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REPERTORY OF APPELLATE BODY REPORTS

Legislation as such vs. Specific Application

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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 back to top
(WT/DS302/AB/R)

… 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. …

L.1.17 US — Zeroing (EC), paras. 190-193 back to top
(WT/DS294/AB/R, WT/DS294/AB/R/Corr.1)

… we now turn to examine whether the zeroing methodology, as framed by the European Communities in this dispute, constitutes such a measure. In particular, we consider whether the zeroing methodology, which, as the Panel said, “is not expressed in writing”, can be subject to dispute settlement under the Anti-Dumping Agreement.

In the context of the Anti-Dumping Agreement, the Appellate Body has said that Article 17.3 “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”. In other words, “[t]here is no threshold requirement, in Article 17.3, that the measure in question be of a certain type.”

Article 18.4 of the Anti-Dumping Agreement is also relevant to the question of the type of measures that can, as such, be submitted to dispute settlement under the Anti-Dumping Agreement. That provision contains an explicit obligation for Members to ensure that their “laws, regulations and administrative procedures” are in conformity with the obligations set forth in that Agreement. The phrase “laws, regulations and administrative procedures” encompasses, in our view, “the entire body of generally applicable rules, norms and standards adopted by Members in connection with the conduct of anti-dumping proceedings”. As the Appellate Body has previously explained, the determination of the scope of “laws, regulations and administrative procedures” must be based on the “content and substance” of the alleged measure, and “not merely on its form”. Accordingly, the mere fact that a “rule or norm” is not expressed in the form of a written instrument, is not, in our view, determinative of the issue of whether it can be challenged, as such, in dispute settlement proceedings. Rather, as the Appellate Body has stated, “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[s] can, as such, be challenged in dispute settlement proceedings under the Anti-Dumping Agreement”. This is, moreover, 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 provided for in Article 3.2 of the DSU.

For all these reasons, and based on our review of the DSU and the Anti-Dumping Agreement, we see no basis to conclude that “rules or norms” can be challenged, as such, only if they are expressed in the form of a written instrument.

L.1.18 US — Zeroing (EC), paras. 196-198 back to top
(WT/DS294/AB/R, WT/DS294/AB/R/Corr.1)

… a panel must not lightly assume the existence of a “rule or norm” constituting a measure of general and prospective application, especially when it is not expressed in the form of a written document. If a panel were to do so, it would act inconsistently with its obligations under Article 11 of the DSU to “make an objective assessment of the matter” before it.

When an “as such” challenge is brought against a “rule or norm” that is expressed in the form of a written document — such as a law or regulation — there would, in most cases, be no uncertainty as to the existence or content of the measure that has been challenged. The situation is different, however, when a challenge is brought against a “rule or norm” that is not expressed in the form of a written document. In such cases, the very existence of the challenged “rule or norm” may be uncertain.

In our view, when bringing a challenge against such a “rule or norm” that constitutes a measure of general and prospective application, a complaining party must clearly establish, through arguments and supporting evidence, at least that the alleged “rule or norm” is attributable to the responding Member; its precise content; and indeed, that it does have general and prospective application. It is only if the complaining party meets this high threshold, and puts forward sufficient evidence with respect to each of these elements, that a panel would be in a position to find that the “rule or norm” may be challenged, as such. This evidence may include proof of the systematic application of the challenged “rule or norm”. Particular rigour is required on the part of a panel to support a conclusion as to the existence of a “rule or norm” that is not expressed in the form of a written document. A panel must carefully examine the concrete instrumentalities that evidence the existence of the purported “rule or norm” in order to conclude that such “rule or norm” can be challenged, as such.

L.1.19 US — Zeroing (EC), paras. 200-204 and footnotes 359-360
(WT/DS294/AB/R, WT/DS294/AB/R/Corr.1) back to top

Based on its assessment of this evidence, the Panel concluded that “the zeroing methodology manifested in the ‘Standard Zeroing Procedures’ represents a well-established and well-defined norm followed by [the] USDOC and that it is possible based on this evidence to identify with precision the specific content of that norm and the future conduct that it will entail”.

Based on our review, we observe that the evidence before the Panel consisted of the USDOC determinations in the “as applied” cases challenged by the European Communities, as well as the standard programs used by the USDOC to calculate margins of dumping. Furthermore, the Panel had before it expert opinions regarding the use and the content of the zeroing methodology. In addition, we note that the Panel had before it the United States’ recognition that it had been “unable to identify any instance where [the] USDOC had given a credit for non-dumped sales”. The Panel noted that the United States “ha[d] not contested in this proceeding that [the] USDOC’s zeroing methodology reflects a deliberate policy”. Furthermore, the United States indicated in its opening statement at the oral hearing that it will soon be publicly announcing that it no longer will engage in zeroing when using the weighted-average-to-weighted-average methodology for purposes of calculating margins of dumping in original investigations.

The Anti-Dumping Manual has also been referred to by the European Communities as evidence of “the ‘standard’ character of the ‘Standard Zeroing Procedures’ ”. …

Reviewing the Panel’s reasoning, it is evident that there are several features of the Panel’s analysis that differ from our own. First, the Panel did not articulate the criteria for bringing an “as such” challenge in the same way as we have above. Moreover, the Panel did not, in its analysis, clearly distinguish between the issue of ascertaining the existence of the challenged measure, which is especially important when unwritten measures are at issue, and the separate examination of its consistency with the relevant provisions of the covered agreements.³⁵⁹ We are also of the view that the Panel did not articulate its ultimate conclusion regarding the consistency of the “zeroing methodology” with Article 2.4.2 with sufficient precision.³⁶⁰ …

Notwithstanding these shortcomings in the Panel’s reasoning, we believe that, in the specific circumstances of this case, the evidence before the Panel was sufficient to identify the precise content of the zeroing methodology; that the zeroing methodology is attributable to the United States, and that it does have general and prospective application. This evidence consisted of considerably more than a string of cases, or repeat action, based on which the Panel would have simply divined the existence of a measure in the abstract. …

L.1.20 US — Zeroing (EC), paras. 231-232 back to top
(WT/DS294/AB/R, WT/DS294/AB/R/Corr.1)

The Panel found that “to characterize the ‘Standard Zeroing Procedures’ as an act or instrument that sets forth rules or norms intended to have general and prospective application is somewhat difficult to reconcile with the fact that the ‘Standard Zeroing Procedures’ are only applicable in a particular anti-dumping proceeding as a result of their inclusion in the computer program … used in that particular proceeding”. According to the Panel, “the need to incorporate these lines of computer code into each individual program … indicates that it is not the ‘Standard Zeroing Procedures’ per se that set forth rules or norms of general and prospective application”. We agree with the Panel. Therefore, we find that the Standard Zeroing Procedures are not a measure that can be challenged, as such, in WTO dispute settlement.

Because the Standard Zeroing Procedures are not a measure that can be challenged, as such, it follows that they cannot be found to be either consistent or inconsistent with a Member’s obligations under the covered agreements. …

L.1.21 EC — Selected Customs Matters, para. 165 back to top
(WT/DS315/AB/R)

The United States contends that its claim relates to the European Communities’ system of customs administration “as a whole or overall”. As a preliminary observation, we do not think that, by challenging the European Communities’ system of customs administration as a whole, the United States made an “as such” claim. Indeed, before the Panel, the United States made it clear that it was “not challenging the substance of the measures mentioned in its request for establishment of a panel”. This was confirmed by the United States in response to questioning at the oral hearing. Also at the oral hearing, the United States explained that, in this dispute, the claim made by the United States under Article X:3(a) is not readily classifiable in the categories of “as such” and “as applied” claims, that it would be inaccurate to characterize its claim as an “as such” claim, and that it did not wish to add a further category of claims.

L.1.22 US — Oil Country Tubular Goods Sunset Reviews (Article 21.5 — Argentina), para. 120 back to top
(WT/DS268/AB/RW)

We observe that a respondent’s explanation of the basis on which its investigating authority will make a determination will have more weight if it is confirmed by the text of the applicable laws or regulations. But the United States’ statements that the USDOC must consider all information and arguments on the record, and that the relevance of a company-specific finding to the order-wide likelihood determination would always depend on the facts of each case, cannot be rejected merely because there is no legal instrument that expressly requires the USDOC to act in this way. This is insufficient to support properly a finding of inconsistency as such. Thus, the Panel’s reasoning seems speculative, and this is reflected in the language used in the Panel Report.

L.1.23 US — Upland Cotton (Article 21.5 — Brazil), paras. 242-243
(WT/DS267/AB/RW) back to top

We examine, first, the United States’ argument that Brazil could have challenged the programmes “as such”. As we indicated above, we have difficulty accepting the notion that payments under a subsidy programme can be assessed separately from the programmes or legislation pursuant to which those payments are made. This is because the terms and conditions, beneficiaries, amounts, and other aspects of a payment will be set in the programme or authorizing legislation, especially in the case of annually recurring payments. The difficulty of divorcing the payments from the programmes, in this case, is evident in the Panel’s approach to this issue. Despite finding that only the payments were properly within the scope of the Article 21.5 proceedings, the Panel nevertheless considered that it could not exclude completely from its assessment the programmes under which the payments were provided.

Moreover, even if a complainant brings an “as such” challenge to a subsidy programme, it is difficult to see how a panel would assess whether the subsidy has resulted in adverse effects without reviewing the payments actually made under that programme during a past reference period. The United States acknowledges that “serious prejudice, by its nature, is fact-specific and depends on the situation in the market, a situation that may be constantly changing such that the terms and conditions for a subsidy that causes serious prejudice during one time period are not causing serious prejudice for another time period”. Thus, we find it difficult to conceive how an analysis of whether a programme “as such” resulted in adverse effects would differ from an analysis of whether payments under a programme have resulted in such effects.

L.1.24 US — Continued Zeroing, paras. 179-180 back to top
(WT/DS350/AB/R)

… the distinction between “as such” and “as applied” claims does not govern the definition of a measure for purposes of WTO dispute settlement. This distinction has been developed in the jurisprudence as an analytical tool to facilitate the understanding of the nature of a measure at issue. This heuristic device, however useful, does not define exhaustively the types of measures that may be subject to challenge in WTO dispute settlement. In order to be susceptible to challenge, a measure need not fit squarely within one of these two categories, that is, either as a rule or norm of general and prospective application, or as an individual instance of the application of a rule or norm.

In this dispute, the measures at issue consist of the use of the zeroing methodology in successive proceedings, in each of the 18 cases, by which the anti-dumping duties are maintained. The European Communities’ claim regarding these measures is not an “as such” claim, in that its scope is narrower than a challenge to the zeroing methodology as a rule or norm of general and prospective application with regard to all imports into the United States from all countries. At the same time, the measures at issue are broader than specific instances in which the zeroing methodology was applied, such as a periodic review or sunset review determination. In other words, the measures at issue consist of the use of the zeroing methodology in a string of connected and sequential determinations, in each of the 18 cases, by which the duties are maintained.

L.1.25 US — Continued Zeroing, para. 181 back to top
(WT/DS350/AB/R)

Thus, the measures at issue consist of neither the zeroing methodology as a rule or norm of general and prospective application, nor discrete applications of the zeroing methodology in particular determinations; rather, they are the use of the zeroing methodology in successive proceedings, in each of the 18 cases, by which duties are maintained over a period of time. We see no reason to exclude ongoing conduct that consists of the use of the zeroing methodology from challenge in WTO dispute settlement. The successive determinations by which duties are maintained are connected stages in each of the 18 cases involving imposition, assessment, and collection of duties under the same anti-dumping duty order. The use of the zeroing methodology in a string of these stages is the allegedly unchanged component of each of the 18 measures at issue. It is with respect to this ongoing conduct that the European Communities brought its challenge, seeking its cessation. At the oral hearing, the European Communities confirmed that it is not seeking the revocation of the 18 anti-dumping orders but, rather, the cessation of the use of the zeroing methodology by which the duties are calculated and maintained in these 18 cases. In our view, the European Communities, in seeking an effective resolution of its dispute with the United States, is entitled to frame the subject of its challenge in such a way as to bring the ongoing conduct, regarding the use of the zeroing methodology in these 18 cases, under the scrutiny of WTO dispute settlement.

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

359. We note that the Panel referred to the Report of the Appellate Body in US — Oil Country Tubular Goods Sunset Reviews, expressing the view that if “a non-legally binding policy instrument such as the SPB is a measure that can be challenged as such, it must logically also be possible to challenge as a measure a norm that is not expressed in the particular form of an official written statement but the existence of which is made manifest on the basis of other evidence” (Panel Report, para. 7.99). The Appellate Body’s analysis of the SPB does not, in our view, answer the question whether an unwritten “norm” can be challenged, as such. back to text

360. In particular, we note that the Panel’s finding, on its face, is not clearly limited to a finding regarding the consistency of the zeroing methodology, as it relates to original investigations in which the weighted-average-to-weighted-average methodology contemplated in the first sentence of Article 2.4.2 is used to establish margins of dumping. Nevertheless, this is what we understand the Panel to have meant (see Panel Report, para. 7.105). back to text

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