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WTO ANALYTICAL INDEX: ANTI-DUMPING AGREEMENT

Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement)

The texts reproduced here do not have the legal standing of the original documents which are entrusted and kept at the WTO Secretariat in Geneva.

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> Article 9
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> Article 12
> Article 13
> Article 14
> Article 15
> Article 16
> Article 17
> Article 18
> Annex I
> Annex II
> Relationship with other WTO Agreements
> 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
> Decision on Review of Article 17.6 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
> Decision on Anti-Circumvention

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XII. Article 12 back to top

A. Text of Article 12

Article 12: Public Notice and Explanation of Determinations

12.1 When the authorities are satisfied that there is sufficient evidence to justify the initiation of an anti-dumping investigation pursuant to Article 5, the Member or Members the products of which are subject to such investigation and other interested parties known to the investigating authorities to have an interest therein shall be notified and a public notice shall be given.

12.1.1 A public notice of the initiation of an investigation shall contain, or otherwise make available through a separate report(23), adequate information on the following:

(footnote original) 23 Where authorities provide information and explanations under the provisions of this Article in a separate report, they shall ensure that such report is readily available to the public.

(i) the name of the exporting country or countries and the product involved;

(ii) the date of initiation of the investigation;

(iii) the basis on which dumping is alleged in the application;

(iv) a summary of the factors on which the allegation of injury is based;

(v) the address to which representations by interested parties should be directed;

(vi) the time-limits allowed to interested parties for making their views known.

12.2 Public notice shall be given of any preliminary or final determination, whether affirmative or negative, of any decision to accept an undertaking pursuant to Article 8, of the termination of such an undertaking, and of the termination of a definitive anti-dumping duty. Each such notice shall set forth, or otherwise make available through a separate report, in sufficient detail the findings and conclusions reached on all issues of fact and law considered material by the investigating authorities. All such notices and reports shall be forwarded to the Member or Members the products of which are subject to such determination or undertaking and to other interested parties known to have an interest therein.

12.2.1 A public notice of the imposition of provisional measures shall set forth, or otherwise make available through a separate report, sufficiently detailed explanations for the preliminary determinations on dumping and injury and shall refer to the matters of fact and law which have led to arguments being accepted or rejected. Such a notice or report shall, due regard being paid to the requirement for the protection of confidential information, contain in particular:

(i) the names of the suppliers, or when this is impracticable, the supplying countries involved;

(ii) a description of the product which is sufficient for customs purposes;

(iii) the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value under Article 2;

(iv) considerations relevant to the injury determination as set out in Article 3;

(v) the main reasons leading to the determination.

12.2.2 A public notice of conclusion or suspension of an investigation in the case of an affirmative determination providing for the imposition of a definitive duty or the acceptance of a price undertaking shall contain, or otherwise make available through a separate report, all relevant information on the matters of fact and law and reasons which have led to the imposition of final measures or the acceptance of a price undertaking, due regard being paid to the requirement for the protection of confidential information. In particular, the notice or report shall contain the information described in subparagraph 2.1, as well as the reasons for the acceptance or rejection of relevant arguments or claims made by the exporters and importers, and the basis for any decision made under subparagraph 10.2 of Article 6.

12.2.3 A public notice of the termination or suspension of an investigation following the acceptance of an undertaking pursuant to Article 8 shall include, or otherwise make available through a separate report, the non-confidential part of this undertaking.

12.3 The provisions of this Article shall apply mutatis mutandis to the initiation and completion of reviews pursuant to Article 11 and to decisions under Article 10 to apply duties retroactively.

B. Interpretation and Application of Article 12

1. Article 12.1

(a) General

547. In Guatemala — Cement II, Mexico argued that Guatemala had acted inconsistently with the requirements of Article 12.1 by failing to publish a notice of initiation and notify Mexico and its exporter when the Guatemalan authority was satisfied that there was sufficient evidence to justify the initiation of an investigation. The Panel clarified the meaning of Article 12.1:

“[T]his provision can most reasonably be read to require notification and public notice once a Member has decided to initiate an investigation. This interpretation is confirmed by the fact that the public notice to be provided is a ‘notice of initiation of an investigation’. We can conceive of no logical reason why the AD Agreement would require a Member to publish a notice of the initiation of an investigation before the decision had been taken that such an investigation should be initiated.”(697)

548. The Panel further rejected Mexico’s argument that Guatemala was in violation of Article 12.1 by failing to satisfy itself as to the sufficiency of the evidence before giving notice of initiation, stating:

“Given the function and context of Article 12.1 in the AD Agreement, we interpret this provision as imposing a procedural obligation on the investigating agency to publish a notice and notify interested parties after it has taken a decision that there is sufficient evidence to proceed with an initiation. The Panel is of the view that Article 12.1 is not concerned with the substance of the decision to initiate an investigation, which is dealt with in Article 5.3. By issuing a public notice of initiation in the case before us, the Guatemalan authorities complied with their procedural obligation under Article 12.1 to notify known interested parties and publish a public notice after they had decided to initiate an investigation. Whether or not Guatemala was justified in initiating an investigation on the basis of the evidence before it is an issue governed by Article 5.3.”(698)

549. The Panel on Argentina — Poultry Anti-Dumping Duties rejected the argument that by fulfilling the requirement to publish a notice of initiation of an investigation, a Member has fulfilled the obligation to notify. According to the Panel, Article 12.1 clearly imposes two separate obligations, one to notify and another to give public notice, and it considered that these separate obligations “must both be fulfilled in any given investigation”.(699)

(b) Obligation to notify “interested parties known to the investigating parties to have an interest” in the investigation

550. The Panel on Argentina — Poultry Anti-Dumping Duties considered that, by definition, “interested parties” necessarily have an interest in the investigation and should therefore be notified if they are known to the investigating authorities. The Panel rejected the argument that absence of contact details for such interested parties implied that the authority was not able to comply with its notification obligation:

“We accept that there may be circumstances in which an investigating authority may not have sufficient information to allow it to notify all interested parties known to have an interest in an investigation. In this sense, the fact that an exporter is ‘known’ by the investigating authority to have an interest in an investigation does not necessarily mean that sufficient details concerning the exporter are ‘known’ to the investigating authority such that it may make the Article 12.1 notification. In other words, knowledge of an exporter’s interest in an investigation does not necessarily imply knowledge of contact details regarding that exporter. In such circumstances, however, we consider that the nature of the Article 12.1 notification obligation is such that the investigating authority should make all reasonable efforts to obtain the requisite contact details. Sending a letter with only a very general request for assistance, without specifying the exporters for which contact details are required, does not satisfy the need to make all reasonable efforts.”(700)

(i) General

551. In Guatemala — Cement II, Guatemala argued that even if a public notice itself is insufficient, a separate report can satisfy the requirements of Article 12.1.1. The Panel disagreed on the basis of the following analysis:

“There is no reference to a separate report in the public notice of initiation. Under Article 12.1.1, it is the ‘public notice’, and not the Member, that must ‘make available through a separate report’, certain information. We take this to mean that the public notice must at a minimum refer to a separate report. This conclusion is logical in that the separate report is a substitute for certain elements of the public notice and thus should perform a notice function comparable to that of the public notice itself. If there were no reference to a separate report in the public notice, how would the public and the interested parties concerned become aware of its existence? If the public and interested parties do not know of the existence of the report, how can it be considered that the required information was properly made available to them?”(701)

552. In support of its proposition that in order to fulfil the requirements of Article 12.1.1, the public notice must, at a minimum, refer to a separate report, the Panel referred to footnote 23 of the Anti-Dumping Agreement, and stated that “[i]t cannot be said that the separate report was ‘readily available’ to the public, if the public is not informed about where, when and how to have access to this report, leave alone if they were not even publicly informed of its existence.”(702)

553. In Guatemala — Cement II, the Panel rejected Guatemala’s argument that the alleged violations of Articles 5.5, 12.1.1 and 6.1.3, even if found to be violations, had not affected the course of the investigation, and thus: (a) the alleged violations were not harmful according to the principle of harmless error; (b) Mexico “convalidated” the alleged violations by not objecting immediately after their occurrence; and (c) the alleged violations did not cause nullification or impairment of benefits accruing to Mexico under the Anti-Dumping Agreement. See paragraphs 276–279 above.

(ii) Article 12.1.1(iv): “a summary of the factors on which the allegation of injury is based”

554. The Panel on Mexico — Corn Syrup rejected the argument that the notice of initiation of an investigation must set forth the investigating authority’s conclusion regarding the relevant domestic industry, and the bases on which that conclusion was reached. The Panel stated:

“Article 12.1.1(iv) merely requires that the notice of initiation contain ‘a summary of the factors on which the allegation of injury is based’ (emphasis added). It does not require a summary of the conclusion of the investigating authority regarding the definition of the relevant domestic industry. Nor does it require a summary of the factors and analysis on which the investigating authority based that conclusion. Still less does it require a summary of the factors and analysis on which the investigating authority based its conclusion regarding exclusion of some producers from consideration as the relevant domestic industry. In other words, in our view, Article 12.1.1 cannot reasonably be read to require that the notice of initiation contain an explanation of the factors underlying, or the investigating authority’s conclusion regarding, the definition of the relevant domestic industry.”(703)

555. The Panel on Mexico — Corn Syrup noted that “a notice of preliminary or final determination must set forth explanations for all material elements of the determination. A notice of initiation, on the other hand, pursuant to Article 12.1, must set forth specific information regarding certain factors, but need not contain explanations of or reasons for the resolution of all questions of fact underlying the determination that there is sufficient evidence to justify initiation.”(704)

2. Article 12.2

(a) General

556. Regarding an explanation in public notices of the reason for a particular period for data collection, the Committee on Anti-Dumping Practices adopted a recommendation at its meeting of 4–5 May 2000. See paragraph 8 above.

(b) Article 12.2.1

557. In Guatemala — Cement II, Article 12.2.1 was referred to as part of the context of Article 6.1. See paragraph 310 above.

558. Rejecting the view that Article 12.2.2 requires explanations relating to initiation of the investigation to be set out in the notice of final determination, the Panel on EC — Bed Linen stated:

“There is no reference to the initiation decision among the elements to be addressed in notices under Article 12.2. Moreover, in our view, it would be anomalous to interpret Article 12.2 as also requiring, in addition to the detailed information concerning the decisions of which notice is being given, explanations concerning the initiation of the investigation, of which notice has previously been given under Article 12.1. This is particularly the case with respect to elements which are not within the scope of the information to be disclosed in the notice of initiation itself.”(705)

559. The Panel on EC — Bed Linen concluded that “[w]e do not believe that Article 12.2.2 requires a Member to explain, in the notice of final determination, aspects of its decision to initiate the investigation in the first place.”(706)

560. The Panel on EC — Tube or Pipe Fittings considered that the findings and conclusions on issues of fact and law which are to be included in the public notices, or separate report, are those considered “material” by the investigating authority:

“We understand a ‘material’ issue to be an issue that has arisen in the course of the investigation that must necessarily be resolved in order for the investigating authorities to be able to reach their determination. We observe that the list of topics in Article 12.2.1 is limited to matters associated with the determinations of dumping and injury, while Article 12.2.2 is more generally phrased (‘all relevant information on matters of fact and law and reasons which have led to the imposition of final measures, or the acceptance of a price undertaking’). Nevertheless, the phrase ‘have led to’, implies those matters on which a factual or legal determination must necessarily be made in connection with the decision to impose a definitive anti-dumping duty. While it would certainly be desirable for an investigating authority to set out steps it has taken with a view to exploring possibilities of constructive remedies, such exploration is not a matter on which a factual or legal determination must necessarily be made since, at most, it might lead to the imposition of remedies other than anti-dumping duties.”(707)

3. Relationship with other Articles

(a) General

561. In Guatemala — Cement II, the Panel considered it unnecessary to examine Mexico’s claim of a violation of Articles 12.2 and 12.2.2 because “the issue of Guatemala’s’ compliance with the transparency obligations deriving from its decision to impose definitive anti-dumping measures on imports of cement from Mexico would only be relevant if the decision to impose the measure itself had been consistent with the AD Agreement.”(708)

562. The Panel on US — Softwood Lumber VI held a similar view, considering that if it were to find no violation with respect to a particular specific claim, such a conclusion would be based on the USITC’s published determination which was then ipso facto sufficient. On the contrary, the Panel considered that if it did find a violation of a specific substantive requirement, the question of whether the notice of the determination “sufficient” under Article 12.2.2 of the AD Agreement would be immaterial:

“In evaluating these claims, we note that our conclusions with respect to each of the alleged substantive violations asserted by Canada rest on our examination of the USITC’s published determination, which constitutes the notices provided by the United States under Article 12.2.2 of the AD Agreement and Article 22.5 of the SCM Agreement with respect to the injury determination in this case. No additional materials have been cited to us with respect to the determination for consideration in determining whether or not the USITC’s determination are consistent with the relevant provisions of the Agreements. Thus, if we find no violation with respect to a particular specific claim, such a conclusion must rest on the USITC’s published determination. In this circumstance, it is clear to us that no violation of Articles 12.2.2 and 22.5 could be found to exist in this case, where it is not disputed that the USITC determination accurately reflects the analysis and determination in the investigations. On the other hand, if we find a violation of a specific substantive requirement, the question of whether the notice of the determination is ‘sufficient’ under Article 12.2.2 of the AD Agreement or Article 22.5 of the SCM Agreement is, in our view, immaterial.”(709)

(b) Article 1

563. In Guatemala — Cement II, the Panel found that the subject anti-dumping duty order of Guatemala was inconsistent with several articles of the Anti-Dumping Agreement, including Article 12. The Panel then opined that that Mexico’s claims under other articles of the Anti-Dumping Agreement, including Article 1, were “dependent claims, in the sense that they depend entirely on findings that Guatemala has violated other provisions of the AD Agreement.”(710) In light of this dependent nature of Mexico’s claim, the Panel considered it not necessary to address these claims. See paragraph 5 above.

564. In US — Stainless Steel, after having found that there was inconsistency with Article 2.4.1 if an unnecessary “double conversion” was carried out in order to calculate the prices of local sales which were to be compared to alleged dumping exports (see paragraphs 69–70 above and paragraph 634 below), the Panel considered it unnecessary to examine the claim on the same factual basis under Article 12, referring to a finding of the Appellate Body concerning judicial economy.(711)

(d) Article 3

565. In Thailand — H-Beams, the Appellate Body referred to Article 12 in interpreting Article 3.1. See paragraph 112 above.

566. The Panel on EC — Bed Linen, after finding a violation of Article 3.4 by the European Communities, found it “neither necessary nor appropriate” to make a finding with respect to a claim of inadequate notice under Article 12.2.2. The Panel held that while a notice may adequately explain the determination that was made, the adequacy of the notice is nevertheless meaningless where the determination was substantively inconsistent with the relevant legal obligations. Furthermore, even if the notice itself was inconsistent with the Anti-Dumping Agreement, such a finding “does not add anything to the finding of violation, the resolution of the dispute before us, or to the understanding of the obligations imposed by the AD Agreement.”(712)

(e) Article 5

567. The Panel on Guatemala — Cement II touched on the relationship between Articles 5.3 and 12.1. See paragraph 548 above.

568. The Panel on Thailand — H-Beams compared the notification requirements under Articles 5.5 and 12. See paragraph 304 above.

(f) Article 6

569. In Guatemala — Cement II, the Panel referred to Article 12.2 in rejecting Mexico’s claim of a violation of Articles 6.1, 6.2 and 6.9. See paragraph 313 above.

570. The Panel, in Argentina — Ceramic Tiles, referred to Articles 6.5 and Article 12 of the Anti-Dumping Agreement as support of its conclusion that an investigating authority may rely on confidential information in making determinations while respecting its obligation to protect the confidentiality of that information. See paragraph 416 above.

(g) Article 9

571. In Guatemala — Cement II, the Panel found that the subject anti-dumping duty order of Guatemala was inconsistent with several articles of the Anti-Dumping Agreement, including Article 12. The Panel then opined that Mexico’s claims under other articles of the Anti-Dumping Agreement, including Article 9, were “dependent claims, in the sense that they depend entirely on findings that Guatemala has violated other provisions of the AD Agreement.”(713) In light of this dependent nature of Mexico’s claim, the Panel considered it not necessary to address these claims. See paragraph 5 above.

(h) Article 15

572. The Panel on EC — Tube or Pipe Fittings considered that while it would certainly be desirable for an investigating authority to set out the steps it has taken with a view to exploring the possibilities for constructive remedies, but that “such exploration is not a matter on which a factual or legal determination must necessarily be made since, at most, it might lead to the imposition of remedies other than anti-dumping duties”.(714) The Panel concluded that the elements of Article 15 were not of a “material” nature and thus did not consider that “the European Communities erred by not treating these elements as ‘material’ within the meaning of that term used in Article 12 and [we] thus do not view it as having erred by not having included these in its published final determination”.(715)

(i) Article 17

573. In Thailand — H-Beams, the Appellate Body referred to Article 12 in interpreting Articles 17.5 and 17.6. See paragraph 633 below.

(j) Article 18

574. In Guatemala — Cement II, the Panel found that the subject anti-dumping duty order of Guatemala was inconsistent with several articles of the Anti-Dumping Agreement, including Article 12. The Panel then opined that Mexico’s claims under other articles of the Anti-Dumping Agreement, including Article 18, were “dependent claims, in the sense that they depend entirely on findings that Guatemala has violated other provisions of the AD Agreement.”(716) In light of this dependent nature of Mexico’s claim, the Panel considered it not necessary to address these claims. See paragraph 5 above.

4. Relationship with other WTO Agreements

(a) Article VI of the GATT 1994

575. In Guatemala — Cement II, the Panel found that the subject anti-dumping duty order of Guatemala was inconsistent with several articles of the Anti-Dumping Agreement, including Article 12. The Panel then opined that that Mexico’s claims under other articles of the Anti-Dumping Agreement and Article VI of GATT 1994 were “dependent claims, in the sense that they depend entirely on findings that Guatemala has violated other provisions of the AD Agreement.”(717) In light of this dependent nature of Mexico’s claim, the Panel considered it not necessary to address these claims. See paragraph 5 above.

XIII. Article 13 back to top

A. Text of Article 13

Article 13: Judicial Review

Each Member whose national legislation contains provisions on anti-dumping measures shall maintain judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review of administrative actions relating to final determinations and reviews of determinations within the meaning of Article 11. Such tribunals or procedures shall be independent of the authorities responsible for the determination or review in question.

B. Interpretation and Application of Article 13

No jurisprudence or decision of a competent WTO body.

XIV. Article 14 back to top

A. Text of Article 14

Article 14: Anti-Dumping Action on Behalf of a Third Country

14.1 An application for anti-dumping action on behalf of a third country shall be made by the authorities of the third country requesting action.

14.2 Such an application shall be supported by price information to show that the imports are being dumped and by detailed information to show that the alleged dumping is causing injury to the domestic industry concerned in the third country. The government of the third country shall afford all assistance to the authorities of the importing country to obtain any further information which the latter may require.

14.3 In considering such an application, the authorities of the importing country shall consider the effects of the alleged dumping on the industry concerned as a whole in the third country; that is to say, the injury shall not be assessed in relation only to the effect of the alleged dumping on the industry’s exports to the importing country or even on the industry’s total exports.

14.4 The decision whether or not to proceed with a case shall rest with the importing country. If the importing country decides that it is prepared to take action, the initiation of the approach to the Council for Trade in Goods seeking its approval for such action shall rest with the importing country.

B. Interpretation and Application of Article 14

No jurisprudence or decision of a competent WTO body.

XV. Article 15 back to top

A. Text of Article 15

Article 15: Developing Country Members

It is recognized that special regard must be given by developed country Members to the special situation of developing country Members when considering the application of anti-dumping measures under this Agreement. Possibilities of constructive remedies provided for by this Agreement shall be explored before applying antidumping duties where they would affect the essential interests of developing country Members.

B. Interpretation and Application of Article 15

1. General

(a) The Doha Mandate

576. Paragraph 7.2 of the Doha Ministerial Decision of 14 November 2001 on Implementation-Related Issues and Concerns states that the Ministerial Conference “recognizes that, while Article 15 of the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 is a mandatory provision, the modalities for its application would benefit from clarification. Accordingly, the Committee on Anti-Dumping Practices is instructed, through its working group on Implementation, to examine this issue and to draw up appropriate recommendations within twelve months on how to operationalize this provision.”

2. First sentence

(a) Extent of Members’ obligation

577. In US — Steel Plate, in a decision not reviewed by the Appellate Body, the Panel considered that there are no specific legal requirements for specific action in the first sentence of Article 15 and that, therefore, “Members cannot be expected to comply with an obligation whose parameters are entirely undefined”. According to the Panel, “the first sentence of Article 15 imposes no specific or general obligation on Members to undertake any particular action.(718)”(719)

578. A similar view was expressed by the Panel on EC — Tube or Pipe Fittings as follows:

“We agree with Brazil that there is no requirement for any specific outcome set out in the first sentence of Article 15. We are furthermore of the view that, even assuming that the first sentence of Article 15 imposes a general obligation on Members, it clearly contains no operational language delineating the precise extent or nature of that obligation or requiring a developed country Member to undertake any specific action. The second sentence serves to provide operational indications as to the nature of the specific action required. Fulfilment of the obligations in the second sentence of Article 15 would therefore necessarily, in our view, constitute fulfilment of any general obligation that might arguably be contained in the first sentence. We do not see this as a ‘reduction’ of the first sentence into the second sentence, as suggested to us by Brazil. Rather the second sentence articulates certain operational modalities of the first sentence.”(720)

(b) When and to whom “special regard” should be given

579. In US — Steel Plate, in a decision not reviewed by the Appellate Body, the Panel addressed the question of when and to whom special regard should be given under Article 15. The Panel concluded that Article 15 only requires special regard in respect of the final decision whether to apply a final measure and that such a special regard is to be given to the situation of developing country Members, and not to the situation of companies operating in developing countries:

“India’s arguments as to when and to whom this ‘special regard’ must be given disregard the text of Article 15 itself. Thus, the suggestion that special regard must be given throughout the course of the investigation, for instance in deciding whether to apply facts available, ignores that Article 15 only requires special regard ‘when considering the application of anti-dumping measures under this Agreement’. In our view, the phrase ‘when considering the application of anti-dumping measures under this Agreement’ refers to the final decision whether to apply a final measure, and not intermediate decisions concerning such matters as investigative procedures and choices of methodology during the course of the investigation. Finally, India’s argument focuses on the exporter, arguing that special regard must be given in considering aspects of the investigation relevant to developing country exporters involved in the case. However, Article 15 requires that special regard must be given ‘to the special situation of developing country Members’. We do not read this as referring to the situation of companies operating in developing countries. Simply because a company is operating in a developing country does not mean that it somehow shares the ‘special situation’ of the developing country Member.”(721)

3. Second sentence

(a) “constructive remedies provided for by this Agreement”

580. The Panel on EC — Bed Linen, in a decision not reviewed by the Appellate Body, rejected the argument that a “constructive remedy” might be a decision not to impose anti-dumping duties at all. The Panel stated that “Article 15 refers to ‘remedies’ in respect of injurious dumping. A decision not to impose an anti-dumping duty, while clearly within the authority of a Member under Article 9.1 of the Anti-Dumping Agreement, is not a ‘remedy’ of any type, constructive or otherwise” for injurious dumping:

“‘Remedy’ is defined as, inter alia, ‘a means of counteracting or removing something undesirable; redress, relief’.(722) ‘Constructive’ is defined as ‘tending to construct or build up something non-material; contributing helpfully, not destructive’.(723) The term ‘constructive remedies’ might consequently be understood as helpful means of counteracting the effect of injurious dumping. However, the term as used in Article 15 is limited to constructive remedies ‘provided for under this Agreement’. … In our view, Article 15 refers to ‘remedies’ in respect of injurious dumping.”(724)

581. Discussing what might be encompassed by the phrase “constructive remedies provided for by this Agreement”, the Panel on EC — Bed Linen mentioned the examples of the imposition of a “lesser duty” or a price undertaking:

“The Agreement provides for the imposition of antidumping duties, either in the full amount of the dumping margin, or desirably, in a lesser amount, or the acceptance of price undertakings, as means of resolving an anti-dumping investigation resulting in a final affirmative determination of dumping, injury, and causal link. Thus, in our view, imposition of a lesser duty, or a price undertaking would constitute ‘constructive remedies’ within the meaning of Article 15. We come to no conclusions as to what other actions might in addition be considered to constitute ‘constructive remedies’ under Article 15, as none have been proposed to us.”(725)

(b) “shall be explored”

582. The Panel on EC — Bed Linen, in interpreting the term “explore”, stated that, while the concept of “explore” does not imply any particular outcome, the developed country authorities must actively undertake the exploration of possibilities with a willingness to reach a positive outcome:

“In our view, while the exact parameters of the term are difficult to establish, the concept of ‘explore’ clearly does not imply any particular outcome. We recall that Article 15 does not require that ‘constructive remedies’ must be explored, but rather that the ‘possibilities’ of such remedies must be explored, which further suggests that the exploration may conclude that no possibilities exist, or that no constructive remedies are possible, in the particular circumstances of a given case. Taken in its context, however, and in light of the object and purpose of Article 15, we do consider that the ‘exploration’ of possibilities must be actively undertaken by the developed country authorities with a willingness to reach a positive outcome. Thus, in our view, Article 15 imposes no obligation to actually provide or accept any constructive remedy that may be identified and/or offered.(726) It does, however, impose an obligation to actively consider, with an open mind, the possibility of such a remedy prior to imposition of an anti-dumping measure that would affect the essential interests of a developing country.”(727)

583. The Panel on EC — Bed Linen concluded that “[p]ure passivity is not sufficient, in our view, to satisfy the obligation to ‘explore’ possibilities of constructive remedies, particularly where the possibility of an undertaking has already been broached by the developing country concerned.” The Panel consequently regarded the failure of a Member “to respond in some fashion other than bare rejection particularly once the desire to offer undertakings had been communicated to it” as a failure to “explore constructive remedies”.(728)

584. In US — Steel Plate, India had argued that the United States authorities should have considered applying a lesser duty in this case, despite the fact that US law does not provide for application of a lesser duty in any case. The Panel, in a decision not reviewed by the Appellate Body, noted that “consideration and application of a lesser duty is deemed desirable by Article 9.1 of the [Anti-Dumping] Agreement, but is not mandatory.” Therefore, it stated, a Member is not obligated to have the possibility of a lesser duty in its domestic legislation. The Panel concluded that “the second sentence of Article 15 [cannot] be understood to require a Member to consider an action that is not required by the WTO Agreement and is not provided for under its own municipal law.”(729)

585. The Panel on EC — Bed Linen, in a decision not reviewed by the Appellate Body, interpreted the phrase “before applying anti-dumping duties” as follows:

“In our view, [Article 1] implies that the phrase ‘before applying anti-dumping duties’ … means before the application of definitive anti-dumping measures. Looking at the whole of the AD Agreement, we consider that the term ‘provisional measures’ is consistently used where the intention is to refer to measures imposed before the end of the investigative process. Indeed, in our view, the AD Agreement clearly distinguishes between provisional measures and anti-dumping duties, which term consistently refers to definitive measures. We find no instance in the Agreement where the term ‘anti-dumping duties’ is used in a context in which it can reasonably be understood to refer to provisional measures. Thus, in our view, the ordinary meaning of the term ‘anti-dumping duties’ in Article 15 is clear — it refers to the imposition of definitive anti-dumping measures at the end of the investigative process.

Consideration of practical elements reinforces this conclusion. Provisional measures are based on a preliminary determination of dumping, injury, and causal link. While it is certainly permitted, and may be in a foreign producer’s or exporter’s interest to offer or enter into an undertaking at this stage of the proceeding, we do not consider that Article 15 can be understood to require developed country Members to explore the possibilities of price undertakings prior to imposition of provisional measures. In addition to the fact that such exploration may result in delay or distraction from the continuation of the investigation, in some cases, a price undertaking based on the preliminary determination of dumping could be subject to revision in light of the final determination of dumping. However, unlike a provisional duty or security, which must, under Article 10.3, be refunded or released in the event the final dumping margin is lower than the preliminarily calculated margin (as is frequently the case), a ‘provisional’ price undertaking could not be retroactively revised. We do not consider that an interpretation of Article 15 which could, in some cases, have negative effects on the very parties it is intended to benefit, producers and exporters in developing countries, is required.”(730)

4. Relationship with other Articles

586. The EC — Bed Linen Panel touched on the relationship between Article 15 and Article 1. See the first paragraph of the quote in paragraph 585 above.

Part II

XVI. Article 16 back to top

A. Text of Article 16

Article 16: Committee on Anti-Dumping Practices

16.1 There is hereby established a Committee on Anti-Dumping Practices (referred to in this Agreement as the “Committee”) composed of representatives from each of the Members. The Committee shall elect its own Chairman and shall meet not less than twice a year and otherwise as envisaged by relevant provisions of this Agreement at the request of any Member. The Committee shall carry out responsibilities as assigned to it under this Agreement or by the Members and it shall afford Members the opportunity of consulting on any matters relating to the operation of the Agreement or the furtherance of its objectives. The WTO Secretariat shall act as the secretariat to the Committee.

16.2 The Committee may set up subsidiary bodies as appropriate.

16.3 In carrying out their functions, the Committee and any subsidiary bodies may consult with and seek information from any source they deem appropriate. However, before the Committee or a subsidiary body seeks such information from a source within the jurisdiction of a Member, it shall inform the Member involved. It shall obtain the consent of the Member and any firm to be consulted.

16.4 Members shall report without delay to the Committee all preliminary or final anti-dumping actions taken. Such reports shall be available in the Secretariat for inspection by other Members. Members shall also submit, on a semi-annual basis, reports of any anti-dumping actions taken within the preceding six months. The semiannual reports shall be submitted on an agreed standard form.

16.5 Each Member shall notify the Committee (a) which of its authorities are competent to initiate and conduct investigations referred to in Article 5 and (b) its domestic procedures governing the initiation and conduct of such investigations.

B. Interpretation and Application of Article 16

1. Article 16.1

(a) Rules of procedure

587. At its meeting of 22 May 1996, the Council for Trade in Goods approved rules of procedure for the meetings of the Committee on Anti-Dumping Practices (the “Rules of Procedure”).(731)

(b) “shall meet not less than twice a year and otherwise”

588. The Rules of Procedure require that the Committee “shall meet not less than twice a year in regular session, and otherwise as appropriate.”(732)

2. Article 16.4

(a) Minimum information to be provided in reporting without delay all preliminary or final anti-dumping actions

589. At its meeting of 30 October 1995, the Committee on Anti-Dumping Practices adopted guidelines for the minimum information to be provided under Article 16.4 of the Agreement in the reports on all preliminary or final anti-dumping actions.(733)

(b) “The semi-annual reports shall be submitted on an agreed standard form”

590. At its meeting of 30 October 1995, the Committee on Anti-Dumping Practices adopted guidelines for the format of, and information to be provided in, the semi-annual reports.(734)

XVII. Article 17 back to top

A. Text of Article 17

Article 17: Consultation and Dispute Settlement

17.1 Except as otherwise provided herein, the Dispute Settlement Understanding is applicable to consultations and the settlement of disputes under this Agreement.(735)

17.2 Each Member shall afford sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, representations made by another Member with respect to any matter affecting the operation of this Agreement.

17.3 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. Each Member shall afford sympathetic consideration to any request from another Member for consultation.

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 antidumping 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 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, and

(ii) the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member.

17.6 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.(736)

17.7 Confidential information provided to the panel shall not be disclosed without formal authorization from the person, body or authority providing such information. Where such information is requested from the panel but release of such information by the panel is not authorized, a non-confidential summary of the information, authorized by the person, body or authority providing the information, shall be provided.

B. Interpretation and Application of Article 17

1. General

(a) Concurrent application of Article 17 of the Anti-Dumping Agreement and the rules and procedures of the DSU

591. The Appellate Body in Guatemala — Cement I rejected the finding by the Panel that “the provisions of Article 17 provides for a coherent set of rules for dispute settlement specific to anti-dumping cases, … that replaces the more general approach of the DSU (emphasis added).”(737) The Appellate Body first held that the special or additional rules within the meaning of Article 1.2 shall prevail over the provisions of the DSU only “to the extent that there is a difference between the two sets of provisions”:

“Article 1.2 of the DSU provides that the ‘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.’ (emphasis added) It states, furthermore, that these special or additional rules and procedures ‘shall prevail’ over the provisions of the DSU ‘[t]o the extent that there is a difference between’ the two sets of provisions (emphasis added) Accordingly, if there is no ‘difference’, then the rules and procedures of the DSU apply together with the special or additional provisions of the covered agreement. 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. An interpreter must, therefore, identify an inconsistency or a difference between a provision of the DSU and a special or additional provision of a covered agreement before concluding that the latter prevails and that the provision of the DSU does not apply.

We see the special or additional rules and procedures of a particular covered agreement as fitting together with the generally applicable rules and procedures of the DSU to form a comprehensive, integrated dispute settlement system for the WTO Agreement. The special or additional provisions listed in Appendix 2 of the DSU are designed to deal with the particularities of dispute settlement relating to obligations arising under a specific covered agreement, while Article 1 of the DSU seeks to establish an integrated and comprehensive dispute settlement system for all of the covered agreements of the WTO Agreement as a whole. It is, therefore, only in the specific circumstance where a provision of the DSU and a special or additional provision of another covered agreement are mutually inconsistent that the special or additional provision may be read to prevail over the provision of the DSU.”(738)

592. The Appellate Body in Guatemala — Cement I then found that Article 17 of the Anti-Dumping Agreement does not replace the “more general approach of the DSU”.

“Clearly, the consultation and dispute settlement provisions of a covered agreement are not meant to replace, as a coherent system of dispute settlement for that agreement, the rules and procedures of the DSU. To read Article 17 of the Anti-Dumping Agreement as replacing the DSU system as a whole is to deny the integrated nature of the WTO dispute settlement system established by Article 1.1 of the DSU. To suggest, as the Panel has, that Article 17 of the Anti-Dumping Agreement replaces the ‘more general approach of the DSU’ is also to deny the application of the often more detailed provisions of the DSU to antidumping disputes. The Panel’s conclusion is reminiscent of the fragmented dispute settlement mechanisms that characterized the previous GATT 1947 and Tokyo Round agreements; it does not reflect the integrated dispute settlement system established in the WTO.”(739)

(b) Challenge against anti-dumping legislation as such

593. One of the main issues which arose in the US — 1916 Act dispute was whether an anti-dumping statute could, in the light of Article 17 of the Anti-Dumping Agreement, be challenged “as such”, rather than a specific application of such a statute in a particular anti-dumping investigation. Discussing the legal basis for claims brought under the Anti-Dumping Agreement, the Appellate Body in US — 1916 Act stated:

“Article 17 of the Anti-Dumping Agreement addresses dispute settlement under that Agreement. Just as Articles XXII and XXIII of the GATT 1994 create a legal basis for claims in disputes relating to provisions of the GATT 1994, so also Article 17 establishes the basis for dispute settlement claims relating to provisions of the Anti-Dumping Agreement. In the same way that Article XXIII of the GATT 1994 allows a WTO Member to challenge legislation as such, Article 17 of the Anti-Dumping Agreement is properly to be regarded as allowing a challenge to legislation as such, unless this possibility is excluded. No such express exclusion is found in Article 17 or elsewhere in the Anti-Dumping Agreement.”(740)

594. In considering whether Article 17 contains an implicit restriction on challenges to anti-dumping legislation as such, the Appellate Body, in US — 1916 Act, noted the following:

“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 antidumping 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’.(741)

…

Article 17.3 does not explicitly address challenges to legislation as such. … 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.”(742)

595. After finding that Article 17.3 supported its view that challenges may be brought under the Anti-Dumping Agreement against legislation as such, unless such challenges are explicitly excluded, the Appellate Body also addressed Article 17.4:

“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 Member’s right to bring a claim of inconsistency with the Anti-Dumping Agreement against anti-dumping legislation as such.”(743)

596. The Appellate Body in US — 1916 Act finally referred to Articles 18.1 and 18.4 of the Anti-Dumping Agreement as contextual support for its reading of Article 17 as allowing Members to bring claims against anti-dumping legislation as such:

“Nothing in Article 18.4 or elsewhere in the AntiDumping 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.

…

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.”(744)

597. In US — Hot-Rolled Steel, Japan had challenged Section 735(c)(5)(A) of the United States Tariff Act of 1930, as amended, which provided for a method for calculating the “all others” rate (see paragraphs 471–473 above) as inconsistent with Article 9.4. The Panel found that Section 735(c)(5)(A), as amended, was, on its face, inconsistent with Article 9.4 “in so far as it requires the consideration of margins based in part on facts available in the calculation of the all others rate”. The Panel further found that, in maintaining this Section following the entry into force of the Anti-Dumping Agreement, the United States had acted inconsistently with Article 18.4 of this Agreement as well as with Article XVI:4 of the WTO Agreement.(745) The Appellate Body upheld these findings.(746)

598. For more information about challenging legislation as such, see Section VI.B.3(c)(ii) of the Chapter on DSU.

(i) General

599. The Appellate Body and the Panels addressed the issue of mandatory versus discretionary legislation with respect to the United States Antidumping Act of 1916. This United States legislation provided for civil and criminal proceedings to counteract predatory pricing from abroad. In addition, the Panel on US — 1916 Act (EC), in a finding explicitly endorsed by the Appellate Body(748), rejected the United States’ argument, according to which the 1916 Act was a non-mandatory law, because the US Department of Justice had the discretion to initiate, or not, a case under the 1916 Act:

“The EC also refers to the panel report in EC — Audio Cassettes, which was not adopted.(749) This report stated why the mere fact that the initiation of anti-dumping investigations was discretionary would not make the EC legislation non-mandatory. The panel stated that:

‘[it] did not consider in any event that its task in this case was to determine whether the EC’s Basic Regulation was non-mandatory in the sense that the initiation of investigations and impositions of duties were not mandatory functions. Should panels accept this approach, they would be precluded from ever reviewing the content of a party’s anti-dumping legislation.’(750)

The EC — Audio Cassettes panel based its reasoning on the fact that this would undermine the obligation contained in Article 16.6 of the Tokyo Round Anti-Dumping Agreement. That provision provided that parties had to bring their laws, regulations and administrative procedures into conformity with the provisions of the Tokyo Round Anti-Dumping Agreement.(751) We note that almost identical terms are found in Article 18.4 of the WTO Anti-Dumping Agreement, …

…

Since we found that Article VI and the WTO Anti-Dumping Agreement are applicable to the 1916 Act, we consider that the reasoning of the panel in the EC — Audio Cassettes case should apply in the present case. Interpreting the provisions of Article 18.4 differently would undermine the obligations contained in that Article and would be contrary to the general principle of useful effect by making all the disciplines of the Anti-Dumping Agreement non-enforceable as soon as a Member would claim that the investigating authority has discretion to initiate or not an anti-dumping investigation.”(752)

600. In US — DRAMS, Korea challenged certain certification requirements under the United States antidumping law. The provision challenged by Korea required exporters to certify, upon removal of antidumping duties, that they agree to the reinstatement of the anti-dumping duties on the products of their company if, after revocation of the original antidumping duties, the United States authorities find dumping. The Panel rejected the Korean arguments, noting that the certification requirement was not a mandatory requirement for revocation under United States anti-dumping law in general. The Panel held that other provisions of United States anti-dumping law and regulations of the United States authorities make revocation of an anti-dumping order possible contingent upon a different set of requirements, not including the certification requirement:

“We note section 751(b) of the 1930 Tariff Act (as amended) and section 353.25(d) of the DOC’s regulations, whereby an anti-dumping order may be revoked on the basis of ‘changed circumstances’. We note that neither of these provisions imposes a certification requirement. In other words, an anti-dumping order may be revoked under these provisions absent fulfilment of the section 353.25(a)(2)(iii) certification requirement. We also note that Korea has not challenged the consistency of these provisions with the WTO Agreement. Thus, because of the existence of legislative avenues for Article 11.2 type reviews that do not impose a certification requirement, and which have not been found inconsistent with the WTO Agreement, we are precluded from finding that the section 353.25(a)(2)(iii) certification requirement in and of itself amounts to a mandatory requirement inconsistent with Article 11.2 of the AD Agreement.”(753)

601. In US — Section 129(c)(1) URAA, Canada had claimed that certain United States legislation as such violated WTO law. The Panel(754) decided to analyse first whether the United States legislation at issue was mandatory, before analysing whether the behaviour mandated would be inconsistent with the relevant WTO provisions.(755)

(ii) Rejection of the distinction?

602. In US — Corrosion-Resistant Steel Sunset Review, the Appellate Body, for the first time, did not follow the traditional mandatory v. discretionary rule and found that it saw no reason for concluding that, in principle, non-mandatory measures cannot be challenged “as such”. In this case, the measure at issue was the United States Sunset Policy Bulletin which the Panel had found not to be challengeable as such because it was not mandatory for the competent authorities. The Appellate Body obviously disagreed:

“We also believe that the provisions of Article 18.4 of the Anti-Dumping Agreement are relevant to the question of the type of measures that may, as such, be submitted to dispute settlement under that Agreement. Article 18.4 contains an explicit obligation for Members to ‘take all necessary steps, of a general or particular character’ to ensure that their ‘laws, regulations and administrative procedures’ are in conformity with the obligations set forth in the Anti-Dumping Agreement. Taken as a whole, the phrase ‘laws, regulations and administrative procedures’ seems to us to encompass the entire body of generally applicable rules, norms and standards adopted by Members in connection with the conduct of anti-dumping proceedings.(756) If some of these types of measure could not, as such, be subject to dispute settlement under the Anti-Dumping Agreement, it would frustrate the obligation of ‘conformity’ set forth in Article 18.4.

This analysis leads us to conclude that there is no basis, either in the practice of the GATT and the WTO generally or in the provisions of the Anti-Dumping Agreement, for finding that only certain types of measure can, as such, be challenged in dispute settlement proceedings under the Anti-Dumping Agreement. Hence we see no reason for concluding that, in principle, non-mandatory measures cannot be challenged ‘as such’. To the extent that the Panel’s findings in paragraphs 7.145, 7.195, and 7.246 of the Panel Report suggest otherwise, we consider them to be in error.

We observe, too, that allowing measures to be the subject of dispute settlement proceedings, whether or not they are of a mandatory character, is consistent with the comprehensive nature of the right of Members to resort to dispute settlement to ‘preserve [their] rights and obligations … under the covered agreements, and to clarify the existing provisions of those agreements’.(757) As long as a Member respects the principles set forth in Articles 3.7 and 3.10 of the DSU, namely, to exercise their ‘judgement as to whether action under these procedures would be fruitful’ and to engage in dispute settlement in good faith, then that Member is entitled to request a panel to examine measures that the Member considers nullify or impair its benefits. We do not think that panels are obliged, as a preliminary jurisdictional matter, to examine whether the challenged measure is mandatory. This issue is relevant, if at all, only as part of the panel’s assessment of whether the measure is, as such, inconsistent with particular obligations. It is to this issue that we now turn.”(758)

603. In US — Corrosion-Resistant Steel Sunset Review, the Appellate Body, referring to its previous report in US — 1916 Act where it did follow mandatory/discretionary rule, indicated that it had yet to pronounce itself generally upon the continuing relevance of such a distinction and warned against its “mechanic application”:

“We explained in US — 1916 Act that this analytical tool existed prior to the establishment of the WTO, and that a number of GATT panels had used it as a technique for evaluating claims brought against legislation as such.(759) As the Panel seemed to acknowledge(760), we have not, as yet, been required to pronounce generally upon the continuing relevance or significance of the mandatory/discretionary distinction.(761) Nor do we consider that this appeal calls for us to undertake a comprehensive examination of this distinction. We do, nevertheless, wish to observe that, as with any such analytical tool, the import of the ‘mandatory/ discretionary distinction’ may vary from case to case. For this reason, we also wish to caution against the application of this distinction in a mechanistic fashion.”(762)

(d) Challenge of a “practice” as such

604. In US — Steel Plate, the United States, referring to the Panel’s decision in US — Export Restraints(763), argued that United States “practice” (in this case its practice as regards total facts available)(764) could not be the subject of a claim because it does not have “independent operational status” and therefore it is not a “measure”.(765) India, on the contrary, claimed that a “practice” becomes a “measure” through repeated similar responses to the same situation.(766) The Panel concluded that “[t]he challenged practice in this case is, in our view, no different from that considered in the US — Export Restraints case. It can be departed from so long as a reasoned explanation is given. It therefore lacks independent operational status, as it cannot require USDOC to do something, or refrain from doing something.”(767)

2. Article 17.1

(a) “settlement of disputes”

605. Article 17.1 was discussed by the Appellate Body in US — 1916 Act. See paragraph 594 above.

3. Article 17.2

(a) “any matter affecting the operation of this Agreement”

606. Article 17.2 was discussed by the Appellate Body in US — 1916 Act. See paragraph 594 above.

4. Article 17.3

(a) Exclusion of Article 17.3 of the Anti-Dumping Agreement from Appendix 2 of the DSU

607. In analysing the Panel’s interpretation of the relationship between Article 17 of the Anti-Dumping Agreement and the DSU, the Appellate Body in Guatemala — Cement I referred to the exclusion of Article 17.3 from Appendix 2 of the DSU, which lists the special or additional rules and procedures contained in the covered agreements:

“The Anti-Dumping Agreement is a covered agreement listed in Appendix 1 of the DSU; the rules and procedures of the DSU, therefore, apply to disputes brought pursuant to the consultation and dispute settlement provisions contained in Article 17 of that Agreement … [Article 17.3] is not listed [in Appendix 2 of the DSU,] precisely because it provides the legal basis for consultations to be requested by a complaining Member under the Anti-Dumping Agreement. Indeed, it is 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, under most of the other agreements in Annex 1A of the … WTO Agreement, and under the … TRIPS Agreement.”(768)

5. Article 17.4

(a) General

608. In US — 1916 Act, the Panel and the Appellate Body were called upon to determine whether the Anti-Dumping Agreement allowed challenges to anti-dumping legislation “as such”, rather than merely to the specific application of such legislation in individual anti-dumping investigations. The Panel on US — 1916 Act found that it had jurisdiction to consider claims “as such”.(769) The United States based its objections to the Panel’s jurisdiction on Article 17.4. More specifically, the United States argued that Members could not bring a claim of inconsistency with the Anti-Dumping Agreement “against legislation as such independently from a claim with respect to one of the three measures identified in Article 17.4, i.e. a definitive anti-dumping duty, a price undertaking, or a provisional measure.”(770) Moreover, the United States relied on the Appellate Body’s findings in Guatemala — Cement I, where the Appellate Body had held that “[a]ccording to Article 17.4, a ‘matter’ may be referred to the DSB only if one of the relevant three antidumping 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.”(771) The Appellate Body upheld the Panels’ findings; in doing so, it first clarified its own findings in Guatemala — Cement I:

“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 …

…

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.”(772)

609. After clarifying its own findings in Guatemala — Cement I with respect to Article 17.4, the Appellate Body turned to the considerations underlying the restrictions 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.(773) 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(774), 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 anti-dumping investigation. However, Article 17.4 does not address or affect a Member’s right to bring a claim inconsistency with the Anti-Dumping Agreement against anti-dumping legislation as such.”(775)

610. After setting out the function of Article 17.4 within the Anti-Dumping Agreement, the Appellate Body also stated that it failed to see, in the light of firmly established GATT and WTO jurisprudence according to which claims can be brought against legislation as such, which particular characteristics should distinguish anti-dumping legislation from other legislation so as to render the established case law practice inapplicable in the context of antidumping legislation. Finally, the Appellate Body also referred to Articles 18.1 and 18.4 as context for its findings.(776)

611. Noting that Article 17.4 does not refer to “claims”, the Panel on Mexico — Corn Syrup stated that “Article 17.4 does not, in our view, set out any further additional requirements with respect to the degree of specificity with which claims must be set forth a request for establishment challenging a final antidumping measure.”(777) The Panel concluded that 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.”(778)

(b) Panel terms of reference

(i) Concept of “matter”

612. In Guatemala — Cement I, Mexico’s complaint related to various aspects of the anti-dumping investigation by Guatemala applied in a specific case. Guatemala requested that the complaint be rejected, because (i) while a provisional anti-dumping measure was identified in the request for panel establishment, Mexico had not asserted and demonstrated that the measure had had a “significant impact” required under Article 17.4, and (ii) neither of a final anti-dumping measure and a price undertaking had been identified in Mexico’s request for the establishment of the panel. The Appellate Body described the word “matter” in paragraphs 2, 3, 4, 5 and 6 of Article 17 as “the key concept in defining the scope of dispute that may be referred to the DSB under the Anti-Dumping Agreement and, therefore, in identifying the parameters of a Panel’s terms of reference in an anti-dumping dispute.”(779)

613. Regarding the ordinary meaning of “matter”, the Appellate Body in Guatemala — Cement I stated that “the most appropriate [ordinary meaning] in this context is ‘substance’ or ‘subject-matter’. Although the ordinary meaning is rather broad, it indicates that the ‘matter’ is the substance or subject-matter of the dispute.”(780) The Appellate Body then linked the term “matter” to a panel’s terms of reference under Article 7 of the DSU and defined matter as consisting of (i) the specific measures at issue and (ii) the legal basis of the complaint or the claims:

“The word ‘matter’ appears in Article 7 of the DSU, which provides the standard terms of reference for Panels. Under this provision, the task of a Panel is to examine ‘the matter referred to the DSB’. These words closely echo those of Article 17.4 of the Anti-Dumping Agreement and, in view of the integrated nature of the dispute settlement system, form part of the context of that provision. Article 7 of the DSU itself does not shed any further light on the meaning of the term ‘matter’. However, when that provision is read together with Article 6.2 of the DSU, the precise meaning of the term ‘matter’ becomes clear. Article 6.2 specifies the requirements under which a complaining Member may refer a ‘matter’ to the DSB: in order to establish a Panel to hear its complaint, a Member must make, in writing, a ‘request for the establishment of a Panel’ (a ‘Panel request’). In addition to being the document which enables the DSB to establish a Panel, the Panel request is also usually identified in the Panel’s terms of reference as the document setting out ‘the matter referred to the DSB’. Thus, ‘the matter referred to the DSB’ for the purposes of Article 7 of the DSU and Article 17.4 of the Anti-Dumping Agreement must be the ‘matter’ identified in the request for the establishment of a Panel under Article 6.2 of the DSU. That provision requires the complaining Member, in a Panel request, to ‘identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly.’ (emphasis added) The ‘matter referred to the DSB’, therefore, consists of two elements: the specific measures at issue and the legal basis of the complaint (or the claims).

In our Report in Brazil — Coconut, we agreed with previous Panels established under the GATT 1947, as well as under the [AD Agreement], ‘that the “matter” referred to a Panel for consideration consists of the specific claims stated by the parties to the dispute in the relevant documents specified in the terms of reference.’(781) Statements in two of the Panel reports cited by us in that case clarify further the relationship between the ‘matter’, the ‘measures’ at issue and the ‘claims’. In United States — Imposition of Anti-Dumping Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway(782), the Panel found that ‘the “matter” consisted of the specific claims stated by Norway … with respect to the imposition of these duties’. (emphasis added) A distinction is therefore to be drawn between the ‘measure’ and the ‘claims’. Taken together, the ‘measure’ and the ‘claims’ made concerning that measure constitute the ‘matter referred to the DSB’, which forms the basis for a Panel’s terms of reference.”(783)

Concept of “measure”

Relationship with Article 6.2 of the DSU: “specific measure at issue”

614. The Panel on Guatemala — Cement I found that Article 17.4 of the Anti-Dumping Agreement is a “timing provision”, meaning that Article 17.4 established when a panel may be requested, rather than a provision setting forth the appropriate subject of a request for establishment of a panel.(784) The Appellate Body disagreed with this finding and stated that “Article 6.2 of the DSU requires ‘the specific measures at issue’ to be identified in the Panel request.”(785) In determining what may constitute a “specific measure” for the purposes of the Anti-Dumping Agreement, the Appellate Body in Guatemala — Cement I stated:

“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 antidumping duty, the acceptance of a price undertaking, or a provisional measure. 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 Anti-Dumping 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. In coming to this conclusion, we note that the language of Article 17.4 of the Anti-Dumping Agreement is unique to that Agreement.

[I]n 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 AntiDumping Agreement and Article 6.2 of the DSU.”(786)

615. In Mexico — Corn Syrup, the question arose whether, in a dispute where the specific measure challenged is a definitive anti-dumping duty, a Member may assert a claim of violation of Article 7.4 of the Anti-Dumping Agreement, a provision establishing maximum time-periods for the imposition of provisional measures. Article 17.4 establishes the possibility of challenging definitive anti-dumping duties, price undertakings or provisional measures; with respect to the latter, Article 17.4 establishes that “[w]hen a provisional measure has a significant impact and [a] Member … 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”. The Panel, in a decision not reviewed by the Appellate Body, discussed to what extent the United States’ claim under Article 7.4 was “related to” Mexico’s definitive anti-dumping duty:

“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’.

[W]e consider that the United States’ claim under Article 7.4 of the AD Agreement is nevertheless related to Mexico’s definitive anti-dumping duty. In this regard, we recall that, under Article 10 of the AD Agreement, a provisional measure represents a basis under which a Member may, if the requisite conditions are met, levy anti-dumping duties retroactively. At the same time, a Member may not, except in the circumstances provided for in Article 10.6 of the AD Agreement, retroactively levy a definitive anti-dumping duty for a period during which provisional measures were not applied. Consequently, because the period of time for which a provisional measure is applied is generally determinative of the period for which a definitive anti-dumping duty may be levied retroactively, we consider that a claim regarding the duration of a provisional measure relates to the definitive anti-dumping duty.”(787)

616. The Panel on Mexico — Corn Syrup then considered the fact that Article 17.4 refers only to paragraph 1 of Article 7 and decided that it would be incorrect to interpret Article 17.4 in a manner “which would leave Members without any possibility to pursue dispute settlement in respect of a claim alleging a violation of a requirement of the AD Agreement”:

“Read literally, this provision could be taken to mean that in a dispute where the specific measure being challenged is a provisional measure, the only claim that a Member may pursue is a claim under Article 7.1 of the AD Agreement (and not a claim under Article 7.4 of the AD Agreement). If this conclusion is correct, a ruling that a claim under Article 7.4 could not be pursued in a dispute where the specific measure challenged is a definitive anti-dumping duty would mean that a Member would never be able to pursue an Article 7.4 claim. In our view, it would be incorrect to interpret Article 17.4 of the AD Agreement in a manner which would leave Members without any possibility to pursue dispute settlement in respect of a claim alleging a violation of a requirement of the AD Agreement.”(788)

Measure not identified in terms of reference

617. In US — Hot-Rolled Steel, the issue arose as to whether the “general” practice of the United States investigating authorities regarding best facts available was within the terms of reference of the Panel. The Panel, which did not rule on whether a general practice could be challenged separately from the statutory measure on which it is based, concluded that Japan’s claim in this regard was outside its terms of reference because there was no mention of such a claim in Japan’s request for the establishment of a panel.(789)

Claims

618. As regards the concept of claims or legal basis of the complaint, see paragraphs 161–169 of the Chapter on the DSU.

Abandoned claims

619. In US — Steel Plate, India indicated in its first written submission that it would not pursue several claims that had been set out in its request for establishment of the Panel. However, India changed its position later on and informed the Panel of its intention to pursue one of these claims during the first substantive meeting of the Panel with the parties and in its rebuttal submission. In spite of the lack of specific objection by the US which had noted that the claim was within the Panel’s terms of reference, the Panel, in a decision not reviewed by the Appellate Body, concluded that it would not rule on India’s abandoned claim:

“This situation is not explicitly addressed in either the DSU or any previous panel or Appellate Body report. We do note, however, the ruling of the Appellate Body in Bananas to the effect that a claim may not be raised for the first time in a first written submission, if it was not in the request for establishment.(790) One element of the Appellate Body’s decision in that regard was the notice aspect of the request for establishment. The request for establishment is relied upon by Members in deciding whether to participate in the dispute as third parties. To allow a claim to be introduced in a first written submission would deprive Members who did not choose to participate as third parties from presenting their views with respect to such a new claim.

The situation here is, in our view, analogous. That is, to allow a party to resurrect a claim it had explicitly stated, in its first written submission, that it would not pursue would, in the absence of significant adjustments in the Panel’s procedures, deprive other Members participating in the dispute settlement proceeding of their full opportunities to defend their interest with respect to that claim. Paragraphs 4 and 7 of Appendix 3 to the DSU provide that parties shall ‘present the facts of the case and their arguments’ in the first written submission, and that written rebuttals shall be submitted prior to the second meeting. These procedures, in our view, envision that initial arguments regarding a claim should be presented for the first time in the first written submission, and not at the meeting of the panel with the parties or in rebuttal submissions.

With respect to the interests of third parties, the unfairness of allowing a claim to be argued for the first time at the meeting of the panel with the parties, or in rebuttal submissions, is even more pronounced. In such a circumstance, third parties would be entirely precluded from responding to arguments with respect to such a resurrected claim, as they would not have access to those arguments under the normal panel procedures set out in paragraph 6 of Appendix 3 to the DSU. Further, India has identified no extenuating circumstances to justify the reversal of its abandonment of this claim.(791) Thus, in our view, it would be inappropriate in these circumstances to allow India to resurrect its claim in this manner. Therefore, we will not rule on India’s claim under AD Agreement Articles 6.6 and 6.8 and Annex II, paragraph 7 regarding failure to exercise special circumspection in using information supplied in the petition.(792)”(793)

6. Article 17.5

(a) Article 17.5(i)

620. In considering what requirements, if any, must be fulfilled by virtue of Article 17.5(i) of the Anti-Dumping Agreement in addition to requirements existing under Article 6.2 of the DSU, the Panel on Mexico — Corn Syrup stated:

“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.”(794)

621. The Panel on Mexico — Corn Syrup went on to state that, in their 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.”(795)

(b) Article 17.5(ii)

(i) Documents not available to the investigating authorities

622. In US — Hot-Rolled Steel, the Panel found that, under Article 17.5(ii), “a panel may not, when examining a claim of violation of the AD Agreement(796) 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”.(797) The Panel further concluded that its duty not to consider new evidence with respect to claims under the Anti-Dumping 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”.(798)

(ii) Undisclosed facts

623. In Thailand — H-Beams, in reversing the Panel’s finding that an injury determination must be based exclusively upon evidence disclosed to, or discernible by, the parties to the investigation, the Appellate Body explained the scope of facts which panels are required to review pursuant to Article 17.5(ii), as follows:

“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.”(799)

See also paragraphs 111–114 above.

(iii) Documents created for the purpose of a dispute

624. In deciding whether a document created post hoc for the purposes of a dispute could be considered by the Panel, the Panel on EC — Bed Linen stated that Article 17.5(ii) “does not require … 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 to elucidate the parties’ positions and in support of their arguments.”(800) The Panel concluded that “the form of the document, (i.e., a new document) does not preclude us from considering its substance, which comprises facts made available to the investigating authority during the investigation.”(801)

625. In Thailand — H-Beams, the Appellate Body discussed the relationship between Articles 17.5 and 17.6. See paragraphs 113–114 above and 633 below.

7. Article 17.6

(a) Relationship with the standard of review in Article 11 of the DSU

626. In US — Hot Rolled Steel, the Appellate Body compared the standards of review under Article 17.6 of the Anti-Dumping Agreement and Article 11 of the DSU when considering to what extent Article 17.6 may conflict with Article 11 of the DSU.(802) The Appellate Body explained that, whilst Article 17.6 lays down rules relating to a panel’s examination of “matters” arising under only one of the covered agreements, i.e. the Anti-Dumping Agreement, Article 11 of the DSU rules applies to a panel’s examination of “matters” arising under any of the covered agreements.(803) The Appellate Body then focussed on the different structure of both provisions and indicated:

“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. …. 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’. (emphasis added) 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.”(804)

627. The Panel on US — Softwood Lumber VI addressed the question whether the application of the standard of review under Article 11 of the DSU to a determination could, in appropriate factual circumstances, lead to differing outcomes compared to the application of the Article 11 of the DSU and Article 17.6(i) of the Anti-Dumping Agreement standards together to the same determination:

“Under the Article 17.6 standard, with respect to claims involving questions of fact, Panels have concluded that whether the measures at issue are consistent with relevant provisions of the AD Agreement depends on whether the investigating authority properly established the facts, and evaluated the facts in an unbiased and objective manner. This latter has been defined as assessing whether an unbiased and objective decision maker, taking into account the facts that were before the investigating authority, and in light of the explanations given, could have reached the conclusions that were reached. A panel’s task is not to carry out a de novo review of the information and evidence on the record of the underlying investigation. Nor may a panel substitute its judgment for that of the investigating authorities, even though the Panel might have arrived at a different determination were it considering the record evidence for itself.

Similarly, the Appellate Body has explained that, under Article 11 of the DSU, a panel’s role is not to substitute its analysis for that of the investigating authority.(805) The Appellate Body has stated:

“We wish to emphasize that, although panels are not entitled to conduct a de novo review of the evidence, nor to substitute their own conclusions for those of the competent authorities, this does not mean that panels must simply accept the conclusions of the competent authorities”.(806)

In light of Canada’s clarification of its position, and based on our understanding of the applicable standards of review under Article 11 of the DSU and Article 17.6 of the AD Agreement, we do not consider that it is either necessary or appropriate to conduct separate analyses of the USITC determination under the two Agreements.

We consider this result appropriate in view of the guidance in the Declaration of Ministers relating to Dispute Settlement under the AD and SCM Agreements. While the Appellate Body has clearly stated that the Ministerial Declaration does not require the application of the Article 17.6 standard of review in countervailing duty investigations,(807) it nonetheless seems to us that in a case such as this one, involving a single injury determination with respect to both subsidized and dumped imports, and where most of Canada’s claims involve identical or almost identical provisions of the AD and SCM Agreements, we should seek to avoid inconsistent conclusions.”(808)

628. As regards the relationship of Article 11 of the DSU with Articles 17.6(i) and 17.6(ii) respectively, see paragraphs 640–641 and 644 below respectively.

(b) Article 17.6(i)

(i) General

629. In Guatemala — Cement II, the Panel defined the standard of review applicable by virtue of Article 17.6(i):

“We consider that it is not our role to perform a de novo review of the evidence which was before the investigating authority in this case. Rather, Article 17 makes it clear that our task is to review the determination of the investigating authorities. Specifically, we must determine whether its establishment of the facts was proper and the evaluation of those facts was unbiased and objective.(809) In other words, we must determine whether an unbiased and objective investigating authority evaluating the evidence before it at the time of the investigation could properly have made the determinations made by Guatemala in this case. In our review of the investigating authorities’ evaluation of the facts, we will first need to examine evidence considered by the investigating authority, and second, this examination is limited by Article 17.5(ii) to the facts before the investigating authority. That is, we are not to examine any new evidence that was not part of the record of the investigation.(810)”(811)

630. In EC — Bed Linen (Article 21.5 — India), the Appellate Body stated clearly that it “will not interfere lightly with [a] panel’s exercise of its discretion under Article 17.6(i) of the Anti-Dumping Agreement.”(812) In that appeal, it also explained that “[a]n appellant must persuade us, with sufficiently compelling reasons, that we should disturb a panel’s assessment of the facts or interfere with a panel’s discretion as the trier of facts.”(813) Applying this standard in the case of EC — Tube or Pipe Fittings, the Appellate Body rejected Brazil’s claim that the Panel failed to assess whether the establishment of the facts was proper pursuant to Article 17.6(i) of the Anti-Dumping Agreement, when it found that an internal note which contained analysis of certain injury factors and which was not disclosed to the interested parties during the investigation, was part of the record of the underlying anti-dumping investigation. The Appellate Body considered highly relevant the fact that the Panel had not just accepted at face value the assertion of the EC that this internal note was contemporaneous to the investigation and formed part of the record of the investigation, but had taken steps to assure itself of the validity of this exhibit and of the fact that it formed part of the contemporaneous written record of the EC investigation.(814)

(ii) “establishment of the facts was proper”

Record of the investigating authority

631. In Guatemala — Cement I, in order to examine the claim that the initiation of an investigation was not consistent with Article 5, the Panel “scrutinized all the information which was on the record before the Ministry at the time of initiation in examining whether an unbiased and objective investigating authority could properly have made the determination that was reached by the Ministry.”(815) The Appellate Body found that the dispute was not properly before the Panel and therefore did not reach a conclusion on the interpretation of Article 17 by the Panel.(816) Accordingly, the Panel Report on Guatemala — Cement I was adopted as reversed by the Appellate Body.(817) However, the panels on EC — Bed Linen, US — Stainless Steel, Guatemala — Cement II, and Thailand — H-Beams also based their factual review of decisions of the investigating authority on the evidence before the authority at the time of the determination.(818) See also paragraphs 622–624 above dealing with Article 17.5(ii) which orders Panels to consider a dispute under the Anti-Dumping Agreement on the basis of the facts made available to the investigating authorities.

Treatment of undisclosed facts

632. In Thailand — H-Beams, in discussing whether an injury determination must be based only upon evidence disclosed to the parties to the investigation, the Appellate Body interpreted the term “establishment of the facts was proper”, as follows:

“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.”(819)

633. The Appellate Body elaborated on the aim of Article 17.6(i), stating that its function 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”:

“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.”(820)

(iii) “the evaluation of facts was unbiased and objective”

634. In US — Stainless Steel, the Panel examined the determinations of the United States authorities on the issue of whether certain local sales were in dollars or won. The Panel rejected Korea’s argument that Article 17.6(i) did not apply to the examination of this issue because the United States decision on this point was not a factual determination. The Panel stated:

“Korea’s view appears to be that Article 17.6(i) applies only in respect of the establishment of certain objectively-ascertainable underlying facts, e.g., did the invoices express the sales values in terms of dollars or won, in what currency payment was made, etc. We consider that this interpretation does not however coincide with the language of Article 17.6(i). That Article 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.”(821)

635. In Thailand — H-Beams, in discussing whether an injury determination must be based only upon evidence disclosed to the parties to the investigation, the Appellate Body touched on the term “unbiased and objective”. The Appellate Body stated that “[t]he 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.”(822) See also the excerpt from the Appellate Body Report on Thailand — H-Beams referenced in paragraph 633 above.

(iv) Relevance of the different roles of panels and investigating authorities

636. In US — Hot-Rolled Steel, when defining the task of panels under Article 17.6(i), the Appellate Body recalled the importance “to bear in mind the different roles of panels and investigating authorities”.(823)

“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.”(824)

637. As regards the different roles of investigating authorities and panels in the context of Article 3.7 (threat of serious injury), see paragraph 199 above.

(v) No ex post rationalization

638. On the question of whether ex post rationalization should be taken into account in order to assess an authority’s compliance with the provisions of the Anti-Dumping Agreement, the Panel on Argentina — Ceramic Tiles stated:

“Under Article 17.6 of the AD Agreement we are to determine whether the DCD established the facts properly and whether the evaluation performed by the DCD was unbiased and objective. In other words, we are asked to review the evaluation of the DCD made at the time of the determination as set forth in a public notice or in any other document of a public or confidential nature. We do not believe that, as a panel reviewing the evaluation of the investigating authority, we are to take into consideration any arguments and reasons that did not form part of the evaluation process of the investigating authority, but instead are ex post facto justifications which were not provided at the time the determination was made.”(825) (emphasis in original)

639. The Panel on Argentina — Poultry Anti-Dumping Duties agreed with the view expressed by the Panel on Argentina — Ceramic Tiles, concluding that as a panel reviewing the evaluation of the investigating authority, it did not believe it was to “take into consideration any arguments and reasons that are not demonstrated to have formed part of the evaluation process of the investigating authority”(826)

(vi) Relationship of Article 17.6(i) with Article 11 of the DSU

640. In US — Hot-Rolled Steel, the Appellate Body defined the task of panels under Article 17.6(i) by comparing it to their task under Article 11 of the DSU:

“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.”(827)

641. In US — Steel Plate, India requested the Panel to conduct an “active review” of the facts before the US investigating authorities pursuant to both Article 11 of the DSU and Article 17.6(i). India based its request in the Appellate Body’s decisions on the application of Article 11 in US — Cotton Yarn(828) and of Article 17.6(i) in US — Hot-Rolled Steel.(829) The US was opposed to such a request since it considered that India was trying to add to the obligations of investigating authorities. The Panel considered that there was no question that it had to apply Article 17.6 to the dispute and recalled the Appellate Body’s decision in US — Hot-Rolled Steel to the effect that Article 17.6(i) is not in conflict with Article 11 of the DSU (830) and that Article 17.6(ii) supplemented Article 11 of the DSU.(831) (832) The Panel found:

“[W]e do not consider that India’s reference to Article 11 of the DSU constitutes an argument that we apply some other or different standard of review in considering the factual aspects of this dispute than that set out in Article 17.6 of the AD Agreement, which India recognizes is applicable in all anti-dumping disputes. That standard requires us to assess the facts to determine whether the investigating authorities’ own establishment of facts was proper, and to assess the investigating authorities’ own evaluation of those facts to determine if it was unbiased and objective. What is clear from this is that we are precluded from establishing facts and evaluating them for ourselves — that is, we may not engage in de novo review. However, this does not limit our examination of the matters in dispute, but only the manner in which we conduct that examination. In this regard, we keep in mind that Article 17.5(ii) of the AD Agreement establishes that we are to examine the matter based upon ‘the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member.’ “(833)

(i) First sentence: customary rules of interpretation

642. In US — Hot-Rolled Steel, the Appellate Body looked into the first sentence of Article 17.6(ii) which provides that the Panel “shall” interpret the provisions of the Anti-Dumping Agreement “in accordance with customary rules of interpretation”, and considered that it echoed closely Article 3.2 of the DSU (See Section III.B.1 of the Chapter on the DSU). The Appellate Body stated that such customary rules are embodied in Article 31 and 32 of the Vienna Convention on the Law of the Treaties. On a further note, the Appellate Body indicated that “[c]learly, 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”.(834)

(ii) Second sentence: more than one permissible interpretation

643. The second sentence of Article 17.6(ii) deals with the situation where there is more than one permissible interpretation of a provision of the Anti-Dumping Agreement.(835) In US — Hot-Rolled Steel, the Appellate Body defined the term “permissible interpretation” as “one which is found to be appropriate after application of the pertinent rules of the Vienna Convention”.(836) The Appellate Body considered:

“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.”(837)

(iii) Relationship with standard of review in Article 11 of the DSU

644. In US — Hot-Rolled Steel, the Appellate Body considered the relationship between Article 17.6(ii) and the DSU, in particular Article 11. The Appellate Body stated:

“[A]lthough 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.”(838)

645. With respect to the question of the legal interpretation under Article 17.6 (ii), the Panel on US — Softwood Lumber VI considered that under the Anti-Dumping Agreement, a panel is to follow the same rules of treaty interpretation as in any other dispute:

“Thus, it is clear to us that under the AD Agreement, a panel is to follow the same rules of treaty interpretation as in any other dispute. The difference is that if a panel finds more than one permissible interpretation of a provision of the AD Agreement, it may uphold a measure that rests on one of those interpretations. It is not clear whether the same result could be reached under Articles 3.2 and 11 of the DSU. However, it seems to us that there might well be cases in which the application of the Vienna Convention principles together with the additional provisions of Article 17.6 of the AD Agreement could result in a different conclusion being reached in a dispute under the AD Agreement than under the SCM Agreement. In this case, it has not been necessary for us to resolve this question, as we did not find any instances where the question of violation turned on the question whether there was more than one permissible interpretation of the text of the relevant Agreements.”(839)

(d) Relationship between subparagraphs (i) and (ii) of Article 17.6

646. In Mexico — Corn Syrup (Article 21.5 — US), the Appellate Body ruled that “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.”(840)

8. Relationship with other Articles

(a) Article 3

647. In Thailand — H-Beams, the Appellate Body addressed the relationship between Articles 3.1, and 17.5 and 17.6. See paragraph 113 above.

(b) Article 5

648. The Panel on Guatemala — Cement I addressed the relationship between Articles 5.3 and 17.6. In determining what constitutes “sufficient evidence to justify the initiation of an investigation” under Article 5.3, the Panel on Guatemala — Cement I applied the standard of review set out in Article 17.6(i).(841) The Panel also considered that the standard of review for the initiation of an investigation under Article 5 is less strict than that for preliminary or final determination of dumping, injury and causation.(842) However, the Appellate Body found that the dispute was not properly before the Panel and therefore did not reach a conclusion on the interpretation of Article 17.6. See paragraph 256 above.

649. The relationship between Articles 7.1 and 17.4 was discussed in Mexico — Corn Syrup. See paragraph 616 above.

650. Also, the relationship between Articles 7.4 and 17.4 was discussed in Mexico — Corn Syrup. See paragraphs 615–616 above.

(d) Article 18

651. Further, the relationship between Articles 17.4, and 18.1 and 18.4 was discussed in US — 1916 Act. See paragraph 596 above.

9. Relationship with other WTO Agreements

(a) GATT 1994

(i) Articles XXII and XXIII

652. The Appellate Body in Guatemala — Cement I noted the following regarding the relationship between Article 17 and Articles XXII and XXIII of the GATT 1994:

“Articles XXII and XXIII of the GATT 1994 are not expressly incorporated by reference into the Anti-Dumping Agreement as they are into all of the other Annex 1A agreements … As a result, … Article XXIII of the GATT 1994 does not apply to disputes brought under the Anti-Dumping Agreement. On the contrary, Articles 17.3 and 17.4 of the Anti-Dumping Agreement are the ‘consultation and dispute settlement provisions’ pursuant to which disputes may be brought under that covered agreement.”(843)

653. The Appellate Body, in Guatemala — Cement I, further addressed this issue. See paragraph 607 above. Also, this issue was addressed in US — 1916 Act. See paragraphs 593–594 above.

(b) DSU

(i) Article 1

654. The Appellate Body in Guatemala — Cement I considered the concurrent application of Article 17 and the rules and procedures of the DSU. See paragraph 591 above.

(ii) Article 3.8

655. In Mexico — Corn Syrup, the Panel touched on the relationship between Article 17.5 of the Anti-Dumping Agreement and Article 3.8 of the DSU. See paragraph 621 above.

(iii) Article 6.2

656. The Appellate Body in Guatemala — Cement I rejected the Panel’s conclusion that Article 17.5 of the Anti-Dumping Agreement prevails over Article 6.2 of the DSU and went on to state that both provisions apply cumulatively:

“The fact that Article 17.5 contains these additional requirements, which are not mentioned in Article 6.2 of the DSU, does not nullify, or render inapplicable, the specific requirements of Article 6.2 of the DSU in disputes brought under the Anti-Dumping Agreement. In our view, 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. Thus, when a ‘matter’ is referred to the DSB by a complaining party under Article 17.4 of the AntiDumping Agreement, the Panel request must meet the requirements of Articles 17.4 and 17.5 of the AntiDumping Agreement as well as Article 6.2 of the DSU.”(844)

657. The Panel on Mexico — Corn Syrup discussed the relationship between Article 17.4 of the Anti-Dumping Agreement, and Article 6.2 of the DSU. See paragraph 611 above.

658. This issue was also discussed by the Appellate Body in Guatemala — Cement I. See paragraph 656 above.

(iv) Article 7

659. The Appellate Body in Guatemala — Cement I linked the term “matter” in Article 7 of the DSU, which provides the standard terms of reference for Panels, to the same word in Article 17.4 of the Anti-Dumping Agreement.(845) It specifically stated:

“[T]he 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 elements: 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.”(846)

660. The Appellate Body addressed further this issue. See paragraph 613 above.

(v) Article 11

661. For the relationship between Article 17.6 and the standard of review provision of the DSU, i.e. Article 11, see paragraphs 626, 640, 644 and 627 above. See also Section XI of the Chapter on the DSU.

(vi) Article 19.1

662. In Guatemala — Cement I, it was disputed whether a complaint of non-compliance in an antidumping investigation should be examined even if neither a final anti-dumping measure, a provisional measure nor a price undertaking is identified in the request for panel establishment, as referenced in paragraph 612 above. In this regard, the Panel rejected Guatemala’s argument that a final or provisional duty or a price undertaking must be identified in a request for panel establishment in order for a panel to be able to issue a recommendation in terms of Article 19.1 of the DSU:

“This [argument] is clearly in conflict with our conclusion regarding the interpretation of the provisions of the ADP Agreement as not limited to disputes involving only specific ‘measures’. A restrictive reading of Article 19.1 would mean that, while the ADP Agreement provides for consultations and establishment of a Panel to consider a matter without limitation to a specific ‘measure’, the Panel so established is not empowered to make a recommendation with respect to that matter. This would clearly run counter to the intention of the drafters of the DSU to establish an effective dispute resolution system for the WTO. In addition, it would undermine the special or additional rules for dispute settlement in anti-dumping cases provided for in the ADP Agreement. A broader reading of Article 19.1, on the other hand, would give effect to the special or additional dispute settlement provisions of the ADP Agreement, by allowing Panels in anti-dumping disputes to consider the ‘matter’ referred to them, and issue a recommendation with respect to that matter. As discussed below, the DSU provisions relied on … do not, in our view, limit Panels to the consideration only of certain types of specified ‘measures’ in disputes.”(847)

663. The Appellate Body in Guatemala — Cement I found that the dispute was not properly before the Panel and therefore did not come to any conclusion as to the broad reading of Article 19.1 by the Panel.(848) The Appellate Body concluded that the Panel did not consider whether the complainant, Mexico, had properly identified a relevant anti-dumping measure in its panel request, and the Panel had therefore erred in finding the dispute properly before it.(849)

10. List of disputes under the Anti-Dumping Agreement

664. The following table lists the disputes in which panel and/or Appellate Body reports have been adopted where the provisions of the Anti-Dumping Agreement were invoked:

	Case Name	Case Number	Invoked Articles
1	Guatemala — Cement I	WT/DS60	Articles-5.3 and 5.5
2	US — DRAMS	WT/DS99	Articles-2, 3, 5.3 and 7.1
3	Thailand — H-Beams	WT/DS122	Articles-2.2, 2.2.2, 3.1, 3.4, 3.5, 5.2, 5.5 and 5.5
4	Mexico — Corn Syrup	WT/DS132	Articles-5.1, 5.2, 5.3, 5.4, 5.8, 10.2, 10.4, 17.4 and 17.5
5	US — 1916 Act	WT/DS136, WT/DS162	Articles-1, 2.1, 2.2, 3, 4.1, 5.1, 5.2, 5.4, 18.1 and 18.4
6	EC — Bed Linen	WT/DS141	Articles-2.2, 2.2.2, 2.4.2, 3.1, 3.4, 3.5, 5.3, 5.5, 6.10, 6.11, 12.2.1, 12.2.2 and 15
7	Guatemala — Cement II	WT/DS156	Articles-1, 2, 2.1, 2.2, 3, 5, 6.1, 6.1.2, 6.1.3, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 9, 12 and 18
8	US — Stainless Steel	WT/DS179	Articles-2.3, 2.4, 2.4.1, 2.4.2, 6.1, 6.2, 6.9, and 12.2
9	US — Hot-Rolled Steel	WT/DS184	Articles-2.1, 3.1, 3.4, 3.5, 4, 6.8, 9.4, 10, 17.5(i), 17.6, 17.6(i), 17.6(ii), 18, Annex-I, Annex-II
10	Argentina — Ceramic Tiles	WT/DS189	Articles-2, 6.5, 6.8, 6.9, 6.10, 17.5(ii), 17.6(i), 17.6(ii)
11	US — Steel Plate	WT/DS206	Articles-1, 2.2, 2.4, 6.6, 6.8, 9.3, 12, 15, 17.6(i), 17.6(ii), 18, Annex-II
12	Egypt — Steel Rebar	WT/DS211	Articles-2.2.1.1, 2.2.2, 2.4, 3.1, 3.2, 3.4, 3.5, 6.1, 6.2, 6.8, 17.6, 17.6(i), 17.6(ii), Annex-I, Annex-II
13	EC — Tube or Pipe Fittings	WT/DS219	Articles 1, 2.2, 2.4, 2.4.1, 2.4.2, 3.1, 3.2, 3.3, 3.4, 3.5, 5.2, 5.3, 5.8, 6.2, 6.4, 6.6, 6.9, 9.3, 11.1, 11.2, 12.2, 12.2.2
14	US — Section 129(c)(1) URAA	WT/DS221	Articles-1, 9.3, 11.1, 18.1, 18.4
15	US — Offset Act (Byrd Amendment)	WT/DS234, WT/DS217	Articles 5.4, 8, 18.1, 18.4
16	Argentina — Poultry Anti-Dumping Duties	WT/DS241	Articles 2.4, 5.2, 5.3, 5.7, 5.8, 6.1.1, 6.1.2, 6.1.3, 6.2, 6.8, 6.9, 6.10, 12.2.2, Annex-II
17	US — Corrosion-Resistant Steel Sunset Review	WT/DS244	Articles 2, 2.4, 3.3, 5.6, 5.8, 6.1, 6.2, 6.6, 6.10, 11.1, 11.2, 11.3, 12.1, 12.3, 18.3, 18.4
18	US — Softwood Lumber V	WT/DS264	Articles 1, 2, 2.1, 2.2, 2.2.1, 2.2.1.1, 2.2.2, 2.4, 2.4.2, 3, 4.1, 5, 5.2, 5.3, 5.8, 6.10, 9, 9.3, 18.1
19	US — Oil Country Tubular Goods Sunset Reviews	WT/DS268	Articles 2, 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 6.1, 6.2, 6.8, 6.9, 11.1, 11.3, 11.4, 12.2, 12.2.2, 18, Annex II
20	US — Softwood Lumber VI	WT/DS277	Articles 1, 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 12 and 18.1

Footnotes:

694. Panel Report on US — Oil Country Tubular Goods Sunset Reviews, para. 7.336. back to text
695. Appellate Body Report on US — Oil Country Tubular Goods Sunset Reviews, para. 302. back to text
696. Appellate Body Report on US — Oil Country Tubular Goods Sunset Reviews, para. 323. back to text
697. Panel Report on Guatemala — Cement II, para. 8.87. back to text
698. Panel Report on Guatemala — Cement II, para. 8.89. back to text
699. Panel Report on Argentina — Poultry Anti-Dumping Duties, para. 7.133. back to text
700. Panel Report on Argentina — Poultry Anti-Dumping Duties, para. 7.132. back to text
701. Panel Report on Guatemala — Cement II, para. 8.95. back to text
702. Panel Report on Guatemala — Cement II, para. 8.96. back to text
703. Panel Report on Mexico — Corn Syrup, para. 7.87. back to text
704. Panel Report on Mexico — Corn Syrup, para. 7.103. back to text
705. Panel Report on EC — Bed Linen, para. 6.260. back to text
706. Panel Report on EC — Bed Linen, para. 6.260. back to text
707. Panel Report on EC — Tube or Pipe Fittings, para. 7.424. back to text
708. Panel Report on Guatemala — Cement II, para. 8.291. Also see Panel Report on Argentina — Poultry Anti-Dumping Duties, para. 7.207. back to text
709. Panel Report on US — Softwood Lumber VI, para. 7.41. back to text
710. Panel Report on Guatemala — Cement II, para. 8.296. back to text
711. Panel Report on US — Stainless Steel, para. 6.55. The Panel cited Appellate Body Report on US — Wool Shirts and Blouses, p. 19. With respect to judicial economy in general, see the Chapter on the DSU, Section XXXVI.F. back to text
712. Panel Report on EC — Bed Linen, para. 6.259. See also Panel Report on Mexico — Corn Syrup (Article 21.5 — US), para. 6.40; and Panel Report on Argentina — Poultry Anti-Dumping Duties, para. 7.293. back to text
713. Panel Report on Guatemala — Cement II, para. 8.296. back to text
714. Panel Report on EC — Tube or Pipe Fittings, para. 7.424. back to text
715. Panel Report on EC — Tube or Pipe Fittings, para. 7.425. back to text
716. Panel Report on Guatemala — Cement II, para. 8.296. back to text
717. Panel Report on Guatemala — Cement II, para. 8.296. back to text
718. (footnote original) In this regard, we note the decision of the GATT Panel that considered similar arguments in the EEC-Cotton Yarn dispute. That Panel, in considering Article 13 of the Tokyo Round Agreement, which is substantively identical to it successor, Article 15 of the AD Agreement, stated:
          “582. … The Panel was of the view that Article 13 should be interpreted as a whole. In the view of the Panel, assuming arguendo that an obligation was imposed by the first sentence of Article 13, its wording contained no operative language delineating the extent of the obligation. Such language was only to be found in the second sentence of Article 13 whereby it is stipulated that ‘possibilities of constructive remedies provided for by this Code shall be explored before applying anti-dumping duties where they would affect the essential interests of developing countries’.”
          Panel Report, European Economic Community — Imposition of Anti-Dumping Duties on Imports of Cotton Yarn from Brazil (“EEC — Cotton Yarn”), adopted 30 October 1995, BISD42S/17, para. 582 (emphasis added). back to text
719. Panel Report on US — Steel Plate, para. 7.110. back to text
720. Panel Report on EC — Tube or Pipe Fittings, para. 7.68. back to text
721. Panel Report on US — Steel Plate, para. 7.111. back to text
722. (footnote original) The New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993. back to text
723. (footnote original) Id. back to text
724. Panel Report on EC — Bed Linen, para. 6.228. In US — Steel Plate, the Panel agreed with the above conclusions and, applying it in the circumstances of this case, “consider[ed] that the possibility of applying different choices of methodology is not a ‘remedy’ of any sort under the AD Agreement”. Panel Report on US — Steel Plate, para. 7.112. back to text
725. Panel Report on EC — Bed Linen, para. 6.229. A similar view was expressed by the Panel on EC — Tube or Pipe Fittings, para. 7.71–7.72. The Panel on EC — Tube or Pipe Fittings considered that Article 15 does not impose any obligation to explore undertakings other than price undertakings in the case of developing country Members. Panel Report on EC — Tube or Pipe Fittings, para. 7.78. back to text
726. (footnote original) We note that our interpretation of Article 15 in this regard is consistent with that of a GATT Panel which considered the predecessor of that provision, Article 13 of the Tokyo Round Anti-Dumping Code, which provision is substantively identical to present Article 15. That Panel found:
          “The Panel noted that if the application of anti-dumping measures ‘would affect the essential interests of developing countries’, the obligation that then arose was to explore the ‘possibilities’ of ‘constructive remedies’. It was clear from the words ‘[p]ossibilities’ and ‘explored’ that the investigating authorities were not required to adopt constructive remedies merely because they were proposed.” EC — Cotton Yarn, para. 584 (emphasis added). back to text
727. Panel Report on EC — Bed Linen, para. 6.233. See also Panel Report on US — Steel Plate, paras. 7.113–7.115 and Panel Report on EC — Tube or Pipe Fittings, para. 7.72. With respect to the related concept of good faith in general, see Chapter on DSU, Section III.B.1(vi). back to text
728. Panel Report on EC — Bed Linen, para. 6.238. back to text
729. Panel Report on US — Steel Plate, para. 7.116. back to text
730. Panel Report on EC — Bed Linen, paras. 6.231–6.232. Also see Panel Report on EC — Tube or Pipe Fittings, para. 7.82. back to text
731. G/C/M/10, section 1(ii). The text of the adopted rules of procedure can be found in G/ADP/4 and G/L/143. back to text
732. G/L/143, chapter I, rule 1. back to text
733. G/ADP/M/4, section D. The text of the adopted guidelines can be found in G/ADP/2. back to text
734. G/ADP/M/4, section D. The text of the adopted format and guidelines can be found in G/ADP/1. back to text
735. With respect to dispute settlement, in Marrakesh, the Ministers adopted the 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. See Section XXII. back to text
736. With respect to Article 17.6, in Marrakesh, the Ministers adopted the Decision on Review of Article 17.6 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994. See Section XXIII. back to text
737. Appellate Body Report on Guatemala — Cement I, para. 58, quoting from the Panel Report on Guatemala — Cement I, para. 7.16. back to text
738. Appellate Body Report on Guatemala — Cement I, paras. 65–66. back to text
739. Appellate Body Report on Guatemala — Cement I, para. 67. The Panels on US — 1916 Act followed the approach of the Appellate Body. Panel Report on US — 1916 Act (EC), para. 5.21; and Panel Report on US — 1916 Act (Japan), para. 6.85. See also Appellate Body Report on US — Hot-Rolled Steel, para. 51. back to text
740. Appellate Body Report on US — 1916 Act, para. 62. back to text
741. Appellate Body Report on US — 1916 Act, paras. 64–65. back to text
742. Appellate Body Report on US — 1916 Act, para. 68. back to text
743. Appellate Body Report on US — 1916 Act, para. 74. back to text
744. Appellate Body Report on US — 1916 Act, paras. 78–82. back to text
745. Panel Report on US — Hot-Rolled Steel, para. 7.90. back to text
746. Appellate Body Report on US — Hot-Rolled Steel, para. 129. back to text
747. This Section only refers to the analysis of this issue in anti-dumping related disputes. For a detailed analysis of this issue in the WTO jurisprudence, see paras. VI.B.3(c)(ii). back to text
748. Appellate Body Report on US — 1916 Act, para. 91. back to text
749. (footnote original) Panel Report on EC — Audio Cassette, para. 4.1. On the legal value of unadopted panel reports, see footnote 358 above and its reference to the Appellate Body Report on Japan — Alcoholic Beverages II. back to text
750. (footnote original) Panel Report on EC — Audio Cassette, para. 362. back to text
751. (footnote original) Article 16.6(a) (“National Legislation”) of the Tokyo Round Anti-Dumping Agreement provided as follows:
          “Each government accepting or acceding to this Agreement shall take all necessary steps, of a general or particular character, to ensure, not later than the date of entry into force of this Agreement for it, the conformity of its laws, regulations and administrative procedures with the provisions of this Agreement as they may apply to the Party in question.” back to text
752. Panel Report on US — 1916 Act (EC), para. 6.168. See also Panel Report on US — 1916 Act (Japan), paras. 6.188–6.189. See also, Panel Report on US — Steel Plate, paras. 7.88–7.89 and 8.3. In this case, the Panel concluded that the “practice” of the US authorities concerning the application of “total facts available” (Article 6.8 Anti-dumping Agreement) is not a measure which can give rise to an independent claim of violation of the AD Agreement. See also, Panel Report on US — Section 129(c)(1) URAA, para. 6.22. back to text
753. Panel Report on US — DRAMS, para. 6.53. back to text
754. The Panel decided not to follow the approach of the Panel on US — Export Restraints, which had considered that identifying and addressing the relevant WTO obligations first would facilitate its assessment of the manner in which the legislation addresses those obligations, and whether any violation is involved (Panel Report on US — Export Restraints, paras. 8.10–8.13). The Panel Report on US — Section 129(c)(1) URAA justified the different approach as follows:
             “We note that the Panel on United States — Measures Treating Exports Restraints as Subsidies first considered whether certain action was in conformity with WTO requirements and only then addressed whether the measure at issue mandated such action. … In the circumstances of the case at hand, where there is a major factual dispute regarding whether section 129(c)(1) requires and/or precludes certain action, we think that a panel is of most assistance to the DSB if it examines the factual issues first. Moreover, we do not see how addressing first whether certain actions identified by Canada would contravene particular WTO provisions would facilitate our assessment of whether section 129(c)(1) mandates the United States to take certain action or not to take certain action. Finally, we have taken into account the fact that, in the present case, our ultimate conclusions with respect to Canada’s claims would not differ depending on the order of analysis we decided to follow”. Panel Report on US — Section 129(c)(1) URAA, footnote 72. back to text
755. Panel Report on US — Section 129(c)(1) URAA, para. 6.22–6.25. back to text
756. (footnote original) We observe that the scope of each element in the phrase “laws, regulations and administrative procedures” must be determined for purposes of WTO law and not simply by reference to the label given to various instruments under the domestic law of each WTO Member. This determination must be based on the content and substance of the instrument, and not merely on its form or nomenclature. Otherwise, the obligations set forth in Article 18.4 would vary from Member to Member depending on each Member’s domestic law and practice. back to text
757. Article 3.2 of the DSU. back to text
758. Appellate Body Report on US — Corrosion-Resistant Steel Sunset Review, paras. 87–89. back to text
759. (footnote original) Appellate Body Report, US — 1916 Act, paras. 61 and 88. back to text
760. (footnote original) In footnote 95 to para. 7.114, the Panel quoted the following statement from para. 7.88 of the Panel Report in US — Steel Plate: “[t]he Appellate Body has recognized the distinction, but has not specifically ruled that it is determinative in consideration of whether a statute is inconsistent with relevant WTO obligations.” back to text
761. (footnote original) In our Report in US — 1916 Act, we examined the challenged legislation and found that the alleged “discretionary” elements of that legislation were not of a type that, even under the mandatory/discretionary distinction, would have led to the measure being classified as “discretionary” and therefore consistent with the Anti-Dumping Agreement. In other words, we assumed that the distinction could be applied because it did not, in any event, affect the outcome of our analysis. We specifically indicated that it was not necessary, in that appeal, for us to answer “the question of the continuing relevance of the distinction between mandatory and discretionary legislation for claims brought under the Anti-Dumping Agreement”. (Appellate Body Report, US — 1916 Act, para. 99) We also expressly declined to answer this question in footnote 334 to paragraph 159 of our Report in US — Countervailing Measures on Certain EC Products. Furthermore, the appeal in US — Section 211 Appropriations Act presented a unique set of circumstances. In that case, in defending the measure challenged by the European Communities, the United States unsuccessfully argued that discretionary regulations, issued under a separate law, cured the discriminatory aspects of the measure at issue. back to text
762. Appellate Body Report on US — Corrosion-Resistant Steel Sunset Review, para. 93. back to text
763. In US — Export Restraints, Canada had claimed that the US “practice” of treating export restraints as meeting the “financial contribution” requirement of Article 1.1(a)(1)(iv) of the SCM Agreement was a measure and could be challenged as such. Canada defined US “practice” as “an institutional commitment to follow declared interpretations or methodologies that is reflected in cumulative determinations” and claimed that this “practice” has an “operational existence in and of itself”. The Panel considered whether the alleged US practice required the US authorities to treat export restraints in a certain way and therefore had “independent operational status”. The Panel, which concluded that there was no measure in the form of US practice, indicated:
          “[W]hile Canada may be right that under US law, ‘practice must normally be followed, and those affected by US [CVD] law … therefore have reason to expect that it will be’, past practice can be departed from as long as a reasoned explanation, which prevents such practice from achieving independent operational status in the sense of doing something or requiring some particular action. The argument that expectations are created on the part of foreign governments, exporters, consumers, and petitioners as a result of any particular practice that the DOC ‘normally’ follows would not be sufficient to accord such a practice an independent operational existence. Nor do we see how the DOC’s references in its determinations to its practice gives ‘legal effect to that “practice” as determinative of the interpretations and methodologies it applies’. US ‘practice’ therefore does not appear to have independent operational status such that it could independently give rise to a WTO violation as alleged by Canada.”
          Panel Report on US — Export Restraints, para. 8.126. back to text
764. In US — Hot-Rolled Steel, Japan had also challenged the “general” practice of the US investigating authorities regarding total facts available. The Panel did not rule on whether a general practice could be challenged separately from the statutory measure on which it is based because it concluded that Japan’s claim in this regard was outside its terms of reference. Indeed, the Panel found that there was no mention of such a claim in Japan’s request for the establishment of a panel. Panel Report on US — Hot-Rolled Steel, para. 7.22. back to text
765. Panel Report on US — Steel Plate, para. 7.14. back to text
766. Panel Report on US — Steel Plate, para. 7.15. back to text
767. Panel Report on US — Steel Plate, para. 7.23. back to text
768. Appellate Body Report on Guatemala — Cement I, para. 64. back to text
769. Panel Report on US — 1916 Act (EC), para. 5.27; Panel Report on US — 1916 Act (Japan), para. 6.91. back to text
770. Appellate Body Report on US — 1916 Act, para. 55 back to text
771. Appellate Body Report on Guatemala — Cement I, para. 79. (See also para. 614 of this Chapter). back to text
772. Appellate Body Report on US — 1916, paras. 71–72. back to text
773. (footnote original) An unrestricted right to have recourse to dispute settlement during an anti-dumping investigation would allow a multiplicity of dispute settlement proceedings arising out of the same investigation, leading to repeated disruption of that investigation. back to text
774. (footnote original) Once one of the three types of measure listed in Article 17.4 is identified in the request for establishment of a panel, a Member may challenge the consistency of any preceding action taken by an investigating authority in the course of an anti-dumping investigation. back to text
775. Appellate Body Report on US — 1916 Act, paras. 73–74. back to text
776. Appellate Body Report on US — 1916 Act, paras. 75–83. back to text
777. Panel Report on Mexico — Corn Syrup, para. 7.14. back to text
778. Panel Report on Mexico — Corn Syrup, para. 7.14. With respect to specificity of requests for the establishment of a panel pursuant to Article 6.2 of the DSU, see Chapter on DSU, Sections VI.B.3(d) and XXII.3(a). back to text
779. Appellate Body Report on Guatemala — Cement I, para. 70. back to text
780. Appellate Body Report on Guatemala — Cement I, para. 71. back to text
781. (footnote original) Appellate Body Report on Brazil — Desiccated Coconut, p. 22. back to text
782. (footnote original) Panel Report on US — Norwegian Salmon AD, para. 342. back to text
783. Appellate Body Report on Guatemala — Cement I, paras. 72–73. back to text
784. Appellate Body Report on Guatemala — Cement I, para. 77, quoting the Panel Report on Guatemala — Cement I, para. 7.15. back to text
785. Appellate Body Report on Guatemala — Cement I, para. 77. back to text
786. Appellate Body Report on Guatemala — Cement I, paras. 79–80. back to text
787. Panel Report on Mexico — Corn Syrup, paras. 7.52–7.53. back to text
788. Panel Report on Mexico — Corn Syrup, para. 7.54. back to text
789. Panel Report on US — Hot-Rolled Steel, para. 7.22. back to text
790. (footnote original) Appellate Body Report, European Communities — Regime for the Importation, Sale and Distribution of Bananas (“EC — Bananas III ”), WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591, at para. 143. back to text
791. (footnote original) This is not, for example, a case where a complainant obtained, through the dispute settlement process, information in support of a claim to which it did not otherwise have access. back to text
792. (footnote original) We note that, since we do not reach India’s alternative claims in this dispute, as discussed below in para. 7.80, we also would not have reached this claim in any event. back to text
793. Panel Report on US — Steel Plate, paras. 7.27–7.29. back to text
794. Panel Report on Mexico — Corn Syrup, para. 7.26. back to text
795. Panel Report on Mexico — Corn Syrup, para. 7.28. back to text
796. (footnote original) We note that there is no claim under Article VI of GATT 1994 in this case, so we need not consider whether Article 17.5(ii) has implications for the evidence a panel may consider in that context. back to text
797. Panel Report on US — Hot-Rolled Steel, para. 7.6. back to text
798. Panel Report on US — Hot-Rolled Steel, para. 7.7. See also Panel Report on Egypt — Steel Rebar, paras. 7.15–7.21. back to text
799. Appellate Body Report on Thailand — H-Beams, para. 115. back to text
800. Panel Report on EC — Bed Linen, para. 6.43. back to text
801. Panel Report on EC — Bed Linen, para. 6.43. back to text
802. In this analysis, the Appellate Body applied its conclusions on the relationship between the provisions of the DSU and the special or additional rules and procedures of a covered agreement developed in Guatemala — Cement II, paras. 65–67. See para. 591 of this Chapter. back to text
803. Appellate Body Report on US — Hot Rolled Steel, para. 53. back to text
804. Appellate Body Report on US — Hot Rolled Steel, para. 54. back to text
805. (footnote original) Appellate Body Report, United States — Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan (“US — Cotton Yarn”), WT/DS192/AB/R, adopted 5 November 2001, para. 74; Appellate Body Report, United States — Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia (“US — Lamb”), WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, para. 106. back to text
806. (footnote original) Appellate Body Report, US — Cotton Yarn, para. 69, n.42, citing Appellate Body Report, US — Lamb, para. 106. back to text
807. (footnote original) Appellate Body Report, United States — Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom (“US — Lead and Bismuth II”), WT/DS138/AB/R, adopted 7 June 2000, DSR 2000:V, 2601 at para. 49. back to text
808. Panel Report on US — Softwood Lumber VI, paras. 7.15–7.18. back to text
809. (footnote original) We note that, in the context of safeguard measures, the panel in Korea — Dairy, said the following of the need for a panel to perform an objective assessment pursuant to Article 11 of the DSU:
          “7.30 We consider that for the Panel to adopt a policy of total deference to the findings of the national authorities could not ensure an ‘objective assessment’ as foreseen by Article 11 of the DSU. This conclusion is supported, in our view, by previous panel reports that have dealt with this issue. However, we do not see our review as a substitute for the proceedings conducted by national investigating authorities. Rather, we consider that the Panel’s function is to assess objectively the review conducted by the national investigating authority, in this case the KTC. For us, an objective assessment entails an examination of whether the KTC had examined all facts in its possession or which it should have obtained in accordance with Article 4.2 of the Agreement on Safeguards (including facts which might detract from an affirmative determination in accordance with the last sentence of Article 4.2 of the Agreement on Safeguards), whether adequate explanation had been provided of how the facts as a whole supported the determination made, and, consequently, whether the determination made was consistent with the international obligations of Korea. Finally, we consider that the Panel should examine the analysis performed by the national authorities at the time of the investigation on the basis of the various national authorities’ determinations and the evidence it had collected.” back to text
810. (footnote original) We note that this standard is consistent with the approach followed by the panel in Guatemala — Cement I in para. 7.57 of its report. In that instance the panel was of the opinion that its role was:
          “… to examine whether the evidence relied on by the Ministry was sufficient, that is, whether an unbiased and objective investigating authority evaluating that evidence could properly have determined that sufficient evidence of dumping, injury, and causal link existed to justify initiating the investigation.” back to text
811. Panel Report on Guatemala — Cement II, para. 8.19. See also Panel Report on US — Stainless Steel, para. 6.18, Panel Report on Argentina — Ceramic Tiles, paras. 6.2–6.3 and Panel Report on Egypt — Steel Rebar, paras. 7.8–7.14. back to text
812. Appellate Body Report, EC — Bed Linen (Article 21.5 — India), para. 169, quoting Appellate Body Report, US — Wheat Gluten, para. 151. back to text
813. Appellate Body Report, EC — Bed Linen (Article 21.5 — India), para. 170. back to text
814. Appellate Body Report on EC — Tube or Pipe Fittings, para. 127. back to text
815. Panel Report on Guatemala — Cement I, para. 7.60. back to text
816. Appellate Body Report on Guatemala — Cement I, para. 89. back to text
817. WT/DSB/M/51, section 9(a). back to text
818. Panel Report on EC — Bed Linen, para. 6.45; Panel Report on US — Stainless Steel, para. 6.3; Panel Report on Guatemala — Cement II, para. 8.19; and Panel Report on Thailand — H-Beams, para. 7.51; Panel Report on Argentina — Ceramic Tiles, para. 6.27. back to text
819. Appellate Body Report on Thailand — H-Beams, para. 116. With respect to a related topic under Article 3.1, see also paras. 111–114 of this Chapter. back to text
820. Appellate Body Report on Thailand — H-Beams, para. 117. With respect to a related topic under Article 3.1, see also paras. 111–114 of this Chapter. back to text
821. Panel Report on US — Stainless Steel, para. 6.18. back to text
822. Appellate Body Report on Thailand — H-Beams, para. 116. back to text
823. Appellate Body Report on US — Hot Rolled Steel, para. 55. back to text
824. Appellate Body Report on US — Hot Rolled Steel, para. 56. back to text
825. Panel Report on Argentina — Ceramic Tiles, para. 6.27. back to text
826. Panel Report on Argentina — Poultry Anti-Dumping Duties, para. 7.49. The Panel thus rejected various arguments that were based on an ex post rationalization by the defendant, such as those put forward with respect to the evaluation of the magnitude of the margin of dumping as an Article 3.4 factor:
         “We note that Argentina has failed to indicate where such arguments are set forth in the CNCE’s Record No. 576, or to point us to any other document in which the CNCE is alleged to have considered such arguments. Such arguments therefore constitute ex post rationalization which we are precluded from taking into account. […]”
         Panel Report on Argentina — Poultry Anti-Dumping Duties, para. 7.321. back to text
827. Appellate Body Report on US — Hot Rolled Steel, para. 55. back to text
828. See Section XI of the Chapter on DSU. back to text
829. See para. 640 of this Chapter. back to text
830. See para. 640 of this Chapter. back to text
831. See para. 644 of this Chapter. back to text
832. Panel Report on US — Steel Plate, paras. 7.1–7.5. back to text
833. Panel Report on US — Steel Plate, para. 7.6. back to text
834. Appellate Body Report on US — Hot Rolled Steel, para. 57. See also Panel Report on US — Steel Plate, para. 7.7. back to text
835. In EC — Bed Linen, the EC argued that the Panel had failed to apply the standard of review laid down in Article 17.6(ii) because it had not established that the interpretation of Article 2.4.2 of the Anti-Dumping Agreement was “impermissible”. The Appellate Body upheld the Panel’s finding and indicated that the Panel had not viewed the interpretation given by the EC of Article 2.4.2 as a “permissible interpretation” within the meaning of Article 17.6(ii). The Appellate Body considered that “the Panel was not faced with a choice of multiple ‘permissible’ interpretations which would have required it, under Article 17.6(ii), to give deference to the interpretation relied upon by the European Communities. Rather, the Panel was faced with a situation in which the interpretation relied upon by the European Communities was, …, ‘impermissible’.” Appellate Body Report on EC — Bed Linen, paras. 63–66. back to text
836. Appellate Body Report on US — Hot Rolled Steel, para. 60. back to text
837. Appellate Body Report on US — Hot Rolled Steel, paras. 59–60. back to text
838. Appellate Body Report on US — Hot Rolled Steel, para. 62. back to text
839. Panel Report on US — Softwood Lumber VI, para. 7.22. back to text
840. Appellate Body Report on Mexico — Corn Syrup (Article 21.5 — US), para. 130. back to text
841. Panel Report on Guatemala — Cement I, para. 7.57. back to text
842. Panel Report on Guatemala — Cement I, para. 7.57. back to text
843. Appellate Body Report on Guatemala — Cement I, para. 64, fn 43. back to text
844. Appellate Body Report on Guatemala — Cement I, para. 75. back to text
845. Appellate Body Report on Guatemala — Cement I, para. 72. back to text
846. Appellate Body Report on Guatemala — Cement I, para. 76. back to text
847. Panel Report on Guatemala — Cement I, para. 7.21. With respect to the issue of repayment of anti-dumping duties under Article 19.1 of the DSU, see Panel Report on Guatemala — Cement II, paras. 9.4–9.7. back to text
848. Appellate Body Report on Guatemala — Cement I, para. 89. back to text
849. Appellate Body Report on Guatemala — Cement I, para. 88. back to text