Legal issues arising in WTO dispute settlement proceedings

10.5 Standard of review

The general rule in Article 11 of the DSU

A panel’s standard of review is stipulated in Article 11 of the DSU. A panel has to “make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements.”

As to the establishment of the facts in a case, this “objective assessment” has been understood as mandating neither a de novo review (i.e. the complete repetition of the fact-finding conducted by national authorities) nor “total deference” to domestic authorities (i.e. the simple acceptance of their determination).¹

In the area of safeguard measures², this has been considered to mean that a panel must assess whether the national authorities have examined all the relevant facts and provided a reasoned explanation of how the facts support their determination.³ National authorities must look for and evaluate relevant information, irrespective of whether any interested party involved in the national proceedings has relied upon it.⁴ Panels must critically examine the competent authorities’ explanation as to whether it fully addresses the nature, and the complexities, of the data, and responds to other plausible interpretations of that data.⁵ However, panels must not consider evidence which did not exist at the time when the Member made its determination.⁶

The special standard of review in Article 17.6 of the Anti-Dumping Agreement  back to top

One covered agreement, the Anti-Dumping Agreement, sets out a special standard of review (Article 17.6 of the Anti-Dumping Agreement). This special provision is intended to give a greater margin of deference to the Member’s anti-dumping determination than would Article 11 of the DSU.

In its assessment of the facts of the matter in an anti-dumping dispute, a panel must determine whether the establishment of the facts by the anti-dumping authorities was proper and whether their evaluation of those facts was unbiased and objective. If that is the case, the panel must accept the anti-dumping determination, even though it might have reached a different conclusion about those facts.

As regards the standard of legal review, Article 17.6 (ii) confirms that the panel must interpret the relevant provisions of the Anti-Dumping Agreement in accordance with customary rules of interpretation of public international law.⁷ Where a relevant provision can have more than one permissible interpretation, the panel must find the anti-dumping measure to be in conformity with the Anti-Dumping Agreement if it is based upon one of those permissible interpretations.⁸

Notes:

1. Appellate Body Report, EC — Hormones, para. 117.  back to text

2. Adopted pursuant to Article XIX of GATT 1994 and the Agreement on Safeguards.  back to text

3. Appellate Body Report, Argentina — Footwear (EC), para. 121.  back to text

4. Appellate Body Report, US — Wheat Gluten, para. 55.  back to text

5. Appellate Body Report, US — Lamb, paras. 103 and 106.  back to text

6. Appellate Body Report, US — Cotton Yarn, paras. 73 and 78.  back to text

7. See Article 3.2 DSU and the section on Clarification of rights and obligations through interpretation  back to text

8. As regards the interpretation of Article 17.6(ii), see Appellate Body Report, US — Hot-Rolled Steel, paras. 57-62, 172; Appellate Body Report, EC — Bed Linen, paras. 63-65 and 85  back to text