This summary has been prepared by the Secretariat under its own responsibility. The summary is for general information only and is not intended to affect the rights and obligations of Members.
See also:
> One-page summary of key findings of this dispute
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> Text of the Dispute Settlement Understanding
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Summary of the dispute to date back to top
The summary below was up-to-date at
See also: One-page summary of key findings of this dispute
Consultations
Complaint by Poland.
On 6 April
1998, Poland requested consultations with Thailand concerning the
imposition of final anti-dumping duties on imports of angles, shapes and
sections of iron or non-alloy steel and H-beams. Poland asserted that
provisional anti-dumping duties were imposed by Thailand on 27 December
1996, and a final anti-dumping duty of 27.78% of CIF value for these
products, produced or exported by any Polish producer or exporter, was
imposed on 26 May 1997. Poland further asserted that Thailand refused two
requests by Poland for disclosure of findings. Poland contended that these
actions by Thailand violate Articles 2, 3, 5 and 6 of the Anti-Dumping
Agreement.
On 13 October 1999, Poland
requested the establishment of a panel. At its meeting on 27 October 1999,
the DSB deferred the establishment of a panel.
Panel and Appellate Body proceedings
Further to a second request
to establish a panel by Poland, the DSB established a panel at its meeting
on 19 November 1999. The EC, Japan and the US reserved their third-party
rights. On 20 December 1999, the Panel was composed. The report was
circulated to Members on 28 September 2000. The Panel concluded that:
-
Poland failed to establish that Thailand had acted
inconsistently with its obligations under Article 2 of the
Anti-Dumping Agreement or Article VI of the GATT 1994 in the
calculation of the amount for profit in constructing normal value.
-
Thailand’s imposition of the definitive
anti-dumping measure on imports of H-beams from Poland was
inconsistent with the requirements of Article 3 of the Anti-Dumping
Agreement in that:
-
inconsistently with the second sentence of Article
3.2 and Article 3.1, the Thai authorities did not consider, on the
basis of an “objective examination” of “positive
evidence” in the disclosed factual basis, the price effects of
dumped imports;
-
inconsistently with Articles 3.4 and 3.1, the Thai
investigating authorities failed to consider certain factors listed in
Article 3.4, and failed to provide an adequate explanation of how the
determination of injury could be reached on the basis of an “unbiased or objective evaluation” or an
“objective
examination” of “positive evidence” in the disclosed
factual basis; and
- inconsistently with Articles 3.5 and 3.1, the
Thai authorities made a determination of a causal relationship between
dumped imports and any possible injury on the basis of (a) their
findings concerning the price effects of dumped imports, which the
Panel had already found to be inconsistent with the second sentence of
Article 3.2 and Article 3.1; and (b) their findings concerning injury,
which the Panel had already found to be inconsistent with Article 3.4
and 3.1.
- under Article 3.8 of the DSU, in cases where
there is infringement of the obligations assumed under a covered
agreement, the action is considered prima facie to constitute a
case of nullification or impairment of benefits under that agreement, and
that, accordingly, to the extent Thailand has acted inconsistently with
the provisions of the AD Agreement, it has nullified or impaired benefits
accruing to Poland under that Agreement.
On 23 October 2000, Thailand notified the DSB of its
decision to appeal certain issues of law covered in the Panel Report and
legal interpretations developed by the Panel. The Appellate Body
circulated its report on 12 March 2001. The Appellate Body:
-
upheld the Panel’s conclusion that with respect to the
claims under Articles 2, 3 and 5 of the AD Agreement, the request for the
establishment of a panel submitted by Poland in this case was sufficient
to meet the requirements of Article 6.2 of the DSU;
-
reversed the finding of the Panel that the AD Agreement
requires a panel reviewing the imposition of an anti-dumping duty to
consider only the facts, evidence and reasoning that were disclosed to, or
discernible by, Polish firms at the time of the final determination of
dumping. The Appellate Body was of the view that there was no basis for
the Panel’s reasoning, either in Article 3.1 of the AD Agreement, which
lays down the obligations of Members with respect to the determination of
injury, or in Article 17.6 of the AD Agreement, which sets out the
standard of review for panels.
-
Although having reversed the reasoning of the Panel on
this issue, it left undisturbed the Panel’s main findings of violation;
-
upheld the Panel’s conclusion under Article 3.4 of the
AD Agreement. The Appellate Body agreed with the Panel that Article 3.4
requires a mandatory evaluation of all the factors listed in that
provision,
-
concluded that the Panel did not err in its application
of the burden of proof, or in the application of the standard of review
under Article 17.6(i) of the AD Agreement.
At its meeting of 5 April 2001, the DSB adopted the Appellate Body
report and the panel report, as modified by the Appellate Body report.
Implementation of adopted reports
Thailand informed the DSB that it
was in the process of identifying the most suitable way to comply with the
DSB’s recommendations in this case and that it would need a reasonable
period of time for implementation. Poland reiterated its position that in
order to implement the DSB’s recommendations in this case Thailand would
have to revoke the duties currently in place. If not, Poland would seek
recourse to Article 21.5 of the DSU. Poland was ready to enter into
consultations with Thailand on a reasonable period of time for
implementation. On 25 May 2001, the parties to the dispute informed the
DSB that they had agreed that the reasonable period of time shall be 6
months and 15 days and therefore expired on 20 October 2001.
At the DSB meeting on 18 December 2001, Thailand
announced that it had fully implemented the DSB’s recommendations. Poland
said that it could not accept the way in which Thailand had implemented
the DSB’s recommendations because it expected that the measures in
question would be either rescinded or modified. In Poland’s view, Thailand
only changed the justification for the imposition of the measures. Poland
reserved its rights under Article 21.5 of the DSU.
On 18 December 2001, Thailand and Poland concluded an understanding
with regard to possible proceedings under Article 21 and 22 of the DSU.
Pursuant to the understanding, in the event that Poland initiates
proceedings under Articles 21.5 and 22 of the DSU, Poland agrees to
initiate complete proceedings under 21.5 prior to any proceedings under
Article 22. On 21 January 2002, the parties informed the DSB that they
have reached an agreement to the effect that the implementation of the
recommendations of the DSB in this dispute should no longer remain on the
agenda of the DSB.
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