WTO | Appellate Body Repertory of Reports and Awards 1995-2005

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L.1.1 US — 1916 Act, paras. 60-61 back to top
(WT/DS136/AB/R, WT/DS162/AB/R)

Prior to the entry into force of the WTO Agreement, it was firmly established that Article XXIII:1(a) of the GATT 1947 allowed a Contracting Party to challenge legislation as such, independently from the application of that legislation in specific instances. While the text of Article XXIII does not expressly address the matter, panels consistently considered that, under Article XXIII, they had the jurisdiction to deal with claims against legislation as such. In examining such claims, panels developed the concept that mandatory and discretionary legislation should be distinguished from each other, reasoning that only legislation that mandates a violation of GATT obligations can be found as such to be inconsistent with those obligations. We consider the application of this distinction to the present cases in section IV(B) below.

Thus, that a Contracting Party could challenge legislation as such before a panel was well-settled under the GATT 1947. We consider that the case law articulating and applying this practice forms part of the GATT acquis which, under Article XVI:1 of the WTO Agreement, provides guidance to the WTO and, therefore, to panels and the Appellate Body. Furthermore, in Article 3.1 of the DSU, Members affirm “their adherence to the principles for the management of disputes heretofore applied under Articles XXII and XXIII of GATT 1947”. We note that, since the entry into force of the WTO Agreement, a number of panels have dealt with dispute settlement claims brought against a Member on the basis of its legislation as such, independently from the application of that legislation in specific instances.

L.1.2 US — 1916 Act, paras. 62, 68 back to top
(WT/DS136/AB/R, WT/DS162/AB/R)

Turning to the issue of the legal basis for claims brought under the Anti-Dumping Agreement, we note that Article 17 of the Anti-Dumping Agreement addresses dispute settlement under that Agreement. Just as Articles XXII and XXIII of the GATT 1994 create a legal basis for claims in disputes relating to provisions of the GATT 1994, so also Article 17 establishes the basis for dispute settlement claims relating to provisions of the Anti-Dumping Agreement. In the same way that Article XXIII of the GATT 1994 allows a WTO Member to challenge legislation as such, Article 17 of the Anti-Dumping Agreement is properly to be regarded as allowing a challenge to legislation as such, unless this possibility is excluded. No such express exclusion is found in Article 17 or elsewhere in the Anti-Dumping Agreement.

…

Article 17.3 does not explicitly address challenges to legislation as such. As we have seen above, Articles XXII and XXIII allow challenges to be brought under the GATT 1994 against legislation as such. Since Article 17.3 is the “equivalent provision” to Articles XXII and XXIII of the GATT 1994, Article 17.3 provides further support for our view that challenges may be brought under the Anti-Dumping Agreement against legislation as such, unless such challenges are otherwise excluded.

L.1.3 US — 1916 Act, para. 75 back to top
(WT/DS136/AB/R, WT/DS162/AB/R)

Moreover, as we have seen above, the GATT and WTO case law firmly establishes that dispute settlement proceedings may be brought based on the alleged inconsistency of a Member’s legislation as such with that Member’s obligations. We find nothing, and the United States has identified nothing, inherent in the nature of anti-dumping legislation that would rationally distinguish such legislation from other types of legislation for purposes of dispute settlement, or that would remove anti-dumping legislation from the ambit of the generally-accepted practice that a panel may examine legislation as such.

L.1.4 US — Corrosion-Resistant Steel Sunset Review, para. 81 and footnote 79 back to top
(WT/DS244/AB/R)

… we start with the concept of “measure”. Article 3.3 of the DSU refers to “situations in which a Member considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another Member”. (emphasis added) This phrase identifies the relevant nexus, for purposes of dispute settlement proceedings, between the “measure” and a “Member”. In principle, any act or omission attributable to a WTO Member can be a measure of that Member for purposes of dispute settlement proceedings. The acts or omissions that are so attributable are, in the usual case, the acts or omissions of the organs of the state, including those of the executive branch.⁷⁹

L.1.5 US — Corrosion-Resistant Steel Sunset Review, para. 82
(WT/DS244/AB/R) back to top

In addition, in GATT and WTO dispute settlement practice, panels have frequently examined measures consisting not only of particular acts applied only to a specific situation, but also of acts setting forth rules or norms that are intended to have general and prospective application. In other words, instruments of a Member containing rules or norms could constitute a “measure”, irrespective of how or whether those rules or norms are applied in a particular instance. This is so because the disciplines of the GATT and the WTO, as well as the dispute settlement system, are intended to protect not only existing trade but also the security and predictability needed to conduct future trade. This objective would be frustrated if instruments setting out rules or norms inconsistent with a Member’s obligations could not be brought before a panel once they have been adopted and irrespective of any particular instance of application of such rules or norms. It would also lead to a multiplicity of litigation if instruments embodying rules or norms could not be challenged as such, but only in the instances of their application. Thus, allowing claims against measures, as such, serves the purpose of preventing future disputes by allowing the root of WTO-inconsistent behaviour to be eliminated.

L.1.6 US — Corrosion-Resistant Steel Sunset Review, para. 83
(WT/DS244/AB/R) back to top

… we have explained that Article 17.4 precludes a panel from addressing individual acts (as opposed to measures “as such”) committed by an investigating authority in the context of the initiation and conduct of anti-dumping investigations unless one of the three types of measure listed in Article 17.4 is identified in the request for establishment of a panel. These measures are a definitive anti-dumping duty, the acceptance of a price undertaking, and a provisional measure. We have also found, in US — 1916 Act, that Article 17.4 does not place such a limit on a panel’s jurisdiction to entertain claims against legislation as such. Indeed, we stated in that appeal that no provision of the Anti-Dumping Agreement precludes a panel from considering claims against legislation as such.

L.1.7 US — Corrosion-Resistant Steel Sunset Review, para. 86
(WT/DS244/AB/R) back to top

The provisions of the Anti-Dumping Agreement setting forth a legal basis for matters to be referred to consultations and thus to dispute settlement, are also cast broadly. Article 17.3 establishes the principle that when a complaining Member “considers” that its benefits are being nullified or impaired “by another Member or Members”, it may request consultations. This language underlines that a measure attributable to a Member may be submitted to dispute settlement provided only that another Member has taken the view, in good faith, that the measure nullifies or impairs benefits accruing to it under the Anti-Dumping Agreement. There is no threshold requirement, in Article 17.3, that the measure in question be of a certain type.

L.1.8 US — Corrosion-Resistant Steel Sunset Review, para. 87 and footnote 87 back to top
(WT/DS244/AB/R)

We also believe that the provisions of Article 18.4 of the Anti-Dumping Agreement are relevant to the question of the type of measures that may, as such, be submitted to dispute settlement under that Agreement. Article 18.4 contains an explicit obligation for Members to “take all necessary steps, of a general or particular character” to ensure that their “laws, regulations and administrative procedures” are in conformity with the obligations set forth in the Anti-Dumping Agreement. Taken as a whole, 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.⁸⁷ 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.

L.1.9 US — Corrosion-Resistant Steel Sunset Review, para. 88
(WT/DS244/AB/R) back to top

This analysis leads us to conclude that there is no basis, either in the practice of the GATT and the WTO generally or in the provisions of the Anti-Dumping Agreement, for finding that only certain types of measure can, as such, be challenged in dispute settlement proceedings under the Anti-Dumping Agreement. Hence we see no reason for concluding that, in principle, non-mandatory measures cannot be challenged “as such”. …

L.1.10 US — Corrosion-Resistant Steel Sunset Review, para. 89
(WT/DS244/AB/R) back to top

We observe, too, that allowing measures to be the subject of dispute settlement proceedings, whether or not they are of a mandatory character, is consistent with the comprehensive nature of the right of Members to resort to dispute settlement to “preserve [their] rights and obligations … under the covered agreements, and to clarify the existing provisions of those agreements”. As long as a Member respects the principles set forth in Articles 3.7 and 3.10 of the DSU, namely, to exercise their “judgement as to whether action under these procedures would be fruitful” and to engage in dispute settlement in good faith, then that Member is entitled to request a panel to examine measures that the Member considers nullify or impair its benefits. We do not think that panels are obliged, as a preliminary jurisdictional matter, to examine whether the challenged measure is mandatory. This issue is relevant, if at all, only as part of the panel’s assessment of whether the measure is, as such, inconsistent with particular obligations. It is to this issue that we now turn.

L.1.11 US — Corrosion-Resistant Steel Sunset Review, para. 168
(WT/DS244/AB/R) back to top

When a measure is challenged “as such”, the starting point for an analysis must be the measure on its face. If the meaning and content of the measure are clear on its face, then the consistency of the measure as such can be assessed on that basis alone. If, however, the meaning or content of the measure is not evident on its face, further examination is required. …

L.1.12 US — Oil Country Tubular Goods Sunset Reviews, para. 172
(WT/DS268/AB/R) back to top

… In our view, “as such” challenges against a Member’s measures in WTO dispute settlement proceedings are serious challenges. By definition, an “as such” claim challenges laws, regulations, or other instruments of a Member that have general and prospective application, asserting that a Member’s conduct — not only in a particular instance that has occurred, but in future situations as well — will necessarily be inconsistent with that Member’s WTO obligations. In essence, complaining parties bringing “as such” challenges seek to prevent Members ex ante from engaging in certain conduct. The implications of such challenges are obviously more far-reaching than “as applied” claims.

L.1.13 US — Oil Country Tubular Goods Sunset Reviews, para. 173
(WT/DS268/AB/R) back to top

We also expect that measures subject to “as such” challenges would normally have undergone, under municipal law, thorough scrutiny through various deliberative processes to ensure consistency with the Member’s international obligations, including those found in the covered agreements, and that the enactment of such a measure would implicitly reflect the conclusion of that Member that the measure is not inconsistent with those obligations. The presumption that WTO Members act in good faith in the implementation of their WTO commitments is particularly apt in the context of measures challenged “as such”. We would therefore urge complaining parties to be especially diligent in setting out “as such” claims in their panel requests as clearly as possible. In particular, we would expect that “as such” claims state unambiguously the specific measures of municipal law challenged by the complaining party and the legal basis for the allegation that those measures are not consistent with particular provisions of the covered agreements. Through such straightforward presentations of “as such” claims, panel requests should leave respondent parties in little doubt that, notwithstanding their own considered views on the WTO-consistency of their measures, another Member intends to challenge those measures, as such, in WTO dispute settlement proceedings.

L.1.14 US — Oil Country Tubular Goods Sunset Reviews, para. 186
(WT/DS268/AB/R) back to top

We turn first to the United States’ understanding of the Appellate Body’s finding in US — Corrosion-Resistant Steel Sunset Review. We disagree with the United States’ assertion that, in that case, the Appellate Body left open the question whether the SPB is a measure. It is clear that by reversing the panel’s finding that “the Sunset Policy Bulletin is not a measure that is challengeable, as such, under the WTO Agreement”, the Appellate Body concluded that the SPB is a measure subject to WTO dispute settlement. …

L.1.15 US — Oil Country Tubular Goods Sunset Reviews, para. 187
(WT/DS268/AB/R) back to top

… As noted by the United States, in US — Corrosion-Resistant Steel Sunset Review, the Appellate Body indicated that “acts setting forth rules or norms that are intended to have general and prospective application” are measures subject to WTO dispute settlement. We disagree with the United States’ application of these criteria to the SPB. In our view, the SPB has normative value, as it provides administrative guidance and creates expectations among the public and among private actors. It is intended to have general application, as it is to apply to all the sunset reviews conducted in the United States. It is also intended to have prospective application, as it is intended to apply to sunset reviews taking place after its issuance. Thus, we confirm — once again — that the SPB, as such, is subject to WTO dispute settlement.

L.1.16 Dominican Republic — Import and Sale of Cigarettes, para. 107
(WT/DS302/AB/R) back to top

… we observe that the Appellate Body has consistently affirmed the right of WTO Members to challenge legislation laying down norms or rules “as such”, as well as their right to bring claims against the application of such measures in specific instances. …

79. Both specific determinations made by a Member’s executive agencies and regulations issued by its executive branch can constitute acts attributable to that Member…. back to text

87. 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

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