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Complaint by Mexico.
On 18 February 2003, Mexico requested consultations
with the US as regards several anti-dumping measures imposed by the US on
imports of OCTG from Mexico, including the final determinations in some
administrative and sunset reviews; and the US authorities’ determination
regarding the continuation of the anti-dumping orders. In addition to
these measures, Mexico’s request includes a number of laws, regulations
and administrative practices (such as “zeroing”) used by the US
authorities in the above determinations. Mexico considers that the above
anti-dumping measures are incompatible with Articles 1, 2, 3, 6, 11 and 18
of the Anti-Dumping Agreement, Articles VI and X of the GATT 1994 and
Article XVI:4 of the WTO Agreement.
On 29 July 2003, Mexico requested the establishment of
a panel. At its meeting on 18 August 2003, the DSB deferred the
establishment of a panel.
Panel and Appellate Body proceedings
Further to a second request to establish a panel
by Mexico, the DSB established a panel at its meeting on 29 August 2003.
Argentina, China, the EC, Japan, Chinese Taipei and Venezuela reserved
their third-party rights. On 5 September 2003, Canada reserved its
On 11 February 2004, the Panel was composed.
On 16 August 2004, the Chairman of the Panel informed
the DSB that it would not be able to complete its work in six months in
light of the schedule which was agreed after consultations with the
parties, and that the Panel expected to complete its work in March 2005.
On 20 June 2005, the Report of the Panel was circulated to Members. In its report:
- Regarding Mexico’s claims on the legal instruments governing determinations of likelihood of recurrence of dumping, the Panel concluded that USDOC practice in sunset reviews was not a measure properly before it, and therefore declined to rule on that aspect of Mexico’s arguments. The Panel further found that the US Statute and the SAA were not, themselves, inconsistent with Article 11.3 of the Anti-Dumping Agreement, but that the Sunset Policy Bulletin (SPB) as such was inconsistent with Article 11.3.
- Regarding Mexico’s claims on the USDOC determination of likelihood of recurrence of dumping, the Panel found that USDOC had made its determination of likelihood of continuation or recurrence of dumping exclusively on the basis of a decline in import volumes, and failed to consider potentially relevant evidence. Therefore, the Panel ruled that the sunset determination was not consistent with Article 11.3.
- The Panel also found that the USITC did not act inconsistently with Article 11.3 in concluding that expiry of the anti-dumping measure on OCTG from Mexico would be likely to lead to continuation or recurrence of injury, and that the USDOC did not act inconsistently with Article 11.2 in determining not to terminate the anti-dumping measure with respect to two Mexican exporters based on their specific circumstances. The Panel also concluded that certain provisions cited by Mexico are not applicable to reviews, and in addition it did not need to rule on a number of dependent and consequential claims.
On 4 August 2005, Mexico notified its decision to appeal to the Appellate Body certain issues of law covered in the Report of the Panel. On 16 August 2005, the United States notified its decision to appeal to the Appellate Body certain issues of law covered in the Report of the Panel. On 26 September 2005, the Appellate Body informed the DSB that due to the time required for completion and translation of the Report, it would not be able to circulate its Report within 60-day period, and that it was estimated that the Report would be circulated to Members no later than 2 November 2005.
On 2 November 2005, the Appellate Body circulated its Report to Members. The Appellate Body upheld the Panel’s finding that the USITC did not act inconsistently with Article 11.3 of the Anti-Dumping Agreement, and ruled that it is not necessary to establish the existence of a causal link between likely dumping and likely injury. However, the Appellate Body reversed the Panel with respect to the Sunset Policy Bulletin, ruling that the Panel failed to make an objective assessment of the matter, including an objective assessment of the facts of the case, as required by Article 11 of the DSU. Essentially, the Appellate Body found that the Panel did not adequately assess the evidence in order to come to its conclusion that the Bulletin establishes an irrebuttable presumption regarding likelihood of continuation or recurrence of dumping.
At its meeting on 28 November 2005, the DSB adopted the Appellate Body Report and the Panel Report as modified by the Appellate Body Report.
Implementation of adopted reports
At the DSB meeting on 20 December 2005, the United States stated its intention to implement the recommendations and rulings of the DSB in a manner that respected its WTO obligations. He stated that they would need a reasonable period of time and was willing to discuss the matter with Mexico. On 15 February 2006, the parties informed the DSB that they had mutually agreed that the reasonable period of time for the United States to implement the recommendations and rulings of the DSB shall be six months, expiring on 28 May 2006.
At the DSB meeting on 30 May 2006, Mexico said that the reasonable period of time had expired on 28 May 2006 and it appeared that the United States had not brought its measures into conformity. The United States said that it was committed to implementing the DSB recommendations and rulings and would apprise Mexico of any developments.
On 11 July 2006, Mexico and the United States informed that DSB of an Understanding regarding procedures under Articles 21 and 22 of the DSU. On 21 August 2006, Mexico requested consultations under Article 21.5 of the DSU.
On 12 April 2007, Mexico requested the establishment of a compliance panel.
At its meeting on 24 April 2007, the DSB agreed to refer the matter raised by Mexico to the original panel, if possible.
At the meeting, China, Japan and the European Communities reserved their third-party rights. Subsequently, Argentina and Thailand reserved their third-party rights. On 8 May 2007, the panel was composed.
On 5 July 2007, Mexico requested the Panel to suspend its work until further notice. Mexico reserved its right to request the Panel to resume its work at any time. On 5 July 2007, the Panel informed the DSB that it had agreed to this request and that it would suspend its work until further notice.
Since the Panel had not been requested to resume its work, pursuant to Article 12.12 of the DSU, the authority for establishment of the Panel lapsed as of 6 July 2008.
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