligation that it guarantees. A security that is taken to
guarantee the obligation to pay anti-dumping or countervailing duties is
intrinsically linked to that obligation. Thus, taking security for the
full and final payment of duties should be viewed as a component of the
imposition and collection of anti-dumping or countervailing duties.
Therefore, a reasonable security taken in accordance with the Ad Note
for potential additional anti-dumping duty liability does not
necessarily, in and of itself, constitute a fourth autonomous category
of response to dumping.”(1315)
964.
In that dispute, the Appellate Body in US — Shrimp
(Thailand) and US — Customs Bond Directive then interpreted
the Ad Note as authorizing the taking of “reasonable security” after
the imposition of an anti-dumping duty order, pending determination of
the final liability for payment of the anti-dumping duty.(1316)
The Appellate Body also upheld the Panel’s findings that the security
requirement at issue (a requirement for importers of shrimp to increase
their bond amounts) was not “reasonable” within the meaning of the Ad
Note, and therefore upheld the Panel’s finding that the application of
this measure to the shrimp at issue was inconsistent with Article 18.1
of the Anti-Dumping Agreement.(1317) The Appellate Body rejected
a claim that the security requirement at issue violated Article 18.1 “as
such” because it had found that imposition of security during the
period after an anti-dumping order was permitted, if the security was
reasonable.(1318)
2. Article 18.3
(a) “reviews of existing measures”
965.
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 in US —
DRAMS drew a comparison with the findings of the Panel in 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).”(1319)
(b) Application of the Anti-Dumping Agreement
966.
Regarding the application of the Anti-Dumping Agreement to pre-
and post-WTO measures, the Panel in 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.”(1320)
967.
The Panel in US — Shrimp (Viet Nam) examined two
administrative reviews of an anti-dumping order established before the
date of Viet Nam’s accession to the WTO. In the panel proceeding, Viet
Nam did not challenge the original investigation, but did challenge an
“all others” rate that had been calculated in the original
investigation. In response to a US argument that this claim was barred
by Article 18.3, the Panel distinguished the factual situation from the
situation in US — DRAMS:
“We are unable to accept the United States’ argument which, in
our view, is not supported by the findings of the panel in US —
DRAMS. In US — DRAMS, the determination at issue — that
of the product coverage of the Anti-Dumping measures at issue — was
determined once, before the entry into force of the WTO Agreement, and
never subsequently reconsidered. By contrast, the evidence before us
shows that the USDOC made a new and distinct ‘all others’ rate
determination in each of the administrative reviews which are before us.
… The mere fact that the ‘all others’ rate ultimately applied was
not recalculated does not change the extent of the analysis inherent in
the USDOC’s new determination to continue to apply that rate….
In sum, the evidence before us shows that the ‘all others’ rates
applied in each of the administrative reviews at issue were subject to
full consideration by the USDOC in each case. The ‘all others rate’
applied by the USDOC in each instance was a direct result of the margins
calculated by the USDOC in that review. It is only because the
USDOC determined that all such margins could not be relied upon that the
USDOC decided to apply the same ‘all others’ rate as had been
applied in the original investigation. Accordingly, the United States’
citation to the findings of the panel in US — DRAMs is
inapposite.(1321)
3. Article 18.4
(a) Maintenance of inconsistent legislation after entry into force of
WTO Agreement
968.
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 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.(1322) The Appellate Body
upheld these findings.(1323)
(b) Mandatory versus discretionary legislation
969.
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 878
above.
(c) Measures subject to dispute settlement
970.
In the view of the
Appellate Body in US — Corrosion Resistant Steel Sunset Review,
all laws, regulations and administrative procedures mentioned in Article
18.4 may, as such, be submitted to dispute settlement. The Appellate
Body considered that “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.(1324) 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.”(1325)
971.
As regards, the concept of measures subject to WTO dispute
settlement, see Articles 6 and 7 of the Chapter on the DSU.
4. Article 18.5
972.
Article 18.5 of the Agreement provides that “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”.
Pursuant to a decision of the Committee in February 1995, all Members
having new or existing legislation and/or regulations which apply in
whole or in part to anti-dumping duty investigations or reviews covered
by the Agreement are requested to notify the full and integrated text of
such legislation and/or regulations to the Committee. Changes in a
Member’s legislation and/ or regulations are to be notified to the
Committee as well. Pursuant to that same decision of the Committee, if a
Member has no such legislation or regulations, the Member is to inform
the Committee of this fact. The Committee also decided that Observer
governments should comply with these notification obligations.
973.
As of 29 October 2004, 105 Members had notified the Committee
regarding their domestic anti-dumping legislation.(1326) Of these
105 Members, 29 had notified the Committee that they had no anti-dumping
legislation. Members’ communications in this regard can be found in
document series G/ADP/N/1/ …. 28 Members had not, as yet, made any
notification of anti-dumping legislation and/or regulations. Annex A
sets out the status of notifications concerning legislation under
Article 18.5 of the Agreement, and sets out the reference symbol of the
document(s) containing each Member’s current notification in this
regard.
974.
In US — Customs Bond Directive India requested the
Panel to find that the United States had violated Article 18.5 of the
Anti-Dumping Agreement and Article 32.6 of the SCM
Agreement. The United
States was of the view that it had no obligation to notify the amended
customs bond directive (CBD) to either of the Committees.(1327)
The Panel disagreed with the United States:
“The EBR has been designed as a security for the collection of
potential increased anti-dumping or countervailing duties and this
security may only be imposed where a given product is subject to an
anti-dumping or countervailing order. We also recall our findings that
the Amended CBD constitutes specific action against dumping or
subsidization within the meaning of Article 18.1 of the Anti-Dumping
Agreement and Article 32.1 of the SCM Agreement. We arrived
at this conclusion by finding, inter alia, that the constituent
elements of dumping and/ or subsidization were present in the Amended
CBD. For all of these reasons, we consider that the Amended CBD ‘changes
… the administration’ of anti-dumping or countervailing duty laws
and/or regulations and thus falls within the scope of Article 18.5 of
the Anti-Dumping Agreement and Article 32.6 of the SCM
Agreement.
…Despite the absence of a specific deadline, in our view, in order
for any notification to be effective, it must be made within a
reasonable time. It is also our view that Article 18.5 of the Anti-Dumping
Agreement and Article 32.6 of the SCM Agreement were
originally formulated to address transparency concerns surrounding the
administration of anti-dumping and countervailing duty investigations
and measures. A failure to properly notify changes in the anti-dumping
laws or regulations, or the administration of such laws to the
Anti-Dumping and SCM Committees within a reasonable time fails to
address that objective.
In the matter before us, we are unaware that the United States has
yet attempted to notify the Amended CBD to the Anti-Dumping and SCM
Committees. The United States has failed to do so despite the fact that
the Amended CBD became effective more than three years ago with
publication of the July 2004 Amendment. We consider this delay to be
unreasonable.
We accordingly find that the United States has failed to meet its
obligation to notify the Amended CBD to the Anti-Dumping and SCM
Committees.”(1328)
5. Article 18.6
(a) Annual reviews
975.
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.”(1329)
976.
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”.(1330) 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(1331), 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.
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.”(1332)
6. Relationship with other Articles
(a) General
977.
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.”(1333) In light of this dependent
nature of Mexico’s claim, the Panel considered it not necessary to
address these claims.
978.
The Panel in 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.”(1334)
979.
The Panel in 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.”(1335)
(b) Article 17
980.
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.(1336)
7. Relationship with other WTO Agreements
(a) Article VI of the GATT 1994
981.
The relationship between Article 18 and Article VI of the GATT
1994 was discussed in US — 1916 Act. See paragraphs 956–960
above and 1001 below.
(b) SCM Agreement
982.
The Panel in 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 965 above.
XIX. Annex I
back to top
A. Text of Annex I
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.
B. Interpretation and Application of Annex I
1. On-the-spot
verifications as an option
983.
The Panel in Argentina — Ceramic Tiles, indicated in a
footnote that, although common practice, there is no requirement to
carry out on-the-spot verifications. See paragraph 524
above.
2. Participation of non-governmental experts in the on-the-spot
verification
984.
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 529–531
above.
3.
Information verifiable on-the-spot
985.
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 526 above.
4. Relationship with other Articles
986.
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 Anti-Dumping 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.(1337)
987.
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 536
above),
i.e. that Annex I is incorporated by reference into
Article 6.7. See
paragraph 523 above.
XX. Annex II
back to top
A. Text of Annex II
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.
B. Interpretation and Application of Annex II
1. “best information
available”
988.
With respect to Annex II and recourse to “best information
available” pursuant to Article
6.8, see paragraphs 532–607
above.
2. Paragraph 1
989.
As regards the interpretation of paragraph 1 of Annex
II, see
paragraphs 540–542, 563–564 and
567–570
above.
3. Paragraph 3
990.
As regards the interpretation of paragraph 3, see paragraphs 535
and 549–560
above.
4. Paragraph 5
991.
Concerning the interpretation of the concept of cooperation “to
the best of its ability”, see paragraphs 574–580
above. As regards
cooperation as a two-way process, see paragraph 583
above.
5. Paragraph 6
(a) Duty to inform of reasons for disregarding evidence or
information
992.
See paragraphs 560 and 592–593
above.
(b) “reasonable period, due account being taken of the time-limits
of the investigation”
993.
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.”(1338)
994.
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.(1339)
6. Paragraph 7
995.
As regards the possibility of resorting to a “secondary source”,
see paragraph 584 above.
996.
Concerning the concept of cooperation, see paragraphs 573–574
above.
7. Relationship with Article 6
(a) Relationship with Article 6.1
997.
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.(1340)
(b) Relationship with Article 6.2
998.
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, which 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 to resort to facts available pursuant to
Article 6.8. We further recall that we have found, supra(1341),
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.”(1342)
(c) Relationship with Article 6.8
999.
As regards the relationship between Annex II and
Article 6.8,
see paragraphs 532–607
above.
XXI. Relationship with other WTO
Agreements back to top
A. Article VI of the GATT 1994
1000.
Regarding the relationship between Article VI of the GATT 1994
and the Anti-Dumping Agreement, the Panel in 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.”(1343)
1001.
The Panel in 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.”(1344)
1002.
In examining the scope of Article VI of the GATT
1994, the
Panel in 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.”(1345) (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.”(1346)
1003.
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.”(1347)
1004.
The Panel in 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.”(1348)
1005.
Regarding the relationship between Article VI of the GATT 1994
and the Anti-Dumping Agreement, the Panel in 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.”(1349)
1006.
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.”(1350)
B. Article XI of the
GATT
1994
1007.
The Panel in US — 1916 Act (Japan), after finding that
the measure at issue was inconsistent with provisions of the
Anti-Dumping Agreement (and Article VI of the GATT
1994), exercised
judicial economy with respect to a claim under Article XI of the GATT
1994.(1351)
C. Article 3.2 of the DSU
1008.
The Panel in 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.
D. Article 11 of the DSU
1009.
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 911–912
above.
E. Agreement on Safeguards
1010.
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 285
above. See also the
Panel Report in Guatemala — Cement II, paragraph 251
above.
F. SCM Agreement
1011.
The Panel in 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 965 above.
G. Accession Agreements
1012.
The Panel and Appellate Body in EC Fasteners (China)
interpreted paragraph 15 of the Protocol of Accession of the People’s
Republic of China, and the Panel in US — Shrimp (Viet Nam)
interpreted the accession commitments of Viet Nam; see paragraphs 166–167
above.
XXIII.
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
A. Text
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.
B. Interpretation and Application
1013.
In US — Lead and Bismuth II, the United States argued
that, by virtue of the Declaration, the standard of review set forth in
Article 17.6 of the Anti-Dumping Agreement is also applicable to reviews
of countervailing duty investigations under the SCM Agreement. The
Appellate Body disagreed:
“We consider this argument to be without merit. By its own terms,
the Declaration does not impose an obligation to apply the
standard of review contained in Article 17.6 of the Anti-Dumping
Agreement to disputes involving countervailing duty measures under
Part V of the SCM Agreement. The Declaration is couched in
hortatory language; it uses the words ‘Ministers recognize‘.
Furthermore, the Declaration merely acknowledges ‘the need for
the consistent resolution of disputes arising from anti-dumping and
countervailing duty measures.’ It does not specify any specific action
to be taken. In particular, it does not prescribe a standard of review
to be applied.”(1352)
1014.
The Panel in US — Corrosion-Resistant Steel Sunset Review
considered the issue of “whether prior panel and Appellate Body
decisions on countervailing measures can be taken into account by, and
provide guidance for, panels dealing with disputes under the Anti-Dumping
Agreement (and vice versa)”, and stated that it found
support in the Declaration “for the application of a similar
interpretative analysis by this Panel in addressing analogous issues
under the Anti-Dumping Agreement”.(1353) Subsequent
panels have made similar statements.(1354)
XXIV. 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
A. Text
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.
B. Interpretation and Application
1015.
In EC — Hormones, the Appellate Body noted that this
Decision “evidences that the Ministers were aware that Article 17.6 of
the Anti-Dumping Agreement was applicable only in respect of that
Agreement”.(1355)
1016.
In US — Lead and Bismuth II, the Appellate Body
referred to the Decision in the context of rejecting the argument that
the standard of review set forth in Article 17.6 of the Anti-Dumping
Agreement is also applicable to reviews of countervailing duty
investigations under the SCM Agreement:
“This Decision provides for review of the standard of review
in Article 17.6 of the Anti-Dumping Agreement to determine if it
is ‘capable of general application’ to other covered agreements,
including the SCM Agreement. By implication, this Decision
supports our conclusion that the Article 17.6 standard applies only to
disputes arising under the Anti-Dumping Agreement, and not to
disputes arising under other covered agreements, such as the SCM
Agreement. To date, the DSB has not conducted the review
contemplated in this Decision.”(1356)
XXV. 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.
B. Interpretation and Application of the Decision on
Anti-Circumvention
1017.
At its meeting of 28–29 April 1997, the Committee on
Anti-Dumping Practices decided to establish an “Informal Group on
Anti-Circumvention”. The Committee agreed that the Informal Group
would be open to all Members, and could not make any decisions on the
issues discussed, but would make recommendations for consideration by
the Committee.(1357) Documents pertaining to the Informal Group
on Anti-Circumvention are contained in the series G/ADP/IG.
1018.
The Panel in China — Auto Parts discussed the Decision
in the context of examining a claim under Article II of the GATT 1994.
In that case, China argued that the measures at issue were
anti-circumvention measures, aimed at addressing the evasion of certain
tariff rates under China’s tariff schedule. In support of its position
that the measures at issue were consistent with its obligations under
Article II of the GATT 1994, China invoked the Decision on
Anti-Circumvention. The Panel did not consider the Decision to be
relevant to the claim before it:
“The Panel notes that as submitted by the complainants, the notion
of anti-circumvention measures applied in connection with anti-dumping
duties is recognized in the Ministerial Decision on Anti-Circumvention.
The Decision provides: …
As shown in the text of the Decision, WTO Members referred issues
relating to circumvention of anti-dumping duties to the Committee on
Anti-Dumping Practices at the time of the Uruguay Round negotiations.
Since then, WTO Members have continued to discuss the relevant issues in
accordance with the mandate under the Decision and as part of the Doha
negotiations. In contrast, we have no evidence or document showing that
comparable recognition or discussion has ever taken place in the context
of ordinary customs duties or interpretation of Members’ Schedules of
Concessions within the scope of Article II of the GATT 1994. In the
absence of any specific indication or legal basis that the Members’
discussions on the notion of circumvention in relation to anti-dumping
duties can be also related to ordinary customs duties, we do not find
that the circumstances surrounding the notion of anti-circumvention of
anti-dumping measures can be extended to the interpretation of Members’
Schedules of Concessions.
In this regard, China argues that since ‘nothing’ in the Decision
implies that the same problem does not exist in the ordinary customs
duty context, it should be presumed that it also exists in the ordinary
customs duty context. We are not persuaded by China’s argument. The
Decision explicitly notes that WTO Members could not agree on specific
text relating to the problem of circumvention of anti-dumping duty
measures, which formed part of the negotiations which preceded the
Agreement on Implementation of Article VI of GATT 1994, which is an
agreement on anti-dumping duties. It also expresses the negotiators’
‘desirability of the applicability of the uniform rules in this
area‘ (in the area of anti-dumping measures) (emphasis added). We
do not find any basis in the language of the Decision, which is
specifically aimed at the negotiators’ recognition of the
circumvention problem with respect to anti-dumping duty measures, for
extending the same consideration to ordinary customs duties.”(1358)
Footnotes:
1302.
Appellate Body Report, US — 1916 Act, para. 121.
back to text
1303.
Appellate Body Report, US — 1916 Act, paras. 122–126.
See also Panel Report, US — 1916 Act (Japan), paras. 6.214–218
and 6.264; and Panel Report, US — 1916 Act (EC), paras. 6.197–6.199.
back to text
1304.
Appellate Body Report, US — 1916 Act, para. 137.
back to text
1305.
Appellate Body Report, US — Offset Act (Byrd
Amendment), para. 239. back to text
1306.
Appellate Body Report, US — Offset Act (Byrd
Amendment), para. 239. As the Appellate Body underlined, “Our
analysis in US — 1916 Act focused on the strength of the link between
the measure and the elements of dumping or a subsidy. In other words, we
focused on the degree of correlation between the scope of application of
the measure and the constituent elements of dumping or of a subsidy.” Ibid.,
para. 244. back to text
1307. See
Appellate Body Report, US — Offset Act (Byrd
Amendment), para. 247. back to text
1308. Panel Report, US — Offset Act (Byrd Amendment),
paras. 7.17–7.18. back to text
1309.
Appellate Body Report, US — Offset Act (Byrd
Amendment), para. 256. back to text
1310.
Appellate Body Report, US — Offset Act (Byrd
Amendment), para. 257. back to text
1311.
Appellate Body Report, US — Offset Act (Byrd
Amendment), para. 258. back to text
1312. Panel Report, US — 1916 Act (EC), para. 6.114.
back to text
1313. Panel Report, US — 1916 Act (Japan), para. 6.218.
back to text
1314.
Appellate Body Report, US — Offset Act (Byrd
Amendment), para. 262. back to text
1315. Appellate Body Report, US — Shrimp (Thailand)/US
— Customs Bond Directive, para. 231. The Appellate Body ruled that the
complainants had not made any claims regarding cash deposits, and
therefore rejected (and declared to be of no legal effect) the Panel’s
finding that cash deposits required under US law following an
anti-dumping order are not anti-dumping duties. Ibid., paras. 240–242.
back to text
1316. Appellate Body Report, US — Shrimp (Thailand)/US
— Customs Bond Directive, paras. 226–227; see under Article VI in
the Chapter on the GATT 1994. back to text
1317. Appellate Body Report, US — Shrimp (Thailand)/US
— Customs Bond Directive, paras. 268–269. back to text
1318. Appellate Body Report, US — Shrimp (Thailand)/US
— Customs Bond Directive, para. 275. back to text
1319. Panel Report, US — DRAMS, para. 6.14, footnote
477. back to text
1320. Panel Report, US — DRAMS, para. 6.14.
back to text
1321.
Panel Report, US — Shrimp (Viet Nam), paras. 7.221–7.222.
back to text
1322.
Panel Report, US — Hot-Rolled Steel, para. 7.90.
back to text
1323. Appellate Body Report, US — Hot-Rolled Steel,
para. 129. back to text
1324. (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
1325. Appellate Body Report, United States — Corrosion
Resistant Steel Sunset Review, para. 87. back to text
1326. The European Communities is counted as one Member. Prior to
1 May 2004, the member States of the EC were the following: Austria,
Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy,
Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United
Kingdom. As of 1 May 2004, the member States of the EC included in
addition to the afore-listed, the following: Cyprus, the Czech Republic,
Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic
and Slovenia. This annual report includes a period both before and after
the accession of these Members to the European Communities. Therefore,
these Members’ separate notifications of legislation, submitted prior
to their accession to the EC, are listed in this report. See document
G/ADP/N/1/EEC/2/Suppl.6 for updated information on the current status of
laws and regulations of these Members. back to text
1327. Panel Report, US — Customs Bond Directive, para.
7.278. back to text
1328. Panel Report, US — Customs Bond Directive, paras
7.282–7.285. back to text
1329.
WT/MIN(01)/17. back to text
1330. G/ADP/9. back to text
1331. (footnote original) See Report (2001) of the
Committee on Anti-Dumping Practices, Annex C,
G/L/495 (31 October 2001).
back to text
1332. G/ADP/9. back to text
1333.
Panel Report, Guatemala — Cement II, para. 8.296.
back to text
1334. Panel Report, US — 1916 Act (Japan), para. 6.286.
back to text
1335. Panel Report, US — 1916 Act (Japan), para. 6.286,
fn 595. back to text
1336.
Appellate Body Report, US — 1916 Act, paras. 78–82.
See also paras. 876 and 893 of this
Chapter. back to text
1337.
Panel Report, Guatemala — Cement II, para. 8.296.
back to text
1338.
Panel Report, Egypt — Steel Rebar, para. 7.282.
back to text
1339.
Panel Report, Egypt — Steel Rebar, paras. 7.289–7.295.
back to text
1340.
Panel Report, Egypt — Steel Rebar, para. 7.321.
back to text
1341. (footnote original) Para. 7.248.
back to text
1342.
Panel Report, Egypt — Steel Rebar, para. 7.288.
back to text
1343. Panel Report, US — 1916 Act (EC), para. 6.97. See
also US — 1916 Act (Japan), para. 6.93. back to text
1344. Panel Report, US — 1916 Act (EC), para. 6.195. See
also Panel Report, US — 1916 Act (Japan), para. 6.108. back to text
1345. Panel Report, US — 1916 Act (EC), para. 6.106.
back to text
1346. Panel Report, US — 1916 Act (EC), para. 6.107.
back to text
1347.
Appellate Body Report, US — 1916 Act, para. 120.
back to text
1348. Panel Report, US — 1916 Act (EC), para. 6.114. See
also Panel Report, US — 1916 Act (Japan), para. 6.240. back to text
1349. Panel Report, US — 1916 Act (Japan), para. 6.108.
See also Panel Report, US — 1916 Act (EC), para. 6.165. back to text
1350.
Appellate Body Report, US — 1916 Act, para. 133.
back to text
1351. Panel Report, US — 1916 Act (Japan), paras. 6.276–6.281.
back to text
1352. Appellate Body Report, US — Lead and Bismuth II,
para. 49. back to text
1353. Panel Report, US — Corrosion-Resistant Steel Sunset
Review, footnote 39. back to text
1354. Panel Reports, US — Softwood Lumber VI, para.
7.18;
US — Countervailing Duty Investigation on DRAMS, para.
7.351; US — Countervailing Measures on Certain EC Products
(Article 21.5 — EC), para. 7.81; US — Oil Country Tubular Goods
Sunset Reviews (Article 21.5 — Argentina), footnote 45;
Japan
— DRAMs (Korea), para. 7.354. back to text
1355. Appellate Body Report, EC — Hormones, footnote 79.
back to text
1356. Appellate Body Report, US — Lead and Bismuth II,
para. 50. back to text
1357.
G/L/204, para. 15. back to text
1358.
Panel Report, China — Auto Parts, paras. 7.498–7.500.
back to text
|
