special rules for anti-dumping disputes
outline
section one recourse of anti-dumping disputes to the dsb
i introduction
ii sufficiency of panel request under the ad agreement
(i) art. 6.2 of the dsu and article 17.4 of the ad agreement
(ii) art. 6.2 of the dsu and article 17.5(i) of the ad agreement
(iii) a summary guiding
iii general legal basis for claims against legislation as such
iv special rules for claims against anti-dumping legislation as such
(i) introduction
（ii）general legal basis under art. 17 of the ad agreement
(iii) understanding of art. 17.4 of the ad agreement
(iv) extensive basis in context
(v) a summary
section two ad hoc standard of review for anti-dumping disputes
i introduction
ii special standard of review under the ad agreement: in general
(i) ad hoc approaches to domestic determination: art. 17.6
(ii) relationship between art. 11 of the dsu and art. 17.6 of the ad agreement
(iii) a summary guiding
iii scope of review of fact-findings: art. 17.5(ii) of the ad agreement
(i)overview of the gatt practice
(ii)concerned rulings in reports issued by wto panels
(iii)tentative remarks: guidance from the appellate body
section one
recourse of anti-dumping disputes to the dsb
i introduction
compared to the legally fragmented previous gatt dispute settlement system, the new wto dispute settlement system is an integrated system with much broader jurisdiction and less scope for “rule shopping” and “forum shopping”. however, according to art. 1.2 of the dsu which states in part that, “[t]he rules and procedures of this understanding shall apply subject to such special or additional rules and procedures on dispute settlement contained in the covered agreements as are identified in appendix 2 to this understanding”, many covered agreements under the wto jurisdiction continue to include special dispute settlement rules and procedures. such special rules and procedures are listed in appendix 2 to the dsu. and in this chapter, we will focus on such special dispute settlement rules concerning anti-dumping disputes, i.e. arts. 17.4 through 17.7 of the anti-dumping agreement (‘the ad agreement’).
an analysis of the dsb practice suggests a separate contribution of this chapter to this book, merited by dispute settlement proceedings in the anti-dumping field. in this chapter, the author focuses on the two main issues repeatedly raised, as preliminary or procedural issues, during dispute settlement regarding anti-dumping. one is the issue of recourse of anti-dumping disputes to the dsb, which deals mainly with arts. 17.4 and 17.5(i) of the ad agreement; the other one is the issue of standard of review in anti-dumping areas, which runs most on art. 17.6, including art. 17.5(ii), of the ad agreement. and in this section we will focus on the first one. in this respect, arts. 17.4 and 17.5(i) of the ad agreement
“17.4 if the member that requested consultations considers that the consultations pursuant to paragraph 3 have failed to achieve a mutually agreed solution, and if final action has been taken by the administering authorities of the importing member to levy definitive anti-dumping duties or to accept price undertakings, it may refer the matter to the dispute settlement body (“dsb”). when a provisional measure has a significant impact and the member that requested consultations considers that the measure was taken contrary to the provisions of paragraph 1 of article 7, that member may also refer such matter to the dsb.
17.5 the dsb shall, at the request of complaining party, establish a panel to examine the matter based upon:
(i) a written statement of the member making the request indicating how a benefit accruing to it, directly or indirectly, under this agreement has been nullified or impaired, or that the achieving of the objectives of the agreement is being impeded, and
(ii) …”
ii sufficiency of panel request under the ad agreement
generally, as noted in previously, it is only where the provisions of the dsu and the special or additional rules and procedures of a covered agreement cannot be read as complementing each other that the special or additional provisions are to prevail. a special or additional provision should only be found to prevail over a provision of the dsu in a situation where adherence to the one provision will lead to a violation of the other provision, that is, in the case of a conflict between them. then the author means to get down to the issue of whether these provisions cited above limits panel request under the ad agreement to somehow other than those required by art. 6.2 of the dsu.
in mexico-hfcs (ds132), the dispute involves the imposition of a definitive anti-dumping measure by the mexican ministry of trade and industrial development (secofi) on imports of high-fructose corn syrup (hfcs) from the united states. mexico argues that the united states' request for establishment of this panel is not consistent with the requirements of art. 6.2 of the dsu and art. 17.4 and 17.5(i) of the ad agreement, and therefore argues that the panel must terminate the proceeding without reaching the substance of the united states' claims.
(i) art. 6.2 of the dsu and art. 17.4 of the ad agreement
in considering the alleged failure to assert claims under art. 6.2 of the dsu and art. 17.4 of the ad agreement, the panel rules that: 1
“[w]e note first that the appellate body has stated that article 6.2 of the dsu and article 17.4 of the ad agreement are complementary and should be applied together in disputes under the ad agreement. it has further stated that: ‘the word “matter” has the same meaning in article 17 of the anti-dumping agreement as it has in article 7 of the dsu. it consists of two element: the specific “measure” and the “claims” relating to it, both of which must be properly identi
moreover, it has specified that: ‘in disputes under the anti-dumping agreement relating to the initiation and conduct of anti-dumping investigations, a definitive anti-dumping duty, the acceptance of a price undertaking or a provisional measure must be identified as part of the matter referred to the dsb pursuant to the provisions of article 17.4 of the anti-dumping agreement and article 6.2 of the dsu.’
in considering the arguments relating to article 17.4 of the ad agreement, we note first that article 17.4 does not, in our view, set out any further or additional requirements with respect to the degree of specificity with which claims must be set forth in a request for establishment challenging a final anti-dumping measure. therefore, a request for establishment that satisfies the requirements of article 6.2 of the dsu in this regard also satisfies the requirements of article 17.4 of the ad agreement.
[…]
in guatemala - cement, the appellate body, after finding that, in the case of a dispute under the ad agreement, the request for establishment must identify a definitive anti-dumping duty, the acceptance of a price undertaking or a provisional measure as a specific measure at issue, went on to address the question of the claims that might be included in a dispute under the ad agreement.
‘this requirement to identify a specific anti-dumping measure at issue in a panel request in no way limits the nature of the claims that may be brought concerning alleged nullification or impairment of benefits or the impeding of the achievement of any objective in a dispute under the ad agreement. as we have observed earlier, there is a difference between the specific measures at issue -- in the case of the anti-dumping agreement, one of the three types of anti-dumping measure described in article 17.4 -- and the claims or the legal basis of the complaint referred to the dsb relating to those specific measures.’
the appellate body report in guatemala-cement indicates that a complainant may, having identified a specific anti-dumping duty in its request for establishment, bring any claims under the ad agreement relating to that specific measure. that there should be a relationship between the measure challenged in a dispute and the claims asserted in that dispute would appear necessary, given that article 19.1 of the dsu requires that, ‘where a panel or the appellate body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the member concerned bring the measure into conformity with the agreement’ …”
(ii) art. 6.2 of the dsu and art. 17.5(i) of the ad agreement
mexico also contends that the united states' request for establishment is insufficient under art. 17.5(i) of the ad agreement because it does not indicate how mexico's final anti-dumping measure nullifies or impairs benefits accruing to the united states under the ad agreement, and
“[w]e note article 17.5(i) of the ad agreement, which provides: ‘the dsb shall, at the request of the complaining party, establish a panel to examine the matter based upon: (i) a written statement of the member making the request indicating how a benefit accruing to it, directly or indirectly, under this agreement, has been nullified or impaired, or that the achieving of the objectives of the agreement is being impeded.’
the united states' request for establishment does not use the words ‘nullified or impaired’, nor the words ‘the achieving of the objectives of the agreement is being impeded’. however, it does allege specific violations of its rights and mexico's obligations under the ad agreement, which is a ‘covered agreement’ under the dsu.
the appellate body has ruled that the provisions of the dsu must be read together with the provisions of special or additional rules for dispute settlement in covered agreements, such as those set forth in article 17.5 of the ad agreement, unless there is a difference between them. the appellate body has further ruled, in guatemala-cement, that: ‘there is no inconsistency between article 17.5 of the anti-dumping agreement and the provisions of article 6.2 of the dsu. on the contrary, they are complementary and should be applied together. a panel request made concerning a dispute brought under the anti-dumping agreement must therefore comply with the relevant dispute settlement provisions of both that agreement and the dsu.’
we have already concluded that the united states' request for establishment satisfies the requirements of article 6.2 of the dsu. the questions we must now resolve are, first, what (if anything) is required by article 17.5(i) of the ad agreement in addition to what is required under article 6.2 of the dsu, and second, assuming there are additional requirements under article 17.5(i), whether the united states' request for establishment satisfies those further requirements.
in our view, article 17.5(i) does not require a complaining member to use the words ‘nullify’ or ‘impair’ in a request for establishment. however, it must be clear from the request that an allegation of nullification or impairment is being made, and the request must explicitly indicate how benefits accruing to the complaining member are being nullified or impaired.
[…]
in interpreting the requirements of article 17.5(i), we note article 3.8 of the dsu, which serves as context for our understanding of article 17.5(i). article 3.8 provides: ‘in cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment. this means that there is normally a presumption that a breach of the rules has an adverse impact on the other mem
at least one gatt panel has described the presumption of nullification or impairment arising from a violation of gatt provisions ‘in practice as an irrefutable presumption’. in our view, a request for establishment that alleges violations of the ad agreement which, if demonstrated, will constitute a prima facie case of nullification or impairment under article 3.8 of the dsu, contains a sufficient allegation of nullification or impairment for purposes of article 17.5(i). in addition, as noted above, the request must indicate how benefits accruing to the complaining member are being nullified or impaired.”
(iii) a summary guiding
generally, the provisions of the dsu must be read together with the provisions of special or additional rules for dispute settlement in covered agreements unless there is a difference between them. as to relationship between art. 6.2 of the dsu and art. 17.4 of the ad agreement, it has been ruled by the appellate body that they are complementary and should be applied together in disputes under the ad agreement. art. 17.4 does not set out any further or additional requirements with respect to the degree of specificity with which claims must be set forth in a request for establishment challenging a final anti-dumping measure. a request that satisfies the requirements of art. 6.2 of the dsu in this regard also satisfies the requirements of art. 17.4 of the ad agreement.
the word “matter” has been stated to have the same meaning in art. 17 of the ad agreement as it has in art. 7 of the dsu. it consists of two element: the specific “measure” and the “claims” relating to it, both of which must be properly identified in a panel request as required by art. 6.2 of the dsu. however, pursuant to the provisions of art. 17.4 of the ad agreement and art. 6.2 of the dsu, in disputes under the ad agreement relating to the initiation and conduct of anti-dumping investigations, a definitive anti-dumping duty, the acceptance of a price undertaking or a provisional measure must be identified as part of the matter referred to the dsb.
nevertheless, this requirement to identify a specific anti-dumping measure at issue in a panel request in no way limits the nature of the claims that may be brought under the ad agreement. there is a difference between the specific measures at issue and the claims or the legal basis of the complaint referred to the dsb relating to those specific measures. the only requirement special in art. 17.4 of the ad agreement, in contrast with that in art. 6.2 of the dsu, seems to be that there should be a relationship between the measure challenged in a dispute-- in the case of the ad agreement, one of the three types of anti-dumping measure described in art. 17.4 --and the claims asserted in that dispute. in any event, a complainant may, having identified a specific anti-dumping duty in its request for establishment, bring any claims under the ad agreement relating
with regard to art. 17.5(i) of the ad agreement, the appellate body has ruled that, there is no inconsistency between art. 17.5 of the ad agreement and the provisions of art. 6.2 of the dsu. on the contrary, they are complementary and should be applied together. the only requirement complementary in art. 17.5(i) is that, the request must explicitly indicate how benefits accruing to the complaining member are being nullified or impaired.
art. 17.5(i) does not require a complaining member to use the words “nullify” or “impair” in a request for establishment. in this respect, serving as context for interpreting the requirements of art. 17.5(i), art. 3.8 of the dsu provides a presumption, which in practice operates as an irrefutable presumption, that the violation of a covered agreement constitutes a prima facie case of nullification or impairment. therefore, a request alleging violations of the ad agreement which, if demonstrated, will constitute a prima facie case of nullification or impairment under art. 3.8 of the dsu, contains a sufficient allegation of nullification or impairment for purposes of art. 17.5(i) of the ad agreement.
as discussed above, we have examined some aspects of panel’s jurisdiction relating to the initiation and conduct of anti-dumping investigations. how about the legal basis for a complaining party to bring a claim against anti-dumping legislation as such?
iii general legal basis for claims against legislation as such
arts. xxii and xxiii of the gatt 1994 serve as the basis for consultations and dispute settlement under the gatt 1994 and, through incorporation by reference, under most of the other agreements in annex 1a to the wto agreement. according to art. xxiii:1(a) of the gatt 1994, a member can bring a dispute settlement claim against another member when it considers that a benefit accruing to it under the gatt 1994 is being nullified or impaired, or that the achievement of any objective of the gatt 1994 is being impeded, as a result of the failure of that other member to carry out its obligations under that agreement. do these provisions serve as legal basis for challenges against legislation as such other than its application in specific cases, either?
in this respect, the appellate body in us-1916 act (ds136/ds162) rules that, “[p]rior 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”. this ruling is confirmed by the wto practice. for example, the panel in us-sections 301-310 (ds152) thinks that, legislation as such may also breach wto obligations, they rule: 4
“as
(a)in gatt jurisprudence, to give one example, legislation providing for tax discrimination against imported products was found to be gatt inconsistent even before it had actually been applied to specific products and thus before any given product had actually been discriminated against.
(b)article xvi:4 of the wto agreement explicitly confirms that legislation as such falls within the scope of possible wto violations. it provides as follows: ‘each member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed agreements.’
the three types of measures explicitly made subject to the obligations imposed in the wto agreements – ‘laws, regulations and administrative procedures’ - are measures that are applicable generally; not measures taken necessarily in a specific case or dispute. article xvi:4, though not expanding the material obligations under wto agreements, expands the type of measures made subject to these obligations.
(c)recent wto panel reports confirm, too, that legislation as such, independently from its application in a specific case, can be inconsistent with wto rules.”
clearly, it is established that legislation as such, independently from its application in a specific case, can be inconsistent with wto rules and therefore can be brought before the dsb. however, what role panels may play when called upon to resolve settlement concerning legislation as such?
as noted above, panels may have jurisdiction as to domestic law once brought before them appropriately. in practice, panels often have to address domestic laws, in respect of the examination of domestic or municipal law by wto panels, in some circumstances, it is clear that an examination of the relevant aspects of municipal law is essential to determining whether members to a dispute have complied with their obligations under the covered agreements.
however, as stressed in the dsb practice, panels’ mandate is to examine municipal law solely for the purpose of determining whether members meet their wto obligations. in doing so, panels do not interpret municipal law “as such”, the way they would, say, interpret provisions of the covered agreements. panels are, instead, called upon by the dsb to the meaning of domestic law as factual elements and to check whether these factual elements constitute conduct by the members contrary to their wto obligations. the rules on burden of proof for the establishment of facts also apply in this respect. there may be various differences between domestic law and the covered agreements, e.g., some terms such as “determination” used both in domestic law and in wto provisions, do not necessarily have the same mea
“while it is clear from the terms of article 3.2 of the dsu that it falls within the competence of the panel to ‘clarify the existing provisions of [the covered agreements] in accordance with customary rules of interpretation of public international law’, the dsu does not expressly provide how panels should address domestic legislation. article 11 of the dsu only specifies that panels ‘should make […] an objective assessment of the facts of the case’. however, both article 3.2 of the dsu and the practice of the appellate body make it clear that we have, whenever appropriate, to develop our approach on the basis of that of international courts in similar circumstances. we will consequently take into consideration the practice of international tribunals in this respect.” 6
furthermore, the understanding of a law the wto-compatibility of which has to be assessed begins with an analysis of the terms of that law. however, panels have never considered that they should limit themselves to an analysis of the text of municipal law in isolation from its interpretation by domestic courts or other authorities, even if they were to find that text to be clear on its face. panels think if they were to do so, they might develop an understanding of that law different from the way it is actually understood and applied by the domestic authorities. this would be contrary to panels’ obligation to make an objective assessment of the facts of the case, pursuant to article 11 of the dsu. therefore, panels rule that they must look at all the aspects of the domestic legislation that are relevant for their understanding of the disputed municipal law. however, looking at all the relevant aspects of the domestic law of a member may raise some methodological difficulties, such as how much deference must be paid to that member's characterization of its legislation. in that context, panels think they will determine first how to deal with that aspect of the examination of a domestic law and how they should consider the case-law related to it, where courts are, inter alia, responsible for interpreting the law. 7
thus, as ruled in us-1916 act (ds136/ds162), “[panels’] understanding of the term ‘examination’ as used by the appellate body is that panels need not accept at face value the characterisation that the respondent attaches to its law. a panel may analyse the operation of the domestic legislation and determine whether the description of the functioning of the law, as made by the respondent, is consistent with the legal structure of that member. this way, it will be able to determine whether or not the law as applied is in conformity with the obligations of th
to sum up, legislation as such, independently from its application in specific cases, may breach gatt/wto obligations. panels under the gatt/wto consistently consider that, under article xxiii of the gatt, they have the jurisdiction to deal with claims against legislation as such. such ruling is also confirmed by the wto practice.
however, panels can never substitute domestic authorities of their role in interpreting national law. panels have to find their appropriate approaches to domestic law. in this respect, in general, as summarized by the appellate body in us-1998 act (ds176), “the municipal law of wto members may serve not only as evidence of facts, but also as evidence of compliance or non-compliance with international obligations. under the dsu, a panel may examine the municipal law of a wto member for the purpose of determining whether that member has complied with its obligations under the wto agreement. such an assessment is a legal characterization by a panel”. 9
iv special rules for claims against anti-dumping legislation as such
（i）introduction
in us-1916 act (ds136/ds162), the united states appeals the panel's finding that it had jurisdiction to consider the claims that the 1916 act as such is inconsistent with article vi of the gatt 1994 and the ad agreement. according to the united states, members cannot bring a claim of inconsistency with the ad agreement against legislation as such independently from a claim of inconsistency of one of the three anti-dumping measures specified in art. 17.4, i.e., a definitive anti-dumping duty, a price undertaking or, in some circumstances, a provisional measure.
in examining the legal basis for the panel's jurisdiction to consider the claims of inconsistency made in respect of the 1916 act as such, the appellate body begins with art. 1.1 of the dsu, which states, in relevant part: “the rules and procedures of this understanding shall apply to disputes brought pursuant to the consultation and dispute settlement provisions of the agreements listed in appendix 1 to this understanding (referred to in this understanding as the ‘covered agreements’).” the appellate body rules that, “[f]or the dsu to apply to claims that the 1916 act as such is inconsistent with article vi of the gatt 1994 and the anti-dumping agreement, a legal basis to bring the claims must be found in the gatt 1994 and the anti-dumping agreement, respectively”. they also note that in the present case, “the european communities and japan both brought their claims of inconsistency with article vi of the gatt 1994 and the anti-dumping agreement pursuant to article xxiii of the gatt 1994 and article 17 of the anti-dumping agreement”. 10
since legal basis for claims against legislation as such under the gatt 1994 has generally been discussed above, the author will not give unnecessary detail in this respect and means to focus here on the issue of the legal basis for c
(ii) general legal basis under art. 17 of the ad agreement
in this respect, the appellate body rules: 11
“[…] 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.
in considering whether article 17 contains an implicit restriction on challenges to anti-dumping legislation as such, we first note that article 17.1 states: ‘except as otherwise provided herein, the dispute settlement understanding is applicable to consultations and the settlement of disputes under this agreement.’
article 17.1 refers, without qualification, to ‘the settlement of disputes’ under the anti-dumping agreement. article 17.1 does not distinguish between disputes relating to anti-dumping legislation as such and disputes relating to anti-dumping measures taken in the implementation of such legislation. article 17.1 therefore implies that members can challenge the consistency of legislation as such with the anti-dumping agreement unless this action is excluded by article 17.
similarly, article 17.2 of the anti-dumping agreement does not distinguish between disputes relating to anti-dumping legislation as such and disputes relating to anti-dumping measures taken in the implementation of such legislation. on the contrary, it refers to consultations with respect to ‘any matter affecting the operation of this agreement’.
article 17.3 of the anti-dumping agreement states, in wording that mirrors article xxiii of the gatt 1994: ‘if any member considers that any benefit accruing to it, directly or indirectly, under this agreement is being nullified or impaired, or that the achievement of any objective is being impeded, by another member or members, it may, with a view to reaching a mutually satisfactory resolution of the matter, request in writing consultations with the member or members in question….’
in our report in guatemala - cement, we described article 17.3 as: ‘… the equivalent provision in the anti-dumping agreement to articles xxii and xxiii of the gatt 1994, which serve as the basis for consultations and dispute settlement under the gatt 1994…’
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 un
(iii) understanding of art. 17.4 of the ad agreement
as indicated above, the united states bases its objection to the panel's jurisdiction on art. 17.4 of the ad agreement and the appellate body’s report in guatemala - cement. in this respect, the appellate body in present case rules: 12
“[…] we note that, unlike articles 17.1 to 17.3, article 17.4 is a special or additional dispute settlement rule listed in appendix 2 to the dsu.
in guatemala - cement, mexico had challenged guatemala's initiation of anti-dumping proceedings, and its conduct of the investigation, without identifying any of the measures listed in article 17.4. we stated that:
‘… three types of anti-dumping measure are specified in article 17.4: definitive anti-dumping duties, the acceptance of price undertakings, and provisional measures. according to article 17.4, a "matter" may be referred to the dsb only if one of the relevant three anti-dumping measures is in place. this provision, when read together with article 6.2 of the dsu, requires a panel request in a dispute brought under the anti-dumping agreement to identify, as the specific measure at issue, either a definitive anti-dumping duty, the acceptance of a price undertaking, or a provisional measure…
[…] we find that in disputes under the anti-dumping agreement relating to the initiation and conduct of anti-dumping investigations, a definitive anti-dumping duty, the acceptance of a price undertaking or a provisional measure must be identified as part of the matter referred to the dsb pursuant to the provisions of article 17.4 of the anti-dumping agreement and article 6.2 of the dsu.’
nothing in our report in guatemala - cement suggests that article 17.4 precludes review of anti-dumping legislation as such. rather, in that case, we simply found that, for mexico to challenge guatemala's initiation and conduct of the anti-dumping investigation, mexico was required to identify one of the three anti-dumping measures listed in article 17.4 in its request for establishment of a panel. since it did not do so, the panel in that case did not have jurisdiction.
important considerations underlie the restriction contained in article 17.4. in the context of dispute settlement proceedings regarding an anti-dumping investigation, there is tension between, on the one hand, a complaining member's right to seek redress when illegal action affects its economic operators and, on the other hand, the risk that a responding member may be harassed or its resources squandered if dispute settlement proceedings could be initiated against it in respect of each step, however small, taken in the course
therefore, article 17.4 sets out certain conditions that must exist before a member can challenge action taken by a national investigating authority in the context of an anti-dumping investigation. however, article 17.4 does not address or affect a member's right to bring a claim of inconsistency with the anti-dumping agreement against anti-dumping legislation as such.”
(iv) extensive basis in context
moreover, as noted 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. it has been found that, 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. to go further, the appellate body rules that: 13
“our reading of article 17 as allowing members to bring claims against anti-dumping legislation as such is supported by article 18.4 of the anti-dumping agreement.
article 18.4 of the anti-dumping agreement states: ‘each member shall take all necessary steps, of a general or particular character, to ensure, not later than the date of entry into force of the wto agreement for it, the conformity of its laws, regulations and administrative procedures with the provisions of this agreement as they may apply for the member in question.’
article 18.4 imposes an affirmative obligation on each member to bring its legislation into conformity with the provisions of the anti-dumping agreement not later than the date of entry into force of the wto agreement for that member. nothing in article 18.4 or elsewhere in the anti-dumping agreement excludes the obligation set out in article 18.4 from the scope of matters that may be submitted to dispute settlement.
if a member could not bring a claim of inconsistency under the anti-dumping agreement against legislation as such until one of the three anti-dumping measures specified in article 17.4 had been adopted and was also challenged, then examination of the consistency with article 18.4 of anti-dumping legislation as such would be deferred, and the effectiveness of article 18.4 would be diminished.
furthermore, we note that article 18.1 of the anti-dumping agreement states: ‘no specific action against dumping of exports from another member can be taken except in accorda
article 18.1 contains a prohibition on ‘specific action against dumping’ when such action is not taken in accordance with the provisions of the gatt 1994, as interpreted by the anti-dumping agreement. specific action against dumping could take a wide variety of forms. if specific action against dumping is taken in a form other than a form authorized under article vi of the gatt 1994, as interpreted by the anti-dumping agreement, such action will violate article 18.1. we find nothing, however, in article 18.1 or elsewhere in the anti-dumping agreement, to suggest that the consistency of such action with article 18.1 may only be challenged when one of the three measures specified in article 17.4 has been adopted. indeed, such an interpretation must be wrong since it implies that, if a member's legislation provides for a response to dumping that does not consist of one of the three measures listed in article 17.4, then it would be impossible to test the consistency of that legislation, and of particular responses thereunder, with article 18.1 of the anti-dumping agreement.
therefore, we consider that articles 18.1 and 18.4 support our conclusion that a member may challenge the consistency of legislation as such with the provisions of the anti-dumping agreement.
for all these reasons, we conclude that, pursuant to article xxiii of the gatt 1994 and article 17 of the anti-dumping agreement, the european communities and japan could bring dispute settlement claims of inconsistency with article vi of the gatt 1994 and the anti-dumping agreement against the 1916 act as such. we, therefore, uphold the panel's finding that it had jurisdiction to review these claims.”
(v) concluding remarks
in the same way that art. xxiii of the gatt 1994 allows a wto member to challenge legislation as such, art. 17 of the ad agreement is properly to be regarded as allowing a challenge to anti-dumping legislation as such, unless this possibility is excluded. no such express exclusion is found in art. 17 or elsewhere in the ad agreement.
in general, arts. 17.1 and 17.2 of the ad agreement do not distinguish between disputes relating to anti-dumping legislation as such and disputes relating to anti-dumping measures taken in the implementation of such legislation. also, art. 17.3 operates as the equivalent provision in the ad agreement to arts. xxii and xxiii of the gatt 1994. therefore, they seem to imply that members can challenge the consistency of legislation as such with the ad agreement unless this action is excluded by art. 17.
unlike arts. 17.1 to 17.3, art. 17.4 is a special or additional dispute settlement rule listed in appendix 2 to the dsu. according to art. 17.4, a “matter” may be referred to the dsb only if one of the relevant three anti-dumping measures is in place. this provision, when read together with art. 6.2 of the dsu, requires a panel request in a dispute brough
nevertheless, nothing suggests that art. 17.4 preclude review of anti-dumping legislation as such. as noted in subsection ⅱ of this section, a request that satisfies the requirements of article 6.2 of the dsu also satisfies the requirements of art. 17.4 of the ad agreement. the requirement to identify a specific anti-dumping measure at issue in a panel request in no way limits the nature of the claims that may be brought under the ad agreement. in any event, a complainant may, having identified a specific anti-dumping duty in its request for establishment, bring any claims including claims against anti-dumping legislation as such under the ad agreement if such claims relate to one of the relevant three anti-dumping measures pursuant art. 17.4. important considerations underlie the restriction contained in art. 17.4, seems to strike a balance between considerations of a complaining member's right to seek redress and the risk that a responding member may be harassed or its resources squandered.
in the same way that the gatt/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, it has been found that, 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.
in a word, art. 17.4 sets out certain conditions, however, does not address or affect a member's right to bring a claim of inconsistency with the ad agreement against anti-dumping legislation as such. members may challenge the consistency of legislation as such with the provisions of the ad agreement.
【note】:
1 see, in detail, wt/ds132/r/7.11; 7.14; 7.51-7.52.
2 wt/ds132/r/7.22-7.24; 7.26-7.28.
3 see, wt/ds136/ab/r; wt/ds162/ab/r/60.
4 see, wt/ds152/r/7.41.
5 see, in detail, wt/ds152/r/7.17-7.20.
6 see, wt/ds136/r/6.40; wt/ds162/r/6.36.
7 see, in detail, wt/ds136/r/6.48; wt/ds162/r/6.47.
8 see, wt/ds136/r/6.51; wt/ds162/r/6.50.
9 see, wt/ds176/ab/r/105.
10 see, wt/ds136/ab/r; wt/ds162/ab/r/57-58.
11 see, wt/ds136/ab/r; wt/ds162/ab/r/62-68.
12 see, wt/ds136/ab/r; wt/ds162/ab/r/70-74.
13 see, wt/ds136/ab/r; wt/ds162/ab/r/76-83.
section two
ad hoc standard of review for anti-dumping disputes
i introduction
as to the general approach for panels (outside of the anti-dumping areas), while there are no provisions in the dsu explicitly concerning the standard of review question, some language may
the issue of scope of review became a controversy in the negotiations of the new anti-dumping code during the uruguay round and centered on what standard of review should be applied by panels in examining issues of law, especially when the agreement does not specifically address an issue and whether there should be a provision limiting the extent of scrutiny by a panel of factual issues, so as to prevent panels from engaging in a de novo review of such factual issues. as to the second issue, obviously standard of review and scope of review are closely linked.
in this respect, the most prominent of these is found in the ad agreement at art. 17.6 which reads as follows:
“in examining the matter referred to in paragraph 5:
(i) in its assessment of the facts of the matter, the panel shall determine whether the authorities' establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. if the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned;
(ii) the panel shall interpret the relevant provisions of the agreement in accordance with customary rules of interpretation of public international law. where the panel finds that a relevant provision of the agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the agreement if it rests upon one of those permissible interpretations.”
and art. 17.6 is not the only provision bearing on the standard-of-review in the anti-dumping field. also relevant are two ministerial decisions taken at the final ministerial conference of the uruguay round at marrakesh, morocco in april 1994, and made part of the uruguay round final act text. these state, respectively:
“decision on review of article 17.6 of the agreement on implementation of article vi of the general agreement on tariffs and trade 1994
ministers decide as follows:
the standard of review in paragraph 6 of article 17 of the agreement on implementation of article vi of gatt 1994 shall be reviewed after a period of three years with a view to considering the question of whether it is capable of general application.
declaration on dispute settlement pursuant to the agreement on
ministers recognize, with respect to dispute settlement pursuant to the agreement on implementation of article vi of gatt 1994 or part v of the agreement on subsidies and countervailing measures, the need for the consistent resolution of disputes arising from anti-dumping and countervailing duty measures.”
as both of these passages suggest, the anti-dumping provisions were not uncontroversial, for the ministerial decision seem both to limit the application of those anti-dumping provisions, and to raise questions how they fit into the overall jurisprudence of the wto. nevertheless, we note that both the two ministerial decisions are a mere “declaration”, rather than a “decision” of the ministers. in our view, a declaration lacks the mandatory authority of a decision. in the ministerial declaration, ministers simply “recognize … the need” for the consistent resolution of disputes. in our opinion, the simple recognition of the need for an action does not mandate that action. in a ministerial decision, by contrast, ministers “decide” that certain action shall be taken. for these reasons, we do not consider that the ministerial declaration imposes any obligations on panels.
since the standards laid out in the ad agreement (and the dsu) essentially codify recent panel review standards under the gatt, and remain to be clarified and developed by further practice by the dsb under the wto, the remainder of this section will examine those standards with respect to anti-dumping as implemented by panels and interpreted by the appellate body in particular cases.
ii special standard of review under the ad agreement: in general
as noted above and more specified previously, in the absence of provisions in the dsu or any other covered agreements explicitly concerning the standard of review question, as to the general approach for panels (outside of the anti-dumping areas), art. 11 of the dsu which provides “an objective assessment” bears directly on standard of review applicable to the determination and assessment of the facts in national investigative proceedings. also, panels have stated, on more than one occasion, that, for “all but one” of the covered agreements, art. 11 of the dsu sets forth the appropriate standard of review for panels. the “one” is the ad agreement.
(i) ad hoc approaches to domestic determination: art. 17.6
as noted previously, in general, on balance panels don’t act as “super-investigative authorities” and do not engage in a de novo review of factual issues, nor in a total deference. however, as to be noted below, art. 17.6 ad seems to set out an ad hoc specific standard of review for disputes arising under the ad agreement. art. 17.6 of the ad agreement sets out a special standard of review for disputes arising under that agreement. however, as to be shown in more
with regard to factual issues, it is art. 17.6(i) that is on point. in this respect, the special standard in art. 17.6(i) has been applied on many occasions, e.g., the panel in argentina-floor tiles (ds189) rules: 2
“we note that the panel in the case united states - anti-dumping measures on stainless steel plate in coils and stainless steel sheet and strip from korea considered that article 17.6(i): ‘speaks not only to the establishment of the facts, but also to their evaluation. therefore, the panel must check not merely whether the national authorities have properly established the relevant facts but also the value or weight attached to those facts and whether this was done in an unbiased and objective manner. this concerns the according of a certain weight to the facts in their relation to each other; it is not a legal evaluation.’
accordingly, it is not our role as a panel to perform a de novo review of the evidence which was before the investigating authority at the time it made its determination. rather, we must review the determination the investigating authority made on the basis of the information before it in order to determine whether the establishment of the facts was proper and the evaluation of the facts was unbiased and objective. with respect to the latter aspect of our review, we consider that the task before us is to examine whether, on the basis of the information before it, an unbiased and objective investigating authority evaluating that evidence could have reached the conclusions it did
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