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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,
- 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
- 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
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
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
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
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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