WTO Dispute Settlement Mechanism(7)/刘成伟

Chapter VII
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 states:
“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 identified in a panel request as required by Article 6.2 of the DSU.’
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 does not indicate how the achieving of the objectives of the AD Agreement was being impeded by that measure. In considering this issue, the Panel rule in pertinent as: 2
“[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 Members parties to that covered agreement.’
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 to that specific measure.
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 general proposition, GATT acquis, confirmed in Article XVI:4 of the WTO Agreement and recent WTO panel reports, make abundantly clear that legislation as such, independently from its application in specific cases, may breach GATT/WTO obligations:
(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 meaning. It follows that in making factual findings concerning the meaning of domestic law panels are not bound to accept the interpretation presented by parties to a particular dispute. That said, any Member can reasonably expect that considerable deference be given to its views on the meaning of its own law. 5
“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 the Member concerned under the WTO Agreement.”8
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 claims brought under the AD Agreement, Art. 17.4 of the AD Agreement bears great relevance here. Then the author will examine some relevant aspects of the Appellate Body Report on US-1916 Act (DS136/DS162).
(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 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.”
(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 of an anti-dumping investigation, even before any concrete measure had been adopted. In our view, by limiting the availability of dispute settlement proceedings related to an anti-dumping investigation to cases in which a Member's request for establishment of a panel identifies a definitive anti-dumping duty, a price undertaking or a provisional measure, Article 17.4 strikes a balance between these competing considerations.
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 accordance with the provisions of GATT 1994, as interpreted by this Agreement.’
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 brought under the AD 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.
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】:
1See, in detail, WT/DS132/R/7.11; 7.14; 7.51-7.52.
2WT/DS132/R/7.22-7.24; 7.26-7.28.
3See, WT/DS136/AB/R; WT/DS162/AB/R/60.
4See, WT/DS152/R/7.41.
5See, in detail, WT/DS152/R/7.17-7.20.
6See, WT/DS136/R/6.40; WT/DS162/R/6.36.
7See, in detail, WT/DS136/R/6.48; WT/DS162/R/6.47.
8See, WT/DS136/R/6.51; WT/DS162/R/6.50.
9See, WT/DS176/AB/R/105.
10See, WT/DS136/AB/R; WT/DS162/AB/R/57-58.
11See, WT/DS136/AB/R; WT/DS162/AB/R/62-68.
12See, WT/DS136/AB/R; WT/DS162/AB/R/70-74.
13See, 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 be construed as relevant. As noted by the Appellate Body, in general, 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. Most interesting, perhaps, is found at DSU Art. 3.2: “Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements”. This language could be interpreted as a constraint on the standard of review, but possibly not to the extent of Art. 17.6 of the Anti-dumping Agreement.1
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 IMPLEMENTATION OF ARTICLE VI OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE 1994 OR PART V OF THE AGREEMENT ON SUBSIDIES AND COUNTERVAILING MEASURES
    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 detail below, this Art. 17.6 standard applies only to disputes arising under the AD Agreement, and not to disputes arising under other covered agreements. Importantly, it seems that the negotiators compromised so that the limiting language on standard of review as provided for in Art. 17.6 of the AD Agreement, would apply only to the anti-dumping text, and not necessarily to other dispute settlement cases before the WTO panels.
    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.”
It is ruled in more detail by the Panel in US-Hot-rolled Steel Products (DS184) as: 3
“… The question of whether the establishment of facts was proper does not, in our view, involve the question whether all relevant facts were considered including those that might detract from an affirmative determination. Whether the facts were properly established involves determining whether the investigating authorities collected relevant and reliable information concerning the issue to be decided - it essentially goes to the investigative process. Then, assuming that the establishment of the facts with regard to a particular claim was proper, we consider whether, based on the evidence before the investigating authorities [of the importing Member] at the time of the determination, an unbiased and objective investigating authority evaluating that evidence could have reached the conclusions that the investigating authorities [of the importing Member] reached on the matter in question. In this context, we consider whether all the evidence was considered, including facts which might detract from the decision actually reached by the investigating authorities.”
    With respect to the interpretation of the AD Agreement, it is Art. 17.6(ii) that runs on the legal interpretation issue. In this respect, its application of customary rules of interpretation, as well as unusual provision in Art. 17.6(ii) has also been noted on many occasions, e.g., the Panel in Argentina-Floor Tiles (DS189) rules: 4
    “We consider the first part of this subparagraph to be a clear reference to the customary rules of interpretation as laid down in Articles 31-32 of the Vienna Convention on the Law of Treaties. Article 31 of the Vienna Convention provides that a treaty shall be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. Article 17.6(ii) of the AD Agreement provides that in the case where this method leads the panel to the conclusion that the provision in question admits of more than one permissible interpretation, the panel shall find the measure in conformity if it is based on one such permissible interpretation.”
     Furthermore, the Panel in US-Hot-rolled Steel Products (DS184) rules: 5
“… Thus, in considering those aspects of the determination [of the importing Member] which stand or fall depending on the interpretation of the AD Agreement itself rather than or in addition to the analysis of facts, we first interpret the provisions of the AD Agreement. As the Appellate Body has repeatedly stated, panels are to consider the interpretation of the WTO Agreements, including the AD Agreement, in accordance with the principles set out in the Vienna Convention on the Law of Treaties (the "Vienna Convention"). Thus, we look to the ordinary meaning of the provision in question, in its context, and in light of its object and purpose. Finally, we may consider the preparatory work (the negotiating history) of the provision, should this be necessary or appropriate in light of the conclusions we reach based on the text of the provision. We then evaluate whether the interpretation [of the importing Member] is one that is ‘permissible’ in light of the customary rules of interpretation of international law. If so, we allow that interpretation to stand, and unless there is error in the subsequent analysis of the facts under that legal interpretation under the standard of review under Article 17.6(i), the challenged action is upheld.”
With respect to legal analysis, as noted above, Art. 17.6(ii) provides first that the relevant provisions shall be in accordance the customary rules of interpretation of public law, and differs nothing from the general guideline for interpretation of the covered agreements under the WTO; and therefore we will not give unnecessary details as to this generally applied guidance in this section. However, what attracts our observation here is the controversy and doubt caused by Art. 17.6(ii) which then provides that if the panel finds that the relevant provisions admits of more than one permissible interpretation, the authority’s actions must rest upon one of the “permissible interpretations” to be in conformity.
Interestingly, however, it is not clear in light of the Vienna Convention whether or how a panel could ever reach the conclusion that provisions of an agreement admit of more than one interpretation. This is true because the Vienna Convention provides a set of rules for interpretation of treaties, aimed at resolving ambiguities in the text. Arts. 31 and 32 of the Vienna Convention are particularly relevant here. Art. 31, “General rule of interpretation”, provides a set of rules guiding the interpretation of the text of treaty. Art. 32, “Supplementary means of interpretation”, provides additional guidelines for any case n which application of the rules in Art. 31 still leaves the meaning of a provision “ambiguous or obscure”, or when they render a provision “manifestly absurd or unreasonable”. Art. 32 suggests, in other words, that the application of Art. 31 should in many cases resolve ambiguities, and that where the application of Art. 31 does not resolve ambiguities, Art. 32’s own rule “recourse … to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion” will resolve any lingering ambiguities.
To understand the source of that controversy, one must read Art. 17.6(ii) in the light of its negotiation context and history. 6 Art. 17.6(ii) was the compromise language of the Uruguay Round negotiators. What does it mean? A better understanding of its meaning must await future panel decisions. But at least on the face of it, subsection (ii) seems to establish a two-step process for panel review of interpretive questions.7 First, the panel must consider whether the provision of the agreement in question admits of more than one interpretation. If not, the panel must vindicate the provision’s only permissible interpretation. If, on the other hand, the panel determines that the provision does indeed admit of more than one interpretation, the panel shall proceed to the second step of the analysis and consider whether the national interpretation is within the set of  “permissible” interpretations. If so, the panel must defer to the interpretation given to the provision by a national government.
(ii) Relationship between Art. 11 of the DSU and Art. 17.6 of the AD Agreement
In US-Hot-rolled Steel Products (DS184), the Appellate Body thinks it useful to address certain general aspects of the standard of review established by Art. 17.6 of the AD Agreement, as this standard bears upon each issue arising in this appeal. With regard to these general aspects, the Appellate Body thinks that two threshold aspects of the Art. 17.6 need to be noted. In this respect, the Appellate Body rules: 8
“…The first is that Article 17.6 is identified in Article 1.2 and Appendix 2 of the DSU as one of the ‘special or additional rules and procedures’ which prevail over the DSU ‘[t]o the extent that there is a difference’ between those provisions and the provisions of the DSU. In Guatemala - Anti-Dumping Investigation Regarding Portland Cement from Mexico, a dispute which involved claims under the Anti-Dumping Agreement, we stated: ‘In our view, 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.’
Thus, we must consider the extent to which Article 17.6 of the Anti-Dumping Agreement can properly be read as ‘complementing’ the rules and procedures of the DSU or, conversely, the extent to which Article 17.6 ‘conflicts’ with the DSU.
The second threshold aspect follows from the first and concerns the relationship between Article 17.6 of the Anti-Dumping Agreement and Article 11 of the DSU. Article 17.6 lays down rules relating to a panel's examination of ‘matters’ arising under one, and only one, covered agreement, the Anti-Dumping Agreement. In contrast, Article 11 of the DSU provides rules which apply to a panel's examination of ‘matters’ arising under any of the covered agreements. Article 11 reads, in part: ‘… a panel should 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 …’
Article 11 of the DSU imposes upon panels a comprehensive obligation to make an ‘objective assessment of the matter’, an obligation which embraces all aspects of a panel's examination of the ‘matter’, both factual and legal. Thus, panels make an ‘objective assessment of the facts’, of the ‘applicability’ of the covered agreements, and of the ‘conformity’ of the measure at stake with those covered agreements. Article 17.6 is divided into two separate sub-paragraphs, each applying to different aspects of the panel's examination of the matter. The first sub-paragraph covers the panel's ‘assessment of the facts of the matter’, whereas the second covers its ‘interpret[ation of] the relevant provisions’. The structure of Article 17.6, therefore, involves a clear distinction between a panel's assessment of the facts and its legal interpretation of the Anti-Dumping Agreement.
In considering Article 17.6(i) of the Anti-Dumping Agreement, it is important to bear in mind the different roles of panels and investigating authorities. Investigating authorities are charged, under the Anti-Dumping Agreement, with making factual determinations relevant to their overall determination of dumping and injury. Under Article 17.6(i), the task of panels is simply to review the investigating authorities' ‘establishment’ and ‘evaluation’ of the facts. To that end, Article 17.6(i) requires panels to make an ‘assessment of the facts’. The language of this phrase reflects closely the obligation imposed on panels under Article 11 of the DSU to make an ‘objective assessment of the facts’. Thus the text of both provisions requires panels to ‘assess’ the facts and this, in our view, clearly necessitates an active review or examination of the pertinent facts. Article 17.6(i) of the Anti-Dumping Agreement does not expressly state that panels are obliged to make an assessment of the facts which is ‘objective’. However, it is inconceivable that Article 17.6(i) should require anything other than that panels make an objective ‘assessment of the facts of the matter’. In this respect, we see no ‘conflict’ between Article 17.6(i) of the Anti-Dumping Agreement and Article 11 of the DSU.
Article 17.6(i) of the Anti-Dumping Agreement also states that the panel is to determine, first, whether the investigating authorities' ‘establishment of the facts was proper’ and, second, whether the authorities' ‘evaluation of those facts was unbiased and objective’. Although the text of Article 17.6(i) is couched in terms of an obligation on panels - panels ‘shall’ make these determinations - the provision, at the same time, in effect defines when investigating authorities can be considered to have acted inconsistently with the Anti-Dumping Agreement in the course of their ‘establishment’ and ‘evaluation’ of the relevant facts. In other words, Article 17.6(i) sets forth the appropriate standard to be applied by panels in examining the WTO-consistency of the investigating authorities' establishment and evaluation of the facts under other provisions of the Anti-Dumping Agreement. Thus, panels must assess if the establishment of the facts by the investigating authorities was proper and if the evaluation of those facts by those authorities was unbiased and objective. If these broad standards have not been met, a panel must hold the investigating authorities' establishment or evaluation of the facts to be inconsistent with the Anti-Dumping Agreement.
We turn now to Article 17.6(ii) of the Anti-Dumping Agreement. The first sentence of Article 17.6(ii), echoing closely Article 3.2 of the DSU, states that panels ‘shall’ interpret the provisions of the Anti-Dumping Agreement ‘in accordance with customary rules of interpretation of public international law’. Such customary rules are embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties ("Vienna Convention"). Clearly, this aspect of Article 17.6(ii) involves no ‘conflict’ with the DSU but, rather, confirms that the usual rules of treaty interpretation under the DSU also apply to the Anti-Dumping Agreement.
The second sentence of Article 17.6(ii) bears repeating in full: ‘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.’
This second sentence of Article 17.6(ii) presupposes that application of the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention could give rise to, at least, two interpretations of some provisions of the Anti-Dumping Agreement, which, under that Convention, would both be ‘permissible interpretations’. In that event, a measure is deemed to be in conformity with the Anti-Dumping Agreement ‘if it rests upon one of those permissible interpretations’.
It follows that, under Article 17.6(ii) of the Anti-Dumping Agreement, panels are obliged to determine whether a measure rests upon an interpretation of the relevant provisions of the Anti-Dumping Agreement which is permissible under the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention. In other words, a permissible interpretation is one which is found to be appropriate after application of the pertinent rules of the Vienna Convention. We observe that the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention apply to any treaty, in any field of public international law, and not just to the WTO agreements. These rules of treaty interpretation impose certain common disciplines upon treaty interpreters, irrespective of the content of the treaty provision being examined and irrespective of the field of international law concerned.
We cannot, of course, examine here which provisions of the Anti-Dumping Agreement do admit of more than one ‘permissible interpretation’. Those interpretive questions can only be addressed within the context of particular disputes, involving particular provisions of the Anti-Dumping Agreement invoked in particular claims, and after application of the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention.
Finally, although the second sentence of Article 17.6(ii) of the Anti-Dumping Agreement imposes obligations on panels which are not found in the DSU, we see Article 17.6(ii) as supplementing, rather than replacing, the DSU, and Article 11 in particular. Article 11 requires panels to make an ‘objective assessment of the matter’ as a whole. Thus, under the DSU, in examining claims, panels must make an ‘objective assessment’ of the legal provisions at issue, their ‘applicability’ to the dispute, and the ‘conformity’ of the measures at issue with the covered agreements. Nothing in Article 17.6(ii) of the Anti-Dumping Agreement suggests that panels examining claims under that Agreement should not conduct an ‘objective assessment’ of the legal provisions of the Agreement, their applicability to the dispute, and the conformity of the measures at issue with the Agreement. Article 17.6(ii) simply adds that a panel shall find that a measure is in conformity with the Anti-Dumping Agreement if it rests upon one permissible interpretation of that Agreement.”
    (iii) A Summary Guiding
    In general, 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, Art. 17.6 of the AD Agreement sets out a special standard of review for, and only to, disputes arising under that Agreement, which applies not to disputes arising under other covered agreements.
Then we get down to the relationship between Art. 11 of the DSU and Art. 17.6 of the AD Agreement. Firstly, Art. 17.6 is identified as one of the “special or additional rules and procedures” which prevail over the DSU “to the extent that there is a difference” between those provisions and the provisions of the DSU. In this respect, it is only in a situation where the provisions cannot be read as complementing each other, i.e., where adherence to the one provision will lead to a violation of the other provision, i.e. in the case of a conflict between them, that the special or additional provisions are to prevail.
Specifically, Art. 11 of the DSU generally imposes upon panels a comprehensive obligation to make an “objective assessment of the matter”, embracing both factual and legal; Art. 17.6 is divided into two separate sub-paragraphs, involving a clear distinction between a panel's assessment of the facts and its legal interpretation of the AD Agreement.
Under Art. 17.6(i), the task of panels is simply to review the investigating authorities' “establishment” and “evaluation” of the facts. The texts of both Art. 11 of the DSU and Art. 17.6(i) provisions require panels to “assess” the facts, and it is inconceivable that Art. 17.6(i) should require anything other than that panels make an objective “assessment of the facts of the matter”. In this respect, we see no “conflict”. Art. 17.6(i) of the AD Agreement also sets forth the appropriate standard to be applied by panels in examining the WTO-consistency, i.e., the panel is to determine, first, whether the investigating authorities' “establishment of the facts was proper” and, second, whether the authorities' “evaluation of those facts was unbiased and objective”. I.e., to review whether the investigating authorities collected relevant and reliable information concerning the issue to be decided, and, whether, based on the evidence before the investigating authorities of the importing Member at the time of the determination, an unbiased and objective investigating authority evaluating that evidence could have reached the conclusions that the investigating authorities of the importing Member reached on the matter in question- it essentially goes to the investigative process.”
We turn now to Art. 17.6(ii). The first sentence of Art. 17.6(ii), involves no “conflict” with the DSU but, rather, confirms the application to the AD Agreement of the usual rules of treaty interpretation under the DSU echoing closely Art. 3.2 of the DSU, i.e., “in accordance with customary rules of interpretation of public international law” embodied in Arts. 31 and 32 of the Vienna Convention which apply to any treaty, in any field of public international law, and not just to the WTO agreements. The second sentence of Art. 17.6(ii) presupposes that application of such rules of treaty interpretation could give rise to, at least, two interpretations of some provisions of the AD Agreement, which, under that Convention, would both be “permissible interpretations”. In that event, a measure is deemed to be in conformity with the Anti-Dumping Agreement “if it rests upon one of those permissible interpretations”. And the question of which provisions of the AD Agreement do admit of more than one “permissible interpretation”, if exists, can only be addressed within the context of particular disputes after application of the rules of treaty interpretation in Arts. 31 and 32 of the Vienna Convention.
In short, although the second sentence of Art. 17.6(ii) of the AD Agreement imposes obligations on panels which are not found in the DSU, we see Art. 17.6(ii) as supplementing, rather than replacing, the DSU, and Art. 11 in particular, to conduct an “objective assessment” of the legal provisions of the Agreement, their applicability to the dispute, and the conformity of the measures at issue with the Agreement. Art. 17.6(ii) simply adds that a panel shall find that a measure is in conformity with the Anti-Dumping Agreement if it rests upon one permissible interpretation of that Agreement.”
     With regard to the whole Art. 17.6 of the DSU, as ruled by the Appellate Body in Mexico-HFCS (recourse to Article 21.5 of the DSU by US) (DS132), “[w]e recently examined this standard of review in United States - Hot-Rolled Steel. In our Report in that case, we observed that, pursuant to Article 17.6(i), ‘the task of panels is simply to review the investigating authorities' 'establishment' and 'evaluation' of the facts’. Under Article 17.6(ii), panels must ‘determine whether a measure rests upon an interpretation of the relevant provisions of the Anti-Dumping Agreement which is permissible under the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention’. The requirements of the standard of review provided for in Article 17.6(i) and 17.6(ii) are cumulative. In other words, a panel must find a determination made by the investigating authorities to be consistent with relevant provisions of the Anti-Dumping Agreement if it finds that those investigating authorities have properly established the facts and evaluated those facts in an unbiased and objective manner, and that the determination rests upon a ‘permissible’ interpretation of the relevant provisions.” 9
III  Scope of Review of Fact-findings: Art. 17.5(ii) of the AD Agreement
    Pursuant to Art. 17.6(i) of the DSU, panels’ approach in a dispute is to determine whether the establishment of the facts by the investigating authorities of the importing Member is proper and whether their evaluation of those facts is unbiased and objective. Where the establishment of the facts is proper, panels must examine whether the evidence before the investigating authorities of the importing Member in the course of their investigation and at the time of their determinations is such that an unbiased and objective investigating authority evaluating that evidence could have determined dumping, injury and causal relationship.
    In connection with panels assessment of the facts of the matter under AD Agreement, Art. 17.5(ii), with which Art. 17.6(i) shall be read, states that the DSB shall establish a panel to examine the matter based upon: “the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member.” This seems to relate to all of the facts made available to the authorities of the importing Member. However, does it mean that a complainant WTO member may not raise new claims in a dispute settlement proceeding under the AD Agreement where such claims had not been raised before the national investigating authorities?
    Whatever may be its substantive merits, Art. 17.5(ii) does not offer much of a guideline in this regard. Then the author means to explore below some aspects of the admissibility issue, particular in disputes relating to anti-dumping.
    (i) Overview of the GATT Practice
With regard to the question of the raising of new evidence in a dispute settlement proceeding concerning anti-dumping, it came up in three cases under the Tokyo Round Anti-dumping Code: US-Stainless Steel (ADP/47 of 20 August 1990), US-Cement (ADP/182 of 7 September 1992), US-Salmon (ADP/87 of 30 November 1992). 10
In US-Stainless Steel, the panel did not deem it necessary to deal with the US claim to that effect. In US-Cement, the US claimed that Mexico should be precluded from raising the issue of “standing” of the petitioners and the issue of cumulation of Mexican and Japanese imports, as these issues had not been raised during the administrative proceedings. The panel rejected the US claim, it considered that: “if such fundamental restriction on the right of recourse to the Agreement’s dispute settlement process had been intended by the drafters of the Agreement, they would have made explicit for it”. However, the panel added “the matter examined by the panel would have to be based on facts raised in the first instance, in conformity with the appropriate domestic procedures, in the administrative proceedings in the importing country”.
In US-Salmon, the US raised the preliminary objection that two issues raised by Norway before the panel had not been raised in the national administrative proceedings in the US; according to the US these issues therefore not admissible in the proceedings before the panel. The panel rejected this claim on the ground that the dispute settlement provisions of the (Tokyo Round) Anti-dumping Code (Article 15) did not offer any basis for refusing to consider a claim by a party in a dispute settlement merely because the subject matter of the claim had not been raised before the investigating authorities under national law. The panel noted however, that its conclusion “did not imply that in reviewing the merits of a claim a panel should not take account of whether or not the issues to which the claim relates were raised before the investigating authorities in the domestic anti-dumping duty proceeding”.
The practical conclusion seems to be that the panels before which this issue was raised did consider GATT dispute settlement proceedings as quite independent from national proceedings, in the sense that they did not consider themselves bound to remain within the limits of the case as brought before, and dealt by, national administrative authorities. While this is probably to be welcomed, some of the arguments put forward in support of the contrary view are not without merit and are likely to come up in another guise. 11 As to be shown below, even panels called by the DSB have issued contradictory reports in this respect.
(ii) Concerning Rulings in Reports Issued by WTO Panels
    With regard to Art. 17.5(ii) of the AD Agreement, the Panel in EC-Bed Linen (DS141) rules that, it “does not require, however, that a panel consider those facts exclusively in the format in which they were originally available to the investigating authority. Indeed, the very purpose of the submissions of the parties to the Panel is to marshal the relevant facts in an organized and comprehensible fashion in support of their arguments and to elucidate the parties' positions”. 12
    However, contradicting the ruling above, the Panel in US-Hot-rolled Steel (DS184) takes the implications of Art. 17.5(ii) of the AD Agreement as the basis of evidentiary rulings and refuse to accept new evidence that is not before the domestic investigating authorities at the time of determination, they rule: 13
    “A panel is obligated by Article 11 of the DSU to conduct ‘an objective assessment of the matter before it’. In this case, we must also consider the implications of Article 17.5(ii) of the AD Agreement as the basis of evidentiary rulings…It seems clear to us that, under this provision, a panel may not, when examining a claim of violation of the AD Agreement in a particular determination, consider facts or evidence presented to it by a party in an attempt to demonstrate error in the determination concerning questions that were investigated and decided by the authorities, unless they had been made available in conformity with the appropriate domestic procedures to the authorities of the investigating country during the investigation. … Japan acknowledges that Article 17.5(ii) must guide the Panel in this respect, but argues that it ‘complements’ the provisions of the DSU which establish that it is the responsibility of the panel to determine the admissibility and relevance of evidence offered by parties to a dispute. We agree, to the extent that it is our responsibility to decide what evidence may be considered. However, that Article 17.5(ii) and the DSU provisions are complementary does not diminish the importance of Article 17.5(ii) in guiding our decisions in this regard. It is a specific provision directing a panel's decision as to what evidence it will consider in examining a claim under the AD Agreement. Moreover, it effectuates the general principle that panels reviewing the determinations of investigating authorities in anti-dumping cases are not to engage in de novo review.
    The conclusion that we will not consider new evidence with respect to claims under the AD Agreement flows not only from Article 17.5(ii), but also from the fact that a panel is not to perform a de novo review of the issues considered and decided by the investigating authorities. We note that several panels have applied similar principles in reviewing determinations of national authorities in the context of safeguards under the Agreement on Safeguards and special safeguards under Article 6 of the Agreement on Textiles and Clothing. There is no corollary to Article 17.5(ii) in those agreements. Nonetheless, these panels have concluded that a de novo review of the determinations would be inappropriate, and have undertaken an assessment of, inter alia, whether all relevant facts were considered by the authorities. In that context, the Panel in United States - Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities ("United States - Wheat Gluten") recently observed that it was not the panel's role to collect new data or to consider evidence which could have been presented to the decision maker but was not.”
Clearly, the Panel determines not to consider new evidence with respect to claims under the AD Agreement. Nonetheless, it is important to note that, the same Panel makes another ruling not to exclude the presentation of evidence which might in any event go beyond the specific facts made available to the administering authority in accordance with appropriate domestic procedures during the course of a single anti-dumping investigation. In this respect, the Panel rules: 14
“It is important to note that, in this case, Japan's claims are not limited to challenges under the AD Agreement to the final anti-dumping measure imposed by the United States. … Japan does, however, argue that the challenged evidence is relevant to the claims under Article X of GATT 1994. In our view, the evidence to be considered in connection with Japan's Article X claim is not limited by the provisions of Article 17.5(ii) of the AD Agreement To the extent there are any limits to the evidence that may be considered in connection with Japan's claim under Article X of GATT 1994, these would derive from the provisions of the DSU itself, and not the AD Agreement.
Under Article 13.2 of the DSU, Panels have a general right to seek information ‘from any relevant source’. We note that, as a general rule, panels have wide latitude in admitting evidence in WTO dispute settlement. The DSU (as opposed to the AD Agreement) contains no rule that might be understood to restrict the evidence that panels may consider. Moreover, international tribunals are generally free to admit and evaluate evidence of every kind, and to ascribe to it the weight that they see fit. As one legal scholar has noted: ‘The inherent flexibility of the international procedure, and its tendency to be free from technical rules of evidence applied in municipal law, provide the "evidence" with a wider scope in international proceedings… Generally speaking, international tribunals have not committed themselves to the restrictive rules of evidence in municipal law. They have found it justified to receive every kind and form of evidence, and have attached to them the probative value they deserve under the circumstances of a given case.’
    It seems to us that, particularly in considering allegations under Article X of GATT 1994, we should exercise our discretion to allow the presentation of evidence concerning the administration of the defending Members' anti-dumping laws, which might in any event go beyond the specific facts made available to the administering authority in accordance with appropriate domestic procedures during the course of a single anti-dumping investigation.
[…]
There is, however, a significant distinction between questions concerning the admissibility of evidence, and the weight to be accorded to the evidence in making our decisions. That we have concluded that it is not appropriate to exclude from this proceeding at the outset evidence put forward by Japan has no necessary implications concerning the relevance or weight of that evidence in our ultimate determinations on the substantive claims before us. Moreover, we wish to emphasize that we have conducted our examination of the challenged final anti-dumping measure and the underlying determinations of the USDOC and USITC in strict observance of the requirements of Article 17.5(ii).”
    (iii) Tentative Remarks: Guidance from the Appellate Body
    The new Art. 17.5(ii) of the AD Agreement brought in the Uruguay Round causes ad hoc but vague approaches to domestic investigation. Contradictory reports have been issued, as to whether this article allows the admissibility before the panel proceedings of new evidence under the AD Agreement where such evidence or claims had not been raised before the national investigating authorities. However, overall, the record appears to be satisfactory. This particularly so, bearing in mind that the negotiators of the DSU and of the specific dispute settlement provisions of the new Anti-dumping Agreement failed to come up with much more precise guidelines than those that panels had somehow set for themselves. As far as findings of facts are concerned, the new AD Agreement contains one guideline that purports to be more specific i.e. restricting the possibility for panels to overturn the evaluation of facts as made by national administering authorities. Apart from the question whether this means that panels must henceforth ignore compelling new evidence, the reports examined show that panels have avoided de novo reviews and have at most engaged in “marginal” review of the findings of fact. 15
As far as the report issued by the Panel in US-Hot-rolled Steel (DS184) not to consider new evidence, it appears at least to be satisfactory owing to its understanding of Art. 17.5(ii) and bearing in mind that a panel is not to perform a de novo review of the issues considered and decided by the investigating authorities. Its conclusion not to accept new evidence is reasonable with their emphasis on strict observance of the requirements of Art. 17.5(ii).
Furthermore, the Panel notes that to the extent there are any limits to the evidence that may be considered in connection with those claims under the covered agreements other than the AD Agreement, these would derive from the provisions of the DSU itself, and not the AD Agreement. Also, they rule that, as a general rule, panels have wide latitude in admitting evidence in WTO dispute settlement. The DSU (as opposed to the AD Agreement) contains no rule that might be understood to restrict the evidence that panels may consider. Therefore, they make another conclusion that, “particularly in considering allegations under Art. X of GATT 1994, we should exercise our discretion to allow the presentation of evidence concerning the administration of the defending Members' anti-dumping laws, which might in any event go beyond the specific facts made available to the administering authority in accordance with appropriate domestic procedures during the course of a single anti-dumping investigation”.
    The author, however, cannot hide his concern as to such implication as not to accept new evidence, derived from Art. 17.5(ii) by any parties or panels that, especially with regard to the ruling that: “It seems clear to us that, under this provision, a panel may not, when examining a claim of violation of the AD Agreement in a particular determination, consider facts or evidence presented to it by a party in an attempt to demonstrate error in the determination concerning questions that were investigated and decided by the authorities, unless they had been made available in conformity with the appropriate domestic procedures to the authorities of the investigating country during the investigation”. In any event, as a practical matter, it is unlikely that a Member would improperly withhold arguments from competent authorities with a view to raising those arguments later before a panel. More dangerous, it would force exporting members to appear before national investigating authorities in order to keep the possibility to raise issues in panel proceedings. Clearly, it is at least not reasonable. The parties involved in an underlying anti-dumping investigation are generally exporters, importers and other commercial entities, while those involved in WTO dispute settlement are the Members of the WTO. Therefore, it justifies accepting new evidence even in cases under the AD Agreement, so long as panels think it appropriate to exercise their discretion so.
However, in any event, the new Art. 17.5(ii) is not without any merit but causing uncertainty. As to be shown below, there is a clear connection between Arts. 17.6(i) and 17.5(ii). The facts of the matter referred to in Art. 17.6(i) are “the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member” under Art. 17.5(ii). Art. 17.6(i) places a limitation on the panel in the circumstances defined by the Article. The aim of Art. 17.6(i) is to prevent a panel from “second-guessing” a determination of a national authority when the establishment of the facts is proper and the evaluation of those facts is unbiased and objective. It bears more significance that the panel note the importance of Art. 17.5(ii) in guiding their decisions in this regard. It is a specific provision directing a panel's decision as to what evidence it will consider in examining a claim under the AD Agreement. Moreover, it effectuates the general principle that panels reviewing the determinations of investigating authorities in anti-dumping cases are not to engage in de novo review.
     Most importantly, Art. 17.5(ii) can never be deemed to require that a panel consider those facts exclusively in the format in which they were originally available to the investigating authority. In any event, the statement of Art. 17.5(ii) that the DSB shall establish a panel to examine the matter based upon: “the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member”, does not mean that a panel is frozen into inactivity. It does not offer any basis for refusing to consider a claim by a party in a dispute settlement merely because the subject matter of the claim were not raised before the investigating authorities under national law. This is to be confirmed by some rulings from the Appellate Body below.
    Whatever merits Art. 17.6 of the AD Agreement bears, it offers no clear guidance rather than causing some issues of interpretation. Therefore, the author thinks it much useful and unavoidable to examine how and to what extent the Appellate Body have applied and interpreted this article.
In this regard, the Appellate Body in Thailand-H-beams (DS122) consider the extent of a panel's obligations under Art. 17.6 to review the investigating authority's final determination, and they rule as: 16
“Articles 17.5 and 17.6 clarify the powers of review of a panel established under the Anti-Dumping Agreement. These provisions place limiting obligations on a panel, with respect to the review of the establishment and evaluation of facts by the investigating authority. …
Article 17.5 specifies that a panel's examination must be based upon the ‘facts made available’ to the domestic authorities. Anti-dumping investigations frequently involve both confidential and non-confidential information. The wording of Article 17.5 does not specifically exclude from panel examination facts made available to domestic authorities, but not disclosed or discernible to interested parties by the time of the final determination. Based on the wording of Article 17.5, we can conclude that a panel must examine the facts before it, whether in confidential documents or non-confidential documents.
Article 17.6(i) requires a panel, in its assessment of the facts of the matter, to determine whether the authorities' ‘establishment of the facts’ was ‘proper’. The ordinary meaning of ‘establishment’ suggests an action to ‘place beyond dispute; ascertain, demonstrate, prove’; the ordinary meaning of ‘proper’ suggests ‘accurate’ or ‘correct’. Based on the ordinary meaning of these words, the proper establishment of the facts appears to have no logical link to whether those facts are disclosed to, or discernible by, the parties to an anti-dumping investigation prior to the final determination. Article 17.6(i) requires a panel also to examine whether the evaluation of those facts was ‘unbiased and objective’. The ordinary meaning of the words ‘unbiased’ and ‘objective’ also appears to have no logical link to whether those facts are disclosed to, or discernible by, the parties to an anti-dumping investigation at the time of the final determination.
There is a clear connection between Articles 17.6(i) and 17.5(ii). The facts of the matter referred to in Article 17.6(i) are ‘the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member’ under Article 17.5(ii). Such facts do not exclude confidential facts made available to the authorities of the importing Member. Rather, Article 6.5 explicitly recognizes the submission of confidential information to investigating authorities and its treatment and protection by those authorities. Article 12, in paragraphs 2.1, 2.2 and 2.3, also recognizes the use, treatment and protection of confidential information by investigating authorities. The ‘facts’ referred to in Articles 17.5(ii) and 17.6(i) thus embrace ‘all facts confidential and non-confidential’, made available to the authorities of the importing Member in conformity with the domestic procedures of that Member. Article 17.6(i) places a limitation on the panel in the circumstances defined by the Article. The aim of Article 17.6(i) is to prevent a panel from ‘second-guessing’ a determination of a national authority when the establishment of the facts is proper and the evaluation of those facts is unbiased and objective. Whether evidence or reasoning is disclosed or made discernible to interested parties by the final determination is a matter of procedure and due process. These matters are very important, but they are comprehensively dealt with in other provisions, notably Articles 6 and 12 of the Anti-Dumping Agreement.
Articles 17.5 and 17.6(i) require a panel to examine the facts made available to the investigating authority of the importing Member. These provisions do not prevent a panel from examining facts that were not disclosed to, or discernible by, the interested parties at the time of the final determination.
We, therefore, reverse the Panel's interpretation that, in reviewing an injury determination under Article 3.1, a panel is required under Article 17.6(i), in assessing whether the establishment of facts is proper, to ascertain whether the ‘factual basis’ of the determination is ‘discernible’ from the documents that were available to the interested parties and/or their legal counsel in the course of the investigation and at the time of the final determination; and, in assessing whether the evaluation of the facts is unbiased and objective, to examine the ‘analysis and reasoning’ in only those documents ‘to ascertain the connection between the disclosed factual basis and the findings’.”
【NOTE】:
1See, Steven P. Croley and John H. Jackson, ‘WTO Dispute Panel Deference to National Government Decisions. The Misplaced Analogy to the U.S. Chevron Standard-Of-Review Doctrine’, International Trade Law and the GATT/WTO Dispute Settlement System (Petersmann Ed.), Kluwer Law International, London, 1997, p. 195.
2See, WT/DS189/R/6.2-6.3. Also applied in, e.g., WT/DS141/R/6.45; WT/DS179/R/6.3.
3See, WT/DS184/R/7.26.
4See, WT/DS189/R/6.5. Also applied in, e.g., WT/DS141/R/6.46; WT/DS179/R/6.4.
5See, WT/DS184/R/7.28.
6See, in detail, note 1 above, pp. 194-195.
7See, e.g., note 1 above, pp. 195-197.
8See, in detail, WT/DS184/AB/R/51-62.
9See, WT/DS132/AB/RW/130.
10See, in detail, Jacques H. J. Bourgeois, ‘GATT/WTO Dispute Settlement Practice in the Field of Anti-dumping Law’, International Trade Law and the GATT/WTO Dispute Settlement System (Petersmann Ed.), Kluwer Law International, London, 1997, pp.292-293.
11See, in detail, note 10 above, p. 294.
12See, WT/DS141/R/6.43.
13See, in detail, WT/DS184/R/7.6-7.7.
14See, in detail, WT/DS184/R/7.9-7.10; 7.12.
15See, in detail, note 10 above, p. 310.
16See, in detail, WT/DS122/AB/R/114-119.