DISPUTE SETTLEMENT: DISPUTE DS244

United States — Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan


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.

  

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One-page summary of key findings of this dispute
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Current status  back to top

 

Key facts  back to top

Short title:
Complainant:
Respondent:
Third Parties:
Agreements cited:
(as cited in request for consultations)
Request for Consultations received:
Panel Report circulated: 14 August 2003
Appellate Body Report circulated: 15 December 2003

 

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 Japan.

On 30 January 2002, Japan requested consultations with the United States in respect of the final determinations of both the United States Department of Commerce (DOC) and the United States International Trade Commission in the full sunset review of the anti-dumping duties imposed on imports of corrosion-resistant carbon steel flat products from Japan. These determinations were issued on 2 August 2000 and 21 November 2000, respectively.

  • Japan claimed that these determinations were erroneous and based on deficient rulings, procedures and provisions pertaining to the United States Tariff Act of 1930, as amended (“the Act”) and related regulations.
     
  • Japan further claimed that the procedures and provisions of the Act and related regulations as well as the above determinations were inconsistent with, inter alia, Articles VI and X of GATT 1994; Articles 2, 3, 5, 6 (including Annex II), 11, 12, and 18.4 of the Anti-Dumping Agreement; and Article XVI:4 of the WTO Agreement.

On 13 February 2002, the EC requested to join the consultations. On 14 February 2002, India requested to join the consultations.

On 4 April 2002, Japan requested the establishment of a panel. At its meeting on 17 April 2002, the DSB deferred the establishment of a panel.

 

Panel and Appellate Body proceedings

Further to a second request from Japan, the DSB established a panel at its meeting on 22 May 2002. Brazil, Canada, Chile, EC, India. Korea, Norway and Venezuela reserved third-party rights to participate in the Panel proceedings.

On 9 July 2002, Japan requested the Director-General to compose the panel. On 17 July 2002, the panel was composed.

On 5 August 2002 Venezuela decided to withdraw as a third party from the panel proceedings.

On 9 January 2003, the Chair of the Panel informed the DSB that it would not be possible to complete its work within six months due to the timetable adopted after having heard the parties’ views and based on the time periods prescribed in Appendix 3 of the DSU. The Panel expected to complete its work by April 2003. On 22 May 2003, the Panel issued its report to the parties to the dispute. On 14 August 2003, the Panel circulated its Report to the Members. The Panel rejected all of Japan’s claims challenging various aspects of the US laws and regulations regarding the conduct of “sunset” reviews of anti-dumping duties under US law. The Panel found, inter alia, that the obligations pertaining to evidentiary standards for self-initiation and de minimis standards in investigations do not apply to sunset reviews. The Panel also rejected Japan’s argument that the US Sunset Policy Bulletin — which, by its own terms, provides guidance on methodological or analytical issues not explicitly addressed by the US statute and regulations —— was a mandatory instrument that could be challenged as such in WTO dispute settlement. Rather, the Panel found that the Bulletin may be challenged only in respect of its application by the US Department of Commerce (“USDOC”) in a particular case. The Panel further found that the USDOC’s determination of likelihood of continuation or recurrence of dumping in this particular case was not WTO-inconsistent. Accordingly, the Panel made no recommendation.

On 15 September 2003, Japan sent its notification of an appeal to the DSB and filed the Notice of Appeal with the Appellate Body.

On 12 November 2003, the Chairman of the Appellate Body informed the DSB that the Appellate Body would not be able to circulate its Report within 60 days due to the time required for completion and translation of the Report and that it estimated that the Appellate Body Report in this appeal would be circulated to WTO Members no later than 15 December 2003.

On 15 December 2003, the report of the Appellate Body was circulated to Members. The Appellate Body upheld three findings but reversed four of the Panel’s legal findings. The Appellate Body found, contrary to the Panel, that the Bulletin can be challenged in WTO dispute settlement. However, the Appellate Body did not find any of the provisions of the Bulletin inconsistent with the Anti-Dumping Agreement or the WTO Agreement. Although its analysis of Japan’s claims differed from that of the Panel in important respects, the Appellate Body did not make any finding that the US had acted inconsistently with its obligations under the Anti-Dumping Agreement or the WTO Agreement.

At its meeting on 9 January 2004, the DSB adopted the Appellate Body report and the Panel report, as modified by the Appellate Body report.

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